PETITIONER:
ROSHAN LAL
Vs.
RESPONDENT:
MADAN LAL
DATE OF JUDGMENT18/09/1975
BENCH:
UNTWALIA, N.L.
BENCH:
UNTWALIA, N.L.
ALAGIRISWAMI, A.
GOSWAMI, P.K.
CITATION:
1975 AIR 2130 1976 SCR (1) 878
1975 SCC (2) 785
CITATOR INFO :
R 1978 SC 952 (2,4)
ACT:
Madhya Pradesh Accommodation Control Act 1961-Sec.
12(1)(6)-Compromise decree in a rent act-suit, whether a
nullity-C.P.C.O. 23 rule 3.
HEADNOTE:
The respondent landlord filed a suit for eviction
against the appellant tenant on the ground of bona fide
personal requirement and that he has no other resonably
suitable accommodation of his own which is one of the
grounds of eviction under the Madhya Pradesh Accommodation
Control Act. The appellant filed a Written Statement denying
the claim of the respondent. After some evidence was
recorded the parties entered into a compromise and filed it
in the Court. The compromise deed mentioned that "due to the
necessity of the plaintiffs for their own business-opening
grocery shop, the decree for ejectment may be granted to
them against the defendant". The Trial Court passed a decree
in terms of the compromise after coming to the conclusion
that the compromise was legal. the appellant was given 3
years' time to vacate the premises under the compromise. On
the appellant's failure to vacate after the expiry of three
years, the respondent filed Execution Application. The
appellant objected to the execution on the ground that the
compromise decree was void and inexecutable as being against
the provisions of the Act.
The Execution Court accepted the appellant's objection
and dismissed the Execution Case. The District Judge
dismissed the appeal filed by the respondent. The High Court
allowing the Second Miscellaneous Appeal came to the
conclusion that the decree was not a nullity and that it was
executable.
In an appeal by Special Leave the Appellant contended
that the decree was nullity since the Court was not
satisfied that the eviction was in accordance with the
provisions of the Act. The counsel further contended that
even if what is stated in the compromise deed might be
accepted as admission, the admission is only about the bona
fide requirement and that there is no admission about the
landlord not having any other suitable accommodation.
^
HELD: dismissing the appeal:
1. In order to get a decree or order for eviction
against a 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 ex-parte, this is
so. If, however, parties choose to enter into a compromise
due to any reason such as to avoid the risk of protracted
litigation, 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. The case of K.
K. Chari v. P. M. Seshadri, followed
[882-A-D]
2. 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. A compromise of suit is permissible under the said
provisions of law. [882-E-F]
879
3. If the compromise for the eviction of the tenant is
found on the facts of a particular case to be in violation
of a Rent Control Act, the Court would refuse to record the
compromise as it would not be a lawful agreement. If 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 in an
eviction suit the court is bound to record the compromise
and pass a decree in accordance therewith. [882 F-G]
4. The meaning of the term the bona fide requirement in
the compromise deed is clear and definite specially in the
background of the pleadings of the parties and it makes out
a case of eviction within the meaning of the Act. [883-C]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2473 of
1972.
Appeal by Special Leave from the Judgment and order
dated the 30th October 1972 of the Madhya Pradesh High Court
in Misc. Second Appeal No. 33/72.
S. N. Andley, H. B. Mangal, Rameshwar Nath and Rajinder
Narain for the appellant.
G. B. Pai, S. K. Bagga, Mrs. S. Bagga, R. K. Mehta and
V. C. Parashar for respondents.
The Judgment of the Court was delivered by
UNTWALIA, J. This appeal by special leave has been
filed by the tenant-defendants. The plaintiff-respondents,
the landlords, filed a suit against the appellants in the
Court of Second Civil Judge, Class II, Gwalior for a decree
for eviction from the suit premises and for certain other
reliefs. The appellants’ eviction was sought on statement of
facts mentioned in paragraph 3 of the plaint which squarely
fell within clause (f) of sub-section (1) of Section 12 of
the Madhya Pradesh Accommodation Control Act, 1961
(hereinafter referred to as ‘the Act’). The appellants filed
a written statement and in paragraph 3, they denied the
respondents’ assertion in plaint, paragraph 3. It appears
that the suit which was filed in the year 1966 proceeded to
trial in October, 1967 and some evidence was adduced. But
eventually, the parties entered into a compromise, filed a
petition to that effect in the Trial Court which passed a
decree for eviction and other reliefs in January, 1968 in
accordance with the terms of the compromise. Pursuant to the
said compromise decree the appellants were to vacate the
shop-the suit promises by-31-12-1970. On their failure to do
so, execution was levied by the respondents. The appellants
objected to the execution on the ground that the compromise
decree was void and inexecutable as being against the
provisions of the Act. The execution court accepted the
appellants’ objection to the execution of the decree and
dismissed the execution case. A miscellaneous appeal filed
by the respondents was dismissed by the Third Additional
District Judge Gwalior. They preferred a second
miscellaneous appeal before the Madhya Pradesh High Court. A
learned single Judge following the Bench decision of that
Court in Smt. Chandan Bai v. Surja,(1) came to the
conclusion that the decree was not a
880
nullity and was executable. Hence this appeal by the tenant-
judgment-deobtors.
The point which fails for determination in this appeal
is not resintegra and has been the subject matter of
consideration in several decisions of this Court. In Bahadur
Singh & Anr. v. Muni Subrat Dass & Anr.(1) a decree for
eviction based on an award without anything more was found
to be a nullity as it was held to have been passed against
the prohibitory mandate of section 13(1) of the Delhi and
Ajmer Rent Control Act, 1952. Following the said decision
the compromise decree was also held to be a nullity in the
case of Kaushalya Devi & Ors. v. Shri K. L. Bansal.(2) The
earlier two decisions were followed again in Ferozi Lal Jain
v. Man Lal and Anr.(3) In all these three cases the decrees
were found to have violated section 13(1) of the Delhi Act
of 1952.
The law was reviewed exhaustively by this Court in K.
K. Chari v. R. M. Seshadri.(4) Vaidialingam, J. delivering
the judgment on his behalf as also on behalf of Dua, J.
pointed out that under the terms of the compromise under
consideration in that case the defendant had withdrawn all
his defence to the application filed by the landlord and
submitted to a decree for eviction unconditionally. The
three earlier cases of this Court were distinguished and it
was said at page 704. “The true position appears to be that
an order of eviction based on consent of the parties is not
necessarily void”. And finally it was held “it is no doubt
true that before making an order for possession the Court is
under a duty to satisfy itself as to the truth of the
landlord’s claim, if there is a dispute between the landlord
and tenant. But 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”. One of us (Alagiriswami, J.) while agreeing with
Vaidialingam, J. added a few words of his own. In the
separate judgment it has been pointed out that the view
taken by Grover, J. of the Punjab High Court in Vas Dev v.
Milkhi Ram(5) was exactly the position in K. K. Chari’s
case. Sarkaria, J. delivering the judgment on behalf of the
Court in Nagindas Ramdas v. Dalpatram Inchharam @ Brijram
and Otheres(6) took pains to go into the matter elaborately
once more and said at page 552:
“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
881
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.”
On facts of the case of Nagindas Ramdas was found to
fall in line with that of K. K. Chari. Distinguishing the
earlier cases, Chari’s case was followed.
Before we state the principles of law governing such a
case we would like to point out that the language of Section
12 of the Act is somewhat different from many similar State
Statutes. Section 12(1) says:
“Notwithstanding anything to the contrary
contained in any other law or contract, no suit shall
be filed in any Civil Court against a tenant for his
eviction from any accommodation except on one or more
of the following grounds only, namely :”
Thereafter grounds (a) to (p) have been enumerated. On a
superficial reading of the provision aforesaid it would
appear that the inhibition related to the filing of the suit
only. No suit can be filed for eviction of a tenant except
on one or more of the grounds enumerated in Section 12(11).
In sub-sections (2) to (11) of Section 12 certain conditions
have been engrafted to show under what circumstances an
order for the eviction of tenant cannot be passed in
relation to some of the grounds enumerated in sub-section
(1). Reading the section as a whole and remembering the
beneficial object of the Act for the protection of a tenant
based upon public policy, we do not find much difficulty in
bringing the section at par with other similar State
Statutes and holding as a matter of construction that no
decree for the eviction of a tenant from any accommodation
can be passed except on one or more of the grounds mentioned
in Section 12(1). A Bench of the Madhya Pradesh High Court
in Smt. Chandan Bai’s case (supra) seems to have taken too
literal a view of the section when in paragraph 5 of the
judgment it says “There is nothing in Section 12 of the Act
or any other provision which prevents the tenant in vacating
the accommodation in spite of the fact that none of the
grounds mentioned in Section 12 exists. Similarly, there is
nothing in the Act which may prevent the tenant in agreeing
to vacate the accommodation in future”. It says further in
paragraph 10 “Merely enumeration of grounds on which relief
can be claimed does not either expressly or impliedly
exclude the operation of Order 23, rule 3, because grounds
for claiming relief are always limited whether the relief be
claimed under the general law or a statute”. A similar
argument advanced in the case of Nagindas Ramdas (supra)
with reference to the relevant provisions of Bombay Rent
Act, 1947 was repelled at page 550 and the view taken by a
Bench of the Gujarat High Court in the case of Shah Rasiklal
Chunilal v. Sindhi Shyamlal
882
Mulchand (1) “that in spite of the fact that there is no
express provisions in the Bombay Rent Act prohibiting
contracting out, such a prohibition would have to be read by
implication consistently with the public policy underlying
this welfare measure” was approved.
In order to get a decree or order for eviction against
a 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 ex-parte, 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 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. Passing a decree for eviction on adjudication of
the requisite facts on or their admission in a compromise,
either express or implied, is not different.
We now proceed to consider the facts of the case in
hand. The ground for eviction from the accommodation let for
non-residential purposes mentioned in clause (f) of section
12(1) of the Act is that the accommodation “is required bona
fide by the landlord for the purpose of continuing or
starting his business……….and that the land-
883
lord……… has no other reasonably suitable non-
residential accommodation of his own in his occupation in
the city or town concerned”. In paragraph 3 of the plaint
the respondents’ necessity was pleaded both in the positive
and the negative aspects of clause (f). Both were denied in
paragraph 3 of the written statement of the appellants.
Paragraph 1 of the compromise petition says: “That due to
the necessity of the plaintiffs for their own business-
opening grocery shop, decree for ejectment may be granted to
them against the defendants”. In this case it is not
necessary to refer to any piece of evidence adduced at the
inconclusive trial. The meaning of paragraph 1 of the
compromise petition is clear and definite especially in the
background of the pleadings of the parties and in our
opinion it squarely makes out a case of eviction within the
meaning of Section 12(1) (f) of the Act on admission of the
appellants. We reject the argument of Mr. Andley, learned
counsel for the appellants, that paragraph 1 of the
compromise petition was an admission in respect of only the
first part, namely, the positive aspect of clause (f) and
not of the second part, namely, that the landlord has no
other reasonably suitable nonresidential accommodation. The
admission, by necessary implication, was in respect of both.
In the order recording the compromise the Court said:
“On a perusal of the joint compromise it was found
that the same is legal and is within the purview of the
plaint. Therefore, plaint verification is accepted and
the case is decreed in accordance with the conditions
of the compromise as under:
1. That the defendants shall vacate the shop in
dispute by 31-12-1971″.
The order so recorded in our judgment was in full compliance
with the requirement of Order 23, Rule 3 of the Code of
Civil Procedure. The Court found that the compromise was
legal, that is to say, lawful and was in accordance with the
plaint. The averment in the plaint was, therefore, accepted
and the suit was decreed. It is regrettable that though the
appellants got about three years’ time to vacate the shop in
dispute from the date of the compromise decree, they were
ill-advised to fight the litigation further and thus cause
delay in the vacating of the shop by another five years. We
have no doubt in our mind that on the facts and in the
circumstances of this case the compromise decree was clearly
valid and executable. We uphold the decision of the High
Court but on a slightly different basis.
For the reasons stated above, the appeal fails and is
dismissed with costs.
P.H.P. Appeal dismissed.
884