Kallu Khan vs Naval Kishore Bairathi

Shiv Kumar Sharma, J.—Whether the decree dated April, 23, 1992 passed by the trial Court in Regular Suit No. 60 of 1989, filed under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, called ''Rajasthan Rent Act'') directing the eviction of the petitioner is a nullity and as such inexecutable, is the only question that falls for decision in this revision.

This question arises in the following circumstances-

(i) The decree-holder-non-petitioner filed an execution petition against the judgment- debtor-petitioner for executing the decree for eviction passed in connection with property in question and requested that the judgment-debtor-petitioner be ousted from the property by a warrant of possession.

(ii) The judgment-debtor-petitioner submitted an application u/s 4 read with Section 151, CPC, mentioning therein that the decree passed in case No. 69/89, dated 23rd April, 1992 was not executable as description of the property stated in the plaint and in the compromise was different. Another objection with regard to executability of the decree was that it was passed on the basis of compromise by the Court, without satisfying itself as to the existence of the grounds of eviction under the Rajasthan Rent Act as such it was a nullity.

The executing Court dismissed the application of the judgment-debtor-petitioner vide its order dated 23rd August, 1996. Against the said order action for filing this revision has been resorted to.

I have given my anxious and thoughtful consideration to the rival contentions and carefully perused the impugned order.

Mr. L.K. Sharma, learned counsel for the petitioner vehemently canvasse that the decree was passed on the basis of compromise in contravention of Section; 13(1) of the Rajasthan Rent Act by the trial Court without satisfying itself that the ground of eviction existed. Accordingly the decree in so far as it directed delivery of possession of the premises to the landlord was a nullity and could not be executed.

Mr. L.K. Sharma, learned counsel placed reliance on Kaushalya Devi and Others Vs. Shri K.L. Bansal, in which the Hon''ble Apex Court held that decree passed by Court in ejectment suit in terms of compromise, without satisfying itself if the grounds for eviction existed, is a nullity and cannot be executed.

On the other hand Mr. B.L. Agrawal, learned counsel for the decree-holder-non-petitioner has supported the impugned order and placed reliance on Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, ; Roshan Lal and Another Vs. Madan Lal and Others, Kishan Lal v. Seo Prasad 1984 RLR 105 ; Hiralal Moolchand Doshi Vs. Barot Raman Lal Ranchhoddas (Dead) by L.Rs., and Janki Lal v. Paras Ram (S.B. Civil Revision No. 90 of 1995 decided on 13-3-1995 by this Court).

In Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, the Hon''ble Supreme Court has observed that 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 under the 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 a compromise, would be valid.

In Roshan Lal and Another Vs. Madan Lal and Others, considering the provisions contained in Order 23, Rule 3 of the Code of Civil Procedure, it has been held by the Hon''ble Apex Court that if the agreement or compromise for the eviction of the tenant is found, in the facts of a particular case, to be in violation pf a particular Rent Restriction or Control Act, the Court would refuse to record the compromise as it will not be a lawful agreement. If on the other hand, the Court is satisfied on consideration of the terms of the compromise and, if necessary, by considering them in the context of the pleadings and other materials in the case that the agreement is lawful, as in any other suit, so in an eviction suit, the Court is bound to record the compromise and pass a decree in accordance therewith.

This Court in Kishan Lal''s case (1984 RLR 105) (supra) has held that if a decree for ejectment is passed on the basis of compromise without finding regarding existence of any ground u/s 13(1) of the Rajasthan Rent Act but terms of compromise impliedly show that defendant admitted personal necessity of plaintiff although no express admission, such decree is valid and executable.

In Hiralal Moolchand Doshi Vs. Barot Raman Lal Ranchhoddas (Dead) by L.Rs., the Hon''ble Supreme Court has also echoed the same ratio as held in Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, . It has been laid down by the Apex Court that "an admission by the tenant about the existence of a statutory ground, expressly or impliedly, will be sufficient and there need not be any evidence before the Court on the merits of the grounds before the compromise order is passed. If there is an admission of the tenant, it will not be open to him to challenge its correctness as the admission made in judicial proceedings are absolutely binding on the parties. At any rate the decree cannot be called a nullity to enable the executing Court to go behind it."

In the instant case the defendant felt personal hard necessity of the plaintiff-decree-holder and incorporate this feeling in the compromise deed as under:

"Prativadi vadi ki Niji Sakht Aavashykta Ko Mehsoos Karta Hai."

(The defendant feels personal Hard necessity of the plaintiff).

This admission of the defendant-judgment- debtor was also incorporated in the decree passed on 23rd April, 1992. In Kaushalya Devi and Others Vs. Shri K.L. Bansal, relied upon by the learned counsel for the petitioner, the trial judge had recorded the following order-

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

And the decree was drawn up accordingly. In that case the trial Court had passed the decree without satisfying itself that the grounds of eviction existed. In my humble view ratio of Kaushlya Devi case is not applicable in the facts of the present case. The admission made by the judgment-debtor-petitioner as mentioned hereinabove clearly shows that the decree-holder-non-petitioner required the premises for the reasonably and bona fide use as also the fact that the decree-holder-plaintiff would suffer greater hardships in case the premises were not vacated. If the defendant felt personal hard necessity of the plaintiff in entering into compromise to vacate the premises and considering the said compromise the trial Court passed the decree for eviction, the question of reasonable and bona fide requirement, greater hardships and partial eviction enumerated in Section 13(i)(h) and 14(2) of the Rajasthan Rent Act were impliedly considered by the trial Court. The decree of the trial Court cannot be called a nullity and it was not open to the judgment-debtor-petitioner to challenge its correctness as the admission made by him in judicial proceedings is absolutely binding on him.

From the discussions made herein-above the principle that emerges is, that if at the time of the passing of the decree there was some material before the Court, on the basis of which, the Court could be prima facie satisfied about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the basis of a compromise, would be valid.

For the aforesaid reasons, I am of the view that the executing Court has not committed jurisdictional error in rejecting the application of the judgment-debtor-petitioner filed u/s 47 read with Section 151 of the Code of Civil Procedure. If the impugned order is allowed to stand, it would not occasion failure of justice.

In the result, the revision is dismissed with costs.