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PETITIONER: KANI RAM AND ANR.

       Vs.

RESPONDENT: SMT.  KAZANI AND ORS.

DATE OF JUDGMENT19/04/1972

BENCH: GROVER, A.N. BENCH: GROVER, A.N. HEGDE, K.S. MITTER, G.K.

CITATION:  1972 AIR 1427            1973 SCR  (1) 254

ACT: Delhi  &  Ajmer  Rent Control Act,  1952,  s  13.-Decree  of ejectment  passed  after  compromise  between  landlord  and tenant-Court   passing  decree  satisfied  on   facts   that provisions of s. 13 are complied with-Question whether  such decree is valid is a mixed question of fact and law to which principle of constructive res judicata applies.

HEADNOTE: J instituted a suit for ejectment and recovery of rent under clauses  (a)  and  (e) of s. 13 of the Delhi  &  Ajmer  Rent Control  Act 1952 in respect of a house situ-ate  in  Delhi, against  the  tenant.  The grounds on  which  ejectment  was sought  were  non-payment  of rent and  bona  fide  personal requirement of the landlord.  A decree of ejectment only was passed on the basis of compromise.  The decree holder  filed an application for execution.  The ten-ant raised objections one  of  which  was that the decree was  not  based  on  the findings of the Court but on a compromise and was  therefore a nullity.  The Executing Court dismissed the objections and the order was upheld in appeal by the Senior Sub Judge.  The High Court dismissed the revision petition.  Thereafter  the house  in  question  was  transferred  by  sale.   A   fresh application  for  execution was filed  against  the  present respondents  which was allowed by the Executing  Court.   An appeal having failed the respondents filed a revision in the High Court.  A Single Judge allowed the revision application accepting the respondents plea that the decree was a nullity and  rejecting  the  plea  of the  decree  holder  that  the objection  was  barred by constructive  res  judicata.   ’Me latter plea was rejected on the ground that the decision  of the courts in the first set of execution proceedings on  the question  of validity of the decree was a pure  question  of law.   The  decree  holders  appealed  to  this  Court  with certificate.  Allowing the appeal, HLD : The High Court fell into an error in considering  that the  decisions  of  the Courts  in  the  previous  execution proceedings  involved  a  pure  question  of  law.   In  the judgment of the Senior Subordinate Judge given in the  first set of execution proceedings the various circumstances  were considered by which the learned judge came to the conclusion that  the  court which passed the decree  for  eviction  was

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satisfied that one or more of the grounds mentioned in s. 13 of  the  Rent Control Act had been made out.   The  decision given in the first set of execution proceedings was thus not one  of  law only but of a mixed question of law  and  fact. Such  a decision undoubtedly would operate as res  judicata. In  execution  proceedings  s.  11  of  the  Code  of  Civil Procedure   does  not  apply  in  terms  but  the  rule   of constructive res judicata has always been applied. [256D, G- H] In  view  of  the above decision the  question  whether  the decree was a nullity did not survive for consideration. Bahadur Singh & Another v. Muni-Sabrat Dass & Another [1968] 2 S.C.R. 432, referred to. Mathura  Prasad  Bajoo  Jaiswal & Ors.  v.  Dossibai  N.  B. Jeejeebhoy, [1970] 3 S.C.R. 830, applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION : C.A. No. 247 of 1971. 255 Appeal  by Special Leave from the Judgment and  Order  dated the  27th  August,  1970 of the Delhi High  Court  in  Civil Revision No. 554 of 1969. O.   C. Mathur and P. C. Bhartari, for the appellants. Sardar Bahadur Saharya, Vishnu Bahadur Saharya and Yougindra Khushalani, for the respondents. The Judgment of the Court was delivered by Grover, J. This is an appeal by special  leave from a  judgment of the Delhi High Court. One Jaigopal instituted a suit for ejectment and recovery of rent under clauses (a) and (e) of s. 13 of the Delhi & Ajmer RentControl  Act  1952  in respect of a  house  situate  in Pahargunj against the   tenant.  The  grounds   on   which ejectment was sought were non-payment of rent and bona  fide personal requirement of the landlord. The suit was  resisted by the tenant on various groundsbut ultimately on June 2, 1956  a  decree for ejectment was passed on the basis  of  a compromise. The suit with regard to the recovery of  arrears of  rent was dismissed. On June 6, 1959, the, decree  holder filed an application for execution of the decree. Thetenant raised  various objections; one of the objections  was  that the decree sought to be executed was based on a  compromise and noton any findings of the court with the result  that it was a nullity.On September 7, 1960 the Executing Court dismissed   the   objection  and   allowed   the   execution application of the landlord. Thatorder  was  confirmed  in appeal  by  the Additional Senior Sub-Judge on  October  13, 1961.  The judgment-debtor went up in revision but the  same was dismissed by Mahajan J. on December 19, 1962. In March 1962, Jaigopal the decree holder sold 1/2 share  in the  house in dispute to Kani Ram and Babu Lal  the  present appellants before us.  The remaining I share was sold by him to one Ramjilal.  In the year 1963 an execution  application was  filed by the   appellants and Ramjilal after  obtaining the necessary orders of the court under Order 21, Rule 16 of the  Code of Civil Procedure.  In 1969 the  appellants  also obtained the order of the competent authority under the Slum Areas (Improvement and Clearance) Act to execute the  decree for eviction.  On February 9, 1968 Ramjilal sold his  right, title and interest in a portion of the house   in dispute to Tara  Chand, one of the judgment-debtors.  On July 26,  1968 an  application for execution was filed against the  present respondents  which was allowed by the Executing  Court.   An appeal  against  that order by the respondent  failed.   The

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matter 256 was  taken in revision by the respondent to the  High  Court and a learned single judge allowed the revision  application and directed the execution application to be dismissed. There are only two points which require determination.   One is  whether  the  matters  agitated in  the  second  set  of execution  proceedings were barred by the  applicability  of constructive  res  judicata.   The  other  is  whether   the original  decree  for  ejectment was valid  and  was  not  a nullity.  The High Court took the view that the decisions of the courts in the first set of execution proceedings did not operate as res judicata as the substantial question involved was purely one of law.  According to the High Court a decree for ejectment obtained under the Delhi & Ajmer Rent  Control Act  on the basis of compromise was a nullity.  Although  in the  previous  execution proceedings which  ended  with  the order  of Mahajan J., made on December 19, 1962 it had  been held  that the decree was valid that decision could not  bar an  objection  being raised by the judgment-debtors  in  the second set of proceedings with regard to the validity of the decree  which was a pure question of law.  In  our  judgment the  High Court fell into an error in considering  that  the decision of the courts in the previous execution proceedings ending  with the order of Mahajan J., made on  December  19, 1962  involved  a pure question of law.  A  perusal  of  the orders  both of the Executing Court and the first  appellate court  shows  that it was on an examination  of  the  entire facts  that the courts arrived at the conclusion  that  when the  decree for ejectment was made the Court  had  satisfied itself  about  the existence of the grounds which  had  been alleged in the petition filed by the landlord. It is true that s. 13 (1) of the Rent Control Act prohibited the  court from passing the decree or order for recovery  of possession  of any premises in favour of a landlord  against the  tenant unless the court was satisfied that one or  more of the grounds given in that provision existed; (See Bahadur Singh  & Another v. Muni Subrat Dass & Another) (1). In  the judgment  of the Senior Subordinate Judge dated October  30, 1961  given  in the first set of execution  proceedings  the various  circumstances were considered by which the  learned judge came to the conclusion that the court which passed the decree  for eviction was, satisfied that one or more of  the groundsmentioned  in  s. 13 of the Rent Control  Act  had been made out. The  decision given in the first set  of execution proceedings wasthus  not one of law only  but of  a  mixed  question of law and  fact.   Such  a  decision undoubtedly  would  operate as res judicata.   In  execution proceedings  s. 11 of the Code of Civil Procedure  does  not apply in terms but the rule of constructive res judicata has always been applied.  Even according to the judgment (1)  [1969] 2 S.C.R. 432 257 of  this  Court in Mathyra Prasad Baojoo Jaiswal &  Ors.  v. Dossibai N. B. Jeej’eebboy(1) on which the learned judge  of the High Court relied in the judgment under appeal laid down that  a  mixed question of law and fact  determined  in  the earlier  proceedings between the same parties could  not  be questioned in a subsequent proceeding between them.  We have no manner of doubt for these reasons that the High Court was wrong  in  not sustaining the judgment of  the  Senior  Sub- Judge, Delhi, dated November 14, 1969 by which the order  of the  Executing Court dated August 23, 1969 had been  upheld. In  this  view of the matter the second point calls  for  no decision.

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In  the result the appeal is allowed, the order of the  High Court  is set aside and that of the courts  below  restored. The appellants will be entitled to costs in this Court. G.C.                                   Appeal allowed. (1) [1970] 3 S.C.R. 830. 258