Ram Janki Devi v. Bal Chand Verma — 1997 DIGILAW 382 (RAJ)

Honble SHARMA, J.–Short question which arises for determination in this revision is as to under what circumstances a compromise decree passed in a suit for eviction can be declared by the executing Court as nullity ? (2). This question has emerged in the following circumstances :– (i) The decree holder petitioner (for short the decree holder) insti- tuted a suit for eviction against the judgment debtor non-petitioner (for short the judgment debtor) in the Court of the District Judge Jaipur City on the grounds of default in making payment of rent, reasonable and bona fide necessity and nuisance. The judgment debtor neither filed written statement nor did he controvert the facts averred in the plaint. The suit, however, was transferred to the Court of Addl. District Judge No.1 Jaipur City. (ii) A compromise was entered into between the parties on 9.1.1987. The judgment debtor admitted in the compromise that he did not want to contest the suit but only sought time to vacate the premises in question. He further admitted that he would hand over the vacant possession of the disputed premises to the decree holder on or before 20.5.1988 and would not remain in possession of the property thereafter and would pay Rs. 1,300/- per month to the decree holder from the date of compromise till he vacates the said premises. In case he fails to hand over the vacant possession by 20.5.1988, the decree holder would be entitled to get the decree executed in order to evict the judgment debtor. The judgment debtor further agreed that the de- cree holder may withdraw Rs. 5,000/- deposited by the judgment debtor towards rent in the Court of Additional Munsif No. 5 Jaipur city. It was prayed that the suit filed by the decree holder be decreed on the basis of compromise. (iii) The trial Court decreed the suit on the basis of said compromise on 19.1.1987. The compromise deed was made part of the decree. (iv) The judgment debtor did not vacate the suit premises as agreed by him, therefore, the decree holder initiated execution proceedings. The judgment debtor filed objection petition u/S. 47 CPC to effect that the decree passed by the Court on 19.1.1987 was nullity and was in- executable. (v) The executing Court allowed the objections and declared that the decree passed on 19.1.1987 was nullity and was inexecutable. The judgment debtor filed objection petition u/S. 47 CPC to effect that the decree passed by the Court on 19.1.1987 was nullity and was in- executable. (v) The executing Court allowed the objections and declared that the decree passed on 19.1.1987 was nullity and was inexecutable. (vi) Against the order of the executing Court present action for filing this revision has been resorted to. (3). I have given my anxious consideration to the rival contentions and carefully perused the record. (4). The point which falls for determination in this revision has been subject matter of consideration in several decisions of the Supreme Court. In Bahadur Singh vs. Muni Subrat Das, (1) a decree for eviction based on an award without any- thing more was found to be a nullity as it was held to have been passed against the prohibitory mandate of Sec. 13(1) of the Delhi and Ajmer Rent Control Act, 1952. Following the said decision the compromise decree was also held to be a nullity in the case of Kaushalya Devi vs. K.L. Bansal, (2). The Arlier two decisions were followed again in Ferozilal Jain vs. Man Mal, (3). In all the three cases the decrees were found to have violated Sec. 13(1) of the Delhi Act of 1952. (5). Roshan Lal vs. Madan Lal, (4) was the case where it was indicated by the Apex Court that ``If however, parties choose to enter into a compromise due to any reason such as to avoid the risk of protracted litigating expenses, it is open to them to do so. The Court can pass a decree on the basis of compromise. In such a situa- tion the only thing to be seen is whether the compromise is a violation of the requirement of the law. 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 land lord in the circumstances is entitled to have such a decree under the law. (6). Suleman Noor Mohd. 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 land lord in the circumstances is entitled to have such a decree under the law. (6). Suleman Noor Mohd. vs. Umer Bhai Janubhai, (5) was the case where it was observed by the Supreme Court that ``while recording the compromise u/O. 23 R. 3 of the Code, 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. It will be presumed to have done so, unless the contrary is shown. (7). Mr.B.L. Agrawal, learned counsel for the decree holder canvassed that the judgment debtor, who has enjoyed the benefits under the said decree cannot now turn down and say that the decree is unenforceable. He is estopped from doing so. Any objection must have been taken at the time of the compromise and not at the time of the execution. He has placed reliance on K.K. Charis case (supra), Nagin- das Ram Dass case (supra), Roshanlals case (supra) and Suleman Noor Mohammads case (supra). (8). On the other hand, Mr. D.P. Chadha learned counsel for the judgment debtor vigorously contended that the compromise decree passed in the case was in contravention of the provisions contained in Rajasthan Premises Control of Rent and Eviction Act, 1950 (for short the Act) and was a nullity. He also argued that the said compromise decree being unlawful and meant to defeat the provisions of law is hit by Sec. 23 of the Indian Contract Act and no such decree can be passed even u/O. 22, R. 3 CPC. Mr. Chandha, learned counsel placed reliance on Bahadur Singhs case (supra), Kaushalya Devis case (supra) and Ferojilals case (supra). He also cited the case of State of Punjab vs. Amar Singh, (6), Bhinwa Ram vs. Satya Narain, (7) Pulakurthi Hussain Sahib vs. Guru Raja Rao, (8), Prem Kumar Singh vs. Grahpal Singh (9), Himmat Mal & Anr. vs. Mithalal, (10), Mohd.Shafi vs. Mst.Lajwanti Devi, (11), Pandurang etc. vs. Maruti Hari etc., (12) and Union of India vs. Subramanian, (13). (9). Before adverting to the rival contentions, it is necessary to examine the nature of the compromise decree passed in this case. vs. Mithalal, (10), Mohd.Shafi vs. Mst.Lajwanti Devi, (11), Pandurang etc. vs. Maruti Hari etc., (12) and Union of India vs. Subramanian, (13). (9). Before adverting to the rival contentions, it is necessary to examine the nature of the compromise decree passed in this case. Indisputably in the compro- mise entered into between the parties on 9.1.1987, the judgment debtor admitted in the compromise that he did not want to contest the suit but only sought time to vacate the premises in question. The judgment debtor neither filed written statement nor did he controvert the facts averred in the plaint and he agreed to handover the vacant possession of the disputed premises to the decree holder on or before 20.5.1988. The rent of the disputed premises was also increased and judgment debtor agreed to pay Rs. 1,300/- per month to the decree holder from the date of compromise till the said premises was vacated by him. It was also agreed by him that in case he fails to hand over vacant possession on 20.5.1988, the decree holder would be entitled to get the decree executed in order to evict the judgment debtor. In the compromise deed it was agreed that the suit filed by the decree holder be decreed on the basis of compromise. (10). The suit which was filed by the decree holder against the judgment debtor was based on the grounds of default in making payment of rent, reasonable and bona fide necessity and nuisance. There is no dispute that these grounds are covered u/S. 13(1) of the Act. (11). Now, I proceed to examine the said compromise decree in the light of the judicial pronouncements cited before me. (12). In Kaushalya Devis case (supra), the suit for ejectment was filed (1) on the ground of bona fide necessity; (2) suitable accommodation owned by the te- nant and (3) default in making payment of rent. In that case the tenant filed a written statement denying the said allegations and issues were framed on 4.4.1956. Thereafter on 5.6.1956 an application was filed by the land lord and the tenant that a compromise had been entered between them. The Court recorded the following order: ``In view of the statement of the parties counsel and the written compromise a decree is passed in favour of the plaintiff against the defendant, and the decree was drawn up accordingly. Thereafter on 5.6.1956 an application was filed by the land lord and the tenant that a compromise had been entered between them. The Court recorded the following order: ``In view of the statement of the parties counsel and the written compromise a decree is passed in favour of the plaintiff against the defendant, and the decree was drawn up accordingly. The Apex Court observed after placing reliance on Bahadur Singhs case (supra) that the decree was a nullity as it was passed in contravention of Sec. 13(1) of the Delhi and Ajmer Rent Control Act, 1952. (13). The ratio of Kaushalya Devis case (supra) is not applicable in the case on hand as in the instant case the judgment debtor did not file the written statement denying the allegations made in the plaint. But, as already stated, without controverting the facts averred in the plaint, the judgment debtor admitted in the compro- mise that he did not want to contest the suit and only sought time to vacate the premises in question. (14). In Ferozi Lal Jains case (supra), the land lord brought a suit u/S. 13 of the Delhi and Ajmer Rent Control Act, 1952 on the ground of sub-letting the shop by the tenant. The tenant denied the sub-lease alleged by the land lord. During the pendency of the trial of the suit the land lord and the tenant entered into a compromise. The compromise petition did not make any reference to the alleged sub-lease and the Court recorded the compromise as under : ``As per the compromise, decree for ejectment and for Rs. 165 with proportionate costs is passed in favour of the plaintiff and against the defendant. The parties shall be bound by the terms of the compromise. The terms of the compromise be incorporated in the decree- sheet. Order pronounced. The Apex Court observed that the decree was passed in contravention of Sec. 13(1) and was a nullity. (15). The ratio of Ferozilal Jains case (supra) is also not applicable in the case on hand as in that case also the written statement was filed by the tenant denying the averments made in the plaint. (16). In Bahadur Singhs case (supra), Muni Subrat and the tenant agreed in writing to refer the disputes between them to the arbitrators. The land lord was not a party to the agreement. The Arbitrators made their award on 14.7.1954. (16). In Bahadur Singhs case (supra), Muni Subrat and the tenant agreed in writing to refer the disputes between them to the arbitrators. The land lord was not a party to the agreement. The Arbitrators made their award on 14.7.1954. The award was signed by the arbitrators and the parties to the reference and was attested by the landlord. It was filed in the Court u/S. 14 of the Arbitration Act, 1940. On 26.8.1954 the tenants and Muni Subrat stated in the Court that they had no objection against the award. On the same date the Court pronounced the judgment according to the award and a decree followed accordingly. On 23.8.1958 Muni Subrat and the landlord jointly applied for execution of the decree for delivery of possession of the premises. In anticipation of the application for execution of the decree on 9.1.1958 the tenants filed an application u/S. 47 of the CPC raising the objections to the effect that the award was beyond the scope of the reference and was invalid and the decree based on the invalid award was void as it was passed in contravention of the Delhi and Ajmer Rent Control Act, 1952 and the land lord could not execute the decree. The facts of Bahadur Singhs case (supra) are distinguishable with that of the case on hand. (17). It was next contended by Mr. Chadha, learned counsel that compromise entered between the parties was against the public policy. In support of this contention he placed reliance on State of Punjab vs. Amar Singh (supra). In para 33 of the judgment, the Apex Court observed as under : ``Another argument was suggested that the order even though passed on a compromise was as valid and binding as one passed on contest. May be, that as a broad proposition one may assent to it. But where a compromise goes against a public policy prescription of a statute or a mandatory direction to the Court to decide on its own certain foundational facts, a razi cannot operate to defeat the requirement so specified or absolve the Court from the duty. (18). To my mind the compromise entered in this case was not against the public policy. The judgment debtor admitted the averments made in the plaint and sought time to vacate premises. (18). To my mind the compromise entered in this case was not against the public policy. The judgment debtor admitted the averments made in the plaint and sought time to vacate premises. The suit filed by the decree holder was based on the provisions contained in Sec. 13(1) of the Act and the decree which was passed on the basis of compromise cannot be regarded as void. (19). Bhinwa Rams case (supra) was the case where this Court observed that the decree of eviction cannot be passed unless an enquiry into circumstances u/S. 14 of the Act are satisfied. According to Sec. 14 of the Act, it is required to be examined whether having regard to all the circumstances of the case including the question whether other reasonable accommodation is available to the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it and further the Court is to be satisfied whether no hardship would be caused either to the tenant or to the land lord by passing the decree in respect of a part of the premises and if the Court is so satisfied, it may pass a decree in respect of such part only. (20). I am of the view that the ratio of Bhinwa Rams case (supra) is not applicable in the case on hand as in the instant case the judgment debtor did not controvert the facts averred in the plaint and did not plead that he would suffer greater hardship in the event of vacation of the premises in question. He admitted in the compromise that he did not want to contest the suit but only sought time to vacate the premises. (21). Mochi Damjibhai Trikambhais case (supra) was the case where the High Court of Gujarat observed that when a decree does not indicate on the face of it the satisfaction of the Court regarding any of the grounds specified in Sec. 13(1) of the Act the decree was a nullity. (22). In Suleman Noor Mohd. case (supra) it was held that while recording the compromise u/O. XX R. 3 CPC it is necessary for the Court to say in express terms in the order that it was satisfied that the compromise was a lawful one. It will be presumed to have done so unless the contrary is shown. (22). In Suleman Noor Mohd. case (supra) it was held that while recording the compromise u/O. XX R. 3 CPC it is necessary for the Court to say in express terms in the order that it was satisfied that the compromise was a lawful one. It will be presumed to have done so unless the contrary is shown. In the case on hand nothing had been shown that, the Court did not satisfy itself regarding any of the grounds specified in Sec. 13(1) of the Act. (23). Pulakurthi Hussain Sahibs case (supra) was the case where it was observed by the Mysore High Court that if the statutory grounds are not mentioned in the compromise decree, the decree is a nullity and cannot be enforced in execution. These observations are based on the ratio of Kaushalya Devis case (sup- ra). The ratio of this case is also not applicable to the facts of this case on hand, in view of the ratio of K.K. Charis case (supra), Nagin Dass case (supra) and Roshan Lals case (supra). (24). In Prem Kumar vs. Grahpal Singh (supra), the Delhi High Court observed that mere admission of the tenant admitting bonafide requirement of landlord, can- not form the basis of satisfaction of Controller with regard to various grounds of eviction. This judgment of the Delhi High Court has been impliedly over ruled by the Apex Court in K.K. Charis case (supra), Roshan Lals case (supra) and Nagindass case (supra). (25). Himmat Mal & Anr. vs. Mithalal (supra) was the case where new tenant was inducted on the basis of compromise on terms inter alia to vacate premises on 1.5.1989. Compromise put into execution after 1.5.1989, it was held that new tenant with effect from 23.4.1982 could only be ejected on the grounds mentioned in the Act and decree was held inexecutable. (26). Mohammed Shafis case (supra) was the case where the landlord insti- tuted a suit for eviction. The tenant did not file written statement and the trial Court decreed the suit without recording any evidence. It was observed that the trial Court acted erroneously and the decree was contrary to the provisions of Sec. 13(1) of the Act. (26). Mohammed Shafis case (supra) was the case where the landlord insti- tuted a suit for eviction. The tenant did not file written statement and the trial Court decreed the suit without recording any evidence. It was observed that the trial Court acted erroneously and the decree was contrary to the provisions of Sec. 13(1) of the Act. The facts of Mohammed Shafis case are distinguishable with that of the case on hand as in that this case no compromise was filed by the parties as has been done in this case and on the basis of the procedural illegality this Court held that the decree was void. (27). Mr. Chadha, learned counsel for the judgment debtor lastly contended that the revision filed by the decree holder is not maintainable as no jurisdictional error was committed by the Court below. (28). Placing reliance on Pandurang Dhondis case (supra) it has been canvassed that this Court cannot correct the error of fact or law however gross may be u/S. 115 CPC. In that case the Apex Court observed that the High Court while exercising its jurisdiction u/S. 115 CPC can not correct errors of fact, however gross they may be, or even errors of law. It can only do so when the said errors have relation to the jurisdiction of the Court to try the dispute itself. (29). In the case on hand, the executing Court did not follow the ratio propounded by the Apex Court in K.K. Charis case (supra), Nagindass case (supra), and Roshan Lals case (supra) and observed that the compromise decree was a nullity, while deciding the objections filed u/S. 47 of the CPC. So the ratio of Pandurangs case (supra) is not applicable in the case on hand. However, I may observe that after amendment in Sec. 115 CPC with effect from 1.2.1977 the scope of revision u/S. 115 CPC has been enlarged. (30). Some relevant English decisions may also be referred. In Barton vs. Fincham (14), Lord Scruton L.J. observed. ``If the tenant is willing to go out, I do not see why any order is wanted; let him go; but as at present advised I do not see any reason why the judge on being satisfied that a tenant is then ready to go out (no that he was once willing but has changed his mind) should not make an order for possession. Lord Atkin L.J. observed : ``If the parties before the Court admit that one of the events has happened which give the Court jurisdiction, and there is no reason to doubt the bona fides of the admission, the Court is under no obligation to make further enquiry as to the question of fact. In (1950) 1 KB 657 (15) it was held : ``That a landlord seeking to recover possession against a tenant protected by the Rent Restriction Acts must establish the right to po- ssession on one of the grounds stated in the Acts, unless, after possession had been claimed on such ground, the tenant admitted facts to support it, in which event the Court need not itself investigate the matters of fact admitted. (31). From the conspectus of the cases cited before me the principle that emer- ges is that if the tenant admits in the compromise deed that the landlord is entitled to possession on the statutory grounds averred in the plaint, it is open to the Court to act on that admission of the tenant and make an order for possession in favour of the landlord without further enquiry.If at the time of passing of the decree there is some material before the Court on the basis of which the Court can be prima facie satisfied about the statutory grounds for eviction, it may be presumed that the Court is so satisfied and the decree for eviction can be passed on the basis of the said compromise. The admission of the tenant can be made the basis of the satisfaction of the statutory grounds of the Act. The compromise must indicate either on its face of in the background or other material 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 in the law. (32). In the instant case as already stated by me in the foregoing paras that the tenant judgment debtor neither filed written statement nor did he controvert the facts averred in the plaint and stated in the compromise that he did not want to contest the suit but only sought time to vacate the premises. (32). In the instant case as already stated by me in the foregoing paras that the tenant judgment debtor neither filed written statement nor did he controvert the facts averred in the plaint and stated in the compromise that he did not want to contest the suit but only sought time to vacate the premises. This act of judgment debtor amounts to admission of the averments made by the decree holder in the plaint in view of the provisions contained in Order 8 R. 5 CPC which reads as follows:– ``5. Specific denial.–(1) Every allegation of fact in the plaint, if not de- nied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability. Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may in its discretion, require any such fact to be proved. (3) In exercising its discretion under the proviso to sub- rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. (4) Whenever, a judgment is pronounced under the rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced. (33). Thus it will be presumed that the Court had recorded compromise and pronounced the judgment on the basis of facts contained in the plaint as the defendant had not filed pleading and he agreed for passing the decree. (34). Judged from the angle propounded by the Apex Court in K.K. Charis case (supra), Nagindas Ram Dass case (supra), Roshan Lals case (supra) and Suleman Noor Mohds case (supra), it may safely be observed that the impugned judgment passed by the executing Court suffers from jurisdictional error and if the said order is allowed to stand it would occasion failure of justice. The arguments advanced by Mr. Chadha, learned counsel for the judgment debtor have not impressed me. The arguments advanced by Mr. Chadha, learned counsel for the judgment debtor have not impressed me. The judgments cited by him are distinguishable and not applicable in the case on hand. The judgment debtor entered into compromise and got benefit out of it. He admitted averments made in the plaint and it is now not open to the judgment debtor to approbate and reprobate. I am of the view that it was not necessary for the Court to specify the statutory grounds in the compromise decree and it may be presumed that the Court was satisfied that the grounds for eviction enumerated in Sec. 13(1) of the Act were existed. The compromise decree was lawful as there was sufficient material before the Court of its satisfaction in the form of `admissions made by the judgment debtor. (35). In the result the revision succeeds and is hereby allowed. The order dated 30.5.1989 passed by the Additional District Judge No.1 Jaipur City, Jaipur is set aside. I hold that compromise decree was passed legally and the same is executable. The objection submitted by the judgment debtor is devoid of any force and is accordingly rejected. The record of the case be sent forthwith to the execu- ting Court for executing the decree in accordance with law. No costs.