V.N. Raghavan vs V. Vijaya

Bakthavatsalam, J.—This Civil Revision Petition is filed under Article 227 of the Constitution of India, challenging an order of the District

Munsif, Coimbatore passed in E.P.No. 35 of 1988 in R.C.O.P.No. 9 of 1985 dated 15.9.1989.

The petitioner was a lessee of the premises which belonged to the respondent herein. The petitioner herein has been carrying on tailoring

business under the name and style of ""Suresh Tailors"". The respondent-landlady filed R.C.O.P.No. 9 of 1985 u/s 14 (1) (b) of Tamil Nadu

Buildings (Lease and Rent Control) Act for eviction. The petitioner herein did not file a counter in that petition before the Rent Controller. On

8.2.1985, a memo was filed before the Rent Controller which is to the following effect:

...Memo filed by the respondent. The respondent agreed to vacate the premises within six months and prepared to deliver possession. Therefore it

is prayed Hon''ble Court may be pleased to grant six months time to vacate the premises and handover possession to the landlord.

Based on this memo, an order was passed by the Rent Controller which runs as follows:

...Memo filed. Recorded. Petition allowed. ""Time to vacate one month

This order was passed on 12.2.1985. When the petitioner herein did not vacate the premises, the respondent landlady filed E.P.No. 35 of 1988 to

execute the order passed in R.C.O.P.No. 9 of 1985. The petitioner herein opposed the said petition mainly on the ground that the order of the

Rent Controller passed in R.C.O.P.No. 9 of 1985 on 12.2.1985 is a nullity and that the order in R.C.O.P.No. 9 of 1985 has been obtained by

the landlady fraudulently. The main contention of the petitioner herein before the Executing Court was that the Rent Controller did not apply his

mind before passing the order based on the compromise memo and as such the said order is nullity and he was entitled to challenge the said order

passed in R.C.O.P.No. 9 of 1985 in the execution proceedings. But the Executing Court held that it is not open to the petitioner herein to

challenge the order passed by the Rent Controller based on filing a compromise memo and it was also held by the Executing Court that once the

petitioner herein had accepted to vacate the premises, it is not open to him to challenge the said order on any ground. The further ground taken by

the petitioner herein before the Executing Court was that he has filed a civil suit challenging the order passed in R.C.O.P.No. 9 of 1985. That

contention was also negatived by the Executing Court. Aggrieved by this, the revision petitioner is before this Court.

Mr. K. Govindarajan, the learned Counsel for the petitioner herein refers to me the compromise memo entered into between them before the

Rent Controller and the order of the Rent Controller in R.C.O.P.No. 9 of 1985 which are extracted above. The learned Counsel argues that

except filing the compromise memo, nothing was stated by the respondent therein regarding eviction and that the order of the Rent Controller is not

enforceable as the decree sought to be executed is a nullity. The learned Counsel further argues that the said order has not been passed under any

statutory provisions of the Act and the one line order passed by the Rent Controller indicates that the Court has not applied its mind and did not

consider the requirements of the premises by the landlady. The learned Counsel further argues, that except the compromise memo and the

petitioner was before the Rent Controller, no other material was placed before the Rent Controller to pass such an order. The learned Counsel

further argues that, assuming that the Rent Controller has passed the said order in R.C.O.P.No. 9 of 1985, based upon'' the compromise memo,

the court below ought to have gone into the question whether any material was available therein to pass an order of eviction. The learned Counsel

refers to me the decisions of the Supreme Court in K.K. Chari Vs. R.M. Seshadri, and the decision in Nagindas Ramdas Vs. Dalpatram Ichharam

alias Brijram and Others, and the decision in Inder Mohan Lal Vs. Ramesh Khanna,

Per contra, Mr. Sundaravaradan, the learned Counsel for the respondent argues that it cannot be said that the Executing Court has not applied

its mind, that once the compromise memo has been filed it has to be taken that the court has applied its mind with regard to eviction asked for u/s

14 (1) (b) of the Act. The learned Counsel further argues that no counter has been filed in the eviction petition filed u/s 14 (1) (b) of the Act and as

such the allegations made in the petition filed u/s 14 (1) (b) of the Act went undefended. The learned Counsel also relies upon the very same

decisions cited by the learned Counsel for the petitioner. The learned Counsel also argues that if the application for eviction is filed under any one

of the provisions of the Act, it is enough for the Rent Controller to order eviction and that it is not disputed that the petitioner herein has filed a

petition u/s 14 (1) (b) of the Act, and the ground therein was for demolition and re-construction. As such, the learned Counsel contends that the

compromise memo as well as the order passed by the Rent Controller based upon the compromise memo are not open to the petitioner herein to

challenge the same and that the Executing Court cannot go behind the order passed by the Rent Controller.

I have considered the arguments of Mr. K. Govindarajan, the learned Counsel for the petitioner and of Mr. Sundaravaradan, the learned

Counsel appearing for the respondent. After considering the contentions raised on both sides, I think the Civil Revision Petition itself is wholly

misconceived. I do not see any point in the contention raised by Mr. K. Govindarajan, that the order of the Rent controller passed in R.C.O.P.No.

9 of 1985 is a nullity. The memo of compromise filed in the lower Court states as follows:

..Memo filed by the respondent. The respondent agreed to vacate the premises within six months and prepared to deliver possession. Therefore, it

is prayed Hon''ble Court may be pleased to grant 6 months time to vacate the premises and handover possession to the landlord.

Based on the said compromise memo, the Rent Controller has passed the order to the following effect;

..Memo filed. Recorded. Petition allowed. Time to vacate one month.

It is not disputed that the eviction petition has been preferred u/s 14 (1) (b) of the Act. When a petition has been filed u/s 14 (1) (b) of the Act and

the petitioner herein has accepted to vacate the premises within a particular period, I do not see how the order of the Rent Controller can be said

to be a nullity. It is not as if the Rent Controller has passed an order erroneously to safeguard the interests of the landlady. If it is so, I can hold that

it is a nullity. When the petitioner-tenant himself accepted to vacate the premises within a particular period and also to handover the possession, I

do not see why the Rent Controller should pass an elaborate order, so to say, ""applying his mind."" It cannot be said that the Rent Controller has

not applied his mind at all. When the petitioner herein chose to vacate the premises and compromised with the landlady in the petition filed u/s 14

(1) (b) of the Act and that too, without filing a counter, I do not see what more is needed to be done by the Rent Controller. In K.K. Chari v.

R.M. Seshadri (1974)1 M.L.J. (S.C.)14 the Supreme Court had an occasion to consider the judgment of a single Judge of this Court. That case

arose out of section 10 of the Madras Buildings (Lease and Rent Control) Act. Justice Alagiriswami, while in the concurrent judgment has dealt

with the specific question, i.e., what is the meaning of the word ""is satisfied"" which occurred in section 10 of the said Act, which is pari materia also

with the words occurring in the. present Act i.e., ""If the Controller is satisfied."" Those words occurring in section 10 of the previous Act, are also

the words occurring in the present Act u/s 14 (1) (a). When considering those words, Alagiriswami, J., has held as follows:

...The words in section 10 of the Madras Buildings (Lease and Rent Control) Act, ''if the Controller is satisfied'' do not have any special

significance. An ordinary civil court trying a suit either on a mortgage or on a promissory note has necessarily to be satisfied about the execution of

the document, the passing of consideration etc., before it can pass a decree on the basis of either the mortgage or the promissory note. Therefore,

the fact that u/s 10 of the Controller has to be satisfied about the grounds for eviction does not mean that his satisfaction cannot be based on the

same considerations on the basis of which the civil courts can be satisfied. Under Order 23, Rule 3 of the Code of Civil Procedure, all matters to

be decided in a suit can be settled by means of a compromise. The application of the Code of Civil Procedure, is not excluded in proceedings

before the Rent Controller and in any case there is no reason why the principle underlying Order 23, Rule 3 should not apply to those proceedings.

It is not clear why a tenant should be treated as a minor or as an imbecile. In the case of a minor, Order 32, Rule 7 of the Civil Procedure Code,

specifically lays down that the court should be satisfied before it sanctions a compromise for it to be binding on a minor. There is no such provision

in the Rent Control Act. Therefore the time has come when a hard look must be taken on this point and it should be held that there is no objection

to a compromise consenting to an order of eviction in rent control proceedings.

...Of course, a compromise can be valid only if it is in accordance with the Act i.e., only if the landlord has asked for possession of the building on

one of the grounds laid down in the Act. For instance, a landlord merely on the ground that he is the owner of the building cannot come to the Rent

Controller and ask for possession of the property and the Rent Controller cannot pass a valid order merely because the tenant submits to an order

of eviction.

In my view, the case on hand squarely fells within the dicta decided by the Supreme Court in the above mentioned case. The above mentioned

case was followed by the decision in Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, . In the above mentioned decision, the

Supreme Court has held that the consent decree for possession passed by the Court is not necessarily a nullity, that 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 and the decree for eviction though apparently passed on the

basis of a compromise, would be valid. The Supreme Court has further held that the court''s satisfaction about existence of statutory ground for

eviction can be presumed from the compromise incorporated in the decree, I Inder Inder Mohan Lal Vs. Ramesh Khanna, the Supreme Court has

referred to the decision in Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, and affirmed the same.

It is worthwhile to mention the judgment reported in Middleton v. Baldoci 1950 K.B.657 in which it has been held as follows:

that a landlord seeking to recover possession against a tenant protected by the Rent Restriction Acts must establish the right to possession on one

of the grounds stated in the Acts, unless after possession had been claimed on such a ground, the tenant admitted facts to support it, in which event

the court need not itself investigate the matters of fact ""admitted"".

In this case, the Court has referred to the decision of Barton v. Fincham (1921)2 K.B.291 at 298 (Scrutton, L.J.,) in which it has been observed

as follows-

..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.

These English decisions have been referred to and approved by the Supreme Court in the case in K.K. Chari v. R.M. Seshadri (1974)1 M.L.J.

(S.C.)14. In Kamlabai and Others Vs. Mangilal Dulichand Mantri, the Supreme Court has held that where a tenant himself surrenders to lease by

mututal consent or compromise, there is no need of the permission and the Rent Controller is justified in treating the compromise petition as

application for filing the proceedings and passing orders. That is a case which arose out of C.P. and Berar Letting of Houses and Rent Control

Order, 1949, and in that case a compromise was accordingly filed before the Rent Controller and in the absence of any provision in the 1949

order for recording a compromise, the Rent Controller treated the petition for compromise as an application for filing the proceedings. I think the

same analogy can be applied to this case also and that once the petitioner herein has signed a memo of compromise and accepted to handover

delivery of the possession, it is not open to him to challenge the same as a nullity. In my view, it cannot be said as a nullity as contended by the

learned Counsel for the petitioner, in view of the decisions of the Supreme Court cited supra. As such, I am not able to agree with the contentions

of Mr. K. Govindarajan, that the order passed by the Rent Controller is a nullity and the Executing Court has no jurisdiction to pass an order to

execute the decree. The pendency of the civil suit has nothing to do with execution petition filed by the respondent.

It is well settled that this Court is exercising the discretionary jurisdiction under Article 227 of the Constitution. The mere fact that a different

view could have been taken by the Executing Court would be no ground to interfere with the impugned order. If all the relevant factors have been

borne in mind and correct legal principles applied then right or wrong if a view has been taken by the lower Court, in my view the interference

under Article 227 of the Constitution is wholly unwarranted. Further, the discretionary jurisdiction of this Court should not be exercised when the

lower Court has rendered justice, especially looking at the facts of the case and after convincing that the tenant, the petitioner herein, is trying to

drag on the proceedings inspite of the compromise which he had entered into with the respondent, landlady. As held by the Supreme Court in

Ganpat Ladha v. Sashikant Vishnu Shinde A.I.R.1978 S.C.855 in a petition under Article 227 of the Constitution, this Court should not interfere

with an order, which has been passed properly. It is also stated therein that this Court under Article 227 has a limited jurisdiction. The power

under Article 227 of the Constitution is one of judicial superintendence and cannot be exercised to upset the conclusions of facts, however

erroneous those may be. As such, I am of the view, that the order of the Rent Controller, which is impugned herein, is not an order to be interfered

with under Article 227 of the Constitution. There are no merits in the Civil Revision Petition and it is dismissed. However, there will be no order as

to costs.