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Ashok Kumar and anr. Vs. Kanhiaya Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 203 of 1974
Judge
Reported inAIR1974All417
ActsUttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947 - Sections 3
AppellantAshok Kumar and anr.
RespondentKanhiaya Lal and anr.
Appellant AdvocateShanti Swarup Bhatnagar, Adv.
Respondent AdvocateR.P. Agarwal, Adv.
DispositionAppeal dismissed
Excerpt:
.....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. admission is the best piece of evidence, which can be made use of by the other side. in thepresent case this admission contained in the compromise impliedly, if not expressly, lead to the conclusion that the trial court could be satisfied on the material available and admission in the compromise that the judgment-debtor no. 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. --that conduct of the respondent clearly establishes..........in section 13-i are established. without such a satisfaction the court is incompetent to pass a decree for possession. in other words the jurisdiction of a court to pass a decree for recovery of possession of any premises depends upon a satisfaction that one or more of the grounds mentioned in section 13-i has been proved.'11. it was on this analysis of section 13 of rent control act that the supreme court held that since the court, while accepting the compromise, at no stage applied its mind for satisfying itself relating to fulfilment of the conditions on which alone a decree for eviction, could be passed against the tenant, therefore, the decree in that case was held to be void.12. in bahadur singh's case (1969) 1 scr 432 (supra) the supreme court was considering the question of.....
Judgment:

K.C. Agarwal, J.

1. This is a judgment-debtor's execution second appeal against the judgment and decree of the First Additional Civil Judge, Meerut, rejecting the objections under Section 47, C.P.C. filed by the judgment-debtor-appellants. The plaintiff decree-holder (hereinafter referred to as the decree-holder) filed suit No. 106 of 1970 for ejectment, recovery of arrears of rent and damages against the judgment-debtor-appellants (hereinafter referred to as judgment-debtors) on the ground that Ashok Kumar, judgment-debtor No. 1 was the tenant of the premises of a shop on the monthly rent of Rs. 73. He illegally sub-let the said shop to the judgment-debtor-appellant No. 1. It was alleged that since thesaid sub-letting was illegal, therefore, these two judgment-debtors were liable to eviction. The suit was contested by the judgment-debtors, by means of a joint written statement. It was alleged that initially the shop had been let out to Ashok Kumar and Kailash Chand. Kailash Chand left the partnership business, which was carried on in the premises and thereafter judgment-debtor Mahipal started doing it in partnership with Ashok Kumar, the other judgment-debtor. According to the case further taken in the written statement it was pleaded by judgment-debtors that this taking of Mahipal in partnership by Ashok Kumar was in the knowledge of decree-holders. Accordingly, the decree-holder could not get the eviction on the basis of the said alleged sub-letting.

2. The trial court, thereafter, recorded the statements of the parties under Order X, Rule 2, C.P.C Mahipal in this statement could not give any satisfactory explanation relating to his possession in the property. He only asserted that he was in possession of some of the receipts executed in the joint names of himself and Ashok Kumar. Kanhaiya Lal, decree-holder, denied giving of any receipt in the names of Ashok Kumar and Mahipal. It is correct that the judgment-debtors had denied the allegations of illegal sub-letting as was alleged by the decree-holder but after the statements were recorded it was clear that they did not have any substantial defence effectively repelling the case of the decree-holders relating to sub-letting. Having so found the judgment-debtors entered into a compromise with the decree-holders. The compromise was as follows:--

'Shriman Ji,

Sewa me nivedan hai ki baham pha-rikain tasfiya ho gaya hai ki dawa badi-garn waste dakhal wa bakava kirava wa waslat wasarh 75/- pachattar rupai mah-war ke hisab tavon dakhal decree kar diya jawe. Lekin agar pratiwadigarn ba-kaya kiraya 115/- rupiya mutdaviya wa waslat 17-1-70 se 16-7.-71 tak wasarah Rs. 75/- mahwar vani kul 1462-50 paise do barakar ki chamahi kisto me (yani 731-25 pai.se 15-1-72 tak wa 731.50 paise 15-7-72 tak ada kar denga, aur 16-7-72 se ainda kiraya 100/- rupiya mahawar mah wa mah barabar ada karte rahenge to pratiwadigarn dono kirayedaran mane jayenge aur decree ada wa bebak samjhi jayegi aur ayisi surat me wadigarn dakhal bhi nahi lenge. Agar pratiwadi in bato uproki me se kishi bhi bat ko poora, karne me kami karenge to decreedaran ko fauran decree zari karane ka adhikar ho jayega aur jo rivavete upar likhi gai hai wah bhi khatam samjhi jawegi. Kharcha farikain apna 2 swam bardast karenge.

Kanhaiya Lal wa Mahabir Prasad.

Wadigarn.

Shri Ashok Kurnar wa Mahipal,

Pratiwadigarn.

Dt: 16-7-1971.'

3. In the end it was provided that in case the judgment-debtors complied with all the conditions of the compromise regularly and properly, in that event the judgment-debtors would not be ejected. The judgment-debtors deposited Re. 500 in all upto 23rd of December, 1971. They did not admittedly either pay or deposit the first six monthly instalment of Rupees 731/25 p. payable by them on 15th of January, 1972. Consequently the decree-holder filed the application for execution on 11-2-1972 in the executing court. The judgment-debtors filed an objection under Section 47 C.P.C. contesting the execution. They alleged that a new tenancy had come into existence as a result of the compromise entered into between the parties on the 16th of July, 1971. In support of this argument it was further pleaded that the payment of Rs. 100 as rent per month in stead of Rs. 75, which was being previously paid, the judgment-debtors had acquired new tenancy rights, therefore, they could not be ejected in pursuance of the decree obtained on the 16th of July, 1971.

4. The execution court allowed the objection under Section 47 holding that the old relationship of landlord and tenant between the judgment-debtors and decree-holders got extinguished on the 16th of July, 1971. A new tenancy had come into existence on this date, therefore, the execution was not maintainable.

5. The decree-holders filed an appeal against the aforesaid judgment of the executing court. The appeal was allowed and the objection under Section 47, C.P.C. was dismissed. The judgment-debtors filed the present second appeal against the aforesaid judgment of the lower appellate court.

6. The first contention raised by the learned counsel for the judgment-debtor was the same relating to the new tenancy which had been accepted by the trial court. The learned counsel argued, in support of this submission, that it was immaterial that the judgment-debtors did not comply with all the terms and conditions of the compromise dated the 16th of March, 1971. The effect of the said compromise was that neither the decree-holders nor the judgment-debtors could rely on the old rights and obligations which existed between them before the 16th of July, 1971. It was submitted that as a result of payment of Rs. 100 per month as rent new relationship of land-lord and tenant emerged between the judgment-debtors and decree-holders, therefore, the judgment-debtors were not liable to be evicted in pursuance of the decree obtained in original suit No. 106 of 1970.

7. It is necessary to understand the two implications of the agreement entered into between the parties on the 16th of July, 1971 for the purposes of a proper appreciation of this argument. A reading of this compromise would indicate that a decree for ejectment was passed against the judgment-debtors on the 16th of July, 1971. It was as a concession that the judgment-debtors were, however, permitted to continue in possession provided that they complied with the conditions mentioned therein. The conditions of the decree were interdependent. It was not possible to interpret the same in a manner that one of the clauses could be operative without the compliance or fulfilment of the other. The judgment-debtors, therefore, could retain the possession of the shop in question provided that they had complied with all the terms punctually and regularly. The default of any one of the said conditions and terms entitled the decree-holders to execute the reply. It was admitted in the present case that the judgment-debtors had not paid the first instalment of Rs. 731/25 p. on the due date. This default was by itself sufficient for the decree-holders to put the decree into execution. It is not possible to hold on the basis of the interpretation of the said compromise that the judgment-debtors acquired new tenancy rights because of the payment of the rent at the rate of Rs. 100 per month. There is nothing in the compromise to indicate that the parties intended to confer any new tenancy rights on the judgment-debtors. The intention only was to defer the execution of the decree obtained in suit No. 106 of 1970 by the decree-holders provided that the judgment-debtors complied with all the terms and conditions. I am, therefore, unable to accept the contention of the counsel for the judgment-debtors that any new tenancy came into existence as a result of the said compromise. Even, if for the argument sake it was accepted that, new tenancy was agreed between the parties but that could come into existence only when the judgment-debtors had complied with all the conditions mentioned in the compromise. It is not possible to hold that the parties intended that a new tenancy would be created irrespective of the fact that the judgment-debtors did not pay the whole arrears and the damages. As already mentioned above, in my opinion, the judgment-debtors had to comply with all the terms and conditions. They had notdone so. The lower appellate court, accordingly, correctly held that they were liable to eviction.

8. The second ground, which was not taken in the courts below, urged by the learned counsel for the appellant, was that the decree in suit No. 106 of 1970 was contrary to provisions of Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act (hereinafter referred to as the Act) and, therefore; the same was void and nullity, hence the judgment-debtors could not be ejected from the shop in execution of the same. The argument was that a tenant was liable to be evicted, after the enforcement of the Act, on only one of the grounds mentioned in Section 3 of the Act. As no such ground was found in the present case, by the court while accepting the compromise between the judgment-debtors and the decree-holders, therefore, the compromise was void, incapable of being enforced. The learned counsel invited my attention to Firozi Lal Jain v. Man Lal, (AIR 1970 SC 794) in support of his submission. It was argued that the controversy arising for decision in the appeal before me, also arose before the Supreme Court in the aforesaid case. The Supreme Court in the aforesaid case held:--

'The jurisdiction of the court to pass a decree for recovery of possession of any premises depend upon a satisfaction that one or the more of the grounds in Section 13(1) have been proved where the court has proceeded solely on the basis of the compromise arrived at between the parties, the court was not competent to pass the decree hence the decree under execution must be held to be a nullity.'The learned counsel also referred to and relied upon the decisions of the two other cases of the Supreme Court, which were mentioned and relied upon by the Supreme Court in Firozi Lal case (supra).

9. These two decisions are Bahadur Singh v. Munni Subrat Das, (1969) 2 SCR 432 and Smt. Kaushaliya Devi v. K. L. Bansal, (1969) 1 SCWR 56 = (AIR 1970 SC 838). According to the counsel for the appellant the submission made by him was concluded by these decisions of the Supreme Court.

10. In order to appreciate the applicability of the aforesaid three decisions of the Supreme Court cited by the learned counsel for the appellant it is necessary to understand the provision with reference to which the Supreme Court had taken the above view. In Firozi Lal's case the Supreme Court was considering Section 13 of the said Control Act which had been enacted for the purposes of providing protection to a tenant against eviction. While interpreting the said provision the Supreme Court observed:--

'From this provision it is clear that after the Rent Control Act came into existence a decree for recovery of possession can be passed by any Court only if that court is satisfied that one or more of the grounds mentioned in Section 13-I are established. Without such a satisfaction the court is incompetent to pass a decree for possession. In other words the jurisdiction of a court to pass a decree for recovery of possession of any premises depends upon a satisfaction that one or more of the grounds mentioned in Section 13-I has been proved.'

11. It was on this analysis of Section 13 of Rent Control Act that the Supreme Court held that since the court, while accepting the compromise, at no stage applied its mind for satisfying itself relating to fulfilment of the conditions on which alone a decree for eviction, could be passed against the tenant, therefore, the decree in that case was held to be void.

12. In Bahadur Singh's case (1969) 1 SCR 432 (supra) the Supreme Court was considering the question of the invalidity of the decree passed on the basis of an award. That was also a case governed by the provisions of Delhi Aimer Rent Control Act. 1952. The Supreme Court in that case also emphasised that:--

'The other sub-sections to Section 13 showed that a decree or order could be passed on one of the grounds in a suit or proceeding instituted by a landlord against a tenant. Section is (1) prohibited the court from passing the decree or order for recovery of any premises in favour of a landlord against the tenant except in such a suit or proceeding and inasmuch as the court was satisfied that a ground of eviction existed............'

13. The finding given by the Supreme Court in the above case was that since the decree was passed by the court on the basis of the award without satisfying itself that a ground of eviction existed, therefore, the said decree for the delivery of possession of the premises to the landlord was a nullity and could not be enforced or executed.

14. These three decisions of the Supreme Court, therefore, required the satisfaction of a court before a compromise decree could be passed in favour of the landlord. These cases, however, did not lay down any indication relating to the satisfaction of the court which was essential, while accepting the compromise. It was in subsequent case reported in K. K. Chari v. R. M. Seshadri. (1973) 1 SCC 761 = (AIR 1973 SC 1311) that this question, was considered by the SupremeCourt. The Supreme Court, in the said case, held that apart from the compromise other materials on record could also be considered and taken into account in order to find out as to whether the court was so satisfied. Relating to the fulfilment of the conditions, which were the prerequisites for granting a decree for eviction, while laying down the said law the Supreme Court observed as under:--

'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 other of the statutory grounds. But in the case on hand, we have already referred to the specific claim of the landlord as well as the fact of the tenant withdrawing his defence. According to us, such withdrawal of the defence expressly amounts to the tenant admitting that the landlord had made out his case regarding his requiring the premises for his own occupation being bona fide, in the three decisions of this Court, to which we have already referred, the position was entirely different. In none of those 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.'

This question of satisfaction of the court again arose for consideration in a recently decided case before the Supreme Court. The said decision is reported in AIR 1974 SC 471. In this case the Supreme Court re-affirming the view taken in K. K. Chari's case 1973 (1) SCC 761 = (AIR 1973 SC 1311) (supra). While reiterating the aforesaid decision the Supreme Court observed thus:--

'From a conspectu 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. Suchmaterial 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 pleading 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 is 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.'

15. The question, which now arises for my determination, in this appeal, is as to whether there was anything either by way of admission contained in the compromise or in the evidence on record which could justifiably lead the court to hold that one of the conditions, required in Section 3 of the Act, had been fulfilled in the present case.

16. In my opinion in this case there was an admission made by the judgment-debtors admitting that that ground of sub-letting, on the basis of which the suit was filed against them for eviction in fact existed. The first portion of the compromise decree would show that the judgment-debtors had accepted the liability for mesne profit, at the rate of Rs. 75 per month, for the period upto the date of delivery of possession. The question of payment of damages for use and occupation by the judgment-debtors could arise when they had admitted that their tenancy had been lawfully terminated and that they had no right to continue. They would have never otherwise permitted a decree for mesne profits for use and occupation to be passed against them. A decree for damages for use and occupation can be passed, as against a tenant only when relationship of being a tenant has come to an end. This assumption of liability of mesne profits also implied the admission of the ground on which their eviction was based. This, compromise, therefore, contained an admission of the judgment-debtors that they were not entitled to continue in possession of the shop because of the illegal sub-letting.

17. There is yet another aspect of the matter. After the notice under Section 106 of the Transfer of Property Act was served on the judgment-debtors a reply of the said notice was sent by thejudgment-debtor No. 1 to the decree-holders. In the said reply the judgment-debtor No. 1 stated that he had not kept Mahipal as a sub-tenant. He was running his own business in the name of the firm, kept in the name of himself and that of his brother i.e. Mahipal. This reply to the notice, therefore, showed that according to the judgment-debtor No. 1 Mahipal had no concern with the shop at all. In the common written statement, filed by both the judgment-debtors, an attempt was made to assert that Mahipal was in possession of the shop as a co-tenant along with Ashok Kumar and that both of them had been accepted as tenants by the decree-holders,

18. Mahipal in his statement under Order X, Rule 2 asserted that he was a tenant along with his brother Ashok Kumar and had been jointly paying rent to the decree-holders whereas Ashok Kumar in his statement under Order X. Rule 2, C.P.C. did not accept Mahipal as a tenant along with him. He simply said that since Mahipal was his elder brother, therefore, the firm was being called by the name of 'Mahipal Ashok Kumar'. It would be seen here again that Ashok Kumar was not even prepared to concede the right of a co-tenant in favour of Mahipal.

19. In this state of affairs, it was abundantly clear that there was inconsistency in the case set up by the two judgment-debtors. It was for Ashok Kumar to have explained as to in what capacity was Mahipal in possession of the shop. This was an uphill task. This inconsistency was not easy to be reconciled. The explanation, which he had offered materially differed from the statement of Mahipal. It was admitted that Mahipal, judgment-debtor, was occupying the shop in his own right. His occupation was certainly contrary to previous of the Act. The judgment-debtors had no explanation. In these circumstances the judgment-debtors must have felt that their case was not going to be accepted. Hence they withdrew their defence. This conduct of their fully established that they accepted the ground of sub-letting taken against them. There was, therefore, sufficient material on the record of this case prima facie to satisfy the court that the ground of sub-letting, taken by the decree-holders, existed against the judgment-debtors.

20. I have already pointed out earlier in my judgment that the judgment-debtors had also made an admission of sub-letting while accepting the terms of the compromise. Admission is the best piece of evidence, which can be made use of by the other side. In thepresent case this admission contained in the compromise impliedly, if not expressly, lead to the conclusion that the trial court could be satisfied on the material available and admission in the compromise that the judgment-debtor No. 1 was guilty of illegal sub-letting.

21. Since in this case there was sufficient material on record and also admission in the compromise, of the fundamental facts that could constitute the ground for eviction against the judgment-debtors within the meaning of Section 3 of the Act, the executing court could not go behind the decree and treat the same to be a nullity.

22. In the two decisions of K. K. Chari v. R. M. Seshadri, 1973 (1) SCC 761 = (AIR 1973 SC 1311) and Nagindas v. Dalpatram, AIR 1974 SC 471 the Supreme Court distinguished its earlier decisions given in Bahadur Singh's case, (1969) 1 SCR 432, Kaushaliya Devi's case (1969) 1 SCWR 56 = (AIR 1970 SC 838) and Firozi Lal Jain's case, AIR 1970 SC 794 and dealing with the distinction in Nagindas's case observed as follows:--

'......... 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.'

23. In K. K. Chari's case, 1973 (1) SCC 761 = (AIR 1973 SC 1311) (supra) and also in the case of Nagindas, AIR 1974 SC 471 (supra) the Supreme Court held after examining the terms of compromises entered into in the two cases that admission in the compromise was acceptance of the material facts, which constituted grounds for eviction of the tenants.

24. In the case of K. K. Chari, 1973 (1) SCC 761 = (AIR 1973 SC 1311) when the tenant did not contest the claim of bona fide requirement of the accommodation by landlord after a certain stage and withdraw his defence by agreeing to vacate the premises, the Supreme Court observed:--

'......... That conduct of the respondent clearly establishes that he has accepted as true the claim of the Landlord that he bona fide required the premises for his own use and occupation. The materials on record also show that the court was satisfied about the bona fide requirement of the landlord and hence it accepted the compromise and made it a decree of court. Under these circumstances, the counsel contended that it cannot be said that the decree is one passed only on the basis of the compromise so as to make it void.'

Consequently the appeal has no merits and, therefore, must fail. It is accordingly dismissed with costs.


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