PETITIONER: SULEMAN NOORMOHAMED ETC. ETC. Vs. RESPONDENT: UMARBHAI JANUBHAI DATE OF JUDGMENT23/02/1978 BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. SARKARIA, RANJIT SINGH CITATION: 1978 AIR 952 1978 SCR (3) 387 1978 SCC (2) 179 ACT: Civil Procedure Code-Order 23 Rule 3-While recording compromise whether court should mention that the compromise is lawful-Can it be presumed-Bombay Rent Act 1947-Sec. 12(3)b-Decree based on compromise whether a nullity- Statutory ground for eviction whether can be made out from the material before the court-Compromise deed by which tenant agrees to pay arrears of rent as demanded in the plaint, if sufficient. HEADNOTE: The appellant landlord filed a suit against the respondent tenant claiming a decree for eviction on grounds of non- payment of rent and for bonafide personal necessity in accordance with the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The respondent filed a written statement. An exparte decree was passed which was set aside on the application of the respondent. Ultimately, the suit was disposed of on the compromise between the parties. According to the terms of the compromise the tenant was to hand over possession of the suit premises to the landlord within a period of 3 years. The tenant did not vacate on the expiry of the period and contested the execution on the ground that the decree was a nullity. The Trial Court held that the decree was a nullity. That was upset by the Appellate Court. The High Court accepted the Revision Application filed by the tenant and held that the compromise decree, is a nullity and. therefore, cannot be executed. The High Court held that the order passed by the Court did not disclose any satisfaction recorded by the Court about the existence of one or more grounds of eviction under the Act, and in the compromise pursis also there is no admission on the part of the tenant express or implied. Allowing the appeal, HELD : 1. It has been laid down by the Court in the case of Nagindas Ramdas that existence of any of the statutory grounds is a sine quo non to the exercise of jurisdiction by the Rent Court in order to enable it to make a decree for eviction. It was also laid down that if at the time of passing of the decree there was some material before the Court on the basis of which the Court could be prima facie satisfied about the existence of a statutory ground for eviction it would be presumed that the court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise would be valid. This Court also held that such material might take the shape of either of evidence recorded or produced or express or implied admission made in the compromise agreement itself. In Roshanlal's case this Court field that the Court can pass a decree on the basis of a compromise and that in such a situation the only thing to be seen is whether the compromise is in violation of the requirements of law. [389 C-G] Nagindas Ramdas v. Dalpatram Ichharam @ Brijram and Ors., [1974] 2 S.C.R. 544 and Roshan Lal v. Madan Lal, [1976] 2 S.C.R. 878, relied on. 2. There is 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. If there is no dispute about the standard rent or no bonafide dispute or the dispute raised is a mere pretence of it a decree can follow under section 12(3)(b) of the Act in a suit in which rent is not due for 6 months of more but is due even for lesser period. The tenant will get the protection against eviction in such a case only if he pays or tenders in court on the first date of hearing of the suit or such other date as the Court may fix. In the instant case, the High Court was not right that on the face 3 88 of the compromise pursis or the order passed thereon there was no material to show that the tenant had either expressly or impliedly suffered a decree for eviction as being liable to be evicted in accordance with section 12(3) (b). While recording the compromise under order 23 rule 3 of the Civil Procedure Code, it is not necessary for the Court to say in express terms in the order that it was satisfied that the compromise was a lawful one. It will be presumed to have done so unless the contrary is shown. But that apart, on examination of the plaint which certainly should be looked into and which must have been in the records of the Court at the time of passing of the compromise decree, it would be found that landlords had claimed arrears of rent for two months at the rate of Rs. 17/- per month and mesne profits also for one month upto the date of the suit at the same rate. They had also claimed electricity charges @ Rs. 2/- per month. In the compromise petition the same amount of rent, mesne profit and electric charges are admitted by the tenants to be payable to the landlords. There is nothing to indicate that any genuine dispute was raised by the tenant in regard to the standard rent or the electric charges nor is there anything to show that he had ever filed a Petition under section 11 of the Act or any other provision of law for fixation of standard rent. Nor was he able to show that the Court at his request had ever fixed any other date for payment of the said amount. In view of his admission in the compromise deed to pay the rent as demanded it is manifest that there was no dispute in the case in regard to the standard rent. The facts clearly show that the tenant had incurred liability to be evicted under the said provisions of law and the compromise decree was passed on the tenant's impliedly admitting such liability. [390 F-G, 391 C-D, E-H, 392 A-B] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 226 of 1976.
(Appeal by Special Leave from the Judgment and Order dt. the
17th October, 1975 of the Gujarat High Court in Civil
Revision Appln. No. 679 of 1972).
P. H. Parekh, Manju Sharma & C. B. Singh for the
Appellants.
V. N. Ganpule for the respondent.
The Judgment of the Court was delivered by
UNTWALIA, J.-This is a decree-holders’ appeal by Special
leave. The sole respondent is the judgment debtor. The
appellants filed a suit against the respondent in the Small
Causes Court at Ahmedabad in 1964 claiming a decree for
eviction against him on the ground of non-payment of rent
and bonafide personal necessity. The grounds made out were
in accordance with the relevant provisions of The Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947-
hereinafter to be referred to as the Act. The respondent
filed a written statement with a view to contest the suit.
Eventually on account of the default of the defendant the
suit was taken up for hearing ex-parte and an ex-parte
decree was passed on the 16th of March, 1966. The defendant
applied under Order IX Rule 13 of the Code of Civil Pro-
cedure-hereinafter to be referred to as the Code, for
setting aside the decree. It was set aside. But ultimately
the suit was disposed of on the 1st March, 1967 on
compromise between the parties. According to the terms of
the compromise decree, the judgment-debtor was to hand over
possession of the suit premises to the decree holders within
a period of three years i.e. by 1st of March, 1970. But he
did not do so. Thereupon the decree-holders filed an
execution case to get
389
possession of the property. The respondent contested the
execution on the ground that the decree was a nullity. The
first Court accepted his plea but on appeal by the decree-
holders it was held by the Appellate Court that the decree
was not a nullity and was executable. The respondent filed
a revision application in the Gujarat High Court which has
been allowed. The High Court has accepted the respondent’s
plea that the compromise decree is a nullity and hence
cannot be executed.
It is not necessary to review again and again all the
earlier judgments of this Court on the point. It will be
sufficient to refer only to two namely, Nagindas Ramdas v.
Dalpatram Ichharam @ Brijram and Ors(1)-a judgment which is
noticed by the High Court also in its order under appeal and
the case of Roshan Lal v. Madan Lal(2).
It was pointed out in Nagindas’s case (supra) by one of us
(SarKaria J) that the existence of one of the. statutory
grounds mentioned in sections 12 and 13 of the Act, as in
the case of other similar States Statutes, is a; sine qua
non to the exercise of jurisdiction by the Rent Court in
order to enable it to make a decree for eviction. Parties
by their consent cannot confer jurisdiction on the Rent
Court to do something which according to the legislative
mandate it could not do. The Court while recording a
compromise under Order XXIII, Rule 3 of the Code has to
satisfy itself that the agreement between the parties is
lawful; in other words is not contrary to the provisions of
the Act But it has been clearly laid down in Nagindas’s
case at page 552
“…….. that if at the time of the passing
of the decree, there was some material before
the Court, on the-basis of which, the Court
could be prima facie satisfied,, about the
existence of a statutory ground for eviction,
it will be presumed that the Court was so
satisfied and the decree for eviction, though
apparently passed on the basis of a
compromise, would be valid. Such material may
take the shape either of evidence recorded or
produced in the case, or, it may partly or
wholly be in the shape of an express or
implied admission made in the compromise
agreement, itself,. . . .”
In Roshan Lal’s case, one of us (Untwalia J.) following
Nagindaes case reiterated the same view. At page 882
delivering the judgment of this Court, it has been said
“The Court can pass a decree, on the basis of
the compromise. In such a situation the only
thing to be seen is whether the compromise is
in violation of the requirement of the law.
In other words, parties cannot be permitted to
have a tenants eviction merely by agreement
without anything more. The compromise must
indicate either on its. face or in the
background of other materials in the case that
the tenant expressly or impliedly is agreeing
to suffer a decree for eviction because the
landlord, in the circumstances, is entitled to
have such a decree under the law.”
(1) [1974] 2 S.C.R. 544.
(2) [1976] 1 S.C.R. 878,
390
With reference to the requirement of the law under Order
XXIII Rule 3 of the Code, it has been observed further on
the same page :-
If the agreement or compromise for the
eviction of the tenant is found, on 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. Passings a decree for eviction on
adjudication of the requisite facts or on
their admission in a compromise either express
or implied, is not different.”
The High Court has held the decree to be a
nullity on the following grounds :-
(1) Admittedly, the order passed by the
learned Judge does not disclose any
satisfaction recorded by him about the
existence of one or more grounds of eviction
under the Act. Naturally, therefore, the
decree does not disclose that the learned
Judge, who passed the eviction decree, was
satisfied about the existence of any of the
grounds for eviction.
(2) In the compromise pursis also, there is
no admission on the part of the defendant,
express or implied, under section 12 or
section 13 of the Act.”
In arriving at the said conclusions the High Court has left
out of consideration the affidavit filed on behalf of the
appellants at the time, the suit was taken up for hearing
ex-parte and the ex-parte decree following thereupon. We
also do not propose to refer to those materials to arrive at
our conclusions, which are different from those of the High
Court. But even apart from those materials, there is abun-
dant 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.
In Vora Abbasbhai Alimahmomed v. Haji Gulamnabi Haji Safi-
bhai(1) Shah J, as he then was, delivering the judgment of
this Court pointed out that when the conditions of clause
(a) of sub-section (3) of section 12 of the Act are
fulfilled the Court is bound to pass a decree in ejectment
against the tenant. But in relation to clause (b) it has
been said at page 166 :-
“The clause deals with cases not falling
within cl. (3) (a) i.e. cases (i) in which
rent is not payable by the month (ii) in which
there is a dispute regarding the standard rent
and
(1) [1964] 5 S.C.R. 157.
391
permitted increases, (iii) in which rent is
not due for six months or more. In these
cases the, tenant may claim protection by
paying or tendering in Court on the first day
of the hearing of the suit or such other date
as the Court may fix, the standard rent and
permitted increases and continuing to pay or
tender in Court regularly such rent and
permitted increases till the suit is finally
decided and also by paying costs of the suit
as directed by the Court.”
It clause (b) is attracted as being any other case of the
type (ii) i.e. “in which there is a dispute regarding the
standard rent and permitted increases”, then in such a case,
“the tenant would not be in a position to pay or tender the
standard rent, on the first date of hearing, and fixing of
another date by the Court for payment or tender would be
ineffectual, until the standard rent is fixed.” Hence the
Court, on the application of the tenant, has to fix the
standard rent first. But if there is no dispute or no bona
fide dispute, or the dispute raised is a mere pretence of
it, a decree can follow under clause (b) of subsection (3)
of section 12 of the Act in a suit in which rent is not due
for six months or more but is due even for a lesser period.
The tenant will get the protection against eviction in such
a case only if he pays or tenders in Court on the first date
of the hearing of the suit or such other date as the Court
may fix the rent due (leaving aside the question of costs).
In the instant case the High Court was not right that on the
face of the compromise pursis or the order passed thereon,
there was no material to show that the tenant had either
expressly or impliedly suffered a decree for eviction as
being liable to be evicted in accordance with section 12 (3)
(b) of the Act. While recording the compromise under Order
XXIII Rule 3 of the Code, it is not necessary for the Court
to say in express terms in the order that it was satisfied
that the compromise was a lawful one. It will be presumed
to have, done so, unless the contrary is shown. But that
apart, on examination of the plaint which certainly could be
looked into and which must have been in the records of the
Court at the time of the passing of the compromise decree,
it would be found that the landlords had claimed arrears of
rent for two months @ Rs. 17/- per month and mesne profit
also for one month upto the date of the suit at the same
rate. They had also claimed light charges @ Rs. 2/- per
month. In, the compromise petition, paragraph 2, the same
amount of rent, mesne profit and electric charges are
admitted by the tenants to be payable to the landlords There
is nothing to indicate that any genuine dispute was raised
by the tenant in regard to be standard rent or the electric
charges Nor is there anything to show that he had ever filed
a petition under section 11 of the Act or any other
provision of law for fixation of standard rent. In other
words, there is nothing to show that the tenant could claim
protection from eviction in accordance with clause (b) of
sub-section (3) of section 12 of the Act on the ground that
he was not in a position to pay or tender the rent due on
the first date of the hearing of the suit, which must have
been fixed before the passing of the ex-parte decree. Nor
was he able to show that the Court at his request bad ever
fixed any other date for
392
payment of the said amount In paragraph 3 of the compromise
petition also it is admitted that the standard rent would be
Rs 17/- per month plus Rs 2/- electric charges and the
defendant would pay the mesne profits at the aforesaid rates
from 1-3-1967. It is, therefore manifest that there was no
such dispute in this case in regard to standard rent which
could give any protection to the tenant against his eviction
under section 12 (3) (b) of the Act The facts clearly show
that he had incurred the liability to be evicted’ under the
said provisions, of law and the compromise decree was passed
on the tenant’s impliedly admitting such liability If a
decree for possession Would have been passed in inviting the
tenant would not have got three years’ time to vacate the
premises. He, therefore, agreed to suffer a decree by
consent and gained three years’ time under it. But the
unavoidable uncertainties of litigation and the delay in
disposal of cases at all stages have enabled him to gain a
period of about 1 1 years. more by now. In our judgment the
decree under execution is not a nullity and has got to be
executed by the Execution Court without any further loss of
time, as quickly as possible.
In the result, we allow this appeal with costs and set aside
the judgment and order of the High Court.
P.H.P. Appeal allowed.
393