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A.W. BenjamIn Vs. Raj Kishan Jain - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 222 of 1970
Judge
Reported in8(1972)DLT123
ActsCode of Civil Procedure (CPC), 1908 - Order 23, Rule 3; Delhi Rent Control Act, 1958 - Sections 14(1)
AppellantA.W. Benjamin
RespondentRaj Kishan Jain
Advocates: Y. Dayal,; K.L. Methi,; Iqbal Krishan and;
Cases ReferredSilver Screen Enterprises v. Devki Nandan
Excerpt:
.....compromise related to grant of time for vacating premises would not be termed as a compromise for decree of eviction and thereforee, the appeal would be dismissed - - - from the admission of the respondent and the material available on the record i am satisfied that the ground of personal requirement taken by the petitioner really exists. this objection was repelled by the additional controller and the appeal against the sums failed before the tribunal. (5) aggrieved by the sad order the tenant has filed this appeal and the learned counsel has submitted the following contentions. 2. the admission of the tenant on the record was not with regard to existences of the ground of eviction but was really an invitation to pass an order for eviction and as such it did not travel beyond the..........with other incidental reliefs and costs. the tenant filed a written-statement contesting the ground of eviction and he urged that the landlord did not need the premises in dispute bona fide for his residence but he wanted to sell the' property and at any event he had sufficient accommodation available for ins residence. replication to the written-statement was filed and the case proceeded to trial. on february 28, 1967 the landlord examined one witness, a medical practitioner who deposed about the number of the members of the family of the landlord, the availability of the accommodation with him and its insufficiency and also to the fact that the landlord and his wife had been ailing. the witness was cross-examined for sometime at length but the cross-examination was reserved and.....
Judgment:

B.C. Misra, J.

(1) This second appeal from order has been filed under Section 39 of the Delhi Rent Control Act real with Section 47 of the Code of Civil Procedure by the tenant against the appellate order of the Control Tribunal dated December 3, 1970bywhich he dismissed the appeal and affirmed the order of the Rent Controller dated June 10, 1970 dismissing the objections of the tenant against execution of the order for eviction which had been passed against him.

(2) The brief facts of the case are that the appellant before me is the tenant while the respondent is the landlord and owner of the premises in dispute. On September 24, 1966 the landlord filed a petition for eviction of the tenant on the ground of bona fide personal necessity mentioned in clause (e) of the proviso to sub-section (i) of section 14 of the Delhi Rent Control Act 59 of 1958 (hereinafter to be referred to as the Act). In paragraph 18 of the petition, the landlord had specified the ingredients of clause (e) of the Act while in paragraph 20 he had claimed an order for eviction with other incidental reliefs and costs. The tenant filed a written-statement contesting the ground of eviction and he urged that the landlord did not need the premises in dispute bona fide for his residence but he wanted to sell the' property and at any event he had sufficient accommodation available for Ins residence. Replication to the written-statement was filed and the case proceeded to trial. On February 28, 1967 the landlord examined one witness, a medical practitioner who deposed about the number of the members of the family of the landlord, the availability of the accommodation with him and its insufficiency and also to the fact that the landlord and his wife had been ailing. The witness was cross-examined for sometime at length but the cross-examination was reserved and was directed to continue on April 3, 1967 when owing to the absence of the witness it was adjourned to May 25, 1967. On the said date, the tenant, Benjumin made the following statement :-

'...Iadmit the claim of the petitioner (landlord herein). I may be given 3 years from today to vacate the premises.'

This statement was accepted on behalf of the landlord in the following words:-

'I have heard the above statement, I agree to and accept the same.

(3) The tenant thereafter wrote in his own hand that he would vacate the premises described in the statement after 3 years from the date. There are supplementary statements by the parties which are not in dispute before me and they relate to payment of future rent by way of damages for use and occupation and an agreement not to sublet or part with the possession oft] e premises. In view of the said statements and the state of records, the Controller passed an or ler on Miy 25, 1967 which !s reproduced in full in he order of the Tribunal under appeal and the material I extract of which reads as follows:-

'From the admission of the respondent and the material available on the record I am satisfied that the ground of personal requirement taken by the petitioner really exists. The petitioner has agreed not to execute the order ejectment for period of 3 years from today-Order for recovery of possession is passed in favor of the petitioner against the respondent which will not be executable till May 26, 1970. The parties shall bear their own costs'.

(4) After the expiry of the said period, the landlord on May 27, 1970 moved an application for execution of the order for eviction ani delivery of, possession which was resisted by the tenant by his objections dated May 29, 1970 filed under Section 47 and Section 151 of the Code of Civil Procedure. The main ground of objection is that the order for eviction is based on compromise and the same had been passed without jurisdiction and is a nullity and so inexecutable. This objection was repelled by the Additional Controller and the appeal against the sums failed before the Tribunal.

(5) Aggrieved by the sad order the tenant has filed this appeal and the learned counsel has submitted the following contentions.

1.The order for eviction is based on compromise and so is without jurisdiction and a nullity. 2. The admission of the tenant on the record was not with regard to existences of the ground oF eviction but was really an invitation to pass an order for eviction and as such it did not travel beyond the domain of contract and the Controller had, thereforee, no material before him to be satisfied about the existence of the ground of eviction. 3. The satisfaction of the court passing a decree for eviction which was required under the Rent Act of 1952 was still necessary under the Act of 1958 and the order for eviction which has been passed without such satisfaction is void and inexecutable. 4. The Controller was a tribunal of limited jurisdiction and so, in view of the authority of Honourable Mr. Justice Tatachari reported in 1969 Rent Control Journal 364, Order 23 Rule 3 of the Code of Civil Procedure did not apply to the proceedings before him and the or 'er sought to be executed is, thereforee, void.

(6) The learned counsel in support of his contentions has relied upon to judgment of the Supreme Court Ferozi Lal Jaini vs. Man Mal and another and Kawhalaya Devi v. K. L. Bansal.

(7) In Ferozi Lal Jain's case the facts were that the landlord instituted a suit for eviction against the tenant on the ground of unlawful sub-letting mentioned inclaude (b) of the proviso to sub-section (1) of Section 13 of the Delhi Rent Control Act, 1952. The tenant denied the sublease and urged that there was an agreement of partnership. During the trial of the suit, the parties entered into a compromise which did not make any reference to.the alleged sub-lease and the Court passed an order to the effect that as compromise decree for eviction and rent was passed in favor of the plaintiff against the defendant. The execution of this decree was successfully resisted by the tenant on the ground that the same was nullity is the court had in breach of the language employed in Section 13 of the Act not recorder its satisfaction with regard to the ground of eviction. In view of the said f?cts Hegde J. speaking for the Supreme Court observed that the jurisdiction of the Court to piss a decree for reovery of possession depended upon its satisfaction that one or more of the grounds of eviction mentioned in the statute had been proved and so the decree on mere compromise was a nullity. The court further observed : 'From the facts mentioned earlier, it is seen that at no stage the court was called upon to apply its mind whether the alleged subletting is true of not. Order made by it does not show that it was Satisfied that the subletting has taken place, not is there any other material on record to show that it was so satisfied. It is clear from the record that the Court had proceeded solely on the basis of the compromise arrived at between the parties. Hence the Court was not competent to pass the impugned decree which must be held to bs a nullity.

(8) The same view had been expressed by the Supreme Court in the earlier case of Kaushlya Devi v. K. L. Bansal which had come up on appeal from the High Court of Punjab, in 1962 Punjab Law Reporter 1091 and it has also been expressed in Bahadar Singh v. Muni Subrat Dass

(9) The facts in the case before me are, however, entirely different. Firstly, the satisfaction of the Controller with regard to the ground of eviction is expressly mentioned on the face of his order. Secondly, the order recites that the source of the Controller's satisfaction was the admission of the respondent as well as the material available on the record. These facts are enough to take this case out of the purview of the rule of law laid down by the Suprema Court in the afore-mentioned case. But. on the record I find that the appellant-tenant has expressly admitted the claim of the landlord. This in my opinion constitutes sufficient material for the Controller to legally record his satisfaction and adding As observed by the Supreme Court in Narayan Bnagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others' 'An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawal or proved erroneous. '' No infirmity can, thereforee, be found with the impugned order for eviction. Besides, the controller had based his order for eviction also on the material on record. The counsel for the appellant has urged. that the statement of the witness examined by the landlord could constitute sufficient material for the finding of the Controller but the present statement was not admissible, since cross-examination of the witness had not been concluded. Assuming the contention of the tenant to be correct the order would suffer only front an irregularity or an error of law which could not brand the order as without jurisdiction or a nullity and the same could, thereforee, not be ignored by the execution Court. Had the tenant felt aggrieve I by that order, his remedy lay in taking an appeal against the same, where the appellate Court could scrutinise the existence, legality and validity of the material on which the finding of the Controller was based but the execution Court has to take the decree and order in its tenor and cannot tear the veil of the order and scrutinise the legality and validity of sufficiency of the material which, forms the basis of the impugned decree or order.

(10) The Supreme Court in Vasdev Dhanjibhai Modi v. Rajabhai Abdul Rehman and others', has laid down the limits of the jurisdiction of the execution court to go behind the decree. It is observed in this authority that a Court executing a decree cannot go behind the decree between the parties or their representatives it must take the decree accord' ing to its tenor and cannot entertain any objection that the decree was incorrect in law or on facts and until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous, is still binding between the parties. The Court further observed that when the decree is made by the Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record ; where the objection to the jurisdiction of the Court to pass the decree as does not appsear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will lave no jurisdiction to entertain an object lion as to the validity of the decree even on the ground of absence of jurisdiction. An interesting illustration of the working of tho rule came up for consideration before the the Supreme Court in Ittyavira Matha v. Varkey and another, where a decree was sought to be challenge I as without jurisdiction on the ground that a time barred suit ha I been decreed. The Court repelled the contention and observer that if the suit was barred by time and yet the Court decreed it, the Court would be committing an illegality and thereforee, the aggrieved party would be entitle j to have the decree set aside by preferring an appeal against it, but a Court having jurisdiction over the subject matter of the suit and over the parties thereto, though bound to decide right may decide wrong, and that even though it decided wrong it would not be doing something which it had no jurisdiction to do, and merely because it made an error in deciding a vital issue in the suit, it cannot be said that it ha I acted beyond its jurisdiction. So, where the Court fails to do its duty in dismissing the time-barred suit, it merely makes an error of law and an error of law can be corrected only in the manner prescribed by law and if the party aggrieved does not take appropriate steps to have that, error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.

(11) Applying the said principles to the facts of this case, I find that the execution court had no jurisdiction to go behind the impugned order for eviction and the appellant cannot persuade it to examine and record a finding that the admission of the respondent made before the Controller was incorrect or that the material on record, on which the Controller had relied, was not legal, relevant or sufficient. The impugned, order for eviction is neither without jurisdiction nor a nullity and it was the duty of the execution Court to reject tie objections of the appellant and execute the order which was not based merely on compromise. The first contention of the appellant fails.

(12) The second contention of the appellant does not have any force. When the tenant made a statement before the Controller admitting the claim of the landlord, he, by necessary- implication, admitted the ground for eviction and thereby provided legal material for the Court to record its satisfication. I do not accept the argument of the counsel for the tenant that by this admission, he had only invited the Controller to pass an order for eviction without, admitting the existence of the ground of eviction.

(13) .IN view of my aforesaid finding, it is really not necessary to consider the remaining contentions raised on behalf of the tenant-appellant, but in order to complete the record, I would notice argeuments. In answer to the third contention of the appellant, the counsel for the respondent has relied upon two authorities of this Court, namely Muhammad Isrhaq vs. Mst. Jannat Bi and the other Ram Singh vs. Shri Mati Lap. Both these authorities have dealt with the provisions.of section 14 of the Act of 1968 and they have observed that the words 'that the court would be satisfied with regard to ground of eviction' which occurred in section 13 of the Act of 1952 and which came up for consideration before the Supreme Court in Ferazi Lal's case have been deliberately omitted by the Legislature an I so satisfaction is required, only under those provisions where it is expressly so specified, for example in sub-section (8) of section 14 of the Act dealing with the ground of eviction mentioned in clause (g). The counsel for the appellant has urged V at the said authorities require reconsideration and that the true state of law is that under the Act of 1958, the Controller still needs Is to be satisfied about the grounds of eviction. The argument, however, need not be pursued any further since in any view of the muter, the impugned order for eviction in this case is unassailable as it does express the satisfaction oF the Controller on the face of the record The third contention of the appellant, thereforee, fails.

(14) In support of the last contention, the learned counsel for the tenant-appellant has relied upon a judgment of Tatachari, J. reported as Springdals School and others vs. Mrs. Sati Tahilramin, where his lordship was dealing with an appeal from an order of the Controller refusing to record a compromise under order xxiii, Rule 3 of the Code of Civil Procedure and his lordship found that no compromise existed in fact and that the appeal against the order refuting to record the compromise was not competent under Order x111 since appeals under the Rent Act were provided for by sections 38 and 39 of the Act. In this connection his lordship observe'' that Order, xxiii, Rule 3 of the Code of Civil Procedure did not apply to proceedings before the Controller. The learned counsel for the respondet.laidlord has urged that the said authority requires re-consideration and that the observations of the learned judge that Order xxiii, Rule 3 does not at all apply to proceedings before the Controller are not correct in view of the provisions contained in section 37 of the Rm Act of 1958 which have attracted the procedure prescribed for Small Cause Courts embracing within it the provisions of Order xxiii Rul3 3 which has not been excepted from governing the suits before the Small Cause Courts by either Order L or section 7 of the Code. The counsel for the landlord also urged that the Supreme Court has in M',s Silver Screen Enterprises v. Devki Nandan, reversed the order of the High Court refusing to ait an the compromise arrived in respect of eviction proceeding before the Controller under the East Punjab Rent rest friction Act and the Supreme Court thereby impliedly held that the provisions of Order xxiii Rule 3 apply to eviction proceedings. The counsel has also relied upon a judgment of this Court in Bhagat Ramv. Dwarka Prasad, where the provisions of Order 23, Rule land sub-rules (1), (2) and (3) have been held as applicable to eviction proceedings before the Controller. It is, however, not necessary for me to pursue the submission any further as as in the instant case, no compromise had been recorded under Order xxiii, Rule 3 of the Code. The order for eviction is, as mentioned above, based on the a mission of the tenant and the material on record which I find was legally sufficient for the Controller to record his satisfaction and finding. The compromise if any between the parties related to the granting of time for vacating the premises and extending it from the prescribe I six months under sub-section (7) oF section 14 to three years. The extension of time for vacating the premises can scarcely be called a compromise for the purpose of an order or decree for eviction. Consequently, I repel the last contention the appellant-tenant.

(15) As a result of the discussion, I find that the Tribunal and the Controller below were justified in rejecting the objection of the tenant and in holding that the order for eviction was perfectly valid and executable. The appeal, thereforee, fails and is dismissed with costs. The Counsel's fee is fixed at Rs. 100.00.


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