Basudev Das v. Dhirendranath Das — 1993 DIGILAW 137 (CAL)

JUDGMENT 1. THE present revision, at the instance of the judgment-debtor petitioner, is directed against an order No. 23 dated 28-7-90 passed by Shri B. Mitra, Munsif, 2nd Court, Howrah, in title Execution Case No. 32 of 1989 rejecting the Misc. Case No. 95 of 1989 started upon an application under Section 47 of the Code of Civil procedure. 2. IN brief, the fact of the case is, that the opposite party herein, got a decree on compromise in Title Suit No. 277 of 1986 from the Second Court of Munsif, Howrah, for eviction of tenant/petitioner from the suit premises. The suit was on the ground of reasonable requirement, default and expiry of the period of agreement. In the plaint, it has been alleged that at the time of induction an agreement in writing was entered into between the opposite party and the petitioner herein fixing the period of tenancy for 5 years commencing from the date of execution of the agreement and ending with the month of august, 1985. 3. EVEN after the expiry of the said period, the period was extended from time to time. Ultimately, as the petitioner did not vacate the suit premises, the opposite party herein, filed a suit for his eviction on the grounds as stated earlier. The said suit was registered in the Second Court of the munsif at Howrah, being Title Suit No. 277 of 1986, and the same was ended in a compromise on the following terms: "(a) That the instant suit filed by the plaintiff/landlord against the name of defendant/tenant for eviction on the grounds of reasonable requirement and defendant is a habituated defaulter and defaulted in payment of rent. (b) That the defendant is tenant under the plaintiff at a monthly rental of Rs. 70/- per month payable according to English Calendar month. (c) That the defendant at the time of induction in the suit property agreed with the plaintiff that he shall be bound to vacate the suit property/tenanted portion of the defendant within 5 years from the date of induction and the defendant was inducted on 5-9-1980. 70/- per month payable according to English Calendar month. (c) That the defendant at the time of induction in the suit property agreed with the plaintiff that he shall be bound to vacate the suit property/tenanted portion of the defendant within 5 years from the date of induction and the defendant was inducted on 5-9-1980. (d) That in spite of expiry of the time of agreement that said defendant failed to vacate this suit property and plaintiff allowed several opportunities for extension of the agreement and/or period of time but the said defendant failed to vacate the suit property and finding no other alternative plaintiff brought this suit and/or hence this suit filed by the plaintiff against the name of defendant for evidence and/or other grounds as mentioned in the plaint. (e) That the defendant entered appearance and admitted the plaintiffs alleged agreement and also admitted the extension of time and now defendant requested the plaintiff that further extension of two years time for vacating for vacant and delivered khas possession in favour of the plaintiff and the plaintiff granted two years time. (f) That the defendant shall be bound to vacate the suit property within twenty fourth day of May one thousand nine hundred eighty nine (24-5-1989) and delivered Khas possession in favour of the plaintiff otherwise the plaintiff shall be bound to execute the said decree from this learned Court. (g) That the defendant within this period increased the rent from rs. 70/- to Rs. 100/- per month from July 1987 and the defendant shall be bound to pay Rs. 100/- per month according to English calendar and the said rent paid within seventh from the following month. (h) That the defendant shall not transfer and/or assign or subject within this period and payment should be made regularly without any default. (i) That this application is without collusion and without any pressure from any parties. (j) That the instant application made part of the decree and the plaintiff and defendant shall be bound to comply the instant terms of this application. (i) That this application is without collusion and without any pressure from any parties. (j) That the instant application made part of the decree and the plaintiff and defendant shall be bound to comply the instant terms of this application. (k) That the instant application be made part of the decree and the said compromise petition is made with free mind and (l) That the petition is made bonafide and for ends of justice (m) That both parties (plaintiff and defendant) will not suffer any loss or injury or will not be prejudiced if the said compromise petition is made part of the decree in this case". (Sic) 4. AS the defendant/petitioner failed to vacate the suit premises as per the terms of that compromise, the plaintiff/opposite party put the decree in execution and Title Execution No. 32 of 1989 was registered in the 2nd court of Munsif, Howrah. The judgment-debtor petitioner herein filed an application in that execution case under Section 47 of the Code of Civil Procedure and a Misc. Case was registered being Misc. Case No. 95 of 1989. The opposite party herein filed an objection to that application of the judgment debtor. 5. THE Judgment-debtor/petitioner in his application under Section 47 code of Civil Procedure took the plea, inter alia, that the judgment is a nullity and the same cannot be executed. 6. THE Learned executing court after hearing the learned Advocates for the parties and considering the documents, as filed by the parties, passed the order impugned. Mr. P. R. Mitra, the Learned Advocate for the petitioner, contended that the executing court has no jurisdiction to execute the decree as the same is a nullity. He further contended that in the ejectment decree on compromise, no ground, as contained in Clauses (a) (k) of Sub-Section (1)of Section 13 of the Premises Tenancy Act has been established and as such the decree is a nullity. As the Court lacks inherent jurisdiction and as there was no foundation for passing such a decree, the executing court has no jurisdiction to enforce that decree by executing the same as the decree is a nullity. 7. MR. Indra Nath Mukherjee, Learned Advocate for the opposite party. As the Court lacks inherent jurisdiction and as there was no foundation for passing such a decree, the executing court has no jurisdiction to enforce that decree by executing the same as the decree is a nullity. 7. MR. Indra Nath Mukherjee, Learned Advocate for the opposite party. on the other hand, contended that in the compromise petition, the tenant/defendant admitted the grounds of reasonable requirements, default and also the ground of agreement as pleased in the plaint so there was no lack of inherent jurisdiction and there was foundation for passing such a decree on compromise and the executing court in such circumstances has the power and jurisdiction to execute the decree and there cannot be any question that the decree is a nullity. 8. IN support of his submission, Mr. Mitra relied on the following decisions: (a) Sitaram Sreegopal vs. Union Carbide 77 CWN 525 (Division Bench) (b) Nagindas Ramdas vs. Dalpat Ram Icharam AIR 1974 SC 471 . (c) Nandibala Dassi vs. Bibhuii Bhmsan Mukherjee 1987 (1) CLJ 57. (d) Sibapada Chowdhury vs. Sudhangsu Kumar Sen AIR 1980, Cal 90. (e) Gopal Chandra Paul vs. Smt. Amala Mondal AIR 1990 SC 105. Mr. Mukherjee also relied on the case of U. Devadas Rao vs. Gobardhan Dutta, reported in 1986 CWN, 967 and also on the Supreme court case viz. Byram Pestonji Gariwala vs. Union of India reported in AIR 1991 SC 2234 . 9. AFTER giving my anxious consideration to the respective submissions of the Learned Advocates for both the parties and the material on records, I am unable to accept the contention of Mr. Mitra for the following reasons: (a) In Sitaram Sreegopal's case (Supra) a Division Bench of this Court held, inter alia that a decree for ejectment passed on compromise against a tenant in a suit for ejectment on the ground, inter alia, of reasonable requirement of the landlord under Section 13 (1) (f) of the west Bengal Premises Tenancy Act, 1956, without establishment and proof of the ground alleged in the plaint is without jurisdiction and a nullity. In the said decision it has also been held that such a compromise decree cannot be treated as a Notice to quit or an agreement in writing within Section 13 (1) (j) or (k) the West Bengal premises Tenancy Act, 1956. In the said decision it has also been held that such a compromise decree cannot be treated as a Notice to quit or an agreement in writing within Section 13 (1) (j) or (k) the West Bengal premises Tenancy Act, 1956. (b) In Nagindas Ramdas's Case (Supra) Supreme Court has held that rent Court under the Bombay Rents, Hotel and Lodging House Rates and Control Act. (Act. 57 of 1947) is not competent to pass a decree for possession either in invitum or with the consent of the parties on the ground which is de hors Act or ultra vires the Act. A prohibitory mandate to the Rent Court that it shall not travel beyond the statutory ground mentioned tin Section 12 and 13 and to the parties that they shall not contract out of those statutory grounds is inherent in the public policy built into the statute. A mere fact that order 23 Rule 3 Code of Civil procedure is applicable to the proceedings in a suit under the Bombay Rent Act does not remove the provision of the Rent Court or empower it to make a decree for eviction de hors the statute. (c) In Sibaprasad Chowdhury's Case (Supra) a single Bench of this High court held, inter alia, that generally executing court cannot go behind the decree nor can it question its legality or correctness. To this general rule there is an exception furnished by cases where the decree sought to be executed is a nullity on the ground of want of inherent jurisdiction of the court passing the decree. If the court passing the decree lacks in inherent jurisdiction to pass the same, the judgment-debtor may before the Executing Court challenge the executability of the decree. (d) A similar view, has been expressed by a Single Bench of this court in nandibala Dasi vs. Bibhuti Bhiusan Mukherjee's case (Supra ). (e) In Gopal Chandra Paul's Case (Supra) a Single Bench of this Court held that a decree not being passed as required by the Rent Act is a nullity and cannot be executed. (d) A similar view, has been expressed by a Single Bench of this court in nandibala Dasi vs. Bibhuti Bhiusan Mukherjee's case (Supra ). (e) In Gopal Chandra Paul's Case (Supra) a Single Bench of this Court held that a decree not being passed as required by the Rent Act is a nullity and cannot be executed. (f) In U. Devadas Rao's Case a Single Bench of this High Court has that where it appeared from one off the clauses in the compromise decree that the defendant was aware of the grounds of eviction in the suit and agreed to the passing of a decree in respect of the plaintiff's claim for eviction, such a clause considered in the background of the statutory grounds for eviction on which the suit was based showed an implied admission of the existence of such grounds and the satisfaction of the Court which passed the decree as to the existence of such grounds should be presumed. (g) In Byram Pestonji Garwala's case (Supra) Supreme Court dealt with the scope of Order 23 Rule 3 of the Civil Procedure Code and in my view that decision is not at all relevant for the purpose of the present case in as much as it is not the case of any of the parties that the compromise in writing was not signed by any of the parties to the suit. 10. THE Supreme Court in the case of Nai Bahu vs. Lala Ram Narayan reported in AIR 1978 SC 22 has held that:- "after careful consideration of the terms of compromise and the whole tenor of the compromise petition it is absolutely clear that there was no intention to create lease between the parties. It is the dominant intention of the document which must guide the construction of its contents. In the recital 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 into for the interim 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 into for the interim occupation of a certain portion before vacating that portion after expiry of five years. In paragraph 1 of the compromise petition in the suit for eviction the ground of reasonable requirements of the plaintiff of the suit premises and that the tenant defendant is a habitual defaulter in payment of rent have been stated. 11. IN paragraph 5 of the said petition agreement specifying the period of tenancy for 5 years and the extension of period from time to time have been admitted by the defendant. 12. IN paragraph 6 of the said compromise petition, the defendant has undertaken to vacate the suit premises on 24th May, 1989. The said Clause No. 6 indicates that there was to intention of the parties to create a fresh tenancy and the tenant agreed to vacate the suit premises by such undertaking implying the admission of the grounds of reasonable requirement of the plaintiff, default and the terms as stipulated in the agreement. So it cannot be said that the court passed the decree without inherent jurisdiction and foundation of the ground as contemplated under Clause (ff) and (i) of Sub-Section (1) of Section 13 of the West Bengal Premises Tenancy Act, 1956. 13. IN a recent decision in R. N. Gosain vs. Yashpal Dhir reported in A. I. R. 1993 SC 352 the Supreme Court has held, inter alia that: "Law does not permit a person to both approbate and reprobate. No party can accept and reject the same instrument and that "a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage". Thus the tenant having given an undertaking in pursuance to the directions given by the High Court and having availed the protection from eviction on the basis of the said undertaking, cannot be permitted to invoke the jurisdiction of this Court under Art. 136 of the Constitution and assail the said judgment of the High Court". 14. Thus the tenant having given an undertaking in pursuance to the directions given by the High Court and having availed the protection from eviction on the basis of the said undertaking, cannot be permitted to invoke the jurisdiction of this Court under Art. 136 of the Constitution and assail the said judgment of the High Court". 14. IN the instant case, the tenant/defendant in the compromise petition had undertaken to vacate the suit premises on 24-5-89 as contained in paragraph 6 of the compromise petition and thereby gained time for vacating the suit premises till 24-5-89. It is not now open to him to reprobate the said document on the ground that the said compromise decree is not a valid one. Accordingly, the impugned order should be sustained. 15. IN the result, the revisional application is dismissed. Ad interim order of stay stands vacated. There will be no order as to cost.