Shri K.L. Bansal vs Shrimati Kaushalya Devi and Others

Bedi, J.—Shri Raghunath Shanna, predecessor-in-interest of the Respondents, filed a suit u/s 13 of the Delhi and Ajmer Rent Control Act, 1952, for the eviction of his tenant Shri K.N. Bansal, on the 7th February 1956, on three grounds, namely, (1) default in payment of rent, (2) tenant was in possession of other suitable accommodation in Delhi, and (3) the premises were required by the landlord for residence for himself and the members of his family. The written statement controverting the above allegations was filed on the 8th March 1956 and the case was fixed for 4th of April 1956 for the evidence of four witnesses of the plaintiff. On that date only two witnesses were present who were bound down for the 5th June 1956 as the case could not by taken up on that date by the Court. The trial Judge being on leave on the 5th June 1956, the case was fixed for 6th of August 1956 for evidence and 6th of July 1956 was the date for scrutiny. A compromise petition was, however, put in Court and on the 6th of July 1956 the statements of the parties were recorded as a result of which Shri Kirpal Singh, Sub-Judge 1st Class, Delhi, passed a decree against the tenant on the same day in the following terms:-

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

According to the compromise the tenant was to remain in possession till the 31st December 1958 and to pay rent at the rate of Rs. 40/- per mensem up to that date. The tenant, Shri K.L. Bansal, however, did not vacate the premises on the 31st December 1958, and before the landlord could take out execution proceedings to eject him from the premises, he (the tenant) on the 16th of February 1959 made an application u/s 47 of the CPC challenging the validity of the decree alleging that the same had been passed in contravention of the provisions of section 13 of the Delhi and Ajmer Rent Control Act, 1952 (No. 38 of 1952), and that it was, therefore, void. He also pleaded that the landlord even after the 31st December 1958 had been realising rent from him and, therefore, a fresh tenancy had come into existence in his favour. He also claimed by means of another application u/s 57 of Act No. 59 of 1958 that the landlord having since died the decree was in executable by the landlord''s heirs. All these objections were turned down by Shri Shiv Dass Tyagi, Sub-Judge 1st Class, Delhi, who was seized of the case, on the 26th September, 1960 The tenant then went up in appeal to the Court of the Senior Sub-Judge, Delhi, which was dismissed on the 10th March 1961. Feeling dissatisfied against that, he has now come up to this Court in revision, which was admitted to a Division Bench by Capoor J. on 15th March 1961.

The parties were heard at considerable length. The points which require determination by us are-

(a) whether by virtue of section 13 of the Delhi and Ajmer Rent Control Act, 1952, it is obligatory on the Court to be satisfied regarding the grounds or ground of eviction of a tenant, or it is open to it to pass a valid decree of eviction just on the basis of a compromise arrived at between the parties;

(b) If the satisfaction of the Court is essential, can it be said in this case that there was any material on the basis of which such a satisfaction could be presumed, and

(c) whether the executing Court could go behind the decree.

For this purpose it is necessary to give the relevant portion of section 13 of the aforesaid Act, which runs as under:-

Protection of a tenant against eviction:-

(1) Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated).

Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the court is satisfied-

(a) that the tenant has neither paid nor tendered the whole of the arrears of rent due within one month of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the manner provided in section 106 of the Transfer of Property Act, 1882 (IV of 1882); or

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(e) that the premises let for residential purposes are required bona tide by the landlord who is the owner of such premises for occupation as a residence for himself or his family and that he has no other suitable accommodation.

The words underlined by me above for our purpose are the most important. According to the petitioner''s counsel this Act was made to safeguard and protect the interests of the tenants as against unscrupulous and capricious landlords, and if it was held that the mere consent of the tenant would be enough to justify the Court to pass a decree against him, the purpose of the Act would be reduced to a nullity. In this connection he first cited a number of authorities relating to the fixation of fair rent under the Act. It will, therefore, be helpful if we have before us the provisions of section 4(2) of the Act also which says-

(2) Subject to the provisions of sub-section (1), any agreement for the payment of rent in excess of the standard rent shall be null and void and shall be construed as if it were an agreement for the payment of the standard rent only.

4 In support of his contention the petitioner''s counsel cited Niranjun Singh v. Shri Bhagwan Ram AIR 1959 P&H. 95, in which it was held that sections 4, 5 and 6 of the East Punjab Urban Rent Restriction Act, 1949, impose a statutory obligation on the Court to refrain from making an order which is contrary to the provisions of the Act. A consent decree involves no judicial inquiry into the facts or law and must for all practical purposes be regarded as contract. If an agreement for payment of rent which is in excess of fair rent contravenes the provisions of the Act of 1949 and if a Controller''s order which is based upon the consent of the parties and not on the judgment of the Court embodies that agreement, it is obvious that the order itself contravenes the provisions of the Act. It may be that a consent decree is based on an agreement to which the tenant himself is a party, but it must be remembered that even a party for whose benefit a measure has been enacted is not competent to contract out of the protection of the Act. The same principle is enunciated in Punamchand v. S. Mukherjee 56 C.W.N. 15, and also in Lekh Ram v. Chander Bhan Rajinder Parkash (1962) 64 P.L.R. 197, which is a judgment of Falshaw J. (now Chief Justice of this Court) who held that fair rent cannot be fixed by agreement between the parties but must be determined by both the Rent Controller and the Appellate Authority on a consideration of the evidence on the record. It is the duty of the Rent Controller to weigh the material independently and not merely to accept the statements of the parties. Shamsher Bahadur J., however, in Shiv Lal v. Shori Lal (1961) 64 P.L.R. 467, took a contrary view and held that in such cases if a tenant agrees to pay a certain amount as fair rent, it is not necessary for the Rent Controller then to go into that question and fix the lair rent, as far as that tenant is concerned. The learned counsel for the respondents, however, submitted that the cases under the Rent Act are not applicable to the present case and that the fixation of fair rent is a judgment in rem and, therefore, it is certainly not proper at least to bind another tenant who was not at all a party to the compromise.

The petitioner''s counsel then quoted a number of cases u/s 13 of Rent Act. The first case cited was Maharaj Jagat Bahadur Singh v. Badri Parshad Seth (1954) 56 P.L.R. 549. This case related to a cinema building occupied by the respondent as a tenant. It was held therein by Falshaw J. that a tenant cannot contract himself out of the benefits of the East Punjab Urban Rent Restriction Act, 1949, the main object of which is the protection of tenants against landlords. In fact the primary object of the said Act and other Acts of this kind is quite clearly to prevent landlords from charging excessive rents, and from forcing tenants to pay increased rents by threat of ejectment. The underlying principle appears to be that any contract entered into by a tenant is likely to be made under pressure, and that therefore the tenants must be protected from its consequences and so to allow a landlord to enforce a contract would be against public policy. The second case quoted by the petitioner''s counsel was Charan Das v. Mohan Lal Goela (1962) 64 P.L.R. 363, in which Falshaw C.J. has held that reference by a landlord and his tenant to arbitration of dispute which can only be dealt with by the Courts under the Delhi and Ajmer Rent Control Act is illegal and, it would make no difference even if the grounds given in the reference are the same as are contained in section 13 of the Act. The decree for ejectment passed on the basis of the award is without jurisdiction and is not executable.

The respondents'' counsel, on the other hand, cited Babu Ram Sharma v. Pal Singh (1959) 61 P.L.R. 33, which is a Division Bench judgment and in which ostensibly a contrary view was taken, but that case has been distinguished by Falshaw C.J. in Charan Das v. Mohan Lal Goela (1962) 64 P.L.R. 363. In the Division Bench judgment, one of the grounds of ejectment was nonpayment of rent and the tenant appeared to have admitted his default in payment of the same. It was held by their Lordships in that case that under the circumstances there was ample material on the record on the basis of which the Rent Controller could be satisfied on the ground of eviction. The most useful judgment in our opinion was one by Falshaw J. in case Jagan Nath v. Jatinder Nath AIR 1961 P&H. 574. In this case the learned Judge discussed and relied upon the view propounded by Wanchoo C.J. in case Jagjivan Singh Vs. Sitaram, in which it was held that a Court cannot pass a decree for ejectment unless it is satisfied that one or the other of the conditions mentioned in section 13 is satisfied and that it is not open to a Court to pass a decree for ejectment merely because the parties agree that a decree be so passed. Korah Punnen v. Parameswara Kurup Vasudeva Kurup AIR 1956 Tra. Co. 1, which was also on the same point was discussed in that authority, in which almost all the arguments put forward before us on the point were discussed and there it was observed that if the tenant admits, after a suit for ejectment has been filed, that the landlord is entitled to possession on one of the statutory grounds the Court can make an appropriate order, or if the landlord has made some representation within the terms of the statute to the tenant and which is one of the ingredients of a ground on which possession can be ordered and the tenant accepts that representation and submits to an order, then also the Court will be fully justified in making a valid order of eviction. Each case therefore will have to be decided on its own facts and it will have to be seen whether there is any material to justify an inference that an admission, be it express or implied, has been made by the tenant on the existence of one of the statutory grounds. It was further observed in that case that where the plaintiff''s evidence has been led and the defendant then consents to the passing of a decree in return for concession of continued occupation of the premises for a time, the Court is fully justified in corning to the conclusion that the defendant admits the strength of the plaintiff''s case and consents to a decree for ejectment on the ground of personal requirement being passed in return for the concession.

Our special attention was drawn to a case, decided by Grover J., reported as Vas Dev Sharma v. Milkhi Ram Bhatia (1960) 62 P.L.R. 888. In that case a suit for ejectment was filed on the ground of personal necessity and non-payment of rent. Four witnesses were summoned when the tenant made a statement that a decree for ejectment be passed against him executable after the expiry of a period of 1 3/4 years. The learned Judge observed that from the conduct of the tenant therefore it must be implied that he admitted or was satisfied about the bona fide requirement of the landlord and it was for that reason that he offered a decree to be passed against himself. The decree passed against the tenant-petitioner in that case was affirmed by Grover J.

A careful persual of all these cases, however, clearly indicates that the satisfaction of the Court is essential before a valid decree could be passed. The respondents'' counsel, however, drew our attention to section 37 of the Act and contended that the Court in such cases could hold even a summary inquiry subject to the rules made under the Act and that the procedure followed in the Court of small Causes may be adopted. He also referred to rules 4 and 6 of the Rules made under the Act and to Order 23, rule 3 of the CPC and contended that no specific procedure is laid in this Act or the Rules which the Court under the Act could adopt for satisfying itself on the ground of eviction. He submitted that the written statement in this case had been put in Court in which although the other allegations were denied, yet it was admitted that the defendant was in possession of a house. The witnesses summoned by the landlord were present and, under the circumstances, taking into consideration the above material coupled with the compromise arrived at between the parties and the statements made by them in Court, it would be proper to hold that the Rent Controller was amply satisfied with the terms of ejectment and acted accordingly. The order on the basis of which the suit was decreed does not, however, give any indications whatsoever on the point of satisfaction of the Court which was obligatory. From the material therefore before us in this case we feel that the decree was passed only on the statements of the parties without the Rent Controller satisfying himself on the merits. Under the circumstances, this decree is contrary to the statutory provisions of the Act and is a nullity.

The next contention of the respondents'' counsel was that even if we hold that the decree was defective and a nullity, this could have been challenged in appeal and not in execution proceedings which has not been done in this case. He contended that such an objection could not be taken in execution proceedings, and in support of his contention he cited Jagjivan Singh Vs. Sitaram, , This proposition of law, however, in ordinary cases is not disputed, but it was urged by the petitioner''s counsel that the respondents are estopped from raising this objection at this stage, for the reason that the petitioner filed a suit against the decree-holder for a declaration that the said decree was a nullity, but the decree-holder took an objection that the suit was barred u/s 47 of the CPC and it was to avoid that objection that he had made that application. The contention of the petitioner''s counsel appears to be correct and the respondents are estopped from raising the above objection. The decree-holder could not blow hot and cold in the same breath.

As a result of the above finding, the revision petition is accepted, but taking into consideration all the facts and circumstances of this case and the intricate law point involved, we leave the parties to bear their own costs throughout.

P.C. Pandit, J.

I agree with my learned brother that this revision petition should be accepted. A bare reading of the relevant provisions of section 13 of the Act shows that no decree or order for the recovery of possession of the demised premises can be passed by any Court against a tenant, unless it was satisfied that one of the conditions laid down in that section for the eviction of the tenant is satisfied. Even if there is a contract between the parties containing some terms which are contrary to the provisions of this section, that contract should be ignored by the Court. A duty has been cast on the Court to satisfy itself in each case before passing a decree for ejectment that at least one of the conditions prescribed in this section exists. In other words, there should be sufficient material on the basis of which it could be said that it was so satisfied before passing the decree. That material must relate to one of the statutory grounds for eviction mentioned in this section and it should support the landlord''s contention. If in an ejectment suit the parties arrive at a compromise that a decree for ejectment be passed against the tenant, this by itself does not absolve the Court from its duty of satisfying itself that at least one of the conditions mentioned in section 13 of the Act is satisfied. If the tenant clearly admits in the compromise that the landlord is entitled to possession on one of the statutory grounds, the Court can pass an order for ejectment if it is satisfied that the compromise was a genuine and a bona fide one. In a case where the landlord has led evidence in support of his claim and then the tenant consents to the passing of the decree for ejectment against him, the Court can pass such a decree after taking into consideration this evidence and the implied admission of the tenant regarding the existence of one of the statutory conditions. The decision would, therefore, depend on the facts of each case. In the present case, the parties had not led any evidence and the written compromise and the statements of the parties thereon do not indicate that any one of the statutory grounds mentioned in section 13 of the Act existed. There was thus no material before the Court on the basis of which it could be said that it had satisfied itself about the existence of one of the statutory conditions laid down in this section. The decree for eviction was, consequently, a nullity and is not enforceable.