Shiva Datt and Sons v. Prescribed Authority — 1983 DIGILAW 440 (ALL)

JUDGMENT K.N. Singh, J. - This petition is directed against the order of the Prescribed Authority, Allahabad, dated 7-9-1978 rejecting the Petitioners prayer to decide the dispute in accordance with a compromise alleged to have been arrived at between the parties. 2. The Petitioners are tenants of a portion of building No. 59 Vivekanand Marg, Allahabad, which is a multistoreyed building. Shailendra Chowdhry, who is the landlord of the premises, let out the ground floor to the Petitioners in the year 1948 on a rent of Rs. 60/- per mensem. In 1955, the rent was enhanced to Rs. 85/-. The landlord appears to have let out two more rooms to the Petitioners, as a result of which there was further enhancement of rent and the Petitioners have been paying Rs. 155/- per mensem as rent. Shailendra Chowdhry filed an application u/s 21 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, for the eviction of the Petitioners from the portion in their occupation on the ground floor on the ground that he required the building for his own personal use and occupation. Proceedings u/s 21 of the Act remained pending for a long time and the notice of the proceedings could not be served on the Petitioners. At one stage the application was rejected in default of the landlord. Thereupon, the landlord went up in revision before the District Judge who set aside the order of the Prescribed Authority dismissing the application in default and remanded the case to the Prescribed Authority for deciding the same in accordance with law. After the remand, notices were again issued to the Petitioners, but the same were not served on them. The Prescribed Authority passed an order on 13-2-1978 to proceed exparte against the Petitioners. The Petitioners appeared and filed an application for setting aside the exparte order and their application was allowed. The Petitioners further made an application on 19th May, 1978, to the effect that a compromise was entered into between the parties under which the Petitioners had agreed to pay enhanced rent to the landlord and in his turn the landlord had agreed to withdraw the proceedings. The landlord appeared and contested the application on the ground that no compromise had been entered into between the parties. The landlord appeared and contested the application on the ground that no compromise had been entered into between the parties. The Prescribed Authority after hearing the parties held that there was no compromise between the parties and as such it directed that the case may proceed on merits. Aggrieved, the Petitioners have approached this Court by means of this petition for quashing of the order dated 7-9-1978. 3. It appears that there was no written compromise entered into between the parties, nor was any such compromise filed before the Prescribed Authority. The Petitioners' case was that they were being harassed by the proceedings u/s 21 of the Act as the landlord wanted to enhance the rent. At the instance of the Petitioner, Dr. S.N. Seth, who has his clinic in the neighbourhood of the building in dispute, intervened in the matter and negotiated the compromise between the parties. By the intervention of Dr. S.N. Seth the landlord agreed to withdraw the proceedings provided the Petitioners agreed to pay enhanced rent. On 14th March, 1977, the Petitioners and the landlord both agreed to compromise the matter in the presence of Dr. S.N. Seth. The Petitioners further assert that they paid rent for the months of January and February, 1977, at the rate of Rs. 235/- instead of Rs. 155/-, the old rent, and the landlord executed a receipt that very day to the Petitioners for having accepted enhanced rent. The Petitioners have further asserted that the landlord had undertaken to withdraw the proceedings but when be failed to do that the Petitioners filed an application for disposing of the application made u/s 21 in terms of the compromise. The landlord Shailendra Chowdhry filed an objection before the Prescribed Authority denying the compromise. He asserted that he did not know Dr. S.N. Seth at all, he never agreed to drop the proceedings in lieu of the enhancement of rent. He further asserted that the Petitioners on their own voluntarily enhanced the rent and paid the same which he readily accepted. Dr. S.N. Seth filed his own affidavit before the Prescribed Authority supporting the Petitioners' case. No affidavit in reply to the affidavit of Dr. S.N. Seth was filed by the landlord although he had filed a reply to the application of the Petitioners. Dr. S.N. Seth filed his own affidavit before the Prescribed Authority supporting the Petitioners' case. No affidavit in reply to the affidavit of Dr. S.N. Seth was filed by the landlord although he had filed a reply to the application of the Petitioners. The Petitioners had also filed a copy of the receipt and vouchers alleged to have been executed by the landlord accepting the enhanced rent on 14th March, 1977. 4. The Prescribed Authority rejected the affidavit of Dr. S.N. Seth on three grounds, firstly, that in his affidavit Dr. S.N. Seth had given minute details of the compromise which an independent and unconcerned person was not supposed to know; secondly, Dr. Seth's name was inserted in ink in the application filed by the Petitioners on 19th May, 1978, for disposing of the application in terms of the compromise although the entire application was typed, and, thirdly the insertion of Dr. S.N. Seth's name in the application by ink created a doubt on the veracity of the case set up by the Petitioners. On these findings the Prescribed Authority held that no reliance could be placed on his affidavit and as such the Petitioners had failed to prove the alleged compromise. The Prescribed Authority further held that the voucher and the receipt produced by the Petitioners merely proved payment of rent at enhanced rate but that did not prove the compromise. 5. Having heard learned Counsel for the parties and having perused the record we are of the opinion that the Prescribed Authority failed to consider the relevant circumstances and it turther failed to consider the material plea. The Petitioners' case was that they had agreed to pay enhanced rent on the assurance given by the landlord that he would withdraw the proceedings. The receipt for enhanced rent specifically recited that the enhanced rent was being paid as "mutually agreed". The mutual agreement according to the Petitioners referred to the enhancement of rent on the pan of the Petitioners and the withdrawal of the proceedings on the part of the landlord. 6. The Prescribed 'Authority failed to consider the material plea taken by the Petitioners before him. The Petitioners' material plea was that the parties had arrived at a compromise as a result of which the Petitioners had agreed to pay enhanced rent and the landlord in turn had agreed to withdraw the proceedings. 6. The Prescribed 'Authority failed to consider the material plea taken by the Petitioners before him. The Petitioners' material plea was that the parties had arrived at a compromise as a result of which the Petitioners had agreed to pay enhanced rent and the landlord in turn had agreed to withdraw the proceedings. The two terms were inter dependent. This was the essence of tbe compromise. The Prescribed Authority has no doubt recorded a finding that enhanced rent was paid by the Petitioners to the landlord which was accepted, but he failed to consider tbe main plea that tbe rent was enhanced on the assurance that the proceedings would be dropped. The Prescribed Authority bas not considered the vital question as to how the rent was enhanced. Landlord's averment that it was unilaterally enhanced by the Petitioners is inconsistent with tbe recital in tbe receipt that it was mutually agreed. Whose offer had been accepted and why, was a question to be considered which the Prescribed Authority failed to do. Normally a tenant against whom proceedings u/s 21 are taken would not agree to pay enhanced rent to the landlord without any concession by tbe landlord. The Petitioners agreement to pay enhanced rent and tbe landlord's conduct in accepting the same is a relevant and important circumstance which the Prescribed Authority failed to consider, if a Court or Tribunal does not consider the relevant plea its findings would be vitiated and liable to be struck down. See Nanha and Another Vs. Deputy Director of Consolidation, Kanpur and Others, AIR 1976 All 91 . The Petitioners had filed a detailed affidavit asserting their claim that a compromise had taken place between the parties. In reply to that affidavit Shailendra Chowdhry had also filed an affidavit none of these two affidavits were considered by the Prescribed Authority, in our opinion these two affidavits were very vital and relevant for the determination of the controversy in question. The Prescribed Authority committed error apparent on the face of the record in not considering the same. 7. As noted earlier the Prescribed Authority rejected the affidavit of Dr. S.N. Seth mainly on two grounds. The first ground on which his testimony was rejected was that he being an independent person could not remember the terms meticulously and as such his testimony could not be accepted. This reason does not appear to be justified. If Dr. 7. As noted earlier the Prescribed Authority rejected the affidavit of Dr. S.N. Seth mainly on two grounds. The first ground on which his testimony was rejected was that he being an independent person could not remember the terms meticulously and as such his testimony could not be accepted. This reason does not appear to be justified. If Dr. Seth was carrying on his clinic in the neighbourhood and if he played the role of mediator as the Petitioners allege, he could certainly remember the details. There was no question of meticulous details. The compromise contained only two terms, firstly the Petitioners agreed to pay enhanced rent and, secondly the landlord agreed to withdraw the proceedings. The second ground on which Dr. Seth's testimony was rejected was that his name was written in ink in the application filed by the Petitioner on 19th May, 1978. It is true that the entire application was typed written and the name of Dr. S.N. Seth was written by hand in the body of the application, but that circumstance itself could not be sufficient to hold that the compromise was not entered into. Dr. Seth's testimony could not be rejected on that ground. If there was any doubt on account of these circumstances the same could have been got clarified by the Prescribed Authority. Moreover, the Respondent did not file any affidavit controverting the facts alleged in the affidavit of Dr. Seth and he did not place any material before the Prescribed Authority snowing that Dr. Seth was not an independent person or that his testimony was not liable to be relied upon. The Prescribed Authority was unjustified in rejecting the testimony of Dr. Seth. 8. Learned Counsel for the Respondent urged that since there was no written compromise signed by the parties as contemplated by Order XXIII Rule 3 of the Code of Civil Procedure, there was no question of acceptance of any compromise and the Prescribed Authority rightly rejected the Petitioners claim. The Prescribed Authority did not reject the Petitioners' application on this ground. Moreover, Order XXIII Rule 3 has no application in terms to proceedings taken u/s 21 of the Act. Section 34 of the Act confers power on the Prescribed Authority to disposes of a proceeding if it is satisfied that the parties have entered into compromise. The Prescribed Authority did not reject the Petitioners' application on this ground. Moreover, Order XXIII Rule 3 has no application in terms to proceedings taken u/s 21 of the Act. Section 34 of the Act confers power on the Prescribed Authority to disposes of a proceeding if it is satisfied that the parties have entered into compromise. Neither the Act nor the rules lay down any particular form of compromise and as such the Prescribed Authority could proceed and dispose of the proceedings if it was proved to its satisfaction that the compromise was entered into between the parties. 9. In the result, we allow the petition and quash the order of the Prescribed Authority dated 7-9-1978. We direct the Prescribed Authority to consider the matter again on merits and if necessary give opportunity to the parties on the question of compromise. Since the proceedings u/s 21 have been pending since long the Prescribed Authority will act expeditiously. Parties shall bear their own costs.