Punjab-Haryana High Court
Om Parkash vs Shri Ram Parkash on 1 February, 1993
Equivalent citations: (1993)103PLR674
Author: Ashok Bhan
Bench: Ashok Bhan
JUDGMENT Ashok Bhan, J.
1. This revision petition has been filed by the landlord-Decree holder (hereinafter referred to as the Decree-holder) which arises from the following facts:-
2. Petitioner filed an ejectment application under Section 13 of the East Punjab Urban Rent Restriction Act (hereinafter referred to as the Act) for eviction of the tenant-Judgment-debtor (hereinafter referred to as the Judgment debtor) from the premises in dispute on various grounds i.e. change of user, material structural changes affected without consent of the petitioner, causing material impairment to the value and utility of the building, non-payment of rent for four years and personal occupation as he needed to settle down at Garhshankar to start his medical practice. This petition was filed on September 27, 1975. During the pendency of the ejectment application, petitioner-Decree holder filed an application for appointment of a Local Commissioner to inspect the site in dispute and to see as to whether there was change of user of the building and whether there were any structural changes brought about by the tenant-Judgment debtor. Shri Shadi Lal, Advocate was appointed as Local Commissioner who submitted his report on 1-12-1979.
3. That after the filing of the written statement, a compromise was entered into between the decree bolder and the judgment-debtor. The copy of compromise deed was exhibit as DH/1. According to the terms of the compromise, it was required that Chobara and one of the rooms had been vacated by the Judgment-debtor and possession given to the Decree-holder. In place of one room of the shop which was vacated, another room was given to the Judgment-debtor by the Decree-holder. The shop consisted of two rooms. As a result of compromise, one room of shop which was part of the original tenancy, remained with Judgment debtor and in place of other one, a new room was given. Judgment-debtor delivered possession of Chobara to the Decree holder at the time of passing of decree. Judgment-debtor was permitted to remain in possession for two years more under this arrangement. It was further agreed that the door which was in existence and connected various rooms, was to continue for the period of two years. Decree-holder was to enter possession of the vacated portion within three months There was a stipulation in the compromise that he could not let out any portion of the building during the period of two years Judgment-debtor was required to vacate the possession of two rooms after two years failing which Decree holder could get possession by execution. Acting on this compromise, Rent Controller on 14-6-1976, passed the following order:-
"In view of the statements above, order be and is passed in terms of compromise Exhibit A-l. Decree sheet be drawn accordingly."
Judgment debtor did not vacate the premises and the Decree holder filed execution proceedings on the basis of the compromise-decree dated 14-6 1976. Judgment-debtor filed one set of objections but thereafter filed another set of objections claiming therein that the Decree-holder was not entitled to get possession under the said orders because it covered the premises which were not subject matter of the proceedings and orders for ejectment were passed by the Courts without satisfying itself that any ground for ejectment mentioned in the petition in accordance with the statutory provisions of the Act existed or not. The order was stated to be a nullity which could not be enforced through execution by a Court of law. On the objection petition, the following issues were framed:-
1. Whether the decree in question is nullity and is non-executable as alleged ?
2. Whether second objection petition is maintainable ?
3. Relief.
Relying upon Ferozi Lal Jaia v. Man Mal, A.I.R. 1970 S.C. 749, the executing Court held that nothing was mentioned in the compromise-deed from which it could possibly be found that any ground of ejectment really existed under the Act and the same was considered to be established by the executing Court. It was further held that the order of the Rent Controller was too brief and did not even say that ejectment order was being passed. It was concluded that in such a situation, it must be held that the Rent Controller did not apply his mind at the time of passing of the impugned order regarding the existence or otherwise of any ground of ejectment and, therefore, order of ejectment was a nullity which could not be enforced through the agency of Court by executing the order of ejectment passed in favour of the Decree-holder.
4. Under issues No. 2, it was held that second objection petition was maintainable, especially when the question of nullity of the decree was involved and the same could be taken up at any stage. As a result of the findings recorded by the executing Court, the objection petition was allowed and the order of the Rent Controller ordering ejectment of the respondent was held to be a nullity which could not be executed. Execution application was ordered to be dismissed. Aggrieved against the order of dismissal of the execution application, the Decree holder has filed the present revision petition.
5. I have heard the learned counsel for the parties at length. Counsel appearing for the respondent relied upon Ferozi Lal's case (supra), in which case it was held as under:-
"From this provision, it is clear that after the Rent Control Act came into force, a decree for recovery of possession can be passed by any Court only if that court is satisfied that one or more of the grounds mentioned in Section 13(1) are established. Without such a satisfaction, the Court is incompetent to pass a decree for possession In other words, the jurisdiction of the Court to pass a decree for recovery of possession of any premises depends upon satisfaction that one or more of the grounds mentioned in Section 13(1) have been proved.
From the facts mentioned earlier, it is seen that at no stage the court was called upon to apply its mind to the questions whether the alleged sub letting is true or not. Order made by it does not show that it was satisfied that the sub-letting complained of has taken place nor is there any other material on record to show that it was so satisfied. It is clear from the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the court was not competent to pass the impugned decree. Hence the decree under execution must be held to be a nullity."
On the basis of this authority, learned counsel for the respondent argued that this revision petition be dismissed as in this case also the Rent Controller acted solely on the basis of the compromise arrived at between the parties and did not apply his mind regarding the existence of any ground for ejectment of the tenant from the premises in dispute and, therefore, order of ejectment passed on the basis of compromise was a nullity which could not be enforced by executing the order of ejectment passed against the Judgment-debtor. As against this, counsel for the petitioner argued that the tenant having expressly or impliedly suffered a decree passed on the basis of a lawful compromise entered into between the parties under Order 23 rule 3 C.P.C. and the compromise being intrinsic evidence in itself and the other facts which were there on the record, indicate that the grounds for eviction existed and the decree passed on its basis was not nullity and being in accordance with the Act and not against the provisions of the Act and, was enforceable. It was further argued that the rigour of the law laid down by their Lordships in Ferozi Lal's case (supra) was watered down in the subsequent judgment of the Supreme Court by co-equal Benches in which Ferozi Lal's case was also referred to. Reliance was placed upon Nagindas Ramdas v. Dalpatram Iccharam alias Brijram, A.I.R. 1974 S.C. 471; Roshan Lal v. Madan Lal, A.I.R. 1975 S.C. 2130; and, Suleman Noormohamed etc. etc. v. Umarbhai Janubhai, A.I.R. 1978 S.C. 952. I have considered this argument of the counsel for the petitioner-Decree holder. In Nagindas Ramdas's case (supra), it was held-
"that the Rent Controller under the Act is not competent to pass a decree for possession either in invitum or with the consent of the parties on a ground which is de hors the Act or ultra vires the Act. ,\ prohibitory mandate to the Rent Court that it shall not travel beyond the statutory grounds mentioned in Sections 12 and 13, and to the parties that they shall not contract out of those statutory grounds is inherent in the public policy built into the statute."
But it was further held that the consent decree for possession passed by the Court is not necessarily a nullity. Whether it is enforceable decree or not can be gathered from various circumstances which were summed up by their Lordships' in para 26 of the judgment, which reads as follows:-
"From a conspectus of the cases cited at the bar, the principle that emerges is, 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 statutory ground for eviction, it will be presumed that the court was so satisfied and the decree for eviction 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. Admissions, if true and clear are by far best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act made by the parties or their agents at or before the hearing of the case, stand on a higher footing then evidentiary admissions The former class of admissions are fully binding on the parties that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves not conclusive. They can be shown to be wrong"
In para 29 of this judgment, it was further observed as under:-
"Be that as it may, in cases where an objection as to the non executability of the decree ion the ground of its being a nullity, is taken, the executing Court is not competent to go behind the decree, if the decree on the face of it, discloses some material on the basis of which, the Rent Court could be satisfied with regard to the existence of a statutory ground for existence. In such a case, it must accept and execute the decree, as it stands. If, on the face of it the decree does not show the existence of such material or jurisdictional facts, the executing Court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial Court's jurisdiction to pass the decree it did. The moment it finds that prima facie such material existed, its task is to go further and question the presumed or express finding of the trial court on the basis of that material. All that it has to see is whether there was some material on the basis of which the Rent Court could have-as distinguished from must have-been satisfied as to the statutory grounds for eviction To allow the executing Court to go beyond that limit would be exalt it to the status of super-court sitting in appeal over the decision of the Rent Court. Since in the instant case, there was a clear admission in the compromise incorporated in the decree, of the fundamental facts, that could constitute a ground for eviction under Section 12(3) (a) the Executing Court was not competent to go behind the decree and question its validity."
In Roshan Lal's case (supra), it was held that provisions of Order 23 Rule 3 C.P.C. are applicable to eviction suits governed by special statutes. In this judgment, it was held that parties can choose to enter into a compromise due to any reason and the tenant can suffer a decree for eviction, so as to avoid the risk of protracted litigation and expenses and the Court can pass a decree on the basis of the compromise, but the apex Court cautioned that-
"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 implied is agreeing to suffer a decree for eviction because the landlord in the circumstances is entitled to have such a decree under the law."
It was held that while recording the compromise under Order 23 Rule 3 C.P.C., it is necessary for the Court to say in express terms in the order that the compromise was a lawful one, by considering it in the context of the pleadings and other materials in the case. It will be presumed to have been done so unless contrary is shown. Thereafter, their Lordships held on the facts of that case that there was abundant intrinsic material in the compromise itself to indicate that the decree passed was lawful and was in accordance with the plaint, and was not a nullity. From the perusal of the aforementioned judgments, it can be deduced that a decree on the basis of compromise entered under Order 23 Rule 3 C.P J ejectment can be ordered in eviction suits governed by special statutes That even if nothing is mentioned in the compromise decree, but if the Court is satisfied from some material before it on the basis of which the Court could prima facie be satisfied about the existence of a statutory ground of eviction it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of compromise would be valid In the light of these observations, it has to be seen as to whether the Rent Controller was satisfied regarding the existence of any of the grounds for ejectment mentioned in the statute which was made the basis of ejectment order. The eviction application was filed on various grounds i e. change of user impairing the value and utility of the building, non payment of rent, personal necessity and material structural changes without the consent of the petitioner A Local Commissioner had also been appointed who has given his report. This report had not been exhibited as no evidence had been led by the parties. At this stage, compromise was entered into between the parties and acting on that compromise, judgment debtor vacated a Chobara and one of the rooms and delivered the possession of the same be the decree holders In place of one of the rooms of the shop which was vacated, another room was given by the judgment debtor to the decree holder. Thus, out of two rooms, which were under tenancy, one room was vacated by the judgment debtor and possession delivered to the decree holder and in lieu thereof, the judgment debtor got another room. Report of the Local Commissioner clearly indicates that material changes had been affected by the tenant in the building which could have resulted in his eviction from the premises in dispute. Judgment-debtor vacated a part of the premises at the time of the compromise and exchanged one room with that of the decree-holder and agreed to vacate the premises after a period of two years. The very fact that the tenant agreed to vacate a part of the premises immediately indicates that there were impelling reasons for the tenant to enter into a compromise, to avoid protracted litigation and heavy expenses. Although in the compromise or in the order passed, no mention is made of the existence of any of the statutory grounds on which the eviction could be ordered but the same can be gathered from the surrounding circumstances. Judgment-debtor gained a period of two years under the compromise in the year 1976 and has been able to retain the possession for the last 16 years more due to delay in disposal of cases at various stages which have perhaps become inevitable in our system of dispensation of justice.
6. In my view, order of ejectment passed on the basis of compromise was not a nullity as there was material on the record by way of pleadings of the parties, the report of the Local Commissioner, the conduct of the parties which could have satisfied the Rent Controller with regard to the existence of statutory grounds for eviction. In my view the decree under execution for ejectment is not a nullity and has got to be executed by the executing Court without any further delay.
7. Accordingly, the impugned order is set aside, revision petition is allowed, and the executing Court is directed to execute the decree expeditiously as it has already taken more than 16 years for the decree-holder to reap the fruits of his decree. No costs.