ORDER
Shivashankar Bhat, J.
1. These Revision Petitions are by the same petitioner, who is a tenant of the respondent-landlord, in respect of a non-residential premises,
2. The landlord filed the eviction petition on the ground that he required the schedule premises for his personal use and occupation in order to use them as a godown. Eviction was also sought on the ground of default in payment of rents by the tenant. In his statement of objections, the petitioner denied that he was in arrears of rent. As to the landlord’s assertion that premises were required for his bona fide use and occupation for the purpose of godown, in view of his existing presses being small, the tenant denied them generally as being not within his knowledge; however, other averments in the eviction petition were admitted as true, such as – the tenant having failed to vacate the premises though he promised to vacate on being informed of the bona fide requirements of the landlord and that landlord would suffer irreparable loss, harm and injury if the order of eviction was not made. Eviction petition is dated 18-1-1989 and the statement of objection is dated 22-3-1989. On 22-3-1989, parties were examined and the case was heard. Landlord repeated his requirements in his deposition which aspect was not cross–examined; he also stated that the petitioner was due in a sum of Rs. 13,200/- towards rent. The petitioner stated in his deposition – “I am tenant under the petitioner. I will not vacate full portion. I can vacate half portion within one moth. I am liable to pay Rs. 13,000/-rent. I will pay in one moth. I am vacating half portion with my will. It is required for the purpose of godown by the landlord.”
3. On the same day an application was also filed under Order 23 Rule 3 of the Code of Civil Procedure duly signed by the parties and their Advocates. The petitioner herein conceded the bona fide requirement of the landlord and agreed to vacate half the premises provided a month’s time was granted to him to vacate; the landlord had no objection to the grant of time, Thereafter Court made the order, accepting the compromise petition and directed the tenant to vacate and deliver vacant possession of half portion of the schedule premises in favour of the landlord within one month.
4. The petitioner failed to vacate, resulting in an execution petition. In the said proceedings, the tenant urged that the order of eviction was inexecutable, because, the portion of the premises to be vacated was not specified in the order. This was upheld by the Court on 27-7-1989. In these circumstances, the landlord filed an application under Sections 151 and 152 of the Code of Civil Procedure to amend the decree by describing the portion of the premises to be vacated by the tenant; landlord also stated that he would bear the cost of putting up the partition wall. The portion was described in the application which, the landlord asserted, as the tenant had earlier agreed to vacate, being the half portion on the eastern side measuring 8 ft. x 10 ft. facing the main road.
5. The application was seriously opposed by the tenant, as not maintainable; according to him, the landlord was actually seeking to get a fresh order of eviction in the guise of amending the earlier order and the relief sought was beyond the scope of Sections 151 and 152 of CPC. The validity of the earlier compromise petition was also questioned. The order following compromise, was asserted, as not within the scope of Section 21(4) of the Karnataka Rent Control Act. However, nowhere in his statement of objections the petitioner specifically denied the factum of compromise averred by the landlord in his application, including the assertion that the tenant had agreed to vacate the eastern side of the premises described in the application as stated in para-3 of the affidavit filed in support of the said application. There was no denial of the further assertion of the landlord in his affidavit that there was no practical problem in effectuating the order of eviction, as the premises had two rolling shutters and that he would bear the expenses of putting partition wall.
6. The lower Court has allowed this application, by holding that, omission to state the portion of the premises to be vacated by the petitioner, was only accidental. The amendment sought had to be made to carry out the real intention of the Court, in making the order of eviction.
7. The two Revision Petitions are filed, against the order of eviction and the order allowing the application for the amendment of the eviction order.
8. Mr. Gopalaswamy, the learned Counsel for the petitioner, contended, that –
(i) the compromise petition filed under Order 23 Rule 3 of the Code of Civil Procedure was not maintainable and the alleged compromise itself was not lawful;
(ii) the amendment made went beyond the scope of Sections 151 and 152 CPC;
(iii) in the context of Section 21(4) of the Rent Control Act read with Section 21(1)(h), such an amendment was impermissible, because, it was for the Court on the earlier occasion to consider independently, the question of partial eviction; and
(Iv) if partial eviction was called for, as now ordered, the Court should have suitably modified the rent to be paid by the tenant hereinafter towards the portion left with the tenant.
9. The Court may make an order of eviction based on a compromise petition filed under Order 23 Rule 3 of Code of Civil Procedure, is now beyond any doubt. The law is found in ROSHAN LAL AND ANR. v. MADAN LAL AND ORS., AIR 1975 SC 2180. At page 2133, it is said:
“In order to get a decree or order for eviction against tenant whose tenancy is governed by any Rent Restriction or Eviction Control Act the suitor must make out a case for eviction in accordance with the provisions of the Act. When the suit is contested the issue goes to trial. The Court passes a decree for eviction only if it is satisfied on evidence that a ground for passing such a decree in accordance with the requirement of the Statute has been established. Even when the trial proceeds exparte, this is so. 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. In other words, parties cannot be permitted to have a tenant’s 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.”
“It is too late in the day to contend that the provisions of Order 23, Rule 3 of the Code of Civil Procedure cannot apply to eviction suits governed by the special statutes. Undoubtedly, a compromise of such suit is permissible under the said provision of law. The protection of the tenant is inherent in the language of Order 23 Rule 3 when it says ‘where it is proved to the satisfaction of the Court that a suit has been adjusted by any lawful agreement or compromise….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 suit’. If the agreement or compromise for the eviction of the tenant is found, on 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. 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.”
10. In the instant case, the pleadings speak the basis of compromise. The tenant admitted the requirement of the landlord for his self occupation as reasonable and bona fide. Landlord was not cross-examined on this aspect of the case. In his evidence the tenant agreed to vacate half the premises. In this background, the contents of the compromise petition if read, nothing illegality is found therein. An order of eviction under Section 21(1)(4) of the Rent Control Act is to be based on a finding as to the request of landlord, being reasonable and bona fide and that greater hardship would be caused to him if an order is not made for eviction. These are matters of pleading and evidence and in this case, they have been amply pleaded and proved. Nowhere the tenant has alleged that the compromise petition was the result of any fraud on him and that he made the relevant statement involuntarily.
11. There is no substance in his present plea that the compromise petition was not maintainable.
12. When the Court seized of an eviction petition, in which, the requirement of the landlord was found to be genuine and reasonable and a case was made out for an order of eviction, it is but natural that the order of eviction should follow. But the Court may have to consider the case under Section 21(4) of the Rent Control Act and examine whether, the partial eviction, i.e., an eviction from the part of the premises would be sufficient; this examination is part of considering the case under Section 21(1)(h) read with Section 21(4). Question of partial eviction is part of the consideration of comparative hardship under Section 21(4).
13. Therefore, at the time of ordering eviction the Court would, as a matter of course, have to specify the portion of the premises to be vacated by the tenant, if partial eviction was to be the final order. In the instant case, the compromise and the ultimate order of eviction made on 22-3-1989, required the tenant to vacate half the premises. Having directed the tenant to vacate half the portion, the Court omitted to specify the portion. At that time, obviously because of the amicable settlement, parties must have overlooked the need to have the portion specified in the order of eviction itself and the Court also proceeded under the same impression. When there was no dispute and the tenant agreed to vacate half the premises, if the actual portion was not specified, at the most, one may reasonably infer that, the choice was with the tenant to give up any half portion of the premises. Specifying the portion to be vacated is thus, part of the eviction order itself, which the Court intended to be made.
14. Therefore, the question to be considered here, is whether, the Court could invoke its power under Sections 151 and 152 of the Code of Civil Procedure to amend the order. The principle governing the amendment of an order under Section 152 CPC, is stated by the Supreme Court in MASTER CONSTRUCTION CO. (P) LTD. v. STATE OF ORISSA AND ANR, . The said decision arises out of a provision in an Orissa Sales Tax Law; but the relevant Rule therein, was similar to the language of Section 152 CPC. At Page 1049, Supreme Court held:
“An error arising out of or occurring from an accidental slip or omission is an error due to a careless mistake or omission unintentionally made. There is another qualification, namely, such an error shall be apparent on the face of the record that is to say, it is not an error which depends for its discovery, on elaborate arguments on questions of tact or law. The accidential slip or omission is an accidental slip or omission made by the Court. The obvious instance is a slip or omission to embody in the order something which the Court in fact ordered to be done. This is sometimes described as a decretal order not being in accordance with the Judgment. But the slip or omission may be attributed to the Judge himself. He may say something or omit to say something which he did not intend to say or omit. This is described as a slip or omission in the Judgment itself. The cause for such a slip or omission may be the Judge’s inadvertence or the advocate’s mistake. But however wide the said expressions are construed, they cannot countenance a re-argument on merits on questions of fact or law, or permit a party to raise new arguments which he has not advanced at the first instance,
15. The accidential slip or omission is the one made by the Court; and one such instance is a slip or omission to embody in the order something which the Court in fact ordered to be done. If the intention to make an order or specify something in the order could be clearly spelt out and making of such an order or specification was inevitable in the circumstances, and it was necessarily to be the integral part of the order and was left out accidentally, Section 152 CPC would be attracted, so that, the order may be amended to reflect the real intention of the Court.
16. No further argument was necessary here to specify the portion which the tenant had to vacate. It was to be a routine description of the half portion. In fact, the half portion described in the application filed by the landlord under Section 152 CPC, has not been questioned at all by the tenant. The present attitude of the tenant, for whatever reason, is to wriggle out of the lawful compromise to which he was a party.
17. Mr. Gopalaswamy is also not correct in contending that, in the light of the landlord’s pleading (eviction petition) and his diposition there was no scope to apply Section 21(4) of the Act and order partial eviction. It was contended by the learned Counsel that landlord sought the eviction in respect of the entire premises and that was his evidence and the words, ‘half the premises’ were added in the compromise petition by the parties as an afterthought. May be so. But, tenant has not suffered any injury by this Instead of the entire premises, he agreed to vacate half of it; this was to his advantage. How and in what manner, such an order cannot fall under Section 21(4) of the Act, is beyond anybody’s comprehension; a cloud of mystification surrounds this contention of the learned Counsel.
18. However, the learned Counsel is on a firmer ground, when he contended that, the order should have provided for a reduced rent payable by the tenant. Section 21(4) of the Act does not in any manner specifically requires the Court to make an order modifying the rent payable by the rent towards the premises left with him. This provision of law vests a power in the Court to direct partial eviction, in case, that would not result in any hardship to the landlord and the tenant it is more in the nature of an equitable Jurisdiction. The sole consideration, is the consideration of hardship that may result by an order of eviction; object is to reduce hardship and not to create a new burden. If so, the tenant cannot be compelled to pay rent to the premises left with him at the same old rate which he was paying for the entire premises. A reduction of the area leased to the tenant, should normally be accompanied with a reduction in the rate of rent, unless there are other compelling factors against it.
19. Compromise petition was silent, here, as to the rent. Normally fixation of rent under Section 152 CPC may be of doubtful validity; here, lower Court has not fixed any rent by altering the old rate. The entire proceedings are before this Court including the main proceedings for eviction. The subject matter of these revision petitions, is not confined to the amendability of the order of eviction. While examining the legality, propriety or correctness of the proceedings under Section 50, this Court may pass such order in reference thereto as it thinks fit. ‘Fitness’ would comprise ‘justness’ also. An order which could have been made by the trial Court while passing the order of eviction, can be made by this Court also under Section 50. Therefore, this Court has the power to re-fix the rent payable by the tenant for the reduced extent of premises left with him, with liberty to the parties to approach the Rent Controller, to have it fixed again if they so desire. The premises to be vacated by the tenant is half of the leased premises and it is most appropriate to reduce the rent payable for the remaining half, by the tenant, by fifty per cent of the earlier rent.
20. The tenant apprehends further trouble when the landlord puts up the bifurcating wall. This can be prevented by directing the Court below to appoint a Commissioner to supervise the work.
21. Consequently, I make the following:-
ORDER
The orders under revision are affirmed subject to the following modifications. The rate of rent payable by the petitioner, for the part OT the premises left with him shall be fifty per cent of the rent he was paying for the entire premises, with effect from the date, from which he is evicted from the portion ordered to be evicted. However, parties are at liberty to approach the Rent Controller to have re-determination of the fair rent for the said premises.
The Court below shall appoint a Commissioner at the cost of the landlord, to supervise the construction of the separating wall between the portion to be left with the tenant and the portion to be obtained by the landlord. The landlord shall file an appropriate application before the Court below with notice to the tenant, for the appointment of the Commissioner, at the appropriate time.
Revision Petitions are disposed of accordingly.