K. M. Raj Kumari v. Addl. District Judge VI — 1985 DIGILAW 1054 (ALL)

JUDGMENT H.N. Seth, A.C.J. 1. By this petition Under Article 226 of the Constitution, Petitioner Km. Raj Kumari seeks relief against an order, dated 6th of November, 1980 passed by the VI Additional District Judge, Lucknow, in Civil Revision No. 208 of 1979. 2. Briefly stated, the facts giving rise to the present petition are that Respondent No. 2 filed a suit on 3rd of November, 1970 with the allegation that Brij Mohan Das, father of the Petitioner, was his tenant in House No. 40, Model House, Lucknow and that he had defaulted in payment of rent and had also rendered himself liable to ejectment as he had denied his title. Defendant Brij Mohan Das filed a written statement and contested the suit. However, on 9th of February, 1972 parties entered into a compromise as a result of which the Plaintiff's suit was decreed for arrears of rent, eviction and damages. The decree also allowed three years time to Brij Mohan Das to vacate the premises. When, after the lapse of three years, the decree-holder (Respondent No. 2) put his decree into execution, the. Petitioner filed objections, u/s 47/151 of the CPC challenging the decree-holder's right to execute the decree. She claimed that on the date of compromise late Brij Mohan Das was a neurotic patient and had been admitted in the hospital for treatment and that the alleged compromise on the basis of which the decree was passed was null and void. She further claimed that subsequently the decree-holder had entered into a fresh compromise of tenancy with late Brij Mohan Das by demanding arrears of rent at an enhanced rate, vide his letter, dated 8th of August, 1982 and he had thus waived his rights under compromise decree, dated 9th of February, 1972. Inasmuch as the said decree had been adjusted and stood satisfied, it could not be executed against the Petitioner. 3. The executing court accepted the objection filed by the Petitioner. It observed that the compromise decree was a nullity inasmuch as the statutory grounds for directing eviction of Brij Mohan Das did not exist. It is also held that the conduct of the parties indicated that a fresh agreement of tenancy in favour of judgment debtor Brij Mohan Das had come into existence and as much the decree was not executable. 4. Aggrieved, the decree-holder went up in revision before the District Judge, Lucknow. It is also held that the conduct of the parties indicated that a fresh agreement of tenancy in favour of judgment debtor Brij Mohan Das had come into existence and as much the decree was not executable. 4. Aggrieved, the decree-holder went up in revision before the District Judge, Lucknow. The revisional court came to the conclusion that prima facie the decree in question was not a nullity. Ii had been passed in accordance with the provisions of U.P. Act No. 3 of 1947 and that the executing court could not refuse to execute the same on that ground. It also held that the court below had erred in holding that as a result of the notice given by the decree-holder Ram Kumar Agrawal on 8th of August, 1972, a fresh tenancy in favour of the judgment debtor had come into existence rendering the decree unexcitable. In the result, it held that the decree in question was executable and the court below had wrongly refused to exercise its jurisdiction to execute the same. It accordingly allowed the revision and sent back the file to the executing court with the direction that it should execute the decree in accordance with law. Aggrieved Km. Raj Kumari has approached this Court for relief Under Article 226 of the Constitution. 5. Learned Counsel for the Petitioner relied upon the decision of the Supreme Court in the case of Smt. Nai Bahu Vs. Lala Ramnarayan and Others, AIR 1978 SC 22 and submitted that in view of the fact that in the State of Uttar Pradesh, the Rent Control and Eviction Act, namely, U.P. Act No. 3 of 1947 and subsequently U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (U.P. Act No. 13 of 1972) are in force, a landlord cannot obtain eviction of a tenant unless he can satisfy that the requirements of the provisions of those Acts have been satisfied. According to him, a decree for eviction of a tenant cannot be passed solely on the basis of a compromise between the parties. As in the instant case, the decree for ejectment of the Petitioner was not passed on one of the grounds mentioned in Section 3(1) of U.P. Act No. 3 of 1947, it was invalid and can not be executed. I am unable to accept this submission. As in the instant case, the decree for ejectment of the Petitioner was not passed on one of the grounds mentioned in Section 3(1) of U.P. Act No. 3 of 1947, it was invalid and can not be executed. I am unable to accept this submission. The Supreme Court decision relied upon by the Petitioner itself lays down that in cases where a decree has keen passed on the basis of a compromise, the court is to examine whether the statutory grounds for eviction have been pleaded and which the tenant has admitted in the compromise. The satisfaction that the statutory requirements had been complied with has to be arrived at by the executing court on totality of facts of a particular case bearing in mind the entire circumstances from the stage of pleading up to the stage when the compromise is effected. Where the pleading and other material on the record make out a prima facie case about the existence of the statutory grounds for eviction, a compromise cannot be held to be invalid and that the executing court is required to give effect to it. In the instant case, it is not disputed that Ram Kumar Agarwal (Respondent No. 2) had filed the suit for eviction of Petitioner's father with the allegation that he had defaulted in payment of rent and had also denied landlord's title. Brij Mohan Das filed a written statement contesting the suit. In the written statement, he did not admit the title of the Plaintiff and he also denied that he was in arrears of rent. Subsequently, however, the parties entered into a compromise, paragraph 1' whereof ran thus: That the Defendant admits the claim of the Plaintiff. The suit of the Plaintiff be decreed for ejectment, arrears of rent and mesne profits at the rate of Rs. 15. 62 per month. This clearly shows that the Defendant gave up his claim and agreed to the passing of the decree for his ejectment, arrears of rent and damages on the basis of the allegations made in the plaint. Those allegations were to the effect that the Defendant had wrongly denied the Plaintiff's title to the property and had further defaulted in payment of rent. Those allegations were to the effect that the Defendant had wrongly denied the Plaintiff's title to the property and had further defaulted in payment of rent. Admittedly these two grounds were available to the Plaintiff for filing a suit for ejectment of Brij Mohan Das in accordance with the provisions of Section 3 of the U.P. Act No. 3 of 1947. 6. Learned Counsel for the Petitioner strongly contended that aforesaid averment made in the compromise merely indicated that the Petitioner bad admitted the claim of the Plaintiff which was to the effect that a decree for Defendant's ejectment be made. The admission should not be construed as implying that he had admitted the fact that he had denied Plaintiff's title and had also made default in payment of rent. This submission, in my opinion, has no force. When the Defendant agreed to mention in the compromise that he admitted the claim of the Plaintiff, what he intended to convey was that he admitted all the facts which gave a cause of action to the Plaintiff to file the suit for his ejectment. In these circumstances, viewed in the light of the observations made by the Supreme Court in the case of Smt. Nai Bahu (Supra), it is clear that the said decree had been incompliance with the provisions of U.P. Act No. 3 of 1947 and it is not open to the objection that it is not executable for the reason urged by the learned Counsel. 7. Learned Counsel for the Petitioner, next contended that after the decree in question was passed on the basis of the compromise arrived at between the parties on 9th of February, 1972, the decree-holder gave a notice to the judgment-debtor on 8th of August, 1972, which ran thus: Dear Sir, You are hereby requested to pay rent of Rs. 19.50 per month with effect from 15th July 1972 in respect of the premises occupied by you as a tenant thereof, in accordance with the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. 8. The judgment-debtor thereafter paid rent to the landlord as demanded by him and the landlord also accepted the same. 19.50 per month with effect from 15th July 1972 in respect of the premises occupied by you as a tenant thereof, in accordance with the provisions of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972. 8. The judgment-debtor thereafter paid rent to the landlord as demanded by him and the landlord also accepted the same. He urged that this clearly showed that on Seth of August, 1972, the landlord had agreed to accept Petitioner's father as a tenant and had given him a notice in accordance with the provisions contained in U.P. Act No. 13 of 1972 for enhancement of rent of Rs. 19.50. Inasmuch as, Brij Mohan Das remitted the rent and rent was accepted by the landlord, it clearly showed that a fresh contract of tenancy had come into existence and the decree in question stood adjusted and was rendered non-executable. The fact that the landlord was, after the decree was made, willing to accept Brij Mohan Das as his tenant is also clear from the averments made in the compromise, which laid down that the landlord would be entitled to withdraw the amount deposited by Brij Mohan Das, in proceedings, u/s 7C of U.P. Act No. 3 of 1947. The case of Respondent No. 2 in this regard is that the said notice was given by him to Brij Mohan Das in adwrtantly and that it was wholly wrong to say that he had accepted any rent at the enhanced rate as mentioned in the notice from Brij Mohan Das. The Respondent further contended that, in the circumstances of the case, it was not open to the executing court to take notice of this controversy and it could not refuse to execute the decree on the ground that a fresh contract of tenancy had been entered into between the parties after the decree was passed. 9. It is absolutely clear that the plea about a fresh contract of tenancy having been entered into between the parties is a plea which, in substance, amounts to a claim by the judgment-debtor that in view of the conduct of the parties, the decree in question stands adjusted and is not executable as such. 9. It is absolutely clear that the plea about a fresh contract of tenancy having been entered into between the parties is a plea which, in substance, amounts to a claim by the judgment-debtor that in view of the conduct of the parties, the decree in question stands adjusted and is not executable as such. Relevant portion of Order 21 Rule 2 of he CPC runs thus: (1) Where any money payable under a decree of any kind is paid out of court, or a decree of any kind is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree shall certify such payment or adjustment to the court whose duty it is to execute the decree and the court shall record the same accordingly. (2) The judgment-debtor or any person who has become surety for the judgment-debtor also may inform the court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the court, why such payment or adjustment should not be recorded as certified ; and if, after service of such notice, the decree-holder fails to show cause why the payment or adjustment should not be recorded as certified, the court shall record the same accordingly. (2A).... (3) A payment or adustment, which has not been certified or recorded as aforesaid, shall not be recognized by any court executing the decree. 10. In the instant case, it is not disputed that none of the parties took any step to, as a result of the subsequent conduct of the parties as aforesaid, get adjustment of the decree into question recorded under the provisions of Order 2L Sub-rule (1) or Sub-rule (2). In the result, as provided by Sub-rule (3) of Order 21 0 2, the alleged adjustment, even if it took place, cannot be taken notice of by the executing court and the execution of the decree in question car not be refused on that ground. In taking this view, I derive full support from a Full Pench decision of the Oudh Chief Court, in the case of AIR 1928 195 (Oudh) and a decision of the Supreme Court in the case of Moti Lal Banker Vs. Mahraj Kumar Mahmood Hasan Khan, AIR 1968 SC 1087 . 11. In taking this view, I derive full support from a Full Pench decision of the Oudh Chief Court, in the case of AIR 1928 195 (Oudh) and a decision of the Supreme Court in the case of Moti Lal Banker Vs. Mahraj Kumar Mahmood Hasan Khan, AIR 1968 SC 1087 . 11. In the result, it is not necessary for me to go into the question as to whether or not after the decree was passed, the parties adopted such conduct whereby a fresh contract of tenancy had come into existence. 12. In my opinion, none of the grounds raised by the Petitioner against execution of the compromise decree is sustainable, and the order, dated 6th of November, 1980 passed by the VI Addl. District Judge, Lucknow sending the case back to the executing court for executing the decree in accordance with law does not suffer from any error of law or of jurisdiction. 13. The petition, therefore, fails and is dismissed with costs.