Dilip Kumar Chowdhury and Another vs Rabindra Nath Sen

S.N. Sanyal, J.—This revisional application is at the instance of the defendants-judgment Debtors and it is directs against an order dated July 28, 1981 passed by the learned Judge, Seventh Bench, City Civil Court, Calcutta in Miscellaneous Case no. 74 of 1981 arising out of Ejectment Execution Case no. 119 of 1978. The decree holder - opposite party filed Ejectment Suit no. 579 of 1976 against the petitioners on May 28, 1976. The said suit was decreed on compromise on February 4, 1977. The opposite party put the said decree into execution on April 24, 1978. On August 19, 1978 the petitioners filed an application u/s 47 of the CPC and the said application was registered as Miscellaneous Case no. 1085 of 1978. In this application, the petitioners contended that the compromise decree was a nullity and the said decree was passed without complying with the provisions of Sec. 13(1) (i) of the West Bengal Premises Tenancy Act. As the decree was a nullity, it could not be executed. Written objection was filed lay the opposite party - decree holder. After hearing the parties, the learned Judge by his judgment dated November 24, 1979 held that the decree could not be considered to be a nullity or to be in executable on that ground. In coming to the conclusion, the learned Judge referred to various decisions placed before him on February 9, 1980 the petitioners filed an application under Order 47 Rule 1 read with Sec. 151 of the C. P. Code. The said application was registered as Miscellaneous Case no. 158 of 1980. The opposite party preferred an objection against the said application under Order 47 Rule 1. Thereafter, on January 17, 1981 the petitioners filed an application praying for permission to withdraw their application under Order 47 Rule 1 with liberty to file a fresh petition to the objection of the execution of the decree. By order dated January 17, 1981 the petitioners were permitted to withdraw their application and the learned court observed that no leave to file any application under Sec. 47 was necessary and, therefore, none required to be given. On the same date, i.e., January 17, 1981 the petitioners filed an application under Sec. 47 C. P. Code being Misc. Case no. 74 of 1981. The said Misc. Case no. 74 of 1981 has been dismissed by the learned Judge by his order dated July 18, 1981. The learned Judge held that the subsequent application under Sec. 47 C. P. Code was barred by the principles of constructive res judicata. The learned Judge also negatived the other contentions raised by the petitioners regarding the merits of the application. The learned Judge came to the finding that the decree under execution could not be said to be a nullity or to be in executable on the grounds taken by the petitioners.

Being aggrieved, the petitioners in the present Rule have challenged the said order of the learned Judge. Mr. Subodh Kumar Bhattacharyya, learned Advocate for the petitioners has raised various contentions. The first contention of Mr. Bhattacharyya is that the suit was instituted on the ground of default. According to Sec. 13(1) of the Premises Tenancy Act, no order or decree for recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except on one or more of the grounds mentioned in Sec. 13(1) of the Premises Tenancy Act. Mr. Bhattacharyya contends that before recording the compromise it was incumbent upon the learned Judge to come to a finding that the plaintiff was entitled to a decree on any of the grounds mentioned in Sec. 13(1). No such findings has been arrived at and, in such circumstances, the compromise decree for eviction of the defendants is a nullity. The next contention of Mr. Bhattacharyya is that as the decree was a nullity, there was no question of the application of the principles of res judicata and the learned court below was wrong in holding that the subsequent application under Sec. 47 C. P. Code was barred by res judicata. Mr. Bhattacharyya has argued that in the earlier application under Sec. 47 all the points challenging the execution of the decree were not mentioned and the petitioners were thus entitled to urge the same in the subsequent application. The contention of Mr. Bhattacharyya is that the decree is not in the form required to be made under the CPC as it does not conform to Form No. 23 of Appendix D of the Code of Civil Procedure. It has been further argued by Mr. Bhattacharyya that the defendants have complied with the terms of the decree as they have subsequently paid the amount due under the compromise decree. The grievance of Mr. Bhattacharyya is that the learned Judge has acted illegally and with material irregularity in disregarding the defendants application under Sec. 17(2) of the Premises Tenancy Act which remained undisposed of till the passing of the decree.

Mr. S.P. Roy Chowdhury, learned Advocate, for the opposite party, has argued that in view of Explanation VII to Sec. 11 C. P. Code the second application under Sec. 47 C. P. Code was barred by res judicata and the finding of the learned Judge in this respect could not be assailed. Mr. Roy Chowdhury contends that by the judgment dated November 24, 1979 the learned Judge had found that the decree was not a nullity and it was executable. In view of sec. 11 of the Code of Civil Procedure, it was not open to the petitioners to reagitate the question again in a subsequent proceeding. The remedy for petitioners lay in moving against the judgment dated November 24, 1979 dismissing the petitioner application under Sec. 47 C. P. Code (Misc. Case no. 1085 of 1978) before a superior court. The petitioners having not done so, the said order became final and it could not be challenged by the petitioners subsequently. Mr. Roy Chowdhury has argued that in view of the admission of the defendants in the petition of compromise which led to the decree that they were defaulters in payment of rent since November 1975 upto March 1976 the plaintiff was entitled to a decree on the ground mentioned in Sec. 13(1) (i) of the Premises Tenancy Act, Mr. Roy Chowdhury argues that when the court passed a decree on the basis of compromise, it was to be Held that the court was satisfied that a ground for eviction under Sec. 13(1) of the Premises Tenancy Act existed. In this connection reference has been made to Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, Mr. Roy Chowdhury has further argued that the second application under Sec 47 C. P. Code is barred by limitation as it was filed more than three years after the date of the decree. Referring to the case of Rasomay Mitra Vs. Smt. Lachmi Todi, Mr. Roy Chowdhury argues that Article 137 of the Limitation Act is applicable in the instant case. Mr. Roy Choudhury has also referred to the case of Roshan Lal and Another Vs. Madan Lal and Others, in support of his contention that if the compromise indicates either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because his landlord in the circumstances is entitled to such a decree under the law the decree cannot be challenged. As regards Mr. Bhattacharyya''s contention that the application under Sec. 17(2) of the Premises Tenancy Act was undisposed of, Mr. Roy Chowdhury argues that this objection cannot now be urged by the petitioners. It could have been urged when the earlier application under Sec. 47 C. P. Code was heard. It has been further argued that the petition of compromise would itself show that the application under Sec. 17(2) of the Premises Tenancy Act had no merit and the filing of the compromise would indicate that it was not pressed by implication.

Mr. Bhattacharyya has further argued that when the decree is a nullity, there can be no question of limitation and the petitioners can raise the objection under Sec 151 of the C.P. Code. Mr. Bhattacharyya has referred to the case of Upendranath Pal Vs. Sasthi Pal and Others, . He has also referred to the case of Kaushalya Devi and Others Vs. Shri K.L. Bansal, in support of his contention. It has been argued that if the order recording the compromise does not indicate that any of the statutory grounds of eviction existed, the decree would be a nullity.

The suit was instituted on May 28, 1976. The defendants appeared on August 5, 1976 and filed the application under Sec. 17(2) of the Premises Tenancy Act on September 1, 1976. Thereafter, Order no. 6 dated December 3, 1976 shows that the defendants did not take any step to serve the copy of the petition under Sec. 17(2) of the Premises Tenancy Act. On the same date, i.e., December 3, 1976 the parties filed a petition of compromise. The suit was decreed on compromise on February 4, 1977. In the application under Sec. 17(2) the defendants raised the contention that there was no joint tenancy but there were two separate tenancies and the rental was Rs. 150/- per month in favour of Mrinal Kanti and Rs. 100/- in favour of Dilip Kumar.

In the petition of compromise, the defendants categorically admitted the tenancy under the plaintiff and they also stated clearly that they were defaulters in payment of rent since November 1975 upto March 1976. The petition of compromise also clearly stated that the monthly rent was Rs. 250/-. In such circumstances, having regard to the fact that the defendants did not take any step to serve copy of the petition and they gave up their objections mentioned in the application under Sec. 17(2) by categorically admitting the tenancy, rate of rent and the default the contention of Mr. Roy Chowdhury that the application was not pressed by implication has great force. The decision in Upendranath Pal Vs. Sasthi Pal and Others, has no application to the facts of the present case. Moreover, this objection was not taken by the petitioners in their earlier application under Sec. 47 C, P. Code. The contention raised by the defendants in Misc. Case no. 1085 of 1978 (the first application under Sec 47) was decided by the learned Judge by his judgment dated November 24, 1979. The said judgment was not challenged by the defendants before any superior court. The defendants filed an application for review under Order 47 Rule 1 C. P. Code, but the said application was withdrawn. Instead, the present application, i.e. the second application under Sec. 47 C. P. Code has been filed. The finding of the learned Judge in Misc. Case 1085 of 1978 that the decree was not a nullity and it was executable would operate as res judicata in Misc. Case no. 74 of 1981 in view of Sec. 11 C.P. Code. The question raised in the earlier application under Sec. 47 was specifically to the point that the decree was a nullity and it was not executable and the learned Judge came to a finding on the same point. In the circumstances, there was no jurisdictional error on the part of the learned Judge when he came to the finding in Misc. Case no. 74 of 1981 that the principles of res judicata would apply.

The learned Judge has also considered the application on merits and he has also come to findings regarding the same. It has been held in Nagindas Ramdas vs. Dalpatram Iccharam alias Brijram and Others (supra) that the consent decree for possession passed by the Court is not necessarily a nullity. If there was a clear admission in the compromise incorporated in the decree of the fundamental facts that could construe a ground for eviction under Sec. 12 or Sec. 13 of Bombay Rents, Hotel and Lodging House Rates Control Act, it will be presumed that the Court was satisfied about the existence of such statutory ground and the decree for eviction though apparently passed on the basis of a compromise, would be valid. It has been further held that 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 and they by themselves can be made the foundation of the rights of the parties.

In Roshan Lal and Another Vs. Madan Lal and Others, it has been held as follows :

In order to get a decree or order for eviction against a tenant whose tenancy is governed by any Rent Restriction or Eviction Control Act the suitor must make out a case for eviction in accordance with the provisions of the Act. When the suit is contested the issue goes to trial. The Court passes a decree for eviction only if it is satisfied on evidence that a ground for passing such a decree in accordance with the requirement of the Statute has been established. Even when the trial proceeds ex parte, this is so. If, however, parties choose to enter into a compromise due to any reason such as to avoid the risk of protracted litigating expenses, it is open to them to do so. The Court can pass a decree on the basis of the compromise. In such a situation the only thing to be seen is whether the compromise is in violation of the requirement of the law. In other words, parties cannot be permitted to have a tenant''s eviction merely by agreement without anything more. The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord, in the circumstances, is entitled to have such a decree under the law.

In the instant case, in view of the admission in the compromise petition that there was default for five months, the court considered the terms to be legal and recorded the compromise. In such circumstances, it is to be held that the court was satisfied on consideration of the terms of the compromise that the agreement was lawful and the court recorded the compromise and passed a decree in accordance therewith. In Roshanlal''s case, it has been further held that passing a decree for eviction on adjudication of the requisite facts or on their admission in a compromise, either express or implied, is not different. Mr. Bhattachayya has referred to the case of Kaushalya Devi and Others Vs. Shri K.L. Bansal, . In that case, the terms of compromise did not indicate that any of the statutory grounds in Sec 13 of the Delhi and Ajmer Rent Control Act, 1952 existed. It was held that the compromise decree was passed without regard to the statutory provisions and the decree was a nullity; In the instant case, it has already been seen that necessary ingredients for passing a decree were there in the petition of compromise.

The learned Judge has considered the contention of Mr. Bhattacharyya regarding the decree not being in form.

The learned Judge has exercised his jurisdiction properly, and there is no reason for this Court interfere on that ground. The learned Judge has also considered the contention of the petitioner that the decree had been satisfied and a new tenancy had been created and he has negatived the plea in this respect The exercise of jurisdiction by the learned Judge in this respect does not call for interference and the learned Judge has not only found the application to be incompetent on the ground of res judicata but he has also gone into the case on merits.

The contention of Mr. Bhattacharyya that if the second application does not lie he is entitled to contend that the decree is a nullity by filing an application under Sec. 151 of the C. P. Code cannot be accepted. The contention raised by the petitioners regarding the decree being a nullity by an application under Sec. 47 C. P. Code was decided by the learned Judge on November 24, 1979. It cannot be said that it is open to the petitioners to avoid the principles of res judicata by an application under Sec 151 C. P. Code and raise the contention again.

Mr. Roy Chowdhury has argued that the second application under Sec. 47 C. P. Code is barred by limitation. In Rasomay Mitra Vs. Smt. Lachmi Todi, it has been held that Article 137 of the Limitation Act would govern an application under Sec. 47 of the C. P. Code. Mr. Bhattacharyya argues that Article 137 of the limitation Act is applicable but the question is when the limitation will begin to run. According to Article 137 of the Limitation Act, any other application for which no period of limitation is provided elsewhere is three years and the time runs from. the date when the right to apply accrues. In the instant case, the decree was passed on February 4, 1977, but the decree was not immediately executable. The defendants, were granted time for payment and in default of payment along with monthly profit on the due date, the plaintiff would be entitled to execute the decree before the expiry of the period of grace. The decree further mentioned that if the defendants obeyed the terms mentioned in the decree, the plaintiff would not be able to execute the decree. In the circumstances, it cannot be said that the right to apply accrued from the date of decree. In the instant case, thus, it cannot be said that the subsequent application under Sec. 47 C. P. Code was barred by limitation. The period of limitation has to be calculated when the right to apply accrues. In the result, the revisional application fails. The Rule is discharged. There will be no order as to costs. Let the records be sent below forthwith.