Patna High Court
Sureshwar Prasad Singh And Anr. vs Kedarnath Verma And Ors. on 26 November, 1971
Equivalent citations: AIR1972PAT222, AIR 1972 PATNA 222
JUDGMENT Shambhu Prasad Singh, J.
1. This appeal by the judgment-debtors (defendants 4 and 5) arises out of an execution proceeding. The executing court upheld their objection to the executability of the decree and found that the execution was not maintainable. The lower appellate court has set aside that order. According to it, the execution was maintainable.
2. The decree-holder-Respondent instituted Title Suit No. 250 of 1960 in the Court of Munsif 1st, Gaya, for eviction of the tenants from holding Nos. 200 and 201 of that town, on the grounds of default in payment of rent, sub-letting and personal necessity. According to the case of the Respondent in the plaint, the holdings were let out to defendants 1 to 3 on monthly rental of Rs. 9/- and they had sub-let the same to defendants 4 and 5. Defendants 6 and 7 were made parties to the suit as they were men and creatures of defendants 1 to 5. The suit was decreed on 22nd June, 1962 in terms of a compromise petition filed before that court as against defendants 4 to 6 and ex parte against defendants 1 to 3 and 7. The terms of the compromise petition were that defendant No. 6 would have no concern with the holdings from the date of the compromise and defendants 4 and 5 would remain in possession of the holding on payment of monthly rental of Rs. 25/-.
In case of default of payment of rent by them for any month, the plaintiff would be entitled to get them evicted in execution of that very decree. The plaintiff would also be entitled to get defendants 4 and 5 evicted from the holdings, if he needed it for himself in execution of the very decree after getting notices under Order 21, Rule 22 of the Code of Civil Procedure (hereinafter to be referred to as 'the Code') served upon them. The respondent levied Execution Case No. 119 of 1965 praying for eviction of the appellants after service of notice under Order 21. Rule 22 of the Code on them as he needed the holdings for himself and also on the ground that the appellants had defaulted in payment of rent since the month of April, 1965. The execution petition was filed in July, 1965.
3. After service of notice under Order 21, Rule 22 of the Code on them, the appellants appeared in the execution case and filed an objection which was numbered as Misc. Case 163 of 1965. The grounds in support of the objection which appeared to have been pressed in the courts below were,--
(i) the decree was not executable as it was vague;
(ii) the execution petition was not maintainable as the compromise decree was void, illegal and incapable of execution; and
(iii) a tenancy was created by virtue of the compromise between the parties and the appellants could not be evicted without a fresh decree.
4. The executing court overruled the objection as to the vagueness of the decree. The vagueness alleged by the appellants was that the compromise petition and decree did not contain any description of property in respect of which compromise was arrived at. The executing court was of the opinion and rightly that the description of the property in respect of which compromise was arrived at could be gathered from the plaint of the suit which was on the record and the execution petition could not fail on the ground of vagueness of the decree. The lower appellate court also confirmed that finding and that has not been challenged before us. The executing court, however, held in favour of the appellants on the other two grounds. It found that the grounds on which the Respondent decree-holder became entitled to evict the appellants judgment-debtors were not grounds on, which he could evict them under the Bihar Buildings (Lease. Rent and Eviction) Control Act. 1947 (hereinafter to be referred to as 'the Act') and, therefore, the decree was illegal and could not be executed.
It further held that as a result of the compromise decree the rent of the holdings was enhanced which could not be legally done and the appellants could not be evicted from the holdings on the ground of non-payment of rent in execution of the decree. The lower appellate court has reversed the finding of the executing court on these two questions as in its opinion the decree could not be held to be a nullity and the executing court could not go behind the decree which was not a nullity.
5. It was contended by learned Counsel for the appellants that the compromise decree was a nullity inasmuch as the terms of the compromise were against the provisions of the Act. Reliance was placed on the decision of the Supreme Court in Ferozi Lal Jain v. Man Mal, (AIR 1970 SC 794). The suit from which the appeal arose before the Supreme Court was a suit for eviction from a shop on the ground of sub-letting. One of the terms of the lease itself was that the lessee would not sub-let the shop. The defendant denied that there was any sub-lease. There was a compromise, however, between them in which without reference to the alleged, sub-lease it was agreed that the lessee was to be given four years' time from the date of the compromise decree for delivering possession of the suit premises to the lessor. After expiry of four years, the decree-holder levied execution. It was resisted by the alleged sub-lessee. , There was then a second compromise, according to which the sublessee was given time till the end of 1963 to vacate the premises. On the expiry of that period, when the decree-holder levied fresh execution, the alleged sub-lessee again resisted it. One of the grounds of his objection was that the decree having been passed in contravention of Section 13 of the Delhi and Ajmer Rent Control Act, 1952 (Act 38 of 1952) was a nullity and, as such, not executable. The executing court, the first appellate court as well as the High Court upheld the objection. The Supreme Court also upheld the view taken by the courts below and dismissed the appeal. The material portion of Section 13 (1) of the Delhi and Ajmer Rent Control Act, 1952 runs as follows:
"Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated):
Provided that nothing in this subsection shall apply to any suit or other proceeding for such recovery of possession 'if the Court' is satisfied ............
(b) that the tenant without obtaining the consent of the landlord in writing has, after the commencement of this Act ............
(i) sub-let, assigned or otherwise parted with possession of, the whole or any part of the premises ............"
It was observed by Hegde, J. who spoke for the Supreme Court:
"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 (i) 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 its satisfaction that one or more of the grounds mentioned in Section 13 (i) 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 question 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 nullity."
It may be stated that there is another decision of the Supreme Court in Smt. Kaushalya Devi v. K. L. Bansal. (AIR 1970 SC 838) in which the same view has been taken. These decisions of the Supreme Court do prima facie support the contention of learned Counsel for the appellants.
6. Learned Counsel for the Decree-holder Respondent, however, urged that the decisions of the Supreme Court were not applicable to cases arising out of the Act as there is a difference in the language of Section 13 of the Delhi and Ajmer Rent Control Act, 1952 and Section 11 of the Act. The relevant portion of Section 11 (i) of the Act runs as follows:--
"Notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act, 1947, and to those of Section 12, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the Court on one or more of the following grounds."
He pointed out that satisfaction of the Court as to the existence of the grounds for eviction, which is necessary in cases under the Delhi and Aimer Rent Control Act, is not necessary in cases under the Act as the expression 'if the Court is satisfied' is not there in Section 11. In my opinion, the absence of the words 'if the Court is satisfied' is not material. Satisfaction contemplated by Section 13 of the Delhi and Aimer Rent Control Act is not Court's personal or subjective satisfaction. If is objective satisfaction on the materials on record. Even under the Act, a decree for eviction cannot be passed by the Court on the grounds mentioned in Section 11, if it is not satisfied on the materials on record that the grounds do exist. It is implied in the language of Section 11 of the Act that the Court would not pass a decree for eviction unless it is satisfied on the materials on record as to the existence of one or more of the grounds on which a tenant can be evicted.
7. Learned Counsel for the Decree-holder Respondent relied on the decision in D. Balakrishnamurthy v. M. Veeranarasaiah (AIR 1971 Andh Pra 251). It appears from the facts stated in the decision that eviction was claimed before the Rent Controller under Section 10 of the Andhra Pradesh Buildings (Lease, Rent and Eviction Control) Act, 1960 on the allegations of wilful default in payment of rent, subletting of the premises without the landlord's permission and its user inconsistent with the purpose of the lease. The tenant challenged all the allegations. After some evidence was led by the parties, there was a compromise, according to which the tenant was to be evicted after expiry of the time fixed by parties in the memorandum of compromise. The Controller passed an order of eviction in terms of the compromise. When execution was levied of the order, a person claiming to be sub-tenant in respect of a betel shop on the premises resisted delivery of possession on the ground that the order of eviction was a nullity and consequently not executable. The Controller disallowed the objection but, at the same time, negatived the prayer for execution. Both parties filed revisional applications before the High Court. Learned Single Judge of Andhra Pradesh High Court explained the decision of the Supreme Court in Ferozi Lal Jain's case. AIR 1970 SC 794 and observed :
"The position is that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional base, i.e., 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 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." He further observed:
"In cases where the tenant elects not to proceed with his defence, it is natural to presume that his defence is without merit or has little chance of successful outcome. It is justifiable for the Courts to act on the maxim, as they do in several other spheres of law that every person is presumed to act in furtherance of his own interest so as to promote it. I see no reason why the consent of the tenant should not be held to be a prima facie indication of the existence of one or more of the conditions prescribed by the statute as conditions precedent for making the order of eviction. It is true that a mere order of consent without any other material on record would be insufficient to establish the satisfaction contemplated by Section 10 for making a valid order of eviction. But, when the question arises whether the Court acted on the basis of such satisfaction, it would in my opinion, be relevant to take into account the presumption arising out of the consent of the tenant along with the other materials on record."
I respectfully agree with the view taken by the learned Single Judge of Andhra Pradesh. In Ferozi Lal Jain's case or other cases, the Supreme Court never intended to lay down that a decree or order for eviction passed on the basis of a compromise is a nullity in all cases. Where the order recording a compromise does not expressly mention that the Court was satisfied as to the existence of one or more of the grounds for eviction, but there are materials on the record from which it can be gathered and presumed that the Court must have been so satisfied, the decree or order for eviction based on compromise cannot be said to be a nullity. But in cases like the one before the Supreme Court, where the Court 'at no stage' appears to have applied its mind to the existence or absence of the grounds for eviction, the order has to be held as a nullity.
8. Let It now be considered with reference to the facts of the case before us whether the Court which passed the decree for eviction can be said to have been satisfied as to the existence of the grounds for eviction. Nothing has been placed before us to show that the tenants had defaulted in payment of rent. No doubt, one of the terms of the compromise, is that defendants 4 and 5 could be evicted, if they defaulted in payment of rent even for a month, but from that it cannot be gathered that there was default in payment of rent before the institution of the suit. Even if there was any such default, the landlord Respondent by compromise, it appears, waived his right to evict on that ground and agreed to a term that defendants 4 and 5 could be evicted only if they defaulted in future. Further, the term as inserted in the compromise for eviction on the ground of default was itself illegal. Under clause (d) of Section 11 (i) of the Act, a tenant can be evicted only if the amount of two months' rent lawfully payable by him and due from him is in arrears. He cannot be evicted for being in arrears in respect of only one month's rent.
On the materials on record, one may presume that there was sub-letting of the premises by defendants 1 to 3 to defendants 4 and 5, but the landlord also appears' to have waived by compromise his right to evict the sub-lessees on that ground. He allowed the sub-lessees to continue as tenants and thereby created" a fresh tenancy in their favour. The terms of the compromise further indicated that the landlord did not require the premises for his personal occupation. It is not a case where keeping in view the difficulties of a tenant the landlord agreed to postpone his eviction for a fixed period, rather, as it appears from the second term of the compromise, the parties agreed that there could be no eviction of the tenants on the ground of personal necessity of the landlord which was the cause of action for the suit. According to that term, the tenants were to be evicted if the landlord needed the premises for his personal occupation in future. In other words, the personal necessity of the landlord, which was the cause of action for the suit was not made basis for eviction of the tenants in the compromise petition. In my opinion, therefore, on the facts and in the circumstances of the case, it cannot be held or even presumed that the Court was satisfied as to the existence of one or more of the grounds for eviction at the time it passed the decree sought to be executed in the case.
9. It was contended by learned Counsel for the Decree-holder Respondent that the second term of the compromise provided for eviction of the appellants on the ground of personal necessity of the landlord, which is a valid ground for eviction under Section 11 (i) of the Act and therefore, the decree could not be held to be a nullity when eviction was also claimed on the basis of that term of the compromise. According to him, the effect of the second term of the compromise was that the parties agreed that in future it would not be necessary for the landlord to institute another suit and he could claim eviction on the ground of personal necessity in the execution proceeding itself and that if the executing court was satisfied, after service of notice under Order 21, Rule 22 of the Code of Civil Procedure on the tenants and hearing them that the landlord in fact, needed the house for his personal occupation, it could evict the tenants. The argument, though attractive, cannot be accepted in view of the language of Section 11 (i) of the Act. The decree itself must be passed by the Court on one or more of the grounds mentioned in that section. The grounds for eviction must exist at the time of passing of the decree. Their existence subsequent to the decree cannot entitle the landlord to evict the tenants by obtaining an order from the executing court. Where the grounds for eviction come into existence subsequent to the passing of a decree, the remedy of the landlord is to institute a fresh suit and obtain a fresh decree.
10. Learned Counsel for the Decree-holder Respondent also relied on the decision of the Calcutta High Court in Sadasukh Kabra v. Jugal Kishore Singh, ((1957) 61 Cal WN 67) wherein it was held that a judgment by consent is as effective as an estoppel between the parties as a judgment whereby the Court exercises its mind in a contested case and that a decree made on compromise, so long as it stands, operates as an estoppel and binds the parties in the same way as a contested decree and until and unless it is set aside in appropriate proceedings, it remains fully alive and operative and cannot be treated as nullity collaterally. He further relied on a decision of this Court in Muhammad Ismail v. Bibi Shaima, (AIR 1934 Pat 203) wherein it was held that an executing court has no power to discuss the validity of the terms of a compromise decree which it is ordered to execute. These decisions were given on different facts and after the decision of the Supreme Court in Ferozi Lal Jain's case, AIR 1970 SC 794 it cannot be contended that a compromise decree for eviction, in no case, can be challenged before the executing court as a nullity.
11. Learned Counsel for the Decree-holder Respondent also drew our attention to a Bench decision of this Court in Bhagwandas v. Jainarain, (1958 BLJR 610). That decision does not help the Decree-holder Respondent; rather it is against him. It was held therein that where the Controller was not satisfied that the rent was low or excessive, the question of determination of fair rent under the Act did not arise and the parties could not by agreement and compromise determine the fair rent of the buildings.
12. The decisions of this Court In Eokaro and Ramgur Ltd. v. Dr. Prasun Kumar Banerjee, (1968 BLJR 240 = (AIR 1968 Pat 150)) and Smt. Sabitri Thakurain v. S. A. Savi. (AIR 1933 Pat 306), which were also relied upon by learned Counsel for the Decree-holder Respondent, are not relevant to the point under consideration.
13. A petition under Section 11-A of the Act which was filed on behalf of the Decree-holder Respondent, was heard along with the appeal itself. As for the foregoing reasons, the appeal is going to succeed, the petition has to be dismissed.
14. After giving my most anxious consideration to the points urged in this appeal by learned Counsel for the parties, I am of the opinion that the executing court was correct in its view that the decree which is sought to be executed is a nullity and the execution in respect thereof is not maintainable and the lower appellate court has erred in setting aside that order. I accordingly allow the appeal, set aside the order of the lower appellate court and restore that of the executing court. In the special circumstances of the case, however, parties are directed to bear their own costs throughout.
Shiveshwab Prasad Sinha, J.
15. I agree.