Suleman Noormohamed Vs. Umarbhai
Janubhai [1978] INSC 50 (23 February 1978)
UNTWALIA, N.L.
UNTWALIA, N.L.
SARKARIA, RANJIT SINGH
CITATION: 1978 AIR 952 1978 SCR (3) 387 1978
SCC (2) 179
ACT:
Civil Procedure Code-Order 23 Rule 3-While
recording compromise whether court should mention that the compromise is
lawful-Can it be presumed-Bombay Rent Act 1947-Sec.
12(3)b-Decree based on compromise whether a
nullity- Statutory ground for eviction whether can be made out from the
material before the court-Compromise deed by which tenant agrees to pay arrears
of rent as demanded in the plaint, if sufficient.
HEADNOTE:
The appellant landlord filed a suit against
the respondent tenant claiming a decree for eviction on grounds of non- payment
of rent and for bonafide personal necessity in accordance with the Bombay
Rents, Hotel and Lodging House Rates Control Act, 1947. The respondent filed a
written statement. An exparte decree was passed which was set aside on the
application of the respondent. Ultimately, the suit was disposed of on the
compromise between the parties.
According to the terms of the compromise the
tenant was to hand over possession of the suit premises to the landlord within
a period of 3 years. The tenant did not vacate on the expiry of the period and
contested the execution on the ground that the decree was a nullity. The Trial
Court held that the decree was a nullity. That was upset by the Appellate
Court. The High Court accepted the Revision Application filed by the tenant and
held that the compromise decree, is a nullity and. therefore, cannot be
executed.
The High Court held that the order passed by
the Court did not disclose any satisfaction recorded by the Court about the
existence of one or more grounds of eviction under the Act, and in the
compromise pursis also there is no admission on the part of the tenant express
or implied.
Allowing the appeal,
HELD : 1. It has been laid down by the Court
in the case of Nagindas Ramdas that existence of any of the statutory grounds
is a sine quo non to the exercise of jurisdiction by the Rent Court in order to
enable it to make a decree for eviction. It was also laid down that if at the
time of 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 would 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. This Court also held that such material might take
the shape of either of evidence recorded or produced or express or implied
admission made in the compromise agreement itself.
In Roshanlal's case this Court field that the
Court can pass a decree on the basis of a compromise and that in such a
situation the only thing to be seen is whether the compromise is in violation
of the requirements of law. [389 C-G] Nagindas Ramdas v. Dalpatram Ichharam @
Brijram and Ors., [1974] 2 S.C.R. 544 and Roshan Lal v. Madan Lal, [1976] 2
S.C.R. 878, relied on.
2. There is abundant intrinsic material in
the compromise itself to indicate that the decree passed upon its basis was not
in violation of the Act but was in accordance With it.
If there is no dispute about the standard
rent or no bonafide dispute or the dispute raised is a mere pretence of it a
decree can follow under section 12(3)(b) of the Act in a suit in which rent is
not due for 6 months of more but is due even for lesser period. The tenant will
get the protection against eviction in such a case only if he pays or tenders
in court on the first date of hearing of the suit or such other date as the
Court may fix. In the instant case, the High Court was not right that on the
face 3 88 of the compromise pursis or the order passed thereon there was no
material to show that the tenant had either expressly or impliedly suffered a
decree for eviction as being liable to be evicted in accordance with section
12(3) (b). While recording the compromise under order 23 rule 3 of the Civil
Procedure Code, it is not necessary for the Court to say in express terms in
the order that it was satisfied that the compromise was a lawful one. It will
be presumed to have done so unless the contrary is shown. But that apart, on
examination of the plaint which certainly should be looked into and which must
have been in the records of the Court at the time of passing of the compromise
decree, it would be found that landlords had claimed arrears of rent for two
months at the rate of Rs. 17/- per month and mesne profits also for one month
upto the date of the suit at the same rate. They had also claimed electricity
charges @ Rs. 2/- per month. In the compromise petition the same amount of
rent, mesne profit and electric charges are admitted by the tenants to be
payable to the landlords. There is nothing to indicate that any genuine dispute
was raised by the tenant in regard to the standard rent or the electric charges
nor is there anything to show that he had ever filed a Petition under section
11 of the Act or any other provision of law for fixation of standard rent. Nor
was he able to show that the Court at his request had ever fixed any other date
for payment of the said amount. In view of his admission in the compromise deed
to pay the rent as demanded it is manifest that there was no dispute in the
case in regard to the standard rent. The facts clearly show that the tenant had
incurred liability to be evicted under the said provisions of law and the
compromise decree was passed on the tenant's impliedly admitting such liability.
[390 F-G, 391 C-D, E-H, 392 A-B]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 226 of 1976.
(Appeal by Special Leave from the Judgment
and Order dt. the 17th October, 1975 of the Gujarat High Court in Civil
Revision Appln. No. 679 of 1972).
P. H. Parekh, Manju Sharma & C. B. Singh
for the Appellants.
V. N. Ganpule for the respondent.
The Judgment of the Court was delivered by
UNTWALIA, J.-This is a decree-holders' appeal by Special leave. The sole
respondent is the judgment debtor. The appellants filed a suit against the
respondent in the Small Causes Court at Ahmedabad in 1964 claiming a decree for
eviction against him on the ground of non-payment of rent and bonafide personal
necessity. The grounds made out were in accordance with the relevant provisions
of The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947-
hereinafter to be referred to as the Act. The respondent filed a written
statement with a view to contest the suit.
Eventually on account of the default of the
defendant the suit was taken up for hearing ex-parte and an ex-parte decree was
passed on the 16th of March, 1966. The defendant applied under Order IX Rule 13
of the Code of Civil Pro- cedure-hereinafter to be referred to as the Code, for
setting aside the decree. It was set aside. But ultimately the suit was
disposed of on the 1st March, 1967 on compromise between the parties. According
to the terms of the compromise decree, the judgment-debtor was to hand over
possession of the suit premises to the decree holders within a period of three
years i.e. by 1st of March, 1970. But he did not do so. Thereupon the
decree-holders filed an execution case to get 389 possession of the property.
The respondent contested the execution on the ground that the decree was a
nullity. The first Court accepted his plea but on appeal by the decree- holders
it was held by the Appellate Court that the decree was not a nullity and was
executable. The respondent filed a revision application in the Gujarat High
Court which has been allowed. The High Court has accepted the respondent's plea
that the compromise decree is a nullity and hence cannot be executed.
It is not necessary to review again and again
all the earlier judgments of this Court on the point. It will be sufficient to
refer only to two namely, Nagindas Ramdas v. Dalpatram Ichharam @ Brijram and
Ors(1)-a judgment which is noticed by the High Court also in its order under
appeal and the case of Roshan Lal v. Madan Lal(2).
It was pointed out in Nagindas's case (supra)
by one of us (SarKaria J) that the existence of one of the. statutory grounds
mentioned in sections 12 and 13 of the Act, as in the case of other similar
States Statutes, is a; sine qua non to the exercise of jurisdiction by the Rent
Court in order to enable it to make a decree for eviction. Parties by their
consent cannot confer jurisdiction on the Rent Court to do something which
according to the legislative mandate it could not do. The Court while recording
a compromise under Order XXIII, Rule 3 of the Code has to satisfy itself that
the agreement between the parties is lawful; in other words is not contrary to
the provisions of the Act But it has been clearly laid down in Nagindas's case
at page 552 "........ 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,. . . ." In
Roshan Lal's case, one of us (Untwalia J.) following Nagindaes case reiterated
the same view. At page 882 delivering the judgment of this Court, it has been
said "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 tenants 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." (1) [1974] 2 S.C.R. 544.
(2) [1976] 1 S.C.R. 878, 390 With reference
to the requirement of the law under Order XXIII Rule 3 of the Code, it has been
observed further on the same page :- 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. Passings a decree for eviction on
adjudication of the requisite facts or on their admission in a compromise
either express or implied, is not different." The High Court has held the
decree to be a nullity on the following grounds :- (1) Admittedly, the order
passed by the learned Judge does not disclose any satisfaction recorded by him
about the existence of one or more grounds of eviction under the Act.
Naturally, therefore, the decree does not disclose that the learned Judge, who
passed the eviction decree, was satisfied about the existence of any of the
grounds for eviction.
(2) In the compromise pursis also, there is
no admission on the part of the defendant, express or implied, under section 12
or section 13 of the Act." In arriving at the said conclusions the High
Court has left out of consideration the affidavit filed on behalf of the
appellants at the time, the suit was taken up for hearing ex-parte and the
ex-parte decree following thereupon. We also do not propose to refer to those
materials to arrive at our conclusions, which are different from those of the
High Court. But even apart from those materials, there is abundant intrinsic
material in the compromise itself to indicate that the decree passed upon its
basis was not in violation of the Act but was, in accordance with it.
In Vora Abbasbhai Alimahmomed v. Haji
Gulamnabi Haji Safi- bhai(1) Shah J, as he then was, delivering the judgment of
this Court pointed out that when the conditions of clause (a) of sub-section
(3) of section 12 of the Act are fulfilled the Court is bound to pass a decree
in ejectment against the tenant. But in relation to clause (b) it has been said
at page 166 :- "The clause deals with cases not falling within cl. (3) (a)
i.e. cases (i) in which rent is not payable by the month (ii) in which there is
a dispute regarding the standard rent and (1) [1964] 5 S.C.R. 157.
391 permitted increases, (iii) in which rent
is not due for six months or more. In these cases the, tenant may claim
protection by paying or tendering in Court on the first day of the hearing of
the suit or such other date as the Court may fix, the standard rent and
permitted increases and continuing to pay or tender in Court regularly such
rent and permitted increases till the suit is finally decided and also by
paying costs of the suit as directed by the Court." It clause (b) is
attracted as being any other case of the type (ii) i.e. "in which there is
a dispute regarding the standard rent and permitted increases", then in such
a case, "the tenant would not be in a position to pay or tender the
standard rent, on the first date of hearing, and fixing of another date by the
Court for payment or tender would be ineffectual, until the standard rent is
fixed." Hence the Court, on the application of the tenant, has to fix the
standard rent first. But if there is no dispute or no bona fide dispute, or the
dispute raised is a mere pretence of it, a decree can follow under clause (b)
of subsection (3) of section 12 of the Act in a suit in which rent is not due
for six months or more but is due even for a lesser period.
The tenant will get the protection against
eviction in such a case only if he pays or tenders in Court on the first date
of the hearing of the suit or such other date as the Court may fix the rent due
(leaving aside the question of costs).
In the instant case the High Court was not
right that on the face of the compromise pursis or the order passed thereon,
there was no material to show that the tenant had either expressly or impliedly
suffered a decree for eviction as being liable to be evicted in accordance with
section 12 (3) (b) of the Act. While recording the compromise under Order XXIII
Rule 3 of the Code, it is not necessary for the Court to say in express terms
in the order that it was satisfied that the compromise was a lawful one. It
will be presumed to have, done so, unless the contrary is shown. But that
apart, on examination of the plaint which certainly could be looked into and
which must have been in the records of the Court at the time of the passing of
the compromise decree, it would be found that the landlords had claimed arrears
of rent for two months @ Rs. 17/- per month and mesne profit also for one month
up to the date of the suit at the same rate. They had also claimed light
charges @ Rs. 2/- per month. In, the compromise petition, paragraph 2, the same
amount of rent, mesne profit and electric charges are admitted by the tenants
to be payable to the landlords There is nothing to indicate that any genuine
dispute was raised by the tenant in regard to be standard rent or the electric
charges Nor is there anything to show that he had ever filed a petition under
section 11 of the Act or any other provision of law for fixation of standard
rent. In other words, there is nothing to show that the tenant could claim
protection from eviction in accordance with clause (b) of sub-section (3) of
section 12 of the Act on the ground that he was not in a position to pay or
tender the rent due on the first date of the hearing of the suit, which must
have been fixed before the passing of the ex-parte decree. Nor was he able to
show that the Court at his request bad ever fixed any other date for 392
payment of the said amount In paragraph 3 of the compromise petition also it is
admitted that the standard rent would be Rs 17/- per month plus Rs 2/- electric
charges and the defendant would pay the mesne profits at the aforesaid rates
from 1-3-1967. It is, therefore manifest that there was no such dispute in this
case in regard to standard rent which could give any protection to the tenant
against his eviction under section 12 (3) (b) of the Act The facts clearly show
that he had incurred the liability to be evicted' under the said provisions, of
law and the compromise decree was passed on the tenant's impliedly admitting
such liability If a decree for possession Would have been passed in inviting
the tenant would not have got three years' time to vacate the premises. He,
therefore, agreed to suffer a decree by consent and gained three years' time
under it. But the unavoidable uncertainties of litigation and the delay in
disposal of cases at all stages have enabled him to gain a period of about 1 1
years. more by now. In our judgment the decree under execution is not a nullity
and has got to be executed by the Execution Court without any further loss of
time, as quickly as possible.
In the result, we allow this appeal with
costs and set aside the judgment and order of the High Court.
P.H.P. Appeal allowed.
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