JUDGMENT
D.C. Srivastava, J.
1. This is tenant’s revision under Section 29(2) of the Bombay Rent Act.
2. The facts giving rise to this revision are as under:
The deceased-plaintiff respondent filed suit for eviction of the revisionists and for recovery of arrears of rent on the ground that the ground floor portion of the premises owned by the deceased-plaintiff was let out to the defendants-revisionists on monthly rent of Rs. 8/-. The rent from 1-6-1963 to 30-11-1970 amounting to Rs. 720/- fell due which was not paid by the defendants despite repeated demand. Notice of demand was served which was also not complied with within a month of service thereof. It was further alleged that the plaintiff was residing on the first floor along with his family consisting of three married sons, his wife and the roof of the said only room fell down in monsoon, on account of which the plaintiff made certain alternative arrangement and since the notice was not complied with the plaintiff placed corrugated tin sheets on the roof and started residing on the first floor. The premises in the tenancy of the revisionists was reasonably and bona fide required by the landlord for his personal use and also for the use of his family members. Accordingly, the suit for eviction was filed.
3. The revisionists contested the suit denying that the agreed rent was Rs. 8/ – p.m. According to them agreed rent was Rs. 6/- p.m. Dispute regarding standard rent was raised by the defendants through separate application for fixation of the standard rent after receipt of the notice. It was denied that the premises was bona fide and reasonably required by the landlord for his personal use.
4. In the trial Court the plaintiff-respondent did not press issue regarding tenants being in arrears of rent exceeding six months. Accordingly this issue was not decided by the trial Court. However, the trial Court found that the premises was reasonably and bona fide required by the landlord and after comparing the hardship the trial Court found that in case the decree for eviction is refused the landlord will suffer greater hardship than the tenant. Accordingly, the suit for eviction and arrears of rent was decreed.
5. An appeal was filed by the revisionists which was dismissed. It is, therefore, this revision.
6. Learned Counsel for the revisionists contended that the judgment and decree of the lower appellate Court is contrary to law and without jurisdiction inasmuch as the appellants, who are revisionists in this case, moved an application praying that five years time may be granted to them to vacate the premises and they have withdrawn all their contentions raised in the original suit as well as in appeal. In view of this application the lower appellate Court, according to the learned Counsel for the revisionists, had no jurisdiction to reduce the period prayed for by the revisionists to 2 1/2 years. The judgment by the appellate Court was delivered on 20-6-1979 and it granted time to the revisionists upto 31-12-1982 for vacating the premises.
7. In support of his contention Shri M. B. Gandhi placed reliance upon pronouncement in Kaluram Bheruji v. Bai Parvati . After carefully going through this judgment in the first place there is no difficulty in distinguishing this case from the facts of the case under consideration before me, secondly this case does not appear to have laid down correct law nor has considered the exact scope of Order 23, Rule 3 of the Civil Procedure Code.
8. So far as distinguishing feature is concerned, in this case the facts were, as stated by this Court in revision, that when the appellant was heard by the appellate Bench of a Small Causes Court at Ahmedabad, on behalf of the tenant a Purshis was given to the Division Bench of the Court of Small Causes and in that Purshis it was clearly stated that if four years’ time was given to vacate suit premises the petitioner-tenant would not take any of the contentions raised by him in the appeal.
9. On the strength of this Purshis this Court came to the conclusion that it was a compromise within the meaning of Order 23, Rule 3 C.P.C. and the appellate Bench had no jurisdiction to modify the terms of compromise and to proceed to confirm the decree of the trial Court. According to this Court the proper course for the appellate Bench was to hear and decide the appeal on merits and since this was not done the decree of the appellate Bench became without jurisdiction and was set aside.
10. As stated above the condition in the Purshis was that if four years time was given to vacate the suit premises the petitioner-tenant would not take any of the contentions raised by him in the appeal.
11. In the case before me in Para 7 of the judgment of the appellate Court it is mentioned as under:
After we heard the arguments of both the sides, the appellant-tenants before us submitted the Purshis Ex. 14 and stated that they have withdrawn all their contentions raised in the original suit as well as appeal and they require five years’ time to vacate the suit premises.
It is, therefore, clear from the recital in the Purshis Ex. 14 reproduced by the appellate Bench that the appeal was already heard as the learned Counsels for both the parties were heard and after hearing was completed the Purshis Ex. 14 was given by the appellant in which they had stated that they had withdrawn all their contentions raised in the original suit as well as in appeal and they require five years time to vacate the suit premises. It is thus clear from these recitals that in the first place the hearing of the appeal was complete and in second place after completion of hearing and before delivery of judgment Purshis Ex. 14 was moved in which it was unconditionally mentioned that the appellants had withdrawn all their contentions not only in the appeal, but also in the suit and requested for five years time. It was not a case where the condition was that if five years time is granted to the appellant to vacate the premises they will withdraw all their contentions. Consequently, on this distinguishing feature the verdict in Kaluram ‘s case (supra) cannot be applied to the facts of the case before me.
12. It is not unusual that after completion of argument and before delivery of judgment request in the alternative is made to the Court that in case the decree of the trial Court is to be confirmed some time may be granted to the tenant as to vacate the premises. Such request is not contrary to law nor can it oust the jurisdiction of the appellate Court. It is only when there is offer before beginning of the arguments that if time is granted to vacate, the appellants will not raise pleas raised in the Memo of Appeal and in case such time is not granted they will press the appeal. It is only then that the appellate Court is obliged to hear and decide the appeal on merits.
13. In the case before me, the appeal was already heard on merits and alternative suggestion or request of the appellant for five years time was modified to 2 1/2 years time. Such order of the appellate Bench has not divested the appellate Bench of its jurisdiction to hear and decide the appeal. The decree of the appellate Court, therefore, cannot be said to be without jurisdiction.
14. The observation of this Court in Kaluram’s case (supra) that Order 23, Rule 3 will apply in such case does not appear to be correct enunciation of law. Purshis Ex. 14 in this case or Purshis in Kaluram’s case (supra) was not jointly signed by the landlord and tenant. Consequently, what was contained in Purshis in Kaluram’s case (supra) was unilateral offer by the appellant to the appellate Court and such unilateral offer not consented in writing duly signed by the landlord cannot be termed as compromise. Oral consent of the landlord was neither pleaded nor proved. Consequently, unilateral application of the appellant in Kaluram’s case (supra) without specific condition that in case four years time is not granted to vacate the premises the appellant will contest the appeal on merits cannot be considered to be a compromise within the meaning of Order 23, Rule 3 of C.P.C.
15. Order 23, Rule 3 of C.P.C, provides that:
where the Court is satisfied that a suit must fail by reason of some formal defect, or in part of any lawful agreement or compromise in writing signed by the parties or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject-matter of the suit the Court shall order such agreement, compromise or satisfaction to be recorded and shall pass decree in accordance therewith.
16. After amendment to Order 23, Rule 3, C.P.C, oral compromise is now not to be taken into consideration by the Court. The words “compromise in writing and signed by the parties” introduced by the amending Act leave no room for doubt that the compromise should be in writing and it should be signed by the parties. Likewise agreement also be in writing and signed by the parties. Unilateral offer by one of the parties cannot be considered to be a compromise within the meaning of Order 23, Rule 3, C.P.C. Consequently, the jurisdiction of the appellate Court to reduce time prayed for by the appellant for vacating the premises could not be curtailed or ousted nor the decree passed by the appellate Court can be said to be without jurisdiction. It is only when it is established that certain agreement or compromise was arrived at by the parties in writing which was signed by the parties then only the Court has to pass decree in terms thereof provided it is satisfied that such agreement or compromise was lawful and actually arrived at between the parties. In that event the Court has no jurisdiction to modify the terms of the agreement or compromise duly reduced into writing and signed by the parties.
17. For the reasons given above in the first place the law laid down in Kaluram’s case (supra) does not seem to be correct interpretation of Order 23, Rule 3, C.P.C, nor does it appear to be correct law for interpretation of jurisdiction of the appellate Court where there is unilateral offer by the tenant for time to vacate the premises and not to press his points raised in the appeal. In the second place on facts, as mentioned earlier, the terms of the Purshis were different and the request in the Purshis Ex. 14 was made before the appellate Bench in the case before me after hearing of appeal was complete. Such unilateral Purshis could not have ousted the jurisdiction of the appellate Court to reduce the time prayed for by the tenants especially when they had unconditionally not pressed and had withdrawn all their contentions raised in appeal as well as in the original suit.
For the reasons given above the impugned judgment and decree of the lower appellate Court cannot be said to be without jurisdiction.
18. It was next argued by Mr. Gandhi that the requirement of the landlord is not genuine nor bona fide. On this point there is concurrent findings of the two Courts below that the requirement of the landlord is genuine as well as bona fide and the premises was reasonably required by the landlord for himself and for his family. The finding on the question whether the premises is required reasonably and bona fide by the landlord is a finding of fact. Both the Courts below have given concurrent findings after considering the requirement of the landlord. The trial Court also took into consideration the number of family members in the family of the landlord. The landlord had five sons, two sons were married, third son was going to be married, fourth son was a student when the suit was decided. Besides this, the landlord and his wife were also living in only one room. Two daughters of the landlord who were married were also casually coming to the landlord and were staying for a short while. Even if the requirement of the daughters is excluded the requirement of the landlord, his wife, two married sons and another son cannot be said to be unreasonable or mala fide. They were accommodating somehow or the other only in one room and the roof of that room also fell down. Accordingly, notice was given to the tenant to vacate, but the tenant did not vacate the premises. Therefore, the landlord covered the roof by temporary structure of corrugated tin sheets and started living therein. By such temporary repairs it cannot be said that the requirement of the landlord is converted into mala fide and unreasonable requirement. It is difficult for any landlord to accommodate in one room having measurement of 12 ft. x 18 ft. so many members of his family. It is in evidence that there is no kitchen, no bath-room, etc. The landlord was sleeping on road, if this is not a case of reasonable and bona fide requirement of the landlord then hardly any case can be said to be a case where the landlord required premises reasonably and bona fide for his use or for the use of his family members. The findings of the two Courts below on such evidence cannot be said to be perverse. Hence, such finding requires no interference.
19. Mr. M. B. Gandhi, has referred to affidavit filed in this revision on 17-3-1982 and on the basis of this uncontroverted affidavit contended that due to subsequent events the requirement of the landlord is now no more genuine and bona fide.
20. In the first place the admissibility of such affidavit in revision is a matter ‘of doubt. This affidavit is nothing, but additional evidence in revision. Additional evidence in revision cannot be filed as of right, just by annexing the affidavit along with memo of revision. No separate application for permitting additional evidence was filed in this revision. Moreover, the case before the trial Court was not decided on affidavit, but on oral evidence of the parties. Affidavit is not substantive evidence. Unless the trial Court specifically directed that the matter in controversy will be decided on affidavit, even the trial Court could not have accepted the affidavit as substantive evidence or additional evidence. For the same reasons the revisional Court also cannot accept the affidavit as additional evidence. Such affidavit is not substantive evidence. This affidavit cannot be admitted as evidence simply because no counter-affidavit was filed so far. The counter-affidavit has, however, been filed in this revision only today. Mr. Gandhi, however, contended that at such belated stage after about 16 years this counter-affidavit should not be accepted. Even if the counter-affidavit is excluded, for the reasons given above the affidavit itself filed by the revisionists cannot be accepted as additional evidence. As such what is stated in the affidavit cannot be accepted in this revision. Moreover, what is stated in this affidavit is no improvement nor it amounts to any subsequent development. The landlord frankly came with the case that even before filing of the suit he covered the roof with corrugated tin sheets. If the roof was subsequently made pucca, the situation is not altered because still only one room of a small size, viz., 12 ft. x 18 ft. is available to the landlord which does not diminish his bona fide and reasonable requirement of the premises in dispute.
21. The question of comparative hardship was also correctly decided by the trial Court as well as by the appellate Court. Simply because there are 15 members in the family of the defendants it cannot be said that tenants would suffer greater hardship in case decree for eviction is passed. The trial Court has clearly mentioned that the tenants having income upto Rs. 1,000/- did not make any attempt to find out suitable rented accommodation for themselves. In view of this failure of the tenants the landlord cannot be expected to find out alternative accommodation for the tenant. The finding of the two Courts below on comparative hardship is also a finding of fact and this finding was returned on proper lines after considering the requirements of the landlord and the tenant and failure of the tenants to find out suitable accommodation for themselves. As such no interference on this finding also is required.
22. In the result, there is no merit in this revision. The revision is, therefore, dismissed. No order as to costs.
