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SUPREME COURT OF INDIA
S. SARKARIA AND N.L. UNTWALIA, JJ.
Suleman Noormohamed etc. etc., Appellants
Versus
ai Janubhai, Respondent.
Civil Appeal No. 226 of 1976
Decided on 7.6.1978.
Advocates appeared
Mr. P. H. Parekh, Mrs. Manju Sharma, and Mr. C. B. Singh, Advocates, for Appellants; Mr. V. N. Ganpule, Advocate, for Respondent.
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Code of Civil Procedure – Rule 13 - Order 9 - Possession for land – Tenant – Appeal against conviction - With reference to the requirement of the law under Order XXIII Rule 3 of the Code, it has been observed further on the same page - If the agreement or compromise for the eviction of the tenant is found on the facts of a particular case, to be in violation of a particular Rent Restriction or Control Act, the Court would refuse to record the compromise as it will not be a lawful agreement. If on the other hand, the Court is satisfied on consideration of the terms of the compromise and if necessary, by considering them in the context of the pleadings and other materials in the case, that the agreement is lawful, as in any other suit, so in an eviction suit, the Court is bound to record the compromise and pass a decree in accordance therewith. Passing a decree for eviction on adjudication of the requisite facts or on their admission in a compromise either express or implied, is not different – Held, In the instant case the High Court was not right that on the face of the compromise pursis or the order passed thereon, there was no material to show that the tenant had either expressly or impliedly suffered a decree for eviction as being liable to be evicted in accordance with section 12 (3) (b) of the Act. While recording the compromise under Order XXIII Rule 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. But that apart, on examination of the plaint which certainly could be looked into and which must have been in the records of the Court at the time of the passing of the compromise decree, it would be found that the landlords had claimed arrears of rent for two months @ Rs. 17/- per month and mesne profit also for one month up to the date of the suit at the same rate. They had also claimed light charges @ Rs. 2/- per month. In the compromise petition, paragraph 2, the same amount of rent, mesne profit and electric charges are admitted by the tenants to be payable to the landlords. There is nothing to indicate that any genuine dispute was raised by the tenant in regard to the standard rent or the electric charges. Nor is there anything to show that he had ever filed a petition under section 11 of the Act or any other provision of law for fixation of standard rent. In other words, there is nothing to show that the tenant could claim protection from eviction in accordance with clause (b) of sub-section (3) of section 12 of the Act on the ground that he was not in a position to pay or tender the rent due on the first date of the hearing of the suit, which must have been fixed before the passing of the ex parte decree. Nor was he able to show that the Court at his request had ever fixed any other date for payment of the said amount - If a decree for possession would have been passed in invitum the tenant would not have got three years time to vacate the premises. He, therefore, agreed to suffer a decree by consent and gained three years time under it. But the unavoidable uncertainties of litigation and the delay in disposal of cases at all stages have enabled him to gain a period of about 11 years more by now. In our judgment the decree under execution is not a nullity and has got to be executed by the Execution Court without any further loss of time, as quickly as possible - Appeal allowed
JUDGMENT
UNTWALIA, J.:— This is a decree-holders appeal by special leave. The sole respondent is the judgment-debtor. The appellants filed a suit against the respondent in the Small Causes Court at Ahmedabad in 1964 claiming a decree for eviction against him on the ground of non-payment of rent and bona fide personal necessity. The grounds made out were in accordance with the relevant provisions of The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - hereinafter to be referred to as the Act. The respondent filed a written statement with a view to contest the suit. Eventually on account of the default of the defendant the suit was taken up for hearing ex parte and an ex parte decree was passed on the 16th of March, 1966. The defendant applied under O. 9, R. 13 of the Code of Civil Procedure - hereinafter to be referred to as the Code, for setting aside the decree. It was set aside. But ultimately the suit was disposed of on the 1st March, 1967 on compromise between the parties. According to the terms of the compromise decree the judgment-debtor was to hand over possession of the suit premises to the decree-holders within a period of three years i. e. by 1st of March, 1970. But he did not do so. Thereupon the decree-holders filed an execution case to get possession of the property. The respondent contested the execution on the ground that the decree was a nullity. The first Court accepted his plea but on appeal by the decree-holders it was held by the Appellate Court that the decree was not a nullity and was executable. The respondent filed a revision application in the Gujarat High Court which has been allowed. The High Court has accepted the respondents plea that the compromise decree is a nullity and hence cannot be executed.
2. It is not necessary to review again and again all the earlier judgments of this Court on the point. It will be sufficient to refer only to two namely, Nagindas Ramdas v. Dalpatram Ichharam (1974) 2 SCR 544 - a judgment which is noticed by the High Court also in its order under appeal and the case of Roshan Lal v. Madan Lal (1976) 1 SCR 878.
3. It was pointed out in Nagindass case (AIR 1974 SC 471) (supra) by one of us (Sarkaria J.) that the existence of one of the statutory grounds mentioned in Sections 12 and 13 of the Act, as in the case of other similar States Statutes, is a sine qua non to the exercise of jurisdiction by the Rent Court in order to enable it to make a decree for eviction. Parties by their consent cannot confer jurisdiction on the Rent Court to do something which according to the legislative mandate it could not do. The Court while recording a compromise under Order XXIII, Rule 3 of the Code has to satisfy itself that the agreement between the parties is lawful, in other words is not contrary to the provisions of the Act. But it has been clearly laid down in Nagindass case (1974) 2 SCR 544 at page 552.
".........that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction, though apparently passed on the basis of a compromise would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement. itself,..........."
4. In Roshan Lals case (AIR 1975 SC 2130), one of us (Untwalia J.) following Nagindass case (AIR 1974 SC 471) reiterated the same view. At p. 882 (of SCR) delivering the judgment of this Court, it has been said.
"The Court can pass a decree on the basis of the compromise. In such a situation the only thing to be seen is whether the compromise is in violation of the requirement of the law. In other words, parties cannot be permitted to have a tenants eviction merely by agreement without anythin
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