Kishan Lal v. Seo Prasad — 1984 DIGILAW 5 (RAJ)

K.S. LODHA, J.—This is a revision filed by Kishan Lal one of the judgment-debtors against Seoprasad and others decree-holders and it arises out of the order of the learned Civil Judge, Nagaur camp Merta dated 7.10.82 by which the judgment-debtors objections against the execution of the decree for ejectment have been dismissed. The other judgment-debtors who had not joined Kishan Lal in filing the revision have been impleaded as non-petitioners No. 4 to 7. 2. The facts giving rise to this revision briefly stated are that the present non-petitioners no. 1 to 3 and their father Jainarain, who is since deceased, filed a suit for ejectment against the petitioner Kishan Lal and the non-petitioners no. 4 to 7 in respect of five shops and a residential accommodation situated over the shops. The ejectment was sought on grounds of default, personal necessity, sub-letting as also material alterations having been made by the tenant in the suit premises without the consent of the landlord. After trial the learned Civil Judge dismissed the suit holding on all the four counts against the plaintiffs so far as ejectment was concerned but the suit was partly decreed in respect of arrears of rent. Against this judgment of the learned Civil Judge, Nagaur camp Merta dated 12.1.73, the plaintiffs went up in appeal before the learned District Judge, Merta. Against this judgment of the learned Civil Judge, Nagaur camp Merta dated 12.1.73, the plaintiffs went up in appeal before the learned District Judge, Merta. During the course of the appeal, a compromise was arrived at by the parties and the salient terms of the compromise are as under: ^^1½ ;g fd vihyk.V dh 5 nqdkuksa o muds Åij dk edku jsLiksMsUV ds fdjk;s ij gSA muesa ls nqdkuksa ds Åij dk edku tks ifgys eksfryky esgrk ds fdjk;sa fn;k gqvk Fkk ysfdu vHkh jsLiksMsUVku fdkuyky oxSjk ds dCts es gSA ;g edku vihykUVku dks ,d ekg ;kfu 5&6&76 dks lEHkyk nssaxsA ;g vihykUV vius fjgk;kh ds fy, dke esa ysaxsA^^ 2½ tks 5 nqdkusa jsLiksMsUV ds fdjk;s ij nh gqbZ gS mlesa ls 2 nqdkus tks eqlEekr kgtknh csok uwj eksgEen okys edku dh rjQ ;kfu vkFkwj.kh rjQ dh nks nqdku vihykUVku dks vius cjrus ds fy, laHkyk nsaxsA ;s nqdkus vHkh jsLiksMsUV ds dke vk jgh gSA vkSj ,d ne [kkyh dj dCtk ugh fn;k tk ldrk gSA vr% 30 twu] 1976 rd [kkyh lqiqnZ dj nsaxsA bu nqdkuksa es vihykUVku o muds vkSykn mUgs dke es ysaxsA ;fn fdlh dkj.kok vihykUVku bu nqdkuksa dks vius dke esa ugh ysaxs vkSj fdjk;s ij nsaxs rks igyk gd jsLiksMsUV dk gksxkA bldh lwpuk vki jsLiksMsUV dks ns nh tkosxhA vkSj mudk fdjk;k ckdh 3 nqdkuksa ds fdjk;s ds eqrkfcd gksxkA 3½ bl tk;nkn es tks jsLiksUMsUV ds fdjk;s ij gS muds rhu nqdku iwohZ rjQ dh o uky uhps dh ,d dksBMh tks jsLiksMsUVku ds fdjk;sa ij jgsxh mudk dqy fdjk;k :i;k 120@&v{kjs ,d lkS chl :i;k ekgokj gksxkA ;g fdjk;k 1&7&76 ls pkyw gksxkA o jsLiksMsUVku izfr ekg ;g fdjk;k vnk djrs jgsaxsA tks fdjk;k vihykUVku ds eq[rkj vke Jh cadVyky th nsrs jgsaxsA edku fdjk;k dk fglkc 10&5&76 dks dj ysaxsA 4½ vihyk.V ds dgus ls jsLiksMsUV us ikapksa nqdkuksa d cjkens ds vkxs kVlZ yxk fn;s gs mudh dher vihykUV 4010½ jsLiksMsUVku dks 30 twu] 1976 dks vnk dj nsaxsA o cdk;k fdjk;k tks 10&5&76 dks nsuk r; gqvk gS] o kVlZ dh dher es Hkj nsaxsA 5½ ckdh 3 nqdkusa o dksBMh tks jsLiksUMsUVku ds fdjk;s ij jgh gS oks muds gh fdjk;s ij jgsxh o tks fdjk;k dksVZ es tek djk;k x;k gS oks ge ¼vihykUVku½ mBk ysaxsA [kpkZ viuk cnkZkr djsaxsA^^ 3. On the basis of this compromise, the plaintiffs suit for ejectment was decreed by the learned District Judge on5.5.76. The defendants were granted time upto 5-6-76 to hand over possession of the residential portion and time up to 30-6-76 was granted to him to hand over possession of two of the shops out of the five as described in the deed of compromise. The case of the plaintiffs decree-holders was that although judgment debtors had handed over possession of the residential accommodation, they failed to hand over possession of the two shops in accordance with the compromise and, therefore, they levied execution of the decree. The judgment-debtors raised an objection in the executing court that the decree passed by the learned District Judge on the basis of compromise was not executable as it was against the provisions of s. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act (hereinafter called the Act) inasmuch as the court granted the decree for ejectment merely on the basis of the compromise without satisfying it self whether the plaintiffs case for ejectment falls under any of the clauses of s. 13 of the Act and unless the court was so satisfied, it could not have granted a decree for ejectment. The decree was, therefore, a nullity and objection to its execution can be taken before the executing court. The learned Civil Judge after hearing both the parties, over ruled the objection. One of the judgment debtors has, therefore, now come up in revision. 4. I have heard Shri M.D. Calla on behalf of the petitioner, Shri A.L. Chopra on behalf of non-petitioner no. 6 who has also supported Mr. Calla, as also Shri Rajendra Mehta on behalf of the non-petitioners no. 1 to 3. 5. The main contention of the learned counsel for the petitioner as well as non-petitioner no. 6 was that there is absolutely nothing on the record to show that the court was satisfied that the suit premises were reasonably and bonafide required by the decree holders and if they did not get these premises, they would suffer greater hardship than the petitioner and non-petitioners no. 4 to 7 and, therefore, the decree passed by the learned District Judge being in contravention of the provisions of s. 13 as also s. 14(2) of the Act and such a decree cannot be executed. 4 to 7 and, therefore, the decree passed by the learned District Judge being in contravention of the provisions of s. 13 as also s. 14(2) of the Act and such a decree cannot be executed. In support of their contentions,the learned counsel placed reliance upon Ferozi Lal vs Man Malfl), Kaushalya Devi vs K L. Bansal ,2», K.K. Chad vs. R.M. Sheshadri(3), Nagindas vs. Calpatram(4), Roshan Lal vs. Madan Lal (5), Nai Bahu vs. Lala Ramnarayan(6) and Suleman Noormohamed vs. Umarbhai (7). Apart from these cases of the Honble Supreme Court, he also referred to a case of this Court reported in Shyam Sunder vs. Moda Ram (8). Mr. Chopra, the learned counsel for non-petitioner no. 6 while supplementing the contention of Mr. Calla, also referred to M/s General Auto Agencies. Jaipur vs. Hazari Singh(9) and Manek Narandas vs. Gajraben, widow of Chunilal Maneklal (10) On the other hand, the learned counsel for non-petitioners no. 1 to 3 supported the order of the court below and relied upon a number of other authorities to which I shall presently refer. 6. Having considered the contentions of both the sides, I am clearly of the opinion that this revision is without any substance and deserves to be rejected. 7. The authorities relied upon by Mr. Calla can conveniently be divided into two partes The authorities reported in Ferozi Lals case (supra), Kaushalya Devis case (supra) and K.K. Charis case (supra) are cases which lay down that there must be material on the record to show that the court was satisfied about the ground of ejectment to fall within one of the clauses under the Act which restricted ejectment and it should also appear that the stage in the suit or the appeal as the case may be had arrived where the court had the opportunity of applying its mind to the ground or there must be an admission of the fundamental fact entitling the plaintiff to a decree in accordance with the Act in force, in the compromise it self. The later cases, on the other hand, are those in which the compromise itself showed that the defendant admitted the plaintiffs claim for ejectment to be in accordance with the provisions of the Act and, therefore, the plaintiff was entitled to get a decree for ejectment on the basis of the compromise. 8. The later cases, on the other hand, are those in which the compromise itself showed that the defendant admitted the plaintiffs claim for ejectment to be in accordance with the provisions of the Act and, therefore, the plaintiff was entitled to get a decree for ejectment on the basis of the compromise. 8. Now in the present case, either of the criteria may be applied and in my opinion, the learned District Judge clearly appears to have applied his mind to the material on record before granting the decree for ejectment on the basis of the compromise and had satisfied himself that the plaintiffs were entitled to a decree for ejectment on the ground of bonafide necessity. 9. I have already set out the terms of the compromise in the earlier part of this judgment. Now in clause (1) of the compromise, which relates to the residential portion of the accommodation, it has been mentioned that the plaintiffs shall be entitled to its possession and shall use it for their residence. This portion, as a matter of fact, has already been handed over to the plaintiffs decree holders and need not detain us any further except for showing that the ground of plaintiffs own occupation and use of the premises was clearly present to the minds of the parties and,therefore, it found a reference in the compromise. 10. Then in clause (2) of the compromise, there is a mention that out of the five shops, the defendants respondents in that appeal would hand over possession of the two shops towards the west and that the plaintiff-appellants would use them for their own purpose. "vihykU;u dks vius cjrus ds fy, laHkyk nsaxs Time upto 30.6.76 was granted to the tenants respondents to hand over possession of these two shops. Not only this, there was a further rider that if the plaintiffs did not use these shops for their own purpose and would let them out, then the defendants respondents would have the first right to occupy the same. Now these conditions in clause (2) of the compromise leave no manner of doubt that the parties were conscious of the mutual requirements and conveniences. That is why out of five shops, only two shops were agreed to be handed over to the plaintiffs. That too not immediately but till 30. 6. 76. Now these conditions in clause (2) of the compromise leave no manner of doubt that the parties were conscious of the mutual requirements and conveniences. That is why out of five shops, only two shops were agreed to be handed over to the plaintiffs. That too not immediately but till 30. 6. 76. Not only that, the plaintiffs were further made aware that they had the right to use these shops only for their own purpose, whereby the plaintiffs reasonable and bonafide necessity was impliedly admitted, and at the same time, it was made clear to the plaintiffs that if they did not so use the premises and were to let them out again then they have to give first preference to the defendants respondents in that appeal,which goes to show that the provisions of s. 15 of the Act were also within the contemplation of the parties at the time of the compromise. Not only this, the part ejectment in respect of two shops and the residential building leaving the other three shops with the tenants also clearly goes to show that the parties were quite alive to the question of comparative hardship as also the question of partial ejectment as envisaged by s. 14 (2) of the Act and, therefore, the case clearly falls within the scope of the authorities of the Honble Supreme Court referred to above from 1974 onwards. In Nagkindass case (supra), their Lordships observed after referring to the earlier cases of the Supreme Court in Ferozi Lals case (supra), Seshadris case (supra) etc. as under:-- "From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself," It may be mentioned here that this case before the Honble Supreme Court arose under the Bombay Rents, Hotel and Lodging House Rates Control Act and the ground of ejectment was default. Their Lordships found as under :— "By admitting to pay the arrears of rent and mesne profits at the rate of Rs. 15/- per month, the tenant had clearly withdrawn or abandoned his application for fixation of standard rent. The admission in the compromise was thus an admission of the material facts which constituted a ground for eviction under S. 12 (3) (a). Rent was admittedly payable by the month; since the application for fixation of fair rent stood withdrawn, there was no dispute with regard to the amount of standard rent. Further, the rent was admittedly in arrears for a period of more than six months." And on these facts, their Lordships were of the view that the court passing the decree on the basis of compromise must be deemed to have satisfied about the presence of the statutory ground of ejectment. Their Lordships further pointed out that when the question of the validity of the decree on the basis of compromise in such circumstances is raised before the executing court, 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 courts jurisdiction to pass 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 presumption or expressed finding of the trial court on the basis of that material. In Roshan Lals case (supra), the court had gone a step further. 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 presumption or expressed finding of the trial court on the basis of that material. In Roshan Lals case (supra), the court had gone a step further. In that case, after observing "The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances, is entitled to have such a decree under the law." The Court further considered whether this indication in the compromise must be in respect of all the requirements of the statutory grounds of ejectment and in that connection had observed as under :— "We reject the argument of Mr. Andley, learned counsel for the appellants, that paragraph 1 of the compromise petition was an admission in respect of only the first part, namely the positive aspect of clause (f) and not of the second part namely, that the landlord has no other reasonaly suitable non-residential accommodation. The admission, by necessary implication, was in respect of both." It may be pointed out that case was under the Madhya Pradesh Accommodation Control Act of 1961. The ground of eviction from the accommodation let for nonresidential purpose in clause (f) of s. 12 (1) of the Act was that the accommodation "is required bona fide by the landlord for the purpose of continuing or starting his business and that the landlord ..........has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned." And it was on this premise that Mr. Andley, the learned counsel for the appellants had raised the above contention. Their Lord-ships rejected the contention as according to them, the admission of the first part of the requirement of s. 12 (1) (f) by necessary implication was also an admission of the other part. In the present case as already pointed out above, the tenant had clearly admitted that the premises which were to be handed over to the landlord would be used by him for his own purpose and in case he did not so use them and intended to let them out, the defendants tenants shall have the first right to occupy the same. Further only part of the premises were agreed to be vacated by the tenants retaining the other part with them and these facts, therefore, if not clearly then at least impliedly show the admission of the defendants that the premises are required for the reasonable and bonafide use of the plaintiffs as also the fact that the plaintiffs would suffer greater hardship if those portion of the premises were not vacated and further that a part of the premises being vacated by the defendants would not cause him greater hardship than the plaintiffs would suffer in the absence of those premises and thus the requirements of s. 13(1) (h) and s. 14(2) as amended during the course of this litigation are fully met by the compromise and the decree based on it. This, in my opinion, also meets the objection raised by Mr. Chopra. The contention of Mr. Chopra was that s. 14(2) had been added by the Rajasthan Act No. 14 of 1976 and the question of greater hardship as well as partial eviction had not been pleaded nor taken into consideration by the learned District Judge while passing the decree on the basis of the compromise. In my opinion, when s. 14 as amended has come into force during the pendency of the appeal before the learned District Judge and had a retrospective operation, it must be presumed that the learned Judge as well as the parties were aware of the law that was in force at that time and when the compromise in the above terms had been arrived at by the parties and the court verified it and granted a decree on its basis, it clearly shows that the amended provisions of the law were kept in view. In this connection, reference may be made to Hakim Kabir Ahmed vs. Smt. Bhanwari Bai(11), in which a learned single Judge of this Court had from the terms of the compromise inferred that the court while passing decree on the basis of the compromise must be deemed to be aware of the requirements of the law as it stood at the time the decree was passed. The two authorities relied upon by Mr, Chopra referred to above only lay down that it should appear that the court had considered the question of comparative hardship. The two authorities relied upon by Mr, Chopra referred to above only lay down that it should appear that the court had considered the question of comparative hardship. As already stated above, when from the terms of the compromise itself, it is clear that the parties were alive to the question of comparative hardship as well as the partial ejectment and the court granted the decree on the basis of such a compromise, it leaves no room for doubt that the court had considered this aspect of the matter. The principles laid down in Nagindass case (supra) have further been followed in Suleman Noormohamraeds case (supra). Therefore, I am clearly of the opinion that the compromise itself in the present case contained an admission of the fundamental fact on which a decree for ejectment in accordance with the provisions of sections 13 and 14 of the Act could be passed. 11. Now applying the other tests laid down in Ferozi Lals case (supra), Kaushalya Devis case (supra) and K.K. Chads case (supra) also, it clearly appears to me that there was sufficient material on the record and the court had an opportunity to consider the same, before passing a decree for ejectment on the ground of personal, reasonable and bonafide necessity u/s 13 (1) (h) of the Act. In Ferozi Lals case (supra) and Kaushalya Devis case (supra), the decrees for ejectment were passed on the basis of compromises where the compromises did not show anything which may have shown the satisfaction of the Court regarding the existence of any of the statutory grounds of ejectment under the law nor was there any other material on the record to show that the Court had applied its mind in respect of existence of such a ground. Therefore, the decrees were held to be nullities. In K.K.. Therefore, the decrees were held to be nullities. In K.K.. Charis case (supra), their Lordships laid down the criteria how such matters have to be approached and it was laid down that where there is material on the record for the satisfaction of the Court about the bona fide requirement of the landlord and it accepts the compromise at a stage where it can apply its mind regarding the existence of such a statutory condition, it can pass a decree for ejectment on the basis of a compromise, Theirlordships observed as under : — " It is no doubt true that each case will have to be decided on its own facts to find out whether there is any material to justify an inference that an admission, express or implied, has been made by the tenant about the existence of one or other of the statutory grounds." After taking into consideration the various circumstances of the case, it found as under :— "It is no doubt true that the order on the face of it does not show that the court has expressed its satisfaction that the requirement of the landlord is bona fide. If the court had expressed its satisfaction in the order itself, that will conclude the matter. That the court was so satisfied can also be considered from the point of view whether a stage had been reached in the proceedings for the court to apply its mind to the relevant question? Other materials on record can also be taken into account to find out if the court was so satisfied." In that case, their Lordships had taken into consideration the fact that the defendant had withdrawn the defence after the plaintiffs had given evidence and filed exhibits in support of his pleas and that according to their Lordships clearly showed that the defendant accepted as true the claim of the landlord as he required the premises bonafide for his own occupation, he has accepted the position that the landlord has made out a statutory requirement entitling him to ask for possession of the premises. Their Lordships observed as under :— "It is this unconditional withdrawal of the defence regarding the statutory condition pleaded by the landlord, and the compromise following it that was accepted by the court and a decree for eviction passed thereon. Their Lordships observed as under :— "It is this unconditional withdrawal of the defence regarding the statutory condition pleaded by the landlord, and the compromise following it that was accepted by the court and a decree for eviction passed thereon. Under those circumstances, when the tenant has accepted the plea of the landlord, in our opinion, it is futile to hold that the Rent Controller must again embark upon an enquiry regarding the requirement of the landlord being bona fide." Now in the present case, the evidence had been led by both the parties in the trial court. Although the suit had been dismissed by the trial court, the plaintiffs had come up in appeal. The parties in the appeal had been served and the record had been received. The case was ripe for arguments and it was at that stage that the compromise was filed accepting the plaintiffs need for a part of the premises and the defendants agreed to vacate the same. Therefore, it can safely be concluded that a stage had reached where the court could have considered the material on record. That material although not accepted by the trial court was before the appellate court and was supported by the admission of the defendants in the compromise. A decree for ejectment on the ground of bonafide necessity could validly have been passed on the basis of this compromise and such a decree cannot be said to be a nullity. It would be convenient here to refer to some of the authorities relied upon by the learned counsel for non-petitioners No. 1 to 3. Shiv Dayal vs. Kewal Verma (12), was a case where the landlords petition for ejectment had been dismissed by the Rent Controller but during the course of appeal, the parties entered into a compromise and on the basis of the same, a decree was passed by the appellate court Relying no Nagindass case (supra), the Punjab and Haryana High Court found as under- "Once a legal and statutory ground for eviction is pleaded and the tenant says that a decree of ejectment may be passed against him and the order of the Rent Controller dismissing the petition may be set aside then which court could say that it was not prima facie satisfied that a ground for eviction existed. The court can say so only in a case where the ground on which eviction was sought was not a ground on which the statute envisages, eviction of a tenant for in such a case it could not be held that the court was prima facie satisfied about the existence of the legal ground for the ejectment." This decision appears to be based on the principle that the admission of the party of a pirticular fact is one of the best pieces of evidence. When the case of the landlord is based on one of the statutory grounds and the defendant comes forward and agrees that a decree may be passed, it must be deemed that he admits the existence of the alleged statutory ground and, therefore, there is nothing which may debar the court from passing a decree on the basis of such an admission. In Narayan vs. Rangajah Shetty (13), a Division Bench of the Karnataka High Court after referring to the decisions of the Supreme Court in Ferozi Lals case (supra), Kaushalya Devis case (supra), Bahadar Singh vs. Muni Sumrat Das (14), Nagindass case (supra) and K.K. Charis case (supra), summarised the position in paras No. 13 and 14 and observed as under- " A decree for eviction is not a nullity merely on the ground that it is based upon a compromise or consent. The validity of such a decree depends upon the existence of one or more grounds on which eviction could be sought under the relevant Act. The validity of such a decree depends upon the existence of one or more grounds on which eviction could be sought under the relevant Act. If there be an assertion on the part of the landlord of the existence of such ground and the tenant even though he has disputed it at one stage subsequently withdraws that objection realising the truth of the assertion of the landlord and the Court acts upon such withdrawal (of the objection) thereby accepting the truth of the version of the landlord and passes a decree, it cannot be said that the decree is nullity." It further observed as under : " An order of eviction made on the basis of consent of a party in such circumstances as would indicate the admission of the existence of a ground for eviction under the particular statute is as good and effective as a decree passed in another case where evidence has been let in and decision is given by the Court on merits." The Court further compared the provisions of the Karnataka Rent Control Act and the Statutes relating to marital rights under which divorce or judicial separation cannot be granted merely because the opposite party consents for such a decree and came to the conclusion that there is no such prohibition under the Rent Control Act. The same appears to be ture about the Act. So also in Shiv Dayals case (supra), a compromise decree was upheld in view of the decision of their Lordships of the Supreme Court in Nagindass case (supra) and Saleman Noormohameds case (supra). 11. The decision of the Bombay High Court in Digambar Narayan vs. Gajanan Laxman (15), shows how a compromise in such matters has to be interpreted and understood In that case, the landlord had claimed ejectment of the tenant from three (or four) rooms, inter alia, on the ground that the petitioner bona fide required the premises for personal use and occupation. The defendant filed a written statement contesting the claim of the plaintiff. The matter was then fixed for evidence and at that stage, a compromise was filed where-under the defendant agreed to vacate one of the rooms on the first floor on or before April 30, 1970 and the remaining portions were allowed to be retained by him. The decree was challenged in execution. The matter was then fixed for evidence and at that stage, a compromise was filed where-under the defendant agreed to vacate one of the rooms on the first floor on or before April 30, 1970 and the remaining portions were allowed to be retained by him. The decree was challenged in execution. The Bombay High Court after referring to Kaushalya Devis case (supra), Nagindass case (supra) and K.K. Charis case (supra) held that the decree was not a nullity. They observed that the principles laid down in Kaushalva Devis case (supra), had considerably cut down by later two decisions and then they further observed as under :- "If the tests laid down in the two cases are now applied to the instant case, it is obvious that the compromise application, which has been signed not only by the landlord and the tenant but also by the respective counsel, clearly implied that while the landlord had made an application for four rooms, the tenant was satisfied that the landlords claim to the extent of one room was a genuine one and that was why he agreed by the compromise decree to hand over possession of one room... ... ... Thus though it is true that the decree does not itself on the face of it show that the rent Court was satisfied about the bona fide requirement of landlord, there is enough material in the form of the recitals of the compromise application which show that the rent Court could have been satisfied about the genuineness and the bona fide nature of the need and requirement of the landlord. In this view of the matter, it is obvious that the executing Court had exceeded its jurisdiction treating this compromise decree as a nullity." 12. From what I have stated above, it is quite clear that applying either of the tests, the compromise decree in this case could not be said to be a nullity and the judgment-debtors could not object to its execution. The objections were rightly rejected by the learned Civil Judge, Nagaur camp Merta. The revision must, therefore, fail and the same is hereby rejected with costs.