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Revisional Civil Ravi Butt Vs. Phool Wati and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 698 of 1975
Judge
Reported inILR1976Delhi530
ActsCode of Civil Procedure (CPC), 1908 - Sections 115; Delhi and Ajmer Rent Control Act, 1952 - Sections 21
AppellantRevisional Civil Ravi Butt
RespondentPhool Wati and ors.
Advocates: M.L. Rawal, Adv
Cases ReferredNagindas Ramdas v. Dalpatram
Excerpt:
.....that the landlord failed to establish the case of unauthorised sub-letting and the eventual decree passed was not and could not have been based on that allegation. the compromise of february 10, 1955 on the basis of which the decree was passed also envisages that the petitioner would but be treated as a sub-tenant for the purpose of depriving the tenant of the time allowed by the decree to vacate the premises. the petitioner is, thereforee, a person who has been in occupation of the premises and can be evicted only in accordance with law. where, thereforee, the petitioner is sought to be evicted pursuant to a decree, he would have the locus standi to assail its validity.; (ii) delhi & ajmer rent control act (1952) - section 21--scope of--validity of compromise decree.; by..........that the landlord failed to establish the case of unauthorised sub-letting and the eventual decree passed was not and could not have been based on that allegation. the compromise of february 10, 1955 on the basis of which the decree was passed also envisages that the petitioner would not be treated as a sub-tenant for the purpose of depriving the tenant of the time allowed by the decree to vacate the premises. the petitioner is, thereforee, a person who has been in occupation of the premises and can be evicted only in accordance with law. where, thereforee, the petitioner is sought to be evicted pursuant to a decree he would have the locus standi to assail its validity. what is more, section 21 of the delhi and ajmer rent control act; 1952, under the provisions of which the decree.....
Judgment:

H.L. Anand, J.

(1) By this petition under Section 115 of the Code of Civil Procedure, the petitioner challenges the order of the Additional Senior Sub-Judge, Delhi, upholding in appeal an order of the execution court overruling the objection of the petitioner with regard to the validity of the decree for the eviction of the tenant in respect of the premises pursuant to which the petitioner is sought to be evicted.

(2) The proceedings have had a rather chequered course. Ram Saran Dass, since deceased, obtained a decree for the ejectment of his tenant, one Kabul Singh, in respect of the premises in dispute as early as the year 1955. Ejectment had been sought on the ground of non-payment of rent, nuisance and unauthorised sub-letting. Considerable evidence was led on behalf of the parties. Evidence was closed on November 29, 1954. On January 6, 1955, the court inspected the premises in dispute apparently with a view to verify the correctness of the rival contentions with regard to the conduct of the tenant which was alleged to constitute a nuisance. On February 10, 1955, however, the matter was compromised. The trial court recorded the statement of the tenant and of his counsel, inter alia, to the effect that the suit for ejectment be decreed but the decree would not be executable for a period of 26 months; that the tenant would not keep any sub-tenant during the period but that Ravi Dutt, the present petitioner, would not be considered a sub-tenant; and that if any subtenant was inducted the tenant would be liable to be dispossessed forthwith. A confirmatory statement was made by the landlord and his counsel. On this the court decreed the suit 'in accordance with the statements of the parties and their counsel'. The landlord has since died. The tenant vacated the premises, but the present petitioner, who was alleged in the suit to be the unauthorised subtenant, nevertheless continued to occupy the premises. When he was sought to be evicted in execution of the aforesaid decree he filed objections, inter alia, on the ground that he could not be evicted pursuant to the decree, because the decree, having been passed on the basis of a compromise and not on judicial satisfaction, was a nullity. and that the petitioner was entitled to challenge the decree at any stage by virtue of the fact that he was sought to be evicted from a premises which was in his lawful occupation in execution of it. The claim of the petitioner was resisted on behalf of the legal representatives of the landlord. The execution court overruled the objection of the petitioner holding, repelling the contention of the petitioner, that the decree had been validly passed by a court of competent jurisdiction inasmuch as the court had recorded the evidence of the parties and had inspected the spot and the satisfaction of the court as to the existence of statutory grounds for eviction could, thereforee, be inferred, even though the decree purported to be based on a compromise. It was further held that there was a clear admission in the compromise which was incorporated in the decree, which admission would constitute a good ground for eviction. The order of the execution court has been upheld by the Additional Senior Sub-Judge, in his appellate order. The appellate court confirmed the conclusion of the execution court and repelled the contention that the decree was a nullity. The appellate court further held that even though the invalidity of a decree could be challenged at any stage the petitioner had no hens standi to assail the decree in dispute.

(3) At the hearing of the petition in this Court a preliminary objection was raised on behalf of the respondents that, inasmuch as the petitioner was neither a party to the proceedings, in which the decree was passed, nor did the petitioner claim any right or interest in the premises in dispute, either as a tenant or otherwise, and was a more trespasser, he had no locus standi to assail the validity of the decree and that the petition must, thereforee) fail on that ground alone: It is not possible to accept this contention. It is true that the petitioner was not a party to the proceedings which culminated in the decree. It is equally true that the petitioner does not claim any right or interest in the premises in dispute save the limited right to remain in occupation unless evicted in accordance with law by a valid decree or order or process of a court. It is, however, well settled that a decree or an order of a court, which is a nullity, is incapable of conferring any rights and could not form basis of any process by a court of law. It is equally well settled that where a decree or an order is a nullity its invalidity can be challenged at any stage including the stage of execution and its invalidity can be set up at any time and anywhere as a defense to any action based on it. It is beyond doubt that no court would act on or in aid of a decree or an order which is a nullity, for a decree or order, which is a nullity, according to a fiction of law, has no legal existence. How can a court, thereforee, act on the basis of or in aid of that which has no legal existence? Such a challenge to the validity of a decree has an impact on the very jurisdiction of the court. The petitioner has admittedly been residing in the premises in dispute since the time it was occupied by a bond fide tenant. At one stage he was alleged to be an unauthorised sub-tenant, a claim which was contested by the tenant. It was not disputed on behalf of the respondents that the landlord failed to establish the case of unauthorised sub-letting and the eventual decree passed was not and could not have been based on that allegation. The compromise of February 10, 1955 on the basis of which the decree was passed also envisages that the petitioner would not be treated as a sub-tenant for the purpose of depriving the tenant of the time allowed by the decree to vacate the premises. The petitioner is, thereforee, a person who has been in occupation of the premises and can be evicted only in accordance with law. Where, thereforee, the petitioner is sought to be evicted pursuant to a decree he would have the locus standi to assail its validity. What is more, Section 21 of the Delhi and Ajmer Rent Control Act; 1952, under the provisions of which the decree was passed, provides that any decree passed under the Act will bind all persons who may be in occupation of the premises and possession thereof shall be given to the landlord by evicting all such persons there from. By virtue of the provisions of Section 21 of the Act the decree, thereforee, becomes binding on all such persons except those who claim an independent title to the premises. If a decree binds a person either because that person was a party to the proceedings or because of a statutory provision like Section 23 of the Act, it obviously follows that such a person would have the necessary locus standi to assail the validity of that which is said to bind him. It would, thereforee, be open to such a person to contend that he was bound only by a valid decree and that a decree which was a nullity in law was not only incapable of binding him but could not be made a basis to deprive him from the occupation of the premises in his possession. The wider net that the aforesaid provision casts for those in occupation itself provides the necessary foundation for the locus standi to assail the decree. The preliminary objections must, thereforee, be overruled.

(4) On the merits the only question that falls for consideration is whether the decree could be said to be a nullity. This question, to my mind, must be answered in the negative.

(5) It is not in dispute that a decree for ejectment of a tenant under the Act could be passed only if the court was satisfied that the eviction was justified on one of the grounds set out in the proviso to Section 13 of the Act. It is equally well settled that no court can pass a decree for eviction either in 'invitum' or with the censent of the parties on a ground which is de hors the Act or ultra virus its provisions. This is so because the prohibitory mandate to the court not to travel beyond the statutory grounds and to the parties not to contract out of the statutory protection is inherent in the public policy that the statutes embodies. It was also not disputed that where, not withstanding such a mandate, a decree or an order for the ejectment of a tenant was passed merely on the ground of a compromise such a decree or order would be without jurisdiction. It has, however, been held by the Supreme Court in the case Nagindas Ramdas v. Dalpatram lccharam alias Brijram and others, 1974 SC 471, that a consent decree for the ejectment of a tenant is not 'necessarily' a nullity and that if there was a clear admission in the compromise incorporated in the decree, of the fundamental facts that could constitute a ground for eviction, it would be presumed that the court was satisfied about the existence of such statutory ground and that in such a case the decree, though apparently passed on the basis of a compromise, would nevertheless be valid. It was further held that where objection is taken to the validity of a decree it was not compelent for the executing court to go behind the decree if the decree on the fact of it disclosed some material on the basis of which the court could be statisfied with regard to the existence of a statutory ground for eviction and that if, on the face of it, the decree did not show the existence of such material the executing court would be entitled to ascertain from the records if there was any material which 'could' constitute a foundation for the decree and that in such a case all that the executing court 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'.

(6) If the aforesaid principles are applied to the material on record, the answer to the question posed above becomes so obvious. Eviction was sought on three grounds, viz., non-payment, nuisance and unauthorised sub-letting. It was not disputed that the ground with regard to non-payment did not survive and the only alleged unauthorised tenant was the petitioner and that there was no material to indicate that he was a sub-tenant even though he had been residing in a part of the demised premises either with the tenant, being a relation of his, or otherwise. The material must, therfore, be looked at with a view to determine if,on the basis of it, eviction 'could' have been ordered on the ground of nuisance. The plaintiff examined 5 witnesses while the defendants examined 13 witnesses. A number of witnesses deposed with regard to the conduct of the tenant which was said to constitute nuisance. The evidence of the parties was closed in Novermber 1954 and the Presiding Officer inspected the spot on January 6, 1955 with a view to make a physical verification of the alleged conduct of the tenant. The report of the Presiding Officer contains references which could be construed as a possible indication of confirmation of the alleged acts of the tenant constituting nuisance. This is followed by the compromise on the 10th February 1955. In the totality of circumstances in which the compromise was entered into leaves hardly any doubt that the decree was not based merely on a compromise but had its genesis in the satisfaction with regard to the conduct of the tenant and it could not, thereforee, be said that it was based merely on the compromise. On the material on the record, the ejectment of the tenant could have been ordered on the ground that he was guilty of conduct which amounted to a nuisance. The necessary judicial satisfaction must in the circumstances be inferred from the decree and the circumstances preceding and attending on it. The fact that the tenant has not come forward to assail the decree or to otherwise support the claim of the petitioner fortifies the conclusion as to the real foundation of the decree and the fact that the decree could have been justified with reference to the material on record. It must, thereforee, be held that the decree, even thought it purports to be based on a compromise could have been passed on the basis of the material on record and cannot be said to be a nullity so as to divest the execution court of jurisdiction to dispossess the petitioner in execution of it.

(7) In the result, the petition fails and is hereby dismissed with costs throughout. The petitioner has successfully kept the landlord at bay in spile of a valid decree passed over 20 years ago. There is. thereforee, no ground to allow him any further time to vacate.


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