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Sri Ganesh Prasad Vs. the State of U.P. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 298 of 1973
Judge
Reported inAIR1974All379
ActsConstitution of India - Article 226; Code of Criminal Procedure (CrPC) , 1898 - Sections 145 and 146; Code of Civil Procedure (CPC) - Sections 49; Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3
AppellantSri Ganesh Prasad
RespondentThe State of U.P. and ors.
Appellant AdvocateK.C. Saksena and ;H.S. Nigam, Advs.
Respondent AdvocateH.S. Joshi, ;H.N. Sharma, ;R.N. Bhalla, Advs. and ;Standing Counsel
DispositionAppeal allowed
Excerpt:
.....--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. admissions, if true and clear, are by far the best proof of the facts admitted. applying those tests to the facts of the instant case it would be seen that the decree which was passed itself did not on the face of it disclose any material on the basis of which it may be held that the court passing the decree was satisfied with regard to the existence..........that the school had been forcibly and wrongfully dispossessed only on the ground that the decree passed in favour of the appellant and against jagdish saran rastogi, was null and void, we are of opinion that the point raised in the writ petition before this court deserved to be decided on merits. 3. the question which falls for consideration in the present case is about the nature of the decree passed in the suit for ejectment referred to above on the basis of compromise between the appellant and respondent no. 7. a number of authorities were cited by learned counsel on either side in support of their respective contention in regard to the question as to whether the said decree was a valid decree or was null and void. we, however, do not consider it necessary to refer to those.....
Judgment:

Ojha, J.

1. The dispute giving rise to this Special Appeal relates to a house. It belonged to one Dharam Deo Agarwal. It was let out to Jagdish Saran Rastogi, respondent No. 7. The appellant Ganesh Prasad purchased the house from Sri Dharam Deo Agarwal on 29-12-1970. Thereafter, he made an application under Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947, for permission to file a suit against respondent No. 7. The necessary permission was granted on 4-5-1971. It was to be operative after thirty days. The appellant, however, filed a suit for ejectment of respondent No. 7 on 6-5-1971. The parties entered into a compromise on 12-5-1971 and the same day a decree for ejectment was passed on its basis. The decree was put in execution on 21-5-1971 and the appellant obtained possession through the Court Amin on 24-5-1971. Thereafter, an objection was filed by Sri Badri Prasad Tandon, Manager, Thakur Prasad Badri Prasad Junior Girls High School, Moradabad, respondent No. 5, under Order XXI, Rule 100 of the Code of Civil Procedure on the allegation that the house was occupied by the school in its own right and since it was not a party to the decree in execution of which it was dispossessed, it was entitled to be restored to possession over the house. This objection was allowed. Consequently the appellant instituted a suit under Order XXI, Rule 103 of the Code of Civil Procedure which is said to be still pending. Simultaneously an application has also been made by Ashok Kumar Tandon, Manager of the School under Section 145 of the Code of Criminal Procedure, on the allegation that the school had been in possession on 24-5-1971 when it was forcibly and wrongfully dispossessed in execution of a decree against respondent No. 7 to which it was not a party. On being satisfied that a dispute concerning the house, likely to cause breach of the peace, existed, the Magistrate concerned passed a preliminary order on 28-5-1971 and subsequently made a reference under Section 146 of the Code of Criminal Procedure to the civil court of competent jurisdiction to decide the question as to which of the parties was in possession over the house on the relevant date. The reference came up before the Munsif, Moradabad. Before the Munsif the case set up on behalf of the appellant was that the school was only a licensee of Jagdish Saran Rastogi, respondent No. 7, and was, therefore, rightly ejected in execution of the decree for ejectmentagainst the said respondent. On this allegation it was pleaded on behalf of the appellant that the school had not been forcibly and wrongfully dispossessed. Apart from the plea that it had been forcibly and wrongfully dispossessed, it was also pleaded on behalf of the school that the decree in execution of which it was dispossessed was void inasmuch as the house in dispute was covered by the provisions of U. P. (Temporary) Control of Rent and Eviction Act, 1947, and on the date of the decree none of the grounds contemplated by Section 3 of the said Act on the basis of which the suit for ejectment against the tenant could be decreed existed. It was urged that since the permission granted under Section 3 was to be operative after 30 days of 4-5-1971 the date on which the order granting the permission was passed, the decree as passed on 12-5-1971 was illegal. This plea found favour with the Munsif and on the finding that the entire proceedings culminating in the compromise decree of 12-5-1971 were null and void, he held that the school was dispossessed forcibly and wrongfully within two months prior to the date of the preliminary order. The Munsif recorded the aforesaid finding by his order dated 1-10-1971. On receipt of the finding the Additional City Magistrate passed an order on 7-10-1971 to the effect that the house in dispute may be delivered to the school through Badri Prasad, Manager. The appellant filed a revision against the order of the Additional City Magistrate which was dismissed by the 1st Civil & Sessions Judge, Moradabad on 24-11-1971. Aggrieved he instituted a writ petition in this Court with a prayer to quash the orders passed in the proceedings. Under Section 145 of the Code of Criminal Procedure. The writ petition was dismissed by a learned Single Judge of this Court on 3-12-1973 on the ground that the petitioner had an alternative remedy by way of a suit for possession and since he had already filed a suit which was pending, H was not a fit case for interference under Article 226 of the Constitution. It is against this order that the present special appeal has been filed by Ganesh Prasad.

2. It was urged by learned counsel for the appellant that the writ petition not haying been dismissed summarily but having been admitted, the learned Single Judge was not right in dismissing it on the date of the final hearing on the ground that the appellant had an alternative remedy. Reliance was placed on the case of L. Hirday Narain v. Income-tax Officer, Bareilly, AIR 1971 SC 33. Keeping in view the peculiar facts of the instant case, namely, that the appellant had already obtained a decreefor ejectment of Jagdish Saran Rastogi, respondent No. 7, and his case as set up in proceedings under Section 145 of the Code of Criminal Procedure, was, that the school was a licensee of Jagdish Saran Rastogi and the further fact that the Munsif deciding the reference had come to the conclusion that the school had been forcibly and wrongfully dispossessed only on the ground that the decree passed in favour of the appellant and against Jagdish Saran Rastogi, was null and void, we are of opinion that the point raised in the writ petition before this Court deserved to be decided on merits.

3. The question which falls for consideration in the present case is about the nature of the decree passed in the suit for ejectment referred to above on the basis of compromise between the appellant and respondent No. 7. A number of authorities were cited by learned counsel on either side in support of their respective contention in regard to the question as to whether the said decree was a valid decree or was null and void. We, however, do not consider it necessary to refer to those cases in view of the decision of the Supreme Court in Nagindas Ramdas v. Dalpatram Iccha-ram, AIR 1974 SC 471 which authoritatively lays down the law on the point. In regard to the procedure to be followed by an executing court when a question about the invalidity of the decree under execution was raised, it was held:--

'Be that as it may, in cases 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 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 beensatisfied as to the statutory ground foreviction.'

At another place it was held:--

'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 material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 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 foundation 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.'

4. In our opinion, the tests laid down above in respect of the powers of an executing court to find out as to whether the decree under execution is a nullity, can be applied in respect of any other court which is called upon to record a similar finding. Applying those tests to the facts of the instant case it would be seen that the decree which was passed itself did not on the face of it disclose any material on the basis of which it may be held that the court passing the decree was satisfied with regard to the existence of one of the statutory grounds for eviction contained in Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. It had, therefore, to be decided on the basis of the original record whether there was any material furnishing a foundation for passing a decree for ejectment. Copies of the plaint and of the compromise application of the aforesaid suit are on the record of the writ petition. In paragraph 5 of the plaint it was stated that

'After weighing the needs of the landlord and the tenant the Rent Control and Eviction Officer held that the need of the plaintiff was more genuine and hence he granted permission to sue on 4th May, 1971.'

The permission granted by the Rent Control and Eviction Officer to file a suit for ejectment constitutes a ground for filing such suit under Section 3 of the Act aforesaid. It is true that the allegations made in the plaint are to be substantiated by evidence and even for obtaining an ex parte decree the plaintiff has to produce evidence to support the allegations made in the plaint. A decree cannot be passed merely on the ground that the defendant has not put in appearance and the plaintiff's case is established from the allegations made in the plaint. The position would, however, be different where a written statement or some other document on behalf of the defendant has been filed from which it can be ascertained whether a particular allegation made in the plaint stands either expressly or impliedly admitted. If there is such a document which contains an express or implied admission such an admission would, as held in the case of Nagindas, AIR 1954 SC 471 (supra), be fully binding on the party that makes it and constitute a waiver of proof. It can be made the foundation of the rights of the parties. Applying this test to the instant case it would be seen that in the compromise application respondent No. 7, unequivocally admitted that the appellant was entitled to a decree for ejectment. It, in our opinion, amounted to, if not an express, certainly an implied admission that the facts stated in paragraph 5 of the plaint were correct. It is important to note that in the plaint it was not stated that the permission granted by the Rent Control and Eviction Officer on 4-5-1971 was to be operative after a month thereof. We are, therefore, of opinion that the allegations made in paragraph 5 of the plaint and the admission of its correctness by respondent No. 7, in the manner stated above, conferred jurisdiction on the court seized of the case, to pass a decree for ejectment against respondent No. 7. In our opinion, therefore, the decree passed in the suit for ejectment was a valid decree and was not null and void. The Munsif in taking a contrary view in his order dated 1-10-1971 in the reference made to him under Section 146 of the Code of Criminal Procedure, committed a manifest error of law. This however, is not enough to record a finding one way or the other, on the question as to whether the school was forcibly and wrongfully dispossessed from the house in dispute, in execution of the decree passed in the civil suit. It would be forcible and wrongful if the school was occupying the house of its own. It would not be so, if it was occupying it on behalf of respondent No. V either as a sub-tenant or as a licensee. It is settled law that in execution of adecree against a tenant-in-chief his subtenant or licensee can also be ejected. The ejectment of the sub-tenant or licensee in such a situation would not be forcible or wrongful. Since the Munsif did not record a finding on the question as to whether the school was in possession over the house on the relevant date of its own, as alleged on its behalf or as a licensee of respondent No. 7, as pleaded on behalf of the appellant, it is in our opinion a fit case in which the Munsif may now be required to record a clear finding on this point so that consequential orders could be passed by the Magistrate concerned.

5. In the result, the appeal succeeds and is allowed. The order of the learned Single Judge is set aside and the orders passed by the Munsif, Moradabad, Additional City Magistrate, Moradabad and the 1st Civil & Sessions Judge, Moradabad, on 1-10-1971, 7-10-1971 and 24-12-1971 are quashed. The Munsif will now record a finding on the reference afresh in accordance with law in the light of the observations made above and the Additional City Magistrate will, thereafter pass a consequential order in proceedings under Section 145 of the Code of Criminal Procedure. If possession has already been delivered to the school, it shall not be dispossessed until final orders are passed in proceedings under Section 145 of the Code of Criminal Procedure but the house will, for this period, be treated as custodia legis. There shall, however, be no order as to costs.


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