HANMANT SUBBUJI JOSHI v. GANESH RAMACHANDRA MUJUMDAR
1988-08-08
M.P.CHANDRAKANTARAJ
body1988
DigiLaw.ai
CHANDRAKANTHARAJ, J. ( 1 ) THIS is a Judgment-debtor's Revision against the Order of the Munsiff, Haveri in execution Case No. 31/86. ( 2 ) THE facts are these :- on 27. 8. 1968, a compromise decree was passed in Miscellaneous Case 8/65 on the file of the Munsiff at Haveri. By terms of the decree, a site measuring 45'x75', which was in the occupation of the respondents in the said proceedings was to be vacated by respondents and vacant possession delivered on 25. 7. 1986 to the petitioner. In other words, the terms of the compromise were such that the bona fide requirement of the landlord stood postponed by eighteen years on account of, obviously, the inducement offered by the tenant - respondent. When the decree was sought to be executed after the lapse of required time, the same has been resisted on the ground that the decree is a nullity inasmuch as the grounds urged by the landlord for seeking possession had' disappeared by the very act of compromise and therefore, the decree by consent was by non-application of mind by the Court to the material before it and therefore decree must be treated as nullity and as such not executable. That argument has been negatived. Therefore, the present Revision. ( 3 ) IN this Court, Mr. U. L. Narayana Rao, counsel for the petitioners, who are also the legal representatives of the original tenant - respondents, has contended that when the bona fide requirement of the landlord stood postponed by such a long time, it must be assumed that he really did not have a legal ground available to him to present the petition and therefore as held by the Supreme court in more than one case, the Court must be satisfied that the statutory ground for eviction existed and only on being so satisfied, there may be compromise decree in eviction proceedings under any special enactment. ( 4 ) HE first placed reliance on the decision of the Supreme Court in the case of naginda Ramdas v Dalpatram locharam alias Brijram and Others [air 1974 supreme COURT 471]. At paragraph 27, the Supreme Court has observed as follows :-"we do not find any force in the contention of Mr.
( 4 ) HE first placed reliance on the decision of the Supreme Court in the case of naginda Ramdas v Dalpatram locharam alias Brijram and Others [air 1974 supreme COURT 471]. At paragraph 27, the Supreme Court has observed as follows :-"we do not find any force in the contention of Mr. Dholakia, that the facts admitted in the compromise, itself were insufficient to make out even a prima facie ground for eviction mentioned in Section 12 (3) (a) of the Bombay Rent Act, merely because the tenant had made an application for fixation of standard rent, which was still pending at the time of passing of the decree. By admitting to pay the arrears of rents 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 compromise was thus an admission of the material facts which constituted a ground for eviction under section 12 (3) (a ). . . . . . . . . . . . . . . . . . "thereafter it was further observed :" Be that as it may, in cases where an objection as to the non- executability of the decree on the ground of its being a nullity, is taken, the Executing Court is not competent to go behind ,the decree, if the decree on the face of it, discloses some material on the basis of which, the Rent court could be satisfied with regard to the existence of a statutory ground for eviction. In such a case it must accept and execute the decree as it stands. "similarly in the case of Smt. Nai Balm v Lala ramnarayan and Others [air 1978 supreme COURT 22] the Supreme Court has observed that:"a decree for eviction of a tenant cannot be passed solely on the basis of a compromise between the parties. 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 the 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.
Thus, dispensing with the 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. "the ratio decidendi of the two decisions on which Mr. U. L. Narayana Rao, learned counsel for the Petitioner, relies upon does not really support his case. It is not his case that when the Petition was" presented by the original petitioner for eviction in the Miscellaneous Case before the Munsiff, a statutory ground did not exist. His case is in terms of the compromise, the statutory ground must be presumed to have disappeared and therefore, the Court had no jurisdiction to record a compromise decree. That is really begging the question. Now, for whatever reason if parties settled out of court and the fact that ground for eviction under the Statute existed itself is not in dispute, that the landlord postponed his requirement for an unreasonably long period does not mean that the ground did not exist. No such presumption, as Mr. Narayana Rao wants to draw, can really be drawn. ( 5 ) SIMILARLY, what the Supreme Court has said in Nai Bahu's case is no more than this. Parties, by consent, cannot confer jurisdiction on a Court. The Court must really examine whether it has jurisdiction to pass an order of eviction on one of the grounds available under the Statute. If no ground is available under the Statute, then the parties, by mere consent, cannot seek an order of eviction because that would be without jurisdiction. If it is so understood, then the decisions relied upon must negative the contention advanced by Mr. Narayana Rao and not support him. ( 6 ) IN any event, merely because somebody agreed to wait for a long period to get possession of that site, it does not follow that he must be denied benefit of his consent to the compromise decree eighteen years later on the ground that the Court had not applied its mind. If one were to go by the proposition, then there will be no sanctity whatsoever to a compromise decree passed under Order 23 Rule 3.
If one were to go by the proposition, then there will be no sanctity whatsoever to a compromise decree passed under Order 23 Rule 3. As correctly observed in Nai Bahu's case, all that is dispensed under a compromise decree is tediousness of a trial and if the existence of a ground for eviction is admitted and the court is satisfied that admission has been made by act of compromise, then there is nothing more for the Court to do but to record the Compromise terms and decree eviction of the tenant. Therefore, the view taken by the executing Court is correct. Revision is misconceived and it is rejected. --- *** --- .