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Azra Abdulla Vs. Silton Hotel, Bangalore - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKarnataka High Court
Decided On
Case NumberEx. Second Appeal No. 32 of 1974
Judge
Reported inAIR1975Kant225; 1975(2)KarLJ316
ActsBombay Rent Act - Sections 12(3); Mysore Rent Control Act, 1961 - Sections 18 and 21(1); Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Sections 12 and 13; Code of Civil Procedure (CPC), 1908 - Sections 151 - Order 23, Rule 3; Evidence Act, 1872 - Sections 58 and 115; Transfer of Property Act, 1882 - Sections 113; Delhi and Ajmer Rent Control Act, 1952 - Sections 10 and 13(1); Representation of the People Act, 1951
AppellantAzra Abdulla
RespondentSilton Hotel, Bangalore
Appellant AdvocateS.N. Sait, Adv.
Respondent AdvocateJ.A. Sequira, Adv.
Excerpt:
- designs act, 2000 -- section 22(4): [n.kumar, j] transfer of suit - suit for declaration that defendants are not entitled to manufacture, sell pvc pipes which infringes rights - defendant contending that under section 19 that design registered in favour of plaintiff was not registrable -held, civil court has not been vested with jurisdiction to cancel registration of a design made under act. said power vests only with controller and high court . refusal to transfer suit to high court is therefore improper. indian designs act,2000 -- section 19 & 22: [n. kumar,j] remedies under sub-section (4) of section 22 defence set out by the defendant under section 19 trial court refusing to transfer the suit to the high court finding of the trial court, provisions of section 22(4) is not.....1. the appellant is the decree-holder and the respondent is the judgment-debtor. the decree-holder obtained an order in h. r. c. 30/68 for possession of the premises in the occupation of the judgment-debtor and filed execution 448/73 in the court of the principal munsiff, civil station, bangalore, for delivery of possession. the judgment-debtor contended that the order is inexecutable. the execution court over-ruled the objections of the judgment-debtor and allowed the application of the decree-holder praying for permission to break open the lock with police help. thereupon, the judgment-debtor filed execution appeal no. 11/73 in the court of the civil judge, civil station, bangalore. the lower appellate court upheld the objections of the judgment-debtor and held that the order of.....
Judgment:

1. The appellant is the decree-holder and the respondent is the judgment-debtor. The decree-holder obtained an order in H. R. C. 30/68 for possession of the premises in the occupation of the judgment-debtor and filed execution 448/73 in the Court of the Principal Munsiff, Civil Station, Bangalore, for delivery of possession. The judgment-debtor contended that the order is inexecutable. The Execution Court Over-ruled the objections of the judgment-debtor and allowed the application of the decree-holder praying for permission to break open the lock with police help. Thereupon, the judgment-debtor filed Execution Appeal No. 11/73 in the Court of the Civil Judge, Civil Station, Bangalore. The lower appellate court upheld the objections of the judgment-debtor and held that the order of eviction is inexecutable. It also held that there is a waiver on the part of the decree-holder and that therefore she could not execute the order of eviction. It accordingly allowed the appeal and dismissed the execution application. This second appeal is filed by the decree-holder.

2. The decree-holder is the owner of the premises in St. Marks Road, Civil Station, Bangalore and the judgment-debtor is carrying on the business under the name 'Shilton Hotel'' as the tenant in occupation of the same. The decree-holder was the petitioner in H. R. C. 30/68 and her application was under Section 21 (1) (h) of the Mysore Rent Control Act. She alleged that she requires the premises bona fide and reasonably for her own use and occupation. She also alleged that no hardship would be caused to the judgment-debtor by an order of eviction and that the decree-holder would be put to greater hardship if an order of eviction is refused. The judgment-debtor resisted the said application contending that the premises were not required reasonably and bona fide for the use of the decree-holder. The judgment-debtor also contended that greater hardship would be caused to him in case an order of eviction is passed. The case reached the stage of evidence and the decree-holder had to be examined on commission, but no evidence had been recorded. At that stage on 14-10-1968, the parties filed a compromise petition under Order 23, Rule 3, Civil P. C. and they prayed that the application filed bythe decree-holder may be allowed in terms of the compromise. Under the terms of the compromise, the judgment-debtor had to deliver possession of the premises by 30-6-1973. Sometime later, the decree-holder filed Mis. 41/71 for review of the order passed on 14-10-1968 for suitable modification or alteration of the order dated 14-10-1968 in view of the decision in : AIR1970SC794 . The judgment-debtor contested the same. Subsequently, the review petition was withdrawn. The decree-holder again filed another eviction petition H. R. C. 60/72 under Section 21 (1) (h) of the Mysore Rent Control Act. The judgment-debtor is contesting the same and the said proceeding is still pending in the lower Court. In the meanwhile, the period agreed to between the parties for the judgment-debtor giving vacant possession, according to the compromise entered into in H. R. C. 30/68, expired. Since the judgment-debtor failed to vacate by 30-6-73 according to his undertaking the Decree-holder filed Execution 448/73.

3. The two questions to be decided in this appeal are : firstly, whether the order dated 14-10-1968 is a nullity and inexecutable; and secondly, whether there is waiver on the part of the decree-holder by her conduct of her right to ask for vacant possession of the premises.

4. The earlier decisions of the Supreme Court relating to the validity of an order passed on a compromise petition in Rent Control Proceedings have been considered in : [1973]3SCR691 , (K. K. Chari v. R. M. Scshadri). In that case, the petition was filed under Section 10 (3) (a) (i) of the Madras Buildings (Lease and Rent Control) Act (18 of 1960) alleging that the landlord required the house for his bona fide use and occupation. The respondent-tenant denied that he was a tenant of the suit premises and also alleged that the petitioner did not require the house for his occupation and his claim is not bona fide. The petitioner was examined as witness on his own behalf. He also filed a large volume of Exhibits in support of his case, that he required the suit premises for his own occupation. The tenant did not choose to cross-examine the petitioner. Subsequently, both parties entered into a compromise. Under the terms of the compromise, the tenant stated that he withdraws his defence and agrees to vacate the premises by the date mentioned therein. The court after referring to the petition of the landlord being under Section 10 (3) (a) (i) of the Act, on the ground of his own occupation passed the following order :

'The compromise memo filed and recorded. By consent eviction is ordered granting time to vacate till 5-6-3969. No costs.' Under Section 10 of the Madras Act, the Controller can pass an order of eviction in favour of the landlord when he has asked for an order on the ground that he requires the premises for his own occupation only ifhe is satisfied that the landlord's claim is bona fide.

5. The decision in : [1969]2SCR432 , (Bahadur Singh v. Muni Subrat Das) was considered. In that case, a decree for eviction passed on the basis of a compromise between the parties was held to be a nullity as contravening Section 13(1) of the Delhi and Ajmer Rent Control Act, 1952. It was observed that the decree in that case was held to be a nullity because the landlord was not a party thereto and also because the court had not satisfied itself that a ground for eviction as required by the statute existed, but that it had not been laid down in that decision as to how exactly that satisfaction is to be expressed by the Court or gathered from the materials. The decision in : [1969]2SCR1048 . (Kaushalya Devi v. K. L. Bansal) was also considered and it was observed that in this decision also, the manner in which the court's satisfaction is to be expressed or gathered has not been dealt with. In that case it was held that the compromise decree is void as there could have been no satisfaction of the Court regarding the statutory requirements and that the decree for eviction had been passed solely on the basis of the compromise arrived at between the parties. With regard to the said decision, it was ob-served as follows :--

'In the last decision, in our opinion, there is an indication as to how the satisfaction of a court can be expressed or gathered in a particular case. If a stage had been reached in a particular proceeding for a court to apply its mind regarding the existence of a statutory condition, it may be held that it was so satisfied about the plea of the landlord. Again from other material on record, it can be inferred that the court was so satisfied.'

6. With regard to the case before them, their Lordships observed a.s follows:

'We are not inclined to accept the contention of Mr. Tarkunde that the decree for eviction in the case before us has been passed solely on the basis of the compromise arrived at between the parties. No doubt reading of the order of the court dated March 31, 1969, isolated from all other circumstances, may give the impression that the decree for eviction is passed because of the compromise between the parties. It is no doubt true that the order on the face of it does not show that the court has expressed its satisfaction that the requirement of the landlord is bona fide. If the court had expressed its satisfaction in the order itself, that will conclude the matter. That the court was so satisfied can also be considered from the point of view whether a stage had been reached in the proceedings for the court to apply its mind to the relevant question. Other materials on record can also be taken into account to find out if the court was so satisfied. The High Court has proceeded on the basis that even if there wasmaterial before the Court, when it passed the order of eviction by consent, from which it can be shown that the court was satisfied about the requirement of the landlord being bona fide, nevertheless such an order will be a nullity unless the Rent Controller has given his decision in favour of the landlord. In our opinion, this view is erroneous.''

and further :

'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 the 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 other of the statutory grounds.'

Then their Lordships referred to the specific claim of the landlord as well as the fact of the tenant withdrawing his defence and held that such a withdrawal of the defence expressly amounts to the tenant admitting that the landlord has made out his case regarding his requiring the premises for his own occupation being bona fide. With regard to the three earlier decisions considered by them, their Lordships observed :--

'In the three decisions of this Court, to which we have already referred, the position was entirely different. In none of these cases was there any material to show that the tenant had expressly or impliedly accepted the plea of the landlord as true. Therefore, those decisions do not assist the respondent-tenant'

It was accordingly held by the majority of the Bench that the decree for eviction had not been passed solely on the basis of the compromise and that the Court was satisfied about the bona fide requirement of the landlord at the time the order of eviction was passed and that the decree for eviction is neither void nor inexecutable.

7.Alagiriswamy, J. concurring with the majority view expressed by Vaidialingam, J., observed as follows : --

'.....The true approach has beenpointed out by our learned brother, Vaidialingam, J. He has pointed out that while the decision in Bahadur Singh's case : [1969]2SCR432 was an authority for the proposition that a court ordering eviction has to satisfy itself that a statutory ground of eviction has been made out by a landlord; how exactly that satisfaction was to be expressed by the court or gathered from the materials, has not been laid down in that decision; that in Kaushalya Devi's case : [1969]2SCR1048 also the manner in which the Court's satisfaction was to be expressed or gathered has not been dealt with, nor has the decision in Perozi Lal's case : AIR1970SC794 given an indication as to how the satisfaction of a court could be expressed or gathered in a particular case. He has pointed out that 'if a stage had been reached in a particular proceeding for a court to apply its mind regarding the existence of a statutory condition, it may be held that it was so satisfied about the plea of the landlord. Again, from other material on record it can be inferred that the court was so satisfied.' He has also pointed out how in the particular circumstances of the present case as the tenant had withdrawn his defence and submitted to a decree for eviction unconditionally, he had accepted the claim of the landlord that he required the premises bona fide for his own occupation; that he has accepted the position that the landlord has made out the statutory requirement entitling him to ask for possession of the premises; that by this unconditional withdrawal of the defence regarding the statutory condition pleaded by the landlord, and the compromise following it that was accepted by the court, the tenant has accepted the plea of the landlord, and it is futile to hold that the Rent Controller must again embark upon an enquiry regarding the requirement of the landlord being bona fide and adjudicate upon the same. He has also pointed out that 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; that the satisfaction of the court, which is no doubt a prerequisite for the order of eviction, need not be by the manifestation borne out by a judicial finding; and that 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, itis possible to postulate that the court was satisfied about the grounds on which the order of eviction was based. He has further pointed out that 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 on these grounds that he has come to the conclusion that the fact in this case satisfied these tests and, therefore, the order of the Madras High Court should be set aside. In so far as it is necessary for the purpose of this case this is a satisfactory conclusion.'

8. The following observations in , (Vasdev v. Milkhi Ram) of Grover, J. of the Punjab High Court (as he then was) were referred to with approval:

'From the above discussion of the English Cases, the principle which has also been accepted by the Bench of this Court is quite clear that if the tenant admits after a suit for ejectment has been filed that the landlord is entitled to possession on one of the statutory grounds the Court can make an appropriate order or if the landlord has made some representation within the terms of the statute to the tenant and which is one of the ingredients of a ground on which possession can be ordered and the tenant accepts that representation and submits to an order, then also the court will be fully justified in making a valid order of eviction. Each case, therefore, will have to be decided on its own facts and it will have to be seen whether there is any material to justify an inference that an admission, be it express or implied, has been made by the tenant on the existence of one of the statutory grounds.'

9. The point arose again for decision in MR 1974 SC 471, (Nagindas v. Dalpatram). In that case, the suit was filed under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 by the landlord against the tenant for possession on two grounds, namely, non-payment of arrears of rent and bona fide requirement of the premises by the landlords for their own use and occupation. The rate of contractual rent was Rs. 15/- per month. The parties entered into a compromise the terms of which were as follows :--

'(i) The defendant do hand over possession of the suit premises by 30-9-1968 without any objection. The tenant to pay Rs. 532-50 P. as arrears of rent and mesne profits upto 30-9-1964. The plaintiff is to receive rupees 380/- deposited by the defendant in court and the remaining amount is to be paid by the defendant to the plaintiffs on or about 31-12-1964. The defendant is to pay Rs. 15/- p.m. as mesne profits from 1-10-1964.

(ii) The relationship of the landlord and tenant between the parties has come to an end and no such relationship is to be created by the compromise. The defendant has beengiven time 10 vacate the suit premises by way of grace. If the defendant fails to comply with the aforesaid terms of the decree, the plaintiffs would be entitled to execute the decree both for the decretal amount as well as for possession of the suit premises.

(iii) If the plaintiffs get for the defendant the lease of the premises bearing Nondh No. 1602 of Ward No. 3 on a monthly rent of Rs. 50/- the defendant is to hand over the possession of the suit premises immediately,

(iv) The parties are to bear their own costs.'

The historical background of the Rent Control Acts in general and the scheme and language of the Delhi, Madras and Bombay Rent Acts were considered. It was held that the policy and purpose as indicated in the preamble was to protect the tenants against the landlords in respect of rents, eviction and repairs. It was also observed that all the three Acts created courts or tribunals with special and exclusive jurisdiction for the enforcement of their provisions, that the Delhi Rent Act and the Madras Act expressly forbid a court or tribunal from passing an order of eviction on a ground which is not one of the grounds mentioned in any of the relative sections of the statute. It was also held that in spite of the fact that there is no express provision under the Bombay Rent Act prohibiting parties from contacting out of those statutory rights, such a prohibitory mandate is inherent in the public policy built into the statute (Bombay Rent Act) and that such a prohibition will have to be read by implication consistently with the public policy underlying this welfare measure. It was therefore held that under the Bombay Rent Act, the Rent Court is not competent to pass a decree for possession either in invitum or with the consent of parties on a ground which is de hors the Act or ultra vires the Act, and that the existence of one of the statutory grounds mentioned in Sections 12 and 13 of that Act is sine qua non to the exercise of jurisdiction by the Rent Control Court under those provisions. II was further observed that the 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.

10. The following observations of Atkin, L. I. in (1921) 2 KB 291, (Barton v. Fincham) were referred to with approval :--'The section appears to me to limit definitely the jurisdiction of the Courts in making ejectment orders in the case of premises to which the Act applies. Parties cannot 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,whether by way of compromise or otherwise, inconsistent with the provisions of the Act.' It was observed that the mere fact that Order 23, Rule 3 of the Code of Civil Procedure is applicable to the proceedings in a suit under the Bombay Rent Act, does not remove the fetter on the Rent Court or empower it to make a decree for eviction de hors the statute, and that even under that provision of the Code, the Court before ordering that the compromise be recorded, is required to satisfy itself about the lawfulness of the agreement and that such lawfulness or otherwise is to be judged also on the ground whether the terms of the compromise are consistent with the provisions of the Rent Act. The decisions in : [1969]2SCR432 , (Bahadur Singh's case) : [1969]2SCR1048 , (Kaushalya Devi's case) and : AIR1970SC794 , (Ferozi Lal Jain's case) were considered and it was observed that in those cases there was absolutely 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 for eviction. The majority view in : [1973]3SCR691 , (Seshadri's case) was also referred to. The principle applicable to such cases was stated as follows:--

'From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such materials 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. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Sec. 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundations of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.'

It was contended on behalf of the tenant in that case that the facts admitted in the compromise petition are themselves insufficient to make out even a prima facie ground for eviction under Section 12(3)(a) of the Bombay Rent Act since the tenant had made an application for fixation of standard rent which was still pending at the time of passing of the decree. Rejecting the contention, it was observed that the tenant by admitting to pay arrears of rent and mesne pro-fits at the rate of Rs. 15/- per month, had clearly withdrawn or abandoned his application for fixation of standard rent and that the admission in the compromise was thus an admission of the material fact which constituted the ground for eviction under Section 12(3)(a). The rent was admittedly in arrears for a period of more than six months.

The observations with regard to the requirements of a valid order of eviction on the basis of a compromise apply equally to the present case. Under Section 21 (1) (h) of the Mysore Rent Control Act though the satisfaction of the court as to the statutory requirements is not so stated expressly it is implied in the terms of the first part of Section 21 (1) which states that no order of eviction shall be made by any Court except on any of the grounds specified thereunder, notwithstanding any law or contract. Section 21 (4) provides that no order for eviction shall be passed under Section 21 (1) (h) if the court is satisfied that greater hardship would be caused to the tenant by passing the decree than that caused to the landlord by refusing to pass it.

11. With regard to the scope of an enquiry to be made by the executing court where an objection as to the non-excitability of the decree on the ground of its being a nullity is taken, it was observed in the same case as follows :--

'Be that as it may, in cases where an objection as to the non-excitability 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 jurisdictional fact, 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 Rent Court could have -- as 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. Since in the instant case, there was a clear admission in the compromise, incorporated in the decree, of the fundamental facts that could constitute a ground for eviction under Section 12(3)(a), the ExecutingCourt was not competent to go behind the decree and question its validity.'

12. Thus, the Executing Court has only to see whether there was some material on the basis of which (he Rent Court could have been satisfied as to the statutory groundfor eviction. It is not required to examine whether there was material on the basis of which the Rent Court must have been satisfied as to the statutory ground for eviction. If the decree on the face of it discloses some material on the basis of which the Rent Court could satisfy itself with regard to the statutory ground for eviction, the decree must be executed as it states. If on the face of it the decree does not show the existence of the material or jurisdictional fact the Executing Court may look into the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial court to pass a decree. If the Executing Court finds prima facie that such material existed, it cannot question the presumed or expressed finding of the trial court on the basis of that material. The observations of Vaidialingam, J. in : [1973]3SCR691 , (Seshadri's case), approved in : [1974]2SCR544 , (Naginda's case), show that the satisfaction of the court as to the existence of the jurisdictional fact, namely, the existence of one or more of the conditions required for an eviction under the statute is a prerequisite for the order of eviction. Such satisfaction need not be 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 the court to pass an order in terms of the agreement, it is possible to postulate that the court was satisfied about the ground on which the order of eviction was passed. If, at the time of the passing of the decree there was some material before the court on the basis of which the court would be prima facie satisfied about the existence of the statutory ground for eviction, it would 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 consist of either an express or implied admission made in the compromise agreement itself. Though the parties cannot by agreement give jurisdiction to the court which the Legislature has enacted it should not have, yet, if the parties before the court admit that one of the events has happened which gives the court jurisdiction and there is no reason to doubt the bona fides of the admission, the court is under no obligation to make a further enquiry as to the question of fact. But the question whether the court was so satisfied can also be considered from the point of view whether such a stage was reached for the court to apply its mind. The other materials on record could also be taken into accountto find out whether the court has satisfied itself. 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 other of the statutory grounds.

13. In the present case, the order of 14-10-1968 does not expressly state that the court was satisfied as to the bona fide and reasonable requirement of the decree-holder. Hence, it has to be decided whether there was any material to justify an inference that an admission express or implied has been made out by the tenant about the existence of the bona fide and reasonable requirement of the decree-holder. According to the appellant-decree-holder the materials which were on record show that there was an implied admission on the part of the judgment-debtor-tenant that (he requirement of the decree-holder-landlord was bona fide and reasonable as well as of the fact that greater hardship would be caused to the decree-holder if an order of eviction is refused than that which would be caused to the judgment-debt or if an order of eviction was passed in terms of the compromise. Reliance is placed on the circumstance that the decree-holder filed I. A. IV for rectification of the order of eviction on 27-11-1968 and that it was allowed after notice to the judgment-debtor who did not oppose the same. I. A. IV is an application filed on 27-11-68 for the correction of some typographical errors in the decretal order dated 14-10-1968 drawn up by the court. In that application it is stated that when the decree-holder obtained a certified copy of the order it was discovered that though the petition is styled as one under Section 21 (1) (h) of the Mysore Rent Control Act 1961, one of the grounds for eviction was mentioned as arrears of rent instead of the requirement of the premises for petitioner's own use and occupation. This application was allowed and the necessary correction was made in the preamble portion of the order. It is urged by Mr. S. M. Sait for the decree-holder that the fact that the judgment-debtor did not object to this amendment shows that he impliedly admitted, at the time the order was passed by the court accepting the terms of the compromise petition, the allegation of the decree-holder in the eviction petition that the premises were required for her bona fide use and occupation to be true. It is true that this circumstance shows that the judgment-debtor impliedly admitted, when notice of I. A. IV was served on him by his conduct in not objecting to the same, that the decree-holder's eviction petition in H. R. C. 38/40 was for the purpose of her own bona fide use and occupation and that he had agreed to the terms of the compromise. But this conduct on the part of the judgment-debtor was on a date subsequent to the date of the order passed by the court on the basis of the compromise i.e., 14-10-1968. Hence, this circumstance cannot be considered to be material whichwas available to the court when it passed the order of eviction on the basis of the compromise petition and therefore could not form part of the material on which the court could come to the conclusion that the judgment-debtor had admitted, the existence of the bona-fide requirement of the decree-holder as required under Section 21 (1) (h).

14. It is now to be considered whether there is other material which would have enabled the court to infer an implied admission on the part of the judgment-debtor and the existence of the jurisdictional fact under Section 21 (1) (h). The case had been fixed for hearing on 29-10-1968, but the parties arrived at a compromise and desired that the court should pass an order in terms of the compromise by advancing the case to 14-10-1968. Hence, the decree-holder filed an application, I. A. II, in M. R. C. 30/68. The husband of the decree-holder filed an affidavit in support of that application, in which he has stated as follows:--

'Pursuant to the filing of the above H. R. C. petition seeking eviction of the respondent on the ground of bona fide use and occupation the respondent has requested my wife to grant time to vacate the premises till 30th June, 1973. In view of the cordial relationship which has always been cordial feature of the respondent's tenancy in the premises for over a number of years my wife has agreed to the respondent vacating on or before the 30th June, 1973. A compromise petition has also been entered into between my wife and the respondent.' The compromise petition under Order 23, Rule 3, Civil P. C. filed by the parties is in the following terms:--

'1. That they have compromised the above House Rent Control petition with the following terms:

That the Respondent will quit and deliver vacant possession of the petition schedule premises to the petitioner on or before 30th June, 1973 (Thirtieth June, one thousand nine hundred and seventy-three). Each party wilt bear their own cost.

2. Wherefore the petitioner and the respondent respectfully pray that this Hon'ble Court may be pleased to allow the above H. R. C. petition in terms of the compromise herein above stated.'

The extract from the Order sheet dated 14-10-1968 reads as follows: 'I. A. II.

Sri S. M. Sail Advocate for the petitioner files an application under Section 151. Civil P. C. prays to advance the case from 29-10-1968 to this day.

Compromise petition I. A. II filed by parties is read and recorded. Petition is allowed in terms of the compromise, granting respondents time till 30-6-1973 to vacate and deliver possession and directing parties to bear their own costs.'

The operative portion of the order dated 14-10-1968 does not by itself indicate any admission on the part of the judgment-debtor as to the bona fide requirement of the decree-holder, or that the court expressly recorded a finding as to the existence of such jurisdictional fact. In the affidavit accompanying I. A. II it has been stated that the eviction petition has been filed by the decree-holder on the ground of bona fide use and occupation and in pursuance to the same the judgment-debtor requested the decree-holder to grant time to vacate the premises till 30-6-1973. It further states that the decree-holder agreed to the request made by the judgment-debtor. This application was filed on 14-10-1968. The compromise petition I. A. III was also filed on the same day. The judgment-debtor did not raise any objection to I. A. II. On the other hand, the judgment-debtor appears to have consented to the case being advanced from 29-10-1968 to 14-10-1968 as is clear from the fact that both parties and their counsel have signed the compromise petition on 14-10-1968. The case was, in fact, advanced to 14-10-1968 and the order in terms of I. A. III was passed by the Court on the same day. In I. A. III, the compromise petition, both the parties prayed that the Court may be pleased 'to allow the above H. R. C. petition in terms of the compromise.' The circumstance that in the affidavit accompanying I. A. II it was stated that the judgment-debtor had agreed to vacate the premises pursuant to the decree-holder filing the eviction petition on the ground of bona fide use and occupation was not objected to by the judgment-debtor could lead to the inference that the judgment-debtor impliedly admitted the need of the decree-holder of the premises for her own bona fide use and occupation. In I. A. III the Judgment-debtor agreed to the eviction petition being allowed. The eviction petition stated the grounds on which possession was sought by the decree-holder, namely, that the premises were required for her own bona fide use and occupation. Hence, these two circumstances namely, that the allegations in the affidavit accompanying I. A. II was not denied by the judgment-debtor and the circumstance that the judgment-debtor agreed to the eviction petition being allowed, can both be considered, as material which could lead the court to come to the conclusion that the judgment-debtor impliedly conceded the requirement of the decree-holder of the premises for her own bona fide use and occupation. The fact that the judgment-debtor as alleged in the said affidavit, requested the decree-holder to grant time to vacate the premises till 30-6-1973 i.e., about 4 years and 8 months later, and the fact that the decree holder agreed to the same could constitute material for the court to come to the conclusion that the judgment-debtor conceded that the hardship that would be caused to the decree-holder if the order of eviction is refused, would be greater. Whatever hardship might be caused to the judgment-debtor could be considered to have been mitigated by the long period of time allowed to the judgment-debtor to vacate the premises. Hence, the court could come to the conclusion on the basis of these materials, when it passed the order of eviction on 14-10-1968, that there was an implied admission on the part of the judgment-debtor as to the existence of the jurisdictional fact, namely, the bona fide and reasonable requirement of the premises by the decree-holder as well as of the fact that greater hardship would be caused to the decree-holder by the refusal to pass an order of eviction. Since there was thus material on which the H. R. C. Court could come to the conclusion that the requirements of the statutory provision under Section 21 (1) (h) were satisfied, while the order of eviction was passed, the Executing Court was hound to execute the decree.

15. Mr. Sequira relied on the decision in MR 1974 SC 994, (State of Punjab v. Amar Singh). That is a case under the Punjab Security of Land Tenures Act, 1953. It was held by the majority that where a compromise contravenes a public policy, prescription of a statute or a mandatory direction to the Court to decide on its own certain foundational facts, a compromise cannot operate-to defeat the requirement so specified or absolve the court from the duty. The resultant order will be ineffective since the parties cannot empower themselves to do that which they could not have done by private agreement alone, the parties cannot achieve what is contrary to law by consent or agreement by converting it into a decree. The Collector enjoined to apply Section 10-A (b) and (c) may decline to act on a compromise which has ripened into an order if the agreement between the parties disposes of property in violation of a statutory mandate. The State which has the right to utilise the surplus lands for resettling the tenants cannot be affected by consent orders calculated to defeat the provision of the public policy behind Section 10-A when the statutory authority charged with the enquiry being satisfied about the bona fides of and the eligibility for the purchase. The appellant in that case was the State which was not a party to the compromise, and it was held that the order impugned binds the parties only though it seriously prejudiced the interests of the State. It was held that the State had succeeded in showing the incompetence of the respondents to purchase the lands under Section 18 and also that the order offended the provisions of Section 10-A (b) and (c). The decisions in : [1969]2SCR1048 , (Kaushalya Devi v. K. L. Bansal) : AIR1970SC794 , (Ferozilal Jain v. Man Mal) and : [1973]3SCR691 , (Chari v. Seshadri) were followed while coming to the conclusion that the order of the Assistant Collector on the basis of the compromise does not indicate the application of the court's mind with regard to the requirements of Section 18 of the Act and also that no material existed on record to warrant a finding regarding the tenancy, the continuous occupation for over six years and the surplus area being un-affected. Since the State was held to be not a party to the compromise on the basis of which the order was passed, it was held that the State was not bound by the terms of the order. The decision in Nagindas' case : [1974]2SCR544 was not considered. Moreover, neither the State nor the tenants who claimed the rights conferred on them under the Act were parties to the compromise. Hence, that decision has no application to the facts of the present case.

16. Mr. Sequira relied on the decisions in : [1956]1SCR451 . In : [1956]1SCR451 , (Nagubai v. B. Shama Rao) it has been held that what a party himself admits to be true may reasonably be presumed to be so. But before the admission can be acted upon, it must be shown that there is a clear and unambiguous statement by the opponent, such as will be conclusive unless explained. In : [1966]1SCR606 , (Bharat Singh v. Bhagirathi) it was held that admissions must be clear if they are to be used against the person making them and that what weight is to be attached to an admission made by a party was a matter different from ifs use as admissible evidence. In : AIR1961Bom169 , (Ramuji v. Manohar) it has been held that an admission must be clear, precise and unambiguous.

17. The question in this case is whether the Court at the time the order of eviction was passed could have come to the conclusion that there was an admission implied or express on the part of the judgment-debtor as to the existence of the bona fide and reasonable requirement of the decree-holder of| the premises for her own use and occupation. The circumstances already referred to show that there was sufficient material for the court to infer that the judgment-debtor had impliedly admitted the truth of the decree-holder's contention that the premises were required for her own bona fide use and occupation; in other words, the admission of the existence of a jurisdictional fact.

18. The decision in : [1973]3SCR691 , (Chari v. Seshadri) has laid down that one of the considerations for determining whether the court at the time of passing the order of eviction can be said to have been satisfied as to the existence of the jurisdictional fact is the stage at which the case was at the time the order was passed; in other words, whether a stage had been reached when the court was expected to apply its mind to the existence of the jurisdictional fact. In the present case, the H. R. C. proceeding had reached the stage of evidence though no evidence had been recorded and the decree-holder had to be examined on commission. Hence, it may be said that a stage had been reached in the case where the court was expected to apply its mind to the existence of a jurisdictional fact. So, this test also has been satisfied in the present case. It has therefore to be held that the order of eviction is valid and executable.

19. The next question to be consider, ed is whether there was waiver on the part of the decree-holder of the right to execute the decree in H. R. C. 30/68. The waiver, according to Mr, Sequeira appearing for the respondent, consists in the Decree-Holder filing the second H. R. C. petition for eviction, in which it is alleged by the Decree-Holder that the order in H. R. C. 30/68 is inexecutable, and also in the Decree-holder's attempt to obtain a review of the order in H. R. C 30/68 on the allegation that the eviction order passed therein is ineffective. The Review petition Mis. No. 41/71 was filed on 15-4-1971. It was stated therein that in : AIR1970SC794 it has been held that an eviction order could not be passed on a compromise petition without the court being satisfied about the genuineness of the claim. The decision of this Court in 1970 (2) Mys LJ 560 to the same effect was also referred to. It was further staled that the abovesaid new development in the law came into existence long after the order of eviction by consent of parties was passed and that the said important matter could not be available to the Decree-holder despite due diligence at the time the order was passed. Hence, it was prayed that suitable order in accordance with law may be passed after reviewing the order dated 14-10-1968. It was also stated that the Decree-holder had no objection to the grant of time upto 30-6-1973 as agreed to between the parties earlier. The application was opposed on behalf of the judgment-debtor. Thereafter, the decree-holder withdrew the review petition.

20. In February 1972 after withdrawal of the review petition, the Decree-holder filed the second eviction petition in H. R. C. 60/72 under Section 21 (1) (h). The circumstances under which the consent order dated 14-10-1968 was passed were set out. The circumstances under which the review petition was filed and withdrawn were also staled. In this second petition some new grounds which were not stated in H. R. C. 30/68 were also mentioned in support of the Decree-holder's case. The petition of the Decree-holder in H. R. C. 60/72 was later amended by including the statement that the said petition is filed without prejudice to the rights of the Decree-holder under the consent order dated 14-10-1968 passed in H. R. C. 30/68.

21. The contention of Mr. Sequeira is that the decree-holder abandoned her rights under the earlier order of eviction in her favour and that there is a waiver of her rights thereunder by her own subsequent conduct. He relied on the decision in : [1965]1SCR393 , (Amin Lal v. Hunna Mal). That was a case under the Representation of the People Act, 1951. The petitioner in that case was given the option by the Tribunal alternatively, either to amend the petition or to supply the particulars or to strike off a particular para in the petition as being vague.

He chose to amend the petition. It was held that he lost the right to adopt the other alternatives. The petitioner in that case was given the option to adopt either of the two courses and since he adopted one it was held that he lost the right to adopt the other. He next relied on the decision in : AIR1956Bom721 , (Haridas v. Vijayalakshmi). In that case, the plaintiff was entitled to a sum of money under a compromise entered into by his mother on his behalf during his minority. He withdrew that money with the knowledge of the compromise under an order of the Court at a time when the suit on his behalf challenging the very compromise was pending and with the knowledge of the contentions in the suit. It was held that the plaintiff clearly elected to abide by the compromise and accept it and thereby precluded himself, on the broad principles of estoppel, from challenging the compromise subsequently on the ground that it was brought about wrongly and against his interest. The following observations of Mitter, J. in : AIR1933Cal39 , (Asiya Khatun v. Nurjahan Khatun) were referred to with approval:

'Where a man has an election between several inconsistent courses of action he will be confined to that which he first adopts; the election, if made with the knowledge of facts, is in itself binding. The election must be, however, a voluntary act not forced upon him by circumstances over which he had no control and notwithstanding his protest.' It was held that since the plaintiff knew that he had two rights inconsistent with each other but chose to exercise one of the two rights it amounts to act of election and necessarily precludes him from contending that the act adopted and ratified by him is invalid; and that he cannot be allowed to change his position thereafter and say that the other remedy is the proper one. He also relied on AIR 1956 Mad 301, (S. Vijayam v. Srinivitsu) wherein it has been held that where a person is entitled to one of two inconsistent rights and he has with full knowledge done an unequivocal act indicating his choice of the one, he cannot afterwards choose the other which after the first choice is by reason of the inconsistency no longer open to him. It is also held that such cases do not require detriment to the other party as foundation for the application of the said principle. On the other hand. Mr. Sail, appearing for the decree-holder has relied on the decision in : [1959]35ITR190(SC) , (Basheshar Nath v. I. T. Commr.). It was held therein that the onus to prove waiver lies on the party setting up the plea of waiver to establish the essential require ments in support of the plea which have been stated as follows:

'The generally accepted connotation is that to constitute 'waiver' there must be an intentional relinquishment of a known right or the voluntary relinquishment or abandonment of a known right or privilege. Waiver differs from estoppel in the sense that it is contractual and is an agreement to release or not to assert a right, estoppel is a rule of evidence;and further.

'It would, I think, be going too far to hold that every unsuspecting submission to a law, subsequently declared to be invalid, mustgive rise to a plea of waiver : this would make constitutional rights depend for their vitality on the accident of a timely challenge and render them illusory to a very large extent.' Though their Lordships were dealing with the waiver of constitutional rights, the same principle would apply to the waiver of other rights also.

22. It is urged by Mr. Sail, that since in the second eviction petition, i.e., H. R. C. 60/72, it is stated that the petition is filed without prejudice to the decree-holder's rights under the earlier consent order of eviction in H. R. C. 30/68, there is no abandonment of her rights under the earlier order. It is also his contention that the consent order would have been considered to be a nullity in view of the decision of the Supreme Court in : AIR1970SC794 , (Ferozi Lal Jain's case) and the decision of this court in 1970 (2) Mys LJ 560. (Subbanna v. Seethamma) and it is on this ground that she sought for a review of the order and since it was opposed the decree-holder took for granted that the law stated in the above said decisions would render the order of eviction passed in H. R. C. 30/68, a nullity. It is in these circumstances that the decree-holder filed the subsequent eviction petition in H. R. C. 60/72. But thereafter the decree-holder realised that the consent order of eviction passed in the earlier H. R. C. 30/68 was valid and executable in view of the law laid down later by the Supreme Court in : [1973]3SCR691 , (Chari v. Seshadri) and that therefore, she sought to execute the earlier order.

23. In order to constitute waiver, at the time the second petition was filed in 11. R. C. 60/72 the decree-holder must have had two courses open to her and she must have chosen one of them knowing full-well that the other course was also open to her. But in the present case, at the time the second eviction petition in H. R. C. 60/72 was filed by the decree-holder, the law laid down by the Supreme Court and this Court as referred to above was to the effect that the consent order of 14-10-1968 was a nullity and inexecutable. It is only when the decision in R. M. Seshadri's case : [1973]3SCR691 was rendered by the Supreme Court, that the decree-holder came (o realise that the said order is valid and executable. According to the law laid down by the Supreme Court, earlier to R. M. Sheshadri's case, the order of eviction based on consent of parties was invalid and inexecutable. Hence, it cannot be said that at the time the second eviction petition H. R. C. 60/72 was filed by the decree-holder there were two inconsistent rights and two inconsistent courses thereunder open toher, that she was aware of the same and that she chose to exercise one of them in preference to the other. At that time, as the law laid down by the Supreme Court stood, there was only one course open to the decree-holder and she adopted it. Under the law as it then stood, according to the interpretation of the Supreme Court, it was not open to the decree-holder to execute the consent order dated 14-10-1968. She therefore sought a review of that order. When it was opposed on the ground that another eviction petition could be filed by her, she withdrew the review petition. She thereafter filed the second eviction petition. Both at the time the review petition was filed as well as at the time the second eviction petition was filed it was not open to the decree-holder to execute the consent order of 14-10-68, since the law as it was then interpreted by the Supreme Court said it was a nullity-The decision in R, M. Seshadri's case had not yet been rendered by then. In the decisions relied on by Mr. Sequeira two inconsistent rights were open to a party and with the knowledge of the same the party adopted and pursued the remedy under one of those rights. They are not applicable to the facts of the present case. Hence, it cannot be said that the decree-holder had waived her rights under the consent order dated 14-10-1968 when she filed the second petition in H. R. C. 60/72. It cannot also be said that she had abandoned her rights under the earlier consent order in view of the fact that she had no right to execute that order as the law stood at that time. The allegations in the review petition to the effect that the consent order is a nullity and inexecutable is based on the decisions of the Supreme Court and this court referred to in that petition. It cannot therefore be said that the decree-holder voluntarily abandoned her rights under the consent order. It is only by virtue of the subsequent decision of the Supreme Court in : [1973]3SCR691 , (Seshadri's case) that the law has been laid down that even a consent order of eviction is valid provided the circumstances and the material on the record were sufficient to enable the court to come to the conclusion that there was an admission on the part of the tenant of a jurisdictional fact. It is only after this decision that the decree-holder could have acquired the knowledge of the validity and executable nature of the earlier consent order. The fact that the decree-holder could not execute the consent order was not due to her own volition but due to the law rendered by the Supreme Court and this Court as above slated. In order to constitute abandonment or waiver, it must be a voluntary act on the part of the person possessing the rights. If a person by force of circumstances is compelled to adopt one of the two courses, it cannot be said that he had two courses open to him and that he adopted one and abandoned the other. Hence, under these circumstances, the lower appellate court was in error in coming to the conclusion that there was waiver on the part ofthe decree-holder of her rights under the consent order.

24. This appeal is accordingly allowed with costs. The order of the lower appellate court is set aside and that of the execution court restored. The execution application shall be restored to file and the execution court shall proceed according to law.

25. Appeal allowed.


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