2011 Supreme(Bom) 1168

2011 (6) All MR 92
High Court of Bombay at Aurangabad
HONOURABLE MRS. JUSTICE MRIDULA BHATKAR
Abedali Khan s/o Rahematali Khan
Versus
Devidas s/o Dhonduji Poghe
WRIT PETITION NO.5381 OF 2011
Decided on : 28-09-2011

Headnote:Maharashtra Rent Control Act, 1999 - Sections 15 and 16-Civil Procedure Code, 1908, Order XXIII, Rule 3-Eviction proceedings-Applicability of Order XXIII, Rule 3 of Code-Order XXIII, Rule 3 at Code applicable to eviction suits governed under Act-Not violative to statute-Compromise between parties-Restricted scope for-Ground available under Section 16 of Act ought to be mentioned in compromise-Parties cannot be permitted to have a tenant’s eviction merely by agreement within any thing more.-There is no bar on parties contracting out compromise under Order XXIII, Rule 3 of the Code of Procedure, even for vacating the rental premises and consequential eviction on failure to vacate the same. Thus, Order XXIII, Rule 3 is applicable to the eviction suits governed under special statute like Maharashtra Rent Control Act and not violative to the statute.

       While submitting the terms of the compromise, it is mandatory that at least one of the grounds for eviction which is available under Section 16 of the Maharashtra Rent Control Act ought to have been mentioned in the compromise purshis or there should be a clear indication of such grounds which might have been pleaded either in the plaint by landlord or in the written statement if the landlord is a defendant. Thereafter, it is the duty of the Court while recording the compromise, to satisfy itself that any ground under Section 16 ought to have been mentioned in the compromise and then accept it. In case of Roshan Lal, the Apex Court has enlightened on this issue and has held :

       "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 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 tenant’s eviction merely by agreement without anything more. 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 landlord, in the circumstances, is entitled to have such a decree under the law."

       Passing a decree for eviction on adjudication of the requisite facts or on their admission in a compromise either expressed or implied is not different.

       Thus, in the terms of compromise why landlord wants premises and the ground, which is available under Section 16 should reflect in the compromise, then only that compromise become executable.

       Maharashtra Rent Control Act, 1999 - Section 16-Civil Procedure, 1908, Order XXIII, Rule 3-Interpretation of statute-Rent Control Act, 1999, a special statute wherein Section 16 deals with grounds of eviction and entitlement of possession under specific grounds- However Order XXIII, Rule 3 of Code, a procedural law, enabling compromise beyond subject-matter of suit-By harmonious interpretation a balance between statutory provisions under Rent Act and procedural law can be achieved.-Order XXIII, Rule 3 of the Code of Civil Procedure is a procedural law, enabling the compromise beyond the subject-matter of the suit. However, the Maharashtra Rent Control Act is a special statute wherein Section 16 deals with the grounds of eviction and entitlement of the possession under specific grounds. Undoubtedly, the substantive Act will have priority over the procedural law. Therefore, by harmonious interpretation a balance between the procedural law and statutory provisions under the Maharashtra Rent Control Act can be achieved.

       MAHARASHTRA RENT CONTROL ACT, 1999 - Sections 15 and 16 - CPC, Order XXIII, Rule 3 - Suits for eviction. Eviction suits governed under Act 1999, attracts Order XXIII, Rule 3 of Code and Order XXIII, Rule 3 is not violative to statute.

       There is no bar on parties contracting out compromise under Order 23, Rule 3 of the Code of Civil Procedure, even for vacating the rental premises and consequential eviction on failure to vacate the same. Order XXIII, Rule 3 is applicable to the eviction suits governed under special statute like Maharashtra Rent Control Act and is not violative to the statute. In the compromise, landlord and tenant one of the party or parties mutually agree to give away their rights and accept certain terms.

       MAHARASHTRA RENT CONTROL ACT, 1999 - Section 16 - CPC, Section 2(3) - Eviction suit. In terms of compromise, why landlord wants premises and ground which is available under Section 16 of Act should reflect in compromise, then only said compromise becomes executable.

       Thus, while submitting the terms of the compromise, it is mandatory that at least one of the grounds for eviction which is available under Section 16 of the Maharashtra Rent Control Act ought to have been mentioned in the compromise purshis or there should be a clear indication of such ground which might have been pleaded either in the plaint by landlord or in the written statement if the landlord is a defendant. Thereafter, it is the duty of the Court while recording the compromise, to satisfy itself that any ground under Section 16 ought to have been mentioned in the compromise and then accept it.

       Passing a decree for eviction on adjudication of the requisite facts or on their admission in a compromise either expressed or implied is not different. Thus, in the terms of compromise why landlord wants premises and the ground, which is available under Section 16 should reflect in the compromise, then only that compromise becomes executable. On this background, the present compromise is to be looked into. In the compromise purshis, the status of the parties as landlord and tenant is accepted No ground which is available under Section 16 of the Maharashtra Rent Control Act is mentioned, indicated or reflected.

       Therefore, the decree based upon the terms of the compromise being contrary to Section 16 of the Maharashtra Rent Control Act, becomes unexecutable. Going back to the definition of Decree Holder, though the defendant-landlord is having a decree/order in his favour, the same is not executable, as in the compromise no ground available under Section 16 of the Maharashtra Rent Control Act is mentioned or clearly indicated. So, eviction of the tenant contrary to Section 16 of the Maharashtra Rent Control Act is violative to the said special statute.

       Civil Procedure Code, 1908 - Section 2(3)-Maharashtra Rent Control Act, 1999, Section 16-Decree holder-Executable order-Requirement as to-Status of landlord in case of compromise with tenant-Grounds available under Section 16 of Act, not mentioned or reflected in deed of compromise-Decree based upon terms of such compromise becomes unexecutable-Landlord would not be a decree-holder.-In the compromise purshis, the status of the parties as landlord and tenant is accepted. No ground which is available under Section 16 of the Maharashtra Rent Control Act is mentioned, indicated or reflected. Therefore, the decree based upon the terms of the compromise being contrary to Section 16 of the Maharashtra Rent Control Act, becomes unexecutable.