Gujarat High Court
Heirs Of Suryakant K. Shah vs Punjabhai Ranchhodbhai Patel on 15 July, 1998
Equivalent citations: (1998)3GLR2359
Author: D.C. Srivastava
Bench: D.C. Srivastava
JUDGMENT D.C. Srivastava, J.
1. This is tenant's revision under Section 29 of the Bombay Rent Act, 1947 against the order of the revisional Court dismissing the revision of the revisionist against the order of the Executing Court. The Executing Court held that the objections to the executability of the decree raised by the revisionist were not sustainable and the decree was neither nullity nor illegal, hence it could be executed.
2. Brief facts are that the disputed premises was let out by the respondent on Rs. 55/- p.m. to the defendant. The defendant did not pay rent from 1-10-1968 to 31-5-1969, i.e., for a period of eight months hence registered notice of demand and eviction was sent on 19-6-1969. Notice was served on the tenant-defendant. Neither the premises was vacated nor the arrears of rent were paid. Hence, the suit for eviction was filed on 20-8-1969.
3. The suit was resisted by the defendant on the ground that his father was the tenant and upon his death all his heirs became co-tenants, and since they were not impleaded the suit was not maintainable. It was admitted that the rent could not be paid after receipt of notice on 28-6-1969. However, it was said that the rent was tendered by the telegraphic money order on 27-7-1969 but it was not accepted by the landlord. The dispute regarding standard rent was also raised and it was pleaded to be Rs. 25/- p.m.
4. Evidence of the parties was recorded in the suit and finally before delivering the judgment on merits of the case a compromise was arrived at between the parties on 25-11-1970. The suit was accordingly decreed in terms of the compromise. There were three main stipulations in the compromise. The first was that the defendant agreed to pay Rs. 1,600/- towards arrears of rent upto 31-12-1970 and costs of the suit. Out of this amount the plaintiff received Rs. 1,320/ - deposited in the Court. Balance of Rs. 280/- was to be paid by 31-12-1970. The second stipulation was that the defendant was to hand over vacant possession of the premises to the plaintiff by 30-6-1978. The third stipulation was that because of addition and alteration made by the plaintiff in the suit premises the rent was nominally enhanced and agreed to be enhanced by the parties at Rs. 60/- per month and this enhanced rent was to be paid with effect from 1-1-1971. The compromise was read over to the parties. They admitted the terms of compromise whereupon decree was passed by the trial Court.
5. The said decree was put to execution because the defendant failed to vacate the premises after eight years, viz., after time for vacation given in the compromise.
6. The defendant judgment-debtor raised objection in the execution proceedings raising contention that there was fresh contract of tenancy and unless it was terminated afresh the defendant could not be evicted in the execution proceedings. The second objection was that the compromise decree was nullity because grounds for granting decree for possession under the Rent Act were not existing and the third objection regarding compromise and ordering for eviction was that the Court was not satisfied that any ground for eviction under Section 12(3)(a) of the Act existed. The Executing Court did not find favour with these objections. It observed that there was sufficient material on record to show that the Court was satisfied that there was statutory ground for eviction of the tenant.
7. A revision was preferred against the order of the Executing Court which too was dismissed, hence this second revision under Section 29 of the Bombay Rent Act.
8. Section 29(2) of the Bombay Rent Act, is not at all applicable to the instant revision. It provides that no further appeal shall lie against any decision in appeal under Sub-section (1) but the High Court may, for the purpose of satisfying itself that any such decision in appeal was according to law, call for the record of the case in which such decision was taken and pass such order with respect thereto as it thinks fit.
9. It is clear from the above provision that if an appeal is decided under Sub-section (1) no further appeal shall lie against such decision but the revision can certainly lie. However, no appeal lies against an order of the Executing Court rejecting the objection of the judgment-debtor. The objection of the judgment-debtor to the executability of the decree is nothing but an objection under Section 47 of the Code of Civil Procedure which provides all questions arising between the parties to the suit in which the decree was passed, or their representatives and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.
10. Thus, in view of Section 47(1) of the Code of Civil Procedure all questions relating to the execution, discharge or satisfaction of the decree, shall be determined by the Executing Court. The objection that a particular decree is nullity, hence incapable of execution is also to be decided by the Executing Court and not by a separate suit.
11. Prior to the Code of Civil Procedure Amendment Act, 1976 determination of any question under Section 47 was also expressly included in the definition of decree but after this amendment decision under Section 47 is not a decree and as such is not appealable. Only revision can lie against an order passed by the Executing Court under Section 47 of the Code of Civil Procedure within the ambit of Section 115 of the Code of Civil Procedure.
12. Learned Counsel for the revisionist conceded that revision under Section 29 of the Bombay Rent Act on the facts and circumstances of the case is not maintainable in the High Court. A revision was already preferred before the District Court. If the revision is not maintainable it should be rejected on this ground itself.
13. It should not be forgotten that the suit was filed on 20-8-1969. Till date for one reason or the other despite compromise decree and sufficient time to evict having been granted by the decree holder in the decree itself as well as by the revisional Court, the revisionist has not vacated the accommodation. A period of 29 years from the date of the suit has elapsed and the decree holder is unable to get the fruits of the decree. Eight years' time was granted to vacate the premises but during this period the premises was not vacated. It is not the case of the revisionist that the compromise was the result of fraud. No appeal against compromise decree was filed nor any suit was filed for getting compromise decree set aside. The said compromise decree had become final long back. Even the revisional Court granted one year's time to vacate on the request made by the Learned Counsel for the revisionist. Still that concession was also not availed of. In such state of affairs, the tenant-revisionist is hardly entitled to any indulgence of This Court. Firstly, because his revision is not maintainable and secondly, because of his conduct.
14. Learned Counsel for the revisionist, however, raised three contentions.
15. The first was that the compromise decree is patently illegal and nullity inasmuch as the Court passing the compromise decree was not satisfied whether the ingredients of Section 12(3)(a) of the Bombay Rent Act were made out or not. He contended that the rent was sent by the telegraphic order but it was refused and this was not considered by the Court passing the compromise decree. The second contention was that the dispute regarding standard rent was also raised on which the Court passing the compromise decree had not at all applied its mind. It was also contended that the rent was deposited in Court. Hence on these facts, no decree for eviction in terms of Section 12(3)(a) of the Act could be passed.
16. The second contention was that if no decree for eviction could be passed; simply on the strength of compromise such decree is patently nullity. In support of this contention he placed reliance upon the case of Ferozi Lai Jain v. Man Mai and Anr. and Smt. Kaushalya Devi and Ors. v. K.L. Bansal . The Apex Court in these two cases has laid down that the jurisdiction of the Court to pass decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds mentioned in Section 13(1) of Delhi and Ajmer Rent Control Act have been proved. Where the Court had proceeded solely on the basis of compromise arrived at between the parties the Court was not competent to pass decree. Hence, decree under execution must be held to be nullity.
17. However, in these two cases the Supreme Court has not emphasised or laid down that while passing compromise decree the Court passing the decree must before accepting compromise record specific finding that one of the grounds for eviction contemplated under the Rent Act exists. Satisfaction of the Court may be in the circumstances of the case subjective. Of course, subjectivity is to be based upon material on record. If the order accepting the compromise and passing compromise decree lacks objectivity as detailed reasons are not given it cannot be said that such decree is per se nullity. The Executing Court could not have gone behind the decree. It could have simply seen whether the decree was apparently nullity and then only it could have refused to execute such decree. In the instant case, the Executing Court has taken into consideration the plaint, written statement and also the fact that the evidence of the parties was recorded. It is not a case where recording of evidence had not commenced. The plaint allegations disclosed that the rate of rent was Rs. 55/- p.m., and the tenant was in arrears of rent since 1-10-1968 to 31-5-1969, i.e., for eight months. The tenant admitted the arrears of rent. He disputed that the standard rent was Rs. 55/- p.m., and claimed that it was Rs. 25/- p.m. The evidence was already recorded. It is settled law that if the dispute regarding standard rent is not bona fide the provision of Section 12(3)(a) cannot be ignored. It is only when there is bonafide dispute regarding standard rent that the decree for eviction under this section can be refused. On this point, of course, there is no finding by the Court passing the decree but in the compromise itself the parties agreed that the rent shall be enhanced from Rs. 55/- to Rs. 60/- p.m., and this enhanced rent shall be payable with, effect from 1-1-1971. The compromise was entered into on 25-11-1970.
18. Thus it was admitted by the tenant that the agreed rent prior to the compromise was Rs. 55/-p.m., and this was standard rent also. A fact which is admitted by the tenant in the compromise could have given subjective satisfaction to the Court passing the decree that the dispute about standard was not bonafide and it was a dispute for the sake of dispute.
19. Regarding arrears of rent it was admitted that the rent was due for eight months. The notice of demand and eviction was given on 19-6-1960. It was served on 28-6-1969 and the rent was not paid till 27-7-1969. It was said that the rent was remitted on 27-7-1969 by telegraphic money order but there was no evidence that the telegraphic money order reached landlord within a period of one month. There was no evidence regarding refusal of telegraphic money order by the landlord. As such the trial Court was justified in believing that the arrears of rent were not paid within a period of one month from the date of service of notice of demand and such arrears exceeded six months period.
20. Even in the compromise it was agreed that Rs. 1,600/- will be paid towards arrears of rent upto 31-12-1970 besides the costs of the suit. There was no evidence for payment towards costs of the suit. Out of Rs. 1,600/- agreed to be paid as arrears of rent upto 31-12-1970 the revisionist deposited Rs. 1,320/- only in the Court and the balance of Rs. 280/- was agreed to be paid by 31-12-1970. Thus, on this admission of the tenant in the compromise it is further manifest that the entire arrears were not paid and in any event the tenant was not entitled to protection under Section 12(3)(b) of the Act.
21. Thus, there existed all the conditions required to be established by the landlord for obtaining decree for eviction under Section 12(3)(a) of the Act.
22. Contention that there was novation of contract has also no merit. It is submitted in the compromise itself that certain alterations and improvements were made in the premises by the landlord and for that rent was nominally enhanced to Rs. 5/- p.m., and that too was payable from 1-1-1971. Mere use of word 'rent' in the compromise does not amount either to the waiver of the notice of eviction or to the waiver of decree for eviction. During this period of eight years the status of the revisionist was nothing but that of a permissive occupier and he was required to pay Rs. 60/- p.m., as mesne profits till 30-6-1978 when he was required to hand over vacant possession in terms of compromise decree. As such neither fresh notice of demand and eviction was to be given nor fresh suit for eviction was required to be filed. This contention of Learned Counsel for the revisionist has also no merit.
23. In view of the above discussions, I find that the ingredients of Section 12(3)(a) of the Bombay Rent Act existed for passing a decree for eviction of the revisionist and if on these facts the compromise between the parties was acted upon and compromise decree was passed it will be deemed that the Court was impliedly satisfied from the terms of the compromise itself that there was ground for passing a decree for eviction under Section 12(3)(a) of the Act. The decree was, therefore, not nullity and the Court did not commit any error in proceeding to execute such decree. Likewise the Revisional Court also committed no error of jurisdiction, irregularity or illegality in confirming the order of the Executing Court. Revision is thus without merit. The tenant for one reason or the other has not vacated the premises for a long period of 29 years. He also failed to vacate within eight years' time which was granted in the compromise decree and further one year from the judgment of the Revisional Court. On these facts no leniency is to be shown to the tenant- revisionist. The revision being without merit is liable to be dismissed and is hereby dismissed with costs.