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Sushil Chandra Sur and ors. Vs. Smt. Sadhana Bakobi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtKolkata High Court
Decided On
Case NumberF.M.A. Nos. 926-928 of 1975
Judge
Reported inAIR1982Cal417,1982(2)CHN739,86CWN739
ActsCode of Civil Procedure (CPC) , 1908 - Section 47; ;West Bengal Premises Tenancy Act, 1956 - Section 13(1)
AppellantSushil Chandra Sur and ors.
RespondentSmt. Sadhana Bakobi and anr.
Appellant AdvocateB.C. Datta and ;G.N. Chandra, Advs.
Respondent AdvocateSudhin Das Gupta and ;R.S. Mishra, Advs.
DispositionAppeals dismissed
Cases ReferredCourt (see Nagindas v. Dalpatram
Excerpt:
- .....the registrar of the court, on being placed before the bench the court passed orders decreeing the suits on compromise and further directing the sole name to form part of the decrees. in the suit in which leave to compromise on behalf of the minor was filed, there was a further order granting the leave as the terms appeared to be legal.5. all these 3 suits were thus disposed of on compromise on different dates in 1965. admittedly the plaintiffs subsequently served notices on the defendants requiring them to vacate and they not having vacated applications for recovery of posssesion by execution of the decree were filed. they are ejectment execution cases nos . 445 of 1972. 219 of 1972 and 235 of 1972. the defendants on being served with notices under order 21, rule 22 of the code, entered.....
Judgment:

B.C. Chakrabarti, J.

1. These three appeals are directed against a common judgment dated Aug. 24, 1974 by which three miscellaneous cases, arising out of three objections under Section 47, C. P. Code were disposed of.

2. Facts are not very much in dispute. The appellants instituted three ejectment suits in the City Civil Court, Calcutta for eviction of the respondents from different portions, of premises No. 125, Canning Street, now known as 125, Biplabi Rash Behari Road, Calcutta, which the respondents held as tenants under the plaintiff-appellants. They are Ejectment Suits Nos. 1129/65, 1130/65 and 1138/65, The grounds upon which the claims for eviction were founded were default in the payment of rent and reasonable requirement of the landlord for purposes of building and rebuilding. There was an additional ground in suit No. 1129/65 namely that the tenant had illegally and unauthorisedly sublet portions of the tenanted premises. All the three suits were decreed on compromise shortly after the defendants entered appearance. They did not file any written statements. The terms of the compromise were identical in all the cases and the material part of it runs as follows:--

'1. That the above suit be decreed with costs by consent of parties on the following terms and conditions:--

(a) That the defendant will vacate the suit premises within one month from the receipt of the notice from the plaintiffs,

(b) That the defendant will pay up all arrears of rent, if any, within one monthfrom the date and current damages to the plaintiffs, month by month within the fifteenth of the following month at the existing rate of rent.

(c) That if the defendant fails to vacate the suit premises after receipt of the notice from the plaintiffs as mentioned in Clause (a) above or fails to pay up all arrears of rent and current damages within the period mentioned in Clause (b) above, the plaintiffs will have the liberty to execute the decree and take possession of the suit premises through court.

(d)' That the plaintiffs will have the liberty to withdraw all monies from court deposited in the above suit to their credit,'

3. In one of the suits there was a minor defendant and permission was sought for entering into compromise on behalf of the minor defendant.

4. These compromise petitions which were filed before the Registrar of the court, on being placed before the Bench the court passed orders decreeing the suits on compromise and further directing the sole name to form part of the decrees. In the suit in which leave to compromise on behalf of the minor was filed, there was a further order granting the leave as the terms appeared to be legal.

5. All these 3 suits were thus disposed of on compromise on different dates in 1965. Admittedly the plaintiffs subsequently served notices on the defendants requiring them to vacate and they not having vacated applications for recovery of posssesion by execution of the decree were filed. They are Ejectment Execution Cases Nos . 445 of 1972. 219 of 1972 and 235 of 1972. The defendants on being served with notices under Order 21, Rule 22 of the Code, entered appearance and filed separate objections under Section 47 which were registered as Misc. Cases Nos. 58/72, 98/72 and 149/73 respectively.

6. Besides some minor ob5ections, the common stand taken by all the defendants judgment-debtors was that the decree in each of the suits was a nullity in so far as the court not having found that any of the grounds enumerated in Section 13 (1) of the West Bengal Premises Tenancy Act existed, had no jurisdiction to pass the decree. The plaintiffs (decree-holders) resisted the misc. cases on the plea that the judgment-debtor having consented to the decree being passed were estopped from questioning the validity or legality of the same.

7. All the three misc. cases were heard analogously and disposed of by the order appealed against. It appears that both parties adduced some evidence in support of their respective contentions. The learned Judge, relying on the principles laid down by the Supreme Court in the cases of Bahadur Singh v. Muni Subrat, (1969) 2 SCR 432, Kaushallya Debi v. K. L. Bansal, : [1969]2SCR1048 ; Ferozilal v. Man Mal, : AIR1970SC794 and K.K. Chari v. Sheshadri, : [1973]3SCR691 , found that there was nothing to indicate that the court while passing the decree had applied its mind to the question as to whether any of the grounds upon which the claim for eviction was founded, existed or not, and not having found that it really existed was incompetent to pass the decrees. The decrees were accordingly found to be null and void and as such not executable. On that view the objections under Section 47, C.P.C. were allowed and the execution cases were struck off. The other objections urged before the executing court without success, need not be adverted to as they were not pressed before us.

8. Being aggrieved at the decision the plaintiffs-decree-holders have preferred these present appeals. These appeals have been heard analogously and this judgment shall govern all of them.

9. Mr. Dutt appearing in support of the appeals contended that it is not necessary that there should be a positive and affirmative finding that there exists a ground for eviction but that what is required is to see whether the court was satisfied as to its existence. It was argued that the satisfaction of the court need not necessarily be manifested by a positive judicial finding and that if there are intrinsic materials on the record to justify an inference that the court had applied its mind, that would be sufficient to confer jurisdiction on the court to pass the decree. Mr. Dutt in this context also drew our attention to the evidence adduced by the parties in the misc. cases and argued that the evidence would indicate that really a ground for eviction existed.

10. Mr. Das Gupta in opposing the appeals on the other hand argued that the decrees were passed at a very initialstage of the suits, that there is no material on record either in the shape of admissions or otherwise to justify any inference as to the existence of any of the grounds on which the claim for eviction was founded. He argued that the evidence given during the hearing of the misc. cases could not be looked into for the purpose of finding that the court was satisfied as the time when the decrees were passed.

11. Section 13 (1) of the W. B. P. T. Act provided that no court shall pass a decree except on one or more of the grounds enumerated in the section. It is therefore clear that it is the existence of one or more of the grounds that confers jurisdiction on the court to pass a decree for eviction. From a conspectus of the decisions relied on by the learned Judge in the court below the principle that emerges is, that if at the time of 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 of a statutory ground for eviction it will be presumed that the court was so satisfied. The principle has been further explained and elucidated in the case of Nagindas v. Dalpatram, : [1974]2SCR544 . It has been held there:

'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 impliedadmission made in the compromiseagreement itself.'

In that case the compromise contained an admission of a material fact which constituted a ground for eviction. It was laid down in that case that if on the face of it the decree does not show that existence of such material or jurisdictional fact, executing court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trialcourts' jurisdiction to pass the decree itdid.

12. In a still later case, Suleman v. Umarbhai, : [1978]3SCR387 , it was held that where there are abundant intrinsic material in the compromise itself that the decree passed upon its basis was not in violation of the Act but was in accordance with it, the compromise decree was not a nullity and could be executed on non-compliance.

13. In a more recent decision of this court in the case of Biswa Bhushan v. Kusum Agarwalla, (1981) 85 Cal WN 120, this Court held that it is the existence of the ground for passing a decree for eviction under Section 13 (1) of the W. B. P. T. Act and the satisfaction of the court as to such existence which confers jurisdiction on the court to pass a decree and that such jurisdiction is not dependent on the recording of such satisfaction in the judgment/decree itself.

14. Mr. Dutt relied particularly on the last mentioned cases to build up an argument that the defendant judgment-debtor must, in the facts of the case, be presumed to have conceded the existence of a ground for eviction. We are however unable to agree with Mr. Dutt on this point, we have already indicated the terms of the compromise in details. There is no admission in the compromise as to the existence of any of the statutory grounds the proof of which alone could confer jurisdiction on the court to pass a decree. On the contrary the reference to arrears 'if any' in Clause (b) of the compromise suggests that the factum of arrears even, far less a default for more than 4 occasions within a period of 12 months as alleged, was not admitted. There is no reference to the requirement of the landlord for purposes of building or rebuilding. Apart from the compromise agreement there is no question of any other material being on the record from which a legitimate inference as to the existence of a ground for eviction, could be made. It will bear repetition that the suits were compromised even before the written statements were filed. No evidence was recorded. In such circumstances we are unable to look to any other material except the compromise itself and we have already indicated that the agreement leads us no where so far as the jurisdictional fact is concerned.

15. The cases of Nagindas v. Dalpatram : [1974]2SCR544 ; Suleman v. Umarbhai : [1978]3SCR387 and Biswa Bhusan v. Kusum Agarwalla ((1981) 85 Cal WN 120) stand on different footing. In the former two cases the court found that there were clear admissions as to the existence of a ground for eviction which could be spelt out from the compromise petition itself. In the last mentioned case the facts were still stronger. There the court had gone into the issueof default while imposing of an application under Section 17 (2). That was a partof the proceeding in the suit and the satisfaction of the court was explicit on the records of the proceedings. Consequently non-recording of such satisfaction once again while passing the decree ex parte after the defence against delivery of possession had been struck out, could not render the decree a nullity. None of these cases therefore can assist the decree-holder to support a contention that the decrees were in accordance with law.

16. This apart, there is nothing on the record to show that the court had, before passing the decree, applied its mind to the relevant fact and satisfied itself that a statutory ground for eviction did in fact exist. Mr. Dutt contended that the trial Court had heard the learned advocates before recording the compromise and that he must have been satisfied upon hearing the advocates that a ground existed. We do not think that the mere fact that the learned Judge had recorded having heard the advocates before recording the compromise, by itself and without more is a sufficient pointer to the fact that he had applied his mind as to the statutory requirements, far less that he was satisfied in that regard. Mr. Dutt then referred to the evidence recorded in the misc. cases and argued that the evidence suggests that in reality a ground for eviction as provided in Section 13 (1) was there; we do not think that we would be justified in looking into such evidence to ascertain whether or not a good case for eviction existed at the time when the decrees were passed. The executing court is not entitled to entertain evidence to see if there was a good ground for eviction. The executing court is not competent to go behind the decree. At the most it may look into the materials on record to see whether there was some material on the basis of which the court could have been satisfied as to the existence of a statutory ground of eviction. To allow the executing court to go beyond that limit would be to exalt the Executing Court to the status of a super court sitting in appeal, over the decision of the trial Court (see Nagindas v. Dalpatram : [1974]2SCR544 (supra)).

17. Mr. Dutt however was fair enough to concede 'his position but argued thatthe evidence may be looked in the Interest of equity. Principles of equity cannot be invoked to override a statutory requirement. The evidence which was not on the record at the time when the decrees were passed, cannot be availed of to confer jurisdiction on the court to make the decree. This contention of Mr. Dutt must also therefore fail.

18. In the result the appeals fail and are hereby dismissed.

19. The defendants (respondents) will now be entitled to contest the suits by filing written statement. The learned trial Judge shall give reasonable opportunity to the defendants to file written statements and the suits shall thereupon proceed from the stage of filing of the compromise petitions.

20. There will be no order for costs in these appeals.

21. No formal decrees need be drawn up.

A.K. Sen, J.

22. I agree.


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