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1995 DIGILAW 110 (HP)

PAMILA KAPUR v. KHEM SINGH

1995-12-29

S.N.PHUKAN

body1995
JUDGMENT S. N. Phukan. C. J.—This revision petition is directed against the order dated 11-1-1994 passed by Rent Controller (2), Shimla, in execution No. 62-10 of 1988 By the impugned order, learned Court below held that the order of eviction is not executable and accordingly execution petition was dismissed. 2. The predecessor of the present petitioners filed a petition under Himachal Pradesh Urban Rent Control Act, 1971, before the Rent Controller (2), Shimla, for eviction of respondent No 1 from Quarter No. 12 on the ground of arrears of rent and also bona fide personal requirement for reconstruction of the premises in question. The petition was dismissed by the learned Rent Controller, An appeal was laid before the learned Appellate Authority, both the landlord and the tenant made statements on oath and accordingly, the learned Appellate Authority passed the following order: "31-8-1985 Present : Sh. Kuldip Singh Counsel for the appellant, the appellant and respondent with counsel Sh. G. C. Gupta. Spot inspected. On the spot the parties have compromised. According to the compromise the respondent/tenant has agreed to vacate the premises in question and in place thereof the appellant/landlord has agreed to give on the same rent another quarter, bearing No 17, which on the first floor and is to the extreme South after repairing its roof by replacing the damaged corrugated iron sheets with good sheets, by plastering the walls with mud, by providing stairs (wooden) from—Southern side, by fixing ceiling and by repairing the railing and the floor of the covered portion outside the said quarter. Respondent has conceded that the premises occupied by him are bona fide required by the appellant for construction of a new house for his own use I have gone through the record and I feel satisfied that the premises are bona fide required by the appellant/landlord for construction of a new house for self use and occupation. Accordingly, the order of the Rent Controller whereby the petition of the appellant for the eviction of the respondent has been dismissed and which is assailed through the present appeal is set aside and instead thereof the order of eviction is passed against the respondent. The order shall however be executable only after the appellant repairs the quarter No. 17 in accordance with the terms of the compromise and makes the same available and ready for occupation by the respondent. The order shall however be executable only after the appellant repairs the quarter No. 17 in accordance with the terms of the compromise and makes the same available and ready for occupation by the respondent. In case the respondent refuses to take the delivery of quarter No, 17, after its repairs in accordance with the compromise, he shall in that event be liable to be evicted through the process of the Court from the premises in dispute and would also forfeit his right to have the quarter No. 17 in lieu of the premises in dispute, The rent in respect of the premises comprised in quarter No. 17 shall be the same as is for the premises in question. Statements of the parties shall form part of this order. Record of this appeal be consigned. Record of lower Court be returned together with a copy of this order and the copies of the statement of the parties which have been made part of this order." 3. Learned executing Court, inter alia, held that the landlord was to carry out the following repairs to enable the tenant to shift to quarter No. 17. The said repairs are as follows : (i) Rusted and decayed tin sheets of the roof were to be replaced ; (ii) Mud plastering on walls was to be done ; (iii) Broken planks if any, were to be replaced ; (iv) Ply-wood ceiling was to be provided ; (v) Defects in windows and doors, if any, were to be removed ; (vi) Cracks if any, on the wall were to be repaired ; (vii) Railing was to be provided ; and (viii) Wooden stairs were to be provided.” 4. Before the executing Court both the parties adduced evidence and the learned executing Court held that one thing is certain that the ply-wood ceiling has not been provided, ft was also recorded that the landlord in cross-examination before the executing Court stated that there was no agreement regarding ply-wood ceiling was to be provided. It was also held that the landlord was to carry out the repairs within a period of two years and accordingly, judgment-debtor sent a Notice, marked as Ex. It was also held that the landlord was to carry out the repairs within a period of two years and accordingly, judgment-debtor sent a Notice, marked as Ex. AW 1/B and in reply to the said notice, it was stated by the landlord that necessary repairs had been done one year before and offer was also made to the judgment-debtor to occupy quarter No. 17. This reply to the notice was marked as Ex AW 1/C Therefore, the learned executing Court also held relying on a decision of this Court that Order 23, C P. C. would apply in case of execution under the provisions of rent law. It was held that decree for eviction was nullity. 5. The first point urged is that this is not a fit case for exercising revisional powers as contained in section 151, C P. C. In support reliance has been placed on a decision of the apex Court in The Managing Director {MIG) Hindustan Aeronautics Ltd Balanagar, Hyderabad and another v. Apt Prasad Tarway, Manager (Purchase and Stores) Hindustan Aeronautics Ltd. Balanagar, Hyderabad, AIR 1973 SC 76. It was held by the apex Court that that High Court should not interfere even if the order is right or wrong or in accordance with law or not, unless it has exercised its jurisdiction illegally or with material irregularity. There is no dispute on this point. Therefore, this Court has to examine whether there was any jurisdictional error committed by the executing Court. 6. The second point urged is that as it was a compromise decree, it is not executable as there was no compromise-deed executed by both the parties. In support, reliance has been placed on a decision of the apex Court in Gurpreet Singh v. Chatur Bhuj Goel, AIR 1988 SC 400. The apex Court held in view of the provisions of Order 23, Rule 3, C. P. C. that if there is any compromise between tlie parties in a suit or appeal, the Court must insist that the compromise be reduced in writing and signed by the parties. 7. Reliance has also been placed on a decision of the apex Court in Hiralal Moot Chand Doshi v. Barot Raman Lai Ranchhoddas {dead) by LRs., (1993) 2 SCC 458. 7. Reliance has also been placed on a decision of the apex Court in Hiralal Moot Chand Doshi v. Barot Raman Lai Ranchhoddas {dead) by LRs., (1993) 2 SCC 458. The apex Court held that the provisions of Order 23, Rule 3, C P. C. are applicable in case of Rent Law and that there is no prohibition under the Rent Law for the parties to enter into a compromise in a suit for eviction and further if there is a consent the Court can pass a decree for eviction only if the Court is satisfied about the existence of the grounds mentioned in the Rent Law. 8. This Court also held in Durga Singh v State of H. P. 1990 (1) Sim LC 172, that compromise decree has no greater validity than the agreement or compromise on which it is based and as there is no compromise as required under Article 299 (1) of the Constitution, the decree passed on the statement of the Government Pleader is invalid and cannot be enforced in law. 9. The apex Court held in Suleman Noormohamed v. Umarbhai Janubhai, (1978) 2 SCC 179, that while recording a compromise under Order 23, Rule 3, C. P. C. it is not necessary for the Court to say in express terms in the order that it was satisfied that the compromise was a lawful one and it will be presumed to have done so if there is some evidence on record unless the contrary is shown. 10. From the judgment of the learned Appellate Authority, it is absolutely clear that after recording the statements of landlord and tenant and after perusing the record, the Court recorded the satisfaction that the premises was bona fide required by the appellant-landlord for construction of a new house for self use and occupation. Therefore, judgment of the learned Rent Controller was set aside and order of eviction was passed against the tenant. However, the Court recorded that the eviction order shall be executable only after the landlord repairs the quarter No. 17 and make it available to the tenant. Therefore, judgment of the learned Rent Controller was set aside and order of eviction was passed against the tenant. However, the Court recorded that the eviction order shall be executable only after the landlord repairs the quarter No. 17 and make it available to the tenant. In the order it was recorded that the landlord shall repair the quarter No. 17, which was on the first floor on the extreme Southern side, its roof by replacing the same by iron sheets, by plastering the walls with mud, by providing stairs (wooden) from the Southern side, by fixing ceiling and repairing the reiling and the floor of the covered portion outside the said quarter. From this order, it is clear that the eviction order did not mention that the ply-wood ceiling has to be provided but only ceiling has to be provided. Therefore, the learned executing Court erred in law in its finding regarding ceiling. 11. The finding of the learned executing Court that the decree was a nullity as the provisions of Order 23, C. P. C. were not complied with as it was not signed by the parties, is also not correct. In feet this not a compromise decree for execution and it was actually a decree passed by the Appellate Authority on the basis of the evidence adduced on oath by the parties before the Appellate Authority and after having duly satisfied that the premises in question is required bonafide by the landlord. Therefore, the learned executing Court erred in law, inasmuch as, the Court did not exercise its jurisdiction properly. 12. For the reasons stated above, the impugned order is set aside and the learned executing Court is directed to execute the decree in accordance with law. Costs on the parties. Order set aside.