Andhra HC (Pre-Telangana)
Kanamarlapudi Kusumamba vs Chejerla Venkata Subbaiah on 7 April, 1993
Equivalent citations: 1993(2)ALT333
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
ORDER Syed Shah Mohammed Quadri, J.
1. The controversy in this C.R.P. has its seed in the womb of the compromise which was entered into between the parties in the earlier round of litigation. It relates to executability of the compromise decree in proceeding initiated by the petitioner under the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1950 (hereinafter called as "the Act'). The petitioner is the landlady and the respondent is the tenant. The landlady filed an application for eviction of the tenant in R.C.C.No. 9 of 1987 on the file of the Principal District Munsif, Kavali, on two grounds, viz., i) wilful default, and ii) bona-fide requirement for the business of her son. The parties compromised and the learned Principal District Munsif passed decree in terms of compromise on 24-11-1988. Pursuant to the said compromise decree the tenant was to deliver vacant possession of the premises to the landlady on or before September 30,1991. As the tenant failed to do so, the landlady filed E.P.No. 102 of 1991. The tenant raised the objection that the compromise decree of eviction is nullity and the same is not executable. The executing court held that the decree was nullity and not executable and accordingly dismissed the E.P. on January 23,1992. The validity of this order is questioned in this C.R.P.
2. Mr. M.V. Ramana Reddy, the learned counsel for the petitioner, submits that having had the advantage of staying in the premises till September 30,1991 and the benefit of withdrawal of the suit, O.S.No. 539 of 1987 filed by her for recovery of arrears of rent under the compromise decree, the tenant cannot be allowed to approbate and reprobate by pleading the decree is unexecutable. The learned counsel further submits that the compromise decree is not nullity as having regard to the facts and circumstances of the case and the background in which the compromise was entered into between the parties it cannot be said that the Rent Controller was not satisfied of the ground of eviction before passing the compromise decree.
3. Mr. M.V. Narayana, the learned counsel for the respondent, on the other hand, contends that the compromise decree is nullity and it cannot be executed and that the learned Rent Controller has rightly dismissed the E.P. He further contends that in the compromise decree neither there is any admission of the tenant with regard to the grounds of eviction nor is there any finding of the Court with regard to the satisfaction of the grounds of eviction, therefore it cannot be said that the order under revision was passed on the satisfaction of the Rent Controller as contemplated by the Act.
4. In view of the above contentions, two points arise for consideration:
(i) whether the compromise decree in question is invalid and therefore inexecutable; and (ii) having derived advantages under the decree, can the tenant be permitted to urge that the decree is nullity and inexecutable ?
5. First I shall take up the first point. The landlady let out the premises bearing No. 10-15-8, 10-15-84, situate in trunk road, Kavali Municipal area, Kavali (hereafter referred to as "the premises") to the tenant on a monthly rent of Rs. 625/- for a period of two years with effect from 5-1-1984. Alleging that the tenant fell into arrears in payment of rent of the said premises, the landlady filed O.S.No. 539 of 1987 on the file of the District Munsif, Kavali, for recovery of a sum of Rs. 11,478-10. While so she also filed R.C.C.No. 9/87 for eviction of the tenant on 11-9-1987 under Section 10 (2) (i), (ii) and (iii) of the Act. The tenant did not appear in the eviction proceedings and he was set ex-parte on 10-12-1987. He filed I.A.No. 188/87 to set aside the ex-parte order. That petition was allowed. But again he was set ex-parte on 8-9-1988. By that time he did not file counter in the eviction case though about a year elapsed from the date of filing of the eviction petition. However, the parties settled their disputes; on 24-11-1988 the learned advocate for the landlady endorsed 'no objection' on the application filed by the tenant to set aside the order setting him ex-parte on 10-12-1987, consequently that order was set aside and on the basis of the compromise filed by the parties a decree was passed by the Court on 24-11-1988. The compromise decree insofar as it is relevant for our purpose reads as follows:
" 1. That the respondent is hereby granted time till 30-9-1991 to vacate the petition schedule premises and deliver the petition schedule premises to the petitioner and in default thereof that the petitioner be at liberty to take possession through the process of the Court.
2. That the respondent be and hereby granted to pay the rent for the petition schedule premises at Rs. 850/- per month regularly without default and obtain receipts thereof and if any wilful default in payment of the rents, the petitioner is at liberty to evict the respondent and take delivery of the petition schedule property and the time granted supra will be treated as cancelled.
3. That the petitioner be and hereby is directed to get his suit O.S.No. 539/ 87 on the file of Principal District Munsif, Kavali, dismissed with costs. No order as to costs. The terms of the compromise is hereby appended."
6. From a perusal of the above terms of compromise it is clear that the tenant got time till 30-9-1991, about two years and ten months to vacate the premises and the benefit of withdrawl of the suit for recovery of rent filed against him by the landlady and the landlady got advantage of enhancement of rent from Rs. 625 /- to Rs. 850/- per month. This decree was acted upon insofar as conditions No. 2 and 3 are concerned. Now the tenant is assailing the compromise decree as nullity and inexecutable. This is on the ground, Section 10 of the Act enjoins that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 12 and 3 of the Act. Sub-section (2) of Section 10 provides ground for eviction of a tenant and says that if the Controller is satisfied of any one grounds he shall make an order directing the tenant to put the landlord in possession of the building and if he is not so satisfied he has to reject the application. Section 12 of the Act deals with recovery of possession by landlord for repairs, alterations or additions or for reconstruction of a building from the tenant and Section 13 deals with recovery of possession by landlord for repairs, alterations or additions or for reconstruction of building in respect of which the Government shall be deemed to be the tenant. We are not concerned with either of these Sections. Thus it is clear that in view of the provisions of Section 10 of the Act, the satisfaction of the Controller about the existence of the grounds enumerated therein is a precondition for eviction of a tenant. If such a satisfaction, whether express or implied is to be found in a compromise decree of eviction passed under the Act, the same cannot be treated as nullity. But if the satisfaction of the Controller as required under Section 10 of the Act cannot be spelt out from the compromise decree the same would be inexecutable and the tenant cannot be evicted pursuant to such a decree having regard to Section 10 of the Act.
7. Rule 3 of Order 23 of the Code of Civil Procedure prescribes the procedure for passing compromise decree. It says, inter alia, that where it is proved to the satisfaction of a Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, irrespective of the fact that the subject matter of agreement, compromise or satisfaction is the same as the subject-matter of the suit. The explanation appedened to the said rule declares that an agreement or compromise which is void or voidable under the Indian Contract Act, 1872, shall not be deemed to be lawful within the meaning of this rule. It may also be noticed that Rule 3-A bars a suit to set aside a decree on the ground that the compromise on which the decree is based, was not lawful.
8. From the above provisions it is clear that before recording a compromise | the Court has to be satisfied that the agreement or the compromise which is sought to be recorded, is lawful. It follows that once the compromise is recorded, the presumption would be that the Court was satisfied with regard to the compromise being lawful before the same was recorded and the burden of showing that it was not lawful is on the person who alleges it to be so.
9. The question whether the decree of compromise recorded by a Rent Controller,under various Acts, fell for consideration of the Courts including the Supreme Court. Here it will be useful to refer to the cases cited at the bar.
10. Ferozi Lal v. Man Mal, arose under the Delhi and Ajmer Rent Control Act, 1952. During the pendency of the eviction proceedings the landlord and the tenant entered into a compromise and a decree of eviction was passed in terms of the compromise. When the decree was sought to be executed the tenant raised an objection that he was not bound by the decree. Thereafter a second compromise was entered into between the parties. In addition to the four years period that he had under the first compromise, he was given further time for vacating the premises. After expiry of the extended period the tenant again resisted the execution of the decree inter alia on the ground that the compromise decree was in contravention of Section 13 of the said Rent Control Act and was therefore nullity as such not executable. The executing Court as well as the High Court accepted the contention. On appeal to the Supreme Court it was observed:
"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 subletting is true or not. The order made by its does not show that it was satisfied that the subletting complained of has taken place, nor is there any other material on record to show that it was so satisfied. The Court had proceeded solely on the basis of the compromise arrived at between the parties and that the court was not competent to pass such a decree. It was held that the compromise decree was nullity."
11. The case of Kaushalya Devi v. K.L. Bansal, also arose under the same Act. The parties entered into a compromise pursuant to which a compromise decree was passed on July 6,1956 ordering eviction of the tenant by December 31,1958. The tenant failed to vacate the premises as per the decree. In the execution of the compromise decree the tenant challenged the validity of the compromise decree. Having lost before the original authority as well as the appellate authority, the unsuccessful landlord filed a revision before the High Court. The revision was dismissed by the High Court, holding that the compromise decree was a nullity as it did not indicate that any of the grounds mentioned in Section 13 of the said Act existed. He than appealed to the Supreme Court. The Supreme Court noted that the case was covered by the judgment of the Supreme Court in Bahadur Singh v. Muni Subrat Dass, (1969) I SCWR 51 and accordingly dismissed the appeal. In Bahadur Singh's case3 a decree was passed on the basis of an award which was held to be in contravention of Section 13 (1) of the said Act, as the Court did not record its satisfaction with regard to existence of grounds of eviction. There the Supreme Court held that on the plain wording of that Section the Court was forbidden to pass the decree, so the decree was a nullity and could not be enforced in execution.
12. In Balakrishnamurthy v. Veeranarasaiah, , the landlord filed an application under Section 10 of A.P.Buildings (Lease, Rent and Eviction) Control Acton the ground of wilful default in payment of rent and sub-letting of the premises without the permission of the landlord and user of the premises in a manner inconsistent with the purpose of the lease. The case was contested by the tenant denying all the allegations. After the landlord led the evidence to the effect that the business in the premises was run solely by persons other than the tenant, the parties settled the matter and a memo of compromise was filed; pursuant to it eviction of the tenant was ordered. The tenant failed to vacate the premises within the stipulated time. The landlord filed execution petition. One of the subtenants, however, contended that the decree of eviction passed on compromise was nullity and was not binding on him. After considering the judgment of the Supreme Court referred to above, the learned Judge observed as follows :
"The court's jurisdiction to pass an order of eviction is, no doubt, conditioned by the existence or proof of one or more of the grounds specified in the statute. But the satisfaction of the Court, which is an essential pre-requisite for decreeing eviction, need not necessarily be the product of a contested proceeding. What is material is the cognizance or the awareness of the Court that the requisite grounds exist. If this cognizance or awareness can be proved by the record, the fact that the order of eviction has emanated as a result of the consent between the parties will be immaterial."
The learned Judge further observed :-
"It was not necessary that the satisfaction of the Court about the existence of the ground should spring out of a judicial adjudication . Even if the proceeding does not culminate in the Court's adjudication, it is possible for it to be satisfied about the existence of the requisite condition and that the satisfication which was not based on its decision, may have, nevertheless, arisen by reason of the facts and circumstances disclosed by the record."
13. K.K. Chari v. R.M. Seshadr, That case arose under the Tamil Nadu Buildings (Lease and Rent Control) Act. The question before the Supreme Court was whether the order of eviction passed by the Court of Small Causes, Madras, was nullity and as such not executable. In that case the landlady filed an application for eviction on the ground of bona-fide requirement under the said Act. During the pendency of the proceedings, the premises was purchased by another person and the tenancy was attorned. The decree for eviction was passed by consent of the parties. The landlord initiated proceedings for execution of the compromise decree. The tenant raised objection that the decree was inexecutable. That was over-ruled by the executing Court and the tenant was directed to deliver possession on or before the time granted by the executing court. The tenant carried the matter in revision to the High Court, which was allowed holding that the decree was passed on the basis of compromise and that the Rent Controller had not applied his mind with regard to establishing the bona-fide requirement of the landlord, therefore the decree was nullity. On appeal to the Supreme Court, after considering the judgments in Bahadur Singh's case (3 supra) ; Ferozi Lal's case (1 supra) and Kaushalya Devi's case (2 supra), the Supreme Court observed as follows:
"That 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 consentorder. Satisfaction of the Court, which is no doubt 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 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 the landlord without further enquiry and that 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 other of the statutory grounds."
14. Nagindas v. Dalpatram, , is yet another case which arose out of execution of a compromise decree of eviction against the tenant against whom proceeding for eviction was initiated under the Bombay Rents, Hotel and Lodging House Rates Control Act. The Supreme Court following the judgment in K.K.Chari's case (5 supra) pointed out:
"The consent decree for possession passed by the Court is not necessarily a nullity. If there was a clear admission in the compromise, incorporated in the decree, of the fundamental facts that could constitute a ground for eviction under Section 12 or Section 13, it will be presumed that the Court was satisfied about the existence of such statutory ground and the decree for eviction though apparently passed on the basis of a compromise, would be valid."
15. Regarding the material to be considered for pronouncing the satisfaction of the Court about the existence of statutory grounds, the Supreme Court observed that such material might take the shape either of evidence recorded or produced in the case, or, it might partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself and that admissions, if true and clear, were by far the best proof of the facts admitted and they by themselves could be made the foundation of the rights of the parties.
16. In Roshan Lal v. Madan Lal, the question of executability of a compromise decree passed in eviction proceedings initiated under the Madhya Pradesh Accomodation Control Act, fell for consideration of the Supreme Court. On consideration of its earlier judgments, their Lordships declared the law as follows:
"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. 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 "viction because the landlord, in the circumstances, is entitled to have such a decree under the law."
With regard to recording compromise under Order 23, it was observed, "The provisions of Order 23 Rule 3 of the Code of Civil Procedure apply to eviction suits governed by the special statutes. If the agreement or compromise for the eviction of the tenant is found, in the facts of a particular case, to be in violation of a particular Rent Restriction or Control Act, the Court would refuse to record the compromise as it will not be a lawful agreement. If on the other hand, the Court is satisfied on consideration of the terms of the compromise and, if necessary, by considering them in the context of the pleadings and other materials in the case, that the agreement is lawful, as in any other suit, so in an eviction suit, the Court is bound to record the compromise and pass a decree in accordance therewith, and that passing a decree for eviction on adjudication of the requisite facts or on their admission in a compromise, either express or implied, is not different."
17. In Suleman Noormohamed v. Umarbhai, , a case under the Bombay Rents, Hotel and Lodging House Rates Control Act, the Supreme Court considered the question of executability of the compromise decree passed under that Act and observed, -
"Where an eviction suit under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, was disposed of on compromise between the parties, the tenant having 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, and there was abundant intrinsic material in the compromise itself to indicate that the decree passed upon its basis was not in violation of the Act but was in accordance with it, the compromise decree was not a nullity and could be executed on non-compliance."
It will also be of advantage to note the following observation of the Supreme Court on the aspect of satisfaction of the Court in respect of legality of compromise which is recorded by it under Order 23 Rule 3 C.P.C.
"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."
18. From the above discussion it follows that a decree for eviction passed under the Act on the basis of a compromise is not per-se nullity, if on the basis of the material on record including compromise it can be shown that the Court would be deemed to have been satisfied with the existence of the grounds of eviction alleged by the landlord and the petitioner. When the compromise is recorded the presumption would be that the Court has satisfied itself that the compromise was legal unless the contrary is shown.
19. In the instance case the petition of the landlord for eviction was based on two grounds; wilful as fault in payment of rents and bona fide personal requirement of the son of the landlady. In regard to the recovery of arrears of rent of Rs. 11,478/- which was said to have fallen due, a suit was filed and was pending in the Court of the District Munsif, Kavali. In the eviction case, the tenant was set ex-parte twice. In the period of one year between the date of eviction petition and setting ex-parte for the second time, he did not file any counter. In the absence of any counter by the tenant it can be presumed that the learned Rent Controller was satisfied that the tenant had accepted the averments in the petition for eviction and suffered a decree instead of contesting the same by agreeing to vacate the premises and withdrawal of the suit for recorvery of arrears of rent, though for the period agreed upon between the parties to vacate the premises, namely, two years and ten months the tenant had also agreed to pay the enhanced rent of Rs. 225/-.In the absence of any material on record to show that the compromise was illegal, it has to be presumed that the compromise was lawful and was therefore recorded. For the above reasons, in my view the compromise decree in question is not nullity and is executable.
20. Insofar as the second point is concerned, Mr. M.V. Ramanareddy, relied upon a judgment of the Supreme Court in R.N. Gosain v. Yashpal Dhir, . In that case an eviction petition filed by the landlord under Section 13 -A of the East Punjab Urban Rent Restriction Act, was allowed by the High Court in revision. While allowing the revision the High Court granted a month time to the tenant to vacate the premises on condition of his paying the entire arrears of rent within fifteen days from the date of the order and making an undertaking that he should hand over the vacant possession of the premises on the expiry of the said period. The tenant however, added in the undertaking that it was subject to filing S.L.P. in the Hon'ble Supreme Court against the order of eviction. In the S.L.P. filed by the tenant, the Supreme Court observed -
"Law does not permit a person to both approbate and reprobate. This principle is based on the doctrine of election which postulates that no party can accept and reject the same instrument and that" a person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage."
What Mr. Ramana Reddy contends is that in the instant case also the petitioner has had the advantage of the period of two years for vacating the premises and withdrawal of the suit for recovery of arrears of rent pursuant to the compromise decree, so he cannot now turn round and say that the compromise decree is inexecutable. Prima-facie the argument appears to be attractive, but on examination it lacks substance. In the case before the Supreme Court, the tenant was having the threat of immediate eviction but for the undertaking given by him pursuant to the order of the High Court. He availed the advantage of the order which he subsequently questioned in the Supreme Court. It is in this context that the Supreme Court observed that law did not permit a person to both approbate and reprobate. But on the facts of this case that doctrine has no " application. Where the question is one of validity of a decree or order in view of the mandatory statutory provisions based on public policy, the equitable doctrine of approbate and reprobate would have no application. Section 10 of the Act as noticed above, ordains that a tenant shall not be evicted whether in execution of a decree or otherwise except in accordance with the provisions of this Section or Sections 12 and 13 of the Act. Where the plea is that the decree . is nullity not being in accordance with Section 10 of the Act, it cannot be countered by applying the doctrine of approbate and reprobate.
21. For the above reasons the compromise decree dated 24-11-1988 in R.C.C.No. 9 of 1987 is held not to be nullity and as such executable. Consequently the order under revision is set aside. The C.R.P. is accordingly allowed, but in the circumstances of the case without costs.