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Jami Bhimaraju and ors. Vs. Konchada Kedarnadha Subudhi - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 65 of 1970
Judge
Reported inAIR1972Ori81; 37(1971)CLT251
ActsCode of Civil Procedure (CPC) , 1908 - Sections 47; Orissa House Rent Control Act, 1958 - Sections 6 and 7(2)
AppellantJami Bhimaraju and ors.
RespondentKonchada Kedarnadha Subudhi
Appellant AdvocateY.S.N. Murty, Adv.
Respondent AdvocateP. Palit, Adv.
DispositionAppeal allowed
Cases Referred(Baidyanath Sharma v. Sabitribala Mitra). His Lordship
Excerpt:
.....section 13(1) prohibited the court from passing a decree or order for recovery of possession of any premises in favour of a landlord against a tenant except in such a suit or proceeding and unless the court was satisfied that a ground of eviction existed. the entire order of the controller gives an impression that he was satisfied that a direction for eviction under section 7 (2) of the house rent control act should be passed, and accepting the stand in the compromise he incorporated the term of compromise into the order and directed eviction. keeping in view the provisions of sections 6 and 7 of the act, it is true that in terms of the compromise which is merely an agreement the tenant cannot be ejected, and section 7 of the act requires the satisfaction of the controller that any of.....r.n. misra, j. 1. the decree-holders who had levied execution of an order of the house rent controller for eviction of the judgment debtor in e. p. no. 1 of 1970 are the appellants against the reversing appellate decision of the learned subordinate judge, berhampur.2. it is contended by mr. murty for the appellants and not disputed by mr palit for the respondent that house rent control case no. 42 of 1964 in the court of the house rent controller at berhampur was one for eviction of the respondent who was the tenant under the appellants on the ground that the tenant was a defaulter in payment of rent and the premises was necessary for the bona fide occupation of the landlords. a compromise was entered into between the parties and an application was filed on 23rd june. 1966. the entire.....
Judgment:

R.N. Misra, J.

1. The decree-holders who had levied execution of an order of the House Rent Controller for eviction of the judgment debtor in E. P. No. 1 of 1970 are the appellants against the reversing appellate decision of the learned Subordinate Judge, Berhampur.

2. It is contended by Mr. Murty for the appellants and not disputed by Mr Palit for the respondent that House Rent Control Case No. 42 of 1964 in the court of the House Rent Controller at Berhampur was one for eviction of the respondent who was the tenant under the appellants on the ground that the tenant was a defaulter in payment of rent and the premises was necessary for the bona fide occupation of the landlords. A compromise was entered into between the parties and an application was filed on 23rd June. 1966. The entire petition of compromise is extracted below:--

'Compromise petition filed by both parties most respectfully showeth:

At the intervention of respectable persons, both parties have settled their dispute and compromised the above proceedings thus:

Both parties agree that an order of eviction be passed against the opposite party, who shall vacate the suit premises and give delivery of possession of the same to the applicants on the expiry of three and half years from this date i. e. 22-12-1969.

Both parties further agree that the opposite party do pay rent from today till he vacates the suit premises at the rate of Rs. 25/- (rupees twenty-five) only per month, they having adjusted regarding the past rent from 10th April 1964 till 22nd June 1966 outside the court.

Each party do bear his own costs.

Both parties pray that the Hon'ble Court may be pleased to record the above terms and pass an order of eviction accordingly under Section 7 (2) of the Orissa House Rent Control Act.'

On the basis of the aforesaid petition at compromise on 23rd June 1966, the following order was passed by the Controller:--

'The petitioner Jami Bhimaraju and others and Konchada Kedrinadham Subudhi are present. The parties have filed a petition of compromise.

They pray that an order of eviction be passed against the opposite party who shall vacate the suit house after expiry of 3 1/2 years from today. The date of expiry has been scheduled to be 22-12-1969. The parties further agreed that a monthly rent of Rs. 25/- will be paid by the opposite party and all previous dues will be adjusted. They further agreed to bear the costs of their own.

As the opposite party has entered into compromise and eviction is sought for in the said petition of compromise, it is hereby ordered that the opposite party shall vacate the house. The date of eviction is however recognised by the Court as prayed for by the parties. The petition of compromise shall form a part of the record.'

3. In the execution case, an objection under Section 47. Civil P. C. was raised on the ground that there was nothing in the order of the Controller directing execution to be taken in the event of the judgment-debtor not vacating the suit-house after the expiry of 3 1/2 years. The executing court overruled the objection and held that the order was executable as a decree. The learned appellate Judge relying upon a decision of this Court in (1952) 18 Cut LT 52 = (AIR 1953 Orissa 74). (Khalli Rath v. Eppili Ramchandra) where their Lordships held:--

'Where in a suit for eviction of the defendant and possession by the plaintiff the parties compromised and a decree was passed as per its terms wherein the defendant agreed to deliver possession at the end of the stipulated period but what would happen in the event of violation of this provision was not stipulated, the parties must be taken not to have intended that the plaintiff should recover possession by way of execution as the suit itself was one for possession.'

held that the order of the House Rent Controller in the present case is not executable. He accordingly sustained the objection under Section 47. Civil P. C. and vacated the orders of the executing court. The present appeal has been carried to this Court by the decree-holders against this reversing decision of the learned Subordinate Judge.

4. Mr. Murty contends that the learned Appellate Judge clearly went wrong in relying upon the decision of this Court already referred to, as the facts of the present case are absolutely different. Here, there is a clear decree for eviction and, therefore, the ruling has no application. Mr. Palit did not rely upon the decision of this Court in (1952) 18 Cut LT 52 = (AIR 1953 Orissa 74) in support of his case, obviously because the contention of Mr. Murty is correct and to the facts of the present case the conclusions in that case can have no application. The only reason that appealed to the learned appellate Judge to sustain the objection under Section 47, Civil P. C. has, therefore, to be discarded.

5. Mr. Palit for the respondent, however, raises a new contention. According to him the decree for eviction is a nullity and, as such, cannot form the basis of the execution proceeding. He contends that under Section 6 of the Orissa House Rent Control Act. there was an absolute ban against ejectment of a tenant except as provided in Section 7 and until the Controller determined that one of the conditions laid down in Section 7 was satisfied there could be no order for eviction. The compromise was after all an agreement and as a result of an agreement and without the satisfaction of the House Rent Controller, there can be no eviction. It would be proper to extract the provisions of Sections 6 and 7 together:--

'6. Notwithstanding anything to the contrary contained in any agreement or law no tenant shall be liable to be ejected except as provided in Section 7.'

'7. (1) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant reasonable opportunity of showing cause against the application is satisfied:

(i) that the tenant has not paid or tendered the rent due from him in respect of the house within thirty days after the expiry of the time fixed in the agreement of the tenancy with the landlord or, in the absence of any such agreement by the last day of the month next following that for which the rent is payable; or

(ii) that the tenant has without the written consent of the landlord-

(a) transferred his right under the lease or sub-let the entire house or any portion thereof (if the lease does not confer on him any right to do so), or

(b) used the house for a purpose other than that for which it was let out; or

(iii) that the tenant has committed such acts of damage as are likely to impair materially the value or utility of the house; or

(iv) that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim is not bona fide;

the Controller shall make an order directing the tenant to put the landlord in possession of the house and if the Controller is not satisfied, he shall make an order rejecting the application:

Provided that in a case falling under Clause (i) if the Controller is satisfied that the tenant's default to pay or tender rent was not wilful, he may give the tenant a reasonable time not exceeding fifteen days to pay or tender the rent due from him to the landlord upto the date of such payment or tender and on such payment or tender, the application shall be rejected.

(2) The landlord may, subject to the provisions of this Act apply to the Controller for an order directing the tenant to put him in possession of the house, if he requires the house in good faith for the occupation or use of himself, any member of his family, or of any person or persons for whose benefit the house is held by him.'

From an elementary analysis of these provisions, it would be clear that except on grounds indicated in Section 7 of the Act a tenant shall not be liable to be ejected. Mr. Palit relies upon a decision of their Lordships of the Supreme Court in AIR 1970 SC 838, (Kaushalya Devi v. K.L. Bansal). Their Lordships relied upon an earlier decision of theirs in 1969 (1) SCWR 51, (Bahadur Singh v. Muni Subrat Das) and took the view that it was necessary for the Tribunal to satisfy itself that one of the grounds of eviction existed. It would be pertinent to refer to the facts of these two cases of the Supreme Court and discuss the principles laid down by their Lordships in order to find out whether to the facts of this case the principles have application.

6. The facts of the case of Kaushalya Devi. AIR 1970 SC 838 are as follows: One Raghunath Sharma the predecessor in interest of the appellants, instituted a suit for eviction of his tenant, He gave three grounds for ejectment--(1) that the premises were required bona fide by the plaintiff for occupation as residence for himself and other members of his family, and that he had no other suitable accommodation to meet his bona fide residential requirements; (2) that the defendant already owned a house in Delhi which was suitable for him; and (3) that the defendant had defaulted in payment of rent. The defendant entered contest and issues were framed. But on June 5,1966, both of them compromised their matter on the following terms:--

(a) Decree for ejectment be passed in favour of the plaintiff against the defendant, the decree will be executable after the 31st December. 1958, if the defendant does not give possession till then;

(b) the standard rent of the premises be fixed at Rs. 40/- per mensem, instead of Rs. 50/- paid at present payable from the 1st July, 1956 till the defendant vacates the premises;

(c) the amount in deposit with the Court be paid to the plaintiff which will be adjusted between the parties. The court recorded the following order:--

'In view of the statement of the parties' counsel and the written compromise, a decree is passed in favour of the plaintiff against the defendant.' The defendant did not vacate possession and execution was levied for eviction through Court. An objection was filed under Section 47. Civil P. C., challenging the validity of the decree on the footing that the same had been passed in contravention of the provisions of Section 13 of the Delhi and Ajmer Rent Control Act of 1952. In the facts of such a case, their Lordships indicated, 'In Bahadur Singh's case. (1969 (11 SCWR 51) this Court held that the decree passed on the basis of an award was in contravention of Section 13(1) of the Act, because the court had passed the decree in terms of the award without satisfying itself that the ground of eviction existed. Bachawat, J.. speaking for the Court observed that 'on the plain wording of Section 13(1) the court was forbidden to pass the decree. The decree is a nullity and cannot be enforced in execution.' The Court accordingly declared inter alia that 'the decree in so far as it directs delivery of possession of the premises to the landlord is a nullity and cannot be executed.'

The same view was adopted by their Lordships of the Supreme Court in this case.

7. In the earlier case, under an award the judgment debtor was to deliver possession and a decree on the basis of the award had been passed. In execution for eviction, objection under Section 47 Civil Procedure Code was filed on the self-same contention. Dealing with that matter, their Lordships held,

'The next question is whether the decree directing the tenant to deliver possession of the premises to the landlord was passed in contravention of Section 13(1) of the Delhi and Aimer Rent Control Act, 1952. That sub-section provided that: 'Notwithstanding anything to the contrary contained in any other law or any contract no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated): Provided that nothing in this sub-section shall apply, to any suit or other proceeding for such recovery of possession if the Court is satisfied.' ..... Then followed a catalogue of grounds on which the decree for recovery of possession could be passed. The other sub-section to Section 13 showed that a decree or order could be passed on one of those grounds in a suit or proceeding instituted by a landlord against a tenant. Section 13(1) prohibited the Court from passing a decree or order for recovery of possession of any premises in favour of a landlord against a tenant except in such a suit or proceeding and unless the Court was satisfied that a ground of eviction existed. Now, the decree in the present case is on the face of it one for recovery of possession of the premises in favour of the landlord against a tenant. The court passed the decree according to an award under Section 17 of the Arbitration Act, 1940, in a proceeding to which the landlord was not a party without satisfying itself that a ground of eviction existed. On the plain wording of Section 13(1) the Court was forbidden to pass the decree. The decree is a nullity and cannot be enforced in execution.'

Their Lordships referred with approval to the decision in (1966) 2 All ER 981 (Peachey Property Corporation v. Robinson). In that case, the landlords issued a writ to recover possession of a flat let to tenants who resided, for non-payment of rent. The tenant did not appear and judgment was signed in default of appearance. On the application for leave to issue a writ for possession, the Court held that the judgment was a nullity as it was given without any determination that it was reasonable to do so in contravention of Section 3(1) of the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933. The facts of the present case appear to be, however, slightly different. The claim for eviction was on two grounds coverable under both the sub-sections of Section 7. The parties in the compromise had indicated that the eviction should be under Section 7 (2) of the Act. The Controller had directed that the opposite party should be evicted from the house. The entire order of the Controller gives an impression that he was satisfied that a direction for eviction under Section 7 (2) of the House Rent Control Act should be passed, and accepting the stand in the compromise he incorporated the term of compromise into the order and directed eviction. Keeping in view the provisions of Sections 6 and 7 of the Act, it is true that in terms of the compromise which is merely an agreement the tenant cannot be ejected, and Section 7 of the Act requires the satisfaction of the Controller that any of the grounds stated therein is satisfied before actual ejectment can be ordered. But the manner in which the parties have compromised and the order of the Controller was passed, leaves a clear impression that there was satisfaction of the Controller when he accepted the petition of compromise and thereupon directed an order of ejectment. He did not give effect to this direction, because the date with effect from which the eviction was to be enforced was agreed between the parties in the petition of compromise. I would accordingly hold, adopting the principle laid down by their Lordships of the Supreme Court in the two decisions referred to above, that in the facts of the present case the judgment-debtor would not be entitled to any assistance.

8. An order under Section 7 (2) of the 1958 Act was not prima facie executable in view of the language used in Section 13. But the defect seems to have now been rectified in the new Act. This aspect of the matter was dealt with at considerable length in (1969) 35 Cut LT 464 (Baidyanath Sharma v. Sabitribala Mitra). His Lordship, the present Chief Justice, held.

'Section 15 of the 1968 Act provides that the order of the Controller made under Section 7, directing the tenant to put the landlord in possession of the house, shall be deemed to be a decree and shall be executable as such in the court of the munsif within the local limits of whose jurisdiction the house is situate. It would be noticed that the Legislature became aware of the difficulty in Section 13 of the 1958 Act and remedied the situation by making provision in Section 15 of the 1968 Act that all orders of eviction under Section 7 are to be deemed as decrees and would be executable in the Court of the Munsif. The position that would emerge now is that the order of the House Rent Controller passed on 12-9-1963 would be executable in the court of the Munsif under Section 15 of the 1968 Act.'

Thus, the objection on that score is also no more sustainable.

9. The net result of the aforesaid discussion is that the reasoning that weighed with the lower appellate court cannot be sustained. The new contention of Mr. Palit on the basis of the two decisions of their Lordships of the Supreme Court does not lend support to the stand of the judgment debtor. The other objections to the executability of the decree are also not sustainable. The appeal is allowed, the order of the learn-ed appellate Judge is vacated, and that of the executing court is restored. Both parties shall bear their own costs throughout.


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