Chaman Lal Beri vs Gian Chand Behl and Another

Dua, J.—These are two revisions (Civil Revision Nos. 756 and 757 of 1962) u/s 15(5) of Punjab Act III of 1949 and are directed against the orders of the learned District Judge Amritsar, acting as appellate authority dated 1st November 1962 and 3rd August 1962, but since they arise out of the same controversy and were also directed to be heard together, they may be disposed of together.

In order to understand the question falling for determination, the facts so far as relevant for the present purpose may be stated :

Chaman Lal Beri and Smt. Raj Rani, son and widow respectively of Shri Janki Nath Beri applied u/s 13 of the East Punjab Urban Rent Restriction Act (Punjab Act No. III of 1949) for the ejectment of Shri Gian Chand Behal, a retired District and Sessions Judge, from the premises in question. It is unnecessary to state the pleas of the parties. Suffice it to say that the issues on which the parties went to trial related to the requirement of the premises for the owners'' own occupation and use, and the alleged pre-mature nature of the application. The Rent Controller dismissed the application holding that the owners did not bona fide require the premises in question for their own use and occupation. The plea of the petition being pre mature urged by the tenant was negative.

An appeal was taken to the Court of the District Judge acting as appellate authority, and there the parties entered into a compromise by means of which the order of the Controller was set aside and the appeal allowed on the condition that the order of ejectment would not be executed till 3rd August 1965 provided the respondent continues to pay rent falling due every month by means of a cheque in favour of Shri Chaman Lal Beri to be dispatched to him on the address given in the order; the rent to be paid for each month by the last date of the succeeding month. There were also some other terms, the details of which it is unnecessary for our present purpose to mention. This order is the subject-matter of Civil Revision No. 757 of 1963.

It appears that on account of a Bench decision of this Court in K.L. Bansal v Smt. Kaushalya Devi (1962) 64 P.L.R. 1091, where it is laid down that the Rent Controller is under a statutory duty to satisfy himself before passing an order of ejectment that the order is justified on the provisions of section 13 of the Rent Act and that an order of ejectment passed merely on compromise between the parties would be without jurisdiction, if the material on the record does not bring it within the purview of section 13, the landlords, fearing that the order of the Appellate Authority would be a nullity and, therefore, of no avail to them, applied to Appellate Authority that the order of compromise be ignored and the appeal be heard and decided on merits. This application was resisted by the tenant on the ground that there was material before the Appellate Authority for coming to a finding that building in dispute was bona fide required by the landlords for their own occupation. According to the tenant, the order of ejectment passed in appeal, though based on a compromise, was perfectly valid and binding on the parties; and it was further contended that, in any case, it could not be said that the order was without jurisdiction on the face of it and, therefore, it would ultimately be a question for the executing Court to see whether or not the order was really a nullity. It was, in addition, contended that after pronouncing the order of ejectment on compromise, the Appellate Authority had become functus officio and was, therefore, lacking in jurisdiction to review its previous pronouncement.

After considering the arguments urged before the Appellate Authority, it came to the conclusion that the compromise between the parties could not be said to be patently without jurisdiction because it had been arrived at after the evidence of both the parties had been recorded by the Controller in full and it was a question of fact as to whether the order could be said to contain an implied finding about the landlords'' bona fide requirement of the building in dispute for their own occupation. In K.L. Bansal''s case, according to the Appellate Authority, the order of ejectment had been passed without any material whatsoever having been brought on the record from which the Controller could arrive at a finding to the effect that at least one of the grounds contemplated by section 13 had been substantiated. That decision was distinguished on this ground. After so holding, the Appellate Authority further continued to observe that it was not for it to go into the question of fact at that stage and that it was for the executing Court to decide the same as and when called upon to do so. Had the lack of jurisdiction relied upon by the learned counsel been patent on the face of the order of ejectment, the position, according to the Appellate Authority, might have been different. The Appellate Authority accordingly observed that the application could not be entertained by him. The further objection by the tenant about the maintainability of the application was also upheld by the Appellate Authority and it held that after pronouncement of the order of ejectment, it had become functus officio, and it was no longer open to it to review its own order which had become final between the parties, and that the said order could only be set aside by the High Court. In support of this contention, the Appellate Authority relied on a decision of the Rajasthan High Court in Nathu Lal v. Collector AIR 1952 Raj. 6, distinguishing some other cases relied upon on behalf of the landlords in support of the proposition that quasi-judicial Tribunals have inherent power to correct their mistakes.

On revision, on behalf of the landlords-petitioners, reliance has been placed on K.S. Bansal''s case 1 for the view that the order on the basis of compromise would be a nullity and, therefore, the Tribunal was fully empowered to ignore it and decide the appeal on the merits.

On behalf of the respondent tenant, however, Shri Roop Chand has most vehemently contended that there is no legal bar to the compromise order and the Appellate Authority was fully competent to pass the impugned order which is binding on both the parties. K.L. Bansal''s case, according to the counsel, proceeded on its own facts and it does not lay down any general proposition of law. Reference has also been made to a decision given by me in Puran v. Fateh Singh etc. C.R. No. 410 of 1959, C.R. No. 410 of 1959 in which I observed after referring to Babu Ram Sharma v. Pal Singh (1959) 61 P.L.R. 33, that an ejectment order can be passed on the basis of a compromise if the terms of the compromise do not violate or contravene the provisions of the East Punjab Urban Rent Restriction Act. During the course of the order, I also observed that undoubtedly a landlord and a tenant cannot agree to enter into a binding compromise contrary to the provisions of the Kent Restriction Act, but within the four corners of said law, they are at full liberty to regulate their relations inter se by means of a mutual settlement. Reference has also been made to Hakumat Rai v. Khushi Ram ILR 1959 P&H. 2293, in which D.K. Mahajan J. after referring to AIR 1943 268 (Lahore) made the following observations :

This principle would apply only if parties agree to an ejectment on grounds other than those set out in section 13 of the Act. A tenant can only be ejected if the grounds set out in section 13 are established. Thus it will be evident that as regards those grounds there can be no question of contracting outside the statute. These grounds are available to the landlord to seek ejectment of the tenant and if any of these grounds is established, he is entited to get the tenant ejected Thus, it cannot be said that the law confers an absolute and exclusive benefit on the tenant and thus he cannot contract himself out of it. There is nothing in law to prevent a tenant to admit any one of these grounds, and agree to an ejectment order. By this, he is merely admitting his liability to ejectment on that basis. Therefore, I do not see how such a consent decree becomes illegal, which would result in making it void. In this connection, the decision of this Court in Babu Ram Sharma v. Pal Singh, may be read with advantage. It was held that on an application for ejectment for non-payment of rent, the Rent Controller is competent to pass a compromise decree for the payment of the rent by instalments with a. default clause and it is competent for the civil Court to execute such a decree when default has occurred. Thus a consent decree on any of the grounds available u/s 13 of the Act can be passed and if passed can be executed by the civil Courts.

Shri Roop Chand has also relied on another Single Bench decision by the present Chief Justice in Jagan Nath Pershad Jhalani Vs. Jatinder Nath Prem Nath and Others, , where Babu Ram Sharma''s case 4, was approvingly referred and the following passages from the judgment of another Single Judge in Vas Dev Sharma v. Milkhi Ram Bhatia AIR 1960 P&H. 514 = (1960) 62 P.L.R. 888, was quoted :

From the above discussion of the English cases the principle which has also been accepted by the Bench of this Court in Babu Ram Sharma''s case, it is quite clear that if the tenant admits after a suit for ejectment has been filed that the landlord is entitled to possession on one of the statutory grounds, the Court can make an appropriate order or if the landlord has made some representation within the terms of the statute to the tenant and which is one of the ingredients of a ground on which possession can be ordered and the tenant accepts that representation and submits to an order, then also the Court will be fully justified in making a valid order of eviction. Each case, therefore, will have to be decided on its own facts and it will have to be seen whether there is any material to justify an inference that an admission, be it express or implied, has been made by the tenant on the existence of one of the statutory grounds.

Further reliance has been placed on Manindra Nath Bhattacharjee Vs. Rampada Pal, in which a Division Bench held that where the landlord applied for eviction of the tenant on the ground that the house was required for his own use but subsequently the Controller made an order in terms of a compromise by which the tenant agreed to vacate the premises within a certain period, the Rent Controller had jurisdiction to make the order of eviction in terms of the S. Raja Ghetty and Others Vs. Jagannathadas Govindas and Others, . has also been cited by Shri Roop Chand in which it is observed that everyone has a right to waive and to agree to waive the advantage of 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. It has been stressed by the learned counsel that in the case in hand there is no question of any public right or public policy and that his client recognises that the landlords require the premises for persona] use on 3rd August, 1965 and that he would vacate it by that date and the Rent Controller has full jurisdiction to pass such an order, execution of which cannot be objected to by his client.

Shri Awasthy has submitted that if the tenant was really genuine and honest in his agreement, he would certainly not have questioned the jurisdiction of the Appellate Authority, or raised in this Court the same plea; but, according to him, the tenant has been going about proclaiming that after the expiry of the period granted to him by the Controller, he would challenge the validity of the compromise order, particularly as one of the terms in the compromise dealing with default clause in payment of the rent is represented by the tenant to be outside section 13 of the Rent Control Act. In answer to this argument, Shri Roop Chand has more than once asserted the bona fides and genuineness on the part of his client in agreeing to the compromise and he actually offered to produce his client even in this Court for the purpose of giving a guarantee that he would abide by the terms of this compromise.

After considering the arguments addressed at the bar and going through the orders of the Tribunals below, in my opinion, the learned Appellate Authority has failed to exercise the jurisdiction vested in it by declining to go into the question whether or not the earlier order passed on compromise is a nullity and is outside the statute and, therefore, without jurisdiction, compliance with which can lawfully be denied by the tenant. I may appropriately reproduce at this stage the following observations from a decision of a Bench of five Judges of this Court in Deep Chand etc. v. Additional Director Consolidation of Holdings (1964) 66 P.L.R. 318 F.B.:

The case of void orders, or orders which are without jurisdiction certainly stands on a different footing. It has often been said that an order which is a nullity or which is invalid does not require to be set aside and may be properly ignored, for, it is not only bad but is incurably bad. It is automatically null and void without more ado, though it is sometimes convenient to have it declared to be so.

Before this decision, an earlier decision by a Bench of tree Judges in Jagir Singh v. Settlement Commissioner (1989) 61 P.L.R. 480 (F.B.) held the field and according to that decision, the power to reconsider earlier erroneous decisions by a quasi-judicial Tribunal were considered to be very much wider. And then, it is also relevant to bear in mind that the Appellate Authority too was expected, while discharging its functions under the Rent Act, to consider whether or not the compromise placed before it for adoption and incorporation in its own order was within its statutory competence and jurisdiction, and it should not have omitted to apply its mind to this, vital aspect. In any case when the question was again raised before it the Appellate Authority should, in fairness and to promote the cause of justice, have decided it and not left the rights of the parties in a nebulous state, to be determined only at the time of execution after the tenant had fully availed the terms of compromise in his favour. Such a course can by no means be considered to advance or promote the cause of justice or the object of the rent legislation and this Court is unable to appreciate the view taken by the Appellate Authority.

Some of the observations contained in the impugned order have also created an unhappy impression in this Court for they tend positively to suggest that in the view of the Appellate Authority there may be some grounds showing the order of compromise to be without jurisdiction though they were suggested to be latent and not patent, and that the executing Court would perhaps be fully competent to entertain and adjudicate upon them. If the executing Court could ignore the compromise order and decline to execute it on the ground that it was a nullity or non-est, it is somewhat difficult to appreciate the cogency of the reason on which the Appellate Authority declined itself jurisdiction to adjudicate upon the same point raised before it. It is not shown before me on what ground the executing Court can claim to possess larger power of going behind the order which it is called upon to execute than the Authority itself to go into the plea of nullity of the compromise and to remove the cloud from the order finally determining the rights and liabilities of the parties. If the compromise order is non-est and is liable to be ignored by the executing Court after the expiry of the period mentioned in the compromise order, then this plea deserves, in the interests of justice, to be decided at this stage rather than to be left to the executing Court to refuse to execute it in 1965; in case, however, the order is not a nullity and must be executed by the executing Court, the Appellate Authority should so hold it now, so that it is not left open to the tenant to raise it later to the prejudice of the landlord, when it falls on the tenant to perform his part of the obligation after having reaped full benefit under the same order of compromise. The view taken by the Appellate Authority is neither supportable on principle nor on authority and it is certainly not calculated to promote the cause of justice. On the contrary it may tend to facilitate an injust and unworthy plea smacking of double-dealing. Unless bound by a clear binding provision of law, such a tendency does not deserve to be encouraged.

For the foregoing reasons, I am constrained to quash and set aside the impugned order and send the case back to the Appellate Authority to decide the question of the nullity of the order of compromise and deal with the rights of the parties in accordance with law and in the light of the observations made above. The decision should be given without unreasonable delay because rent cases, as is well-settled, call for speedy determination, particularly if it relates to a plea of personal requirement of the landlord.

Parties are directed to appear before the Appellate Authority on 16th April, 1964. The petitioner is entitled to costs in this Court.