Jalan Singh Nandlal vs Fida Hussain and Another

This is an appeal under-Section 23 of the High Court Act against the judgment of Mehta J., date 14-5-1951 in Civil Second Appeal No. 77 of (sic) The suit which has given rise to this appeals (sic) instituted by the Plaintiff-Appellant against the Defendant-Respondents for the recovery of arre (sic) of rent and ejectment from certain shop-premise (sic). The Plaintiff alleged that on 26-4-1944 the Defendants took from him on rent the premises in question for a period of one year on a monthly rent (sic) Rs. 26/- and that on this date the defends Ismail on his own behalf and on behalf of (sic) younger brother Fida Hussain executed a Kirayanama; that after the expiry of the period (sic) tenancy the Defendants continued to be the tenant of the Plaintiff on the terms and conditions (sic) bodied in the Kirayanama; that as the Defendant made a default in the payment of rent and the Plaintiff needed the premises for his own the Plaintiff on 4-11-1949 served upon the def ante a notice to quit asking them to deliver (sic) session of the premises on the expiry of the cu month and to pay the arrears of rent upto (sic) date of the notice within one month.

As the Defendants did not vacate the prem(sic) in spite of the notice the Plaintiff instituted a in the Court of Munsiff, Mandsaur on 6-12- (sic) for the recovery of possession of the premises (sic) for arrears of rent amounting to Rs. 187/14(sic) There was a claim for mesne profits also at (sic)rate of Rs. 45/- P.M. from 7-12-1949.

The Defendant Ismail without giving any specific reply as to the execution by him of the Kirayanama, pleaded that he had no authority to cute any Kirayanama on behalf of his young brother that he made no default in the payment of rent and that he had sent by money order (sic) amount of arrears of rent namely Rs. 187/14/(sic) the Plaintiff but the Plaintiff refused to accept (sic) He further stated that the tenancy had not be determined in accordance with law and that (sic) Plaintiff was not entitled to any relief. The Defendant Fida Hussain took the plea that he was (sic) a tenant of the Plaintiff; that he did not ex(sic) any Kirayanama in favour of the Plaintiff (sic) that, therefore, the question of determination of the tenancy or payment of arrears of rent did not arise. He also stated that the Plaintiff was already in possession of certain premises situated another Mohalla and was using those premises his residence and shop.

On these pleadings the trial court fran(sic)inter alia the following issues: (1) whether Defendant Ismail executed the Kirayanama and whether the Defendant Fida Hussain was bound by Kirayanama; (2) whether the Plaintiff refused accept the money-order for Rs. 187/14/- being amount of rent sent to him by the Defendants whether the tenancy was terminated in accords with law; (4) and whether the Plaintiff needed shop-premises for his own use.

After the evidence of some witnesses of Plaintiff was recorded, the parties settled the dispute arising out of the suit and on 28-8-19(sic) decree was passed by consent in terms of agreement. The terms of settlement provide there would be a decree for vacant possession gether with arrears of rent amounting to Rs. 187 and Rs. 234/- for mesne profits upto the of the decree and for future mesne profits at rate of Rs. 26/- P.M. The Defendants under to vacate the premises and make over the va(sic)ilon by 1-3-1951, and to pay the amount of (sic) and mesne profits due from them in the man(sic) specified in the agreement. The agreement (sic) mentioned that as the Plaintiff needed the (sic)ses for his own use, the Defendants would rate the premises by 1-3-1951.

As the Defendants did not vacate the pre(sic), before the agreed date, the Plaintiff took (sic) execution of the decree. The application for execution was resisted by the Defendants on the (sic)ound that the consent decree for ejectment was (sic) passed on any of the grounds stated in Section 4, (sic)ya Bharat Sthan Niyantran Vidhan Samvat (sic) (hereinafter referred to as the Act); that the (sic) being contrary to the provisions of the Act, is not executable and that, therefore, they could not be ejected from the premises. This contention (sic) negatived by the executing Court and the (sic)cution case was directed to proceed. The judgment debtors then appealed to the Court of Dis(sic) Judge, Mandsaur. The learned District Judge (sic) held the order of the executing Court. There upon the judgment-debtors preferred a second appeal to this Court.

Mehta J. who heard the appeal took the view (sic) under the Act a (sic)enant could be ejected only (sic) the grounds mentioned in Section 4 of the Act; that a tenant could not contract himself out of these provisions and consent to a decree for eviction; that it was competent for the executing Court to (sic) behind the compromise decree and find out whether it was inexecutable on account of its being consistent with the provisions of the Act; that (sic) in the present case the Plaintiff sought ejectment mainly on the ground that he required the (sic)mises for his own use and as the trial Court (sic) no finding as to the existence of this ground (sic) ejectment, the executing Court must make an (sic)ry as to whether the Plaintiff was entitled (sic)eject the Respondents u/s 4(g) of the (sic). He accordingly remanded the case to the (sic) Court for an enquiry whether the Plaintiff (sic) made out any ground u/s 4 of the Act (sic) the ejectment of the Respondents.

In this appeal Mr. Chitale learned Counsel (sic)earing on behalf of the Appellant contended (sic) the learned Single Judge erred in permitting Respondents to raise the objection in the execution proceedings, that the decree-holder had not (sic) out any ground u/s 4 of the Act for (sic)ent and, therefore, they could not execute (sic) compromise decree. It was said that an executing (sic) could not question the validity, the legality (sic)ectness of a decree when there was nothing (sic)how that the Court passing the decree had no (sic)ent Jurisdiction to pass it and that the Court (sic) the decree was not competent to make (sic)uiry into the facts to find out whether the (sic) passing it had or had no jurisdiction to do (sic).

Learned Counsel for the Appellant proceeded to (sic) that the Plaintiff founded his suit for ejectment on the allegation that the tenancy had been (sic)mined by a valid notice and that the defen(sic)ell into arrears of rent and further that the premises in question for his own (sic) the Respondents could have resisted the (sic) on the ground that they were not in arrears (sic)t or that the landlord did not require the (sic) for purposes stated in Section 4(g) of the (sic)

(sic) instead they chose to settle the dispute (sic) agreed to pay the arrears of rent, and accept(sic) fact that the Plaintiff needed the house (sic) own use further agreed to vacate the pre(sic) by 1-3-1951; that Section 12 of the Act which provided that no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 4 did not mean that no decree for ejectment could be made if the parties agreed that it should be made; that there was nothing in the Sthan Niyantran Vidhan Samvat 2006 to prevent a tenant from forgoing the protection given under the Act and agreeing to vacate the premises; that, therefore, the compromise made by the Defendants was perfectly lawful and the decree passed on the basis of the compromise was valid, binding and conclusive between the parties so long as it was not set aside either in appeal or revision and the Defendants were estopped from challenging its validity in execution proceedings.

It was further argued that even if the compromise was not in conformity with the provisions of the Act the executing Court could not go into the question whether the agreement on which the decree was passed was or was not lawful and that it was for the Court passing the decree to consider whether under Order 23, Rule 3 the agreement was according to law and that though the consent decree may not be according to law, it could not be said to be a nullity as having been made by a Court without jurisdiction. Learned Counsel pointed out that the terms of the consent decree and the pleadings of the parties showed that the real ground on which the decree for eviction was passed was non-payment of rent by the Defendant-tenants and the fact of the premises being required by the Plaintiff for his own use.

In support of his contentions Mr. Chitale relied on - ''Satishchandra v. Bimalendu Sen'' AIR 1951 Gau 27 (A); - Sahabuddin Vs. Mohan Lal, ; - S. Raja Ghetty and Others Vs. Jagannathadas Govindas and Others, ; - (Sahu) Shyam Lal Vs. M. Shayamlal, ; - ''Bajirao Narhar v. Sakharam Balvant'' AIR 1931 Bom 295 (E); - AIR 1949 131 (Nagpur) ; - AIR 1943 325 (Nagpur) ; - ''Hriday Nath v. Ramchandra'' AIR 1921 Cal 34 (FB) (H).

In reply the argument of Mr. Sanghi, learned Counsel for the Respondents is that u/s 12, Sthan Niyantran Vidhan Samvat 2006 the Court has no jurisdiction to pass any decree for ejectment unless there is in existence one of the several circumstances mentioned in Section 4 of the Act; that Sections 4 and 12 contemplate that the court must find on the evidence on record or on the admission of the tenant that there exists one or more of the grounds, stated in Section 4 for the ejectment of the tenant; that apart from such an admission of the tenant leading to an order for possession no different in kind from one made in invitum, the Court cannot give effect to an agreement, whether by way of compromise or otherwise inconsistent with the provisions of Section 4 and pass a decree for eviction of the tenant.

It is further argued that an executing Court is not always bound to execute a consent decree according to its terms; that a consent decree is a mere creature of agreement between the parties; that a contract between the parties is not the less a contract and subject to the incidents of a contract because there is superadded to it the command of a Judge and that if the compromise in terms of which the decree has been passed is shown to be unlawful, the decree would be unenforceable and the validity of such a decree can be challenged in execution.

Mr. Sanghi further submitted that the ground on which a consent decree is passed is the factum of agreement between the parties and the motives which impelled the parties to come to an agreement do not in any sense form the basis of the consent decree and that, therefore, merely because in this case there was a decree for rent and the decree recited that the Plaintiff-Appellant needed the premises for his own use, it could not be said that the decree for ejectment was made on the grounds covered by Clauses (a) and (g) of Section 4 of the Act and was one which on the face of it was a valid decree. The decisions to which we have been referred by the learned Counsel for the Respondents in support of his arguments are - ''Sm. Parbati Debi v. Dr. S.N. Sen'' 50 Cal WN 242 (I); - ''Sm. Kironsashi Dassee v. Hirendra Nath Das'' 50 Cal WN 245 (J); - ''Manick Chandra v. Hari-pada Roy'' AIR 1949 Cal 151 (K); - Harrison Road Properties Vs. Ramdhondas Jhajharia, ; - ''Barton and Michell v. F''incham'' (1921) 2 KB 291 (M); - ''Rossiter v. Langley'' (1925) 1 KB 741 (N).

With great respect to Mehta J., and after careful consideration of the reasons advanced by him and the arguments of learned Counsel appearing before us, I do not find myself in agreement with his decision. I think the executing Court was right in overruling the objection of the Respondents that the consent decree was not executable. It appears to me that though the main question raised by this appeal is one of the powers of the executing Court to question the validity, legality or correctness of a decree, the really important question in this case is, whether u/s 12 of the Act a consent decree for ejectment can be passed. It is well settled that an executing Court must take and execute a decree as it stands except where it is shown that the Court passing a decree had no inherent jurisdiction to pass it. It is only when a decree on the face of it appears to be null and void as being passed by a Court without jurisdiction that the executing Court has jurisdiction to refuse to execute the decree.

The Court executing the decree is not competent to embark on an enquiry into facts tending to show that the Court which passed it had no jurisdiction to do so. A decree may not be according to law yet it is binding arid conclusive between the parties until it is set aside either in appeal or in revision and the executing Court has no jurisdiction to refuse to execute the decree on the ground that it is not according to law. ''See - V. Ramaswami Ayyangar and Others Vs. T.N.V. Kailasa Thevar, ; - AIR 1933 61 (Privy Council) ; - ''Sri Raja Papamma Rao v. Sri Vira Pratapa H.V. Ramachandra Razu'' 19 Mad 249 (Q); - Gora Chand Haldar and Another Vs. Prafulla Kumar Roy and Others, : - AIR 1943 325 (Nagpur) ''.

Mr. Sanghi learned Counsel for the Respondents did not dispute this proposition which is now too firmly established to admit of any challenge. He, however, sought to get over the difficulty created in his way by this proposition by contending that the learned Munsiff had no jurisdiction to pass a consent decree for ejectment against the Respondents in terms of the compromise as it offended against the provisions of Sections 4 and 12, Sthan Niyantran Vidhan. I am unable to accept this contention as sound. Section 12 of the Act no doubt provides that in all suits pending at the date of the coming into force of the Act no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 4. These provisions are obviously intended in the interest of the tenants and to give some protection to them from being; turned off from their residences by rapacious landlords, in these days of shortage of accommodation.

These provisions do not confer any benefit the landlords. They do not furnish any addition grounds for ejectment. The grounds for (sic)ment remain what they are under the Tra(sic) of Property Act. Sections 4 and 12 only give(sic)tection to the tenant from ejectment and fur(sic) him a new defence. That being so, there can no occasion for the operation of statutory re(sic)tion on the Court''s power to pass a decree ejectment when there is no dispute between landlord and the tenant as to ejectment and Court is not called upon to adjudicate upon question whether having regard to the provision of S. 4 the tenant is liable to be ejected. Section 12 does not mean that even if the tenant is w(sic) to vacate the premises forthwith or at a (sic)date according to his convenience, the Court not pass a decree for ejectment unless there existence one or more of the grounds men(sic) in Section 4.

Such a construction of Section 12 would clearly the detriment of the tenant and in some case the benefit of the landlords, quite contrary obvious intention of the legislature to afford measure of protection to the tenants from landlords and not from themselves. The le(sic) Single Judge took the view that it was not (sic) to the Respondents to contract out of the (sic)sions of Section 4 of the Act and by agreeing (sic) suit to give up possession by 1-3-1951, they tracted out of those provisions. He relied on decision of the Bombay Hgh Court in - Master General, Bombay v. Chenmal'' AIR Bom 389 (S) and of the Lahore High Court- ''L. Prem Parkash v. Mohanlal'' AIR 1943 268 (T). To my mind, the question of contract out of the provisions of the Act does not (sic) arise in the present case. We are not co(sic) here with a tenant who, having agreed in contract of tenancy not to avail himself (sic) protection which the Act gives him, has cla(sic) that protection on being sued by the for the recovery of possession of the tenant premises.

Nor are we concerned with the question (sic) a tenant against whom a consent decree for (sic)tion was passed before the coming into (sic)the Act, is entitled to the benefit of Section 11 (sic)Act and claim the protection u/s 4. The (sic)tion before us is whether a tenant who has (sic) to give up possession in a suit instituted after coming into force of the Act and allowed a (sic) decree to be passed on the agreement, can the protection u/s 4 and resist the execute of the decree on the ground that it was not (sic) on any of the grounds stated in Section 4, No(sic) pointed out by Scrutton L.J. in - ''1921 2 291 (M)'', which case I propose to consider later a tenant who agrees in the contract tenancy to give up possession on a named does not contract out of an Act putting statement restrictions on the power of the Court an order for recovery of possession. The (sic)ment to give up possession on a certain (sic) not an agreement to give up the right to (sic) protection under the Rent Control Act co(sic)ed.

The tenant is not estopped by such an (sic)ment on his part from claiming the pro(sic) which the Act gives him when the landlor proceedings against him to recover poss(sic) Similarly when a tenant agrees in a suit (sic) up possession on a certain date and to has order for recovery of possession made again(sic) he does not contract out of the Act. But (sic) a case when a consent decree has been pass tenant cannot change his mind thereafter (sic)m-the protection of Section 4 of the Act and say the (sic) decree is not executable as it was not (sic) on any one of the grounds specified in S. The reason is simple. The tenant having fore. (sic) in the suit the protection given to him by (sic) Act and failed to take the defence that he (sic) have taken and having allowed a decree possession to be made against him, cannot on doctrine of res judicata question the legality (sic) the accuracy of the decree which is binding (sic) conclusive between the parties.

Here, I must notice the decision of the Patna High Court in - Bhagwati Prasad Sah Vs. Radha Kishun Sah and Others, which was cited the Bar. In the Patna case when a landlord the tenant for ejectment, the tenant omitted claim the protection which the Bihar Rent control Act 1947 gave to him. A decree for ejectment was passed. In execution proceedings of the (sic)ree the tenant took the objection that he was liable to be evicted in execution of the decree certain grounds specified in Section 11 of the Bihar (sic) on which alone the eviction of a tenant could (sic) ordered, did not exist. The learned Judges of the Patna High Court held that though the tenant did not raise thy objection in the ejectment suit, he was not debarred by constructive (sic) judicata from raising the same objection in (sic)cution proceedings and that there could be no (sic) ppel against a statute.

Now, I do not say that the conclusion of the (sic) Judges, on the facts of the case and the (sic) of Section 11, Bihar Rent Control Act was (sic) But I must say that if the learned Judges (sic)ded to lay down as a general proposition that (sic) if a tenant omits to claim in an ejectment (sic) the statutory protection given to him and (sic) a decree for ejectment to be passed, he (sic) still be entitled to claim the benefit of the (sic)tion in execution proceedings and resist the (sic)tlon of the decree, then I differ from their (sic). After the passing of the decree in the (sic)intances indicated above, it is not the doc(sic) of estoppel by an act of party himself that, (sic)tive but it is the doctrine of res judicata (sic)etimes spoken of as estoppel by judgment prohibits the parties from challenging the or the correctness of the adjudication.

(sic) cases such as the one under consideration, (sic) can, therefore, be no question of the appli(sic) Ot the principle that there can be no (sic) against a statute and of the tenant being (sic) to claim the statutory protection in execution proceedings. To revert to the point of con(sic) out of the provisions of the Sthan (sic) Vidhan as it does not arise in the pre(sic) case it is unnecessary to consider the question whether on the decisions relied upon by the (sic) Single Judge or on the test laid down (sic) Soho Square Syndicate Ltd. v. E. Pollard (sic) L(sic)'' 19402 All ER 601 (V) and followed (sic) Madras High Court in - ''AIR 1950 Mad (sic) the Madhya Bharat Sthan Niyantran (sic) Samvat 2006 is an Act which prohibits a (sic) from contracting out of its provisions.

(sic) opinion there is nothing in the Act to (sic) a tenant from agreeing in a pending suit (sic) up possession of the tenanted premises (sic) with or at a future date. Such an (sic) with the landlord would be perfectly and being lawful, the Court is bound to (sic) and make a decree in accordance with it Order 23, Rule 3, Code of Civil Procedure.

(sic) be borne in mind that it is for the (sic)ing the decree to consider under Order 23, (sic)er the agreement between the parties is or is not lawful. The executing Court has no power to see whether the agreement on which the decree was passed was valid, lawful and binding on the parties see - AIR 1943 325 (Nagpur) (Sahu) Shyam Lal Vs. M. Shayamlal, ''. The question whether the compromise was lawful or not and could be recorded by the Court is one outside the scope of execution proceedings. The Respondents are, therefore, not entitled to challenge the validity of the consent decree in the execution proceedings on the ground that the compromise on which it was passed was unlawful as being contrary to Section 4, Sthan Niyantran Vidhan. I do not accept the contention of the learned Counsel for the Respondents that if none of the grounds mentioned in Section 4 were present, then a decree for ejectment passed by the Court whether on contest or on compromise, would be a decree of a Court without jurisdiction.

The jurisdiction of the Court to try a suit for ejectment does not depend upon any of the facts stated in Section 4. This section no doubt puts a statutory restriction on the power of the Court to pass a decree for ejectment in cases where a tenant is unwilling to give up possession. But the Court''s jurisdiction to try a suit for ejectment is quite independent of the circumstances mentioned in Section 4. In the exercise of that jurisdiction the Court is competent and has to determine whether the facts justifying ejectment exist. The decision as to these facts is the main question which the Court has to decide. The Court has not to find these facts to enable itself to obtain jurisdiction before proceedings to decide whether there are grounds for ejectment.

In this connection I need only refer to the decision of the Calcutta High Court in - ''AIR 1921 Cal 34 (PB) (H)'' and of this Court in - ''Jamuna Prasad v. Lachhiram'' AIR 1953 Mad 197 (W) where the distinction between the existence of jurisdiction and the exercise of jurisdiction, and the difference between collateral facts on which jurisdiction depends and facts which form a part of the very question which the Court has to determine in the exercise of its jurisdiction has been pointed out. If, therefore, in the exercise of its jurisdiction the Court does not give a finding as to any of the circumstances covered by Section 4 or arrives at a wrong decision as to them and passes a decree for ejectment, then the decree may not be according to law but it could not be deemed to be null and void as having been made by a Court having no inherent jurisdiction.

Learned Counsel for the Respondents though he was at first inclined to argue that Section 12 of the Act contemplated a decree by the Court after adjudication and did not permit the Court to pass an ejectment decree on consent, conceded later during the course of his arguments that the Court could pass a consent decree for ejectment. He, however, maintained that the terms of the decree or the proceedings in the suit must show that the real ground on which the agreement was made between the parties was the existence of one or more of the grounds referred to in Section 4. I am not impressed by this argument. If, as I have said already, the question whether the compromise is lawful or not and could be recorded by the Court cannot be enquired into by the executing Court, then it is immaterial to consider the ground and reasons which led the parties to the compromise.

The executing Court is concerned with the decree actually passed and not with the reasons given for passing the decree. As Mr. Chitale learned Counsel for the Appellant has rightly pointed out Section 12 of the Act does not say that a decree for ejectment in order to be valid must itself contain one or more of the grounds enumerated in Section 4 to justify it. In these circumstances I am of the view that the judgment-debtor Respondents cannot be allowed to raise the objection in the execution proceedings that the Appellant did not require the premises for his own use or that none of the grounds which would justify a decree for ejectment u/s 4, Sthan Niyantran Vidhan Samvat 2006 existed at the time of the passing of the decree.

The view I have taken is supported by the cases - Sahabuddin Vs. Mohan Lal, '' and -'' AIR 1951 Gau 27 (A)'', cited by Mr. Chitale. In the Allahabad case the tenant in a suit for ejectment entered into a compromise and agreed to vacate the house rented by him within six months. A compromise decree was accordingly passed. The tenant, however, did not vacate the premises by the appointed date. Thereupon the decree-holder applied for execution of the decree for ejectment. The tenant took the objection that the compromise decree was not executable u/s 15, U.P. (Temporary) Control of Rent and Eviction Act, 1947 which provided that in all pending suits for ejectment, no decree for eviction shall be passed except on one or more of the grounds mentioned in Section 3 of the Act. It was argued on behalf of the tenant that this provision invalidated the consent decree.

Malik C.J. rejected this objection and observed as follows:

Act III (3) of 1947 was passed for the benefit of the tenants on account of house shortage and to prevent their eviction. It was open to a tenant to forgo the protection given under the Act and to agree to vacate the premises on a fixed date. In the case before me the tenant entered into a compromise and he agreed to vacate the premises on 7-5-1947. The decree of the Court is based on this compromise. I do not see how the provisions of the Act can invalidate the consent decree.

It will be seen that the Allahabad case dealt with a provision similar to Section 12, Madhya Bharat Sthan Niyantran Vidhan and is directly In point here. In the. Assam case a tenant when sued for ejectment did not take advantage of the protection conferred by Section 6(1), Assam Urban Areas Rent Control Act, 1946 and instead entered into a compromise with the Plaintiff landlord agreeing to vacate the house by a certain date. A compromise decree was accordingly passed. The tenant, however, failed to vacate the premises and when the decree-holder took out execution proceedings, the tenant resisted the execution of the decree on the ground that as the decree-holder did not require the house ''bona fide'' for purposes enumerated in Clause (c) of the proviso to Section 6 of the Act, the decree-holder was not entitled to eject him u/s 6(1) of the Act, which provided that so long as the tenant paid to the full extent the rent allowable under the Act and performed the conditions of the tenancy no order or decree for the recovery of possession of any house shall be made or executed.

The learned Judges of the Assam High Court held that it was not open to the judgment-debtor-tenant to raise the objection in the course of the execution proceedings that the decree-holder did hot require the house ''bona fide'' and, that he could not execute the decree. They further said that:

There is nothing in the Act which prevents the tenant from contracting himself out of the privilege allowed to him by the Act, Instead of utilising the privilege given, he may (sic) to vacate on a date that is convenient to (sic) When he does so, the compromise or (sic) arrangement between the parties must be (sic) cepted and given effect to by the court (sic) Order 23 Rule 3 Code of Civil Procedure. The compromise in (sic) case therefore, was accepted and embodied the decree of the Court. The decree binds (sic) parties and is enforcible like any other (sic) contract between parties....

Mr. Sanghi learned Counsel for the Respondents sought to distinguish the Assam cases saying that in that the learned Judges re(sic) the passing of a consent decree as a "satisfac(sic) cause" within the meaning of Clause (c) of (sic) proviso to Section 6 disentitling the tenant to (sic) benefit of the provisions of Section 6(1). It is doubt true that the learned Judges observed (sic) assuming that the tenant could take in execute proceedings the objection he did, the con(sic) decree was a "satisfactory cause" within clause of the proviso to Section 6 for the eviction of (sic) tenant. But as I read the entire judgment (sic) Assam case, it seems to me that the; Judges decided the question of principle of executability of the compromise decree in (sic) case quite independently of their view of a (sic) promise decree as affording to the landlord satisfactory cause within Clause (c) of the p(sic) to Section 6, Assam Rent Control Act, for the ev(sic) of the tenant.

The Calcutta High Court cases and English decision relied upon by the learned Counsel for the Respondents are decisions on the working of the provisions of the Calcutta House Rent Control Order 1943 and of the English State "Increase of Rent and Mortgage Interest (Res(sic)tions) Act, 1920". Those decisions do not app(sic) to me to be of much assistance to the Respondent. In the Calcutta cases reported in 50 Cal W 242 (I) and 50 Cal W.N. 245 (J) and in- 1949 Cal 151 (K)'', the provision of the Calcutta House Rent Control Order that was- consider was as follows:

(3) Where any decree or order for the (sic) very of possession of any house has been made or before the 29th day of August, 1945 on ground that the tenant in possession of (sic) house is not entitled to the benefit of (sic) graph 9 by reason of his non-compliance the provisions of this ''Order as to the payment or deposit'' of rent due by him in respect of house, but the possession of such house h been recovered from the tenant.

(a). ....

(b) The court by which the decree or (sic) was made shall set aside the decree or (sic) if (i) any application is made in that (sic) by the judgment-debtor not later than the 29th day of September, 1945, and (ii) judgment-debtor pays to the decree-holder deposits in court within such time as the (sic) may order the rent in arrears together such portion of the suit or proceedings be determined by the court.

The main question that was consider in those cases was whether a decree for (sic)ment made by consent is a decree.

made on the ground that the tenant in session of the house is not entitled to the (sic) fit of paragraph 9 by reason of his non-(sic) pliance with the provisions.

Set out in the order regarding payment of (sic) In the two cases reported in - ''50 Cal W.N. (I) and, - ''50 Cal W.N. 245 (J)'', it was (sic) that a decree made on consent could not be (sic) a decree as may be set aside under the (sic)ons reproduced above. It was pointed out a consent decree was based on the agree(sic) of parties, and the motive for the agree-(sic) could not be described as the ground on (sic) the decree was made.

(sic) decisions were considered by the Calcutta High Court in -. ''AIR 1949 Cal 151 (K)'', Mukher- (sic) who delivered the judgment of the Court in AIR 1949 Cal 151 (K)'', thought it unnecessary (sic)cide the question as to whether or not the (sic)ions referred to above excluded consent de(sic) altogether. He laid down the principle that (sic) was anything in the decree or in the pro-(sic) to show conclusively that the decree was (sic) on the basis of the Rent Act then the provi(sic) on the Calcutta House Rent Control Order (sic)ed to above would be attracted and the de-(sic) whether made in invitum or by consent was (sic) to be vacated or set aside. To the same (sic) is the decision reported in - ''AIR 1951 Cal (L)'', which follow - ''AIR 1949 Cal 151 (K)''.

(sic) all these Calcutta cases the question whether (sic) regard to the restrictions put on the power the Court to pass an ejectment decree except certain circumstances mentioned in Section 9, Calcutta House Rent Control Order, the Court has jurisdication to make a decree for possession with, the present of the parties did not directly arise for (sic)mination. The question no doubt arose in (sic)etion with the contention that inasmuch as (sic) Court has no jurisdiction to make a decree for (sic)ssion unless there is in existence one of the (sic) circumstances mentioned in Section 9, Rent control Order and as the court must be presumed have acted within jurisdiction, a consent decree (sic) be taken to be included in the word ''decree'' (sic) in the provisions of Calcutta House Rent control Order already reproduced.

(sic) this point Clough J. in - ''50 Cal WN 245 after distinguishing the English cases in -(sic) 2 KB 291 (M)'' and - ''(1925) 1 KB 741 (sic) on which also reliance was placed by the Respondents before us, said that the provisions in (sic) Calcutta House Rent Control Order that no (sic) or order for possession could be made ex(sic) in certain circumstances did not mean that (sic) not be made if the parties agreed that (sic)ould be made, and that there was nothing. (sic) Calcutta House Rent Control Order to pre-(sic) the tenant from agreeing in a pending suit (sic)er up possession either forthwith or at a (sic) date and that such an agreement would (sic)fectly lawful. In the other Calcutta cases (sic) the court was inclined to hold that if the (sic) agreed by compromise that a decree for (sic)nt be passed, the Court was entitled to (sic) decree. It is thus plain that the Calcutta (sic) from supporting the contentions of the (sic)ents in the present case support the appel-(sic).

(sic) Coming now to the English decisions relied (sic) the learned Counsel for the Respondents, (sic) is the decision in - ''(1921) 2 KB 291 (sic) in that case a tenant agreed with the land-(sic) vacate the tenanted premises on a certain (sic) The tenant, however, subsequently refused (sic)ite. The landlord then relying on the agree(sic)ought a suit for possession. The question whether having regard to the provisions of (sic). Increase of Rent (Restrictions) Act 1920, Court could give effect to the agreement bet(sic) the parties made prior to the suit and pass (sic) for ejectment.

Section 5(1) of that Act was as follows:

No order or judgment for the recovery of possession of any dwelling house to which this Act applies, or for the ejectment of a tenant therefrom, shall be made or given unless-(a) any rent lawfully due from the tenant has not been paid, or any other obligations of the tenancy (whether in the contract of tenancy or in this Act) so far as the same is consistent with the provisions of this Act has been broken or not performed....

It was held in that case that the jurisdiction of the court to make an order for possession, was restricted by Section 5(1), and that if the conditions on which alone an order could be made were not fulfilled, an order could not be made in invitum notwithstanding any agreement of the parties to the contract, and that, consequently, the landlord could not recover. It will be seen that the decision in - ''Barton v. Fincham (M)'' dealt with the question of the power of the court to make an order for possession when there was a contest between the parties. The question of making an order by consent did not arise and in that case it was not held that the Court had no jurisdiction to pass an order for possession if the tenant consented to it in Court.

On the other hand Scrutton L.J. said at p. 298:

It was urged that the effect of our decision would be to prevent agreements in Court. If the tenant is willing to go out, I do not see why any order is wanted; let him go; but as at present advised I do not see any reason why the Judge on being satisfied that a tenant is then ready to go out, (not that he was once willing but has changed his mind) should not make an order for possession.

Learned Counsel for the Respondents laid some stress on the observation of Atkin L.J., at p. 299 to the effect that no agreement between the parties could give the Court the jurisdiction which, the legislature had enacted that they were not to have, and said that this observation suggested that the court had no jurisdiction to make an order for possession even with the consent of the tenant in court if the conditions prescribed by Section 5(1) for an order for the recovery of possession did not, exist. In my opinion the observations of Atkin L.J. must be read in the context of the facts of the case. When so read, it is clear, his Lordship was referring to an agreement arrived at between the parties prior to the suit and not to one in the suit itself, when he said that no agreement between the parties could give the Court the jurisdiction. The observations become obiter if they are taken to refer also to an agreement arrived at between the parties in the court as regards the delivery of possession of the premises. I do not think that this decision is of any help to the Respondents.

The other decision is the decision of Salter J. in - ''(1925) 1 KB 741 (N). In that case the court had to deal with a case u/s 5(2), Increase of Interest (Restrictions) Act of 1920. The provision was:

At the time of application for or making or giving of any order or judgment for the recovery of possession of any dwelling house or for the ejectment of a tenant therefrom, or in the case- of any such order or judgment which has been made or given, whether before or after the passing of this Act, and not executed at any subsequent date, the court may suspend execution of any such order or judgment or postpone the date of possession for such period or periods as; it thinks fit.

With respect to the above enactment it was held that where an order for possession was made by consent, then nevertheless the tenant was entitled to apply to the Court for suspension of execution or postponement of the date on which possession should be given. The question whether the Court could make an order for possession with the consent of the parties was not considered in that case. Nor does the judgment of Salter J. suggest that the Court had no jurisdiction to make a consent order for the delivery of possession. In this connection, I would refer particularly .to the remark of Salter J. that he was not differing from the decision in - ''Wellesley v. White'' (1921) 2 K B 204 (X).

In - ''Wellesley''s case (X)'', the provision that was considered was Section 5(3), Increase of Rent (Restrictions) Act 1920 which said:

Where any order or judgment has been made or given before the passing of this Act, but not executed, and, in the opinion of the Court the order or judgment would not have been made or given if this Act had been in force at the time when such order or judgment was made or given, the court may, on application by the- tenant, rescind or vary such order or judgment in such manner as the Court may think fit for the purpose of giving effect to this Act.

It was held that this Sub-section applied only to an order or judgment made or given in invitum as regards the tenant, and not to an order or judgment made or given by consent of the parties. Having regard to the words.

in the opinion of the Court, the order or judgment would not have been made or given if this Act had been in force at the time when such order or judgment was made or given.

which occur in Sub-section (3) of Section 5, the decision in-''Wellesley v. White (X)'' seems to me to hold that the conditions laid down in Section 5 for the making of an order for the recovery of possession do not prohibit the Court from making an order for the recovery of possession in absence of those conditions if the tenant consents to it. ''Wellesley''s case (X)'', therefore, supports the view I have taken.

Mr. Sanghi learned Counsel for the Respondents placed reliance also on the decision of the Rajasthan High Court in- Jagjivan Singh Vs. Sitaram, . From the certified copy of the judgment placed before us, it appears that in the Rajasthan case the question that was considered was whether when a compromise decree for ejectment was passed before the coming into force of the Rajasthan Premises (Control of Rent and Eviction) Act 1950, the tenant was entitled to resist the execution of the decree u/s 26 On the ground that one or other of the conditions mentioned in Section 13 of that Act had not been satisfied. Sections 13 and 26 of the Rajasthan Act are somewhat similar to Sections 4 and 11, M.B. Sthan Niyantran Vidhan Samvat 2006. As the question of the applicability of Section 11 of our Act to a consent decree made before the commencement of the Act is not before us for consideration, the Rajasthan case is not in point here.

Wanchoo C.J., who delivered the judgment of the Court no doubt observed that in the face of the provisions of Section 13, the Court could not pass a decree for ejectment merely because the parties agreed that a decree be so passed. But there does not appear to have been any argument at all on the question of the power of the Court to pass a consent decree for ejectment in a suit (sic) after the coming into force of the (sic) Act. In any event, in my opinion, the (sic) in Rajasthan case which has reference words of the Rajasthan Act has no application here.

Mr. Sanghi also referred us to a decision (sic) Bombay High Court in - Gurupadappa Shivlingappa Vs. Akbar Sayad Budan Kadri, , where it was that when in an ejectment suit a consent is passed creating a fresh contractual rela(sic) ween landlord and tenant, the tenant is to the benefit of the protection given by the bay Rent Control Act, 1947 and the tenant liable to deliver possession in spite of the of the decree. The distinction between t(sic) bay case and this is, that in the former the sent decree created a tenancy for a fixed while in the present case the consent decree not create any fresh tenancy.

In my judgment, for the reasons w(sic) have endeavoured to express, the Respondent agreeing to have an order for possession against them in the suit are not entitled to in the execution proceedings that the decre(sic)ed on the agreement is contrary to the pr(sic) of Section 4 of the Act and is not executable. (sic) reached this conclusion, it is not necessary me to consider whether the terms of the (sic) decree or the proceedings in the suit disclose existence of one or more of the circumstance mentioned in Section 4, Sthan Niyantran Vidhan vat 2006.

In the result I would accept this set aside the decision of-the learned Singl and restore the order of the executing Court jecting the Respondents'' objection that the (sic) is not executable. The Appellant shall (sic) costs in all the Courts from the Respondent.

A.H. Khan, J.

The facts of the case and the rulings by the Counsel of the parties in support of respective contentions have been elaborately forth and ably discussed by my learned (sic) Dixit J. in his judgment. It is, therefore necessary to travel over the ground covered him. I would, however, like to add a few (sic) of my own by way of further elucidation.

The view taken by the learned (sic) Bench Judge is that by agreeing to vacate house by a certain date, the tenant has contract himself out of the statute, namely the Sthan Niyantran Vidhan. But with great respect, I mit that there is no provision in the Sthan Niyantran Vidhan which forbids the tenant to a agree vacate the house, nor is there any embarge(sic) the landlord or the tenant not to enter compromise in a suit filed under the Vidhan(sic).

The learned Counsel for the Respondent laid great stress on Section 12 of the Vidhan and contended that unless there exists a ground (sic)tioned in Section 4 of the Vidhan, the court has jurisdiction to pass any decree for ejectment this argument overlooks two facts: First, that policy of the law is to encourage the part(sic) come to settlement between themselves than that their dispute be heard and determine by a tribunal. To achieve the end, Order 23 Code of Civil Procedure. has been enacted and its pr(sic) are mandatory. Secondly, Section 9(1), Sthan Niyantran Vidhan lays down that excepting the q(sic) of Court-fess and Process fees, all the pr(sic) of the, Code of Civil Procedure. would apply to proceeding stituted under the Vidhan and the rent cont(sic) would have the same powers as belong to a court (sic) the Code of Civil Procedure.

Now Order 23, Rule 3 of the Code of Civil Procedure. allows parties to adjust their disputes and it is incumbent on the Court to pass a decree in terms of the compromise, if the agreement is not unlawful. It is obvious that the provisions of the Sthan Niyantran Vidhan (sic) meant for the protection of the tenants, who say not be wrongly evicted by the landlord. But this does not mean that if a tenant agrees to (sic)ate the premises, such agreement is bad in law, nor can it be deemed to be against public policy. In short, in no way can such an agreement be said to be hit by Section 23, Contract Act. The agreement being v(sic)d and lawful, the court was bound to pass a decree according to it. In this view of the matter, I am of the opinion that Section 12 of the ban read with Section 9(1) of the same law, confers jurisdiction on the Court to pass a consent decree in suits filed under the Sthan Niyantran Vidhan.

Furthermore, the contention of the learned Counsel for the Respondent that unless one of the (sic)unds mentioned in Section 4 of the Vidhan exists, the court cannot pass p. decree loses all its force, when we turn to the compromise itself. The Plaintiff inter alia'' founded his suit for ejectment on the allegation that, the premises were needed for (sic) bis personal use. This happens to be one of the grounds in Section 4 of the Vidhan on the basis of which a landlord can seek ejectment. The Defendant in the adjustment between the parties has admitted the fact that the premises are so needed by the Plaintiff. In the circumstances, it cannot be said that the decree is passed on a ground other than the one mentioned in Section 4 of the Vidhan.

From the perusal of the certified copy of the judgment of the Rajasthan High Court, Jagjivan Singh Vs. Sitaram, '' placed before us by the learned Counsel for the Respondent, it appears that in the Rajasthan case "there was no mention in the compromise which was filed that the tenant admitted that the landlord needed the house for his own use". But in the case before (sic) the tenant has admitted that the premises are required for the personal use of the landlord and for this reason alone the present case is distinguishable from the one decided by the Rajasthan High Court. Furthermore the learned Judge (wanchoo, C.J.) has stated that if any condition on which a landlord is entitled to obtain ejectment has been alleged before the trial court and (sic)ded in favour of the landlord, then on the principle of ''res judicata'', the executing court could not go behind it.

In the compromise before us, the Defendant has admitted that the premises are required by the landlord for his own use. In the circumstances, (sic) question that may well be considered by us is whether a compromise decree is governed by the principles of res judicata. There was some judicial (sic)flict on the point but the decision in - ''In (sic) South American and Mexican Co.'', (1895) 1 (sic) 27 (Zl) has resolved the conflict and it has (sic) laid down that a consent decree has to all (sic)ts and purposes the same effect as a decree (sic)sed per invitum. Having admitted in the com(sic)se, which is the basis of the consent decree, (sic) the house is really needed by the landlord, (sic) is estoppel by judgment (Res Judicata) (sic) the Defendant and he cannot now questioned the legality or the validity of a consent de(sic) which is binding and conclusive between the (sic). It is of the essence of public morality (sic) a person should not be allowed to say one thing at one time and the opposite of it at another time-a moral precept on which the doctrine of estoppel is founded.

I, therefore, agree with my learned colleague that the appeal should be allowed with costs throughout.