Punjab-Haryana High Court
Inderjit Singh vs Randhir Singh on 15 March, 1978
Equivalent citations: AIR 1978 PUNJAB AND HARYANA 260
JUDGMENT
1. The short question that arises for consideration in this appeal by the landlord (decree-holder) is as to whether the decree directing eviction of the tenant (respondent) is a nullity and as such not execute.
2. The facts leading to the present appeal are not in dispute and may be briefly stated in so far as they are relevant.
3. The landlord filed an eviction action against the tenant on the grounds, inter alia, that he (landlord) bona fide required the premises in dispute for his personal use and occupation and that the tenant had materially impaired the utility and value of the premises. The tenant resisted pleas for eviction and contended that the landlord did not bona fide require the premises for his use and denied the other allegations. Issues were framed and before any evidence could be recorded, the tenant made the following statement before the Rent Controller, on 12-5-1971:--
"I state on oath that I will vacate the premises in dispute with no objection at the time of the marriage of the petitioner Inderjit Singh, who is the owner of the house. I am tenant under him at the rate of Rs. 15/-P.M."
On the same day, the Rent Controller passed the following order of eviction in terms of the compromise:--
"The appellant with counsel is present Respondent with counsel is present. I have heard them. In view of the above statement of Randhir Singh respondent and statement of Inderjit Singh petitioner. I pass a decree of ejectment in favour of the petitioner and against the respondent regarding the property in dispute. It is further decided in view of the above statement of the parties that the respondent shall vacate the property in dispute on the day of the marriage of the petitioner. In case of default on the part of the respondent in vacating the property in dispute on the stipulated day, the petitioner shall be entitled in recover the possession of the property in dispute from the respondent by execution after the said appointed day of the marriage of the petitioner."
On 21-5-1974, the landlord filed an application for execution of the order dated 12-5-1971 and this application was contested by the tenant on the grounds that the eviction order passed on the grounds that the eviction order passed on the basis of compromise was a nullity. The Rent Controller vide his order dated 3-9-1975 found that the order of eviction passed on the basis of the compromise was not a nullity and, therefore, executable. Feeling dissatisfied, the tenant went up in appeal. The learned District Judge, Patiala, reversed the order of the Rent Controller with a finding that the compromise in dispute could not be got effected in pursuance of the said compromise decree which was against the mandatory provisions of Section 13(1)(a)(i) of the East Punjab Urban Rent Restriction Act, 1949(hereinafter referred to as the Act). The landlord has now filed this execution second appeal against the order of the learned District Judge.
4. The question before us is whether the order of the Rent Controller can be described as an order under Section 13 of the Act. It is not disputed that the landlord had not pleaded in the eviction application the three grounds envisaged by Section 13(3)(a)(i) of the Act, as to was essential to be pleaded by the ruling of our own High Court in Rajinder Singh Nanda v. Kewal Krishan, reported in 1975 Ren CR 325 : (AIR 1976 Punj and Har 21). Shri Puran Chand, Advocate, appearing for the landlord, has urged that in this case, the order of eviction was passed on the basis of the compromise entered between the parties and the Court was, in fact, satisfied that the grounds mentioned in Section 13(3)(a)(i) of the Act were established in this case. The contention of the tenant is that the compromise between the parties was not based on any of the grounds on which the eviction was sought, and, therefore, the order of the Rent Controller is not sustainable. In my opinion the tenant is right. Section 13 of the Act directs that no tenant shall be evicted except in accordance with the provisions of that section. To evict the tenant the landlord must apply to the Controller for an order in that behalf, and the Controller can make an order directing the tenant to put the landlord in possession only if he is satisfied that one or more of the grounds set out in Section 13 of the Act exist. The Controller can make the order only with reference to those grounds. He has, otherwise, no power to make such an order. The jurisdiction of the Controller is defined by those grounds. It is a limited jurisdiction and if he passes beyond those limits, the order made will be a nullity. If the order of the Controller is a nullity, there is no order in contemplation of the law and, therefore, the tenant cannot be evicted.
5. In Bahadur Singh v. Muni Subrat, 1969 Ren CR 151(SC), the Supreme Court considered the comparable provisions of Section 13(1) of the Delhi and Ajmer Land Control Act, 1952 and held that a decree directing the tenant to deliver possession on the basis of an award, which was not made on the basis of a statutory ground of eviction, was a nullity and could not be enforced in execution. In taking that view, the Supreme Court referred to peachey Property Corpn. V. Robinson. (1966) 2 All ER 981. The decision in Bahadur Singh's case (supra) was followed by the Supreme Court in Smt. Kaushalya Devi v. K. L. Bansal, AIR 1970 SC 838 and Ferozi Lal Jain v. Man Mal, AIR 1970 SC 794. On the other side of the line is K. K. Chari v. R. M. Seshadri, AIR 1973 SC 1311. The landlord applied for the eviction of the tenant on a number of statutory grounds. The tenant contested the application and disputed the validity of the grounds. When the matter was tried, the landlord filed a number of documents in support of the grounds taken by him. Thereafter the parties entered into a compromise, under which the tenant withdrew his defence and submitted to a decree for eviction unconditionally. It was agreed under the compromise that the tenant would vacate the premises about two months later and hand over possession to the landlord. The Supreme Court held that the decree for eviction was not a nullity. The Supreme Court referred to the circumstances in which the compromise was arrived at between the parties. It noticed that originally the tenant had denied the claim of the landlord that he required the building bona fide for his own occupation, but when the landlord gave evidence in support of his claim, the tenant did not cross--examine the landlord and on the contrary entered into a compromise withdrawing his defence and submitted to a decree for eviction unconditionally. The Supreme Court pointed out that the conduct of the tenant indicated that he accepted as true the claim of the landlord that the premises were required bona fide by him for his own occupation. It was observed (at p. 1321 of AIR):--
"He has accepted the position that the landlord had made out the statutory requirement entitling him to ask for possession of the premises. It is this unconditional withdrawal of the defence regarding the statutory condition pleaded by the landlord, and the compromise following it, that was accepted by the Court and a decree for eviction passed thereon."
And then follows the statement of law:--
The true position appears to be that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact, viz., the existence of one or more of the conditions mentioned in Section 10 were shown to have existed when the Court made the order. 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. If at some stage, the Court was called upon to apply its mind to the question and there was sufficient material before it, before the parties invited it to pass an order in terms of their agreement, it is possible to postulate that the Court was satisfied about the grounds, on which the order of eviction was based.
It is no doubt true that before making an order for possession, the Court is under a duty to satisfy itself as to the truth of the landlord's claim if there is a dispute between the landlord and tenant. But if the tenant in fact admits that the landlord is entitled to possession on one or other of the statutory grounds mentioned in the Act, it is open to the Court to act on the admission and make an order for possession in favour of the landlord without further enquiry."
This decision was followed by the Supreme Court in Nagindas Ramdas v. Dalpatram Ichharam, AIR 1974 SC 471 and in Roshan Lal v. Mandan Lal, AIR 1975 SC 2130, where the earlier cases on the point have been noticed. The principle of law laid down in the aforesaid authorities is that on the basis of evidence produced by the parties, if ground exist then even if same are not mentioned in the order of the Rent Controller, the eviction order can be passed on the statements made by the parties.
6. In the case before me, after the application for eviction was filed by the landlord and issues were framed by the Rent Controller, the parties entered into a compromise. No evidence had been led yet on those issues. The stage had not been reached for the Rent Controller to apply his mind to the question whether the grounds alleged by the landlord were satisfied. Before anything more could be done, the parties entered into a compromise. The terms of the compromise do not indicate that the tenant accepted as valid any of the grounds set out by the landlord. In the circumstances, when the Rent Controller made an order for eviction, it was not made by him with any of the statutory grounds in mind. In the result, his order is a nullity. The case before me is one which falls in the category to which Bahadur Singh's case (1969 Ren CR 151 SC)(supra). Smt. Kaushalya Devi's case (AIR 1970 SC 838)(supra) and Ferozi Lal Jain's case (AIR 1970 SC 794)(supra), belong. Accordingly, as the order is a nullity it is not an order under the Act, and, therefore, not an order covered by Section 15(4). it is open to the tenant to question it in a Court of law.
7. It is casually urged on behalf of the landlord that inasmuch as the tenant was a party to the compromise, he is estopped from challenging the validity of the order made by the Rent Controller on the basis of that compromise. Now, in order to raise the plea of Estoppel, the facts on which it is based must be pleaded. It has been said that Estoppel is eminently a matter of pleadings. If not set up in the pleadings or issues, it cannot be availed of. See Pappammal v. Alamelu AIR 1929 Mad 467 and Govindbhai v. Dahyabhai, AIR 1937 Bom 326. The point was not taken before the learned District Judge. It would not be appropriate to permit the point to be raised here.
8. As it has already been seen above that the decree in the case in hand as well did not indicate that any of the statutory grounds mentioned in Section 13 of the Act existed, it has got to be held that the decree was a nullity. The execution, therefore, could not proceed. The lower appellate Court has taken a correct view of the law and this appeal must fail. It is accordingly dismissed. I, however, leave the parties to bear their own costs.
9. Appeal dismissed.