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M.D. Oswal Hosiery (Regd.) Vs. Swami Krishna Nand Govinda Nandbhagwat Dham Ashram Trust - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberSecond Appeal No. 275 of 1980
Judge
Reported in21(1982)DLT174; ILR1982Delhi820
ActsDelhi Rent Control Act, 1958 - Sections 22 ; Code of Civil Procedure (CPC), 1908 - Sections 47
AppellantM.D. Oswal Hosiery (Regd.)
RespondentSwami Krishna Nand Govinda Nandbhagwat Dham Ashram Trust
Advocates: G.L. Sanghvi,; S.P. Pandey and ; Rekha Pandey, Advs
Cases ReferredIn S. B. Noronah vs. Prem Kumari Khanna
Excerpt:
(i) delhi rent control act - section 22--eviction can be claimed by a public institution for the furtherance of its activities not for starting such activities--the order of eviction based on a compromise is valid and enforceable if the tenant while entering into a compromise admitted the existence of facts which entitled the landlord to an order of eviction under the act.;(ii) civil procedure code - section 47--power of executing court to go behind decree.; the present second appeal has been filed against the dismissal of the appellant/tenant's objection who had claimed that the eviction order based on compromise between the parties was a nullity and as such not executable. allowing the appeal,; 1. in cases where an objection as to the non executability of the decree on he ground of its..........passed the order of eviction. his submission is that the respondent- landlord has never been a public institution and that respondent never claimed or required the suit premises for the furtherance of its activities. his next objection is that no opportunity was given to him to lead evidence in support of his objections, that the eviction order dated 24th march, 1973 was obtained by the respondent fraudulenty and unlawfully in collusion with the appellant's counsel, that the respondent landlord being a trust is not a legal entity. lastly he submits that the eviction order dated 24th march, 1973 was passed by mr. v. s. aggarwal as additional controller and the impugned order dated 16th may. 1980 was also paused by him acting as rent control tribunal. learned counsel for the.....
Judgment:

Sultan Singh, J.

(1) This second appeal under Section 39 of the Delhi Rent Control Act, 1958 (hereinafter referred to as 'the Act') is directed against the judgment and order of the Rent Control Tribunal dated 16th May, 1980 confirming the order of the Additional Controller dated 5th April, 1980 dismissing the objections of the appellant-tenant who claims that the eviction order dated 24th March, 1973 based on a compromise between the parties, is a nullity and as such not executable. The counsel submits that there was no satisfaction of the Controller for the passing of the order of eviction against the appellant under Section 22 of the Act, that no material was available on record on the basis of which the Controller could have passed the order of eviction. His submission is that the respondent- landlord has never been a public institution and that respondent never claimed or required the suit premises for the furtherance of its activities. His next objection is that no opportunity was given to him to lead evidence in support of his objections, that the eviction order dated 24th March, 1973 was obtained by the respondent fraudulenty and unlawfully in collusion with the appellant's counsel, that the respondent landlord being a trust is not a legal entity. Lastly he submits that the eviction order dated 24th March, 1973 was passed by Mr. V. S. Aggarwal as Additional Controller and the impugned order dated 16th May. 1980 was also paused by him acting as Rent Control Tribunal. Learned counsel for the respondent-landlord, on the other hand. submits that there was sufficient material before the Additional Controller for the passing of the order of eviction under Section 22 of the Act against the appellant that the executing court cannot go behind the eviction order, that there was neither any fraud nor collusion with the appellant's counsel in obtaining the order of eviction, that the respondent-landlord has been a society registered under the Societies Registration Act, 1860 and as such a legal entity to institute the eviction application. The facts leading up to the passing of the impugned order may now be stated.

(2) The appellant was a tenant in a portion of the ground floor of a house situate at Plot No. H-4, Model Town, Delhi. The property was purchased by the respondent on 23rd January, 1968. The appellant attorney to the respondent as a tenant. Other particulars or terms of tenancy are not necessary to be stated. On 19th October, 1972 the respondent filed a petition under Section 22 of the Act seeking eviction of the appellant. The ground of eviction pleaded in para 18(a) of the application reads as under :

'18(A) The petitioner is a public charitable Institution and is carrying on public charitable activities at Hardwar like charitable dispensary, Free Sanskrit Maha Vidayalaya, Free Public Library. Goshala and other like charitable activities since the year 1958. Now the trustees of petitioner in furtherance of its public charitable and religious activities want to start a public library, charitable dispensary and also a Satsang Bhavan in the said premises for the good of the general public. The building was purchased for the public charitable purposes'.

The appellant-tenant resisted the eviction application pleading that the eviction application was a counter-blast to the standard rent petition earlier filed by him, and that the petition under Section 22 of the Act was not maintainable. It was denied that the respondent was a public charitable institution within the meaning of Section 22 of the Act or it was carrying on public charitable activities'. It was also denied that the respondent for the furtherance of its activities wanted to start a public library, charitable dispensary or a Satsang Bhavan in the premises and that there were about 13 tenants in occupation of the entire building, The respondent in its rejoinder denied that it was not a public charitable institution or was not carrying on public charitable activities at Hardwar, that the eviction petition was filed bona fide to start public library, charitable dispensary, Satsang Bhawan for the good of the general public. This rejoinder was filed on 8th December, 1972 and the case was adjourned to 24th March, 1973 for evidence of the respondent-landlord. On 24th March, 1973 counsel for the appellant-tenant made the following statement: 'Statement of the respondent's counsel : I admit that applicant is a charitable public trust and bona fide require the premises for that purpose. Five years time to vacate be given. R.O. & A.C. sd/- V. P. Malik 24-3-73. Sd..00 V. S. Aggarwal A.R.C.'. 24-3-73 Counsel for the landlord stated that he had no objection. The Additional Controller on that date passed the order of eviction. The operative para 3 of the judgment reads as under :

'IN the written statement the ground of eviction were contested and today case was fixed for evidence. The respondent's learned counsel has admitted the ground of eviction and also the fact that applicant is a public charitable institution and for that purposes it requires the premises. From the statements of the parties and the pleadings I am satisfied that the applicant is, a public charitable trust and bona fide requires the premises for continuation of those purposes averred in the petition. thereforee, order of eviction is passed but as claimed by the respondent five year's time to vacate the premises is granted. Announced 24-3-73 Sd..00 V. S. Aggarwal Addl. Rent Controller : Delhi.'

(3) The tenant on 31st March, 1973 filed an application for review of the said order dated 24th March, 1973 alleging that the order was illegal, void, inoperative and without jnrisdiction on the ground that he never consented to such an order being passed, that his counsel had no authority in the eye of law to suffer a decree of eviction, that his counsel had exceeded his authority, that no ground of eviction was proved or shown for the passing of eviction order, that the Controller was not satisfied, that no material existed on the record for the passing of the eviction order and that there were errors apparent on the face of the record. The landlord denied the various allegations. This application was dismissed by Mr. V. S. Aggarwal, Additional Controller by order dated 10th October, 1973 holding that the counsel had the power to compromise, that there was material on record for the passing of the eviction order and that there was no ground for review of the order as there was no error apparent on the face of the record. The tenant on 4th March 1974 filed a petition under Article 227 of the Constitution of India [C.M. (M) No. 104 of 1974] challenging the said eviction order on the ground similar to the grounds taken by him in the said review application but the counsel on 22nd July, 1974 withdrew the petition.

(4) The tenant filed an appeal before the Rent Control Tribunal challenging the eviction order dated 24th March, 1973 but his appeal was dismissed on 5th September, 1977. It was held that the appeal was barred by time and there was no sufficient cause for the condensation of delay. The Tribunal, also went into the merits of the appeal and found that there was no substance. Before the expiry of period of five years granted to the appellant in terms of the eviction order, he filed objections on 21st February, 1978 against the execution of the eviction order. The landlord filed execution application on 7th April, 1978 and the tenant filed objections on 14th July, 1978. In brief the objections' are that the compromise order of eviction was a nullity and unenforceable, that the same was passed with out jurisdiction in contravention of Section 22 of the Act, that the landlord was not a public institution and it did not require the premises for the furtherance of any of its activities, that there was no satisfication of the Controller about the existence of the ground of eviction within the meaning of Section 22 of the Act, that the charitable trust was not included in Section 22 of the Act, the order was vitiated by fraud and collusion, that the landlord was a non-legal entity and the counsel had no authority to waive the statutory protection. In reply the landlord submitted that the objections were barred by principles of rest judicata and the eviction order was passed by the Controller after satisfaction of the ground available under Section 22 of the Act, that the executing court could not go behind the decree and that there was no fraud or collusion. The tenant in his objections had also alleged that his counsel Mr. Malik was corruptly engaged by the landlord in a number of its cases which facts was not specifically denied by the respondent. As already stated, the Rent Control Tribunal presided over by Mr. V. S. Aggarwal dismissed the objection of the tenant and hence this second appeal.

(5) The first question is: Whether the compromise order of eviction dated 24th March, 1973 is a nullity and as such not executable. In Bahadur Singh & another V. Muni Subrat Das & another : [1969]2SCR432 it has been observed that the decree for delivery of possession to the landlord based on award was a nullity and could not be enforced in execution, as the same was passed by the court without satisfying itself about the existence of ground of eviction. In Smt. Kaushalya Devi and others vs. K. L. Bansal, : [1969]2SCR1048 (2) it has been observed that the decree passed by court in ejectment suit in terms of compromise, without satisfying itself if the ground for eviction existed, is a nullity and cannot be executed. Again in Ferozi Lal Jain v. Man Mal and another, : AIR1970SC794 it has been observed that where the court has proceeded solely on the basis of compromise arrived at between the parties, the court was not competent to pass the decree and the same was held to be a nullity, In K. K. Chari vs. R. M. Seshadri, : [1973]3SCR691 (4) the court observed as follows :

'THE true position appears to be that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact viz. the existence of one or more of the conditions mentioned in Section 10 were shown to have existed when the court made the order. Satisfaction of the court, which is no doubt a pre-requisite for the order of eviction, need not be by the manifestation borne out by a judicial finding. If at some stage the court was called upon to apply its mind to the question and there was sufficient material before it, before the parties invited it to pass an order in terms of their agreement, it is possible to postulate that the court was satisfied about the grounds on which the order of eviction was based'.

In Nagindas Ramdas v. Dalpatram Iccharam alias Brijram and others, : [1974]2SCR544 (5) it has been observed that the rent court under the Act is not competent to pass a decree for possession either in invitum or with the consent of the parties on a ground which is de hors the Act or ultra virus the Act. It has, however, been observed that the consent decree for possession passed by the court is not necessarily a nullity. The court further observe, 'Be that as it may, in cases where an objection as to the non-executability of the decree on the ground of its being a nullity, is taken the Executing Court is not competent to go behind the decree, if the decree on the face of it, discloses some material on the basis of which, the Rent court could be satisfied with regard to the existence of a statutory ground for eviction. In such a case it must accept and execute the decree as it stands. If, on the face of it, the decree does not show the existence of such material or jurisdictional fact, the Executing court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial court's jurisdiction to pass the decree it did. The moment it finds that prima facie such material existed, its task is complete. It is not necessary for it to go further and question the presumption or expressed finding of the trial court on the basis of that material. All that it has to see is whether there was satisfied on consideration of the terms of the compromise as distinguished from must have-been satisfied as to the statutory ground for eviction'. In Roshan Lal and another vs. Madan Lal and others, : [1976]1SCR878 (6) the court observed, 'If the agreement or compromise for eviction of the tenant is found, on the facts, of a particular case, to be in violation of a particular Rent Restriction or Control Act, the court would refuse to record the compromise as it will not be a lawful agreement. If on the other hand, the court is satisfied on consideration of the terms of the compromise and, if necessary, by considering them in the context of the pleadings and other materials in the case, that the agreement is lawful, as in any other suit, so in an eviction suit, the court is bound to record the compromise and pass a decree in accordance therewith. Passing a decree for eviction on adjudication of the requisite facts or on their admission in a compromise, either express or implied, is not different.' In Suleman Noormohamed etc. vs. Umarbhai Janubhai, : [1978]3SCR387 (7) the Supreme Court again observed, 'that a compromise decree not in violation of the Rent Act was valid if the tenant has suffered the decree on any of the grounds available under Rent Act and there was abundant intrinsic material in the compromise itself to indicate that the decree was in accordance with the Rent Act'.

(6) In view of the above authorities it must be held that the order for eviction based on compromise is good and enforceable if the tenant while entering into a compromise admilted the existence of facts which entitled the landlord to an order of eviction under the Act. As observed by Supreme Court in Charits case (Supra) the legal position would be that where the order of eviction was passed on the consent of the parties that fact alone will not necessarily vitiate the order if the jurisdictional fact i.e. the existence of one or more of the conditions mentioned in the provision which entitled the landlord to seek eviction are shown to exist when the order for eviction is made. The satisfaction of the court need not necessarily be recited in the order. Thus in the instant case it has to be seen whether the eviction order dated 24th March, 1973 is based on sufficient material which would constitute a ground of eviction under Section 22 of the Act. Learned counsel for the respondent-landlord submits that there was sufficient material on record constituting the ground of eviction. On the other hand, the learned counsel for the appellant submits that there was no material on record to enable the Controller to pass an order of eviction. Section 22 of the Act relevant for the purposes of this appeal reads as under :

'S. 22: Where the landlord in respect of any premise is............................ any public institution and the premises are required................ in the case of a public institution, for the furtherance of its activities, then notwithstanding anything contained in Section 14, or any other law, the Controller may, on an application made to him in this behalf by such landlord, place the landlord in vacant possession of such premises by evicting the tenant and every other person who may be in occupation thereof, if the Controller is satisfied- (a) x x x x (b) x x x x (c) x x x x (d) that the premises are required bona fide by the public institution for the furtherance of its activities. Explanationn: For the purposes of this section, 'Public institution, includes any educational institution, library, hospital and charitable dispensary'.

The contention of the appellant's counsel is that respondent was never a public institution and that there was no plea that the landlord required the premises for the furtherance of its activities. His submission is that the landlord desired to start a public library, charitable dispensary, Satsang Bhavan in the suit premises.

(7) The respondent is a society registered under the Societies Registration Act, 1860. Initially it was a trust created under a registered deed dated 20th September, 1958 while it was registered as a society under the said Act on 19th June, 1971. A trust under the deed is different from a public institution within Section 22 of the Act. The trust deed no doubt brings into existence a charitable trust but the main dispute is whether the respondent is a public institution. In Corpus Jurisdiction Secundum Vol. 44, page 416 'Public Institution' has been denied as any organized activity created or established by law or public authority. In Civil Revision Case No. 413 of 1953 M/s. J. N. Singh & Co. vs. Sardari Mal etc. decided on 2nd December, 1955 by the Division Bench of the Circuit Bench of the Punjab High Court at Delhi it was held that if there was no public institution and there was no bona fide requirement of such an institution for the furtherance of its activities, Section 17(d) of the Delhi and Ajmer Rent Control Act, 1952 would not be applicable. Section 17 of 1952 Act was corresponding to Section 22 of the Rent Act of 1958. In Siya Ram Gupta vs. Smt. Ganga Devi Jain Dharmarth Trust, Delhi 1960 P. L. R. 904 it has been held that a charitable trust is not necessarily a 'public institution' within the meaning of, 17 of the Delhi & Ajmer Rent Control Act, 1952 and anybody which claims to be so must be clearly akin to the instance mentioned in the Explanationn to that Section. In that case there was a charitable trust but it was not a public institution and thereforee eviction was refused. In Messrs. Gulab Rai Kishori Lal vs. Shri Benarsidas Chandiwala Seva Smarak Trust, Delhi 1964 P. L. R. 731 it was observed that before a landlord can fake advantage of Section 17(d) of the Delhi and Ajmer Rent Control Act it must be an existing public institution and not an institution which wants to become a public: institution. It was also observed that in order to take advantage of that section a charitable trust must be of the nature mentioned in the Explanationn i.e. an educational institution, library, hospital or charitable dispensary. It was also held that it was not sufficient that the society should require the premises to start a hospital and library and in order to attract the provisions of the Section the landlord must already be a public institution and that the landlord must be running a hospital or a library for extending the scope of which it requires the premises in suit. Similar observations were made by this court in Birdhi Chand Jain Charitable Trust vs. Kanhaiya Lal Sham Lal, 2nd (1973) I Del 144. In the instant case nothing on record has been pointed out to show that respondent was created or established by law or by any public authority. There is only an allegation in para 18(a), 'the petitioner is a public charitable institution', but there is neither any admission by the appellant nor any other material on record to hold that respondent is a public institution. The appellant-tenant denied in his written statement that the landlord was a public charitable instituion. In his statement before the Controller, the appellant only admitted that the applicant was a charitable public trust. Thus it must be held that the landlord being not a public institution within the meaning of Section 22 of the Act was not entitled to an order of eviction under that Section. Moreover the plea of the landlord was that it wanted to start a public library, charitable dispensary and Satsang Bhavan in the premises. It is admitted that there is no such library, dispensary and Satsang Bhavan in any part of the suit premises. The section requires that the eviction can be claimed by the landlord i.e. a public institution for the furtherance of its activities and not for starting such activities in the premises. From the record it is manifest that besides the statement of the counsel for the appellant which has been reproduced above, there was nothing also on record on the basis of which it could have been said that the Controller was satisfied that the ground of eviction within the meaning of Section 22 of the Act was available to the respondent-landlord. In the written statement there was no admission. Whatever admission was there it was contained only in the statement of the counsel for the appellant quoted above. Thus it must be held that the conditions for the passing an order of eviction under Section 22 of the Act were not in existence and no material was available on record at the time when the order of eviction was passed by the Controller. Para 3 of the order of the Controller mentions that the tenant's counsel admitted the ground of eviction and the fact that the landlord was a public charitable institution. A reference to the statement of the counsel for the appellant however does not support this observation. Such an observation has not been supported on behalf of the respondent-landlord by any other material on record. It is thereforee held that the eviction order passed on the basis of the alleged compromise was not in accordance with law as no material was on record at that time when such an order was passed. In other words, the order of eviction must be held to be a nullity and not executable.

(8) Learned counsel for the appellant submits that objections raise disputed questions of fact and no opportunity was granted to him to substantiate the same by leading evidence. His submission is that he raised questions of fraud and collusion between his counsel and the respondent-landlord. The allegations of fraud and collusion have been denied on behalf of the landlord. In view of the fact that the compromise decree is a nullity it is not necessary to decide whether it was necessary for the Controller to afford an opportunity to the appellant to lead evidence in support of his objections. The appellant's consel next contends that the respondent-landlord is a trust and not a legal entity. In other words he means that all the trustees ought to have signed the eviction application and other proceedings. However, on record I find there is a certificate from the Registrar of Companies U. P. Lucknow showing that the respondent- landlord is a society under the Societies Registration Act, 1860 at S. No. 430/1971-72 and it was registered on 19th June, 1971. I, thereforee, do not find any substance in this objection. Lastly, learned counsel for the appellant submits that the eviction order was passed by Mr. V. S. Aggarwal acting as Additional Rent Controller on 24th March, 1973 and he decided his objections in execution on appeal as Rent Control Tribunal. His submission is that Mr. V. S. Aggarwal was not in a position to hold that the order of eviction passed by him was a nullity or that he was not satisfied that the ground of eviction was available. In short the argument of the learned counsel for the appellant is that Mr. V. S. Aggarwal was incompetent to decide his appeal against the order of the Controller dismissing his objection in execution as he himself had passed the order of eviction. There is substance in this objection. However, such an objection is immaterial in the present appeal as I am of the view that the eviction order based on compromise was a nullity. Learned counsel for the respondent also submits that the eviction order dated 24th March, 1973 was confirmed by the Rent Control Tribunal by dismissing the appellant's appeal on 5th September, 1977 and thereforee the present objections are bar- red by principles of rest judicata. It is correct that the eviction order was passed on 24th March. 1973 and appeal filed by the appellant was dismissed on 5th September, 1977 by the Rent Control Tribunal on the ground that the same was barred by time and also on the ground that there was no merit in the appeal. It was contended on behalf of the appellant that if an order of eviction was a nullity whether passed by the appellate or trial court such an objection can be raised in execution, and the executing court is competent to hold that the order was a nullity. In S. B. Noronah vs. Prem Kumari Khanna, : [1980]1SCR281 (11) which was a case under Section 21 of the Act, it was observed that it was open to the tenant to plead and prove that the sanction under Section 21 is invalid, and if it was void the executing court was not debarred from holding so. Learned counsel for the appellant contends that the Supreme Court in that case allowed the tenant to challenge the sanction under section 21 of the Act and similarly he submits that the appellant has a right to challenge in execution the compromise decree which was confirmed in appeal by the Rent Control Tribunal. In Kiran Singh and others vs. Chaman Paswan and others, : [1955]1SCR117 (12) the court observed

'IT is a fundamental principle well-established that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties.'

In the instant case the Controller had no jurisdiction to pass an order of eviction on a ground which was not available to the respondent under Section 22 of the Act. In other words, it must be held that the order of eviction passed by the Controller was without jurisdiction and as such it was a nullity and its invalidity can be raised in execution proceedings as has been done in the present case.

(9) The Tribunal on the facts of the case has thereforee gone wrong in holding that the order of eviction was not a nullity. I, thereforee, accept the appeal and set aside the impugned order dated 16th May, 1980 of the Rent Control Tribunal. The objections filed by the appellant are accepted and it is held that the eviction order dated 24th March, 1973 based on compromise and confirmed on appeal on 5th September, 1977 is a nullity and not executable. Parties are however left to bear their own costs.


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