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Digambar Narayan Kulkarni Vs. Gajanan Laxman Barve - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 2461 of 1971
Judge
Reported in(1976)78BOMLR252; 1976MhLJ3
AppellantDigambar Narayan Kulkarni
RespondentGajanan Laxman Barve
Excerpt:
.....he could ask for possession-duty of executing curt while dialing with question of validity of compromise decree.;a consent decree in a matter arising under the bombay rents, hotel and lodging house rates control ant, 1947 cannot be set aside merely on the ground that it is a consent decree and the executing court cannot refuse to execute it merely by looking at the form of the decree. if the decree itself did not disclose the existence of a jurisdictional fact (in the present case, one of those facts referred to in section 13), it is the duty of the executing court to scan the material on record to see whether the rent court should have been satisfied as to tile statutory ground for eviction. since the executing court has not approached the matter in this fashion, that by itself was..........further provided that the remaining portion of the premises would be continued to be held by the tenant as tenant of the plaintiff at ks. 12 per month and parties were to bear their own costs. a decree in terms of such compromise was prayed. the learned judge recorded the compromise and directed a decree to be drawn accordingly. a decree accordingly came to be drawn by the additional judge, small cause court, pune. execution proceedings of this decree commenced on june 8, 1970 when a darkhast application was; filed by the decree-holder almost after about two years after the passing of the compromise decree. the tenant raised an objection in the execution proceedings stating that the decree was inexecutable as it was passed on the basis of the compromise in contravention of s, 13(1) of.....
Judgment:

Chandurkar, J.

1. The petitioner had filed a suit against the respondent for possession of block of three rooms of house No. 12 situated in Somwar Peth in Poona inter alia on the ground that the petitioner bow, fide required the premises for personal use and occupation. It appears that the matter was adjourned for evidence after the tenant had filed his written-statement contesting the claim of the plaintiff and on June 18, 1968 when the suit was fixed for evidence, a compromise application came to be filed signed by both the plaintiff and the defendant and the respective counsel. According to the terms of the compromise, the defendant was to vacate one room on the first floor on or before April 30, 1970 and hand over possession of the same to the plaintiff and if the room was not so handed over, the plaintiff was at liberty to execute the compromise decree. The terms of the compromise further provided that the remaining portion of the premises would be continued to be held by the tenant as tenant of the plaintiff at Ks. 12 per month and parties were to bear their own costs. A decree in terms of such compromise was prayed. The learned Judge recorded the compromise and directed a decree to be drawn accordingly. A decree accordingly came to be drawn by the Additional Judge, Small Cause Court, Pune. Execution proceedings of this decree commenced on June 8, 1970 when a Darkhast application was; filed by the decree-holder almost after about two years after the passing of the compromise decree. The tenant raised an objection in the execution proceedings stating that the decree was inexecutable as it was passed on the basis of the compromise in contravention of s, 13(1) of the Bombay Eents, Hotel and Lodging House Bates Control Act, 1947 (hereinafter referred to as the 'Kent Act'). Consequently, the warrant was also alleged to be a nullity. An additional ground on which the warrant issued was challenged was that while the compromise decree was only for one room, the warrant was issued for the entire accommodation in the possession of the tenant. On behalf of the decree-holder, the executing Court was moved for rectification of the error about the extent of the property mentioned in the warrant for possession and he contested the challenge that the decree was null and void. It does not appear from the record that any further enquiry was made in the circumstances in which the compromise decree came to be passed, but the executing Court held that the decree for possession was passed on the basis of the compromise entered into by the parties and it did not indicate that any of the grounds mentioned in Section 13 of the Rent Act existed. The decree was, therefore, held to be a nullity in view of the decision of the Supreme Court in Kaushalya Devi v. K.L. Bansal. : [1969]2SCR1048 . The executing Court, therefore, cancelled the possession for warrant issued in favour of the decree-holder. The decree-holder filed an appeal against this order and the learned District Judge took the view that the trial Court had accepted the compromise and converted it into a decree in a mechanical manner. He also further found that the compromise decree did not indicate that the trial Court had applied his mind to the issue of comparative hardship. The learned District Judge also placed reliance on the decision of the Supreme Court in Kaushalya Devi's case. The petitioner-landlord has now filed this petition challenging the orders of the executing Court and the District Judge, Poona.

2. It is contended by Mr. Ketkar that a compromise decree need not be set aside in every case as a matter of course as has been done by the executing Court in the instant case and it was contended that none of the two Courts has applied its mind to the question as to whether there was any evidence or material to show that there in fact existed any statutory ground for eviction of the tenant. The learned Counsel relies on a later decision of the Supreme Court in Nagindas v. Dalpatram : [1974]2SCR544 , in which the Supreme Court has observed that the consent decree for possession passed by the Court is not necessarily a nullity and if there was an admission in the compromise incorporated in the decree of the fundamental facts that would constitute a ground for eviction under Section 12 or under Section 13, it would be presumed that the Court was satisfied about the existence of such statutory ground and the decree for eviction, though apparently passed on the basis of a compromise, would be valid.

3. It is, however, vehemently contended by Dr. Kulkarni on behalf of the judgment-debtor that the present case is squarely covered by the decision in Kaushalya Devi's case as even the compromise application does not refer to the fact that the tenant had accepted the landlord's case that he needed even a part of the premises for personal occupation.

4. Now, it is apparent on the record that the executing Court has set aside the compromise decree merely on the ground that it is a compromise decree. It has itself not gone into the question as to whether any one of the statutory grounds could be said to have been established even as a result of the compromise.

5. Such a mechanical approach by the executing Court is not permissible. What should be the scope of an enquiry by the executing Court when an objection is raised to the executability of a decree on the ground that the decree is a nullity has been laid down by the Supreme Court in Nagindas v. Dcdpairam. It was observed in para. 29 of the judgment as follows (p. 477) :

Be that as it may, in oases where an objection as to the non-executability of the decree on the ground of its being a nullity, is taken, the Executing Court is not competent to go behind the decree, if the decree on the face of it, discloses some material on the basis of which, the Rent Court could be satisfied with regard to the existence of a statutory ground for eviction. In such a case it must accept and execute the decree as it stands. If, on the face of it, the decree does not show the existence of such material or jurisdictions fast, the Executing Court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial court's jurisdiction to pass the decree it did. The moment it finds that prima facie such material existed, its task is complete. It is not necessary for it to go further and question the presumed or expressed finding of the trial court on the basis of that material. All that it has to see is whether there was some material on the basis of which the Bent Court could have of distinguished from must have-been satisfied as to the statutory ground for eviction. To allow the Executing Court to go beyond that limit, would be to exalt it to the status Of a super Court sitting in appeal over the decision of the Rent Court.

(italics mine.)

It has thus been expressly laid down by the Supreme Court that a consent decree in a matter arising under the Rent Act. cannot be set aside merely on the ground that it is a consent decree and that the executing Court cannot refuse to execute it merely by looking at the form of the decree. If the decree itself did not disclose the existence of a jurisdictional fact--and so far as the present case is concerned, the jurisdictional fact will be one of those facts referred to in Section 13-it is the duty of the executing Court to scan the material on the record to see whether the rent Court could have been satisfied as to the statutory ground for eviction. Since the executing Court has not approached the matter in this fashion, that by itself was sufficient to set aside the order of the executing Court.

6. In Nagindas's case, the Supreme Court has referred to the decision in Kaushalya Devi's case, relied upon on behalf of the respondent, and it was Pointed out that in that case, there was no material extrinsic or intrinsic to the consent decree on the basis of which the Court could be satisfied as to the existence of a statutory ground.

7. Kaushalya Devi's case was earlier referred to by the Supreme Court in K.K. Chari v. R.M. Sheshadri. : [1973]3SCR691 . In K.K. Chari's case, the Supreme Court was dealing with a compromise between the landlord and a tenant where the landlord sought eviction of the tenant on the ground that he had no other house of his own anywhere in the city. The landlord had examined himself but was not cross-examined on behalf of the tenant and a memo of compromise was filed whereby the tenant had withdrawn his defence and submitted to a decree for eviction unconditionally. The compromise terms further recited that the tenant requested for time for vacating up to June 5, 1969 and the landlord had agreed to the same. Thus, according to the compromise, the tenant had agreed to vacate the premises on or before June 5, 1969 and had undertaken not to apply for extension of time. This compromise petition which was signed by both the landlord and the tenant and their respective counsel was perused by the Court which after referring to the fact that the petition of the landlord was under Section 10(3)(a)(i) of the Tamil Nadu Buildings (Lease and Rent Control) Act of 1960 passed the following order:

Compromise memo filed and recorded. By consent eviction is ordered granting time to vacate till 5-6-1989. No cost.

The defences which were given up by the tenant by this compromise were that he was not a tenant of the premises and that the tenant was a partnership firm Messrs. R.M. Sheshadri, that the claim of the landlord that he required the premises for his occupation was not bona fide, that the purchase of the premises by the landlord was not lawful, that the tenant firm had spent enormous amounts by way of repairs and improvements and that the notice determining the tenancy was not in accordance with law. Since the tenant did not vacate these premises, the landlord had filed the execution proceedings and it Was in the execution proceedings that an objection was raised that the decree was a nullity and inexecutable on the ground that the decree sought to be executed was one based on compromise or consent without the Bent Control Court having satisfied itself by an independent consideration regarding the bona fide requirement of the property by the landlord for his own occupation, and as such the decree contravened Section 10 of the Act. These objections were overruled by the executing Court, but in a revision application filed against the order of the executing Court, the Madras High Court held that the decree for eviction was solely based on the basis of the compromise and the Rent Controller had not applied his mind to satisfy himself whether the bona fide requirement of the landlord had been established. The High Court had also taken the view that even if there was enough material before the Bent Control Court when it passed the order of eviction by consent, the decree would nevertheless be void so long as the Rent Controller had not given his decision regarding the requirement of the landlord being 'bona fide. This order of the Madras High Court was challenged by the landlord in appeal before the Supreme Court. Before the Supreme Court it was argued on behalf of the tenant that there was no indication that the Bent Control Court at any stage had applied its mind and satisfied itself regarding the premises being required by the land, lord bona fide for his own occupation and that if the satisfaction of the Court is not expressed in the decree, the executing Court has no option but to hold that the same was void. It was also argued that the executing Court could not itself go into the question whether from the materials on record, the Bent Control Court was satisfied or not, as such an enquiry will amount to asking the executing Court also to go into the question whether the landlord had made out a case for eviction, which question falls within the exclusive jurisdiction of the Rent Control Court. Negativing the contentions of the tenant, the Supreme Court in K.K. Chan's case set out the approach to be adopted in a case where a consent decree under the Rent Act is challenged on the ground that the decree itself does not indicate that a Rent Court was satisfied about the requirements of law having been satisfied by the landlord. It was observed in paras. 26 and 27 as follows (p. 1320) :

The true position appears to be that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact viz. the existence of one or more of the conditions mentioned in Section 10 were shown to have existed when the Court made the order. Satisfaction of the Court, which is no doubt a pre-requisite for the order of eviction, need not be by the manifestation borne out by a judicial finding. If at some stage the Court was called upon to apply its mind to the question and there was sufficient material before it, before the parties invited it to pass an order in terms of their agreement, it is possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based.

It is no doubt true that before making an order for possession the court is under a duty to satisfy itself as to the truth of the landlord's claim if there is a dispute between the landlord and tenant. But if the tenant in fact admits that the landlord is entitled to possession on one or other of the statutory grounds mentioned in the Act, it is open to the court to act on that admission and make an order for possession in favour of the landlord without further enquiry. It is no doubt true that each case will have to be decided on its own facts to find out whether there is any material to justify an inference that an admission, express or implied, has been made by the tenant about the existence of one or the of tin statutory grounds.

(Italics mine.)

After making these observations, the Supreme Court took the view that the withdrawal of the defence by the tenant expressly amounted to the tenant admitting that the landlord had made out his case regarding his requiring the premises for his own occupation being 'bona fide.

8. It is interesting to refer to the separate judgment of Alagiriswami J., who in his judgment has advocated a nw approach to decide upon the validity of a compromise decree. Kaushalya Devi's case was distinguished by the learned Judge by observing that in that case, the manner in which the Court's satisfaction was to be expressed or gathered has not been dealt with and the learned Judge further pointed out that a defendant can appear before a Court and admit the plaintiff's claim and the suit can be decreed on that basis. In para. 35 he has observed (p. 1323) :.I think, therefore, the time has come when a hard look must be taken on this point and it should be held that there is no objection to a compromise consenting to an order of eviction in rent control proceedings.

The learned Judge has quoted with approval the observations of Lord Bucknill in Thone v. Smith [1947] 1 K.B. 307, at p. 314. These observations were as follows (p. 1323) :

But in the present case it is, I think reasonably clear that the tenant, in effect, agreed to the order because at the time when the landlord asked the court to make the order the landlord by his own statements had satisfied the tenant that he intended to occupy the house himself and he, the tenant, could not hops successfully to resist the claim. If the tenant had stated this expressly in the court the judge would surely have had jurisdiction to make the order on that ground. I think in the events which happened here, the tenant being legally represented, the judge was entitled to proceed on the view that this was the true position. Before making an order for possession the judge is under a duty to satisfy himself as to the truth if there be a dispute between landlord and tenant, but if the tenant in effect agrees that the landlord has a good claim to an order under the Acts, I think the judge has jurisdiction to make the order for possession under the Acts, without further inquiry.

In conclusion, Alagiriswami J. has observed after referring to the several decisions (p. 1325):

All these decisions amply support the proposition that I have put forward that an eviction order based on a compromise where the landlord has asked for possession on any one of the grounds on the basis of which he could ask for possession would be valid.

9. The decision in K.K. Chari's case was quoted with approval in Nagmdas's case and the proposition was put by the Supreme Court as follows (p. 476):

From a conspectus of the oases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there Was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction 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 empress or implied admission made in the compromise agreement, itself. Admissions, if true and dear, are by far the best proof of the facts admitted.

(Italics supplied).

10. It is, therefore, clear from the decisions in the two cases referred to above that the rigour of the principle laid down in Kaushalya Devi's case has been considerably cut down by the later two decisions of the Supreme Court and it is open to an executing Court to look into the records and find out not whether the rent Court must have been satisfied about the existence of the grounds on which a decree for eviction could validly have been passed, but whether on the material before the rent Court it could have been satisfied that a ground for eviction exists. If there was such material on the record then it is not open to the executing Court to declare the compromise decree as a nullity. As pointed out by the Supreme Court in Nagindas's case, even if there is an implied admission by the tenant about the existence of a jurisdictional fact, a compromise decree must be held to be good.

11. If the tests laid down in the two cases are now applied to the instant case, it is obvious that the compromise application, which has been signed not only by the landlord and the tenant but also by the respective counsel, clearly implied that while the landlord had made an application for four rooms, the tenant was satisfied that the landlord's claim to the extent of one room was a genuine one and that was why he agreed by the compromise decree to hand over possession of one room of which the description is given in the compromise application. The instant case clearly falls within the ratio of the two Supreme Court cases referred to earlier. The tenant did not want to contest the limited claim of the plaintiff-landlord so far as one room was concerned. The landlord on his part had given up his claim for the other three rooms. It is dim-cult to see in what other manner such a compromise can be read. Thus though it is: true that the decree does not itself on the face of it show that the rent Court was satisfied about the bona fide requirement of the landlord, there is enough material in the form of the recitals of the compromise application which show that the rent Court could have been satisfied about the genuineness and the bona fide nature of the need and requirement of the landlord. In this view of the matter, it is obvious that the executing Court had exceeded its jurisdiction in treating this compromise decree as a nullity.

12. The orders of the executing Court and the District Judge, Poona, were, therefore, liable to be quashed. The matter is bow remanded back to the executing 'Court for disposal according to law. The respondents shall pay the costs of the petitioner of this petition. Rule absolute.


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