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Bansilal Vs. Kanshi Ram - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revision No. 53 of 1972
Judge
ActsEast Punjab Urban Rent Restriction Act, 1949 - Sections 13 and 15(4); ;Himachal Pradesh (Courts) Order, 1948; ;Evidence Act, 1872 - Section 115
AppellantBansilal
RespondentKanshi Ram
Appellant Advocate S. Malhotra and; M.G. Chitkara, Advs.
Respondent Advocate A.C. Sud and; Ramesh Chand, Advs.
DispositionRevision allowed
Cases ReferredBhag Mall v. Yudhishter Lal C. R. No.
Excerpt:
- .....referred to as 'the act') for the eviction of the tenant from the shop on may 25, 1970 the rent controller framed a number of issues. before any evidence could be recorded, the parties entered into a compromise on july 29. 1970 under which the tenant agreed to vacate the accommodation after one and a half year's. a statement was made by the tenant before the rent controller setting out the terms of the compromise. on the same date, the rent controller parsed an order of eviction in terms of the compromise. in the result the tenant was to vacate the premises by february 1, 1971.3. on march 16, 1972 the tenant filed a suit for a declaration that the order dated july 29. 1970 of the rent controller was a nullity and he could not be evicted. the tenant also filed an application for.....
Judgment:

Pathak, C.J.

1. This is a tenant'srevision petition under paragraph 35 of the Himachal Pradesh (Courts) Order, 1948 against an order of the learned District Judge. Solan vacating an interim injunction granted by the learned Subordinate Judge, Solan

2. On December 1, 1969 the landlord of shop No. 243. Chowk Bazar, Solan, filed an application under Section 13 of the East Punjab Urban Rent Restriction Act (hereinafter referred to as 'the Act') for the eviction of the tenant from the shop On May 25, 1970 the Rent Controller framed a number of issues. Before any evidence could be recorded, the parties entered into a compromise on July 29. 1970 under which the tenant agreed to vacate the accommodation after one and a half year's. A statement was made by the tenant before the Rent Controller setting out the terms of the compromise. On the same date, the Rent Controller parsed an order of eviction in terms of the compromise. In the result the tenant was to vacate the premises by February 1, 1971.

3. On March 16, 1972 the tenant filed a suit for a declaration that the order dated July 29. 1970 of the Rent Controller was a nullity and he could not be evicted. The tenant also filed an application for an interim injunction On May 20, 1972 the learned Subordinate Judge. Solan granted an injunction restraining the landlord from enforcing the order of the Rent Controller during the pendency of the suit. Against the injunction the landlord filed an appeal, and the appeal was allowed by the learned District Judge by his order dated November 28, 1972 whereby he vacated the injunction. The tenant now applies in revision against the order of the learned District Judge.

4-5. The learned District Judge has observed that the relationship of landlord and tenant between the parties was not in dispute, that the order dated July 29, 1970, of the Rent Controller was made under Section 13 of the Act and, therefore, by virtue of Section 15 (4) the order could not be called in question in a Court of Law. He has held that the jurisdiction of the Civil Court is barred. Accordingly, he has vacated the injunction granted by the learned Subordinate Judge.

6. The question before us is whether the order of the Rent Controller can be described as an order under Section 13 of the Act.

7. The landlord's application under Section 13 of the Act prayed for eviction on the following grounds:--

(a) The tenant had failed to pay or tender rent from March 1, 1968 and therefore, rent for two years was due;

(b) the tenant had sub-let the premises without the consent of the landlord;

(c) the tenant had changed the user of the premises without the knowledge and consent of the landlord; and

(d) the landlord desired to renovate the premises and to occupy it himself. Issues were framed by the Rent Controller with reference to the grounds taken in the application. On July 29, 1970, the tenant made an application before the Rent Controller that he had entered into a compromise with the landlord to the effect that while an order of eviction may be passed the tenant should not be evicted for one and a half years, that he would not sub-let the premises and on the expiry of the period he would hand over possession of the premises to the landlord. On July 29. 1970, the Rent Controller made an order on the basis of the compromise and directed the tenant to vacate the premises on February 1, 1971 and to hand over possession to the landlord.

8. The contention of the tenant is that the compromise between the parties is not based on any of the grounds on which the eviction was sought and, therefore, the order of the Rent Controller is a nullity in my opinion, the tenant is right.

9. Section 13 of the Act directs that no tenant shall be evicted except in accordance with the provisions of that Section To evict the tenant the landlordmust apply to the Controller for an order in that behalf, and the Controller can make an order directing the tenant to put the landlord in possession only if he is satisfied that one or more of the grounds set out in Section 13 exist. The Controller can make the order only with reference to those grounds. He has, otherwise, no power to make such order. The jurisdiction of the Controller is defined by those grounds. It is a limited jurisdiction, and if he passes beyond those limits the order made will be a nullity. If the order of the Controller is a nullity, there is no order in contemplation of the law and, therefore the tenant cannot be evicted.

10. In Bahadur Singh v. Muni Subrat, 1969 Ren CR 151 (SC), the Supreme Court considered the comparable provisions of Section 13 (11 of the Delhi and Ajmer Land Control Act, 1952 and held that a decree directing the tenant to deliver possession on the basis of an award, which was not made on the basis of a statutory ground of eviction, was a nullity and could not be enforced in execution. In taking that view the Supreme Court referred to Peachey Property Corporation v. Robinson. (1966) 2 All ER 981. The decision in Bahadur Singh (supra) was followed by the Supreme Court in Smt. Kaushalya Devi v. K.L. Bansal, AIR 1970 SC 838 and Ferozi Lal Jain v. Man Mal, AIR 1970 SC 794. On the other side of the line is K.K. Chari v. R.M. Seshadri, AIR 1973 SC 1311. The landlord applied for the eviction of the tenant on a number of statutory grounds. The tenant contested the application and disputed the validity of the grounds. When the matter was tried, the landlord filed a number of documents in support of the grounds taken by him. Thereafter the parties entered into a compromise, under which the tenant withdrew his defence and submitted to a decree for eviction unconditionally. It was agreed under the compromise that the tenant would vacate the premises about two months later and hand over possession to the landlord. The Supreme Court held that the decree for eviction was not a nullity. The Supreme Court referred to the circumstances in which the compromise was arrived at between the parties. It noticed that originally the tenant had denied the claim of the landlord that he required the building bona fide for his own occupation, but when the landlord gave evidence in support of his claim, the tenant did not cross-examine the landlord and on the contrary entered into a compromise withdrawing his defence and submitted to a decree for eviction unconditionally. The Supreme Court pointed out that the conduct of the tenant indicated that he accepted as true the claim of the landlord that the premiseswere required bona fide by him for his own occupation. It was observed:--

'He has accepted the position that the landlord had made out the statutory requirement entitling him to ask for Possession of the premises. It is this unconditional withdrawal of the defence regarding the statutory condition pleaded by the landlord, and the compromise following it, that was accepted by the Court and a decree for eviction passed thereon.'

And then follows the statement of law:--

'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.

It is 310 doubt true that before making an order for possession the Court is under a duty to satisfy itself as to the truth of the landlord's claim if there is a dispute between the landlord and tenant. But if the tenant in fact admits that the landlord is entitled to possession on one or other of the statutory grounds mentioned in the Act it is open to the Court to act on that admission and make an order for possession in favour of the landlord without further enquiry.'

This decision was followed by the Supreme Court recently in Nagindas Ramdas v. Dalpatram Iccharam alias Brijram AIR 1974 SC 471 where the earlier (cases on the point have been noticed.

11. For the landlord reliance has been placed on Mangal Das v. Banka Mal 1966 Cur LJ 811. That case does not help the landlord. The learned Judge who decided that case observed that the facts were identical with the facts in Mrs. Savitri Ahuja v. Harbans Singh Mehta, AIR 1964 Punj 487. And in the latter case it appears that the tenant admitted the ground on which ejectment was sought. In holding that the order of the Rent Controller was not a nullity the Court pointed out that the order satisfied the statutory grounds for eviction.

12. In the case before us, after the application for eviction was filed by the landlord and issues were framed by the Rent Controller, the parties entered into a compromise. No evidence had been led yet on those issues. The stage had not been reached for the Rent Controller to apply his mind to the question whether the grounds alleged by the landlord were satisfied. Before anything more could be done, the parties entered into a compromise. The terms of the compromise do not indicate that the tenant accepted as valid any of the grounds set out by the landlord. In the circumstances, when the Rent Controller made an order for eviction, it was not made by him with any of the statutory grounds in mind. In the result, his order is a nullity. Some reliance has been placed by the landlord on Shri Bhegat Ram v. Smt. Lilawati Galib ILR (1972) 1 Him Pra 345 which was affirmed subsequently in appeal by a Division Bench, ILR (1972) 1 Him Pra 85. The case before us is one which falls in the category to which Bahadur Singh 1969 Ren. CR 151 (SO (supra). Smt Kaushalya Devi AIR 1970 SC 838 (supra) and Ferozi Lal Jain AIR 1970 SC 794 (Supra) belong. Accordingly, as the order is a nullity it is not an order under the Act and therefore, not an order covered by Section 15 (41. It is open to the tenant to question it in a Court of Law. The learned District Judge has erred in holding to the contrary.

13A. It is urged on behalf of the tenant that the appeal filed by the landlord before the learned District Judge was not maintainable. In the view that I have already taken above, it seems unnecessary to decide this question.

13. It is urged on behalf of the landlord that inasmuch as the tenant was party to the compromise, he is estopped from challenging the validity of the order made by the Rent Controller on the basis of that compromise. Now, in order to raise the plea of estoppel the facts on which it is based must be pleaded. It has been said that estoppel is eminently a matter of pleadings. If not set up in the pleadings or issues it cannot be availed of. See Pappammal v. Alamelu AIR 1928 Mad 467 and Gobindbhai v. Dahvabhai AIR 1937 Bom 326. The written statement in the suit does not disclose that a plea of estoppel has been taken. The point was not taken before the learned District Judge either. It would not be appropriate to permit the point to be raised here.

14. Learned counsel for the respondent urges that this court should not interfere as no jurisdictional error has been established. Our attention has been drawn to the view taken by this court in Bhag Mall v. Yudhishter Lal C. R. No. 14 of 1973 D/- 4-5-1973 (Him Pra). It seems to me that the facts of that case are distinguishable. In that case, the trial court had refused an injunction on the ground that no prima facie case been made out by the plaintiff. The appellate court affirmed the order of the trial court. This court dismissed the revision petition because in its opinion the question whether there was a prima facie case or not was a matter affecting the merits of the injunction application and an erroneous view on the merits would not give rise to a jurisdictional error. In the present case, the learned District Judge has held that the trial court had no jurisdiction to grant an injunction. On the view taken by us, it is apparent that the learned District Judge committed an error of jurisdiction.

15. In the result, the revision petition is allowed. The judgment and order of the learned District Judge are set aside and the order of the learned Subordinate Judge granting an injunction is restored. The petitioner is entitled to his costs.

Thakur, J.

16. I agree.


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