BALAKRISHNA REDDIAR v. MADHAVAN PILLAI — 1978 DIGILAW 83 (KER)

Judgment :- 1. The executability of a compromise order for eviction passed by a Rent Control Court arises for consideration in this Civil Revision Petition. The petitioner was the landlord who filed O. P. (B.R.C.) No 238 of 1972, a petition for eviction on the ground of arrears of rent before the Rent Control Court, Trivandrum. Pending this Civil Revision Petition, the petitioner died and additional petitioners 2 to 7 were impleaded. The petition for eviction was first opposed by the counter-petitioners-tenants, but later, the parties settled the matter and filed a compromise petition incorporating the terms of the compromise. As per the terms, the tenants-counter petitioners agreed to surrender possession of the building within one year from 19-12-1973. The tenants will be allowed to continue till that date on payment of rent at the rate of Rs. 30/-. The tenants also agreed that the arrears of rent already accrued will be paid within tour months from 19121973. A further term of the compromise was that in case any of the above terms of the compromise is violated, the landlord will have the right to evict them from the building on the expiry of one year from 19121973 in the same proceedings. The Rent Control Court heard the counsel on both sides and passed orders on the petition for eviction in terms of the compromise. 2. The tenants paid the arrears of rent as agreed to in the compromise petition, but did not vacate the building after the expiry of one year Thereupon, the landlord filed E. P. No. 55 of 1975 before the Munsiff 's Court, Trivandrum for getting vacant possession of the building. The tenants raised a contention that the compromise order for eviction is not an executable order. But the contention was rejected by the Rent Control Court and delivery was ordered. Against the above order of the learned Munsiff the second counter-petitioner tenant filed a revision before the District Court, Trivandrum as B.R.C. Revision No. 6 of 1976 It seems that the first counter-petitioner had by that time left this world. The learned District Judge allowed the revision, set aside the order of the learned Munsiff and dismissed the Execution Petition. Against the above order of the learned Munsiff the second counter-petitioner tenant filed a revision before the District Court, Trivandrum as B.R.C. Revision No. 6 of 1976 It seems that the first counter-petitioner had by that time left this world. The learned District Judge allowed the revision, set aside the order of the learned Munsiff and dismissed the Execution Petition. In Para.8 of the order the learned District Judge has said: "There is absolutely no material extrinsic or intrinsic to the compromise order on the basis of which the court could be satisfied as to the existence of a statutory ground for eviction. In this case the only ground on which eviction was claimed is that the tenant was in arrears of rent. Under the terms of the compromise that ground ceased to exist because the default in payment of rent was waived and the tenant was given time to pay the arrears, upto four months. The tenant has the statutory right to get an order of eviction on the ground of arrears of rent vacated on deposit of such arrears. The tenant was allowed to continue in possession of the building for a further period of one year stipulating an enhanced rent of Rs. 30- per mensem. There was no express clause that the tenancy had been determined and time was granted by way of grace. The compromise only shows that the tenancy was revived or renewed on fresh terms. The Rent Control Court gets jurisdiction to older eviction of the tenant only on determination of the tenancy and when one of the statutory grounds exist. When under the terms of the compromise the tenancy is renewed and extended for a further period, there is no statutory right for the landlord to evict the tenant without determination of the tenancy on any one of the grounds provided under the statute. So, on the facts of the case it has to be held that when the Rent Control Court passed the order the court did not satisfy itself with regard to the existence of a statutory ground for eviction as no such ground existed. So, on the facts of the case it has to be held that when the Rent Control Court passed the order the court did not satisfy itself with regard to the existence of a statutory ground for eviction as no such ground existed. The order thus entitles the landlord only to resort fresh proceedings for eviction and does not give the landlord the right to obtain delivery of the building in execution of that order." The above order of the learned District Judge is challenged by the petitioner-landlord in this Civil Revision Petition. 3. In Nai Baku v. Lala Ramnarayan (AIR. 1978 SC. 22) it is said: "It is well-settled that where the Rent Control and Restrictions Acts are in operation, a landlord cannot obtain eviction of the tenant unless he can satisfy the requirements of the provisions in those Acts. The general law of landlord and tenant to that extent will give way to the special Act in that behalf. It is also well-settled that if the court does not find the permissible grounds for eviction disclosed in the pleadings and other materials on the record, no consent or compromise will give jurisdiction to the court to pass a valid decree of eviction In the above case, eviction was sought on the ground of bona fide need for own occupation. The tenants at first contested, but later the parties compromised and a decree was passed in terms of the compromise. As per the terms of the compromise, the tenants admitted the landlord's claim for ejectment. The landlord was put in possession of a portion of the premises. The tenants continued to be in occupation of the remaining portion on condition that they will put the landlord in vacant possession of the same on a future date. The tenants had also agreed that if they do not vacate within the time stipulated, the landlord will be entitled to execute the decree against them to get vacant possession of the portion they retained possession. The above terms were incorporated in the decree passed by the court. The tenants had also agreed that if they do not vacate within the time stipulated, the landlord will be entitled to execute the decree against them to get vacant possession of the portion they retained possession. The above terms were incorporated in the decree passed by the court. In Para.14 of the above judgment it is said: "The Court is to be satisfied whether a statutory ground for eviction has been pleaded which the tenant has admitted by the compromise Thus dispensing with further proof, on account of the compromise, the court is to be satisfied about compliance with the statutory requirement on the totality of facts of a particular case bearing in mind the entire circumstances from the stage of pleadings upto the stage when the compromise is effected." About the powers of the executing court in the case of a compromise decree in Para.15 of the judgment it is said: "When a compromise decree is challenged as a nullity in the course of its execution the executing court can examine relevant materials to find out whether statutory grounds for eviction existed in law. If the pleadings and other materials on the record make out a prima facie case about the existence of statutory grounds for eviction a compromise decree cannot be held to be invalid and the executing court will have to give effect to it" In the above case the Supreme Court has also considered the question whether a fresh lease will be created by the compromise decree and said: "After a careful consideration of the terms of the compromise and the whole tenor of the compromise petition it is absolutely clear that there was no intention to create a lease between the parties. It is the dominant intention of the document which must guide the construction of its contents. In the recitals of the compromise petition in three places it is stated categorically that the plaintiff shall be entitled to execute her decree against the defendants'. There was, therefore no intention to create a lease with regard to any portion of the property although certain arrangements had been entered for the intermediate occupation of a certain portion before vacating that portion after expiry of five years. There was, therefore no intention to create a lease with regard to any portion of the property although certain arrangements had been entered for the intermediate occupation of a certain portion before vacating that portion after expiry of five years. The few alterations and improvements agreed upon by consent were merely an arrangement for vacating two floors and in order to vacate the remaining portion after using it for five years. There was no intention whatsoever to create a new lease. There is. therefore no question of registration of the decree. The submission is devoid of substance. The High Court is. therefore, clearly wrong in holding that a lease was created by the compromise and that the decree was ineffective on account of non-registration" In Roshan Lal v. Madan Lal (AIR. 1977 SC. 90) it is said: "If the agreement or compromise for the eviction of the tenant is found, on the facts of a particular case, to be in violation of a particular Rent Restriction or Control Act. the Court would refuse to record the compromise as it will not be a lawful agreement. If on the other hand the Court is satisfied on consideration of the terms of the compromise and, if necessary, by considering them in the context of the pleadings and other materials in the case, that the agreement is lawful, as in any other suit so in an eviction suit, the Court is bound to record the compromise and pass a decree in accordance therewith." In Nagiadas Ramdas v. Dalpatram Ichharam Brijram (1975 RCJ. 48) dealing with the powers or the executing court, the Supreme Court has said: "If on the face of it, the decree does not show the existence of such material or jurisdictional fact, the Executing Court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial court's jurisdiction to past the decree it did. The moment it finds that prima facie such material existed its task is complete. It is not necessary for it to go further and question the presumed or expressed finding of the trial court on the basis of that material. The moment it finds that prima facie such material existed its task is complete. It is not necessary for it to go further and question the presumed or expressed finding of the trial court on the basis of that material. All that it has to see is whether there was some material on the basis of which the Rent Court could have distinguished from must have been satisfied as to the statutory ground for eviction. To as allow the Executing Court to go beyond that limit would be exalt it to the status of a Super Court sitting in appeal over the decision of the Rent Court." In the above case, the Supreme Court has referred to an earlier decision in K. K. Chart v R. M. Seshaadri (1973 RCJ. 589). In K. K. Chart's case it is said: " It is no doubt true that before making an order for possession the court is under a duty to satisfy itself as to the truth of the landlord's claim if there is a dispute between the landlord and tenant. But if the tenant in fact admits that the landlord is entitled to possession on one or other of the statutory grounds mentioned in the Act, it is open to the court to act on that admission and make an order for possession in favour of the landlord without further enquiry." In Ferozi Lal v. Man Mal (AIR. 1970 SC. 794) the Supreme Court has said: "The jurisdiction of the court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds mentioned in S.13(1) have been proved. Where the court had proceeded solely on the basis of the compromise arrived at between the parties, the court was not competent to pass the decree. Hence the decree under execution must be held to be a nullity." In the above case, though a statutory ground for eviction was taken in the rent control petition, there was nothing in the compromise decree to show that the tenant admitted (hat ground or that the court passed the compromise decree for eviction adverting to that aspect of the matter also. In Punnen v. Vasudeva Kurup (1955 KLT. In Punnen v. Vasudeva Kurup (1955 KLT. 924) the main contention that was raised was whether the defendants-tenants waived the benefits under the Travancore-Cochin Buildings (Lease and Rent Control) Order, 1950 Though a statutory ground, namely, arrears of rent, was pleaded in the case, the rent due on the date of compromise was paid by the tenants and claim for eviction was given up by the landlords. So, on the facts, that decision is distinguishable as do ground for eviction was available on the date of the compromise. 4. S.11(1) of the Kerala Buildings (Lease and Rent Control) Act, 1965, for short the Act, reads: "11. Eviction of tenants. (1) Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted whether in execution of a decree or otherwise, except in accordance with the provisions of this Act:" (the provisos are omitted as they are not relevant here) The provision made in S.11(1) of the Act is clear. A tenant cannot be dispossessed either in execution of a decree or order or otherwise except in accordance with the provisions of the Act. Immediately after S.11(1) the various grounds for eviction are enumerated in sub-sections (2) onwards. There is do taboo against a compromise order for eviction But compromise or no compromise, a tenant can be evicted only if a valid ground for eviction was there at the time of passing the order for eviction by the Rent Control Court. In the case of a compromise order for eviction the executing court has got a duty to see whether the ground taken by the landlord was admitted by the tenant and the Rent Control Court which passed the order eviction was aware of the existence of such a valid ground. If these can be gathered from the order for eviction, the pleadings and other materials brought out in the case, the executing court has no other option but to see that the landlord is given vacant possession of the premises in execution of the order. If these can be gathered from the order for eviction, the pleadings and other materials brought out in the case, the executing court has no other option but to see that the landlord is given vacant possession of the premises in execution of the order. If going by the compromise order for eviction the tenant has agreed for vacating the premises, the mere fact that the tenant was given some breathing time to vacate and to continue in possession till then on payment of rent, will not in any way help the tenant to cling on to the premises and raise a contention that he can be dispossessed only in fresh proceedings under S 11 of the Act. This is because in such a case by no stretch of imagination a fresh lease can be inferred. In the case of a compromise order for eviction on the ground of arrears of rent the landlord is in a better position because the tenant will not be able to invoke S.11(2)(c) and get the order for eviction vacated by making a deposit of the arrears of rent etc. mentioned therein. How can a tenant who has agreed for eviction get out of the order by making the deposit later. The benefits of S.11(2) (c) can be claimed only by a tenant who loses the battle in a petition for eviction under S.11(2) and not by one who agrees for an order for eviction on certain terms. In this case, there was arrears of rent at the time of the compromise order. As it is clear from the compromise order that the tenants agreed to pay off the arrears within a time limit, it cannot be said that they did not admit the arrears. It cannot also be said that the Rent Control Court was not aware of the existence of the ground for eviction under S.11(2) of the Act when the compromise order was passed. So, the learned Munsiff, before whom the execution petition came, was perfectly right in overruling the objections of the tenants and ordering delivery. The learned District Judge went wrong in interfering with that order in revision because she did not consider the facts and circumstances of the case in the proper perspective and in the background of the case law on the point. The learned District Judge was highly hyper-technical also. The learned District Judge went wrong in interfering with that order in revision because she did not consider the facts and circumstances of the case in the proper perspective and in the background of the case law on the point. The learned District Judge was highly hyper-technical also. Above all these, as the order of the learned Munsiff was not in any way illegal, irregular or improper, the learned District Judge had no power to interfere in revision. Hence, the order impugned is without jurisdiction. 5. In the result, I allow the Civil Revision Petition and set aside the order in BRC. No. 6 of 1976. EP. No. 55 of 1975 on the file of the Munsiff's Court, Trivandrum will stand allowed. There will be no order as to costs. Allowed.