J.B. Mehta, J.
1. These two matters arise out of execution of two eviction decrees which this landlady got against her two concerned tenants on January 10, 1966, in the two suits Nos. 17/65 and No. 18/65 respectively'. The C.R.A. relates to the tenant Bhrambhatt Parsottam Motisinh against whom suit No. 17/65 was filed by this landlady on the ground also of arrears of rent from November 1, 1962 to December 31, 1964 and on the common ground of personal requirement for her son-in-law who was residing with her and the suit premises were necessary for extending his coal business which was carried on by him. The tenants in both the suits had disputed the landlord's claim by riling a written statement and they were represented by some lawyer. The landlord was represented by Mr. Khatri. Before evidence was recorded the parties filed compromise purshis in identical terms. In the first Clause in that compromise Purshis, it is stated that the plaintiff's suit was admitted. It may be noted that this term is not specifically mentioned in the consent decree which has been actually passed in both the suits. Before passing the consent decree which is in identical terms, the learned trial Judge had on the same day January 10, 1966, recorded a small order as under:
Advocate Shri Khatri on behalf of the plaintiff and defendant in person admits the terms of the compromise. Hence decree be drawn accordingly. The amount of costs deposited by the defendants to be refunded to him or to his pleader and the amount of arrears of rent to be paid to the plaintiff or his pleader. Half of the Court fees paid by the plaintiff on the plaint be refunded to him or his pleader.
The consent decree in Clause (1) states that the suit premises would be delivered to the landlady by the defendant on January 31, 1971 and if the defendant failed to deliver possession, the landlady could get possession by the assistance of the Court. Under Clause (2) it was specified that the amount of mesne profits till January 15, 1966 which had been deposited by the defendant shall be taken by the plaintiff. The third Clause provided that the defendant would have to pay to the landlady a sum of Rs. 15/- per month as damages for use and occupation from 15-1-66 together with municipal taxes. The fourth Clause mentioned that whatever sum was deposited in addition to the rent shall be paid to the defendant and each side was to bear its own costs. After the aforesaid period given to the two tenants by this identical consent decree in each case, the landlady filed two execution applications. In one matter, the executing Court allowed the application under Section 47 of the Code on the ground that the consent decree was a nullity. But in appeal the appellate Court held that the decree was not a nullity but it remanded the matter for consideration of other issues raised before the Executing Court and that is why that opponent has filed Appeal from Order before this Court. In the second matter, both the Courts took the view that treating the plaint and decree in the light of an application under Section 47, the decree was a valid decree and, therefore, against that decision the tenant Bhrambhatt Purshottam has filed the present revision application. As both the matters raise identical questions, they are disposed of by this common order.
2. A bare perusal of the consent purshis and the order recorded by the trial Court discloses that both the defendants had admitted the claim made in the suit and had agreed to the consent terms on the basis of which the consent decree was passed. The order further reveals that on the plaintiff side advocate Mr. Khatri was present while the defendant in person had admitted the terms of the compromise. Even though the consent decree does not specifically mention the first term of the compromise purshis that the suit claim of the plaintiff was admitted that term has been admitted before the Trial Judge. The only material question is as to what is the effect of that admission in the light of the allegations made in the plaint. So far as the ground of arrears was concerned, even though Mr. J.V. Desai vehemently argued that in case of the tenant Bhrambhatt Purshottam the rent was in arrears of 26 months and, therefore, at the date of the decree the tenant had lost all protection and it was only ex-gratia that he was given that relief, there is nothing to substantiate that contention. The consent terms categorically state that the above rent had been deposited till January 15, 1966, and even the cost of the suit which was paid by the tenant had to be refunded to him and the landlord had foregone the cost. Therefore, even in that case the suit was really decreed only on the ground of bona fide personal requirement, under Section 13(1)(g), and not on the ground of the tenant being in arrears of rent. In the other suit Maneklal was in arrears only for two months November 1, 1964 to December 31, 1964 and, therefore, he also having deposited all the rent there was no question raised of his eviction on the ground of arrears of rent. Therefore, the whole dispute between the parties has to be resolved on the footing that the consent decree has been passed on the ground of bona fide personal requirement on the basis of the admission of the said claim by these tenants.
3. The legal position in this connection is now well settled. In K.K. Chari v. R.M. Sheshadri : 3SCR691 , their Lordships categorically laid down at page 1319 that a consent decree for eviction under the Rent Act would be a nullity if it has been passed solely on the basis of a compromise arrived at between the parties. The order of the Court passed on the consent terms did not show on its face that the Court had expressed its satisfaction that the requirement of the landlord was bona fide. If the Court had expressed its satisfaction in the order itself, that would conclude the matter. That the Court was so satisfied could also be considered from the point of view whether a stage had been reached in the proceedings for the Court to apply its mind to the relevant question. Other materials on record could also be taken into account to find out if the Court was so satisfied. At page 1320 their Lordships pointed out the true legal position that an order of eviction passed on consent of parties was 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 was 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 was possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based. Their Lordships, however, pointed out that before making an order for possession, the Court was under a duty to satisfy itself as to the truth of the landlord's claim if there was a dispute between a landlord and a tenant. But if the tenant in fact admitted that the landlord was entitled to possession on one or other of the statutory grounds mentioned in the Act, it was open to the Court to act on that admission and make an order for possession in favour of the landlord without further enquiry. Each case would have to be examined to find out whether there was any material to justify an interference that an admission, express or implied, had been made by the tenant about the existence of one or other of the statutory grounds. The case before their Lordships was under the Tamil Nadu Buildings (Lease and Rent Control) Act-Section 10(3)(a)(i) where the rent Controller had only to be satisfied of the landlord's bona fide personal requirement. In that context their Lordships observed that if the evidence was led and there was no cross-examination by the tenant and on the contrary, he entered into a compromise withdrawing his defence and submitted to the decree for eviction unconditionally, his withdrawal of the defence after the plaintiff had given evidence and filed Exhibits in support of its plea would mean that the tenant accepted as true the claim of the landlord that he required the premises for his personal occupation. He had accepted the position that the landlord had made out the statutory requirement, entitling him to ask for possession of the premises. Under the circumstances, the tenant had accepted the plea of the landlord which made it futile that the Rent Controller must again embark upon an enquiry regarding the requirement of the landlord being bona fide and adjudicate upon the same. That is why it was held that on the facts of that case there remained no dispute between the landlord and tenant which the rent controller could possibly adjudicate before passing the consent decree. At page 1320 their Lordships have pointed out that the plea about the decree being void and as such not executable could always be raised before the Executing Court. Their Lordships pointed out that it was needless to observe that the Executing Court would have to adjudicate upon that plea and for that purpose relevant material would have to be considered. Therefore, there was no unsurmountable difficulty for an Executing Court to consider whether a particular eviction decree was void as being contrary to the relevant Section of the statute governing the matter. Further, His Lordship Alagiriswami, J. in the concurring judgment pointed out that such consent decrees can be passed on so long as it was not inconsistent with the provisions of the Act. The Punjab decision in Vas Dav v. Milkhi Ram A.I.R. 1960 Pun. 514 was found to be almost on identical facts and was referred to at page 1325. It was in terms pointed out from that decision that enough material and evidence had come on the record to satisfy the Court as well as the tenant that the grounds on which ejectment had been sought would be ultimately established and when the tenant entered into a compromise so it was implicit in the aforesaid circumstances that he was admitting the correctness of the grounds which had been taken for his ejectment. Therefore, such an eviction order based on a compromise where the landlord had asked for possession on any one of the grounds provided in the Act on the basis of which he could ask for possession would be valid. Therefore, the real test laid down by their Lordships is that every case will have to be examined to find out whether the eviction decree is solely on the basis of the compromise decree or whether the Court has been satisfied as to the relevant mandatory requirement before passing such a consent decree. It may be noted that that in this decision. Their Lordships had not to consider the other relevant fetter which arises in Rent Act, similar to our Bombay Act, where there is a further fetter on the power of the Rent Court where a decree is sought to be passed on the ground of bona fide persona requirement that the conditions precedent specified in Section 13(2) shall be fulfilled. In such cases, in order to find out whether this was a forbidden decree in view of the mandate given to Rent Court by the statute this further requirement would also have to be inquired on the facts of each individual case. In Rasiklal Chunilal v. Shantilal 12 G.L.R. 1012, speaking for the Division Bench, I had exhaustively considered this question as to when a consent decree was forbidden decree under the Rent Act so that such objection about nullity could be raised in execution. I had pointed out that the Rent Act having given protection to the tenant on the wider grounds of public policy, this statutory protection could not be waived by the tenant and that is why the Rent Court could not ignore the mandatory terms of the statute and make a consent order without statutory inquiry or investigation, simply because the tenant appeared in the Court and said that he consented to the order. At page 1022, I pointed out that a forbidden consent decree in violation of the statutory protection created by the relevant Rent Act would be only those consent orders which were inconsistent with such Act or which were in other words forbidden eviction decrees as they resulted solely on the basis of compromise between the parties, ignoring the fetter placed by the legislature on the full jurisdiction of the Rent Court. At page 1023 I had further pointed out that in such cases possession has to be ordered not only on one or other of the statutory grounds as the tenant cannot waive such statutory protection by agreement, but the Court has further to see that even further mandatory conditions required by the Act were satisfied before passing the eviction decree. I had also pointed out at page 1025 the settled distinction between a mere illegality and a nullity. If the Court wrongly held that it was satisfied as to the existence of the relevant ground under the Rent Act, it could not be said to be committing an error involving or pertaining to its jurisdiction. It would only be giving a wrong decision remaining within its mandated area. Such a decision could be challenged only in appeal or revision, but it could not be challenged in a collateral proceedings because the Court had not gone outside its ambit or had done something which the legislature had forbidden it. It is only when the Court passed a forbidden decree by going outside its ambit of jurisdiction by passing a decree de hors the Rent Act or which is ultra vires the Rent Act on a ground which is not one of the grounds under the Rent Act, or by ignoring a mandatory fetter, that the decree would lack inherent jurisdiction of such a Rent Court. In such a case it would be immaterial whether it is a consent decree or a decree in invitum and the decree would be a nullity because it is a forbidden decree. Therefore, it was pointed out at page 1026 that as per the settled legal position in such rent restriction statute where there was a fetter created on the jurisdiction of the Rent Court not to evict a tenant unless it was satisfied as to the existence of one or other ground under the Act, the decree of eviction is treated as a nullity only if it is passed without any foundation for the jurisdiction of the Rent Court or by ignoring or violating the said mandate of the legislature. If, however, the Court said that it had been satisfied on the relevant grounds, it clearly remained within its ambit of jurisdiction as the legislature has created that particular forum and conferred power on it to decide whether a particular ground under the Rent Act was made out before passing the order of eviction. In such cases even if the Rent Court was wrongly satisfied as to the existence of the relevant ground under the Act before ordering eviction, this order could not be questioned in a collateral proceeding. It would necessarily follow that in such cases this order could not be challenged as a nullity even before the executing Court because the Court, having not gone out of the mandated area and having remained within its area of jurisdiction, had merely committed an error in the exercise of jurisdiction, which could be challenged only in appeal, or revision and not by collateral attack. Therefore, this decision makes it clear that such a consent decree would be a forbidden decree as being founded solely on the consent of the parties if it is inconsistent with the mandatory terms of the Rent Act or the Rent Court ignores any of the mandatory fetters before passing the eviction decree. In case of a ground of bona fide personal requirement, Rent Court even in invitum can never pass its eviction decree merely on being satisfied that the landlord had proved his bona fide and reasonable personal requirement of the suit premises. It would have to go into the next question as to the ground of comparative hardship as required by mandatory terms of Section 13(2) and it is only when the Court was satisfied that greater hardship would result to the landlord that the eviction decree could be passed. Therefore, in cases arising under the Bombay Rent Act when the ground of eviction is bona fide and personal requirement under Section 13(1)(g), while judging the validity of a consent decree this additional fetter under Section 13(2) will have to be borne in mind, because if that fetter is ignored, it would again be a forbidden decree even though the decree proceeds on a relevant ground under the Rent Act. Mr. J.V. Desai in this connection vehemently relied upon my observations at page 1032-1033 where this ratio was applied by us to the facts of that particular case. It was found that the plaintiff was careful enough to file a suit on two grounds of personal requirement and arrears of rent. The arrears were not paid at the time of written statement or even at the date of the first hearing when the issues were settled and even Clause (2) of the consent terms was that the balance amount was paid only on the date of the consent decree. Besides, the consent decree categorically mentioned that the defendant was granted ex-gratia some time only to give him relief and from that date relationship of landlord and tenant between the parties had been brought to an end. The tenant was represented by a lawyer who had gone through all the facts and had admitted the plaintiff's claim which was based on these two relevant grounds under the Act. We, therefore, found that there was ample material before the Court in the shape of admission of the parties who knew about their true legal position and in such circumstances when tenant admitted the plaintiff's claim as wholly justified or in to and only ex-gratia accommodation was given to him by not executing decree for some time, the consent decree was not a forbidden decree. While referring to the contention that the admission was as to bona fide requirement and the issue of greater hardship had not been gone into, it was pointed out at page 1033 that proof of these facts would be necessary only when the parties had disputed the relevant facts. If the tenant admitted relevant fact, and in fact admitted claim of the landlord in toto and only wanted ex-gratia relief for decree being not executed for some time, there was no dispute on the facts of the case as regards both the relevant issues as to the bona fide and reasonable requirement and also as to the question of greater hardship. Therefore, this decision was on the particular facts of that case and on the contrary it categorically lays down that the admission must to be categorical to show that there is no dispute as regards both these factors of bona fide and reasonable requirement of the landlord and as to the question of greater hardship. On the facts of that particular case, the finding no doubt was that there was no dispute as regards both the facts but in every case the finding has to be arrived at by the Executing Court before holding that this is not a forbidden decree. That is why in the next decision in Letters Patent Appeal No. 66 of 1969 B.K. Mehta J. speaking for both of us in the decision, dated September 24, 1971, categorically relied on these observations and held that where the factum of comparative hardship was clearly in dispute between the parties, it was incumbent upon the Court to satisfy itself under Section 13(2) of the Rent Restriction Act that the tenant would not be put to a greater hardship in case a decree was passed in terms of compromise said to have been arrived at between the parties. It was further pointed out that the trial Court had in terms found that the tenant would be put to greater hardship if the decree for eviction was passed as the landlord was in possession of a spacious building and was not under a threat of eviction. It was also said in the consent terms that alternative accommodation was not available at the relevant time and, therefore, time-limit was agreed and it was held that the factum of comparative hardship was clearly in dispute between the parties on the face of those consent terms. Therefore, the consent decree could not be passed for eviction without the Court going into statutory questions as required by Section 13(2). In S.A. No. 544 of 1971 decided on August 18, 1972, our learned brother Dave J. has followed the aforesaid decision in the same context where such time was given and the Rent Court had not gone into the question of comparative hardship at all. Such a consent decree was, therefore, held to be a nullity which could not be executed.
4. We should bear in mind the relevant decisions of this Court as regards this relevant fetter created by the legislature in Section 13(2). In Kastrubhai v. Mohanlal 9 G.L.R. 729 at page 738, I had pointed out the settled legal position as to how this question of comparative hardship has to be appreciated. The most important factor as envisaged by the legislature was whether other reasonable accommodation was available for the landlord or for the tenant. The Court would have to put in the scale all the relevant circumstances which would tilt the balance of hardship including the financial position, both of the landlord and the tenant, the financial means available to them for securing alternative accommodation either by purchase or by hiring one, the nature and the extent of the business or their requirement of residential accommodation, as the case may be, and the hardship that would be caused not only to their family members, dependents or persons residing with them as one unit, so that the hardship of those persons would really amount to the hardship of the landlord or the tenant. The whole process of weighing the hardship is a delicate process where various factors would have to be thrown into the scales and the Court has to examine how each factor tilts the balance on either side and thereafter it has to find out the balance of hardship. Once this question is determined, the Court would have to find out the resultant hardship on this statutory balance-sheet. Thereafter, the second part of Section 13(2) comes into play which is enacted in our Act. Even though the words, 'no hardship' are used, in the context of a partial decree, they must mean no resultant hardship, because the partial decree would deprive the tenant of some part of his premises and would require the landlord also to be satisfied with only a part. What the legislature intends is a just balance being struck between the landlord and the tenant, so that when this factor is put in the scale, the Court would be satisfied that the scale will not be tilted on either side. It is only when such a just solution could be found, which causes no resultant hardship either to the tenant or to the landlord, that the Court could pass partial decree. But if even this partial decree still tilts the balance and swings it on the side of the landlord, then, the Court would have no jurisdiction to refuse to pass the decree for the entire suit premises. Thus, three contingencies were pointed out. If the balance tilts on the side of the landlord so that there was greater hardship left to the landlord as a result of the statutory balance-sheet of hardship, the landlord must get the entire decree. If, however, resultant balance of hardship in the balance-sheet was nil in the sense that there is a just balance and the scale swings on neither side, then the case is one of a partial decree. It is only when greater hardship is on the side of the tenant and balance on the scale tilts in his favour that the decree would be refused. I also pointed out the settled legal position as per the earlier decision of this Court that when a partial decree solution was offered, the parties should be given an opportunity to lead evidence as they could not have anticipated such solution being offered by the Court. It was also pointed out that at first the Court must answer the question that there was some resultant hardship either on the side c/f the tenant or of the landlord and thereafter the second question could arise as to the solution of a partial decree which resulted into no resultant hardship to either parties by achieving just balance. The observations about onus of proof being on the tenant as to greater hardship get slightly modified in view of the decision of their Lordships in C.A. No. 1175 of 1969 decided on April 23, 1969. When their Lordships dealt with the corresponding Section of the Mysore Rent Control Act, 1961, Their Lordships pointed out that the whole object of the Act was to provide for the control of rents and evictions, etc., and Section 21 enumerated the grounds which alone would entitle a landlord to evict his tenant. Clause (h) of Section 21 contained one of such grounds, namely, that the premises were reasonably and bona fide required by the landlord for occupation by himself. The onus of proof of this was certainly on the landlord. Their Lordships, however, saw no sufficient reason for holding that once that onus was discharged by the landlord, it shifted to the tenant making it obligatory on him to show that greater hardship would be caused to him by passing the decree than by refusing to pass it. Their Lordships also pointed out that the Court must consider the entire evidence before coming to the conclusion that the tenant could not complain of a greater hardship to him without being obsessed by the question of onus. That the why the matter was remanded to the High Court to consider this specific fetter created by the legislature after giving parties an opportunity to adduce further evidence. Therefore, merely because the tenant admits that the landlord's requirement is reasonable and bona fide personal requirement for his own occupation, that does not entitle the Rent Court to pass eviction decree so far as the Bombay Rent Act is concerned. There would be an additional requirement to be satisfied on, the ground of comparative hardship and it is only when this question is duly considered by the Court as required by Section 13(2) after giving proper opportunity to both the parties to lead necessary evidence thereon that an eviction decree can be passed against the tenant, if the resultant hardship was greater to the landlord and partial decree was not satisfactory solution so as to achieve a just balance.
5. Mr. J.V. Desai in this context further argued that when time-limit was given to vacate the suit premises, it was obvious that the parties and the Courts had considered the question of greater hardship. In Ranchhodlal v. Natvarlal 9 G.L.R. 920, our learned brother M.U. Shah J. had considered the various decisions of this Court and pointed out that the finding on the question of greater hardship if it was based on mere, consideration of time being a mitigating factor could not be accepted as concluding the question of the availability of reasonable accommodation. Reasonable accommodation to be considered for the purpose would be the accommodation that would be available in present and not in future. In order to decide the question of balance, the Court must consider the relevant question of balance of comparative hardship under the imperative provision of Section 13(2). If, therefore, the plaintiff in his plaint had alleged not only that she required the suit premises bona fide and reasonably for this personal requirement of expansion of business of her son-in-law, and had further alleged that greater hardship on account of the circumstances alleged would result to her if the decree was refused, and if the tenant had admitted the suit claim, it can be urged that the claim in toto having been admitted, there was no dispute as regards both the grounds of personal requirement and comparative hardship. In such a case consent decree would not be solely on the basis of the agreement, and would not be a forbidden decree. If, however, as in the case like the present one, the allegation m the plaint was only as regards the first ground of bona fide reasonable requirement of the landlord which has only been admitted by the tenant under the consent terms, further enquiry of the Rent Court as contemplated by Section 13(2) can never be dispensed with by these consent terms. The Court would be ignoring this mandatory fetter if it passed such consent decree of eviction without giving parties an opportunity to lead necessary evidence on this delicate question. The facts in the present case are too eloquent. The landlady has as many as five rooms and two tenants had about three rooms each. The tenant Maneklal was both residing and doing business in the suit premises. The other tenant Bhrambhatt Purshottam was homeopathic practitioner. The two suits at that time were not consolidated and the landlady got independent eviction decrees in each suit without the Court being told that the landlady's requirement, if any, on the ground of so called son-in-law's business being expanded would be most by eviction decree only against one tenant. The mandatory duty laid down in Section 13(2) would invest the Court with the necessary power to consolidate such suits so that all the tenants may not be evicted and only eviction would be ordered to the extent that the landlord's requirement would be justly met. Therefore, this was a case which on the face of it was such that without going into this essential consideration of balance of comparative hardship no eviction decree could be ordered by the Court, Therefore, the eviction decree was forbidden decree passed solely on the basis of the consent of the independent tenant in each case.
6. Therefore, it must be held that the consent decree, on the particular facts in each case, was a nullity as it violated mandatory fetter laid down by Section 13(2) of the Act and was to that extent ultra vires the Rent Act. In that view of the matter, the decree being inexecutable, the objection application should have been allowed by the Executing Court by refusing to execute this consent decree. In that view of the matter both the C.R.A. as well as the A.O, in question must be allowed by setting aside the appellate decree or order in each case and by dismissing the execution application of this landlady in both the cases. Rule is accordingly made absolute in the C.R.A. A.O. is accordingly allowed. There shall be no order as to costs all throughout in both the matters in the circumstances of the case. Therefore, no order is necessary on the two CAs. for additional evidence being tendered.