Allahabad High Court
Ameer Chandra Jain vs Addl. District Judge & Others on 23 November, 2012
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 25.07.2012 Delivered on 23.11.2012 Court No. - 7 Case :- WRIT - A No. - 22821 of 2005 Petitioner :- Ameer Chandra Jain Respondent :- Addl. District Judge, Court No. 1, Etawah & other Petitioner Counsel :- Arvind Srivastava Respondent Counsel :- A.K. Tiwari, A.K. Tripathi, Pradeep Kumar, S.C. Hon'ble Sudhir Agarwal,J.
1. Heard Sri Arvind Srivastava, Advocate, for petitioner and Sri Pradeep Kumar, Advocate, for respondents 3/1 to 3/5.
2. Since pleadings are complete, as requested by learned counsels for parties, it was heard finally and being decided at this stage under the Rules of the Court.
3. The facts set out in the writ petition are as under.
4. Petitioner is a tenant of a shop situated at Sri Krishna Bazar, Pargana Saifai, District Etawah (hereinafter referred to as "shop in dispute"). Initially the shop in dispute was let out to Sri Puttu Lal Jain, father of petitioner Ameer Chandra Jain, who expired long back whereafter tenancy rights devolved on petitioner, who claims to be living with his brother Kailash Chandra Jain and doing business of "Bardana" in the said shop. It is pleaded that his brother Kailash Chandra Jain, respondent no. 4 (now deceased and substituted by his legal heirs), left for Delhi and settled thereat.
5. The respondent no. 3 (landlord), Sri Manohar Lal Gupta (now deceased and substituted by his legal heirs, i.e., respondents 3/1 to 3/5) filed P.A. Case No. 16 of 1996 impleading only respondent no. 4 before the Prescribed Authority/ Civil Judge (Senior Division), Etawah praying for release of shop in dispute on the ground of personal need, i.e. under Section 21 (1) (a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972"). Therein, respondents no. 3 and 4 filed a compromise whereupon order was passed by Prescribed Authority releasing shop in dispute vide order dated 26.2.1997, relying totally on the compromise entered into between respondents no. 3 and 4.
6. Since petitioner was not a party in the aforesaid proceedings, when he came to know of the aforesaid compromise order, obtained from Court of Prescribed Authority, without impleading the petitioner as party therein, he preferred P.A. Appeal No. 3 of 1997 impleading respondents no. 3 and 4, both, as opposite parties no. 1 and 2 respectively. The appeal was dismissed by Additional District Judge, Etawah vide judgment dated 23.2.2005 observing that appellant (petitioner in this writ petition) has failed to demonstrate that his father, Puttu Lal Jain, was initially tenant in the shop in dispute and after his death, joint tenancy devolved on the legal heirs of Sri Puttu Lal Jain, and, having failed to demonstrate his tenancy rights, he was rightly not impleaded in the Release Application filed by respondent no. 3. Hence there was no reason for interference by the Appellate Court. The Court also referred to Civil Suit No. 157 of 1997 filed by petitioner himself in the Court of Civil Judge in which an injunction order was passed by Trial Court on 3.3.1997 restraining landlord from evicting appellant (present petitioner), otherwise than due process of law.
7. The landlord, after rejection of appeal, took steps for execution of decree and delivery of possession of the shop in dispute to him whereupon petitioner filed objection under Section 47 read with Section 151 and Order 21 Rule 97, C.P.C. read with Rule 22 of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as "1972 Rules"). The said objection has also been rejected by Prescribed Authority vide order dated 10.3.2005, holding that Section 47 and Order 21 Rule 97 C.P.C. are not applicable to the proceedings under Act, 1972.
8. These are the two orders, namely, Appellate Court's judgment dated 23.2.2005 and Prescribed Authority's order dated 26.2.1997 which have given rise to the present writ petition. Petitioner has prayed for a writ of certiorari for quashing the aforesaid two orders.
9. Landlord, contesting the writ petition, has filed a detailed counter affidavit. Therein, location of shop in dispute is not disputed. It is, however, clarified in para 4 of the counter affidavit that Mohalla Sri Krishna Bazar is different from Mohalla Homganj and Mohalla Gulabbari, Kasba Jaswant Nagar, District Etawah. It is also stated that Homganj and Gulabbari are also two different areas in Jaswant Nagar. Sri Puttu Lal Jain, father of petitioner and respondent no. 4, was tenant of two shops in Mohalla Homganj, whereat he was doing business of khali and bardana in the name and style of "M/s Kunji Lal Puttu Lal". He died sometime in 1956 according to the information of landlord and in 1958, according to the information given by respondent no. 4. After his death, business of the Firm, M/s Kunji Lal Puttu Lal was suspended and ultimately closed and the two shops were surrendered to the landlord.
10. The shop in dispute was constructed at Sri Krishna Bazar, Jaswant Nagar in 1962 by Sri Ayodhya Prasad, grandfather of respondents 3/1 to 3/5 and at that time, petitioner's father Sri Puttu Lal Jain was not alive. The said shop was let out by Sri Ayodhya Prasad to Sri Kailash Chandra Jain, respondent no. 4 exclusively. To support the above contention, copies of certain rent receipts of 1963 mentioning the name of Sri Kailash Chandra Jain as tenant and construction as new, have been filed as Annexure CA-1.
11. It is also averred that petitioner was never tenant in the shop in dispute. When the said shop was required by the landlord for settling his son in the business, at that time, Sri Kailash Chandra Jain had already shifted and settled his business at Delhi.
12. An application for release of the said accommodation was filed under Section 21 (1) (a) of Act, 1972 on the ground that it was required bona fide by the landlord and that was so ordered by the Prescribed Authority after a compromise entered with respondent no. 4, the sole tenant in the shop in dispute. It is further stated that petitioner was minor at the time of death of his father and when attained majority, he was let out a different shop situated in Mohalla Gulabbari, Jaswant Nagar. The documents filed along with writ petition to show tenancy rights, in fact, relate to the shop situated in Mohalla Gulabbari and not that situated in Sri Krishna Bazar (the shop in dispute). It is said that Section 34 of Act, 1972 read with Rule 22 of Rules, 1972 permits a compromise also between the parties and acting thereupon, the Prescribed Authority is duly empowered to pass an order based on the compromise.
13. In the rejoinder affidavit, petitioner has disputed the facts as stated in the counter affidavit and it is pleaded that Sri Puttu Lal Jain was a tenant in the shop situated in Mohalla Sri Krishna Bazar. It is, however, admitted that he (Sri Puttu Lal Jain) was doing business in the name of "M/s Kunji Lal Puttu Lal. In para 7 of rejoinder affidavit, it is said that shop in dispute is situated in Mohalla Gulabbari in Sri Krishna Bazar. It is denied that shop in dispute was constructed newly in 1962-63 and let out to Sri Kailash Chandra Jain.
14. Sri Arvind Srivastava, learned counsel for petitioner basically raised three contentions.
15. Firstly, the Appellate Court has completely misdirected itself by non suiting the petitioner on the ground that he had no tenancy rights in respect of the shop in dispute and, therefore, has no locus standi to challenge the decree in question.
16. Secondly, he contended that an accommodation/ building within the ambit of Act, 1972 cannot be released to a landlord under Section 21 (1) (a) unless Prescribed Authority is satisfied about the genuity and existence of the grounds mentioned therein and a compromise decree solely based on the compromise without showing satisfaction of Prescribed Authority regarding the existence of ground under Section 21 (1) (a) of Act, 1972 is a nullity and cannot be executed. Reliance is placed on Apex Court's decision in Smt. Kaushalya Devi Vs. K. L. Bansal AIR 1970 SC 838 and this Court's decisions in K.N. Bhargava Vs. District Judge, Kanpur and others 1984 (2) ARC 588 and Alla Bux Vs. Addl. District Judge 1979 (U.P.) RCC 509.
17. As a corollary to his second submission, he also contended, wherever a compromise decree is challenged on the ground that it is a collusive decree, even if not fraudulent, such an issue must be examined by the adjudicatory forum under the rent statute and in support thereof, he placed reliance on this Court's decision in Smt. Kusum Gupta Vs. Second Addl. District Judge, Kanpur and others 1983 ARC 656. He contended that whatever may be the situation, a building/ accommodation cannot be released in favour of a landlord unless the bona fide need is established and the Prescribed Authority is satisfied with the existence thereof and fortify his submissions by two decisions referred to above as also Ramesh Krishna Khanna Vs. 16th Addl. District Judge, Kanpur 1984 (2) ARC 521. In other words, he argued that before releasing an accommodation under Section 21 (1) (a) of Act, 1972, it is a statutory requirement for Prescribed Authority to record a finding on the bona fide need of landlord, else, an order releasing a building would be vitiated in law. Besides the authorities referred above, he relied on Jeet Singh Vs. District Judge, Dehradun and others 1987 (2) ARC 463.
18. Thirdly and lastly, he urged, where there are more than one tenant and a suit is filed by landlord, without impleading one of them, the decree obtained against non impleaded one, cannot be sustained since such a decree cannot be kept alive, and supported his submission referring to Apex Court's decision in Textile Association (India) Bombay Unit Vs. Balmohan Gopal Kurup AIR 1990 SC 2053.
19. He also pointed out that during the pendency of this Writ Petition, there was an occasion when it was dismissed for want of prosecution and taking advantage thereof the landlord got petitioner evicted from the shop in dispute and thereafter has demolished the same so as to frustrate the very purpose of this Writ Petition. Such subsequent event can be taken into consideration by this Court so as to grant relief to the petitioner and supported his submission relying on this Court's decision in Smt. Dyman Prabha Dogra Vs. Smt. Kusu Lata Srivastava and another 1990 (1) ARC 148. It is contended that by demolishing the building in dispute and making the site open, the landlord cannot frustrate proceedings before this Court on the ground that since building itself has disappeared, Act, 1972, now has no more application to the proceedings. No person can take advantage of his own wrong and even otherwise, in such circumstances also the Act, 1972 would continue to apply and appropriate order can be passed by the Court to restore possession of tenant by issuing appropriate directions in the matter.
20. Sri Pradeep Kumar, on the contrary, urged that petitioner was never a tenant in the shop in dispute and, therefore, had no right to challenge release order passed by Prescribed Authority in P.A. Case No. 16 of 1996 in appeal and his appeal, thus has rightly been rejected. In the alternative, he contended, what the petitioner claims, even if is correct, he, at the best, stood in the position of a joint tenant and in such a case, if one of joint tenants has been impleaded and order has been passed against him, it would not vitiate the proceedings. Thirdly, he submitted that there is no mala fide on the part of landlord since petitioner's writ petition was dismissed and thereafter the possession of shop in dispute was obtained by landlord but due to natural calamity, building collapsed and in such circumstances, the tenant cannot claim his possession through the present writ petition and remedy lies elsewhere. For this purpose, he placed reliance on Apex Court's decision in Vannattankandy Ibrayi Vs. Kunhabdulla Hajee (2001) 1 SCC 564. There are some other authorities also cited, in order to meet contentions of learned counsel for petitioner, which, I propose to consider while considering the submissions.
21. First of all, I proceed to consider about the identity of shop and whether in respect of the shop in dispute, petitioner had any tenancy rights, at all.
22. In para 3 of writ petition, location of shop in dispute has been mentioned as "the premises in dispute namely a shop located at Sri Krishna Bazar, Pergana Saifai, District Etawah". The copy of Release Application i.e. P.A. Case No. 16 of 1996 filed by landlord has also been placed on record and in para 1 thereof, location of shop is mentioned as Sri Krishna Bazar, Kasba Jaswant Nagar, Pergana Saifai, District Etawah.
23. Learned counsels for both the parties admitted that Sri Krishna Bazar is a location in Jaswant Nagar, a town, which is a part of Sub-division Saifai, District Etawah. The Appellate Court has categorically recorded a finding that rent receipts placed on record are all in the name of Sri Kailash Chandra Jain. Nothing was placed on record that the shop in dispute was in the tenancy of Late Puttu Lal Jain at any point of time so as to entitle the petitioner to claim tenancy rights after the death of his father. Some of the receipts have also been placed on record before this Court as Annexure-1 to the counter affidavit which mention name of tenant as "Kailash Chandra Jain" and location of shop as Sri Krishna Bazar, Jaswant Nagar. The building is also mentioned as "newly constructed". These receipts are of various period, i.e., 28.2.1963, 5.11.1966, 2.7.1966, 2.4.1966, 23.10.1965 and 24.4.1963. An affidavit of Sri Kailash Chandra Jain, respondent no. 4 was also filed before Appellate Court. A copy thereof has been placed before this Court also along with counter affidavit wherein he has admitted that the shop in dispute was never in the tenancy of Late Puttu Lal Jain, who died in 1956. He (respondent no. 4) has specifically stated that the shop in dispute was let out to him in 1963. Sri Puttu Lal Jain was a tenant in two shops situated in Galla Mandi, Homganj, Jaswant Nagar and the said shops were vacated in 1960.
24. It may not be disputed, if amongst joint tenants, some left tenanted premises and shifted elsewhere, there may be a presumption of surrender of tenancy rights by them and, therefore, eviction proceedings, if any, may not proceed unless the co-tenant who is in occupation of tenanted premises is proceeded against by impleading him a party but before attracting such principle, the existence of joint tenancy rights have to be proved. In the present case, nothing has been placed on record by learned counsel for petitioner to demonstrate that shop in dispute was ever let out to father of petitioner and respondent no. 4, during his lifetime and after his death, tenancy rights devolved upon his legal heirs. On the contrary, the documents on record demonstrate that shop in dispute was in the tenancy of respondent no. 4. Moreover this question of fact has been found proved by the Courts below against petitioner. The learned counsel for petitioner has miserably failed to demonstrate, either the above finding perverse or something against record or any manifest error therein otherwise. In these circumstances, once the sole tenancy right of respondent no. 4 could not have been demolished by petitioner, the entire case set up by him also stands demolished. I thus find no good reason to interfere with the order of Appellate Court in dismissing appeal of the petitioner. It also justifies not to draw any other inference except one that an accommodation cannot be released on mere compromise entered into between the tenant and landlord for the reason that the alternative argument of Sri Arvind Srivastava, learned counsel for petitioner, is founded thereon, inasmuch, he also claims that even if possession of petitioner is held unauthorized or illegal, still he is entitled to be considered a "regularized tenant" by application of Section 14 of Act, 1972 since he was in possession of shop in dispute before 5.7.1976, the cut of date to attract Section 14 of Act, 1972.
25. In order to consider this aspect, it would be appropriate to refer the relevant provisions and certain authorities dealing with this issue. Section 21 (1) (a) of Act, 1972 relevant for the purpose of present case, reads as under:
"21. Proceedings for release of building under occupation of tenant. - (1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists namely -
(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family, or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling, or where the landlord is the trustee of a public charitable trust, for the objects of the trust;"
26. A perusal of Section 21 (1) (a) above shows that before ejectment of a tenant from a building under tenancy or any part thereof, the Prescribed Authority must be satisfied, on an application of landlord moved in that behalf, that any of the grounds set out in Clause (a) or (b) existed.
27. It is not in dispute that in the present case, landlord filed an application seeking release of shop in dispute on the ground of his personal need, i.e. for settling his son in a business. The Prescribed Authority, therefore, was required to be satisfied about bona fide and genuity of the ground, namely, personal need, set up by landlord. The terms "need" and "requirement" postulates that there must be an element of necessity or something in close proximity of necessity as opposed to "mere desire" or "wish". If a person needs a premises honestly, it would satisfy the requirement of bona fide need of person concerned. It is supported with the word "required". The two terms support each other but do not and should not be taken so as to give an artificial meaning thereto. It does not mean that a landlord must show that he is on the street without any shelter, whatsoever, so as to get success in establishing a ground under Section 21 (1) (a) of Act, 1972 about personal need. The connotation of the word "need" or "requirement" should not be unnecessarily or artificially stretched or expanded so much so that it may give an impression that a landlord cannot get a premises released unless his requirement is absolute. A Full Bench of this Court considered this aspect in Chandra Kumar Sah and another Vs. The District Judge and others AIR 1976 All. 328 and observed that the above words should be construed so as to meet a good faith or genuity in the claim set up by landlord, i.e. something conveys to an idea of not a mere desire or an intent to deceive. In other words, if there is an ulterior motive or purpose or fanciful whim, the ground set up under Section 21 (1) (a) of Act, 1972 would not be a bona fide one.
28. The purpose of satisfaction of Prescribed Authority is quite simple to understand. An accommodation in the ambit of Act, 1972 will always be available for let out to any person who applies for its allotment on rent so long as the accommodation is not taken away from the ambit of Act, 1972, either by any express provision of by release in favour of landlord, in accordance with provisions prescribed in the Statute. The mere eviction of a tenant on any of the grounds provided in Act, 1972 would not automatically result in release of the accommodation in favour of the landlord. Where a tenant is evicted simplicitor on satisfaction of any of permissible ground(s) under Act, 1972, it would follow proceedings for allotment of the building to any other needy person, unless landlord seeks release of the building in his favour and satisfies statutory requirement therefor. When such an application of the landlord is allowed and building is released, the process of allotment of such building comes to a halt and cannot revive unless and until the landlord either forfeits his right to treat the building so released in accordance with the statute or otherwise the statute so provides.
29. In the present case, as already said, the landlord sought release of accommodation on the ground of "personal need" and moved an application setting up the ground under Section 21 (1) (a) of Act, 1972 before the Prescribed Authority. This application admittedly was filed in December 1996. The need of landlord was admitted by tenant, as is evident from compromise document filed before the Trial Court in which he admitted the fact that landlord's sons Vishal Gupta has now attained majority and no other accommodation is available to him to commence his business. It is not in dispute that settlement/compromise in which relationship of landlord and tenant was admitted by respondent no. 4, the genuity of need of landlord was admitted and thereafter compromise was placed before Trial Court. This document of compromise was accepted by Prescribed Authority after the contents of compromise were verified, as is evident from order dated 26.2.1997. Thereafter the Prescribed Authority released the accommodation in favour of landlord.
30. It does not appear that after filing Release Application by landlord, any other material was placed before Prescribed Authority except the terms of compromise executed between the landlord and respondent no. 4 and thereupon the Trial Court passed the above order releasing the accommodation in terms of compromise.
31. It would be appropriate to reproduce the entire order 26.2.1997 as under:
^^okn iqdkjk x;kA izkFkhZ @HkwLokeh euksgj yky xqIrk vius vf/koDrk Jh lrh'k pUnz prqosZnh rFkk foi{kh@ fdjk;snkj dSyk'k pUnz vius vf/koDrk Jh jktho dqekj dqyJs"B ds lkFk mifLFkr gSaA i{kdkjksa dh vksj ls lqygi= 8x nkf[ky fd;k x;k gSA lqygi= esa dgk x;k gS fd mudk le>kSrk gks x;k gSA vr% lqygi= ds vuqlkj fookfnr nwdku izkFkhZ @ HkwLokeh ds i{k esa fjyht dj nh tk;sA lqygi= dk lR;kiu fd;k x;kA vkns'k lqygi= 8x Lohdkj fd;k tkrk gSA lqygi= ds vuqlkj fookfnr nwdku izkFkhZ @HkwLokeh ds i{k esa fjyht dh tkrh gSA foi{kh@ fdjk;snkj fookfnr nwdku dk n[ky HkwLokeh dks lqygi= dh 'krZ ds vuqlkj nsaA okn O;; i{kdkj Lo;a ogu djsaxsaA^^ English Translation by the Court:
"Case called. Plaintiff/landlord Manohar Lal Gupta with this counsel Sri Satish Chandra Chaturvedi and respondent-tenant with his counsel Sri Raiv Kumar Kulshreshthra are present. Compromise deed 8-C has been filed on behalf of parties. It is stated in compromise-deed that they have reached a compromise, hence disputed shop may be released in favour of plaintiff/landlord as per compromise-deed. Compromise deed has been verified.
Order Compromise-deed is admitted. Shop in question is released in favour of plaintiff/landlord in terms of compromise-deed. Respondent/tenant shall hand over the possession of the disputed shop to landlord in terms of compromise deed. Cost shall be borne by the parties."
32. Whether such a compromise can result in release of a tenanted accommodation on the ground of "personal need" set out under Section 21 (1) (a) of Act, 1972 is the moot question.
33. In respect of issues similar to the present one, though in the context of rent statutes of other States, the matter has been examined by Courts from time to time, it would be appropriate to have a careful glance over the said authorities to see, whether issue in question is already covered by those authorities in one or the other way or need to be examined further.
34. One of such authorities cited at the bar is Bahadur Singh Vs. Muni Subrat Dass (1969) 2 SCR 432, wherein it appears that the son of landlord and tenant got a dispute between them referred for arbitration. The landlord himself was not a party to that agreement. The Arbitrator passed an award under which tenant agreed to hand over vacant possession of premises to the landlord within a particular time. This award was made a decree of the Court. The landlord who was admittedly neither a party before the Arbitrator, who gave the award, nor before the Civil Court when the award was made decree, moved an application for execution of the award. The tenant resisted execution objecting that award was nullity since there was no satisfaction of Prescribed Authority under Section 13 about existence of need of landlord and, therefore, decree was not executable at the instance of landlord. The Apex Court upheld the objection.
35. The case of Kaushalya Devi Vs. K. L. Bansal (supra) related to Delhi and Ajmer Rent Control Act, 1952 (hereinafter referred to as "Act, 1952"). Section 13 thereof entitled a landlord to eject a tenant if the accommodation is required by him bona fide for his occupation/residence or the family member, as the case may be. An application under Section 13 of Act, 1952 was filed by landlord which was contested by the tenant. Issues were framed but immediately thereafter, both the sides filed a compromise stating that a decree for ejectment be passed giving a particular date by which time tenant shall vacate the premises and also pay rent thereof. The Trial Court, in fact, passed the following order:
"In view of statement of parties' counsel and written compromise a decree is passed in favour of plaintiff against the defendant."
36. Thereafter tenant did not honour compromise. In execution proceedings he filed objection that decree was a nullity having not been passed in terms of Section 13 of Act, 1952. This objection was upheld by High Court. The Apex Court relying on its decision in Bahadur Singh Vs. Muni Subrat Dass (supra) held that a decree passed without satisfying itself about the existence of a ground of eviction is a nullity and cannot be enforced in execution. Accordingly, the Apex Court upheld High Court's decision.
37. Evidently, the cases of Bahadur Singh Vs. Muni Subrat Dass (supra) and Kaushalya Devi Vs. K. L. Bansal (supra), both were decided on their own facts. In the former case, there was not even an application for ejectment of tenant under Section 13 of the concerned rent statute before the competent authority, and, in the later, when terms of compromise were placed before the Prescribed Authority in the proceedings under Section 13 of the relevant Statute, there was no averment by the parties concerned to demonstrate or to give a colour of satisfaction of Prescribed Authority about the need of landlord that it was genuine and bona fide, particularly when, the tenant since beginning was contesting it. The terms of the compromise simply shows undertaking of tenant to vacate the premises and thereupon the compromise decree was passed. There was no averment in the terms of compromise stating that need of landlord is genuine and bona fide.
38. There is another decision in this line i.e. Ferozi Lal Jain Vs. Man Mal AIR 1970 SC 794. Therein the landlord moved an application for eviction of tenant on the ground of sub-letting which is one of the grounds for ejectment of a tenant under Section 13 (1) of Act, 1952. The allegations were denied by tenant. Again the parties entered into a compromise which ended in a compromise decree. Here again the tenant did not surrender possession and raised objection that decree is a nullity being in violation of Section 13 of the Act, 1952. The objection of tenant was upheld by Apex Court. However, while non suiting the landlord, the Apex Court observed that it is evident from the facts that at no stage, the Prescribed Authority was called upon to apply its mind to the question whether the alleged sub-letting was true or not. Neither the order shows satisfaction of the Court that subletting complained of had taken place nor any material existed on record that it was so satisfied. The record shows that the Court proceeded solely on the basis of compromise arrived at between the parties which also mentions nothing about subletting admitted by tenant and hence such compromise decree was a nullity.
39. All the above three authorities came to be considered when a similar issue was raised before a three-Judge Bench of Apex Court in K. K. Chari Vs. R. M. Sheshadri AIR 1973 SC 1311. The Court considered all the above decisions and explained peculiar circumstances in which decisions were rendered. Having said so, the Court observed, if there is material or a stage has reached in a particular proceeding for the Court to apply its mind regarding existence of a statutory condition, it may be held that the Court was so satisfied about the plea of landlord. It is not the form of the order or the context of the order but entire material and circumstances in which the order is passed have to be considered. It says, when the order on the face of it, does not show that the Court has expressed its satisfaction that requirement of landlord is bona fide, the situation becomes slightly difficult, else the expression of the Court in the order itself would conclude the matter. However, that does not mean that such inference can not be drawn from other material available to the Court, inasmuch, it cannot be said that even if there is material before the Court when consenting decree is passed, wherefrom, it can be inferred that the Court was satisfied about the requirement of landlord, being bona fide, nevertheless, such a compromise order will be a nullity and that material has to be ignored. The Court explained that an order of eviction based on consent of parties is not necessarily void if the jurisdictional fact, namely, the existence of one or more of the conditions mentioned in the statute were shown to be in existence when the Court passed the order. Satisfaction of Court, is no doubt a pre-requisite for the order of eviction, but it 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.
40. The Court further said that before making an order for release, the Court is under a duty to satisfy itself as to the truth of 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 that admission and make an order for possession in favour of landlord, without further enquiry.
41. Each case will have to be decided on its own facts to find out whether there is any material to justify an inference that an admission, express or implied, has been made by the tenant about the existence of one or the other statutory grounds. The Apex Court referred to its earlier three decisions and said that in the three decision of this Court which we have already referred, the position was entirely different. In none of those cases was there any material to show that the tenant had expressly or impliedly accepted the plea of landlord as true. Therefore, those decisions do not assist respondent-tenant. Hon'ble A. Alagiriswami, J. agreeing with the concurring judgment of the Bench delivered by Hon'ble C.A. Vaidialingam, J., said that Rent Controller is a quasi- judicial tribunal created for the purpose of discharging certain functions under the Rent Statute. Where the landlord specifically asked for possession on any of the grounds on the date on which he is entitled to ask for possession under the provisions of the Act, there would be no objection to the tenant either submitting to an order of eviction or entering into a compromise submitting to an order of eviction. His Lordship said that there is no magic in the words "if the Controller is satisfied". After referring to certain English decisions, his Lordship approved a Division Bench Judgement of Punjab High Court in Babu Ram Sharma Vs. Pal Singh (1959) Pun. Lr. Reports 33 wherein Hon'ble Dua, J (as his Lordship then was) observed:
"I am definitely of the opinion that if the compromise decree is based on the grounds on which the landlord could claim a decree for eviction under section 13 of the East Punjab Urban Rent Restriction Act, then it is within the jurisdiction and competence of the Rent Controller to pass such a decree with a default clause"
42. Then comes another decision arising from a consenting decree under the provisions of Bombay Rent Act, 1947 in Nagindas Ramdas Vs. Dalpatram Iccharam AIR 1974 SC 471. The Court considered the provisions of Bombay Rent Statute and Delhi Rent Statute to find the extent, the provisions of two statutes are pari materia. It said:
"...there is no escape from the conclusion that the Rent Court under this 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 hours the Act or ultra vires the Act. The existence of one of the statutory grounds mentioned in Ss. 12 and 13 is a sine qua non to the exercise of jurisdiction by the Rent Court under those provisions. Even parties cannot by their consent confer such jurisdiction on the Rent Court to do something which, according to the legislative mandate, it could not do." (para 18)
43. Having said so, the Court considered its earlier decisions in Bahadur Singh (supra), Smt. Kaushalya Devi (supra) and Ferozi Lal Jain (supra) and then referred to K. K. Chari Vs. R. M. Sheshadri (supra), and, held that earlier three decisions are clearly distinguishable since in those cases there was absolutely no material on the basis of which the rent court satisfied itself with regard to the existence of a statutory ground for eviction. It then considered and analysed the decision in K. K. Chari (supra) and in para 26 said, as under:
"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 prerequisite 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."
44. There are other decisions which have observed that if a compromise has been obtained by fraud or misrepresentation, it would be a nullity and a decree based on such compromise would also be a nullity and cannot be executed. The proposition is unexceptionable. These decisions on the face of it, however, are distinguishable for the reason that the compromise in the case in hand, has not been challenged on the ground of fraud. Rather respondent no. 4 himself has filed affidavit in favour of landlord that he was a party in the compromise and before the Appellate Court has also reasserted about compromise he has entered with the landlord and also disputed tenancy rights of the petitioner. Before this Court also, Sri Arvind Srivastava, learned counsel for petitioner, could not substantiate any such plea taken by petitioner that the compromise in question has not actually been entered into between respondent no. 3 and 4, but has been obtained by playing fraud.
45. Considering the entire facts of this case, in the context of exposition of law set up hereinabove in the backdrop of Apex Court's binding authorities, I find that in the terms of compromise, tenant has specifically, candidly and unambiguously accepted and admitted the genuity of personal need of landlord and has not contested it at all. Here is not a case where bona fide need set up by landlord in his application filed under Section 21 (1) (a) of Act, 1972 has been contested by tenant by filing written statement. On the contrary, he has signed a compromise with the landlord in which he has specifically admitted genuine need of landlord. There is sufficient averment in the compromise that the need set up by landlord about settlement of his son in the business for which shop in dispute was required by him, is correct. It is in this backdrop, this Court admits no doubt that the material existed before Prescribed Authority to satisfy itself about the genuity and bona fide of personal need of landlord and, therefore, instead of going into any further enquiry in the matter, it was well within its competence to decide the application on the basis of compromise and to pass a compromise decree. I do not find any illegality in the decree in question, in the above facts and circumstances, and material available on record.
46. Since petitioner has failed to assail the correctness of compromise decree as also his right to challenge the decree in appeal, I do not find that other ancillary issues arising from subsequent events need any adjudication by this Court, since the very issue going to the root of the matter having been decided against petitioner, there is no reason to proceed further to examine the circumstances in which the property in dispute stood demolished and its consequences etc.
47. In the result, and, in view of the discussions made above, this writ petition must fail. It is, accordingly, dismissed.
48. There shall be, however, no order as to costs.
Dt. 23.11.2012 PS