Jagdish Kumar and others vs Harcharan Singh and another

Jaswant Singh, J.—A suit for eviction of Har Charan Singh respondent, herein, from a house situated in Monalia Alaf Shah, Partap Garh,

Jammu. instituted by the appellants on October 10, 1962, on the statutory ground of the premises being reasonably required by them for their own

occupation, was dismissed by the Sub-Judge, Jammu, by his judgment and decree dated August 14. 1964. On appeal the learned Additional

District Judge vide his judgment and decree dated March 25, 1968 affirmed the said judgment and decree. The second appeal preferred by the

appellants was allowed by me vide my judgment dated January 3, 1969, and the case remanded to the District Judge, Jammu. with the direction

that he should allow an opportunity to the appellants to prove the altered circumstances alleged by them to have supervened since the institution of

the suit namely the factum of marriages of Jagdish Chander and Krishen Lal appellants, which were stated to have taken place on May 14, 1964,

and February 14, 1966. respectively and the manner in which they had affected the reasonableness of the appellants' requirement of the suit house

and to decide the case afresh in accordance with law after allowing the contesting respondent an opportunity of adducing evidence in rebuttal.

After remand the appellants examined Prabh Dayal, Jagdish Chander, Thakur Dass and Des Raj. Jagdish Chander and Krishan Lal appellants

also went into the witness-box in support of their assertions. In rebuttal the contesting respondent examined Satish Chander and drib Dass and

closed his evidence on February 24, 1969.

On May 7, 1969, the parties entered into a compromise by making statements on solemn affirmation before Shri Harbans Lal, the then District

Judge, Jammu. The statement of the contesting respondent was to the effect that

he is convinced that the plaintiffs require the suit house for their personal occupation and the suit merits being decreed but he also requires time for

searching another house, that he has agreed with the plaintiffs that they may have a decree for his eviction but they would not dispossess him till the

end of December, 1972. that in case of his default to surrender possession of the premises to the plaintiffs during the aforesaid period he would be

liable to pay Rs. 10/-per diem as compensation to them for the period they fail to get possession, that this condition has been agreed upon to impel

him to handover possession of the house in question to the plaintiffs by the end of December, 1972. and not with a view to prevent the decree

being put into execution after the end of December, 1972.--

The learned Counsel for the plaintiffs also made a statement requesting the court to pass a decree in terms of the statement of the contesting

defendant. Thereupon the learned District Judge passed the following order:--

Counsel for the parties. Krishan Kumar plaintiff and S. Harcharan Singh defendant present.

The parties have compromised. Their statements have been recorded. The suit is decreed in the following terms on the basis of the compromise

arrived at.

A decree for ejectment with regard to the suit house is passed in favour of the plaintiffs against Harcharan Singh defendant. The plaintiff will

execute the decree only if the possession of the suit property is not delivered to them by the end of December. 1972. If the possession is not

delivered by this time, the defendant can be thrown out in execution of the decree and for the time spent in satisfaction of the decree, the plaintiffs

will be entitled to Rs. 10/- daily as compensation for use and occupation of the suit property. The incorporation of this condition shall not debar the

plaintiffs from executing the decree after December, 1972. The parties to bear their own costs.

After the expiry of the period specified in the statement of the contesting respondent, the appellants took out execution of the decree on January 2.

1973, in the court of the Sub-Judge, Jammu, which was resisted by the contesting respondent inter alia on the ground that the aforesaid decree

having been passed by the District Judge without ""satisfaction that the requirements under the Houses and Shops Rent Control Act. were

established"" it was a nullity in the eye of law and was inexecutable. After hearing the learned Counsel for the parties, the executing court acceded

to the contention raised on behalf of the contesting respondent and dismissed the execution - application holding that the same was not

maintainable. Aggrieved by this order the appellant took the matter in appeal to the District Judge, Jammu. Concurring with the executing court

Mirza Saif-ud-Ahmed. District Judge, dismissed the appeal by his order dated March 13, 1973 holding that the phraseology of Section 11 (i) (h)

of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966, made it incumbent on the court to judicially determine the reasonableness

of landlord's requirement, and that the decree for ejectment passed by his predecessor on the basis of the compromise arrived at between the

parties without applying his own mind and coming to the conclusion or recording a finding to the effect that the appellants reasonably required the

house for their personal occupation was a nullity. In coming to this conclusion, the learned District Judge, relied upon two decisions of the Supreme

Court in Kaushalya Devi and Others Vs. Shri K.L. Bansal, and Ferozi Lal Jain Vs. Man Mal and Another, .

Dissatisfied with this order, the appellants preferred a further appeal to this court which came up for hearing before our learned brother Syed

Wasi-ud-Din, J. Being of the opinion that the point of law arising in the case was of considerable importance and was likely to govern a large

number of cases and the decision of a Division Bench of this court in Smt. Parkasho Devi v. Sardavi Lal 1973 Kash LJ 276. also required

reconsideration in view of the aforesaid decisions of the Supreme Court, his Lordship requested the Hon'ble Chief Justice to constitute a Full

Bench to go into this matter. This is how this appeal is before us.

Appearing in support of the appeal, Mr. Kotwal has urged that the mere fact that the District Judge had not while passing the decree expressly

recorded that he was satisfied about the reasonableness of the appellants' requirement does not in the facts and circumstances of the case have any

significance, that the learned District Judge was not right in observing that the decree sought to be executed was passed merely on the basis of the

compromise, that there wis also other material to establish the reasonableness of the appellants' requirement, that the fact that the contesting

respondent had himself made a statement on solemn affirmation on May 7, 1969. that he was convinced that the appellants required the suit house

for their personal occupation and that he required time up-to the end of December 1972. to vacite the premises showed that the court was

satisfied that the premises were reasonably required by the appellants for their own occupation.

Mr. Raina, has on the other hand, urged that the provisions of Section 11 (i) (h) of the Jammu and Kashmir Houses and Shops Rent Control

Act are mandatory, that before passing the decree for eviction it was necessary for the court to have satisfied itself about the reasonableness of the

requirement of the appellants after taking into consideration the balance of convenience of the parties and that the District Judge not having

determined the reasonableness of the appellants' requirement the decree passed by him is void.

I have given my thoughtful consideration to the submissions made by the learned counsel for the parties.

It is not disputed that the appellants' suit for eviction of the contesting respondent was based upon the statutory ground of reasonableness of the

former's requirement of the premises for their own occupation and that the court could have passed a decree on that ground.

The sole question for determination in this case is whether in the absence of the express observation by the then learned District Judge in his

order dated May 7, 1969, that he was satisfied that the suit premises was reasonably required by the appellants for their own occupation, the

decree passed by him is a nullity and hence inexecutable or whether the said satisfaction can be gathered from other material and circumstances

and the decree can be treated as valid and executable.

The sheet anchor of the stand taken on behalf of the contesting respondent as well as of the view expressed by the learned District Judge in the

impugned order that after the coming into force of the Rent Control Acts, the jurisdiction of the Court to pass a decree for recovery of possession

of any premises depended upon its satisfaction that one or more of the statutory grounds set out in the proviso to Section 11 (i) of the Jammu and

Kashmir Houses and Shops Rent Control Act. 1966, existed and where without such satisfaction the court proceeded to pass a decree for

eviction solely on the basis of compromise arrived at between the parties, the decree was a nullity and could not be enforced in execution are the

three decisions of the Supreme Court in Bahadur Singh and Another Vs. Muni Subrat Dass and Another, , Kaushalya Devi and Others Vs. Shri

K.L. Bansal, and Ferozi Lal Jain Vs. Man Mal and Another, .

Now in Bahadur Singh and Another Vs. Muni Subrat Dass and Another, , the decree passed on the basis of an award was held to be a nullity

and incapable of being enforced in execution on two grounds, firstly, because the landlord was not a party to the arbitration and secondly, that the

court had passed the decree without itself satisfying that the statutory grounds of eviction existed. It would be noticed that it was not indicated in

this decision as to how the satisfaction is to be expressed by the court or gathered from the materials.

In Kaushalya Devi and Others Vs. Shri K.L. Bansal, in which following the decision in Bahadur Singh and Another Vs. Muni Subrat Dass and

Another, it was held that the decree passed solely on the basis of the compromise without indicating that any of the statutory grounds mentioned in

Section 13 (i) of the Delhi and Aimer Rent Control Act (38 of 1952) existed was a nullity, the manner in which the court's satisfaction was to be

expressed or gathered, was not dealt with.

In Ferozi Lal Jain Vs. Man Mal and Another, their Lordships of the Supreme Court after adverting to Section 13 (i) of the Delhi and Aimer

Rent Control Act (38 of 1952) held that the decree for recovery of possession could be passed only if the court concerned was satisfied that one

or the other grounds of eviction mentioned in the Section were established. The following observations made by their Lordships in the case are

apposite:

From this provision (i.e.. Section 13 (1) of the Delhi and Ajmer Rent Control Act (38 of 1952)) it is clear that after the Rent Control Act. came

into force, a decree for recovery of possession can be passed by any court only if that court is satisfied that one or more of the grounds mentioned

in Section 13 (1) are established. Without such a satisfaction, the court is incompetent to pass a decree for possession. In other words, 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.

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 sub-

letting 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 has 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. Hence

the decree under execution must be held to be a nullity.

The aforesaid view expressed by the Supreme Court has undergone a radical change as will appear presently. In K.K. Chari Vs. R.M.

Seshadri, , which was a case of eviction under Sec. 10 of Tamil Nadu Buildings (Lease and Rent Control) Act. (18 of 1960), their Lordships of

the Supreme Court after an analytical and exhaustive review of their previous decisions bearing on the matter held:--

An order of eviction based on consent of the parties is not necessarily void if the.iurisdictional fact viz., the existence of one or more of the

conditions mentioned in Sec. 10 of Tamil Nadu Buildings (Lease and Rent Control) Act (18 of 1960), were shown to have existed when the court

made the consent order. Satisfaction of the court which is no doubt a pre-requisite for the order of eviction, need not be 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. 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.

The following observations made in the last mentioned case i.e., K.K. Chari Vs. R.M. Seshadri, by Vaidialingam, J., will amply repay perusal:

If the court had expressed its satisfaction in the order itself, that will conclude the matter. That the court was so satisfied can also be considered

from the point of view whether a stage had been reached in the proceedings for the court to apply its mind to the relevant question. Other materials

on record can also be taken into account to find out if the court was so satisfied. The High Court has proceeded on the basis that even if there was

material before the court when it passed the order of eviction by consent from which it can be shown that the court was satisfied about the

requirement of the landlord being bona fide, nevertheless such an order will be a nullity unless the Rent Controller, has given his decision in favour

of the landlord. In court opinion, this view is erroneous.

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 no 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. It is no doubt true that each case will have to be decided on its own facts to find out whether there Is any material to justify

an inference that an admission express of implied, has been made by the tenant about the existence of one or other of the statutory grounds.

It, will also be useful to refer to the following observations made in this decision by Alagiriswami. J:

Where the landlord specifically asks for possession on any one of the grounds on the basis of which he is entitled to ask for possession under the

provisions of the Act, there will be no objection to the tenant either submitting to an order of eviction or entering in to a compromise submitting to

an order of eviction. There is no magic in the words ""if the Controller is satisfied."" in Section 10 (3) (e)."" In this case their Lordships while adverting

to the decision in Ferozi Lal Jain Vs. Man Mal and Another, observed:

In the last decision in our opinion there is an indication as to how the satisfaction of a court can be expressed or gathered in a particular case. If a

stage had been reached in a particular proceeding for a court to apply its mind regarding the existence of a statutory condition, it may be held that it

was be satisfied about the plea of the landlord. Again from other material on record, it can be inferred that the court was so satisfied.

Again recently in Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, , their Lordships of the Supreme Court have held:

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 constitute a ground for eviction u/s 12 or Section 13 it will be presumed that the court was

satisfied about the existence of such statutory ground gad the decree for eviction though apparently passed on the basis of a compromise would be

valid.

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.

The following observations made in Para 29 of the judgment by Sarkaria, J., who spoke for the court are worth quoting:--

Be that as it may. in cases where an objection as to the non-executability of the decree on the ground of its being a nullity is taken, the executing

court is not competent to go behind the decree, if the decree on the face of it, discloses some material on the basis of which, the Rent Court should

be satisfied with regard to the existence of a statutory ground for eviction. In such a case it must accept and execute the decree as it stands. If on

the face of it. the decree does not show the existence of such material or jurisdictional fact, the Executing Court may look to the original record of

the trial court to ascertain whether there was any material furnishing a foundation for the trial Court's jurisdiction to pass the decree it did. The

moment it finds that prima facie such material existed, its task is complete. It is not necessary for it to go further and question the presumed or

expressed finding of the trial Court on the basis of that material. All that it has to see is whether there was some material on the basis of which the

Rent Court could have as distinguished from must have been satisfied as to the statutory ground for eviction. To allow the Executing Court to go

beyond that limit, would be to exalt it to the status of a super court sitting in appeal over the decision of the Rent Court. Since in the instant case,

there was a clear admission in the compromise, incorporated in the decree, of the fundamental facts that could constitute a ground for eviction u/s

12 (3) (a), the Executing Court was not competent to go behind the decree and question its validity.

Again In Laxmibai v. Ambajappa, AIR 1974 Kar 12, where in an appeal against the decree for eviction the tenant agreed that the appeal be

dismissed after giving time for vacating the premises it was held that the dismissal of the appeal in the circumstances could not be challenged as

void on the ground that it was passed by the court without giving reasons in support of its order and without satisfying itself that the ground on

which the landlord had sought the eviction of the tenant had been established.

In view of the recent clinching pronouncements of their Lordships of the Supreme Court referred to above, I am of the view that if at the time

of the passing of the decree, there is some material before the Court in the form of admission of the defendant or in the shape of evidence recorded

or produced in the case or other dependable material on the basis of which the court could be prima facie satisfied about the existence of a

statutory ground for eviction of the defendant, it will be presumed that the court was so satisfied and decree for eviction apparently passed on the

basis of compromise will be valid.

In the instant case the appellants had asked for a decree for eviction on a ground which was permissible' under the provisions of the Jammu

and Kashmir Houses and Shops Rent Control Act, they had also led evidence in support of their plea and the contesting respondent had also

adduced some evidence in rebuttal, a stage had also been reached for the court to apply its mind regarding the existence of the relevant statutory

condition, but realizing that the appellants had succeeded in making out a case for his eviction the contesting respondent had made a statement on

solemn affirmation clearly admitting therein that he was satisfied that the landlords required the premises for their own occupation and obtained

three and a half years time to vacate the premises. The provisions of Order 23 Rule 3 of the CPC which are not excluded from applicability to suits

for eviction under the Jammu and Kashmir Houses and Shops Rent Control Act also made it obligatory for the court to pass a decree in terms of

the compromise which was not unlawful. In the circumstances the satisfaction of the court about the existence of the statutory grounds on the basis

of which the landlords could have obtained a decree for 'eviction can be easily inferred.

That apart, the rulings relied upon by the District Judge have not got much bearing on the present case in view of the fact that there is a marked

difference between the language of the proviso to Section 11 (i) of our Act, i.e., J. & K. Houses and Shops Rent Control Act, and Section 13 of

the Delhi and Aimer Rent Control Act (38 of 1952) and Section 13 (1) (2) of the Bombay Rents Hotel and Lodging House Rates Control Act (57

of 1947). The important words ""if the court is satisfied"" occurring in the aforesaid Sections of the Delhi and Bombay Acts, do not find place in the

proviso of Section 11 (1) of our Act. In the absence of these words, it would be idle to insist that even after the admission by the tenant as to the

existence of a ground mentioned in the proviso to Sec. 11 (i) of our Act. it is necessary for the court to be satisfied that a statutory ground lor

eviction exists. Examined from any angle it is manifest that after the admission of the contesting defendant that he was convinced that the house was

required by the appellants for their own occupation and he would surrender possession thereof by the end of December, 1972, it was not

necessary for the District Judge to determine that fact judicially.

The aforesaid view expressed by me also receives support from a Full Bench decision of this court in Autar Singh Vs. Sohan Lal, where the

question for determination was whether the Rent Controller could fix a fair rent merely on the agreement of the tenant without taking into

consideration the relevant factors mentioned in Section 8 (a) of the Jammu and Kashmir Houses and Shops Rent Control Act. The following

observations made therein by His Lordship the Hon'ble Chief Justice who spoke for the Court are worth quoting:--

The section no doubt prescribes a particular mode and sets out a detailed standard for fixing fair rent of a house or shop taking into consideration

various factors for instance, the price of the land included in the house on the date of construction etc. There is, however, no provision which either

impliedly or expressly prohibits the parties from fixing a fair rent by agreement nor do these provisions prevent the Controller from giving effect to

such an agreement. In these circumstances it seems to us that the doctrine of estoppel against Statute cannot be called into aid in the instant case.

Furthermore, what has happened in the present case is that the parties by agreeing to a compromise and asking the court to fix fair rent in terms of

their agreement dissuaded it from discharging its statutory obligations in following the procedure laid down in sub-cls. (a) to (f) of Section 8

(supra). Not only this, but it is manifest that the court could have considered various circumstances mentioned in sub-clauses (a) to (S) of Section 8

only if the parties had produced relevant evidence before it. Where the parties did not lead any evidence on any of the factors mentioned in Section

8 but asked the court to pass an order in terms of their agreement, such a conduct of the parties clearly operates as an estoppel.

Lastly we are of the view that as the petitioner by agreeing to a particular rent to be fixed as fair rent did not choose to adduce any evidence before

the Controller nor allowed the respondent to adduce any such evidence, in the eye of law, the order fixing fair rent must be deemed to have taken

into consideration the factors mentioned in Section 8 and it was on this ground also a valid order.

It would also be worthwhile to refer in this connection to another decision of this court in Prabh Dayal v. Mohan Lal, AIR 1966 J & K 22

where Hon'ble Shri J. N. Wazir the erstwhile Chief Justice observed:

In a suit for ejectment it is duty of the court to see that a ground or grounds mentioned by the plaintiff in his plaint has or have been proved before

granting a decree in his favour. But if the tenant defendant agrees that the landlord plaintiff has a good claim for an order under the act and without

contesting the suit enters into an agreement with the plaintiff landlord to vacate the premises after a fixed period I fail to see why such a

compromise should not form the basis of the ejectment decree. In the instant care the court satisfied itself that a statutory ground for ejectment was

taken by the landlords and the defendant by agreeing to vacate the premises accepted the existence of that ground mentioned by the plaintiff in his

plaint. Under these circumstances in my opinion, the trial Court had jurisdiction to pass a decree on the basis of the compromise and was by no

means barred by the provisions of Section 11 of the Act from making a decree for ejectment in favour of the plaintiffs-landlords.

Keeping in view the preponderance of judicial opinion referred to above, I have no manner of doubt that in a suit for eviction of a tenant by a

landlord on any of the grounds mentioned in the proviso to Section 11 (1) of the Jammu and Kashmir Houses and Shops Rent Control Act, if the

tenant admits the existence of the ground pleaded by the landlord it becomes unnecessary for the court to determine judicially that the said ground

exists nor is the decree passed on the basis of that admission, rendered void. In this view of the matter it cannot be said that the Division Bench

decision of this Court in 1973 Kash LJ 276 was not correctly rendered.

In the result I would allow the appeal, set aside the orders passed by the courts below and hold that the decree dated May 7, 1969, passed by

the then District Judge, Jammu, is perfectly valid and executable. The parties are however, left to bear their own costs.

20-A. As Mr. Kotwal has expressed his readiness to allow the contesting respondent further time to vacate the premises upto the end of October,

1974, the execution of the decree will be held in abeyance till then. In case the contesting respondent still does not surrender possession of the suit

premises, it will be open to the appellants to ask the Executing Court to evict him.

S. Wasi-ud-Din, J.

I agree.

S. Murtaza Fazl Ali, C.J.

I have perused the lucid and elaborate judgment prepared by my learned brother Jaswant Singh, J., and I entirely agree with him. I would,

however, like to add a few words of my own on certain aspects of the master that were argued before us.

The facts and the propositions of law have been clearly adumbrated and enunciated by my learned brother, Jaswant Singh J., in his judgment

and it is not necessary for me to repeat the same. A careful analysis of the decisions of their Lordships of the Supreme Court and other High

Courts as discussed by Jaswant Singh, J., would clearly show that in matters where the court has to pass a decree for ejectment, some of the

following conditions must be satisfied.--

That the order passing a decree in terms of the corn promise must show ex facie the satisfaction regarding the grounds on which ejectment is

sought;

or

If the order does not give any reasons it is based on an admission of the party particularly the defendant from which the grounds for ejectment can

be spelled out;

or

There are materials on the record in the shape of admissions, pleadings or evidence, oral and documentary from which the court could have passed

a decree for ejectment if the said evidence was acceptable.

When the matter is before the Executing Court, it has only to look at the evidence for a prima facie satisfaction as to whether there are materials on

record justifying an order of ejectment on the grounds mentioned in the Act, and as pointed out by the Supreme Court it is not within the province

of the Executing Court to discuss the materials regarding the pros and cons for itself and to give a determinative findings as to whether a case for

ejectment has been made out or not. Applying these tests to the present case, we find that the following facts are clearly established:

(1) That there was undoubtedly a compromise between the parties on the basis of which the decree for ejectment was passed.

(2) That the compromise was based on an admission by the defendant his self wherein he tacitly admitted that the necessity of the plaintiff was

reasonable and genuine, and also agreed that a decree as prayed for be passed.

If this admission would have been in 'he suit itself, then there would have been no difficulty for the court, even if the suit was contested, in passing a

decree on the basis of the admission of the defendant. If that were the position, then it is obvious that the court could also pass a decree on the

basis of the compromise in view of the clear admission made by the defendant.

I might refer to two important arguments advanced by the learned Counsel for the respondent. In the first place it was argued that the

admission of the defendant merely says that he was satisfied that the plaintiff' required the premises for his personal necessity, but the admission

does not go to the extent of proving or alleging that the house was reasonably required by the plaintiff. It was suggested that the term 'reasonable

requirement' is stronger than mere personal necessity. This argument seems to me to be highly technical. The defendant clearly admitted that he

was convinced that the necessity of the plaintiff was made out. It implies that the admission related to the nature of the necessity pleaded by the

plaintiff. Further more in the admission the defendant has used the clear words that a decree may be passed as prayed for. This admission,

therefore, postulates that the defendant admitted that the premises were reasonably required, otherwise it is obvious that the suit could not have

been decreed as prayed for by the plaintiff. The plaintiff could succeed only if he had been able to satisfy the conditions mentioned in Section 11

(1) (h) of the Houses and Shops Rent Control Act and therefore the admission of the defendant that the suit may be decreed as prayed for clearly

implies that the defendant also admitted that the requirement of the plaintiff was reasonable. I have therefore, no hesitation in rejecting this

argument.

It was vehemently contended by the defendant respondent that so far as our Act is concerned, it contains an additional provision which is of a

mandatory character, and as there was no material on the record to prove the facts mentioned in this provision, the decree on the basis of the

compromise without taking into consideration the facts mentioned in the said provision is a nullity. This argument is based on a mis-conception and

mis-interpretation of the admission made by the defendant. The explanation to Section 11 (1) (h) runs thus:--

The court in determining the reasonableness of requirement for purposes of building or rebuilding shall have regard to the comparative public

benefit or disadvantage by extending or diminishing accommodation and in determining reasonableness of requirement for occupation shall have

regard to the comparative advantage or disadvantage of the landlord or the person for whose benefit the house or shop is held and of the tenant:

Provided that where the court thinks that the reasonable requirement of such occupation may be substantially satisfied by evicting the tenant from a

part only of the house or shop and allowing the tenant to continue occupation of the rest and the tenant agrees to such occupation, the court shall

pass a decree accordingly and fix a proportionately fair rent for the portion in occupation of the tenant, which portion shall henceforth constitute the

house or shop within clause (3) or clause (5) of Section 2 and the rent fixed shall be deemed to be the fair rent fixed u/s 8"". This provision enjoins

on the court to consider two factors. (1) the comparative advantages and disadvantages if eviction is ordered and (2) the question whether the

needs of the plaintiff would be satisfied even by partial eviction. A perusal of the admission of the defendant clearly shows that he was fully alive to

both these conditions and he has actually mentioned in his statement that his difficulty was that he was not in a position to get a house so soon and

therefore he would be satisfied if a long period was allowed to him for vacating the house. He also did not question the necessity of the plaintiff for

ejectment of the entire house, otherwise he would have said in his statement that a partial eviction may be ordered. Thus the two conditions

mentioned in the explanation were fully answered by the defendant in his statement and a consideration of his statement leads to the inescapable

conclusion that after a consideration of the comparative advantages and disadvantages the defendant thought that the balance of convenience lay in

favour of the landlord whose demands may be satisfied by passing a decree if the defendant is allowed about three and a had years' time to vacate

the premises. This was conceded by the plaintiff and accordingly the decree passed by the D. J, in the first instance specified that the decree was

to be executed after December, 1972. It is therefore clear that by virtue of the agreement between the parties the defendant got 3 years time to

look for a house and this therefore satisfied the demands of the tenant because he had got sufficient opportunity to make alternative arrangements

before the decree could be executed. In view of this admission, therefore, it is clear that the court must be deemed to have taken this aspect into

consideration and there is an implied finding on the comparative advantages and disadvantages as provided for in the Explanation to Section 11 (1)

(h) (Supra). Thus on a consideration of the totality of circumstances it is manifest that all the conditions required by Section 11 (1) (h) and the

Explanation thereto are fully satisfied and therefore it was not open to the executing court to go behind the decree which was based on a

compromise effected on the basis of the admission of the defendant himself.

I. therefore, agree that the appeal be allowed and the suit of the plaintiff be decreed but the decree shall not be executed till the end of

October, 1974. In this way the defendant has got about more than 5 years' time during which period he would be in a position to get an alternative

house after a decree for ejectment is passed.