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2015 DIGILAW 511 (ALL)

Vijay Kumar v. Sukh Sagar

2015-03-19

MAHENDRA DAYAL

body2015
JUDGMENT Mahendra Dayal,J. This is tenant's writ petition for quashing of the judgment and decree dated 1.05.2000 passed by the Judge Small Causes Court, Faizabad in SCC Suit No.18 of 1997 and the judgment and decree dated 03.04.2010 passed by the Additional District Judge, Court No.2, Faizabad in SCC Revision No.101 of 2001. 2. The brief facts giving rise to this writ petition are that the opposite party no.1, who is the landlord of House No.7/6/206 situate at Mohalla Fatehganj, Ward Lalbagh, City Faizabad, filed a suit for eviction of the original tenant, namely, Sri Kanchumal. The suit was contested by the then tenant, but during the pendency of suit, the parties entered into a compromise and it was agreed that with effect from 1st May, 1997 the rate of rent will be enhanced to Rs.150/- per month and the tenancy would be a fixed term tenancy for five years which may be extended with the consent of the parties. This compromise was arrived at and was also brought on the record of SCC Suit No.10 of 1979, but while recording the compromise, the learned Judge Small Causes dismissed the suit vide his judgment dated 04.05.1987. As per the terms of the agreement, the term of the tenancy ended after five years in the year 1992 and when the petitioners, who are the legal heirs of Late Kanchumal failed to vacate the premises in their occupation, the opposite party no.1 filed SCC Suit No.3 of 1993 against the petitioners. However, the suit was dismissed on the ground of non-joinder of the parties. Feeling dissatisfied with the dismissal of SCC Suit, the opposite party no.1 filed SCC Revision No.167 of 1995 which was also dismissed on 08.05.1995. However, in the meantime, on 22.04.1997, the opposite party no.1 filed another suit which was registered as SCC Suit No. 18 of 1997. The suit was filed with the allegation that in the SCC Suit No.10 of 1979 the original tenant Late Kanchumal and the landlord-opposite party no.1 had entered into a compromise and as per the terms of the compromise the tenancy stood terminated by efflux of time after a lapse of a period of five years. 3. The suit was filed with the allegation that in the SCC Suit No.10 of 1979 the original tenant Late Kanchumal and the landlord-opposite party no.1 had entered into a compromise and as per the terms of the compromise the tenancy stood terminated by efflux of time after a lapse of a period of five years. 3. The petitioners filed their written statement and contested the suit inter alia on the ground that the building under their tenancy was governed by U.P.Act No.13 of 1972, and as such the agreement, if any, filed in SCC Suit No.10 of 1979 was a void document and a decree for eviction could not be passed on the basis of the said document. It was further alleged by them that the agreement was not binding upon him. With regards to the payment of rent, it was stated by the petitioners that when the opposite party no.1 did not receive the rent, the same was sent through money order which was also refused by him. Thereafter having no other alternative the petitioners started depositing the rent in the court of Munsif, Faizabad in Miscellaneous Case No.8 of 1992. According to the petitioners, they have been regularly depositing the rent in the court and as such they did not commit any default in payment of rent. It was also pleaded by the petitioners that when the SCC suit was filed on 22.04.1997, the SCC Revision No.167 of 1995 was pending. Hence, on this score also the SCC suit was not maintainable. It was also stated by them that after the death of Kanchumal, the petitioners had inherited tenancy rights from him and as the alleged compromise was a void document, the tenancy could not have been terminated by efflux of time. Under the provisions of the Rent Control Act, a tenancy could be terminated only by a issuing notice in writing on any of the grounds mentioned in Section 20 of the Act. 4. The learned SCC Court on the basis of the pleadings of the parties framed four points of determination and on the basis of evidence on record recorded a finding that the building was governed by U.P.Act No.13 of 1972. It was further concluded that the agreement executed between the opposite party no.1 and Late Kanchumal was a valid document and was binding upon the petitioners. It was further concluded that the agreement executed between the opposite party no.1 and Late Kanchumal was a valid document and was binding upon the petitioners. Since as per the terms of the agreement, the tenancy was for a fixed terms of five years, the tenancy stood terminated automatically after the expiry of five years term and the status of the petitioners became that of statutory tenant, therefore, no notice in writing was required to terminate their tenancy. On the basis of the aforesaid finding, the suit of the opposite party no.1 was decreed with cost. 5. Being aggrieved by the judgment and decree of the SCC Court, the petitioners preferred revision which was registered as SCC Revision No.101 of 2001. The learned Revisional Court also found that the findings recorded by the SCC Court were in accordance with law and did not call for any interference. With this observation, the revision was also dismissed. 6. I have heard Sri S.K.Mehrotra, learned counsel for the petitioners and Sujata Srivastava appearing on behalf of the opposite party no.1. 7. The learned counsel for the petitioners has argued that the judgment and decree passed by both the courts below is a nullity because the SCC Court did not have jurisdiction to entertain the suit which was in continuation of the earlier SCC Suit No.10 of 1979. The suit was barred by the provisions of Order 2 Rule 1 read with Section 12 CPC. The provisions of Section 20 clearly lay down that a suit for eviction of a tenant can be filed only after the determination of his tenancy and the tenancy can be terminated only on the grounds mentioned therein. Since the compromise recorded in SCC Suit No.10 of 1997 was a void document and the tenancy was not terminated by giving any notice in writing, therefore, SCC Court had no jurisdiction to pass a decree for eviction against the petitioners. In the alternative, it has also been argued that if the compromise is treated to be a valid document, the petitioners became unauthorised occupant after the term of their tenancy expired. The petitioners should have, therefore, filed a suit for possession in the regular civil court and not a suit for eviction in the SCC Court. 8. In the alternative, it has also been argued that if the compromise is treated to be a valid document, the petitioners became unauthorised occupant after the term of their tenancy expired. The petitioners should have, therefore, filed a suit for possession in the regular civil court and not a suit for eviction in the SCC Court. 8. Sri Mehrotra has emphasized on the ground that a consent decree passed in SCC Suit No.10 of 1979 can not be executed by another SCC Suit and thus, both the courts below have committed gross illegality in taking cognizance of a void document and passing a decree for eviction of the petitioners. Sri Mehrotra has further argued that it has already been held that the house in dispute was constructed in the year 1965 and as per the provision of the Rent Control Act, the Act became applicable after a period of ten years from the date of construction. Thus, the property in occupation of the petitioners came under the purview of the Rent Control Act in the year 1975. The SCC Suit was filed in the year 1979 when the Rent Control Act was applicable to the building, and therefore, no compromise against the provision of Rent Control Act could have been executed or acted upon. Moreover, the SCC Court by the judgment and decree dated 04.05.1987 had dismissed the suit, but illegally recorded the compromise. The present proceedings arise out of the SCC Suit filed in the year 1997 and the grounds of eviction are based on the compromise which was executed in the year 1987 when the Rent Control Act was very much applicable to the building. 9. Learned counsel appearing on behalf of landlord-opposite party no.1 has submitted that it is not disputed that the original tenant Late Kanchumal and opposite party no.1 entered into compromise in the year 1987 and the same was made part of the decree of SCC Suit No.10 of 1979. After the death of Kanchumal in the year 1991, the petitioners inherited the tenancy right and became joint tenant. After the death of Kanchumal in the year 1991, the petitioners inherited the tenancy right and became joint tenant. When the SCC Suit was filed in the year 1997, the petitioners firstly denied having any knowledge of the compromise, but subsequently, they admitted the same when it was brought to the notice of the court that the petitioners moved an application for deposit of rent in the court and in the said application, the factum of compromise was admitted by them. By depositing the rent under Section 13 of the Act, the petitioners also admitted themselves as tenants of the disputed premises, and as such now they can not take an inconsistent plea that after termination of their tenancy by efflux of time, they became unauthorized persons. It has further been argued that although the premises in dispute was governed by the Rent Control Act, but it was not at all prohibited for the parties to have entered into compromise with regard to enhancement of rent and with regard to the term of the tenancy. A perusal of the contents of the agreement would reveal that by the said compromise a fresh tenancy was created and the rate of rent was fixed as Rs.150/- per month. It was also agreed that the term of the tenancy would be five years and after expiry of the five years term, the tenancy may be extended with the consent of the parties. Since the opposite party no.1 did not want to keep the petitioners as their tenant any more, the term of the tenancy was not extended and since May 1992 the petitioners tenancy stood terminated and their status became that of statutory tenant. 10. The argument advanced on behalf of the petitioners that by way of the present proceedings, the compromise of 1987 is being put to execution, has no substance because the SCC Suit was filed in the year 1997 for eviction on the ground that the tenancy of the petitioners stood terminated in the year 1992 itself by efflux of time and they were not vacating the premises in spite of termination of tenancy. Therefore, a fresh cause of action accrued to the opposite party no.1 to file the suit in the year 1997. Therefore, a fresh cause of action accrued to the opposite party no.1 to file the suit in the year 1997. It is a misconceived argument that by filing the SCC Suit in the year 1997 the opposite party no.1 sought execution of the compromise decree passed in the year 1987 on the basis of the compromise. 11. So far as the validity of the compromise is concerned, the submission of the learned counsel for the opposite party no.1 is that the petitioners were having full knowledge of the compromise executed by Late Kanchumal, but they did not take any action for its cancellation or for declaring it as null and void. The compromise, thus, became final and binding on the parties and after their death upon their successor. 12. In reply to the aforesaid arguments, Sri S.K.Mehrotra, learned for the petitioner has submitted that since the compromise was a void document, hence there was no need to seek its cancellation or declaration as null and void. In support of his argument, he has relied upon a judgment of this Court rendered by a Single Judge in Writ Petition No.7788 of 2015 decided on 18.02.2015, in which it has been held that if a decree or order is obtained by a party from the Court having no jurisdiction or was obtained by fraud or collusion then the same can be challenged by a party in a collateral proceeding. There is no need to bring an independent suit for setting aside such decree or order. The submission of Sri Mehrotra is that since the Court of Small Causes had no jurisdiction to record a compromise against the provisions of Rent Control Act, therefore, the compromise on the basis of which Suit No.18 of 1997 was filed had no legal sanctity, the learned court below was under no obligation to take cognizance of the said compromise and pass decree for eviction against the petitioner. 13. I do not find any force in the submission of the learned counsel for the petitioner on the ground that by means of compromise Late Kanchumal and the present respondent agreed to revise the rate of rent and fixed a term of the newly created tenancy. 14. 13. I do not find any force in the submission of the learned counsel for the petitioner on the ground that by means of compromise Late Kanchumal and the present respondent agreed to revise the rate of rent and fixed a term of the newly created tenancy. 14. Learned counsel has drawn the attention of this Court towards sub-section (1) of Section 20 of the Act which provides that there will be no bar to a suit being filed for the eviction of a tenant on termination of his tenancy by efflux of time, where the tenancy was entered into in pursuance of a compromise between the parties recorded in a court. Thus, the proviso contemplates an exception to the Bar of filing a suit on the grounds specified in Section 20 of the Act. A perusal of the compromise reveals that by the compromise agreement filed in SCC Suit No.10 of 1979, the parties agreed to create a fresh tenancy in the name of Late Kanchumal with effect from May 1987 and it was also agreed that the tenancy would be for a fixed term of five years which could be extended by the consent of the parties. It is not in dispute that in the year 1992, the term of the tenancy was ever extended. Thus, by operation of law and by efflux of time, the tenancy of the petitioners stood terminated immediately on the expiry of five years term in the year 1992 and after that the petitioners became statutory tenant. The suit for eviction of such tenant could very well have been filed in accordance with the proviso contained sub-section (1) of Section 20 of the Act. 15. Sri S.K.Mehrotra, learned counsel for the petitioners has challenged the validity of the compromise on this ground also that under the provision of Order 23 Rule 1, a compromise could be recorded by the court only if there was any adjustment either wholly or in part. Since by the compromise of the year 1987, there was no adjustment of any claim of the landlord, the compromise could not have been recorded by the SCC Court. Probably, this was the reason that the suit was dismissed. The learned SCC Court while dismissing the suit also passed an order that the compromise shall be a part of decree while after dismissal of the suit there was absolutely no decree. Probably, this was the reason that the suit was dismissed. The learned SCC Court while dismissing the suit also passed an order that the compromise shall be a part of decree while after dismissal of the suit there was absolutely no decree. I am unable to accept the argument of the learned counsel for the petitioners because even if a suit is dismissed, a decree is drawn as per the provision of the Code of Civil Procedure. It is not in dispute that Late Kanchumal and opposite party no.1 jointly filed the compromise before the Court and the same was also verified before the Court. The judgment and decree of SCC Suit No.10 of 1979 clearly reveals that the compromise was made part of decree. I, therefore, do not find any force in the submission of the learned counsel for the petitioners that the compromise was not a valid document and no suit could be filed on the basis of the said compromise. In fact, the suit for eviction of the petitioners filed in the year 1997 was based on the ground that the tenancy stood terminated in the year 1992 as per the terms of the compromise and after termination of the tenancy, the petitioners became liable for eviction. 16. After careful consideration of the rival submissions of the parties and having gone through the relevant provisions of law, I do not find any illegality in the order impugned in this writ petition. 17. It is a settled law that under Article 226 of the Constitution of India where a writ of certiorari has been prayed, the Court can quash a judicial order only if it finds that the court below has acted illegally and there is error on the face of the record. In a case reported in AIR 1997 page 1718 the Hon'ble Supreme Court has held that one of the principles on which certiorari can be issued is, where the court acts illegally and there is error on the face of record. Unless the High Court is of the opinion that the order assailed suffers from error of law, it has no jurisdiction to quash the order by having recourse to its certiorari jurisdiction on the ground of error of law. 18. Unless the High Court is of the opinion that the order assailed suffers from error of law, it has no jurisdiction to quash the order by having recourse to its certiorari jurisdiction on the ground of error of law. 18. On perusal of the impugned judgment and decree, I do not find any error apparent on the face of record or any perversity in the finding recorded by the courts below. The writ petition is, therefore, devoid of merit and is liable to be dismissed. The writ petition is hereby dismissed. The petitioners are allowed two months time to vacate the premises in their occupation, failing which it will be open for the opposite party no.1-landlord to execute the decree in accordance with law.