1. The appellant decree holder filed a Civil Suit No. 183-A of 1953 in the Civil Court, Akola, Against the respondents to recover possession of certain shop premises situated in mangaldas Market, Akola, alleging that he had leased out the said shop to respondent No. 1 on a monthly tenancy and that the respondent No. 1 had defaulted in payment of rent. It is also contended therein that he had also sub-let a part of the premises to respondent No.2 without his permission. Before institution of this suit the landholder had obtained necessary permission from the House Rent Controller, Akola, to issue notice of ejectment against the opponents and had actually served a notice on them. The suit was resisted by the judgment -debtor respondent only and the other opponent remained absent. Ultimately that suit ended in compromise between the appellant and the respondent on 18-8-1954. As the controversy involved in this appeal is based on the recitals of this compromise decree, it will be useful to reproduce the relevant portion of the same at this stage which is as under:-
'It is ordered and decreed in terms of compromise between the plaintiff and defendant No.1 and ex parte against the defendant No. 2 that (The defendant No.1 ) shall pay rent to the plaintiff from 1-7-1953 at the rate of Rs. 25-0-0 per month and if he fails to pay his rent for any three months after 1-9-1954 the plaintiff will be at liberty to obtain possession of the suit shop by applying for execution. parties shall bear their own costs as shown on overleap. Defendant No. 2 shall vacate the suit portion'.
As the respondent before this Court did not pay the amount of the rent as agreed, the decree-holder filed Darkhast application for execution of the decree. It was alleged in the said application that the defendant has not paid rent for three months, i.e. November and December, 1962 and January, 1963 and hence possession of the demised premises should be given to him from the defendants. He also claimed recovery of the arrears of rent for three months. A notice was issued to the judgment -debtor in this behalf. It was contended by the judgment debtor in his reply that he had gone to Manasukhlal - the elder brother of the decree holder who manages the estate at Akola and offered an amount of Rs. 25/- on account of rent for the month of November, 1962 but Manasukhlal told him that he would receive that amount and will appropriate it towards the education cess which was being imposed by the Municipality and as that suggestion was not acceptable to the judgment debtor and as he insisted that the amount of Rs. 25/- should be accepted towards the rent, Mansukhlal refused to do so. he further contended that the amount of Rs. 25/- was sent by money-order to the decree holder but he wrongfully refused to accept that money-order. Therefore., it was the case of the judgment debtor that since he had tendered the amount of rent it should be held that the rent for three months had not fallen in arrears and as such the decree-holder was not entitled to recover possession . He further contended that he had sent an amount of Rs. 25/- by money- order on account of the rent for the month of December 1962 and he was prepared to pay the rent which k became due and hence the decree-holder was not entitled to claim the possession. The learned Civil Judge held that the judgment debtor has failed to prove that he had tendered the amount in time and, therefore, passed an order that the decree holder is entitled to the possession of the suit property. Being aggrieved by this order passed by the Second Joint Civil Judge, Junior Division Akola, the Judgment debtor filed an appeal before the District Court. The District Judge, Akola, vide his judgment dated 30th of September, 1964 allowed the appeal and set aside the order or the lower Court directing execution of the decree for possession of the suit premises. The learned District Judge held that the decree holder was not entitled to recover possession of the premises mentioned in the decree by seeking to execute that decree. Against this judgment of the District Judge, Akola, the present second appeal has been filed by the original decree holder.
2. Shri Kherkekar, the learned counsel for the appellant, contended before me that the judgment of the lower appellate Court is without jurisdiction because it is not open for the executing Court to go behind the decree. If the executing Court cannot go behind the decree then it is not open for the appellate Court also to go behind the decree in an appeal filed against the order passed by the trial Court in the execution proceeding.. He further contended that merely concession was shown to the judgment-debtor and the said compromise between the parties did not create any new tenancy or the old tenancy between the parties was continued to subsist. It was also contended by him that there was no question of granting relief against forfeiture and, therefore, the learned Judge of the first appellate Court committed an error in allowing the appeal and in holding that a fresh tenancy was created, between the parties. In support of his contentions Shri Kherdekar has relied upon various decisions of this Court, viz., Ramjibhai v. Goverdhandas, : AIR1954Bom370 : Gajanan Govind v. pandurang Keshao, : AIR1951Bom290 : Dattatraya v. padmakar : (1961)63BOMLR148 and Waman v. yeshwant, 50 Bom LR 688 : AIR 1949 Bom 97 (FB).
3. On the other hand it is contended by Shri Chandurkar, the learned counsel for the respondent, that by the said compromise between the parties the landlord admitted that the defendant judgment-debtor was a monthly tenant of the plaintiff and he was to continue in possession of the house as a monthly tenant. he further contended that the terms of compromise further indicated that the landlord accepted the judgment-debtor to be his tenant and permitted him to continue in that capacity even after the passing of the decree. The judgment debtor was held liable to pay past rent as well as future rent. Therefore, according to Shri Chandurkar the old tenancy between the parties was continued on new terms and the previous notice of termination given by the landlord was specifically waived. In substance a fresh contract of tenancy was created. In this view of the matter, according to Shri Chandurkar, unless the landlord took recourse to the provisions of the Rent Control Order over again it was not open for him to terminate the tenancy of the judgment -debtor, the tenant, Shri Chandurkar further contended that in view of the provisions of C. P. & Berar Rent Control Order and the specific recitals in the compromise deed as well as consent decree it is not open for the decree-holder to execute the decree. In support of his contention Shri Chandurkar has relied upon another decision of this Court in Gurupadappa v. Sayad Akbar : AIR1950Bom252 .
4. It is contended by Shri Kherdekar that merely an indulgence was how to the judgment-debtor by way of concession which was incorporated in the consent decree. Though the judgment - debtor was liable to immediate eviction, the decree-holder allowed him to continue in possession for a certain period from the date of decree in view of the compromise between the parties. In this view of the matter, therefore, according to the learned counsel, the terms of the consent decree neither amounted to creation of new tenancy nor the old tenancy was continued therefore, it was open for the decree-holder to execute the decree. It is not possible for me to accept this contention of Shri Kherdekar. In the case referred to by Shri Kherdekar when the matter was compromised between the parties only concession was given to the judgment debtor and then a conditional decree was passed. In none of these cases further rent was claimed by the decree-holder landlord. In 50 BLR 688: AIR 1949 Bom 97 (FB) it was held by this Court that where a decree, passed either by consent or invitum, permits payment the of the decretal amount in instalments and provides that on failure in payment of one or more instalments the whole amount of the decree would become payable at once, Courts are bond, in the event of such failure, to execute the decree in accordance with its terms, and are not at liberty to relieve against the consequence of failure on equitable considerations. In that case plaintiff Waman had advanced a sum of Rs. 4,000/- to the defendant Yeshwant and his mother on the security of immovable property. A very little amount was paid towards the mortgage. Thereafter the dispute was referred to the arbitrator who gave his award and a decree was passed. The said decree provided payment of the decretal amount by instalments and it was then provided by the decree that in default of payment of any of these tow instalments the plaintiff, if so desired, can take actual possession of the mortgaged property. Therefore, in my opinion, the said case is not useful for deciding the controversy involved in the present appeal. In : AIR1951Bom290 i.e. Gajanan v.pandurang a question came for consideration before this Court as to whether in a case where the relationship of landlord and tenant is created or continued between the parties by a compromise decree, the judgment -debtor who is a tenant would be entitled to relief against forfeiture resulting from his failure to pay the rent at the stipulated time. Plaintiff Gajanan had filed a suit against his tenant Pandering to recover possession of the premises let out to him and for arrears of rent. Initially ex parte decree was passed against the defendant by which possession and right to recover Rs. 84/- on account of arrears of rent was given to the plaintiff. Thereafter the defendant filed an application to set aside the decree and to restore the suit to file and then a compromise decree was passed, which was in the following terms:-
'According to the plaintiff's claim the defendant had to pay an amount of Rs. 84/- and the costs of the suit Rs. 30/- and further compensation in lieu of rent up to the end of August 1947 Rs. 74/- , making in all Rs. 188/-. Out of this amount the defendant had paid to the plaintiff Rs. 100/0 in cash to-day . The remaining amount of Rs. 88/- is as greed to be paid at the end of September, 1947, and the defendant should pay to the plaintiff the said amount of Rs. 88/- and the compensation is lieu of rent for the month of September Rs. 4-8-0 making it all Rupees 92-8-0 at the end of September 1947.
It is agreed that if the defendant pays to the plaintiff the amount mentioned above he is to stay in the suit premises as a tenant on previous terms. If the defendant fails to pay the said amount the plaintiff should take possession of the suit property 'through Court'. As the defendant failed to pay the amount, the plaintiff filed Darkhast. The question which was required to be determined in the said case was as to whether the defendant can be granted relief even though he has not complied with the terms of the decree. When the matter came in before the single Judge of this Court, a conflict between the view expressed by the Full Bench of this Courting Waman v. Yeshwant, 50 Bom LR 688: AIR 1949 Bom 97 and Krishna Bai v. hari : (1906)8BOMLR813 and also in Balambhat v. Vinayak : (1911)13BOMLR154 was appointed out and so the matter was referred to the Division bench. after making a reference to these two decision the Division bench found that there was no substance in the appellant's contention that the decision in Krishnabais case is in any way in consistent with the subsequent decision in Waman's case and they the Division Bench further observed that the Courts below were right in granting relief to the judgment debtor. The Division bench further found that the default made by the judgment debtor in that case in the payment of rent was purely technical since the amount in question was paid by him only a day later ten the stipulated period. Therefore, the question involved in the present appeal was not also considered in the said decision by this Court in : AIR1954Bom370 on which reliance is placed by Shri Kherdekar, on the construction of the compromise between the parties, it was held by this Court:
'that the scheme of the agreement , the absence of any words indicating demise as such, the emphasis on the defendants undertaking to vacate on or before the specified date the sue of the words 'mesne profits', liberty left to the defendant to vacate as soon as he liked could with the circumstances under which the contract came to be made, led to the inference that the document did not evidence the creation of a leasehold right; it only enabled the defendants to remain in possession of the property permissively at the least Until 22-10-1949 and on the expiration of the said period the decree-holder was entitle dot execute the decree'. Therefore, on the term and conditions as incorporated in the compromise decree it was held that no new lease has been created and hence the decree-holder was entitled to execute the decree. Similarly in Dattaterya v. padamkar : (1961)63BOMLR148 it was held buy this Court that where a conditional decree for eviction either by consent or invitum is passed by the Court the landlords right to eviction becoming effective on the failure often a to pay the amount of rent mentioned in the decree within a stipulated time, the tenant cannot become a statutory tenant under Section 5(11)(b) of the Bombay Rent Act, during the time granted to him to make the payment . Therefore, it was held that he was liable to be evicted on his failure to comply with the terms of the decree. In the said case decree granted did not require the judgment debtor to pay future rent or the rent which had fallen due during the pendency of the suit. it was also not contemplated in the decree that the defendant was to continue in possession as tenant for an indefinite period. In substance there the defendant was directed to surrender possession to the landlord but only the tenant was permitted to remain in possession till the day specified in the decree. It was further observed by this Court that reading the decree as a whole, what was granted to the defendant was a concession, and the direction that the plaintiff landlord was to recover possession on failure of the defendant to pay the specified amount within a specified time, was not by way of penalty and therefore, the question of granting any relief to the judgment debtor will not arise. Therefore from the bare reading of the decision referred to here in before it is quite clear that all these decisions were based on the facts and circumstances of those case, and much depended upon the language used in the consent decree. There is a distinction between the consent decree where under the tenancy is continued and a consent decree for eviction,. where under an ex-tenant is allowed to retain possession for a specified period byway of concession. In such cases the landlord's right to take possession is postponed and no new tenancy is cheated, nor the old tenancy is continued. On the other hand, in : AIR1950Bom252 this Court has taken a view that by virtue of the consent decree, k the defendant can become a contractual tenant of the plaintiff. In that case by a consent decree the tenant admitted that he was a monthly tenant and agreed to deliver possession of the demised premises to the plaintiff on January 31, 1948 and to pay rent every month till the expiry of the period. In these circumstances this Court held that by virtue of the consent decree the defendant became a contractual tenant of the plaintiff and was, therefore, entitled to claim the benefit of Section 12(1) of the 1947 Act. Position in this behalf was also considered by the Supreme Court in Bai Chanchal v. Syed Jalaluddin. : 2SCR171 . In that case a decree for eviction of lessee from leased lands on the basis of consent decree was passed. Though the judgment debtor was liable to immediate eviction, the landlord allowed him to continue in possession for about five year from the date of decrees a concession. Mesne profits at a higher rate was required to be paid by the judgment-debtor. A clause was incorporated in the decree that in case of default of payment of mesne profits the judgment -debtor possession and in these circumstances the Supreme Court held that the terms of the consent decree neither constituted a new tenancy nor licence. The decision of its Court in : AIR1950Bom252 was referred to by the Supreme Court and was distinguished. While distinguishing the said decision it was observed by the Supreme Court:
'Reference was made by learned counsel for the appellants in support of his argument to a decision of the Bombay High Court in Gurupadappa 52 Bom LR 143 = (AIR 1952 Bom 252) but that case in our opinion, has no application. In that case in the consent decree itself, the first clause was that the defendant admits that he is a monthly tenant of the plaintiff and is to continue in possession till January 31, 1948. This clause specifically and clearly, in the language used made it manifest that the defendant was a monthly tenant and was to continue in that capacity in possession. It was in these circumstances that it was held that a new tenancy had been created from the date of the consent decree. In the case before us, the terms of the consent decree are in no way comparable with the terms used in the consent decried that case. The language used in the consent decreeing the present case contains no indication of any intention to create a tenancy so that the Bombay Rent Control Act, 1947 could never apply to the case of the appellants'. In the case before me the landlord accepted the judgment debtor to be his sole tenant. The judgment debtor also admitted that he is the monthly tenant of the plaintiff. Then it was also agreed between the parties that the defendant shall pay rent to the plaintiff from 1-7-1953 at the rate of Rs. 25/- per month, which payment was towards the past rent. So far as payment of future rent is concerned, it was agreed between the parties that if the judgment debtor fails to pay his rent for any three months after 1-9-1954 then the plaintiff will be at liberty to obtain possession of the suit shop by applying for execution. From the compromise application filed before the Court it seems that there was dispute between the parties as to whether the defendant is the sole tenant or not. In the compromise petition it was admitted by the defendant that he is monthly tenant of the plaintiff and he is withdrawing all the adverse allegations made by him in his written statement wherein he has stated that somebody else was also a tenant. As per this compromise petition it was agreed between the pettiness that defendant No. 1 will pay to the landlord Rs. 25/- per month as rent from 1-7-1953. it was also agreed between the parties that if the defendant tenant will remaining arrears of rent fro any three months after 1-9-1954 , then the plaintiff will be entitled to apply for execution of the decree and get possession of the tenant and in view of this compromise between the parties, a consent decree was passed. From the record it is further clear that the judgment-debtor continued to be a tenant and paid the rent regularly till November, 1962 . In the Darkhast application filed by the decree holder before the executing Court it was con tended by the plaintiff that he had not received from the defendant rent for three months, j.e. for November and December 1962 and January 1963 and, therefore, possession of the demised premises should be given to him. it was specifically agreed between the parties that the defendant, the present judgment debtor, is the tenant of the suit premises and he will continue to be a tenant even after the decree. This relationship of the landlord and tenant between the parties continued till the year 1963, when a default was committed by the judgment - debtor. Therefore, from the material placed by the parties before the Courts in this case, it is quite clear that it was intended by the parties that the relationship of landlord and tenant will continue and by the said consent decree in fact the old tenancy was continued on new terms and a new contract of tenancy was entered into by the parties. Such an inference is inevitable having regard to the recitals of the compromise application as well as the consent decree and the conduct of the parties. as observed by the Supreme Court in Bhawanji v. himatlal, : 2SCR890 , the assent of the landlord other continuance of possession after the determination of the tenancy will create a new tenancy in view of the provisions of Section 116 of the Transfer of Property Act. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term is over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. Reference in that cases was made to the decision of Federal Court in Kai Khushroo Bezonjee Capadia v. Bai Jerbai Hirjibhoy Warden and then it was observed by the Supreme Court:
'The Federal Court had occasion to consider the question of the nature of the tenancy created under Section 116 of the Transfer of Property Act and Mukherea, J. speaking for the majority said, that the tenancy which is created by the 'holding over' of a lessee or under-lessee is a new tenancy in law even though many of the terms of the old lease might be continued in it, by implication; and that to bring a new tenancy into existence, there must be a bilateral act. It was further held that the assent of the landlord which is founded on acceptance of rent must be acceptance of rent as such and in clear recognition of the tenancy right asserted by the person who pays it. Patanjali Sastri, J. in his dissenting judgment, has substantially agreed with the majority as regard s the nature of the tenancy created by Section 166 of the Transfer of Property Act, and that is evident from the following observations:-
'Turning now to the main point, it will be seen that the section postulates the lessee remaining in possession after the determination of the lease which is conduct indicative, in ordinary circumstances, of his desire to continue as a tenant under the lessor and implies a tacit offer to take a new tenancy from the expiration of the old on the same terms so far as they are applicable to the new situation, and when the lessor assents to the lessee so continuing in possession, he tacitly accepts the latter's offer and a fresh tenancy results by the implied agreement of the parties. When, further, the lessee in that situation tenders rent and the lessor accepts it, their conduct raises more readily and clearly the implication of an agreement between the parties to create a fresh tenancy ...............................' We have already shown that the basis of the section is a bilateral contract between the erstwhile landlord and the erstwhile tenant, if the tenant a has the statutory right to remain in possession, and if he pays the rent that will not normally be referable to an offer for his continuing possession which can be converted into a contract by acceptance thereof by the landlord. We do not say that the operation of Section 116 is always excluded whatever might be the circumstances under which the tenant pays the rent and the landlord accepts it. We have earlier referred to the observations of this Court in : 3SCR813 regarding some of the circumstances in which a fresh contract of tenancy may be inferred. We have already held the whole basis of Section 116 of the Transfer of property Act is that, in case of normal tenancy, a landlord is entitled, where he does not accept the rent after the notice to quit, to file a suit in ejectment and .obtain a decree for possession, and so his acceptance of rent is an unequivocal act referable only to his desire to assent to the tenancy continuing in possession. That is not so where Rent Act exists; and if the tenant sways that landlord accepted the rent no as statutory tenant but only as legal rent indicating his assent to the tenant's continuing in possession, it is for the tenant to establish it. No attempt has been made to establish it in this case and there is no evidence, part from the acceptance of the rent by the land lord, to indicate even remotely that he desired the appellants to continue in possession after the termination of the tenancy. Besides, as we have already indicated the animus of the tenant in tendering the rent is also material. If he tenders the rent as the rent payable under the statutory tenancy, the landlord cannot, by accepting it as rent, create a tenancy by holding over. In such a case the parties would not be id idea and there will be no concensus. The decision in : 3SCR813 which followed the principles laid down by the Federal Court in is correct and does not require re-consideration'.
From these observations of the Federal Court as well as supreme Court it is quite clear that Section 116 contemplates a bilateral contract between the parties. In the present case by the compromise between the parties and consent decree in pursuance of the said compromise a fresh contract was created. By virtue of this contract it was agreed that the defendant will continue to be in possession of the suit premises as a tenant. As a matter of fact, by the said compromise application the parties accepted that the defendant was the sole tenant of the suit premises. Then the defendant undertook to pay past rent from 1-7-1953. What was agreed to be paid between the parties was not mesne profits or an amount equal to the rent for use and occupation of the premises. but the parties specifically agreed that what the defendant will pay will be the rent. This is further clear from further recitals of the compromise deed as well as the consent decree. An obligation was cast upon the defendant to pay past rent as well as future rent and ten it was agreed between the parties that if the defendant fails to pay rent for any three months after 1-9-1954 then the plaintiff will be at liberty to obtain possession by applying for execution. This consent decree was passed on 18th August, 1954 then the plaintiff will be at liberty to obtain possession by applying for execution. This consent decree was passed on 18th August, 1954 then the plaintiff will be at liberty to obtain possession by applying for execution. This consent decree was passed on 18th August, 1954 . In spite of this a term was incorporated in this consent decree that if the defendant fails to pay his rent for any three months after 1-9-1954 ten alone the plaintiff will be at liberty to obtain possession . From the material placed on record it is quit clear that the defendant paid rent till November 1962 and the plaintiff had accepted the said amount as rent. What was paid by the defendant to the plaintiff was a rent as per agreement between the parties. By the said agreement between the parties. By the said agreement between the parties the old tenancy was continued on the terms and conditions incorporated in the consent decree and a new tenancy was created which admittedly continued till November 1962, i.e. for more than 8 years. Therefore, reading the consent decree as well as the recitals in the compromise deed as a whole, in my opinion the learned District Judge was right in coming to the conclusion that the old tenancy between the parties was continued by the said compromise decree or in any case new tenancy was created. once this finding is recorded than it was not open for the plaintiff decree holder, to execute the decree in view of the provisions of C. P. and Berar Rent Control Order. It was not open for the landlord to have terminated the tenancy of the tenant or to have taken possession of the property without taking recourse to the provisions of the Rent Control Order over again. Such a view has been taken in Chaturbhui v. Manjibhai : AIR1959Bom292 ; In the said case the landlord obtained permission of the Rent Controller and served notice of ejectment on the tenant calling upon him to vacate the premises. After service of notice the landlord accepted rent for the period subsequent to the notice and then served an other notice asking the tenant to vacate, with out taking fresh permission from the Rent Controller and then he filed a suit, for ejectment. In these circumstances it was held by the Division bench of this Court that the first notice was waived and since no permission was obtained from the Rent controller to serve a fresh notice of ejectment the notice was invalid and the suit was not maintainable. It was further observed that waiver can be inferred from the conduct shown by serving a notice indicating intention to treat the lease subsisting. In the absence of any other circumstances, acceptance of rent which has become due since the expiration of notice amounts to waiver of notice. A similar view was taken by the Supreme Court in Tayabali jaferbhai Tankiwala v. M/s. Ahsan and Co. : 2SCR554 . In that case landlord giving first notice to quit on grounds of arrears of rent, tenant did not vacate. Second notice was given after about a year demanding rent for a period between first and second notice. In the suit for ejectment the landlord claimed damages for use and occupation for a period subsequent to second notice, showing that the landlord was aware of distinction between rent and compensation for use and occupation. In this context it was held by the Supreme Court:
'In the present case there can be no doubt that the serving of the second notice and what was stated there in together with the claim as laid and amplified in the plaint showed that the landlord waived the first notice by showing an intention to treat the tenancy as subsisting and that this was with the express or implied consent of the tenant to whom the first notice had been given because he had even made payment of the rent which had been demanded though it was after the expiration of the period of one month given in the notice'.
In the present case also from the conduct of the parties it is quite clear that it was the intention of the landlord to treat the tenancy as subsisting and this was done with express consent of the parties as incorporated in the compromise application as well as the consent decree. By bilateral contract between the parties the notice of termination was not only waived but it was agreed that the old tenancy will continue on the terms and conditions incorporated in consent decree and a new contract of tenancy was created between the parties. Therefore, it was not open for the landlord to have secured possession of the house without taking recourse to the provisions of the Rent Control Order. However. it was contended by Shri Kherdekar that even if it is assumed that new tenancy was created which could not be terminated without seeking permission of the Rent Controller, it was open for the parties to enter into a contract to waive the said protection and right conferred upon the tenant under the Rent Control Offer. It is not possible for me to accept this contention. In my opinion, new contract of tenancy created between the parties by virtue of the compromise decree was protected by the provisions of Rent Control order and it was not open of the parties to waive the said right conferred upon the tenant by the Rent Control Legislation. Such contracting out, though not specifically prohibited by the Rent Control Order, was prohibited by necessary implication and it was not open for the parties to have given a go-bye to the said provisions of the Rent Control Order . From the provision of clause 13 (3) (i) of the Rent Control Order it is quite clear that one of the grounds on which permission could be granted by the Rent controller to give notice to determine the lease is, that the tenant is in arrears of rent for an aggregate period of three months and the he failed dot deposit with the Controller the amount of arrears ordered to be deposited by the Controller within such time ass may be fixed by him. On this ground it is open for the landlord to approach the Rent Controller to seek permission to give notice to determine the lease of the tenant. Reference can usefully be made in this behalf to the observations of the Supreme Court in Nagindas Ramdas v. Dalpatram Iccharam, : 2SCR544 . After referring to the decision of a Gujarat High Court in Rasiklal Chunilal's case the Supreme Court observed:
'In Rasiklal Chuncilal's case (1971) 12 Guj LR 1012 (supra), a Division Bench of the Gujarat High Court has taken the view 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. If we may say so with respect this is a correct approach to the problem.
Construing the provisions of Section 12, 13 and 28 of the Bombay Rent Act in the light of the public policy which permits the entire scheme and structure of the Act, there is no escape from the conclusion that the Rent Court under this Act is not competent to pass a decree for possession either invitum or with the consent of the parties on a ground which is de hors the Act or ultra vires the Act. The existence of one of the statutory grounds mentioned in Section 12 and 13 is a since qua non to the exercise of jurisdiction by the Rent Court under those provision. Even parties cannot by their consent confer such jurisdiction on the Rent Court to do something which , according to the legislative mandate, it could not do.
In the view we take, we are fortified by the ratio of the decision in Barton v. Fincham, (1921) 2 KB 291. Therein the Court of Appeal was considering the scheme of the Rent Restrictions Act, 1920, the language of Section 5 of which was similar to Section 13 of the Delhi Rent Act. In that context, Atkin, L. J. stated the law on the point thus: 'the section appears tome to limit definitely the jurisdiction of the Courts in making ejectment order in the case of premises to which the Act applies. parties canto by agreement give the Courts jurisdiction which the Legislature has enacted they are not to have. If the parties before the Court admit that one of the events has happened which give the Court jurisdiction, and there is no reason to doubt the bona fides of the admission, the Court is under no obligation to make further inquiry as to the question of fact; but apart from such an admission the Court cannot give effect to an agreement. inconsistent with the provision of the Act'. It is true that in Bartion's case (1921)2 KB 291 at p. 299 just as in Seshadrio's case, : 3SCR691 (supra), the statute under consideration expressly prohibited the Court from passing a decree on a ground which was not covered by the statute but the principle is equally applicable to cases under statutes which place such a fetter on the jurisdiction of the Court, by necessary implication.
5. In the present case, once it is held that the notice of termination given by the plaintiff was waived and, a new contract of tenancy was created between the parties, ten it was not open for the Court to have passed the decree relating to the possession of the suit property unless the plaintiff has followed the procedure as laid down by the Rent Control. Offer. A fresh tenancy was created under the compromise decree. This tenancy was not terminated nor the permission was sought from the Rent Controller by the plaintiff that behalf. Therefore, obviously the decree which was in contravention of the provisions of the Rent Control Order was ultra vires. It was a nullity and couldn't be executed. As observed by the Supreme Court in Kiran Singhv. Chaman Paswan, : 1SCR117 it is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, tricks at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.
6. If this is so, then in my opinion, even by the compromise between the parties such defect couldn't have been cured. It was not disputed by Shri Kherdekar that once it is held that new tenancy was created between the parties then the plaintiff was not entitled to execute the decree. In this view of the matter, in my opinion, the learned Judge of the first appellate Court was right in coming to the conclusion that the present decree cannot be executed. In the result, therefore, the second appeal fails and is dismissed. However in the circumstances of the case, there will be no order as to costs.
7. Appeal dismissed.