Amar Nath and another vs Prem Nath

Harbans Singh, C.J.—This revision has arisen in the following circumstances:

On 4th November, 1970, Amar Nath and Surjit Singh, who are real brothers and owners of house No. 2555 in Bengali Mohalla, Ambala Cantonment, (hereinafter referred to as the decree-holders) filed an application for ejectment u/s 13 of the East Punjab Urban Rent Restriction Act, 1 949 (hereinafter referred to as the Act), against Prem Nath (hereinafter referred to as the judgment-debtor), seeking his ejectment from the said house on two grounds, first, for non-payment of the arrears of rent and, secondly, that there being 11 members of the family of the landlords they required the premises for their own occupation.

As a result of the notice issued to the tenant judgment-debtor, he appeared before the Court on 28th November, 1970, which was the first date of hearing. He was assisted by a counsel. No written statement was filed on that date denying the allegation of the tenant being in arrears of rent or the landlords requiring the premises for their own occupation. Moreover, no offer of tender of arrears was made on that date. Instead an application headed as compromise was put in to the following effect:

In the above case the parties have compromised in the following manner:

(1) That the respondent admits the allegations in the application. The respondent admits that the rent and water tax claimed in the application is due. The respondent also admits that the petitioner requires the disputed house bearing No. 2555, Ambala Cantt. for his use and occupation.

(2) That an order of ejectment may be passed against the respondent but it is prayed that the execution of the order will take place after 23rd July, 1971. ... ...

When this compromise was put in the Court recorded the statement of the tenant again. He made a statement more or less to the same effect as in the written compromise put in and particularly he stated that the petitioner does need the house for his own occupation, that the rent and water-tax are in arrears and payable and that in view of the above, an ejectment decree may be granted. However, he mentioned that the execution of the order will not be done before 23rd July, 1971. Thereafter a statement was made by the counsel for the landlord decree-holders that they accept the statement of the tenant and that the execution for ejectment will not be taken up before 23rd July, 1971.

Thereafter, the order of the Court is as follows:

The parties have filed a written compromise and their statements have also been recorded. The respondent has admitted the claim of the petitioner that he requires the premises for his personal use and occupation and the respondent also did not make any tender. ... ...

Then an order of ejectment was passed with the direction that vacant possession of the disputed house will be delivered to the landlords on or before 23rd July, 1971, before which date the ejectment order shall not be executable.

Nothing happened thereafter till 28th July, 1971, when an application was filed seeking the execution of the order of ejectment and getting the house vacated. On a notice of this application being served on the tenant judgment-debtor, objections under Order 47, Civil Procedure Code, were filed. The objections taken were : (1) that the decree was a nullity and (2) that in allowing more than three months, the Rent Controller had acted without jurisdiction. Along with these objections, a miscellaneous application for stay of execution was filed. The Executing Court held that the order was not a nullity, because the Rent Controller had definitely given findings on the admission of the tenant-judgment-debtor that the landlord-decree-holders require the premises for their own occupation, that the tenant-judgment-debtor was in arrears and that no tender was made on the first date of hearing which alone could have saved the tenant judgment-debtor from the consequences of his being in arrears of rent. He, consequently, dismissed the application for stay, but did not deal with the objections.

Against this order of refusing to stay, the judgment-debtor went up in appeal and the lower appellate Court held that the decree was a nullity and he, consequently, granted a stay till the decision of the objections on merits. He, however, stated as follows:

That being the case, the ejectment order would be a nullity and unenforceable will be gore into by the learned trial Court independently of the opinion expressed by me above in the objection petition filed by the appellant in execution petition. The view taken by me is confined to the decision of the stay application in the execution proceedings filed by the appellant ... ... ... ...

Against this order granting the stay, the decree-holders have filed this revision.

In this case the main point in the objections as well as the stay application was whether the ejectment order was a nullity. The two matters should not have been separated by the Executing Court, but only the stay application was decided and not the objections. Once the Executing Court had come to the conclusion that the ejectment order was not a nullity, then the objections also finished and those should have been decided together so that the matter could have been taken in appeal simultaneously. Now the lower appellate Court has decided that the decree is a nullity. If that is so, then notwithstanding the fact that the lower appellate Court has stated that his view should not affect the decision of the objections on merits, such an observation means nothing, because obviously if the decree is a nullity for the purpose of the stay order, it is a nullity and cannot become an enforceable order. If I decide this revision today and take the view either that the decree is a nullity or that the decree is not a nullity, it will not be possible for the Executing Court to decide the objections except on the basis of the observations made by me. I think, in these circumstances, the proper course to avoid any further multiplicity of proceedings would be to transfer the objections to this Court in the exercise of the extraordinary powers of this Court on the original side and to decide those objections along with the present revision. The records of the case will be sent for immediately and the case will be put up for hearing on 11th May, 1972.

JUDGMENT DATED 28TH JULY, 1972.

This order will be read in continuation of my order dated 5th April, 1972.

An application was made by the landlord for the ejectment of his tenant on two grounds, first, the tenant being in arrears of rent and, secondly, the landlord requiring the premises for his own occupation. The tenant, while appearing on 28th November, 1970, put on application saying that the matter has been compromised in the following manner:

(1) That the respondent admits the allegations in the application. The respondent admits that the rent and water-tax claimed in the application is due. The respondent also admits that the petitioner requires the disputed house bearing No. 2555, Ambala Cantt. for his use and occupation.

(2) That an order of ejectment may be passed against the respondent but it is prayed that the execution of the order will take place after 23rd July, 1971 ... ... ... ...

The Rent Controller recorded the statement of tenant-respondent and then he passed the following order:

The parties have filed a written compromise and their statements have also been recorded. The respondent has admitted the claim of the petitioner that he requires the premises for his personal use and occupation and the respondent also did not make any tender ... ... ... ...

After the expiry of the period contemplated in the compromise, when the landlord put in an application on 28th July, 1971, seeking the execution of the order of ejectment, objections were raised by the tenant that the decree granted by the Rent Controller was a nullity and that in allowing more than three months, the Rent Controller had acted without jurisdiction.

A stay application was also made which was refused by the Court holding that the decree was not a nullity but, a the same time, the Court did not dispose of the objections. The tenant went up in appeal and the appellate Court held that the decree was a nullity and, therefore, granted a stay. The landlord has come up in revision against this order.

In order to avoid conflict of decisions and delay, the original objection petition pending in the Executing Court was sent for here on the original side. Those papers have been received and I have heard both the counsel at a great length.

On behalf of the counsel for the tenant reliance is mainly placed on two decisions of the Supreme Court in Ferozi Lal Jain Vs. Man Mal and Another, and Kaushalya Devi and Others Vs. Shri K.L. Bansal, His contention is that in view of the decision in these two cases, any decree for ejectment passed on compromise will be a nullity.

The headnote in Ferozi Lal Jains case (supra) runs as follows:

The jurisdiction of the court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds mentioned in Section 13(1) have been proved Where the court had proceeded solely on the basis of the compromise arrived at between the parties, the court was not competent to pass the decree. Hence the decree under execution must be held to be a nullity.

The facts in that case were that a landlord filed a suit for ejectment of the tenant from a shop on the basis that the same has been sublet. Subletting was denied by the tenant. During the pendency of the trial, the landlord and the first respondent, who was the tenant, entered into a compromise on the basis of which a decree was passed as follows:

As per compromise, decree for ejectment and for Rs. 165/- with proportionate costs is passed in favour of the plaintiff and against the defendant. The parties shall be bound by the terms of the compromise. The terms of the compromise be incorporated in the decree-sheet..............

One of the important points noted was that the compromise petition did not make any reference whatever to the alleged subletting. Under the compromise four years period was given for the first respondent to vacate. At the time of execution, this was resisted. The Courts below and the High Court accepted the contention that the decree was a nullity. After referring to the relevant part of section 13 of the Rent Act, it was observed that "the jurisdiction of the court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds mentioned it. Section 13(1) have been proved". In paragraph 6 of the judgment, Hegde J., speaking for the Court, observed as follows:

From the facts mentioned earlier, it is seen that at no stage, the Court was called upon to apply its mind to the question whether the alleged subletting is true or not. Order made by it does not show that it was satisfied that the subletting complained of has taken place, nor is there any other material on record to show that it was so satisfied. It is clear from the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the court was not competent to pass the impugned decree...........

Obviously the facts in the present case are altogether different from those before their Lordships of the Supreme Court. Here the so called compromise expressly and clearly stated that the tenant admitted the fact that the landlord needed the premises for his own use and that he was in arrears. Similar statement was made by the tenant in Court and these facts are recorded in the order itself. After all, a Court can be satisfied not necessarily after a contest between the parties. That the tenant was in arrears of rent was a fact which was alleged by the landlord and could have been denied by the tenant. If the tenant did not deny it and, in fact, admitted it and no tender was made on the first date of hearing, then obviously the Court could come to no other conclusion, on the material on the record, except the one of the tenant being in arrears. Similarly the landlord had alleged that the premises already in his possession were not reasonably sufficient for the requirement of himself and his family which consisted of eleven members. It is not necessary that the tenant must go on resisting a claim of this type in which ultimately he is bound to fail and if, in fact, the landlord has eleven members of his family and the premises in his possession are not sufficient for his needs, there is nothing wrong if the tenant frankly admits this fact. In view of this material on the record, the Court could come to no other finding except that the premises were required by the landlord for his personal use. This is not a case where either there is no material on which the Court could come to a conclusion or it could be said that the Court was not called upon to apply its mind to the question, whether these two grounds did or did not exist. The Court could ordinarily grant three months time but it was the agreement between the parties by which the landlord consented to give longer time. That was a matter which was settled between the parties and there is nothing in the Act prohibiting the landlord from agreeing to give longer time to the tenant to put him in possession of the premises.

The decision in Kaushalya Devi''s case (supra) also does not take the matter any further. There the landlord sought ejectment of the tenant on three grounds, first, that the landlord required the premises for his own use, secondly, that the tenant already owned a house in Delhi which was suitable for him and, thirdly, that the tenant had defaulted in payment of rent. The tenant-defendant filed a written statement denying all these allegations. Issues were settled on 4th April, 1956, and on 5th June, 1956, an application was made by the landlord-plaintiff and the tenant-defendant compromising the matter as follows:

(a) Decree for ejectment be passed in favour of the plaintiff against the defendant, the decree will be executable after the 31st December, 1958, if the defendant does not give possession till then.

(b) The standard rent of the premises be fixed at Rs. 40 per mensem ... ... .

A statement to the same effect was made by the parties'' counsel in Court and then the following order was passed:

In view of the statement of the parties, counsel and the written compromise a decree is passed in favour of the plaintiff against the defendant.

Here also there was no satisfaction of the Court about the existence or otherwise of any of the grounds of eviction and following an earlier decision of the Supreme Court in Bahadur Singh v. Muni Subrat Das CA 2464 & 2468 of 1966, Civil Appeals Nos. 2 64 and 2468 of 1966, decided on 16th October, 1968, it was held that the case was covered by section 13(1) and as there was no finding about the satisfaction of the Court, the decree granted was a nullity. As already stated, the facts, of this case are entirely distinguishable.

In D. Balakrishnamurthy and Others Vs. Manasani Veeranarassaiah@Narasimha and Another, a learned Single Judge of that Court dealt at length with the decision of the Supreme Court in Ferozi Lal Jain''s case (supra) and observed as follows:

The principle deducible from the observations made by the learned Judge is patent. The Court''s jurisdiction to pass an order of eviction is, no doubt, conditioned by the existence or proof of one or more of the grounds specified in the statute. But the satisfaction of the Court which is an essential pre-requisite for decreeing eviction, need not necessarily be the product of a contested proceeding. What is material is the cognizance or the awareness of the Court that the requisite grounds exist. If this cognizance or aware-ness can be proved by the record, the fact that the order of eviction has emanated as a result of the consent between the parties will be immaterial. The argument of the learned Counsel before me is tantamount to saying that the satisfaction of the Court, which gives jurisdiction to make the order of eviction must be the end product of a process of an adjudication made by the Court. I find no warrant for the contention so formulated by learned counsel. The essence of the matter is that the jurisdictional fact or base must be established. It is not necessary that the satisfaction of the Court about the existence of the ground should spring out of a judicial adjudication. Even if the proceeding does not culminate in the Court''s adjudication, it is possible for it to be satisfied about the existence of the requisite condition. ... ... .

In that case the landlord based his application for eviction on the allegation of wilful default in payment of rent, subletting of the premises, etc. These allegations were denied and a good deal of evidence was led by the parties. Nearly three years after the presentation of the petition, the parties entered into a compromise as a result of which memo of compromise was submitted to the Court and on the basis of the same, order of eviction was passed allowing the tenant time to vacate as agreed between the parties. In execution the matter having been raised as to the executability of the decree on the ground that the decree was a nullity having been passed on a compromise, the case ultimately came up before the Andhra Pradesh High Court. The learned Judge, after noticing the decisions in Ferozi Lal Jain''s case, Kaushalya Devi''s case and one or two other cases, observed in paragraphs 16 and 17 as follows:

If the tenant, on a consideration of the pros and cons of his case, considers it inadvisable to persist in his unmeritorious defence any further or thinks it discreet to retire from the contest, ... ... it is within his legitimate rights as a suitor to order his affairs as he deems fit. ... ...

In cases where he tenant elects not to proceed with his defence it is natural to presume that his defence is without merit or has little chance of successful outcome. ... ... It is true that a mere order of consent without any other material on record would be insufficient to establish the satisfaction contemplated by Section 10 for making a valid order of eviction. But when the question arises whether the Court acted on the basis of such satisfaction, it would, in my opinion, be relevant to take into account the presumption arising out of the consent of the tenant alongwith the other materials on record.

the case was, consequently, remanded to the Court below for being dealt with in the light of the observations made above.

The present case is much stronger than the one before the Andhra Pradesh High Court. Here, as already stated, the tenant had admitted in categorical terms that the landlord required the premises for his own use and that he (the tenant) was in arrears of rent. These matters were reiterated by the tenant in his statement before the Court and they were also mentioned in the order. So, on the material on the record, there can be no manner of doubt that the Court''s mind was directed to the facts. Here the tenant thought it inadvisable to go on contesting the case and in order to save himself from botheration and expense in defending an undefendable case admitted the facts alleged by the landlord. The two grounds, which he had admitted, could be held to be proved on the record and, on the basis of the same, a decree for ejectment could have been passed as it was done.

For the reasons given above, 1 accept this revision, set aside the order of the lower appellate Court and also reject the objections raised by the tenant. The records will now go back to the Executing Court for further proceedings in the execution application. Parties will appear before the Executing Court on 28th August, 1972.