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Hakim Kabir Ahmed Vs. Smt. Bhanwari Bai - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revn. No. 55 of 1978
Judge
Reported inAIR1978Raj173; 1978(11)WLN123
ActsRajasthan Premises (Control) of Rent and Eviction) Act, 1950 - Sections - Sections 13(1) and 14(2); Code of Civil Procedure (CPC) , 1908 - Sections 47
AppellantHakim Kabir Ahmed
RespondentSmt. Bhanwari Bai
Appellant Advocate B.M. Singhvi, Adv.
Respondent Advocate S.K. Mal Lodha, Adv.
DispositionRevision dismissed
Cases ReferredSupreme Court Nagindas v. Dalpatram
Excerpt:
.....(control of rent & eviction) act, 1950 - sections 13(1)(h) & 14(2)--comparative greater hardship--supreme court determining issue of comparative hardship while passing decree--held, objection to non-executability of decree was lightly rejected.;that the supreme court was satisfied that the premises in question were required reasonably and bonafide by the landlord for her use or occupation and further that greater hardship would be caused to the landlord by refusing to pass the decree for eviction.;the objection of the petitioner relating to non-executability of the decree on the ground of its being a nullity was not tenable and rightly over ruled by the court below.;(b) rajasthan pre mists (control of rent and eviction) act, 1950 - sections 13 (1)(h) & 14 (2)--party's..........after the amount mentioned above was deposited by the respondent, the appellant would vacate the shop in question and hand over the possession of the same to the respondent without any obstruction. 6. the terms adverted to above of the compromise clearly indicate that the supreme court had prima facie gone into the question of comparative hardship between the landlord and the tenant before giving its decision on the appeal filed before it by the petitioner and was prima facie satisfied upon material before it that greater hardship would be caused to the landlord, i. e. respondent by refusing to pass the decree. it is undoubtedly true that the supreme court decided the appeal upholding the decree for eviction on the basis of a compromise between the parties but the supreme court appears.....
Judgment:
ORDER

Kalyan Dutta, J.

1. This is an application in-revision filed by Hakim Kabir Ahmed against an order of the Additional Munsiff No. 1, Jodhpur, City, dated 31st Jan., 1978, whereby objections of the petitioner under Section 47, Civil Procedure Code relating to execution of the decree for his eviction from the suit premises were dismissed and the decree was held to be executable.

2. The relevant facts giving rise to this revision-application may be briefly stated as follows:--

Mst. Bhanwari Bai instituted a suit for eviction against Hakim Kabir Ahmed from her shop in the court of the Munsiff, Jodhpur City, on the ground that the premises were required reasonably and bona fide by her for the use or occupation of herself. The learned Munsiff decreed the suit for eviction against the petitioner. On 1st and 2nd appeals by the petitioner, the judgment, and decree passed by the learned Munsiff were upheld and confirmed. The petitioner then preferred an appeal in the Supreme Court of India against the judgment and decree of the High Court. The appeal was admitted for hearing by the Supreme Court. Later on, in the course of arguments of the appeal before the Supreme Court, the parties thereto amicably settled their dispute and prayed to the Supreme Court for decision of the appeal in accordance with the terms of the settlement. The Supreme Court was pleased to pass an order on 17th Nov., 1976, which is set out below in extenso:-- 'At the hearing of these appeals there has been a settlement between the parties and it has been agreed that the respondent would not execute the orders for ejectment of appellants till three months from today. It has also been agreed that the respondent would deposit in each of the three cases in the trial court Rupees 3,000/-, reduced by the amount of arrears of rent due from the appellant in question within one month from today. The appellants undertake in that event to vacate the shops in their respective possession immediately on the expiry of three months from today. The appellants would be entitled to withdraw the amounts deposited by the respondent in their respective cases immediately after vacating the shops. If the respondent fails to deposit in any of these cases the amount of Rs. 3000/-, reduced by the amount of arrears of rent due from the appellant in that case, the said appellant would not be bound to vacate the shop in his occupation within three months from today, but would be entitled to vacate it immediately after two months of the intimation of the deposit of that amount in the trial Court. The appellant in that event would also after vacating the shop be entitled to withdraw that amount from the trial Court. An undertaking is given on behalf of the appellants that after the amounts mentioned above are deposited by the respondent, the appellants would vacate the shops in question and hand over the possession thereof to the respondent without any obstruction. The appeals are disposed of in the above terms. The parties shall bear their own costs throughout.'

After the decision given by the Supreme Court, the decree-holder non-petitioner proceeded to execute her decree in the lower court, i. e. the court of the Munsiff, Jodhpur City, Hakim Kabir Ahmed judgment-debtor raised an objection to the execution of the decree on the ground that the provisions of Section 14 (2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter referred to as the Act, as amended by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance of 1975 (now Amending Act No. 14 of 1976) which have retrospective effect from 29th September, 1975, prohibited passing of decrees for eviction on the ground set forth in Clause (h) of Sub-section (1) of Section 13 of the Act, unless the Court was satisfied that greater hardship would be caused by passing the decree for eviction than by refusing to pass it. The above objection to the execution of the decree was based on the change in law that had occurred during the pendency of the appeal before the Supreme Court. The petitioner's contention in the lower court was that prior to the Amendment Ordinance of 1975, if the landlord required the premises reasonably and bona fide for the use and occupation of himself or his family, he could obtain a decree for eviction of the tenant, but, after coming into force of the Amendment Ordinance and now the Amending Act (14 of 1976), the Court is required to further examine the question of comparative greater hardship between the landlord and the tenant before passing a decree for eviction. According to the petitioner, the Supreme Court gave its decision on his appeal as per terms of the settlement between the parties without examining the question of comparative greater hardship between the landlord and the tenant and so the decree for eviction, being a nullity, is not executable. The learned Munsiff overruled the above objection by his order dated 31st January, 1978 after hearing the learned counsel for the parties. As against this order, petitioner has come up in revision to this Court as stated above.

3. I have carefully gone through the record and heard the learned counsel for the parties. It has been contended before me by the learned counsel for the petitioner that the Supreme Court had proceeded alone on the basis of the compromise entered into by the parties before it without satisfying itself as to the existence of the ground of eviction mentioned in Clause (h) of. Section 13 (1) read with Sub-section (2) of Section 14 of the Act as amended by Ordinance of 1975 (now Act No. 14 of 1976) and, therefore, the decree sought to be executed against the petitioner must be declared to be a nullity. In support of his above contention, the learned counsel for the petitioner placed reliance on Ferozi Lal v. Man Mal. AIR 1970 SC 794; Kaushalya Devi v. K.L. Bonsai, AIR 1970 SC 838; K.K. Chari v. R.M. Sheshadri AIR 1973 SC 1311, Roshan Lal v. Madan Lal, AIR 1975 SC 2130, Smt. Nai Bahu v. Lala Ramnara-yan, AIR 1978 SC 227 and Rahrnan v. Ram Chand, AIR 1978 SC 413. The learned counsel for the non-petitioner, on the other hand, urged that the order of the Supreme Court based on the compromise of the parties is not void, because before passing an order in terms of the agreement of the parties the Supreme Court satisfied itself about the existence of the ground on which the ground of eviction was based and it acted on the admission of the petitioner and decided the appeal in favour of Bhanwari Bai upholding the decrees for eviction passed by the courts below. In support of his above contention, the learned counsel for the non-petitioner relied upon Nagindasv. Dalpatram, AIR 1974 SC 471; P. Raju v. Bala Krishna, AIR 1978 Mad 62 and Muni Lal v. Prescribed Authority, AIR 1978 SC 29.

4. I have carefully gone through the rulings cited before me and considered the rival contentions. It is not disputed before me that the change in law has occurred during the pendency of the appeal before the Supreme Court. The provisions of Section 14 (2) of the Act so amended by the Amendment Ordinance of 1975 (now the Amending Act No. 14 of 1976) have retrospective effect and govern pending suits as also the pending appeals based on the ground under Section 13 (1) (h) of the Act. The amended Section 14 (2) of the Act prohibits passing of decree for eviction on the ground of reasonable bona fide requirement of the premises by the landlord for the use or occupation of himself or his family, unless the question of comparative hardship between the landlord and tenant is gone into and the court is satisfied that greater hardship would be caused by passing the decree than by refusing to pass it. Hence the question that arises for determination in this revision-petition is whether the question of comparative greater hardship between the landlord and the tenant was gone into by the Supreme Court before deciding the appeal filed before it by the petitioner against the decree and judgment of the High Court evicting the petitioner from the premises in question.

5. Before dealing with this question, I may refer to the terms of the compromise agreed to by the parties before the Supreme Court. The terms are embodied in the order of the Supreme Court itself, which are as follows:--

(l) the order for ejectment of the appellant would not be executed by the respondent till 3 months from 17th Nov. 1976;

(2) the respondent, i. e. Bhanwari Bai would deposit Rs. 3000/-, in the trial court minus the amount of arrears of rent due from the appellant within one month from 17th November 1976;

(3) the appellant undertakes in that event to vacate the shop in his possession immediately on the expiry of three months from 17th Nov. 1976;

(4) the appellant would be entitled to withdraw the amount deposited by the respondent immediately after vacating the shop;

(5) if the respondent fails to deposit the amount of Rs. 3000/-, minus the amount of arrears due from the appellant, in that case the appellant will not be bound to vacate the shop in his occupation within three months from 17th Nov. 1976 but will be entitled to vacate it immediately after two months of the intimation of the deposit of the amount in the trial court and will be entitled to withdraw that amount from the trial Court;

(6) an undertaking was given on behalf of the appellant that after the amount mentioned above was deposited by the respondent, the appellant would vacate the shop in question and hand over the possession of the same to the respondent without any obstruction.

6. The terms adverted to above of the compromise clearly indicate that the Supreme Court had prima facie gone into the question of comparative hardship between the landlord and the tenant before giving its decision on the appeal filed before it by the petitioner and was prima facie satisfied upon material before it that greater hardship would be caused to the landlord, i. e. respondent by refusing to pass the decree. It is undoubtedly true that the Supreme Court decided the appeal upholding the decree for eviction on the basis of a compromise between the parties but the Supreme Court appears to have applied its mind to the question of comparative hardship between landlord and the tenant on the basis of express or implied admissions made in the compromise itself. The reason for arriving at the above conclusion is that the Supreme Court granted the appellant-petitioner three months' time to surrender vacant possession of the shop to the landlord Bhanwari Bai because the Supreme Court considered that it would cause hardship to him if he is evicted outright from the premises. Apart from this, it was ordered that Bhanwari Bai respondent would deposit Rs. 3000/-, minus the amount of arrears of rent due from the petitioner appellant within one month and the appellant would be entitled to withdraw that amount immediately after vacating the shop. Again by incorporating this term of settlement into its order, the Supreme Court considered that it would be a hardship for the appellant if he was ejected outright and no amount is given to him to enable him to run his business elsewhere. From a bare perusal of the terms of the settlement embodied in the order of the Supreme Court, it appears that the petitioner admitted that Bhanwari Bai was entitled to possession of the shop on the statutory ground of her bona fide and reasonable requirement and that no hardship would be caused to him if three months' time was given to him for vacating the shop and if the landlord deposited a sum of Rs. 3000/-, in the trial court within one month for giving it to him immediately after vacating the shop. The Supreme Court acted on the above admission and decided the appeal accordingly in favour of Bhanwari Bai. Hence, there are grounds for presuming that the Supreme Court was satisfied that the premises in question were required reasonably and bona fide by the landlord for her use or occupation and further that greater hardship would be caused to the landlord by refusing to pass the decree for eviction. A party is bound by his own admissions and the satisfaction of the Court, which is a condition precedent for the order of eviction under Clause (h) of Sub-section (1) of Section 13 read with Sub-section (2) of Section 14 of the Act as amended by the Amendment Ordinance (now Act No. 14 of 1976), can be based on it. Reference in this connection may be made to the authority of the Supreme Court Nagindas v. Dalpatram (AIR 1074 SC 471) (supra) wherein their Lordships were pleased to make the following relevant observations on this point in para 26 at pages 476 and 477 :--

'From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.'

Consequently, the objection of the petitioner relating to non-executability of the decree on the ground of its being a nullity was not tenable and was rightly overruled by the court below.

7. The revision-petition has no force and is hereby dismissed. As the revision-petition is disposed of on a point of law, the parties shall bear their own costs of this revision-petition.


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