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Muna Lal Vs. Shiv Raitan G. Mohatta - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 542C of 1965
Judge
Reported in4(1968)DLT401
ActsDelhi and Ajmer Rent Control Act, 1952 - Sections 13 and 35
AppellantMuna Lal
RespondentShiv Raitan G. Mohatta
Advocates: S.P. Pandey,; Vijay Kishan and; S.L. Sethi, Advs
Cases ReferredBarjnath Prased v. Rampal.
Excerpt:
.....continue to stay in the premises up to 31st december, 1960. the tenant enjoyed the fruits of this compromise decree without any let or hindrance on the part of the landlord, but when the time for vacating the premises, according to this compromise decree, drew near, he, on 14th december 1960, raised objections to the validity of the compromise decree by means of an application under section 47, code of civil procedure in this application, as the order of the learned additional district judge dated 3rd june, 1965, which is impugned in these proceedings, shows, it was pleaded that the premises had been let out for commercial as well as residential purposes, with the result that a decree could nto be passed in favor of the landlord on the around of his bona fide requirement for residence..........punjab high court in amar nath v baggi mal, holding that the executing court cannto go behind a decree of ejectment pasted by a court having jurisdiction on the ground that it is a nullity, because it has been passed only on the statement of the parties without the court satisfying itself as to the existence of the statutory grounds, was also approvingly referred to and followed in dhan pat ram's case. the principle laid down in the fu4 bench decision of the east punjab high court in pirji safdar ali v. the ideal bank ltd., was the basis of this view. in the full bench decision, it was observed by mahajan j. (as he then was) as follows :- 'it is a well established rule of law that the executing court is bound to execute the decree and cannto go behind it. the only exception to this.....
Judgment:

I.D. Dua, J.

(1) The property which is the subject-matter of the present proceedings is situated at No 22, Feroze Shah Road, New Delhi and admittedly, it was in the occupation of Seth Munna Lal Aggarwal as a tenant in 1954 at Rs. 142.00 per mensem The landlord Seth Shiv Rattan G. Mohatta instituted a suit for eviction of the tenant and also for arears of 'rent amounting to Rs. 1,704.00. This suit was opposed by the tenant and some evidence was recorded by the Court after framing issues The parties, however, entered into a compromise and a decree for eviction and arrears of rent was made in favor of the plaintiff. According to this compromise decree, the tenancy came to an end on 31st July, 1957, but Munna Lal was permitted to continue to stay in the premises up to 31st December, 1960. The tenant enjoyed the fruits of this compromise decree without any let or hindrance on the part of the landlord, but when the time for vacating the premises, according to this compromise decree, drew near, he, on 14th December 1960, raised objections to the validity of the compromise decree by means of an application under section 47, Code of Civil Procedure In this application, as the order of the learned Additional District Judge dated 3rd June, 1965, which is impugned in these proceedings, shows, it was pleaded that the premises had been let out for commercial as well as residential purposes, with the result that a decree could nto be passed in favor of the landlord on the around of his bona fide requirement for residence and also that the landlord did nto in fact require any more accommodation. Previously, two of his suits against toher tenants, according to the averments of the tenant, seeking eviction on this ground had been dismissed. Of coarse the consent decree was also challenged on the ground of fraud played by the attorney of the landlord. These objections were adjudicated upon and were dismissed by Shri N. C Gupta, Subordinate Judge 1st Class. Delhi on the merits on 17th January, 1962. The tenant preferred an appeal, but it was nto pressed and was accordingly dismissed on 13th February, 1962. In the meantime, in August, 1961, the tenant had also instituted a regular suit, but this also ended in a compromise dated 13th February, 1962. It is apparent that it was as a result of this compromise that the appeal against the order rejecting the tenant's objections under section 47 of the Code was withdrawn. This compromise gave to the tenant further time for staying on in the premises up to 31st December, 1962. History repeated itseJf and in December .962, when the time for vacating the premises approached, the tenant filed an application challanging the decree on the ground of its being a nullity for the reason that the same had been passed by the Court on the basis of an agreement between the parties without there being any satisfaction on the part of the Court as to the validity or the pleas raised by the landlord in accordance with section 13 of the Delhi and Ajmer Rent Control Act 38 of 1952. It was repeated that the landlord's claim that he required the premises for his own residence was false and that previously, two of his suits had been dismissed, in which he had claimed relief against the toher tenants on similar plea. The executing Court settled the following two issues in these proceedings :-

'IWhether the decree in question is in execatable, as alleged and 2. Whether the objection petition is barred on the principles of rest judicata?'

The executing Court decided the second issue against the tenant and dismisssed the application.

(2) An appeal was taken to the learned Additional District Judge, but without success, the Appellate Court agreeing with the order made by the Court of first instance.'

(3) On revision, under section 35 of the Delhi and Ajmer Rent Control Act, No. 33 of 1952, the learned counsel for the petitioner has addressed very lengthy and elaborate arguments, practically treating this revision as original ejectment proceedings, ignoring that it was a revision from an order made in execution proceedings. I may at the very outset, and before ntoicing the arguments urged at the bar, point out that the older dated 31st July 1957 was made more than three years after the proceedings for ejectment and recovery of arrears of rent had been initialed in April, 1954. In May. 1954, an application was made for getting a plan of the premises prepared through Court be cause it was averred that the tenant was nto allowing the same to be prepared. In June, 1954, an application was made under section 13(5) of the Delhi Rent Act for an order directing the tenant to pay all arrears of rent and costs of the suit, This application was nto contested and an order was made requiring the defendant to deposit the arears of rent within 15 days from the date of each subsequent month on the 15th of the month. On 24th February, 1958, the tenant applied under Order 47, Rule 1, and section 151 Civil Procedure Code for the review of the order dated 14th June, 1954 requiring the tenant to deposit all the arrears of rent. In this application, it was averred that the tenant had denied the relationship of landlord and tenant between the parties. Obviously, review was declined on 28th March, 1956 by Shri K. K. Gujral, Subordinate Judge, but an appeal was preferred against that order and on 28 the January, 1957, the learned first Additional District Judge, Delhi, dismissed the same as being incompetent because the learned counsel for the appellant had, to use the exact words, 'frankly and very lightly conceded..... and has nto pressed his appeal.' It was, however, added that the order under appeal and the order dismissing the appeal would nto, in any way, bar or adversely affect the tenant's right, if any, to challenge the validity of the original order in the trial Court in proceedings for striking out his defense. On 14th June, 1954, issues had been framed in the original proceedings It appears that in the dispute regarding deposit of rent, an enquiry was held by the Court and evidence was recorded from June, 1956 to June, 1957 when a written application was made on 31st July, 1957 signed by btoh the parties and their Advocates. I may here reproduce the relevant portion of that application : -

'THEparties have compromised the suit on the following terms and conditions :- 1. That a decree for ejectment on the ground of bon fide necessity for the residence of the plaintiff and/or members of his family and for Rs 1,704/. Ob account at arrears of rent and costs be passed in favor of the plaintiff against the defendant, but the decree for ejectment will nto be executable till the 31st December, 1900. 2. That the defendant has deposited the amount of rent claimed by the plaintiff and also the arrears of rent up to the end of June, 1957 and costs. The said amounts be paid to the plaintiff. The excess amount if any will be adjusted towards inture rent. 3. That the defendant shall pay the future rent from 1st July, 1957 month by month, rent for each month being payable by the 15th of the following month. In case of default in payment of the rent for two consecutive months, the decree for ejectment will become executable at once. 4. That the defendant shall remove the unauthorised superstructure i.e. mtoor garages and servant quarters and urinel outside the main building erected by him in the premises in his occupation and to which objection has been raised by the Land and Development Office within one year of this decree i.e. by 31st July, 1958 In case the defendant fails to remove the unauthorised superstructures by the stipulated date the plaintiff shall be entitled to execute the decree for ejectment against the defendant at once. 5. That the acceptance of rent by the plaintiff during the period allowed for execution of the decree would nto create any fresh tenancy in favor of the defendant.'

It was on this application that a joint statement was made by the counsel for the landlord and the landlord's Mukhtiar and also by the tenant and his counsel. The statement was also signed by all. in this statement, it was affirmed that a decree for possession and arrears of rent be made, but it would be executed after 31st December, 1960

(4) NOW. as observed earlier, it was just about a fortnight before the expiry of the period of more than three years, during which the tenant had enjoyed the lull use of this property pursuant to his solemn agreement, that he preferred objections under section 47, Code of Civil Procedure. As the application itself shows, the tenant had himself unequivocally agreed that a decree for possession be passed on the ground of bona fide necessity for the residence of the landlord and the members of his family. The statement on oath was, in my opinion, sufficient material for the Court to feel satisfied about the existence of the conditions prescribed by the Rent Act. In Danpat Ram v Tara Singh, a learned Single Judge of the Punjab High Court obsi?rvfcd that an ejectment order passed on the basis of compromise can be enforced and executed because a party who has taken the benefit of a decree cannto turn round and prevent the toher party from taking the corresponding benefit that results under the decree to the toher party, and moreover, the executing Court cannto go behind the decree. Reference in this judgment was made to Sailendra Naravan v State of Orissa, which is an authority for the proposition that a consent order is as effective as an order passed on contest. Indeed, an earlier decision of the Punjab High Court in Amar Nath v Baggi Mal, holding that the executing Court cannto go behind a decree of ejectment pasted by a Court having jurisdiction on the ground that it is a nullity, because it has been passed only on the statement of the parties without the Court satisfying itself as to the existence of the statutory grounds, was also approvingly referred to and followed in Dhan pat Ram's case. The principle laid down in the Fu4 Bench decision of the East Punjab High Court in Pirji Safdar Ali v. The Ideal Bank Ltd., was the basis of this view. In the Full Bench decision, it was observed by Mahajan J. (as he then was) as follows :-

'IT is a well established rule of law that the executing Court is bound to execute the decree and cannto go behind it. The only exception to this rule is that when the decree is passed by a Court which had no jurisdiction to pass it, then by reason of the inherent defect of jurisdiction in the Court passing the decree the executing Court can ignore it but the executing Court cannto refuse to execute the decree bacause it is against law or contravenes any provisions of any statute.'

In Master Karam Chand v. Gurprit Singh, it was observed that it is a question to be decided in each case whether or nto an order of eviction based on compromise is in accordance with the provisions of the East Punjab Urban Rent Restriction Act. Such an order cannto, as a matter of law, be held to be inexecutable merely because it is based on compromise, for, in certain circumstances, admission by a tenant of relevant facts pleaded by the landlord might well by itself constitute very good evidence or legal material in proof of the landlord's allegations. The necessary presumption of legality of an order made by a judicial tribunal has to be displaced by the party seeking to assail its legality- The onus is somewhat heavier on a person who is a consenting party to that order and is, as a general rule, bound by it. in the absence of any material suggesting fundamental invalidity of the compromise, the order based thereon must be considered valid and enforceable; it must ordinarily be presumed that the Controller while passing the order satisfied himself that the order was in accordance with the provisions of section 13 of the East Punjab Urban Rent restriction Act In Rattan Lal v, Ram Nath, E.SA. 302 of 1965 decided on 20th March, 1967 (reported in 1967 P.LR. 38. a compromise arrived at on the date fixed for evidence was the basis of the order without any evidence being recorded and it was held that the order was executable and could nto be described as a nullity. The map, which was on the record there, was held to be good evidence on the point of the landlord's desire to reconstruct the premises for his own occupation. In Vas Dev Sharma v. Milkhi Rant Bhatia, it was observed that when a tenant agrees to an order of ejectment Realizing that the grounds alleged by the landlord are likely to result in an order of ejectment, the order passed in accordance with such a compromise is nto a nullity and can be executed. In Mrs. Savitri Ahuja v, Harbans Singh Mehta. in ejectment proceedings the tenant admitted the petition of the landlord and stated that an order of eviction on the ground of bona fide personal need he paused against him. The landlord agreed to this statement and an eviction order was accordingly passed. The tenant brought a suit for a declaration that the order of ejectment having been obtained by fraud should be declared void and inoperative. A division Bench of the Punjab High Court sitting on Circuit at Delhi, held that in face of the clear statements made by the parties, the order of the Rent Controller could nto be said to have been made in contravention of the statutory requirements As the tenant himself admitted the ground on which ejectment was sought, the Rent Controller could nto have passed any toher order but that of ejectment and the consent of the tenant did nto make any substantial difference in the result. The foregoing discussion quite clearly shows that the original order passed on compromise can by no means be held to be a nullity for, the Rent Controller had full jurisdiction over btoh the subject-matter of the dispute and the parties to the litigation. The statements made by the tenant, who is apparently a shrewed businessman of strong common sense knowing his own interest very wall and who was advised by a counsel of his own choice, must be considered prima facie to have rightly admitted the landlord's claim. There was undisputably no question of any fraud as there is no cogent material even suggesting it. The fact that be utilised practically the full period allowed to him to stay on the premises under the compromise, is also nto irrelevant for pinning him down to his solemn statement unambiguously conceding the landlord's claim to the order of eviction on ground of bona fide necessity for his residence. The decision in Shri K. L Bansal v. Smt. Kausalya Devi is of little avail to the present petitioner, for, that case is clearly distinguishable on facts. However, even there P. C. Pandit. J. actually observed in his brief separate ntoe that if the tenant clearly admits in the compromise that the landlord is entitled to possession on one of the statutory grounds, the Court can pass an order for ejectment if it is satisfied that the compromise is genuine and bona fide. The order before me even though based on compromise is accordingly executable and is nto tainted with any jurisdictional infirmity so as to render it a nullity or nonest.

(5) But this is nto all. Even the second point must be decided against the petitioner. When the objections to the executability of the order of ejectment were first raised, the same were gone into by the Court and on 17th January, 1902, they were dismissed on the merits. It may be recalled that an appeal was preferred against that order, but in the meantime, the tenant had also questioned th(r) original order of ejectment by collateral procedings in the term of a suit, in which fraud, undue influence and misrepresentation were urged in support of the challenge. These proceedings were also compromised in February, 1962.. The appeal was withdrawn and the suit terminated in a compromise whereby the premises were to be vacated by 31st December, 1982. The toher terms of the compromise do nto concern us as ntohing turns on them at this stage That order is, however, binding on the parties even though based on compromise. Before the expiry of the period allowed to the erstwhile tenant for handing over possession, the application out of which the present proceeding arise, was moved under sections 47 and 151, Code of Civil Procedure, on thi same grounds on which the previous objections had been raised. The petitioner's modus operandi for sticking to the premises is obvious. It is incontrovertible that this petitition is wholly incompetent and may well be described w an abase of the process of the Court. Whether the objections were similar to those raised earlier or they are new, the doctrine of rest judicate, which includes the principles of constructive rest judicate would seem clearly to be attracted to th^ case The decisions in Salendra Naravan Bhanja Dao v. The State of Orissa, and in Barjnath Prased v. Rampal. seem to go against the petitioner on this point.

(6) For all the foregoing reasons, it appears to me that the impugnned orders are unexceptionable and nto open to challenge in the present proceedings. It is pertinent also to observe that the power of revision even under section 35 of the Delhi Rent Act of 1952, however wide its scope is discretionary and if the order is substantially ]'ust, as I hold it is, then this Court may appropriately dsdine to interfere In the present case, I do nto find any impropriety or toher infirmity in the impugned orders Justifying interference on revision.

(7) The revision accordingly fails and is dismissed with costs.


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