Jammu & Kashmir High Court
Mulkh Raj vs Sushil Kumar on 12 July, 2004
Equivalent citations: AIR2005J&K58, 2005(1)JKJ280, AIR 2005 JAMMU AND KASHMIR 58
Author: Permod Kohli
Bench: Permod Kohli
JUDGMENT Permod Kohli, J.
1. These two Revision Petitions arise out of an execution petition pending before the Sub Judge, Rajouri in respect to execution of a compromise decree. In a suit for eviction filed by the respondent/ decree-holder a compromise decree dated 3-11-1986 came to be passed. The decree reads as under:-
"It is ordered that a compromise decree in terms of the Compromise deed in favour of the plaintiff and against the defendant is passed. Parties shall bear their respective costs."
The terms of the Compromise entered into between the parties are as under:
"(1) I, defendant admit the suit of the plaintiff, who is owner of the shop on the ground of building and re-building;
(2) Defendant will hand over the possession of the shop to the plaintiff within 15 days from today. Plaintiff will re-construct the Pucca shop within four months and hand over the same to the defendant. Plaintiff will construct the walls with bricks instead of stones and if any space in width is available, the plaintiff shall be entitled to exclude the same in his other shops and the defendant will have no objection for the same.
(3) From the date the shop will be handed over to the defendant, he will be liable to pay the rent at the rate of Rs. 100/ per month to the plaintiff;
(4) The defendant will not be entitled to sub-let the shop in any manner or enter into partnership. Defendant will also not be entitled to allow any other person to sit in the shop except his son. If indefinite the defendant will commit default in the payment of three instalments of rent he will be liable for eviction from the shop on the basis of this compromise deed.
(5) There is a balance rent payable upto 31-10-1986 amounting to Rs. 1920/ which the defendant will be bound to pay within one month from the date of compromise and if he fails he shall be liable for eviction;
(6) If any of the parties fail to comply the compromise deed, the concerned parties shall be entitled to enforce its terms through the Court, meaning thereby he will be entitled to execute the decree through Court;
(7) Parties will bear their respective costs. If the plaintiff fail to re-construct the shop within four months in such an eventuality the defendant shall be entitled to construct the shop at his own expenses and pay the arrears of rent.
(8) All applications pending between the parties the same shall be withdrawn today;
(9) Parties have no objection in passing of the decree in accordance with the terms of the compromise deed.
It is therefore, prayed that the decree in terms of the compromise deed be passed.
Dt: 3-11-1986:"
2. It appears that Sushil Kumar filed execution Petition No. 23 seeking compensation from the decree holder and a direction to construct the suit shop at his own expenses. Plaintiff/decree-holder appeared and agreed to construct the shop at his own expenses and the execution application came to be dismissed. This clearly establishes that the shop was not constructed within four months by the plaintiff/ decree holder.
Plaintiff/ decree-holder instituted the present execution petition on 9-3-1992 for seeking eviction of the defendant/judgment debtor on the ground of default in the payment of rent under the terms of the compromise decree. During the pendency of the execution petition, the executing Court passed order dated 18-9-1992 which reads as under:
3. Vide the afore-said order the decree holder was asked to lead evidence to establish defaults under the decree. Judgment-debtor/present petitioner filed a revision Petition No. 197/98 against the afore-said order before this Court which was decided vide judgment dated 7-7-1999 holding that the order passed is not a case decided and no revision is maintainable. After the afore-said order the judgment debtor raised the objection regarding the executability of the decree. This objection prevailed with the Executing Court and resultantly the execution petition came to be dismissed vide order dated 29-9-1999. This order again became subject matter of revision in Civil Revision No. 160/99 which was decided by this Court vide judgment dated 12-4-2001. This Court set aside the order of the executing Court and directed to proceed ahead with the execution petition in accordance with law. The executing Court consequently passed the impugned order dated 4-12-2003. From the impugned order it appears that after the remand of the case the executing Court was confronted with the plea of the defendant/judgment debtor that the defaults are required to be proved in accordance with the provisions of the Jammu and Kashmir Houses and Shops Rent Control Act and that the rent of the shop is being deposited before the Court. The judgment debtor also produced receipts of deposit of the rent before the Court. The executing Court after hearing the parties vide the impugned order has held that the rent deposited with the court is not in accordance with the terms of the compromise deed and the plaintiff is not required to adopt the procedure prescribed under the J&K Houses and Shops Rent Control Act, the issue having been decided by the High Court in Civil Revision No. 160/99. The decree holder has accordingly preferred the present revision petition against the findings of the executing court and the order of issuance of warrant of delivery of possession.
4. During the pendency of this revision this Court summoned the record vide its interim order dated 24-12-2003. In view of the order of summoning of the record, the executing Court passed order dated 27-12-2003 whereby the warrant for delivery of possession have been re-called. The plaintiff/decree holder has also preferred a separate revision against order dated 27-12-2003. This revision petition is also being disposed of by this order.
5. Learned counsel for the petitioner/judgment debtor stated that the order passed by the executing court is contrary to law as the defaults envisaged for purposes of eviction are defaults as prescribed under Section 11 of the J&K Houses and Shops rent Control Act and without determining whether the defaults envisaged by law have been committed by the judgment-debtor the executing Court was not competent to issue the warrant for delivery of possession. He has further impressed upon the Court to set aside the findings of the executing court wherein the deposit of rent before the court by the judgment debtor/ defendant has been declared to be contrary to terms of the compromise and consequently the petitioner has been declared as a defaulter under the terms of the decree.
6. Mr. B D Nayyar, learned counsel appearing for the decree holder has also referred to judgment of this Court dated 24-3-2001 and according to the learned counsel the issue of executability of the decree having been decided in revision petition No. 160 of 1999 the same cannot be re-agitated in this revision petition. He has justified the order of the executing court. It is also argued on behalf of the decree holder that the deposit before the Court was not a valid deposit as the rent was required to be paid to the decree holder. The deposit being not valid cannot be termed as the payment of rent to the landlord. He has further submitted that the defendant paid the rent @ Rs. 20/- PM only, whereas under the decree he was required to pay the rent at the rate of Rs. 100/- per month.
7. I have heard the learned counsel for the parties and perused the record of the executing court summoned.
8. Two questions require consideration in the matter, one related to the executability of the decree and another payment/ deposit of the rent and consequently the commission of the alleged defaults in the payment of rent.
9. As far the first question is concerned after coming into force of the Jammu and Kashmir Houses and Shops Rent Control Act, eviction of a tenant can be sought only in accordance with Provio I to Section 11. The Jammu and Kashmir Houses and Shops Rent Control Act is a special statute and over- rides all other Laws. Section 11 which grants protection to a tenant against eviction starts with the non-abstante clause giving over riding effect to this section on all other laws. The default envisaged under Section 11 (i) read with Section 12 could be the only ground for eviction. For the purposes of convenience, the relevant extracts from Section 11 is taken note of:
"11. Protection of a tenant against eviction -- (1) Notwithstanding anything to the contrary in any other Act or law, no order of decree for the recovery of possession of any house or shop shall be made by any Court in favour of the landlord against a tenant, including a tenant whose lease has expired.
Provided that nothing in this sub-section shall apply to any suit for decree for such recovery of possession.
X x x x x X x x x x x x x x
(i) subject to the provisions of Section 12, where the amount of two months rent legally payable by the tenant and due from him is in arrears by not having been paid within the time fixed by contract, or in the absence of such contract by the fifteenth day of the month next following that for which the rent is payable or by not having been validly deposited in accordance with Section 14.
Provided that no such amount shall be deemed to be in arrears unless the landlord on the rent becoming due serves a notice in writing through Post Office under a registered cover on the tenant to pay or deposit the arrears within a period of thirty days from the date of the receipt of such notice and the tenant fails to pay or deposit the said arrears within the specified period."
12. When a tenant can get the benefit of protection against eviction:-- (If in a suit for recovery of possession of any house or shop from the tenant the landlord would not get a decree for possession but for Clause (i) of the proviso to Sub-section (1) of Section 11, the Court shall determine the amount of rent legally payable by the tenant and which is in arrears taking into consideration any order made under Sub-section (4) and effect thereof upto the date of the order mentioned hereafter, as also the amount of interest on such arrears of rent calculated at the rate of nine and three eights per centum per annum from the day when the rents became arrears upto such date, together with the amount of such cost of the suit as if fairly allowable to the plaintiff-landlord, and shall make an order on the tenant for paying the aggregate of the amounts (specifying in the order such aggregate sum on or before a date fixed in the order.
(2) x x x x x x x (3) x x x x x x x x (4) x x x x x x x (5) x x x x x x x"
10. It is admitted position that the suit in which compromise decree came to be passed i.e. File No. 33/11 Civil had been filed by the respondents/ landlords only on the ground of building and re-building. Defaults in payment of rent was not an issue at all in the said suit. Since the suit was not based upon the ground of default and thus there was no question of holding the petitioner/ tenant guilty of non-payment of rent in accordance with the procedure prescribed under Section 11 of the Rent Control Act. The nature of compromise entered into between the parties is such that it gives a right to the landlord to evict the tenant through the execution of the compromise decree in future when-ever the tenant commits defaults in the payment of rent of three defaults. The rent is payable monthly and therefore, three defaults means three months rent. Such a stipulation not only clearly contravenes the proviso to Section 11(1) (i) and Section 12 of the Act but also against the provisions of Contract Act.
An earlier attempt by the petitioner herein to challenge the executability of the decree failed before this Court in Civil Revision No. 160/99 decided on 12-4-2001.
11. I have carefully gone through the afore-said judgment. The only point canvassed before this Court in the earlier revision was that a notice of default was required to be issued before execution of the decree. This Court declined to accept this argument and relying upon a judgment of this Court reported as AIR 1.974 J&K 87 allowed the revision petition and set aside the order of the executing Court holding the decree to be in-executable and directed the executing court to proceed in the execution petition in accordance with law. The executing Court vide the impugned judgment has proceeded to execute the decree and declined the prayer of the petitioner for dismissal of the execution petition being contrary to the provisions of the J&K Houses and Shops Rent Control Act on the only ground that the High Court has rejected such a contention while deciding the revision petition No. 160/99.
This Court while deciding the afore-said revision petition relied upon the observations made in the Full Bench case Jagdish Kumar and Ors. v. Harcharan Singh, AIR 1974 J&K 87 which are to the following effect:
"In case of a compromise, it is the compromise deed which is executable and it is not necessary for the Court to go back to ask the decree holder to resort the proceedings of the suit by issuance of fresh notice."
12. In the case before the Full Bench the issue was where a ground for eviction as prescribed under provision to Section 11 has been specifically pleaded and there is material on record to establish that ground, a compromise entered into between the parties in respect to the eviction of the suit premises on the ground so pleaded and established was held to be valid in law. Relevant observations and ratio of the judgment of Full Bench be noticed :-
Observations:
"I am of the view that if at the time of the passing of the decree, there is some material before the Court in the form of admission of the defendant or in the shape of evidence recorded or produced in the case or other dependable material on the basis of which the court could be prima facie satisfied about the existence of a statutory ground for eviction of the defendant, it will be presumed that the Court was so satisfied and decree for eviction apparently passed on the basis of compromise will be valid.
In the instant case the appellants had asked for a decree for eviction on a ground which was permissible under the provisions of the Jammu and Kashmir Houses and Shops Rent Control Act, they had also led evidence in support of their plea and the contesting respondent had also adduced some evidence in rebuttal, a stage had also been reached for the Court to apply its mind regarding the existence of the relevant statutory condition, but realizing that the appellants had succeeded in making out a case for his eviction the contesting respondents had made a statement on solemn affirmation clearly admitting therein that he was satisfied that the landlords required the premises for their own occupation and obtained three and a half years time to vacate the premises. The provisions of Order 23 Rule 3 of the Code of Civil Procedure which are not excluded from applicability to suits for eviction under the Jammu and Kashmir Houses and Shops Rent Control Act also made it obligatory for the Court to pass a decree in terms of the compromise which was not unlawful. In the circumstances the satisfaction of the Court about the existence of the statutory grounds on the basis of which the landlords could have obtained a decree for eviction can be easily inferred."
RATIO "Keeping in view the preponderance of judicial opinion referred to above, I have no manner of doubt that in a suit for eviction of a tenant by a landlord on any of the grounds mentioned in the proviso to Section 11(1) of the Jammu and Kashmir Houses and Shops Rent Control Act, if the tenant admits the existence of the ground pleaded by the landlord it becomes un-necessary for the Court to determine judicially that the said ground exists nor is the decree passed on the basis of that admission, rendered void."
13. With great respect, the facts of the present case and the Full Bench case, are different. In the instant case there was no ground of eviction of the tenant on the basis of default in payment of rent. There were neither pleadings nor any material on this question. Hence, any agreement/ compromise between the parties for eviction of the tenant on the ground of default (which did not exist in the pleadings/material) can be said to be based upon the pleadings and material on record.
14. So far as the provisions of Section 11 are concerned the eviction of a tenant can be sought if tenant commits three consecutive defaults of two months each and a notice of demand is served after the first default asking the tenant to pay the arrears of rent within 30 days and on failure of the tenant to pay the rent and commission of two subsequent defaults after notice can alone be a ground for eviction. The Legislative intent is clear and loud. The Act was enacted to provide protection and safe-guards against arbitrary eviction of tenants. The provisions of the Act cannot be rendered otiose merely because the parties have entered into an agreement. A compromise is an act of the parties and is Governed and regulated by the provisions of Order 23 of Code of Civil Procedure. Order 23 (3) is reproduced hereunder:
"Compromise of suit -- Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise (in writing and signed by the parties) or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass a decree in accordance therewith [so far it relates to the parties to the suit whether or not the subject matter of the agreement compromise or satisfaction is the same as the subject matter of the suit] Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question, but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.
Explanation -- An agreement or compromise which is void or voidable under the Contract Act, Svt, 1977 shall not be deemed to be lawful within the meaning of this rule."
15. Order 23 CPC permits the parties to enter into a compromise. Explanation to Rule 3 of Order 23 clearly indicates that the position of a compromise is not better than an agreement. It must meet the requirement of a valid contract. If any, contract is barred by any law, the same is rendered un-enforceable. Section 23 of the Contract Act provides:
"23. What considerations and objects are lawful and what not- The consideration or object of an agreement is lawful, unless-
it is forbidden by law; or is of such a nature that, if permitted it would defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral or opposed to public policy.
In each of these cases the un-consideration or object of an agreement is said to be lawful. Every agreement of which the object or consideration is un-lawful is void."
16. A contract which is prohibited by any law is invalid and un-enforceable. The compromise entered into between the parties is a contract entered into between them and when the same is endorsed by the court it has attained the status of a decree. Nonetheless its basic nature remains that of a contract between the parties and has to be examined on the touch stone of a valid contract. In Case Rubu Sales & Services (P) Ltd (1994) 1 SCC 531 the Apex Court considering the nature of a consent decree held-
"x x x x Merely because an agreement is put in the shape of a consent decree it does not change the contents of the document. It remains an agreement and it is subject to all rights and liabilities which any agreement may suffer. Having a stamp of Court affixed will not change the nature of the document. A compromise decree does not stand on a higher footing than the agreement which preceded it. A consent decree is a mere creature of the agreement on which it is founded and is liable to be set aside on any of the grounds which will invalidate the agreement."
17. The issues relating to executability of the consent decree, particularly in eviction suits governed by specific provisions of law, has been examined by the Apex Court in various judgments. It is relevant to notice some of the judgments on the subject. In case Roshan Lal and Anr. v. Madan Lal and Ors., (1975) 2 SCC 785, the Apex Court observed:-
"5. In order to get a decree or order for eviction against a tenant whose tenancy is governed by any Rent Restriction or Eviction Control Act, the suitor must make out a case for eviction in accordance with the provisions of the Act. When the suit is contested the issue goes to trial. The Court passes a decree for eviction only if it is satisfied on evidence that a ground for passing such a decree in accordance with the requirement of the statute has been established. Even when the trial proceeds ex-parte, this is so. 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."
18. In another case State of Punjab and Ors. v. Amar Singh and Anr., (1974) 2 SCC 70, the Apex Court after noticing some earlier judgments on the subject examined the validity of consent decree passed contrary to the statutory provisions and held-
"x x x In cases where a statute, embodies a public policy and consequently prescribes the presence of some conditions for grant of reliefs, parties cannot bypass the law by the exercised of a consent decree or order and mere judicial imprimatur may not validate such decree or order where the Court or Tribunal is not seen to have applied its mind to the existence of those conditions and reached its affirmative conclusion thereon. Such mindless orders are a nullity but where the stage of the proceedings, the materials on record and/or the recitals in the razi disclose the application of the judicial mind, the order is beyond collateral attack merely on the score that it does not ritualistically write into the judgment what is needed by the statute. The important facet of the law clarified in these decisions is that where high public policy finds expression in socio-economic legislation contractual arrangements between interested individuals sanctified into consent or compromise decree or orders cannot be binding on instrumentalities of the State called upon to enforce the statute, although the tribunals enjoined to enforce the law may take probative note of the recitals in such compromise or consent statements in proof of facts on which their jurisdiction may have to be exercised. Further, if there is no evidence either by way of admissions in consent statements and razis or otherwise on the record, the reliefs sanctioned by the statute cannot be granted and orders or decrees which purport to grant them sans proof of the legal requirements will be a nullity."
19. In another case Kaushalaya Devi v. K.L. Bansal (Supra), (1969) 1 SCC 59. in a suit for eviction filed by the landlord the tenant denied the existence of the grounds in the written statement. However, the parties entered into compromise and the trial Court on the basis of the said compromise passed the following order:-
"In view of the statement of the parties' counsel and the written compromise a decree is passed in favour of the plaintiff and against the defendant."
20. The decree was to be executed after the time stipulated in the compromise. The tenant did not vacate the premises on the expiry of the time mentioned in the decree and filed an application under Section 47 CPC on the ground that the decree is void having been passed in contravention of Section 13 of the Delhi Rent Control Act, The High Court declared the decree as a nullity as the order was passed solely on the basis of the compromise without indicating that any of the statutory grounds mentioned in Section existed. The Apex Court up-held the judgment of the High Court.
21. Yet in another case Suleman Noornmohamed and Ors. v. Umarbhai Janubhai, (1978) 2 SCC 179 also suit was filed on the ground of non-payment of rent and bonafide personal necessity, which was compromised on the basis of which a decree came to be passed against the tenant, who was to hand over the possession within a period of three years. After the expiry of the period stipulated in the consent decree and on the failure of the tenant to hand over possession, the decree was put to execution which was contested by the tenant. The High Court up-held the plea of the tenant and declared the decree as nullity on the ground that on the face of the compromise 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 Bombay Rent Control Act 1970. In an appeal the Apex Court set aside the order of the High Court by observing as under:
"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 at Rs. 17 per month and mesne profit also for one month upto the date of the suit at the same rate. They had also claimed light charges at 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 be 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 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. In paragraph 3 of the compromise petition also it is admitted that the standard rent would be Rs. 17 per month plus Rs. 2 electric charges and the defendants would pay the mesne profits at the aforesaid rates from March 1, 1967. It is, therefore, manifest that there was no such dispute in this case in regard to standard rent which could give any protection to the tenant against his eviction under Section 12(30 (b) of the Act. The facts clearly shoe that he had incurred the liability to be evicted under the said provisions of law and the compromise decree was passed on the tenant's impliedly admitting such liability."
22. In the above case the suit was based upon default in payment of rent. There was a specific claim of rent. The tenant admitted the liability and suffered the decree by consent. Apex Court accepted the compromise as valid in view of the material admission of liability which constitute a ground for eviction under the concerned Rent law.
23. In the instant case the suit was not based upon default in payment of arrears of rent. As a matter of fact there was no claim for arrears of rent nor the decree was sought on the basis of the defaults in the payment of rent. It was for the first time in the compromise deed that it was incorporated that if in future the tenant commits defaults in the payment of three months rent in succession he will be liable for eviction by executing the decree. The compromise to the extent it entitles the landlord/respondent to evict the petitioner on commission of three consecutive defaults of one month each in the payment of rent is clearly prohibited by Section 11 (1). This prohibition can be removed only if three successive defaults of two months each are committed by the tenant in the payment of two months rent on each occasion in succession and after the first default a notice of demand is issued by the landlord in accordance with the provision and method specified under Section 12 of the Act. Neither it was a case in the suit in which compromise was entered into nor it is a case after the passing of the decree. Therefore, the decree entitling the landlord to evict the tenant merely if three months rent in succession remains un-paid cannot be said to be a valid decree as the same is not based upon any pleadings or material as envisaged under the provisions of the Jammu and Kashmir Houses and Shops Rent Control Act. The consent of the tenant to suffer a decree in future is un-consequential.
24. Undoubtedly, the executing court cannot go beyond the decree, but at the same time Section 47 of the CPC empowers the executing Court to decide all questions relating to execution, discharge and satisfaction of the decree. If an agreement i.e. a Compromise is sought to be enforced through the executing court, the same is required to see whether the same is prohibited by law or not and if the Court comes to the conclusion that the law prohibits enforcement of such a contract/decree, the court has to determine that question and pass appropriate orders.
25. Mr. Nayyar forcefully argued that in view of the earlier judgment of this Court, this issue cannot be considered in this revision petition. As noticed above in earlier revision petition the only question raised was that a notice was required to be issued. Neither any plea was raised in respect to violation of Section 11 and the nature of compromise nor the same has been decided by this Court. Therefore, in my humble opinion, the issue can be considered in the present revision petition. Otherwise also this Court in exercise of powers under Section 115 CPC can call for the record and pass appropriate order where the Court is of the opinion that any order of the subordinate Court has caused failure of justice.
26. In view of the detailed discussion I hold that the compromise decree to the extent it seeks eviction of the tenant/ petitioner on the ground of default of three instalments in the payment of rent is in-valid and consequently in-executable being in contravention to Section 11 of the J&K Houses and Shops rent Control Act and Section 23 of the Contract Act.
27. As far as the question of determination of defaults is concerned even on that count also the impugned order is not sustainable. It is again admitted case of the parties that rent was deposited in the court. The executing Court has observed that the deposit is not in accordance with the compromise deed. Clause (3) of the Compromise Deed imposes an obligation upon the tenant to pay rent at the rate of Rs. 100/- per month from the date shop is handed over to him. Clause (5) further require the tenant to pay the arrears of rent upto 31-10-1986 within one month from the date of compromise. There does not seem to be any dispute on this, Clause (6) entitles both the parties to enforce the decree, if any of the parties fail to perform his part of the obligation and shop was not constructed within four months. Clause 7 of the compromise permits the defendant to re-construct the shop at his own expenses, if the plaintiff fails to do so and there-after pay the arrears of rent. The liability of the tenant to pay rent at the rate of Rs. 100/- per month commenced only after the shop is re-constructed and handed over. The executing Court has not returned any finding as to when the shop was re-constructed and handed over to the petitioner/tenant and from which date he became liable to pay the rent. The executing Court has merely gone on record to say that the deposit of rent before the Court is not a valid deposit as no such mode is prescribed under the compromise decree. The Court appears to have gone wrong on this ground. The Compromise Deed do not specify any mode of payment. It simply imposes an obligation to pay the rent. Section 14 of the Rent Control Act also permit the deposit of rent under the eventualities indicated therein. No inquiry in this regard has been held. If case of the tenant is covered by any of the eventualities prescribed under Section 14 of the Act and the rent has either been refused or the tenant feels inconvenience in paying the rent he has a right to deposit the rent before the Rent Controller and such deposit cannot be said to be contrary to the compromise deed, particularly when no specific mode is prescribed therein. In any case there is no finding as to how much rent is payable and from which date. Therefore, the impugned order is not sustainable on this count also. I am of the considered view that the impugned order has not only caused failure of justice but also irreparable injury to the petitioner.
28. In view of the above factual and legal background, I allow this revision petition, set aside the impugned order dated 27-12-2003 passed by the executing court and hold that the decree of eviction on the ground of defaults in payment of rent as prescribed under the compromise deed is invalid and in-executable. Consequently the execution petition is dismissed.
CR No. 215/2003.
29. In view of the order passed in Civil Revision No. 3/ 2004, this revision petition is disposed of accordingly.