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Jagjivan Singh Vs. Sitaram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtRajasthan High Court
Decided On
Case NumberSecond Appeal No. 28 of 1951
Judge
Reported inAIR1954Raj43
ActsRajasthan Premises (Control of Rent and Eviction) Act, 1950 - Sections 13 and 26; Marwar House Rent Control Act, 1949 - Sections 11; Code of Civil Procedure (CPC) , 1908 - Sections 11
AppellantJagjivan Singh
RespondentSitaram
Appellant Advocate Magraj and; Kistoormal, Advs.
Respondent Advocate Makhtoormal, Adv.
DispositionAppeal allowed
Cases ReferredSahabuddin v. Mohan Lal
Excerpt:
.....section, therefore, clearly casts a duty on the executing court, before it proceeds to execute a decree passed before the act came into force, to see that, one or the other of the conditions mentioned in section 13 is satisfied. if the question, whether any of the conditions mentioned in section 13 exists, was agitated in the trial court and decided in favour of the landlord, the executing court will, on the principle of 'res judicata',accept that decision 'inter partes' and be satisfied that decree could be executed. it may well have been thought by the present state while enacting this law that the same principle should apply in the matter of eviction all over rajasthan and, therefore, this provision was mads under section 26 even in cases of decrees passed before this act came into..........(control of rent and eviction) act, 1950 (act no. 17 of 195d) was not in force; but the marwar house rent control act, 1949 was in force. when the period of ten months came to end, the decree-holder sitaram applied for execution of the decree by ejectment. thereupon an objection was taken by the judgment-debtor jagjivan singh that the decree was not executable and reliance was placed on section 26 of the rajasthan act. it seems that that section, was not mentioned in the application of objection; but the case for the judgment-debtor rested both in the first court and before the lower appellate court on section 26. both the courts have held that the decree was executable. hence this second appeal.3. the main question that arises for determination now is the scope and extent of section.....
Judgment:

Wanchoo, C.J.

1. This is an appeal by Jagjivan Singh, judgment-debtor, in execution proceedings and arises in the following circumstances:

2. Sitaram, decree-holder, brought a suit for ejectment of Jagjivan Singh from a house of which Jagjivan Singh was a tenant. The ground on which the ejectment was prayed was that arrears of rent were due and the house was required by the landlord for his own personal use. The suit was dismissed by the trial Court so far as the prayer for ejectment was concerned. Thereupon there was an appeal to the Additional District Judge and a compromise was arrived at between the parties. On the basis of this compromise, Jagjivan Singh agreed to hand over possession of the house within ten months and a decree was passed accordingly on 30-9-1950.

At that time, the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (Act No. 17 of 195D) was not in force; but the Marwar House Rent Control Act, 1949 was in force. When the period of ten months came to end, the decree-holder Sitaram applied for execution of the decree by ejectment. Thereupon an objection was taken by the judgment-debtor Jagjivan Singh that the decree was not executable and reliance was placed on Section 26 of the Rajasthan Act. It seems that that section, was not mentioned in the application of objection; but the case for the judgment-debtor rested both in the first Court and before the lower appellate Court on Section 26. Both the Courts have held that the decree was executable. Hence this second appeal.

3. The main question that arises for determination now is the scope and extent of Section 26, Rajasthan Premises (Control of Bent and Eviction) Act, 1950 (Act 17 of 1950). That section reads as follows:

'No decree for the eviction of a tenant from any premises in areas to which this Act extends for the time being, passed before the date of commencement of this Act, shall in so far as it relates to the eviction of such tenant be executed against him as long as this Act remains in force therein, except on any of the grounds mentioned in Section 13 and under the circumstances specified in this Act.'

4. The contention on behalf of the appellant is that it was the duty of the executing Court to see whether any of the grounds mentioned in Section 13 existed before putting this decree, which had been passed before the Act came into force in December 1950, into execution. Leaving out the unnecessary words, the section would read like this.

'No decree for the eviction of a tenant from any premises..... shall..... be executed against him..... except on any of the grounds mentioned in Section 13.....'

The section, therefore, clearly casts a duty on the executing Court, before it proceeds to execute a decree passed before the Act came into force, to see that, one or the other of the conditions mentioned in Section 13 is satisfied. It was urged on behalf of the respondent that if the executing Court has to see to this, it will create a rather curious situation and the executing Court may come to a conclusion which might be different from that to which trial Court had come on any of the conditions mentioned in Section 13. I do not think, however, that there would be any conflict between the trial Court and the executing Court on this point.

Under Section 26 it would be for the executing Court to satisfy itself that one or the other of the conditions mentioned in Section 26 is present before it executes any decree passed before the Act came into force. It can satisfy itself on this point in one of two ways. If the question, whether any of the conditions mentioned in Section 13 exists, was agitated in the trial Court and decided in favour of the landlord, the executing Court will, on the principle of 'res judicata', accept that decision 'inter partes' and be satisfied that decree could be executed. If on the other hand, no such question under Section 13 was raised or if any such question was raised but never decided, it would be for the executing Court to decide that question for itself.

The reason for this provision under Section 26 appears quite obvious. This Act applies to the entire State of Rajasthan as it now exists and repeals earlier laws on the subjects in the Covenanting States. It may well have been thought by the present State while enacting this law that the same principle should apply in the matter of eviction all over Rajasthan and, therefore, this provision was mads under Section 26 even in cases of decrees passed before this Act came into force.

I am, therefore, of opinion that it is the duty of the executing Court to satisfy itself under Section 26 that one or the other of the conditions mentioned in Section 13 is satisfied before it executes the decree passed before the Act came into force. I am fortified in this view by a decision of Seth J. in -- 'Chand Shankar v. Sukh Lal', AIR 1951 All 383 (A) where also Section 14 of the U. P. Act which was almost exactly similar in words was interpreted in the same way.

5. Learned counsel for respondent then urges that in this case the first method, which I have pointed out should be applied and the principle of 'res judicata' is clearly applicable as it has been decided 'inter partes' that the house was needed by the landlord for his own use which is the condition mentioned in Section 13 (h). It is further urged that even though it was a compromise decree, it must be held that by implication the Court decided that the landlord needed the house for his own use.

It is not necessary for the purpose of decision of this question to enter into a discussion as to how far compromise decrees can be the basis of 'res judicata'. There is no doubt that any matters which are directly decided by compromise decrees, the principle of res judicata would apply and parties and their successors in interest would be bound, vide -- 'Bhaishanber Nanabhoy v. Morarji Keshavji & Co.', 36 Bom 283 (B). It may also be that in certain cases inferences by necessary implication may arise on account of the passing of consent decrees and give rise to application of the principle of 'res judicata'.

The argument on behalf of the respondent is that in this case necessary implication arises from the fact that the decree was passed in his favour, namely that the house was needed by the landlord for his own use. If that were so, there might be a case for the application of the principle of 'res judicata'. The learned District Judge seems to have though that this was so. But a perusal of the provisions of the Marwar House Rent Control Act, 1949, which was in force when this decree was passed, shows that no such necessary implication can arise in this case.

Under Section ll(d), Marwar House Rent Control Act, 1949, it was open to the Court to pass a decree for ejectment of a tenant for any other reasons which the Court might consider sufficient. There was no mention in the compromise which was filed that the tenant admitted that the landlord needed the house for his own use. The Court was, however, entitled to pass a decree even though there was no admission of this point which had been raised by the landlord and which had been decided against him by the trial Court, for Section 11 (d) obviously empowered it to treat the consent of the tenant to ejectment as any other reason sufficient for the purposes of eviction.

Therefore, when the consent decree was passed on 30-9-1950, there was no necessary implication by the mere passing of that decree that the tenant admitted that the landlord needed the house for his own use. In this connection, I may refer to -- 'Manick Char.dra v. Hari Pada', AIR 1949 Cal 151 (G). That is a case about the Calcutta House Rent Control Order. It seems that in that order also there was a provision similar to Section 11 (d), Marwar House Rent Control Act, 1949, entitling the Court to pass a decree if the landlord showed any cause which the Court considered satisfactory. It was held that under that provision if the tenant agreed by compromise that a decree for ejectment be passed, the Court was entitled to pass a decree. But that would not necessarily show that a decree was passed on account of any other ground that might have been raised but not decided in the case.

I am, therefore, of opinion that though one of the grounds which now appears in Section 13 (h) was raised in this case in the trial Court, it was never decided finally and the decree that was passed in the appellate Court on compromise does not necessarily lead to the inference that this point was decided in favour of the landlord. Therefore, this is not a case where the executing Court is to accept the decision of the trial Court on the principle of 'res judicata'. The executing Court will have in this case to decide for itself whether any of the grounds mentioned in Section 13 exist.

6. The last point that was urged on behalf of the respondent was that inasmuch as the judgment-debtor had agreed to leave the house by a certain date, he should be held bound by that agreement even though later on the law might have been changed. Reliance has been placed on two cases in this connection. The first is -- 'Raja Chetty v. Jagannathadas', AIR 1950 Mad 284 (D). That was also a case under the Madras Buildings (Lease and Rent Control) Act. It provided among other things that there should be arrears for at least two months before a tenant could be ejected for arrears of rent. In a particular lease, the period was, however, fixed at more than two months. It was then held that in view of the provision under the lease, the landlord could not take advantage of the period of two months fixed by the Act on the ground that

'every one has a right to waive and to agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy.'

Obviously, the law was made for the protection of tenants though it gave a certain advantage to the landlord also. It was held that the landlord could waive that advantage and give more protection to the tenant and that would not be against public right or public policy. That case, therefore, hag no application to the facts of this case. Here it is the tenant who is supposed to give up the protection which the law gave him. It would be against public policy to permit him to do. The next case is -- 'Sahabuddin v. Mohan Lal', AIR 1951 All 227 (E). That was also a case under the U. P. Control of Rent and Eviction Act. The learned Chief Justice at the end of the judgment remarked as follows:

'It was open to a tenant to forego the protection given under the Act and to agree to vacate the premises on a fixed date. In the case before me the tenant entered into a compromise and he agreed to vacate the premises on 7-5-1947. The decree of the Court is based on this compromise. I do not see how the provisions of the Act can invalidate the consent decree.'

7. It may be mentioned that, earlier, the learned Chief Justice had decided that the case was covered by the provisions of the Rent Control Act and the tenant could be ejected. It was, therefore, not necessary for him to make these remarks. With all due respect to the learned Chief Justice, I feel that he has not considered the question whether it would be consistent with public policy for tenants to agree to decrees which are not covered by the provisions of the law and whether it will be possible for the Courts at all to pass a decree which is not covered by the provisions of the law.

So far as Rajasthan is concerned, the duty is cast on the Court under Section 13 not to pass a decree for ejectment unless it is satisfied that one or the ;pther of the conditions mentioned in that section is satisfied. In the face of that provision, it would, in my opinion, not be open to a Court to pass a decree for ejectment merely because the parties agree that a decree be so passed. Of course, if a tenant does not want to continue in the house, he can always leave it and then it would be unnecessary for the parties to go to Court.

But short of that, if the parties come to Court, the Court is bound to see whether one or the other of the conditions under Section 13 is satisfied. An agreement of parties is not one such condition. It may also be mentioned that the agreement in the present case was arrived at before the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 came into force, and if the new Act has given any benefit to the tenant, there is no reason why he should not be allowed to get it.

8. I, therefore, allow the appeal, set aside theorder of the Court below and send the case backto the executing Court to satisfy itself whether oneor the other of the conditions under Section 13 of theRajasthan Act exist or not and thereafter proceedto decide the matter as provided under Section 26 ofthe Act. The appellant will get his costs of thisCourt and the lower appellate Court from therespondent irrespective of the final result. Thecosts of the executing Court will abide the event.


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