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Hubbilal Sadashiv Vs. Mohammad Makbool Ahmed Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. (Second) Appeal No. 223 of 1972
Judge
Reported inAIR1977MP65
ActsMadhya Pradesh Accomodation Control Act, 1961 - Sections 12 and 12(1); Code of Civil Procedure (CPC) , 1908 - Sections 47, 100, 148 and 151 - Order 23, Rule 3; Contract Act, 1908 - Sections 23
AppellantHubbilal Sadashiv
RespondentMohammad Makbool Ahmed Khan and ors.
Appellant AdvocateN.K. Patel, Adv.
Respondent AdvocateV.P. Shrivastava, Adv.
DispositionAppeal allowed
Cases ReferredNagindas v. Dalpatram
Excerpt:
.....of section 47, civil procedure code. it was a matter extraneous to the suit and if the decree-holder failed to execute the sale-deed, the judgment-debtor would have been required to file a suit for enforcing the terms relating to execution of the sale-deed. accommodation control act (hereinafter referred to as the said act). the decree-holder could not, therefore, obtain a decree for ejectment unless he satisfied the court that one of the grounds specified in sub-section (1) of section 12 of the said act existed. 7. in firozilal v manmal, air 1970 sc 794, their lordships, while dealing with a case under the delhi and ajmer rent control act, held in paragraph 5 that a court is not competent to pass a decree for possession unless it is satisfied that one or more of the grounds..........3 and 4, namely, battulal and mithulal claiming ejection from a house and also arrears of rent the suit was compromised and a decree was passed in terms of the compromise. the material terms in the compromise were as under :'therefore in terms of compromise it is hereby ordered and decreed :-- (i) that defendants do pay rupees eight hundred only in monthly instalments of rupees fifty payable on 15th of each month. the first instalment shall become due on 15-9-1963. (ii) that on the payment of the entire amount of rs. 800/- the plaintiff do execute a sale deed in favour of defendants with respect to suit property i. e. house no. 222 of omti ward, jabalpur as shown in the plaint map at the cost of the defendants. (iii) in default of any two instalments, the plaintiff would not be.....
Judgment:

S.M.N. Raina, J.

1. C. B. Wood, respondent No. 2 filed a suit against the appellant Hubbilal and respondents 3 and 4, namely, Battulal and Mithulal claiming ejection from a house and also arrears of rent The suit was compromised and a decree was passed in terms of the compromise. The material terms in the compromise were as under :

'Therefore in terms of compromise it Is hereby ordered and decreed :--

(i) that defendants do pay Rupees Eight Hundred only in monthly instalments of Rupees Fifty payable on 15th of each month. The first instalment shall become due on 15-9-1963.

(ii) that on the payment of the entire amount of Rs. 800/- the plaintiff do execute a sale deed in favour of defendants with respect to suit property i. e. house No. 222 of Omti Ward, Jabalpur as shown in the plaint map at the cost of the defendants.

(iii) in default of any two instalments, the plaintiff would not be liable to execute the sale-deed in favour of the defendants in respect of the suit house but the defendants shall be liable to be ejected as tenants from the suit house.' As the judgment-debtor failed to make payment in terms of the decree, the decree-holder started execution proceedings on 10-2-1965. During the pendency of these proceedings, Makbool Ahmed filed an application on 27-3-1965 for being substituted as a transferee in place of the original decree-holder, C. B. Wood. The application was allowed after notice to the other side. While the execution proceedings were in progress, the judgment-debtor filed two applications -- one dated 30-6-1966 under Section 151, Civil Procedure Code and the other dated 30-7-1966 under Section 148 read with Section 151, Civil Procedure Code. In both these applications, it was stated that the judgment-debtor could not pay or deposit the amount in terms of the decree on account of illness and certain other reasons and, therefore, prayed that he may be given time to deposit the balance of the amount under the decree. The judgment-debtor further pleaded that the clause relating to ejectment, being in the nature of a penal clause, the Court may suitably amend it. Both these applications were opposed by the decree-holders and were rejected The judgment-debtor preferred an appeal which was dismissed by the District Judge, Jabalpur. Being aggrieved thereby, he preferred this second appeal.

2. Shri V. P. Shrivastava, learned counsel for the respondents, raised a preliminary objection that this appeal is not competent as the applications filed by the judgment-debtor in the trial Court could not be treated as applications under Section 47, Civil Procedure Code. It appears that a similar objection was raised before the District Judge and it was disallowed vide para. 15 of the judgment.

3. The applications filed by the judgment-debtor clearly related to execution of the decree and as such fall within the purview of Section 47, Civil Procedure Code. It is, therefore, clear that the order passed by the trial Court was appealable and this appeal is competent.

4. The main point urged by the learned counsel for the appellant was that the compromise decree merely declared the rights of the parties and was, therefore, not executable. In support of this contention, it was pointed out that it contained matters extraneous to the suit. It is no doubt true that this plea was not raised in the trial Court and was for the first time raised in the first appellate Court. But it being purely a question of law, could be considered even at the appellate stage. The learned District Judge, therefore, rightly entertained this plea end decided the case.

5. If we carefully examine the terms of the compromise decree, it would appear that the judgment-debtor was given an option to purchase the house in suit for a consideration of Rs. 800/-, failing which he was liable to be evicted. It is significant that the decree does not say in clear terms that in the event of any default in payment, the decree-holder will be entitled to obtain possession of the house by executing the decree. It merely says that the judgment-debtor would be liable to be ejected. It is clear that the first part of the decree relating to execution of the sale-deed by the decree-holder on payment of Rs. 800/- within the time stipulated in the decree was not executable. It was a matter extraneous to the suit and if the decree-holder failed to execute the sale-deed, the judgment-debtor would have been required to file a suit for enforcing the terms relating to execution of the sale-deed. This position was not disputed by the learned counsel for the respondents. He, however, urged that the decree contemplated that in the event of default in payment, the judgment-debtor would be ejected in execution proceedings. But the words 'liable to be ejected' do not bear out this intention. It merely suggests that a liability was created, which could be enforced separately. Such a construction is re-enforced by another consideration.

6. The decree-holders had filed a suit for ejectment and it was not disputed before me that the matter was governed by Section 12 of the M. P. Accommodation Control Act (hereinafter referred to as the said Act). The decree-holder could not, therefore, obtain a decree for ejectment unless he satisfied the Court that one of the grounds specified in Sub-section (1) of Section 12 of the said Act existed. The question, whether a compromise decree can be passed without establishment of any ground specified in Sub-section (1) of Section 12 of the Act has come up for consideration before the Supreme Court in a number of cases in the context of certain enactments similar to the said Act.

7. In Firozilal v Manmal, AIR 1970 SC 794, their Lordships, while dealing with a case under the Delhi and Ajmer Rent Control Act, held in paragraph 5 that a Court is not competent to pass a decree for possession unless it is satisfied that one or more of the grounds mentioned in Section 13 (1) of the Act are established. Their Lordships added that the jurisdiction of the Court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds have been proved. It was, therefore, held that where the Court proceeded to pass a decree for ejectment on the basis of a compromise without reference to the grounds, the decree was a nullity. A similar view was expressed by their Lordships in Koushalya Devi v. K. L. Hansel, AIR 1970 SC 838, while dealing with a case under the same Act. It was held therein that since the decree for ejectment was passed by the Court in terms of the award without satisfying Itself that the grounds of eviction existed, it was a nullity and could not be executed.

8. It has been urged that the aforesaid cases are distinguishable on the ground that under the Delhi Act, the Court is precluded from passing a decree for ejectment except on the grounds specified therein, whereas under the M. P. Act, there is no such bar to the passing of such a decree. No doubt Sub-section (1) of Section 12 of the M. P. Act does not bar the passing of a decree except on the grounds specified therein, but it bars the institution of a suit against the tenant for his eviction except on one or more of the grounds specified therein. This appears to be even a stronger bar than the one provided by the Delhi Act because where the suit itself cannot be instituted except on one of the grounds specified therein, there can be no question of passing of a decree except on one or more of such grounds even on the basis of a compromise. Order 23, Rule 3 restricts the powers of the Court to record only such agreements or compromises as are lawful. Section 23 of the Contract Act lays down that the object of an agreement is unlawful if it is of such a nature that, if permitted, it would defeat the provisions of any law. The principle underlying the provisions of Section 12 of the said Act is that a landlord shall not be entitled to evict his tenant through Court except on one of the grounds specified in Section 12. This object would be frustrated by a compromise where it provides for eviction without reference to any of such grounds. Therefore, such a compromise would be hit by Section 23 of the Contract Act and would be as such unlawful.

9. It has been brought to my notice that a Division Bench of this Court in Smt. Chandanbai v. Surjan, 1972 MPLJ 216 = (AIR 1972 Madh Pra 106) has taken a different view. As would appear from paragraphs 5 and 6 of the judgment in that case, the Supreme Court cases referred to above were distinguished on the ground that Section 13 of the Delhi Act by implication excluded the application of Order 23, Rule 3 of the Code of Civil Procedure, whereas the operation of the said rule was not excluded by Section 12 of the Act. It was held that since the tenant can enter into a compromise promising to give up possession in future and as there is nothing illegal in such promise, the Court would be bound to pass a decree in terms of the compromise under Order 23, Rule 3, Civil Procedure Code, The authority of this decision is, however, very much affected by the latest decision of the Supreme Court in Nagindas v. Dalpatram, AIR 1974 SC 471. That was a case under the Bombay Rents, Hotel and Lodging House Rates Control Act, The following observations made by their Lordships in paragraph 21 are pertinent :

'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 that fetter on the Rent Court or empower it to make a decree for eviction de hors the statute. 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. Such lawfulness or otherwise of the agreement is to be judged, also on the ground whether the terms of the compromise are consistent with the provisions of the Rent Act.'

10. As pointed out above, the principle underlying Section 12 of the M P. Act appears to be that, a landlord shall not be entitled to obtain eviction of his tenant through Court except on one of the grounds specified therein, and therefore, a compromise providing for eviction without reference to any of the grounds would not be lawful and therefore, no decree can be passed on the basis of such a compromise between the parties. In this connection, it would be pertinent to refer to the following observations of their Lordships of the Supreme Court in Nagindas v. Dalpatram, AIR 1974 SC 471 (supra) in paragraph 16 :

'It will thus be seen that the Delhi Rent Act and the Madras Rent Act expressly forbid the Rent Court or the Tribunal from passing a decree or order of eviction on a ground which is not any of the grounds mentioned in the relevant sections of those statutes. Nevertheless, such a prohibitory mandate to the Rent Court that it shall not travel beyond the statutory grounds mentioned in Sections 12 and 13 and to the parties that they shall not contract out of those statutory grounds is inherent in the public policy built into the statute (Bombay Rent Act).'

11. The public policy referred to by their Lordships is inherent in the M. P. Act also and, therefore, there can be no consent decree for ejectment except on one of the grounds specified in Sub-section (1) of Section 12 of the M. P. Act.

12. It is no doubt true that in Nagindas v. Dalpatram, AIR 1974 SC 471 (supra) their Lordships pointed out that a consent decree for ejectment would not be a nullity if there was a clear admis-sion in the compromise of the fundamental facts constituting grounds for eviction or other material to say that such facts were either expressly or by implication admitted. But in the instant case, there appears to be no admission of fundamental facts either in the compromise or in any other material on record. It would, therefore, appear that the Court was not competent to pass a decree for eviction. It may be that it was for this reason that the compromise merely stated that the judgment-debtor would be liable to be evicted, if he committed a default in payment in terms of the decree.

13. It is, therefore, clear that the decree in question cannot be executed as a decree for ejectment by the decree-holders. It is, therefore, unnecessary to consider whether some of the clauses in the decree are of penal nature and the judgment-debtor can claim relief in respect thereof.

14. The appeal is, therefore, allowed and the execution application in so far as it relates to ejectment of the judgment-debtor shall stand dismissed. I make no order as to costs in the circumstances of the case.


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