{"id":88004,"date":"1973-11-30T00:00:00","date_gmt":"1973-11-29T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/nagindas-ramdas-vs-dalpatram-ichharam-brijram-and-on-30-november-1973-2"},"modified":"2016-07-16T04:18:31","modified_gmt":"2016-07-15T22:48:31","slug":"nagindas-ramdas-vs-dalpatram-ichharam-brijram-and-on-30-november-1973-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/nagindas-ramdas-vs-dalpatram-ichharam-brijram-and-on-30-november-1973-2","title":{"rendered":"Nagindas Ramdas vs Dalpatram Ichharam @ Brijram And … on 30 November, 1973"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Nagindas Ramdas vs Dalpatram Ichharam @ Brijram And … on 30 November, 1973<\/div>\n
Equivalent citations: 1974 AIR 471, \t\t 1974 SCR (2) 544<\/div>\n
Author: R S Sarkaria<\/div>\n
Bench: Sarkaria, Ranjit Singh<\/div>\n
           PETITIONER:\nNAGINDAS RAMDAS\n\n\tVs.\n\nRESPONDENT:\nDALPATRAM ICHHARAM @ BRIJRAM AND ORS.\n\nDATE OF JUDGMENT30\/11\/1973\n\nBENCH:\nSARKARIA, RANJIT SINGH\nBENCH:\nSARKARIA, RANJIT SINGH\nPALEKAR, D.G.\nKRISHNAIYER, V.R.\n\nCITATION:\n 1974 AIR  471\t\t  1974 SCR  (2) 544\n 1974 SCC  (1) 242\n CITATOR INFO :\n F\t    1974 SC 994\t (103)\n RF\t    1975 SC2130\t (3,4)\n R\t    1978 SC 952\t (2,3,4)\n F\t    1987 SC1986\t (13,20)\n E\t    1990 SC1725\t (18)\n\n\nACT:\nBombay\tRent Act, 1947, Ss. 12 and 13-Compromise decree\t for\neviction-When may be passed.\n\n\n\nHEADNOTE:\nThe  respondent-landlord instituted a suit under the  Bombay\nRent Act for possession against the appellant-tenant on\t two\ngrounds,  namely, arrears in payment of rent and  bona\tfide\nrequirement of the premises for personal use and occupation.\nA compromise decree was passed.\t When the appellant  applied\nfor  execution of the decree, the appellant contended  inter\nalia that the compromise decree had been passed by the\tRent\nCourt  without\tsatisfying  itself as to  the  existence  of\ngrounds\t of  eviction  under  the Act  and  hence,  being  a\nnullity,  was not executable.  The Executing Court  accepted\nthe  contention.  In appeal, the appellate Court  set  aside\nthe  dismissal\tand remanded the matter holding\t that  there\nwere  admissions  in the compromise itself  from  which\t the\nCourt  could  be satisfied about the existence of  both\t the\nstatutory  grounds  for eviction alleged in the\t plaint.   A\nrevision to the High Court was dismissed.\nDismissing the appeal to this Court,\nHELD  :\t (1) The public policy permeating this\tAct  is\t the\nprotection   of\t tenants  against   unreasonable   eviction.\nConstruing  the provisions of s.12,13 and 28 of the  Act  in\nthe  light of this policy, it should be held that  the\tRent\nCourt  under the Act is not competent to pass a\t decree\t for\npossession  either  in invitum or with the  consent  of\t the\nparties\t on a ground which is decors the Act or ultra  vires\nthe  Act.   The existence of one of  the  statutory  grounds\nmentioned in s. 12 and 13 is a sine qua non to the. exercise\nof  jurisdiction  by  the Rent\tCourt.\t Parties,  by  their\nconsent\t cannot confer jurisdiction on the Rent Court to  do\nsomething  which, according to the legislative\tmandate,  it\ncould not do. [550C-E]\nShah Rasiklal Chunilal v. Sindhi Shyamlal Mulchand, 12\tGuj.\nLaw Reporter 1012, approved.\nBarton v. Fiacham, [1921] 2 K. B. 291 at 299, applied.\n(2)  The fact that 0. 23 r. 3, C.P.C., is applicable to\t the\nproceedings does not remove. that fetter or empower the Rent\nCourt  to  make a decree for eviction  dehors  the  statute.\nEven  under that provision the Court, before  ordering\tthat\nthe  compromise be recorded, is required to  satisfy  itself\nabout  the lawfulness of the agreement.\t Such lawfulness  or\notherwise  of  the  agreement is to be judged  also  on\t the\nground\twhether terms of the compromise are consistent\twith\nthe provisions of the Rent Act. [551 A-C]\n(3)  But, if at the time of the passing of the decree  there\nwas  some material be- fore the Court on the basis of  which\nthe Court could prima facie be satisfied about the existence\nof a statutory ground for eviction, it win be presumed\tthat\nthe  court  was so satisfied and the  decree  for  eviction,\nthough passed on the basis of the compromise would be valid.\nSuch  material\tmay  be\t in form  of  evidence\trecorded  or\nproduced  or it may be partly or wholly be in the  shape  of\nexpress\t or  implied  admissions  made\tin  the\t  compromise\nagreement.  Admissions if true and clear are by far the best\nproof  of  the\tfacts  admitted\t especially  when  they\t are\njudicial  admissions admissible under s. 58,  Evidence\tAct.\n[552F-H]\nIn  the\t present case, because of the admission to  pay\t the\narrears\t of rent and mesne profits at the  contractual\trate\nand  the  withdrawing  of his application  for\tfixation  of\nstandard  rent,\t there\twas no dispute with  regard  to\t the\namount of standard rent, and there was an admission that the\nrent was in arrears.  The admission of these material  facts\nconstitute a ground for eviction under s. 12 (3)(a).  [553B-\nD]\nBahadur\t Singh\tv. Muni Subrat Dass,<\/a> [1969]  2\tS.C.R.\t432,\nKaushalya  Devi v. Shri K. L. Bansal,<\/a> [1969] 2 S.C.R.  1048,\nand  Ferozi Lal Jain v. Man Mal,<\/a> [1970]. 3 S.C.C. 181,\theld\ninapplicable.\n545\nK.  K.\tChari  v.  B. M.  Seshadri,<\/a>  [1973]  1\tS.C.R.\t761,\nfollowed.\nJeshwant  Raj  Mulukchand v. Anandilal\tBapalal,<\/a>  [1965]  2,\nS.C.R. 350, distinguished.\n(4)  Further  the  Executing Court is not  competent  to  go\nbehind the decree if the decree on the face of it  discloses\nsome material on the basis of which the rent court could  be\nsatisfied with regard to the existence of a statutory ground\nfor eviction.  If on the face of it the decree does not show\nthe  existence of such material or jurisdictional fact,\t the\nExecuting Court may look to the original record of the trial\ncourt to ascertain whether there was any material furnishing\na foundation for the trial court's jurisdiction to pass\t the\ndecree.\t The moment it finds that prima facie such  material\nexisted its task is complete, and it was not competent to go\nbehind the decree and question its validity. [553G-554B]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE JURISDICTION  Civil Appeal No. 2479 (N)  of
\n1972.\n<\/p>\n
Appeal\tby Special Leave from the judgment and\torder  dated
\nthe 26th October 1972 of the Gujarat High Court at Ahmedabad
\nin Civil Revision Application No. 1254 of 1972.
\nS.   K. Dholakia, for the appellant.\n<\/p>\n
P.   H. Parekh and Sunanda Bhandare, for the respondents.
\nThe Judgment of the Court was delivered by
\nSARKARIA,  J.-Whether the decree dated September  23,  1964,
\npassed\tby  the Trial Judge in Regular Suit No. 6  of  1963,
\nfiled  under the Bombay Rent Control Act, 1947\t(for  short,
\ncalled\tBombay\tRent  Act) directing  the  eviction  of\t the
\nappellant  is a nullity and, as such, in executable, is\t the
\nonly  question\tthat falls for decision in  this  appeal  by
\nspecial leave.\tIt arises out of these facts:
\nAppellant was a tenant of the premises at Ward No. 3,  Nondh
\nNo.  1823\/9  in\t the Salabatpur area of Surat.\t He  was  in
\narrears\t of  rent  since  16-10-1961.\tOn  16-11-1962,\t the
\nlandlords  (respondents\t herein)  served  a  notice  on\t the
\nappellant terminating his tenancy and also requiring him  to
\npay  the  arrears  of  rent.   On  2-1-1964,  the  landlords
\ninstituted  the\t suit in the Court at Surat  for  possession
\nagainst the tenant on two grounds, namely :\n<\/p>\n
\t      (i)   non-payment\t of  rent in arrears  for  a
\n\t      period of more than one year,\n<\/p><\/blockquote>\n
\t      (ii)  bona fide requirement of the premises by
\n\t      the   landlords\tfor  their   own   use\t and
\n\t      occupation.\n<\/p><\/blockquote>\n
\t      The rate of contractual rent was Rs. 151-\t per
\n\t      month.  On 23-9-1964 the parties arrived at  a
\n\t      compromise, the terms of which, as  incorpora-
\n\t      ted in the decree, were as under :\n<\/p><\/blockquote>\n
\t      “(i)  The defendant do hand over possession of
\n\t      the  suit\t premises by 30-9-1968\twithout\t any
\n\t      objection.  The tenant to pay Rs. 532 50 P  as
\n\t      arrears  of rent and mesne profits upto  30-9-
\n\t      1964.   The plaintiff is to receive Rs.  380\/-
\n\t      deposited\t by the defendant in court  and\t the
\n\t      remaining\t  amount  is  to  be  paid  by\t the
\n\t      defendant to the plaintiffs on or about 31-12-
\n\t      1964.   The defendant is to pay Rs. 151-\tp.m.
\n\t      as mesne profits from 1-10-1964.\n<\/p><\/blockquote>\n
\t      546<\/span><\/p>\n
\t      (ii)  The\t relationship  of the  landlord\t and
\n\t      tenant between the parties has come to an\t end
\n\t      and  no such relationship is to be created  by
\n\t      the compromise.  The defendant has been  given
\n\t      time  to vacate the suit. premises by  way  of
\n\t      grace.  If the defendant fails to comply\twith
\n\t      the   aforesaid  terms  of  the  decree,\t the
\n\t      plaintiffs  would be entitled to\texecute\t the
\n\t      decree  both for the decretal amount’ as\twell
\n\t      as for possession of the suit premises.\n<\/p><\/blockquote>\n
\t      (iii) If the plaintiffs get for the  defendant
\n\t      the  lease of the premises bearing  Nondh\t No.
\n\t      1602  of Ward No. 3 on a monthly rent  of\t Rs.
\n\t      50\/-  the\t defendant  is\tto  hand  over\t the
\n\t      possession of the suit premises immediately.\n<\/p><\/blockquote>\n
\t      (v)  The parties are to bear their own costs.”\n<\/p><\/blockquote>\n
On  12-1-1968, the landlords filed a petition for  execution
\nof  the decree.\t It was dismissed as premature.\t The  tenant
\nhaving failed to pay Rs. 152\/50 i.e. the balance of arrears.
\nby  the agreed date, the decree-holders on 17-1-1968,  again
\ntook  out  execution for the recovery of  the  said  amount.
\nThereafter,  on\t 3-10-1968, the landlords filed\t the  second
\npetition  to-  recover possession of the  suit\tpremises  in
\nexecution of the decree.\n<\/p>\n
The   tenant  admitted\tthat  he  had,\taccording   to\t the
\ncompromise,  agreed  to give possession\t on  30-9-1968,\t but
\nadded  that in 1968 A.D., the ground floor of  the  premises
\nhad  become  submerged in flood waters,\t and  thereupon\t the
\ndecree-holders\tseeing his (tenant’s) plight, orally  agreed
\nto  allow  him to continue in the premises on payment  of  a
\nmonthly\t rent  of  Rs. 151-. and thus the  decree  had\tbeen
\nadjusted   and\t satisfied.    Subsequently,   by    another
\napplication,  the judgment debtor raised an  objection\tthat
\nsince  the  decree  had been passed  by\t the  Court  without
\nsatisfying  itself as to the existence of a ground of  evic-
\ntion  under  the Bombay Rent Act, it was a nullity,  and  as
\nsuch, not executable.\n<\/p>\n
The executing court (Joint Civil Judge, Surat) rejected\t the
\nstory  of  adjustment and satisfaction of  the\tdecree,\t but
\naccepted  the  other objection holding that the\t decree\t was
\nvoid  because  “the  Court  did not  apply  its\t mind  while
\nallowing it under s. 13 (1) (j), Rent Act”.  With regard  to
\nthe  second ground it was said that it had ceased  to  exist
\nbecause\t “under\t the  terms of\tcompromise  the\t default  in
\npayment of rent was waived and the defendant was given\ttime
\nto  pay\t up to 30-9-68”.  In the result, the  execution\t was
\ndismissed.\n<\/p>\n
From  the order of the executing court,\t the  decree-holders
\ncarried\t an appeal to the Extra Assistant Judge, Surat,\t who
\nheld  that  there  was\tample  material\t in  the  shape\t  of
\nadmissions  in the compromise, itself, from which the  court
\ncould be satisfied about the existence of both the statutory
\ngrounds\t or eviction alleged in the plaint.  He,  therefore,
\nset  aside the dismissal of the execution and  remanded\t the
\ncase to the executing court “to be dealt with in  accordance
\nwith  law”.  Aggrieved by that order of the Extra  Assistant
\nJudge, the tenant preferred a
\n547<\/span>
\nrevision  petition  in\tthe High  Court\t of  Gujarat,.\t The
\nrevision  was dismissed in limine by an order  dated  26-10-
\n1972,  against which this appeal by special leave  has\tbeen
\nfiled.\n<\/p>\n
Mr.  Dholakia, learned Counsel for the\tappellant,  contends
\nthat  in  view\tof public policy which\tunderlies  all\tRent
\nControl\t Acts, including the Bombay Rent Act, no  decree  or
\norder  of  eviction can be passed unless the Rent  Court  or
\nTribunal is satisfied, on the oasis of extrinsic material as
\nto  the existence of all the essential facts constituting  a
\nstatutory  ground for eviction.\t It is stressed that in\t the
\ninstant\t case the material, if any, preceding the decree  or
\neven the so-called admission of the rent being in arrears in
\nthe compromise itself, was far too insufficient to make\t out
\na ground for eviction under s. 12(3) of the Bombay Rent Act.
\nClause\t(a)  of s. 12(3), proceeds the argument,  could\t not
\ncover the case because the tenant had deposited the rent due
\nupto  the date of the suit and had also made an\t application
\nfor  fixation of standard rent; and clause (b) of  the\tsame
\nsub-section  did not apply because no interim standard\trent
\nhad been fixed by the Court.  As regards the ground of\tbona
\nfide  personal\trequirement of the land-lords, it  is  urged
\nthat  there was not even a scintilla of material from  which
\nthe  satisfaction  of  the court as to the  existence  of  a
\nground\tunder  s.  13 could be\tspelled\t out.\tThe  decree,
\nconcludes the Counsel, being based solely on the consent  of
\nthe patties, was a nullity, and was directly hit by the rule
\nlaid  down  by this Court in Bahadur Singh  v.\tMuni  Subrat
\nDass<\/a>;(1)  Kaushalya Devi v. Shri K. L. Bansal<\/a>(2) and  Ferozi
\nLal  fain  v.  Man Mal (3).   Learned  Counsel\thas  further
\nattempted  to  distinguish this Court’s decision  in  K.  K.
\nChari  v.  R. M. Seshadri<\/a> (4) on the ground that  there\t was
\ndocumentary  and  oral evidence of the plaintiff  which\t not
\nbeen   challenged  in  cross-examination,  from\t which\t the
\nstatutory  ground  of  the premises being  required  by\t the
\nlandlord  for bona fide personal occupation, had been  fully
\nmade  out.   Reference has also been made  to  Jeshwant\t Rai
\nMulukchand   v.\t Anandilal  Bapalal<\/a>(5)\tand  Shah   Rasiklal
\nChunilal v. Sindhi Shyamlal Mulchand(6).
\nOn  the\t other\thand, Mr. Parekh, learned  Counsel  for\t the
\nrespondents, has canvassed three principal contentions:\t (i)
\nThe  appeal  should be dismissed on the\t preliminary  ground
\nthat  there  is\t no equity in this case\t in  favour  of\t the
\nappellant who has, in spite of the ample time\t  granted to
\nhim, contumaciously  failed to comply  with  the decree\t and
\nsurrender possession even five years after the expiry of the
\nagreed\tdate fixed for this purpose in the decree.   Counsel
\nhas  cited in support of this contention, the  decisions  of
\nthis  Court  in\t A. M. Allison V. R. L.\t Sen<\/a>  (7)  and\tShri
\nBalwantrai Chimanlal Trivedi v. M. N. Nagreshna and ors.<\/a> (8)\n<\/p>\n
(ii) The principle laid down by
\n(1) [1969] 2. S.C.R. 432.(2) [1969] 2, S.C.R. 1048.
\n(3) [1970] 3. S.C.C. 181.(4) [1973] 1, S.C.C. 761.
\n(5) [1965] 2. S.C.R. 350.(6) 12, Guj. Law Reporter 1012.
\n(7) [1957] S.C.R. 359.\t (8) [1961] 1, S.C.R. 113.\n<\/p>\n
548<\/span><\/p>\n
this Court in the cases relied upon by Mr. Dholakia, is\t not
\napplicable  to a compromise decree passed under\t the  Bombay
\nRent Act because:\n<\/p>\n
(a)  The  provisions  of s. 13 of the Delhi and\t Ajmer\tRent
\n(Control) Act, 1952 (for short, Delhi Rent Act) and s. 10 of
\nthe Madras Buildings (Lease and Rent Control) Act, 1960 (for
\nshort  Madras Rent Act), on the interpretation of which\t the
\nsaid decisions are based, are materially different from\t ss.
\n12 and 13 of the Bombay Rent Act;\n<\/p>\n
(b)  by\t virtue of Rule 8 of the Bombay Rent Act Rules,\t the
\nprovision  of the Code of Civil Procedure,  including  0.23,
\nRule 3, which gives a mandate to the court to pass a  decree
\nin terms of a compromise, are applicable to suits under\t the
\nBombay\tRent  Act,  but\t the  application  of  the  Code  to
\nproceedings  before the Rent Controller Tribunal  under\t the
\nDelhi  Rent  Act  or  Madras Rent  Act\thas  been  expressly
\nexcluded’  In support of this contention reliance  has\tbeen
\nplaced on Chandan Baj v. Surjan (1). (iii) Even if the ratio
\nof the said Supreme Court decisions applies to decrees under
\nthe  Bombay Rent Act, then also both the  statutory  grounds
\nfor  eviction pleaded in the plaint, had been  expressly  or
\nimpliedly  admitted by the defendant in the compromise,\t and
\nit will be presumed that in passing the eviction decree\t the
\ncourt  was satisfied about the existence of  those  grounds.
\nIn  this  view, according to the Counsel, the  instant\tcase
\nwill fall within the ratio of Seshadri’s case (supra).
\nAt the stage of the final hearing of the appeal,  especially
\nafter the learned Counsel for the appellant had addressed us
\non  merits,  we do not propose to go  into  the\t preliminary
\nground\turged by Mr. Parekh.  If the decree turns out to  be
\nwithout\t jurisdiction,\tthis equitable plea will  be  of  no
\navail; because equity cannot operate to annul a statute.  If
\nthe  decree is found to be in conformity with  the  statute,
\nthe  appeal will fail on that ground, alone, and it will  be
\nwholly\tunnecessary to consider the equitable aspect of\t the
\nmatter.\n<\/p>\n
We,  therefore, come straight to the contention (ii)  raised
\nby Mr. Parekh.\tIn order to find out whether or not a decree
\nor   order   of\t eviction  can\tbe  passed   by\t  the\tRent
\nCourt\/Tribunal exercising special jurisdiction under any  of
\nthese  statutes Delhi Rent Act, Madras Rent Act\t and  Bombay
\nRent  Act-on  a\t ground which is not one  of  the  statutory
\ngrounds of eviction, it is necessary to have a peep into the
\nhistorical background of the Rent Control laws, in  general,
\nand  a\tquick look at the broad scheme and language  of\t the
\nrelevant statutory provisions of these Acts.
\nThe strain of the last World War, Industrial Revolution, the
\nlarge scale exodus of the working people to urban areas\t and
\nthe  social  and political changes brought  in\ttheir.\twake
\nsocial problems of considerable magnitude and complexity and
\ntheir  concomitant  evils.   The  country  was\tfaced\twith
\nspiraling  inflation,  soaring cost  of\t living,  increasing
\nurban  population  and\tscarcity  of  accommodation.\tRack
\nrenting and large scale eviction of tenants under the  guise
\nof the ordinary law, exacerbated those conditions making the
\neconomic life
\n(1)  A.I.R. 1972 M.P. 106.\n<\/p>\n
549<\/span><\/p>\n
of  the\t community unstable and insecure.  To  tackle  these
\nproblems  and  curb  these evils, the  Legislatures  of\t the
\nStates in India enacted Rent Control legislations.
\nThe  preamble of the Bombay Rent Act states that the  object
\nof the Act is “to amend and consolidate the law relating  to
\nthe  control  of rents and repairs of certain  premises,  of
\nrates  of hotels and lodging houses and of evictions”.\t The
\nlanguage  of the preambles of the Delhi Rent Act and  Madras
\nRent  Act  is  Strikingly similar.   The  broad\t policy\t and
\npurpose\t as indicated in their preambles is’,  substantially
\nthe same viz., to protect tenants against their landlords in
\nrespect of the rents, evictions and repairs.  With the\tsame
\nbeneficent  end in view, all the three Acts  interfere\twith
\ncontractual  tenancies and make provisions for\tfixation  of
\nfair  and standard rents, or protection against eviction  of
\ntenants not only during the continuance of their contractual
\ntenure\tbut  also  after  its  determination.  indeed,\t the
\nneologism  ”  statutory\t tenant”  has  come  into  existence
\nbecause\t of  this protective policy which is common  to\t all
\nenactments of this kind.  Further, all the three Acts create
\nCourts\/Tribunals  of special and exclusive jurisdiction\t for
\nthe enforcement of their provisions.\n<\/p>\n
Section\t 28 of the Bombay Rent Act which begins with a\tnon-
\nobstante clause, specifies Courts which shall have exclusive
\njurisdiction  to  entertain and try any suit  or  proceeding
\nbetween\t a landlord and a tenant inter alia relating to\t (a)
\nrecovery of rent of any premises;(b) recovery of  possession
\nof  any premises to which the provisions of Part  II  apply.
\nThe  words  “to which the provisions of Part II\t apply”\t are
\nsignificant.  They indicate that the exclusive\tjurisdiction
\nfor  recovery  of  possession is to be\texercised  when\t the
\nprovisions of Part II, which include ss. 12 and 13, apply.
\nAll these three Acts lay down specific grounds more or\tless
\nsimilar,  on  which  a decree or order of  eviction  can  be
\npassed\tby  the\t Rent  Court  or  the  Tribunal\t  exercising
\nexclusive jurisdiction.\t In the Delhi Rent Act, such grounds
\nare specified in a consolidated form under s. 13, while\t the
\nsame  thing has been split up into two and provided  in\t two
\nsections (12 and 13) in the Bombay Rent Act which  represent
\nthe negative and positive parts of the same pattern.   Taken
\ntogether,  they are exhaustive of the grounds on  which\t the
\nRent  Court  is competent to pass a  decree  of\t possession.
\nSimilarly,  in the Madras Rent Act, the grounds on  which  a
\ntenant can be evicted, are given in ss. 10, 14 to 16.
\nSection 13 of the Delhi Rent Act starts with a\tnon-obstante
\nclause\tviz.,  “Notwithstanding\t anything  to  the  contrary
\ncontained  in  any other law or any contract, no  decree  or
\norder  for the recovery of possession of any premises  shall
\nbe passed by any Court in favour of the landlord against any
\ntenant……….  Likewise, s. 10(1) of the Madras Rent\t Act
\nstarts\twith  the  clause, “a tenant shall  not\t be  evicted
\nwhether\t in  execution of a decree or  otherwise  except  in
\naccordance  with the provisions of this section or  sections
\n14 to 16.”\n<\/p>\n
550<\/span><\/p>\n
It will thus be seen that the Delhi Rent Act and the  Madras
\nRent  Act  expressly forbid the Rent Court or  the  Tribunal
\nfrom passing a decree or order of eviction on a ground which
\nis not any of the grounds mentioned in the relevant sections
\nof those statutes.  Nevertheless, such a prohibitory mandate
\nto  the\t Rent  Court that it shall  not\t travel\t beyond\t the
\nstatutory  grounds  mentioned in ss. 12 and 13, and  to\t the
\nparties that they shall not contract out of those  statutory
\ngrounds,  is inherent, in the public policy built  into\t the
\nstatute (Bombay Rent Act).\n<\/p>\n
In Rasiklal Chunilal’s case (supra), a Division Bench of the
\nGujarat\t High Court has taken the view that in spite of\t the
\nfact that there is no express provisions in the Bombay\tRent
\nAct  prohibiting contraction, out, such a prohibition  would
\nhave to be read by implication consistently with the  public
\npolicy\tunderlying this welfare measure.  If we may  say  so
\nwith respect, this is a correct approach to the problem.
\nConstruing the provisions of ss. 12,13 and 28 of the  Bombay
\nRent  Act in the light of the public policy which  permeates
\nthe  entire  scheme and structure of the Act,  there  is  no
\nescape from the\t  conclusion that the Rent Court under\tthis
\nAct is not competent to pass a decree for Possession  either
\nin  invitum or with the consent of the parties on  a  ground
\nwhich  is  de  hours the Act or ultra vires  the  Act.\t The
\nexistence  of one of the statutory grounds mentioned in\t ss.
\n12 and 13 is a sine qua non to the exercise of\tjurisdiction
\nby  the\t Rent Court under these\t provisions.   Even  parties
\ncannot by their consent confer such jurisdiction on the Rent
\nCourt  to do something which, according to  the\t legislative
\nmandate, it could not do.\n<\/p>\n
In  the view we take, we are fortified by the ratio  of\t the
\ndecision  in  Barton v. Fincham(1).  Therein  the  Court  of
\nAppeal\twas considering the scheme of the Rent\tRestrictions
\nAct,  1920, the language of S. 5 of which was similar to  s.
\n13  of\tthe Delhi Rent Act.  In that context,  Atkin  L.  J.
\nstated the law on the point thus :\n<\/p>\n
\t      “The section appears to me to limit definitely
\n\t      the  jurisdiction\t of  the  Courts  in  making
\n\t      ejectment\t orders in the case of\tpremises  to
\n\t      which  the  Act applies.\t Parties  cannot  by
\n\t      agreement\t give the Courts jurisdiction  which
\n\t      the  Legislature has enacted they are  not  to
\n\t      have.\n<\/p><\/blockquote>\n
\t      If the parties before the Court admit that one
\n\t      of  the  events has happened  which  give\t the
\n\t      Court jurisdiction, and there is no reason  to
\n\t      doubt  the  bona fides of the  admission,\t the
\n\t      Court  is under no obligation to make  further
\n\t      inquiry as to the question of fact; but  apart
\n\t      from  such an admission the Court cannot\tgive
\n\t      effect  to-  an agreement, whether by  way  of
\n\t      compromise or otherwise, inconsistent with the
\n\t      provisions of the Act.”\n<\/p><\/blockquote>\n
It is true that in Barton’s case just as in Seshadri’s\tcase
\n(supra),   the\t statute   under   consideration   expressly
\nprohibited the Court from passing a decree on a ground which
\nwas not covered by the statute but
\n(1)  (1921] 2, K.B. 291 at 299.\n<\/p>\n
551<\/span><\/p>\n
the  principle\tequally applicable to cases  under  statutes
\nwhich  place  such  ‘a ‘fetter on the  jurisdiction  of\t the
\nCourt, by necessary implication.\n<\/p>\n
The  mere fact that Order 23, Rule 3. of the Code  of  Civil
\nProcedures applicable to the proceedings in a suit under the
\nBombay\tRent  Act, does not remove that fetter on  the\tRent
\nCourt  or empower it to make a decree for eviction  de\thors
\nthe  statute.  Even under that.\t Provision of the Code,\t the
\nCourt,\tbefore ordering that the compromise be recorded,  is
\nrequired  to  satisfy  itself about the\t lawfulness  of\t the
\nagreement.   Such lawfulness or otherwise of  the  agreement
\nis.  to be judged, also on the ground whether the  terms  of
\nthe  compromise\t are consistent with the provisions  of\t the
\nRent Act.\n<\/p>\n
In  view of what has been said above, it is clear  that\t the
\ngeneral\t principles  enunciated\t by  this  Court  in   cases
\nreferred to by the learned Counsel for the appellant, are  a
\nrelevant guide for determining whether in a particular\tcase
\nthe consent decree for. possession passed by the Court under
\nthe Bombay Rent Act is or is not a nullity.  But the case in
\nhand  is not in line with Bahadur Singh’s  case,  Kaushalaya
\nDevi’s\tcase and Ferozi Lal Jain’s case (supra).  On  facts,
\nthey  are distinguishable from the instant case.   In  those
\ncases,\tthere  was  absolutely\tno  material,  extrinsic  or
\nintrinsic  to the consent decree on the basis of  which\t the
\nCourt could be satisfied as to the existence of a  statutory
\nground for eviction.\n<\/p>\n
The  case  before  us falls well nigh within  the  ratio  of
\nSeshadri’s  case  (supra).  Therein, K. K.  Chari,  who\t was
\nunder an eviction order,, purchased the suit premises in the
\nsame city for his occupation.  Seshadri was then the  tenant
\nof  the\t suit  premises\t under the  vendor,  and  after\t the
\npurchase, he attuned in favour of the appellant and had been
\npaying\trent to him.  Chari issued notices under s.  106  of
\nthe  Transfer  of Property Act, terminating the\t tenancy  of
\nSeshadri.   Since  Seshadri did\t not  surrender\t possession,
\nChari  filed a suit for eviction under s. 10 (3)  (a)(i)  of
\nthe  Madras  Act mainly on the ground that be  required\t the
\npremises  for  his bona fide use and  occupation.   Seshadri
\ncontroverted  Chari’s  claim  At  the  commencement  of\t the
\nenquiry,   Chari   was\texamined  before  the\tCourt.\t  He
\nparticularly  testified how he had purchased the  house\t for
\nhis own occupation.  He also filed a number of documents  to
\nestablish  that\t the  requirement of premises  for  his\t own
\noccupation  was\t true.\tSeshadri did not  prefer  to  cross-
\nexamine\t Chari,\t About\t11\/2  months  thereafter,  both\t the
\nparties entered into a compromise in these terms :\n<\/p>\n
\t      “(1)  The\t respondent  hereby  withdraws\t his
\n\t      defence in the aforesaid petition and  submits
\n\t      to a decree for eviction unconditionally.
\n\t      (2)   The\t respondent  prays  that  time\t for
\n\t      vacating\tupto June 5, 1969, might  please  be
\n\t      given and the petitioner agrees to the same.
\n\t      (3)   The\t respondent  agrees  to\t vacate\t the
\n\t      petition premises and hand over possession  of
\n\t      the entire petition premises to the petitioner
\n\t      on or before the said date
\n\t      552<\/span>
\n\t      viz.   June  5, 1969, without fail  under\t any
\n\t      circumstances and undertakes not to apply\t for
\n\t      extension of time.\n<\/p><\/blockquote>\n
\t      (4)   It\tis agreed by both the  parties\tthat
\n\t      this  memo  of compromise-is executable  as  a
\n\t      Decree of Court.”\n<\/p><\/blockquote>\n
\t      The Court, after referring to the petition  of
\n\t      the  landlord being under s. 10 (3)(a)(i),  of
\n\t      the  Act on the ground of his own\t occupation,
\n\t      passed the following order
\n\t      “Compromise  memo\t filed\tand  recorded.\t  By
\n\t      consent  eviction is ordered granting time  to
\n\t      vacate till June 5, 1969.\t No costs.”
\n\t      The  aforesaid  terms of the  compromise\twere
\n\t      also   incorporated  in  the   order.    After
\n\t      distinguishing  the  former three\t cases\tviz.
\n\t      Bahadur  Singh’s case, Kaushalaya Devi’s\tcase
\n\t      and  Ferozi Lal Jain’s case,  Vaidialingam  J.
\n\t      speaking\tfor himself and Dua  J.\t (comprising
\n\t      majority)\t enunciated  the law on\t the  point,
\n\t      thus :\n<\/p><\/blockquote>\n
\t      “The true position appears to be that an order
\n\t      of eviction based on consent of the parties is
\n\t      not  necessarily\tvoid if\t the  jurisdictional
\n\t      fact viz., the existence of one or more of the
\n\t      conditions mentioned in Section 10 were  shown
\n\t      to have existed when the Court made the order.
\n\t      Satisfaction of the Court, which is no doubt a
\n\t      prerequisite  for the order of eviction,\tneed
\n\t      not  be  by the manifestation borne out  by  a
\n\t      judicial finding.\t If at some stage the  Court
\n\t      was  called  upon\t to apply its  mind  to\t the
\n\t      question\tand  there was\tsufficient  material
\n\t      before  it, before the parties invited  it  to
\n\t      pass an order in terms of their agreement,  it
\n\t      is  possible to postulate that the  Court\t was
\n\t      satisfied about the grounds on which the order
\n\t      of  eviction was based……………. If\t the
\n\t      tenant  in  fact admits that the\tlandlord  is
\n\t      entitled to possession on one or other of\t the
\n\t      statutory grounds mentioned in the Act, it  is
\n\t      open to the court to act on that admission and
\n\t      make an order for possession in favour of\t the
\n\t      landlord without further enquiry.”\n<\/p><\/blockquote>\n
From  a\t conspectus  of\t the cases cited  at  the  bar,\t the
\nprinciple  that\t emerges  is, that if at  the  time  of\t the
\npassing\t of the decree, there was some material\t before\t the
\nCourt, on the basis of which, the Court could be prima facie
\nsatisfied,  about  the existence of a statutory\t ground\t for
\neviction,  it  will  be\t presumed  that\t the  Court  was  so
\nsatisfied  and\tthe decree for eviction,  though  apparently
\npassed\ton the basis of a compromise, would be valid.\tSuch
\nmaterial  may take the shape either of evidence recorded  or
\nproduced in the case, or, it may partly or wholly be in\t the
\nshape  of  an  express\tor implied  admission  made  in\t the
\ncompromise agreement, itself, Admissions, if true and clear,
\nare by far the best proof of the facts admitted.  Admissions
\nin pleadings or judicial admissions, admissible under s.  58
\nof the Evidence Act, made by the parties or their agents  at
\nor before the hearing of the case, stand on a higher footing
\nthan evidentiary admissions.  The former class of admissions
\nare fully binding on the party that makes them and\n<\/p>\n
553.
\nconstitute  a  waiver of proof.\t They by themselves  can  be
\nmade  the.  foundation of the rights of the parties  On\t the
\nother  hand evidentiary admissions which are  receivable  at
\nthe  trial as evidence, are by themselves,  not\t conclusive.
\nThey can be shown to be wrong.\n<\/p>\n
We do not find any force in the contention of Mr.  Dholakia,
\nthat  the  facts  admitted in the  compromise,\titself\twere
\ninsufficient  to  make\tout even a prima  facie\t ground\t for
\neviction mentioned in s. 12 (3) (a) of the Bombay Rent\tAct,
\nmerely\tbecause\t the  tenant had  made\tan  application\t for
\nfixation  of standard rent, which was still pending  at\t the
\ntime  of  passing of the decree.  By admitting\tto  pay\t the
\narrears\t of rent and mesne profits at the rate of  Rs.\t15\/-
\nper month, the tenant had clearly withdrawn or abandoned his
\napplication for fixation of standard rent.  The admission in
\nthe  compromise was thus an admission of the material  facts
\nwhich constituted a ground for eviction under s. 12 (3) (a).
\nRent  was  admittedly  payable\tby  the\t month;\t since\t the
\napplication for fixation of fair rent stood withdrawn, there
\nwas  no dispute with regard to the amount of standard  rent.
\nFurther, the rent was admittedly in arrears for a period  of
\nmore  than six months; so much so that in the present  case,
\nthe  tenant  had neglected to pay the  balance\tof  arrears,
\namounting to Rs. 152\/50, even long after the decree and\t the
\nlandlord was compelled to recover the same by execution.
\nThe  case of Jeshwant Rai Mulukchand (supra) , cited by\t Mr.
\nDholakia, does not advance  his stand.\tIn that case,  there
\nwas  a\tserious ,dispute regarding the\tamount\tof  standard
\nrent.  Though the final order of standard rent was passed by
\nthe  Court  of Small Causes, neither the  landlord  nor\t the
\ntenant\taccepted the determination and each side  questioned
\nthe  amount  by filing Revision Petitions.  In\tthe  present
\ncase,  however, no dispute regarding the standard rent\twas,
\nsubsisting at the time of compromise.  That dispute was\t Put
\nan end to by the compromise itself.\n<\/p>\n
Be  that  as it may, in cases where an objection as  to\t the
\nnon-executability of the decree on the ground of its being a
\nnubility,is  taken, the Executing Court is not competent  to
\ngo  behind  the\t decree, if the decree on the  face  of\t it,
\ndiscloses  some\t material on the basis of  which,  the\tRent
\nCourt  could be satisfied with regard to the existence of  a
\nstatutory  ground  for\teviction.  In such a  case  it\tmust
\naccept and execute the decree as it stands.  If, on the face
\nof  it,\t the  decree does not show  the\t existence  of\tsuch
\nmaterial  or  jurisdictional fact, the Executing  Court\t may
\nlook to the original record of the trial court to  ascertain
\nwhether\t there was any material furnishing a foundation\t for
\nthe  trial court’s. jurisdiction to pass the decree it\tdid.
\nThe moment it finds that prima facie such material  existed,
\nits  task  is complete.\t It is not necessary for  it  to  go
\nfurther and question the presumed or expressed finding,
\n554<\/span>
\nof the trial court on the basis of that material.  All\tthat
\nit  has\t to see is whether there was some  material  on\t the
\nbasis  of which the Rent Court could  have-as  distinguished
\nfrom must have-been satisfied as to the statutory ground for
\neviction.   To allow the Executing Court to go\tbeyond\tthat
\nlimit,\twould be to exalt it to the status of a super  Court
\nsitting\t in  appeal  over the decision of  the\tRent  Court.
\nSince  in the instant case, there was a clear  admission  in
\nthe   compromise,  incorporated\t in  the  decree,   of\t the
\nfundamental  facts  that  could\t constitute  a\tground\t for
\neviction  under. s. 12 (3) (a), the Executing Court was\t not
\ncompetent to go behind the decree and question its validity.
\nFor the foregoing reasons, the appeal fails and is dismissed
\nwith costs.\n<\/p>\n
V.P.S.\t\t\t\t Appeal dismissed.\n555<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Nagindas Ramdas vs Dalpatram Ichharam @ Brijram And … on 30 November, 1973 Equivalent citations: 1974 AIR 471, 1974 SCR (2) 544 Author: R S Sarkaria Bench: Sarkaria, Ranjit Singh PETITIONER: NAGINDAS RAMDAS Vs. RESPONDENT: DALPATRAM ICHHARAM @ BRIJRAM AND ORS. DATE OF JUDGMENT30\/11\/1973 BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-88004","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNagindas Ramdas vs Dalpatram Ichharam @ Brijram And ... on 30 November, 1973 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/nagindas-ramdas-vs-dalpatram-ichharam-brijram-and-on-30-november-1973-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Nagindas Ramdas vs Dalpatram Ichharam @ Brijram And ... on 30 November, 1973 - 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