Calcutta High Court
Satpal Tondon vs Smt. Jyotsna Ghosh And Others on 9 July, 1990
Equivalent citations: AIR1991CAL228, (1990)2CALLT257(HC), 1990(2)CHN406, 95CWN335, AIR 1991 CALCUTTA 228, (1990) 2 CALLJ 152, (1990) CAL WN 335, (1991) 95 CAL WN 335, (1991) 2 RENTLR 20, (1990) 2 CAL HN 406
ORDER
1. This is an application under Article 227 of the Constitution of India preferred against order No. 4 dated 18-4-90 of the District Judge, Alipore made in Civil Revision Case No. 77 of 1990. The learned District Judge summarily dismissed the revision. An important question of law arose in the proceeding and the learned District Judge having dismissed the revisional application summarily the petitioner feels aggrieved and invokes the supervisory jurisdiction of the High Court.
2. The opposite parties 1,2 and 3 and one Smt. Santi Roy, since deceased, filed Title Suit No. 529 of 1976 in the 3rd Court of the Munsif at Alipore for eviction of the petitioner-tenant on the ground of default in the payment of rent since February, 1976. That suit finally ended in an ex parte decree. The defendant-petitioner filed a Misc. Case No. 63 of 1985 under Order 9, Rule 13, C. P. Code for setting aside the ex parte decree. The petitioner ultimately was refused a special leave to appeal by the Supreme Court. The decree was sought to be executed in Title Execution Case No. 39 of 1985. The petitioner-judgment-debtor resists the execution case by virtue of a petition under Section 47 of the C. P. Code on the sole ground that the decree is a nullity, the judgment not being based on one or more of the grounds for eviction as contemplated under Section 13(1) of the West Bengal Premises Tenancy Act (hereinafter called the Act). Misc. Case No. 21 of 1990 under Section 47 of the C. P. Code was dismissed by the third Court of Munsif. The District Judge summarily dismissed the revision.
3. Mr. Bankim Chandra Dutt appearing for the petitioner contends that the ex parte judgment in T. S. No. 529 of 1976 does not speak of the ground for eviction and therefore the decree is patently void.
4. Section 13(1) of the West Bengal Premises Tenancy Act reads as -
"Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any Court in favour of the landlord against a tenant except on one or more of the following grounds, namely:-
(a)....."etc. Mr. Dutt contends that it is not manifest in the judgment that the Court granted a decree on any of the grounds enumerated in Section 13(1) of the Act.
5. The relevant part of the judgment may be quoted:
The case is taken up for ex parte hearing P.W. 1 Aparna Guha is examined and discharged .....This is a suit for ejectment, recovery of khas possession and mesne profits.
6. The plaintiffs case in short is this that the plaintiffs are the owners of the suit premises. The defendant was a tenant who defaulted in the payment of rents.....
Decision with reasons In this case P.W. 1 Aparna Guha examined him by himself and for other plaintiffs and produces some documents.
Considering the entire facts, evidence and documents on record and in the absence of any c6ntrary evidence I am of that opinion that the plaintiffs prove their case and they are entitled to get a decree as prayed.
Court-fees paid are correct. Hence.
Ordered That the suit is decreed ex parte with costs....
7. Mr. Saktinath Mukherjee appearing for the opposite parties in his fairness concedes that a decree dehors one or more of the grounds for eviction as enumerated in Section 13(1) of the Act is undoubtedly void. According to him, manifestation of the ground in the judgment is not necessary. It will suffice if there are materials on record to substantiate the ground and the Court was satisfied that the ground existed. In short, two elements, viz. (1) materials on record, (2) satisfaction of Court are necessary. It is urged that there is evidence on record with respect to the ground which satisfied the Court to grant the decree.
8. The Court examined Aparna Guha. She says in the box "The defendant was our tenant at a rental of Rs. 300/ - payable according to English Calendar month. The defendant defaulted in the payment of rent. Feb. 1976
9. So the plaint allegation of default in payment of rent since February, 1976 finds support in the testimony of a witness. This is a material on record which satisfied the Court, according to Mr. Mukherjee, to award the ex parte decree.
10. Whether a compromise decree or an ex parte decree, whether a decree in invitum or with consent of parties dehors the ground for eviction is void is no more res integra. In the earliest decision in Bahadur Singh v. Muni Subrat Das, (1969) 2 SCR 432 Supreme Court did not uphold a decree for eviction in terms of an award since the decree was dehors one or more grounds for eviction. As a matter of fact in Kaushalya Devi v. K. L. Bansal, , Ferozi Lal Jain v. Man Mal, the question came up for consideration as to whether a bare compromise decree dehors the ground for eviction was void. In the former the Court found that there was no admission of the ground for eviction by the tenant. In the latter case Court found that in recording compromise and granting a decree the Court did not apply its mind to determine whether the plaint allegation of subletting was correct. These decisions laid down that where a statute bars the jurisdiction of a Court to pass a decree for eviction except on the existence of one or more of the grounds provided by the statute and on the Court's satisfaction as to such existence no decree could be passed either in invitum or with consent of parties dehors the grounds for eviction. The principle equally applies in an ex parte decree.
11. In the three cases cited above it did not fall for consideration whether absence of a positive finding as to the existence of ground of eviction despite other material on record substantiating the ground would render a decree for eviction void.
12. This question came up for consideration before Anil Kumar Sen and Bhabesh Chandra Chakravarti, JJ. in Biswa Bhusan Bose v. Kusum Agarwalla, 1981 (1) CLJ 1. This suit ended in an ex parte decree. In a proceeding under Section 17(2} of the Act the Court found the default of the tenant. Court did not record a finding as to the ground for eviction in the judgment. The learned Judges opined that it is the existence of such a ground and the satisfaction of the Court as to such existence which confer jurisdiction on the Court to pass a decree and the jurisdiction is not dependent on recording such satisfaction in the decree itself. They observed further that the existence of a ground or the expression of satisfaction regarding thereto on the face of the decree was not necessary.
13. In coming to the conclusion the learned Judges very much relied upon an observation of the Supreme Court in Nagindas Ram-das v. Dalpatram Ichharama, . The Judges of the Supreme Court observed "from a conspectus of the cases cited at the bar, the principle that emerges is, that if at 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 appropriately 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."
(underlines are mine)
14. The Division Bench also referred to the decision of the Supreme Court in K. K. Ghari v. R. N. Seshadri, and observed "the Supreme Court expressly observed that the satisfaction of the Court, which is no doubt a pre-requisite for the order of eviction, need not be by the manifestation borne out by a judicial finding. Executing Court for determining such a question can go behind the decree and look into the pleadings and the proceedings before the Court to find out whether such a ground existed when the decree was passed."
(underlines are mine)
15. In similar terms those two learned Judges reiterated their earlier views in Sushil Chandra Sur v. Bandana Bakshi, . It was held that no positive and affirmative finding that there existed a ground jor eviction is neces-sary. What is required is that the Court was satisfied about the existence of the ground. Satisfaction of Court need not necessarily be manifested by a positive judicial finding. If there arc intrinsic materials on record to justify an inference that the Court applied its mind it would be sufficient to confer jurisdiction on Court to pass a decree.
(Underlines are mine)
16. The decisions subscribe the submission of Mr. Mukherjee that the decree shall not be void on account of absence of a finding of a ground for eviction if there is evidence to support the judgment and decree. As a matter of fact a party cannot suffer on account of the lapse of the Court. A party cannot be wronged for an act or omission of the Court. If a party proves a case it is the duty of the Court to grant relief. The Court cannot afford to be unmindful to the ground of eviction duly proved in evidence. So an absence of judicial finding in spite of evidence to substantiate the ground of evidence cannot render a decree void.
17. Mr. Dutt relied upon two single Bench decisions, one of Patna and the other of Calcutta, to argue that, absence of a judicial finding reduces the decree to a nullity. But none of the two decisions noticed the Supreme Court cases nor the Division Bench decisions of this Court.
18. In Dineswar Prasad Bakshi v. Para-meswar Prasad Sinha, an ex parte decree for eviction was found to be void on account of an absence of a finding as to the ground of eviction. But it does not appear from the judgment as to whether there were other materials to support the judgment. So this decision has no application in our case. In the instant case there is evidence to support the judgment. If the Court still holds that the judgment would be void it shall be a decision contrary to the long line of decisions discussed above.
19. Single Bench decision of the Calcutta High Court in Nandini Bala Dassi v. Bibhuti Bhusan Mukherji, 1987 (1) Cal LJ 57 of course supports the contention of Mr. Dutt. It has been laid down that absence of a finding as to be ground of eviction despite existence of evidence in that behalf will render the decree void. In arriving at the conclusion reliance has been placed upon another single Bench decision in Siba Pada Roychowdhury v. Sudhanosu Kumar Sen, . But the distinguishing feature in this case was not brought to the notice of the learned Judge. During the pendency of second appeal from a decree for eviction on the ground of reasonable requirement of landlord's for own use and occupation the West Bengal Premises Tenancy (Second Amendment) Act, XXXIV of 1969 came in operation. The amendment was made applicable to all pending proceeding. So the landlord was now required to prove that he was not in possession of any reasonably suitable accommodation as required by the Amending Act which amended Section 13(1)(f) and brought into existence Section 13(1)(ff) of the Act. The plaint was neither amended nor evidence was led to prove that the landlord was not in possession of any reasonable suitable alternative accommodation as required under Section 13(1)(ff) of the Act. In such circumstances the decree was held to be void. Furthermore, the parties did not place before the learned Judge the Supreme Court cases and the Division Bench decisions of this Court referred to above which entertain a contrary opinion. So these two cases do not come to the rescue of the petitioner. With deep respect to the learned Judges I am unable to agree with the two single Bench decisions relied upon by Mr. Dutt.
20. In view of the reasonings above the ex parte decree is found to be valid and it is executable. The executing Court will expedi-tiously dispose of the execution case.
21. The application fails.
22. Let a copy of the order go down to the District Judge, 24 Parganas and Munsif, 3rd Court, Alipore forthwith.
23. Application dismissed.