PETITIONER: NAGINDAS RAMDAS Vs. RESPONDENT: DALPATRAM ICHHARAM @ BRIJRAM AND ORS. DATE OF JUDGMENT30/11/1973 BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH PALEKAR, D.G. KRISHNAIYER, V.R. CITATION: 1974 AIR 471 1974 SCR (2) 544 1974 SCC (1) 242 CITATOR INFO : F 1974 SC 994 (103) RF 1975 SC2130 (3,4) R 1978 SC 952 (2,3,4) F 1987 SC1986 (13,20) E 1990 SC1725 (18) ACT: Bombay Rent Act, 1947, Ss. 12 and 13-Compromise decree for eviction-When may be passed. HEADNOTE: The respondent-landlord instituted a suit under the Bombay Rent Act for possession against the appellant-tenant on two grounds, namely, arrears in payment of rent and bona fide requirement of the premises for personal use and occupation. A compromise decree was passed. When the appellant applied for execution of the decree, the appellant contended inter alia that the compromise decree had been passed by the Rent Court without satisfying itself as to the existence of grounds of eviction under the Act and hence, being a nullity, was not executable. The Executing Court accepted the contention. In appeal, the appellate Court set aside the dismissal and remanded the matter holding that there were admissions in the compromise itself from which the Court could be satisfied about the existence of both the statutory grounds for eviction alleged in the plaint. A revision to the High Court was dismissed. Dismissing the appeal to this Court, HELD : (1) The public policy permeating this Act is the protection of tenants against unreasonable eviction. Construing the provisions of s.12,13 and 28 of the Act in the light of this policy, it should be held that the Rent Court under the 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 decors the Act or ultra vires the Act. The existence of one of the statutory grounds mentioned in s. 12 and 13 is a sine qua non to the. exercise of jurisdiction by the Rent Court. Parties, by their consent cannot confer jurisdiction on the Rent Court to do something which, according to the legislative mandate, it could not do. [550C-E] Shah Rasiklal Chunilal v. Sindhi Shyamlal Mulchand, 12 Guj. Law Reporter 1012, approved. Barton v. Fiacham, [1921] 2 K. B. 291 at 299, applied. (2) The fact that 0. 23 r. 3, C.P.C., is applicable to the proceedings does not remove. that fetter or empower the Rent Court to make a decree for eviction dehors the statute. Even under that provision the Court, before ordering that the compromise be recorded, is required to satisfy itself about the lawfulness of the agreement. Such lawfulness or otherwise of the agreement is to be judged also on the ground whether terms of the compromise are consistent with the provisions of the Rent Act. [551 A-C] (3) But, if at the time of the passing of the decree there was some material be- fore the Court on the basis of which the Court could prima facie be satisfied about the existence of a statutory ground for eviction, it win be presumed that the court was so satisfied and the decree for eviction, though passed on the basis of the compromise would be valid. Such material may be in form of evidence recorded or produced or it may be partly or wholly be in the shape of express or implied admissions made in the compromise agreement. Admissions if true and clear are by far the best proof of the facts admitted especially when they are judicial admissions admissible under s. 58, Evidence Act. [552F-H] In the present case, because of the admission to pay the arrears of rent and mesne profits at the contractual rate and the withdrawing of his application for fixation of standard rent, there was no dispute with regard to the amount of standard rent, and there was an admission that the rent was in arrears. The admission of these material facts constitute a ground for eviction under s. 12 (3)(a). [553B- D] Bahadur Singh v. Muni Subrat Dass, [1969] 2 S.C.R. 432, Kaushalya Devi v. Shri K. L. Bansal, [1969] 2 S.C.R. 1048, and Ferozi Lal Jain v. Man Mal, [1970]. 3 S.C.C. 181, held inapplicable. 545 K. K. Chari v. B. M. Seshadri, [1973] 1 S.C.R. 761, followed. Jeshwant Raj Mulukchand v. Anandilal Bapalal, [1965] 2, S.C.R. 350, distinguished. (4) Further the Executing Court is not competent to go behind the decree if the decree on the face of it discloses some material on the basis of which the rent court could be satisfied with regard to the existence of a statutory ground for eviction. If on the face of it the decree does not show the existence of such material or jurisdictional fact, the Executing Court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial court's jurisdiction to pass the decree. The moment it finds that prima facie such material existed its task is complete, and it was not competent to go behind the decree and question its validity. [553G-554B] JUDGMENT:
CIVIL APPELLATE JURISDICTION Civil Appeal No. 2479 (N) of
1972.
Appeal by Special Leave from the judgment and order dated
the 26th October 1972 of the Gujarat High Court at Ahmedabad
in Civil Revision Application No. 1254 of 1972.
S. K. Dholakia, for the appellant.
P. H. Parekh and Sunanda Bhandare, for the respondents.
The Judgment of the Court was delivered by
SARKARIA, J.-Whether the decree dated September 23, 1964,
passed by the Trial Judge in Regular Suit No. 6 of 1963,
filed under the Bombay Rent Control Act, 1947 (for short,
called Bombay Rent Act) directing the eviction of the
appellant is a nullity and, as such, in executable, is the
only question that falls for decision in this appeal by
special leave. It arises out of these facts:
Appellant was a tenant of the premises at Ward No. 3, Nondh
No. 1823/9 in the Salabatpur area of Surat. He was in
arrears of rent since 16-10-1961. On 16-11-1962, the
landlords (respondents herein) served a notice on the
appellant terminating his tenancy and also requiring him to
pay the arrears of rent. On 2-1-1964, the landlords
instituted the suit in the Court at Surat for possession
against the tenant on two grounds, namely :
(i) non-payment of rent in arrears for a
period of more than one year,
(ii) bona fide requirement of the premises by
the landlords for their own use and
occupation.
The rate of contractual rent was Rs. 151- per
month. On 23-9-1964 the parties arrived at a
compromise, the terms of which, as incorpora-
ted in the decree, were as under :
“(i) The defendant do hand over possession of
the suit premises by 30-9-1968 without any
objection. The tenant to pay Rs. 532 50 P as
arrears of rent and mesne profits upto 30-9-
1964. The plaintiff is to receive Rs. 380/-
deposited by the defendant in court and the
remaining amount is to be paid by the
defendant to the plaintiffs on or about 31-12-
1964. The defendant is to pay Rs. 151- p.m.
as mesne profits from 1-10-1964.
546
(ii) The relationship of the landlord and
tenant between the parties has come to an end
and no such relationship is to be created by
the compromise. The defendant has been given
time to vacate the suit. premises by way of
grace. If the defendant fails to comply with
the aforesaid terms of the decree, the
plaintiffs would be entitled to execute the
decree both for the decretal amount’ as well
as for possession of the suit premises.
(iii) If the plaintiffs get for the defendant
the lease of the premises bearing Nondh No.
1602 of Ward No. 3 on a monthly rent of Rs.
50/- the defendant is to hand over the
possession of the suit premises immediately.
(v) The parties are to bear their own costs.”
On 12-1-1968, the landlords filed a petition for execution
of the decree. It was dismissed as premature. The tenant
having failed to pay Rs. 152/50 i.e. the balance of arrears.
by the agreed date, the decree-holders on 17-1-1968, again
took out execution for the recovery of the said amount.
Thereafter, on 3-10-1968, the landlords filed the second
petition to- recover possession of the suit premises in
execution of the decree.
The tenant admitted that he had, according to the
compromise, agreed to give possession on 30-9-1968, but
added that in 1968 A.D., the ground floor of the premises
had become submerged in flood waters, and thereupon the
decree-holders seeing his (tenant’s) plight, orally agreed
to allow him to continue in the premises on payment of a
monthly rent of Rs. 151-. and thus the decree had been
adjusted and satisfied. Subsequently, by another
application, the judgment debtor raised an objection that
since the decree had been passed by the Court without
satisfying itself as to the existence of a ground of evic-
tion under the Bombay Rent Act, it was a nullity, and as
such, not executable.
The executing court (Joint Civil Judge, Surat) rejected the
story of adjustment and satisfaction of the decree, but
accepted the other objection holding that the decree was
void because “the Court did not apply its mind while
allowing it under s. 13 (1) (j), Rent Act”. With regard to
the second ground it was said that it had ceased to exist
because “under the terms of compromise the default in
payment of rent was waived and the defendant was given time
to pay up to 30-9-68”. In the result, the execution was
dismissed.
From the order of the executing court, the decree-holders
carried an appeal to the Extra Assistant Judge, Surat, who
held that there was ample material in the shape of
admissions in the compromise, itself, from which the court
could be satisfied about the existence of both the statutory
grounds or eviction alleged in the plaint. He, therefore,
set aside the dismissal of the execution and remanded the
case to the executing court “to be dealt with in accordance
with law”. Aggrieved by that order of the Extra Assistant
Judge, the tenant preferred a
547
revision petition in the High Court of Gujarat,. The
revision was dismissed in limine by an order dated 26-10-
1972, against which this appeal by special leave has been
filed.
Mr. Dholakia, learned Counsel for the appellant, contends
that in view of public policy which underlies all Rent
Control Acts, including the Bombay Rent Act, no decree or
order of eviction can be passed unless the Rent Court or
Tribunal is satisfied, on the oasis of extrinsic material as
to the existence of all the essential facts constituting a
statutory ground for eviction. It is stressed that in the
instant case the material, if any, preceding the decree or
even the so-called admission of the rent being in arrears in
the compromise itself, was far too insufficient to make out
a ground for eviction under s. 12(3) of the Bombay Rent Act.
Clause (a) of s. 12(3), proceeds the argument, could not
cover the case because the tenant had deposited the rent due
upto the date of the suit and had also made an application
for fixation of standard rent; and clause (b) of the same
sub-section did not apply because no interim standard rent
had been fixed by the Court. As regards the ground of bona
fide personal requirement of the land-lords, it is urged
that there was not even a scintilla of material from which
the satisfaction of the court as to the existence of a
ground under s. 13 could be spelled out. The decree,
concludes the Counsel, being based solely on the consent of
the patties, was a nullity, and was directly hit by the rule
laid down by this Court in Bahadur Singh v. Muni Subrat
Dass;(1) Kaushalya Devi v. Shri K. L. Bansal(2) and Ferozi
Lal fain v. Man Mal (3). Learned Counsel has further
attempted to distinguish this Court’s decision in K. K.
Chari v. R. M. Seshadri (4) on the ground that there was
documentary and oral evidence of the plaintiff which not
been challenged in cross-examination, from which the
statutory ground of the premises being required by the
landlord for bona fide personal occupation, had been fully
made out. Reference has also been made to Jeshwant Rai
Mulukchand v. Anandilal Bapalal(5) and Shah Rasiklal
Chunilal v. Sindhi Shyamlal Mulchand(6).
On the other hand, Mr. Parekh, learned Counsel for the
respondents, has canvassed three principal contentions: (i)
The appeal should be dismissed on the preliminary ground
that there is no equity in this case in favour of the
appellant who has, in spite of the ample time granted to
him, contumaciously failed to comply with the decree and
surrender possession even five years after the expiry of the
agreed date fixed for this purpose in the decree. Counsel
has cited in support of this contention, the decisions of
this Court in A. M. Allison V. R. L. Sen (7) and Shri
Balwantrai Chimanlal Trivedi v. M. N. Nagreshna and ors. (8)
(ii) The principle laid down by
(1) [1969] 2. S.C.R. 432.(2) [1969] 2, S.C.R. 1048.
(3) [1970] 3. S.C.C. 181.(4) [1973] 1, S.C.C. 761.
(5) [1965] 2. S.C.R. 350.(6) 12, Guj. Law Reporter 1012.
(7) [1957] S.C.R. 359. (8) [1961] 1, S.C.R. 113.
548
this Court in the cases relied upon by Mr. Dholakia, is not
applicable to a compromise decree passed under the Bombay
Rent Act because:
(a) The provisions of s. 13 of the Delhi and Ajmer Rent
(Control) Act, 1952 (for short, Delhi Rent Act) and s. 10 of
the Madras Buildings (Lease and Rent Control) Act, 1960 (for
short Madras Rent Act), on the interpretation of which the
said decisions are based, are materially different from ss.
12 and 13 of the Bombay Rent Act;
(b) by virtue of Rule 8 of the Bombay Rent Act Rules, the
provision of the Code of Civil Procedure, including 0.23,
Rule 3, which gives a mandate to the court to pass a decree
in terms of a compromise, are applicable to suits under the
Bombay Rent Act, but the application of the Code to
proceedings before the Rent Controller Tribunal under the
Delhi Rent Act or Madras Rent Act has been expressly
excluded’ In support of this contention reliance has been
placed on Chandan Baj v. Surjan (1). (iii) Even if the ratio
of the said Supreme Court decisions applies to decrees under
the Bombay Rent Act, then also both the statutory grounds
for eviction pleaded in the plaint, had been expressly or
impliedly admitted by the defendant in the compromise, and
it will be presumed that in passing the eviction decree the
court was satisfied about the existence of those grounds.
In this view, according to the Counsel, the instant case
will fall within the ratio of Seshadri’s case (supra).
At the stage of the final hearing of the appeal, especially
after the learned Counsel for the appellant had addressed us
on merits, we do not propose to go into the preliminary
ground urged by Mr. Parekh. If the decree turns out to be
without jurisdiction, this equitable plea will be of no
avail; because equity cannot operate to annul a statute. If
the decree is found to be in conformity with the statute,
the appeal will fail on that ground, alone, and it will be
wholly unnecessary to consider the equitable aspect of the
matter.
We, therefore, come straight to the contention (ii) raised
by Mr. Parekh. In order to find out whether or not a decree
or order of eviction can be passed by the Rent
Court/Tribunal exercising special jurisdiction under any of
these statutes Delhi Rent Act, Madras Rent Act and Bombay
Rent Act-on a ground which is not one of the statutory
grounds of eviction, it is necessary to have a peep into the
historical background of the Rent Control laws, in general,
and a quick look at the broad scheme and language of the
relevant statutory provisions of these Acts.
The strain of the last World War, Industrial Revolution, the
large scale exodus of the working people to urban areas and
the social and political changes brought in their. wake
social problems of considerable magnitude and complexity and
their concomitant evils. The country was faced with
spiraling inflation, soaring cost of living, increasing
urban population and scarcity of accommodation. Rack
renting and large scale eviction of tenants under the guise
of the ordinary law, exacerbated those conditions making the
economic life
(1) A.I.R. 1972 M.P. 106.
549
of the community unstable and insecure. To tackle these
problems and curb these evils, the Legislatures of the
States in India enacted Rent Control legislations.
The preamble of the Bombay Rent Act states that the object
of the Act is “to amend and consolidate the law relating to
the control of rents and repairs of certain premises, of
rates of hotels and lodging houses and of evictions”. The
language of the preambles of the Delhi Rent Act and Madras
Rent Act is Strikingly similar. The broad policy and
purpose as indicated in their preambles is’, substantially
the same viz., to protect tenants against their landlords in
respect of the rents, evictions and repairs. With the same
beneficent end in view, all the three Acts interfere with
contractual tenancies and make provisions for fixation of
fair and standard rents, or protection against eviction of
tenants not only during the continuance of their contractual
tenure but also after its determination. indeed, the
neologism ” statutory tenant” has come into existence
because of this protective policy which is common to all
enactments of this kind. Further, all the three Acts create
Courts/Tribunals of special and exclusive jurisdiction for
the enforcement of their provisions.
Section 28 of the Bombay Rent Act which begins with a non-
obstante clause, specifies Courts which shall have exclusive
jurisdiction to entertain and try any suit or proceeding
between a landlord and a tenant inter alia relating to (a)
recovery of rent of any premises;(b) recovery of possession
of any premises to which the provisions of Part II apply.
The words “to which the provisions of Part II apply” are
significant. They indicate that the exclusive jurisdiction
for recovery of possession is to be exercised when the
provisions of Part II, which include ss. 12 and 13, apply.
All these three Acts lay down specific grounds more or less
similar, on which a decree or order of eviction can be
passed by the Rent Court or the Tribunal exercising
exclusive jurisdiction. In the Delhi Rent Act, such grounds
are specified in a consolidated form under s. 13, while the
same thing has been split up into two and provided in two
sections (12 and 13) in the Bombay Rent Act which represent
the negative and positive parts of the same pattern. Taken
together, they are exhaustive of the grounds on which the
Rent Court is competent to pass a decree of possession.
Similarly, in the Madras Rent Act, the grounds on which a
tenant can be evicted, are given in ss. 10, 14 to 16.
Section 13 of the Delhi Rent Act starts with a non-obstante
clause viz., “Notwithstanding anything to the contrary
contained in any other law or any contract, no decree or
order for the recovery of possession of any premises shall
be passed by any Court in favour of the landlord against any
tenant………. Likewise, s. 10(1) of the Madras Rent Act
starts with the clause, “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
14 to 16.”
550
It will thus be seen that the Delhi Rent Act and the Madras
Rent Act expressly forbid the Rent Court or the Tribunal
from passing a decree or order of eviction on a ground which
is not any of the grounds mentioned in the relevant sections
of those statutes. Nevertheless, such a prohibitory mandate
to the Rent Court that it shall not travel beyond the
statutory grounds mentioned in ss. 12 and 13, and to the
parties that they shall not contract out of those statutory
grounds, is inherent, in the public policy built into the
statute (Bombay Rent Act).
In Rasiklal Chunilal’s case (supra), a Division Bench of the
Gujarat High Court has taken the view that in spite of the
fact that there is no express provisions in the Bombay Rent
Act prohibiting contraction, out, such a prohibition would
have to be read by implication consistently with the public
policy underlying this welfare measure. If we may say so
with respect, this is a correct approach to the problem.
Construing the provisions of ss. 12,13 and 28 of the Bombay
Rent Act in the light of the public policy which permeates
the entire scheme and structure of the Act, 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 these 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.
In the view we take, we are fortified by the ratio of the
decision in Barton v. Fincham(1). Therein the Court of
Appeal was considering the scheme of the Rent Restrictions
Act, 1920, the language of S. 5 of which was similar to s.
13 of the Delhi Rent Act. In that context, Atkin L. J.
stated the law on the point thus :
“The section appears to me to limit definitely
the jurisdiction of the Courts in making
ejectment orders in the case of premises to
which the Act applies. Parties cannot by
agreement give the Courts jurisdiction which
the Legislature has enacted they are not to
have.
If the parties before the Court admit that one
of the events has happened which give the
Court jurisdiction, and there is no reason to
doubt the bona fides of the admission, the
Court is under no obligation to make further
inquiry as to the question of fact; but apart
from such an admission the Court cannot give
effect to- an agreement, whether by way of
compromise or otherwise, inconsistent with the
provisions of the Act.”
It is true that in Barton’s case just as in Seshadri’s case
(supra), the statute under consideration expressly
prohibited the Court from passing a decree on a ground which
was not covered by the statute but
(1) (1921] 2, K.B. 291 at 299.
551
the principle equally applicable to cases under statutes
which place such ‘a ‘fetter on the jurisdiction of the
Court, by necessary implication.
The mere fact that Order 23, Rule 3. of the Code of Civil
Procedures applicable to the proceedings in a suit under the
Bombay Rent Act, does not remove that fetter on the Rent
Court or empower it to make a decree for eviction de hors
the statute. Even under that. Provision of the Code, the
Court, before ordering that the compromise be recorded, is
required to satisfy itself about the lawfulness of the
agreement. Such lawfulness or otherwise of the agreement
is. to be judged, also on the ground whether the terms of
the compromise are consistent with the provisions of the
Rent Act.
In view of what has been said above, it is clear that the
general principles enunciated by this Court in cases
referred to by the learned Counsel for the appellant, are a
relevant guide for determining whether in a particular case
the consent decree for. possession passed by the Court under
the Bombay Rent Act is or is not a nullity. But the case in
hand is not in line with Bahadur Singh’s case, Kaushalaya
Devi’s case and Ferozi Lal Jain’s case (supra). On facts,
they are distinguishable from the instant case. In those
cases, there was absolutely no material, extrinsic or
intrinsic to the consent decree on the basis of which the
Court could be satisfied as to the existence of a statutory
ground for eviction.
The case before us falls well nigh within the ratio of
Seshadri’s case (supra). Therein, K. K. Chari, who was
under an eviction order,, purchased the suit premises in the
same city for his occupation. Seshadri was then the tenant
of the suit premises under the vendor, and after the
purchase, he attuned in favour of the appellant and had been
paying rent to him. Chari issued notices under s. 106 of
the Transfer of Property Act, terminating the tenancy of
Seshadri. Since Seshadri did not surrender possession,
Chari filed a suit for eviction under s. 10 (3) (a)(i) of
the Madras Act mainly on the ground that be required the
premises for his bona fide use and occupation. Seshadri
controverted Chari’s claim At the commencement of the
enquiry, Chari was examined before the Court. He
particularly testified how he had purchased the house for
his own occupation. He also filed a number of documents to
establish that the requirement of premises for his own
occupation was true. Seshadri did not prefer to cross-
examine Chari, About 11/2 months thereafter, both the
parties entered into a compromise in these terms :
“(1) The respondent hereby withdraws his
defence in the aforesaid petition and submits
to a decree for eviction unconditionally.
(2) The respondent prays that time for
vacating upto June 5, 1969, might please be
given and the petitioner agrees to the same.
(3) The respondent agrees to vacate the
petition premises and hand over possession of
the entire petition premises to the petitioner
on or before the said date
552
viz. June 5, 1969, without fail under any
circumstances and undertakes not to apply for
extension of time.
(4) It is agreed by both the parties that
this memo of compromise-is executable as a
Decree of Court.”
The Court, after referring to the petition of
the landlord being under s. 10 (3)(a)(i), of
the Act on the ground of his own occupation,
passed the following order
“Compromise memo filed and recorded. By
consent eviction is ordered granting time to
vacate till June 5, 1969. No costs.”
The aforesaid terms of the compromise were
also incorporated in the order. After
distinguishing the former three cases viz.
Bahadur Singh’s case, Kaushalaya Devi’s case
and Ferozi Lal Jain’s case, Vaidialingam J.
speaking for himself and Dua J. (comprising
majority) enunciated the law on the point,
thus :
“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……………. 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.”
From a conspectus of the cases cited at the bar, the
principle that emerges is, 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, Admissions, if true and clear,
are by far the best proof of the facts admitted. Admissions
in pleadings or judicial admissions, admissible under s. 58
of the Evidence Act, made by the parties or their agents at
or before the hearing of the case, stand on a higher footing
than evidentiary admissions. The former class of admissions
are fully binding on the party that makes them and
553.
constitute a waiver of proof. They by themselves can be
made the. foundation of the rights of the parties On the
other hand evidentiary admissions which are receivable at
the trial as evidence, are by themselves, not conclusive.
They can be shown to be wrong.
We do not find any force in the contention of Mr. Dholakia,
that the facts admitted in the compromise, itself were
insufficient to make out even a prima facie ground for
eviction mentioned in s. 12 (3) (a) of the Bombay Rent Act,
merely because the tenant had made an application for
fixation of standard rent, which was still pending at the
time of passing of the decree. By admitting to pay the
arrears of rent and mesne profits at the rate of Rs. 15/-
per month, the tenant had clearly withdrawn or abandoned his
application for fixation of standard rent. The admission in
the compromise was thus an admission of the material facts
which constituted a ground for eviction under s. 12 (3) (a).
Rent was admittedly payable by the month; since the
application for fixation of fair rent stood withdrawn, there
was no dispute with regard to the amount of standard rent.
Further, the rent was admittedly in arrears for a period of
more than six months; so much so that in the present case,
the tenant had neglected to pay the balance of arrears,
amounting to Rs. 152/50, even long after the decree and the
landlord was compelled to recover the same by execution.
The case of Jeshwant Rai Mulukchand (supra) , cited by Mr.
Dholakia, does not advance his stand. In that case, there
was a serious ,dispute regarding the amount of standard
rent. Though the final order of standard rent was passed by
the Court of Small Causes, neither the landlord nor the
tenant accepted the determination and each side questioned
the amount by filing Revision Petitions. In the present
case, however, no dispute regarding the standard rent was,
subsisting at the time of compromise. That dispute was Put
an end to by the compromise itself.
Be that as it may, in cases where an objection as to the
non-executability of the decree on the ground of its being a
nubility,is taken, the Executing Court is not competent to
go behind the decree, if the decree on the face of it,
discloses some material on the basis of which, the Rent
Court could be satisfied with regard to the existence of a
statutory ground for eviction. In such a case it must
accept and execute the decree as it stands. If, on the face
of it, the decree does not show the existence of such
material or jurisdictional fact, the Executing Court may
look to the original record of the trial court to ascertain
whether there was any material furnishing a foundation for
the trial court’s. jurisdiction to pass the decree it did.
The moment it finds that prima facie such material existed,
its task is complete. It is not necessary for it to go
further and question the presumed or expressed finding,
554
of the trial court on the basis of that material. All that
it has to see is whether there was some material on the
basis of which the Rent Court could have-as distinguished
from must have-been satisfied as to the statutory ground for
eviction. To allow the Executing Court to go beyond that
limit, would be to exalt it to the status of a super Court
sitting in appeal over the decision of the Rent Court.
Since in the instant case, there was a clear admission in
the compromise, incorporated in the decree, of the
fundamental facts that could constitute a ground for
eviction under. s. 12 (3) (a), the Executing Court was not
competent to go behind the decree and question its validity.
For the foregoing reasons, the appeal fails and is dismissed
with costs.
V.P.S. Appeal dismissed.
555