http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 12  

PETITIONER: HIRALAL MOOLCHAND DOSHI

       Vs.

RESPONDENT: BAROT RAMAN LAL RANCHHODDAS (DEAD) BY LRS.

DATE OF JUDGMENT18/02/1993

BENCH: YOGESHWAR DAYAL (J) BENCH: YOGESHWAR DAYAL (J) KASLIWAL, N.M. (J)

CITATION:  1993 AIR 1449            1993 SCR  (1)1113  1993 SCC  (2) 458        JT 1993 (4)    97  1993 SCALE  (1)629

ACT: Code of Civil Procedure, 1908. Order 23, Rule 3-Decree-When a nullity-Whether mere error in passing decree makes it a nullity-Word ’nullity’-Meaning of- Whether provision applicable to proceedings under the  Rents Acts-Compromise  Decree-Passing of-Satisfaction of Court  as to  existence  of statutory ground-Whether can  be  inferred impliedly from compromise decree. Section 47-Compromise decree-Execution of-Whether  executing court  can  permit the tenant to lead fresh evidence  as  to nullity and executability of decree. Bombay  Rents,  Hotel and Lodging House Rates  Control  Act, 1947. Section 12(3)(a), 13(1)(g) and 13(2)-Eviction of tenant-Non- payment  of  rent  and  bonafide  personal   use--Compromise decree-When a nullity and inexecutable-Court’s  satisfaction of  existence of statutory grounds whether can  be  inferred impliedly from compromise.

HEADNOTE: The appellant/landlord filed a suit against the  respondent- tenant  for recovery of possession of the  suit-premises  on the  grounds contained in Sections 12(3)(a), (e) and (g)  of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947.  viz.,  nonpayment of rent for a period  of  over  six months in spite of notice of demand; nuisance and bona  fide personal use. In  his written statement, the tenant pleaded that the  rent charged  was excessive; lie was not in arrears of  rent,  as alleged;  the  landlord did not require  the  suit  premises reasonably and bona fide; the tenant had a large family; and he  did  not  cause any nuisance, as  alleged,  and  greater hardship  would  be caused to the tenant if the  decree  for possession  was passed against him than it would be  to  the landlord if the decree was not passed. 1114 The trial court framed the issues, but the parties presented consent  terms before the court for passing decree in  those terms.   Accordingly, the court passed a  compromise  decree making  an  order below the consent terms that  the  parties were present and admitted the terms.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 12  

On  the failure of the tenant to deliver possession  of  the premises by the due date, as agreed, the  appellant-landlord filed  an  application  for  execution.   The  tenant  filed objections to the executability of the decree and, contended that an the eviction decree was not executable, as it was  a nullity,  and  that there was no material before  the  court which  passed  the decree to show the  availability  of  the various grounds of eviction alleged against the tenant. The  executing court held that the decree was not a  nullity and  was  executable.   This  was  affirmed  by  the   first appellate court.  However, a Single Judge of the High Court, in  further  revision  filed by the tenant,  held  that  the decree was not executable as it was a nullity. On analysis of the compromise, the High Court held that  the time  was  given on concession to the tenant to  vacate  the premises  ie. at the most it could be said that  the  tenant may  have  agreed  to handover possession  as  the  landlord required the premises reasonably and bona fide for  personal use  and  occupation,  but  on the  basis  of  this  implied admission,  the provisions of Section 13(2) of the Act  were not  satisfied;  that  the condition  to  be  satisfied  for attraction  of  Section 12(3) (a) was that  the  tenant  had neglected  to make payment of rent until the  expiration  of the  period of one month after notice as contemplated  under sub-section  (2)  of Section 12, and though the  notice  was given  by  the  landlord to the tenant  claiming  the  total arrears  of rent of Rs.372 and the notice was served on  the tenant in about 8 days, there was no material in the consent terms,  to show that the tenant had given up the  contention that  he had not neglected to pay, and that it was  for  the landlord  to prove that greater hardship would be caused  to him,  rather than to the tenant, before he could get  decree for   possession  on  the  ground  of   bona_fide   personal requirement  and the landlord had not pleaded in the  plaint to that effect. Allowing the appeal, preferred by the landlord, this Court, HELD:1.  A  decree  is said to be a nullity  if  it  is passed  by a court having no inherent jurisdiction.   Merely because a court erroneously pas- 1115 ses a decree or there is an error while passing the  decree, the  decree  cannot be called a nullity.  The decree  to  be called a nullity is to be understood in the sense that it is entry  vires the powers of the court passing the decree  and not merely voidable decree. [112 1 F] 2.1.Whenever  there is any lawful agreement, the  court  is bound  lo record the agreement or compromise.  There  is  no provision  in the Act which made Rule 3 of Order 23  of  the Code   of  Civil  procedure  inapplicable   to   proceedings contemplated by the Act.  Nor there is any provision in  the Act  which prohibits parties entering into a  compromise  in the suit for eviction filed under the Act. [1125B-C] 2.2.There is no doubt that if there is a contest, the court can  pass  a  decree  for eviction  only  if  the  court  is satisfied  about  the  existence  of  grounds  mentioned  in Sections 12(3)(a), 13(1)(g) and 13(2).  But the satisfaction can also be interred impliedly. [1123F] K.K.  Chari’  v.  R.M. Sheshadhri, A.I.R.  1973  S.C.  1311; Nagindass v. Dalpatram, A.I.R. 1974 S.C. 471.  Roshan lal v. madan lal A.I.R. 1975 S.C. 2130 and Suleman Noormohammed  v. Umarbhai, A.I.R. 1978 S.C. 952, relied on. 2.3.In the instant case, it is clear from the consent terms that  the  tenant agreed about the claim of the  arrears  of rent  and  stated that lie had deposited it  partly  in  the court.   No doubt, in the written statement the  tenant  had

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 12  

taken  the plea that the landlord was avoiding to take  tile rent and he was not neglecting to pay, but by the  admission in  the  compromise terms, the tenant gave up  the  plea  of tender of rent before the filing of the suit.  There was  no material  of any tender by money order or otherwise  on  the record when the compromise was filed.  The burden was on the tenant  to prove the tender of rent before the  suit,  after service of notice of demand.  The admission contained in the compromise shows complete admission of the tenant about  the arrears of rent read with the allegation of the landlord  in the  petition about the existence of arrears of  rent  after service of notice of demand.  In the written statement,  the notice  of  demand had been admitted, but the  plea  was  of tender  of  rent.  Even a reply was sent to  the  notice  of demand.  Thus, in the absence of any material on the  record of  previous tender it can safety be assumed that there  was sufficient  material in the light of the agreed  terms  that the  tenant  had made himself liable to be  evicted  on  the ground contained in Section 12(3) (a) 1116 of the Act [1123G-H, 1124A-C] 2A.   The very fact that the tenant asked for  accommodation of time shows that the claim of the landlord for eviction of the  tenant  on  the  ground  of  his  bona  fide   personal requirement was impliedly admitted by the tenant Again there is implied admission of comparative hardship as contemplated by Section 13(2) of the Act by the tenant.  Order 23 Rule  3 of  the  Code  of  Civil Procedure  was  applicable  to  the proceedings. [1124D] 2.5.It is thus clear from the terms of the compromise  that there was an Implied admission by the tenant of the  grounds contained in Section 12(3)(a) as well as Section 13(1)(g) of the Act. [1128G] 3.1.The  executing court gave elaborate opportunity  to  the tenant while substantiating his objection to the validity of the  decree by permitting him to lead  documentary  evidence which  is  not  ordinarily granted.  This  permission  to  a tenant to lead evidence in execution Is totally  unwarranted in  the  instant case.  The executing court is  supposed  to have examined the nullity of the decree on the basis of  the record  on which It is based.  It cannot permit the  parties to lead fresh evidence. [1128H, 1129A-B] 3.2.The  High Court was also in error in assuming that  the landlord  In a suit for eviction on the ground  of  bonafide personal  requirement  is supposed to have pleaded  his  own comparative  hardship  in the plaint  itself  Section  13(2) comes  into  play at the stage when the court  is  satisfied that  the ground contained in clause (g) of sub-section  (1) of  Section 13 of the Act has been made out.  It is  at  the stage  that  the  court  has  to  examine  the  question  of comparative hardship.  It was thus not necessary to plead In the  plaint  itself  Often  the  parties  at  the  stage  of recording of evidence of bonafide personal requirement  also lead evidence as to the comparative hardship of the landlord or  the  tenant But such averments are not  required  to  be pleaded in the plaint itself to give cause of action to  the landlord  to enable him to file a suit for eviction  of  the tenant on the ground of his bona fide personal  requirement. [1129C-D] 3.3.The High Court was not right in going into the question of  neglect  by the tenant of the demanded arrears  of  rent Once the arrears are admitted, it is implied that the tenant gave  up  the plea of tender.  Surely, the  executing  court could not be justified to permit the tenant to lead evidence of tender by him before the filing of the suit in compliance

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 12  

1117 of the notice of demand as contemplated by Section  12(3)(a) of the Act after the decree. [1129F]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No.998 of 1976. From the Judgment and Order dated 17.6.75 of the Gujarat High Court in C.R.A. No 594 of 1972. S.K. Dholakia and Pritam Chand Kapur for the Appellant. P.S. Shroff and Ms. Shalini Soni for the Respondent. The Judgment of the Court was delivered by YOGESHWAR  DAYAL,  J. This appeal is  directed  against  the judgment  of the Single Judge of the High Court  of  Gujarat dated  17th June, 1975 By the impugned judgment the  learned Single  Judge  set  aside the concurrent  judgments  of  the executing  court  and the lower appellate  court  dismissing objections  to  the executability of  the  ejectment  decree passed  by  the trial court dated 21st March,  1968  on  the basis  of a joint compromise petition filed by  the  parties and held the ejectment decree inexecutable being a nullity. It   appears   that  on  or  about  12th  July,   1967   the appellant/landlord   (hereinafter   referred  to   as   ’the landlord’)  filed  a fuit in the court of  the  Joint  Civil Judge,  Dahod  for recovery of possession  of  the  premises against  the respondent/tenant (hereinafter referred  to  as ’the  tenant’)  inter  alia  on  the  grounds  contained  in Sections 12(3) (a) i.e. on the ground of non-payment of rent for a period of over six months inspite of notice of demand; 13(1) (e) i.e. on the ground of nuisance and 13 (1) (g) i.e. on  the  ground  of bona fide personal  use,  besides  other grounds, of the Bombay Rents, Hotel and Lodging House  Rates Control Act, 1947 (hereinafter called ’the Act’) The  tenant filed his written statement on  29th  September, 1967   inter  alia  pleading  that  the  rent  charged   was excessive;  that he was not in arrears of rent, as  alleged; that  the  landlord  did  not  require  the  suit   premises reasonably  and  bona  fide: that the  tenant  had  a  large family; that he did not cause any nuisance, as alleged,  and that  greater hardship would be caused to the tenant if  the decree for possession is passed against him than 1118 it would be to the landlord if the decree was not passed. The  trial court framed the issues on 30th  November,  1967. On  21st  March, 1968 the parties  presented  consent  terms before  the court for passing decree in those terms.   Below the  consent  terms  the court  passed  an  order   "Parties present  and admit compromise".  Accordingly the  compromise decree was passed.  As per the consent terms the tenant  was to  handover  possession of the suit promises on  or  before 31st  August, 1971.  A translation of the consent  terms  in Gujarati reads as follows :-               "We, the parties make, by mutual understanding               compromise as under -               1,  the defendant shall hand over  the  actual               possession  of the second storey of the  house               bearing City S.No. 614 on dated 31-8-71.   And               if,  1,  the defendant do not  hand  over  the               possession   of  the  suit  property  to   the               plaintiff   accordingly   the   plaintiff   is               entitled to execute the decree.  The aforesaid               period  is  granted to the defendant  for  his               convenience and accommodation.               2.    The amount of’ rent demanded in the suit

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 12  

             of the suit property plus the amount of  mesne               profits  plus  the  amount  of  house-tax  and               education  cess  comes  to Rs.  282  in  words               rupees  two  hundred and eighty two  plus  the               amount  of  Rs. 90 for mesne profit  from  the               date of suit till the date 20-3-68.  Thus  the               total  amount which comes to Rs.  372  becomes               claimable   by   the   plaintiff   from    the               defendants.  Towards the aforesaid amount  the               defendant had deposited the amount of Rs.  312               in   the  Court  on  dated  2-9-67.   He   has               deposited the amount of Rs. 10 on dated  21-4-               67 Rs. 30 on dated 18-1-68 and Rs. 20 on dated               21-3-08.   Thus  total amount of Rs.  372  has               been  deposited, and the said amount is to  be               accepted  by  the plaintiff.   Therefore  upon               receiving  the  amount  of  Rs.  372  by   the               plaintiff,  it  shall be considered  that  the               amount  of rent and that of mesne  profit  has               been  received for the period upto  the  dated               21-3-68.               3.  Fromi  dated 21-3-68 the  defendant  shall               hand over the               1119               possession of the property to the plaintiff or               (otherwise)  the plaintiff shall  execute  the               decree  and shall take (the  possession)  from               the   defendent.   And  the  Plaintiff   shall               recover from the defendant the amount of  rent               at a rate of Rs.10 per month and mesne  profit               at  a  rate  of  Rs.10  per  month  till   the               plaintiff obtains the possession from the said               defendant.  And the defendant shall pay to the               plaintiff  the mesne profit  accordingly.   If               the  defendant does not pay the  mesne  profit               accordingly  the plaintiff shall  execute  the               decree  and shall recover the amount from  the               plaintiff.  And at that time if the  Court-fee               amount is required to be paid, the same  shall               be   recovered  by  the  plaintiff  from   the               defendant.               4.    The defendant shall pay to the plaintiff               the  amount  of sanitation tax  and  education               cess  for  the period from  1967-68  till  the               defendant   hands  over  possession   or   the               plaintiff  takes possession by  executing  the               decree,  and  if the defendant  does  not  act               accordingly  the plaintiff shall  recover  the               same  by executing the decree.  The  plaintiff               shall accept the amount of court-fee, refunded               in this suit, and the defendant shall have  no               right thereon.               5.    The  cost of the parties shall be  borne               by themselves.               6.    Decree   may   be  drawn   against   the               defendant in favour of               the plaintiff in the manner stated above.               Sd/- Illegible               Advocate for the Defendant.               Dated 21-3-68. Hiralal Mulchand Doshi               Ramanlal Ranchbodlal Barot.               Sd/- Illegible               Plaintiff’s Advocate" 1120 As  the tenant failed to deliver possession of the  premises

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 12  

by   the  due  date,  as  agreed,  the  landlord  filed   an application  for execution.  On receipt of notice of  filing of the execution application, the tenant filed objections to the  executability  of the decree and inter  alia  contended that  an  eviction  decree was not executable as  it  was  a nullity.   It  was  further  contended  that  there  was  no material  before the court which passed the decree  to  show the availability of the various grounds of eviction  alleged against  the tenant.  The executing the court took the  view that  the decree was not a nullity and was executable.   The order  of  the  executing court was affirmed  by  the  first appellate  court.   However,  on  further  revision  by  the tenant,  a  Single  Judge of the  High  Court  accepted  the revision   petition  and  held  that  the  decree  was   not executable as it was a nullity. The High Court while accepting the revision petition noticed that the possession was sought inter alia on the grounds-(1) that the landlord required the suit premises reasonably  and bona fide for his personal use and occupation; (2) that  the tenant  was  in  arrears of rent for a period  of  over  six months  and  (3) on the ground of  nuisance,  besides  other grounds.   The High Court also noticed that the  period  for vacating the premises by 31st August, 1971 was given to  the tenant by way of accommodation.  It also noticed that  there is  nothing in the consent terms or decree to indicate  that there  was any express satisfaction of the  court  regarding any  of the statutory grounds on the basis of the which  the landlord  is  entitled  to get possession  of  the  premises either under Section 12 or Section 13 of the Act.  But,  the High  Court held that, by itself will not be  sufficient  to reach  the  conclusion that the decree is  a  nullity.   The landlord  is  entitled to rely upon the  implied  admissions either in the decree or in the order itself or if there  are any  other materials on the record of the case  to  indicate that  there  were  some  materials for  the  court  for  its satisfaction regarding existence of any ground contained  in Section 12 or 13 of the Act. The  High Court on analysis of the compromise took the  view the time was given on concession to the tenant to vacate the premises i.e. at the most it could be possibly said that the tenant  may  have  agreed  to  handover  possession  as  the landlord required the premises reasonably and bona fide  for personal  use  and  occupation.  But on the  basis  of  this implied admission the High Court held that the provisions of Section 13(2) of the Act were not satisfied.  The High Court also  found that Section 12(3)(a) of the Act was  applicable and it is also correct that the arrears of rent claimed for, 1121 had been admitted.  The finding of the High Court  regarding arrears of rent is  "it is, therefore, evident that the fact that  these arrears of rent were due, has been  admitted  in this para 2 of the consent terms.  It would, therefore, mean that  so far as the fact that the rent was due for a  period of over six months, which would entitle the landlord to file a  suit  for  possession under Section 12 of  the  Act,  was impliedly  admitted".  After observing this the  High  Court took  the  view  that  the condition  to  be  satisfied  for attraction of Section 12(3)(a) of the Act is that the tenant had  neglected to make payment of rent until the  expiration of  the  period of one month after  notice  as  contemplated under  sub-section (2) of Section 12 of the Act.   The  High Court  also.  noticed  that  the notice  was  given  by  the landlord  to the tenant on 14th February, 1967 claiming  the total arrears of rent of Rs.372 and the notice was served on the  tenant on 22nd February, 1967.  But it held that  there

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 12  

was no material in paras 1 and 2 of the consent terms,  read together,  to  show  that  the  tenant  had  given  up   the contention that he had not neglected to pay.  Another reason given by the High Court for holding the decree to be nullity on  the ground of bona fide personal requirement is that  it was for the landlord to prove that greater hardship would be caused  to him, rather than to the tenant, before  he  could get  decree  for  possession  on the  ground  of  bona  fide personal requirement.  The High Court further took the  view that  the  landlord had not pleaded in the  plaint  to  that effect. It  may be noticed that we are dealing with the question  of nullity of a decree because the executing court is bound  to execute the decree and cannot go behind the same unless  the decree  passed by it is a nullity.  It appears, there  is  a lot  of confusion as to what is meant by ’decree being  null and void".  In the context which we are dealing, a decree is ;.lid  to be a nullity if it is passed by a court having  no inherent  jurisdiction  Merely because a  court  erroneously passes  a  decree  or there is an error  while  passing  the decree,  the decree cannot be called a nullity.  The  decree to be called a nullity is to be understood in the sense that it is ultra vires the powers of the court passing the decree and not merely voidable decree. It  appears  the question of validity of an  eviction  order based  on  a  compromise  was  subject  matter  of  numerous decisions  of various High Courts of this country.  A  study of  Indian  case-law on this subject does not  disclose  any uniformity  of opinion or elucidation of any  generally  ap- plicable principle.  But the decisions of this Court in K.K. Chari v. R.M. 1122 Sheshadhri, AIR 1973 S.C. 1311, Nagindass v. Dalpatram,  AIR 1974  S.C. 471; Roshan Lal v. Madan Lal, AIR 1975 S.C.  2130 and  Suleman  Noor-mohammed v. Umarbhai, AIR 1978  S.C.  952 have resolved the conflict and clarified the matter. Before  we embark on the correct principles to be  followed, while  dealing with the question of a decree being  nullity, relevant statutory provisions of the Act may be noticed Section 12(3)(a) read thus :-               "12(3)(a)   Where the rent is payable  by  the               month  and there. is no dispute regarding  the               amount of standard rent or permitted increase-               ,,  if such rent or increases are  in  arrears               for  a  period of six months or more  and  the               tenant neglects to make payment thereof  until               the  expiration  of the period  of  one  month               after  notice referred to in  subsection  (2),               the  court may pass a decree for  eviction  in               any such suit for recovery of possession".               Section 13(1) (g) of the Act read thus               "13.   When landlord may  recover  possession.               (1) Notwithstanding anything contained in this               Act but subject to the provisions of  sections               15  and 15A, a landlord shall be  entitled  to               recover  possession  of any  premises  if  the               Court is satisfied               (a)               (b)               (c)               (d)               (g)that  the  premises are  reasonably  and               bona   fide  required  by  the  landlord   for               occupation by himself’or by any               1123

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 12  

             person for whose benefit the premises are held               or  where the landlord is a trustee of  public               charitable   trust  that  the   premises   are               required  for occupation for the  purposes  of               the trust; or               (h).........               (i)............               (k)...........               Section 13 (2) of the Act read thus               "13  (2)   No  decree for  eviction  shall  be               passed  on the ground specified in clause  (g)               of  sub-section (1) if the Court is  satisfied               that,  having regard to all the  circumstances               of  the  case including the  question  whether               other  reasonable accommodation  is  available               for  the  landlord  or  the  tenant,   greater               hardship would be caused by passing the decree               than by refusing to pass it.               Where the court is satisfied that no  hardship               would be caused either to the tenant or to the               landlord by passing the decree in respect of a               part of the premises, the court shall pass the               decree in respect of such part only". There  is no doubt that if there is a contest the court  can pass  a decree for eviction only if the court  is  satisfied about  the  existence of grounds mentioned in  two  sections quoted  hereinabove.   But  the  satisfaction  can  also  be inferred  impliedly.   It is clear from the reading  of  the plaint  and the written statement that it was a common  case that  the agreed rate of rent was Rs. 10 per month.   It  is clear from the reading of the consent terms that the  tenant agreed  about  the claim of the arrears of rent  and  stated inter  alia that he had deposited it partly in the court  on 2nd  September,  1.967.  It  is true  that  in  the  written statement  the tenant had taken the plea that  the  landlord was  avoiding to take the rent and he was not neglecting  to pay.   But  by  the admission in the  compromise  terms.  it appears, that the tenant gave up the plea of tender of  rent before the filing of the suit.  There was no material of any tender by money order or otherwise on the record 1124 when the compromise was filed.  All sorts of pleas are taken in  the pleadings but it does not debar the parties to  give up  any of the pleas.  On the facts of the case it is  clear that  the  burden was on the tenant to prove the  tender  of rent  before  the suit, after service of notice  of  demand. The  admission  contained in the compromise  shows  complete admission of the tenant about the arrears of rent read  with the  allegation  of the landlord in the petition  about  the existence  of  arrears of rent after service  of  notice  of demand.   In the written statement the notice of demand  had been  admitted but the plea was of tender of rent.   Even  a reply was sent to the notice of demand.  Thus in the absence of  any  material on the record of previous  tender  it  can safely be assumed that there was sufficient material in  the light  of the agreed terms that the tenant had made  himself liable  to be evicted on the ground contained in Section  12 (3) (a) of the Act.  Even on the second ground of  eviction, namely  bona fide personal requirement of the landlord,  the very  fact that the tenant asked for accommodation  of  time shows  that  the claim of the landlord for eviction  of  the tenant  on the ground of his bona fide personal  requirement was  impliedly  admitted  by the  tenant.   Again  there  is implied admission of comparative hardship as contemplated by Section 13 (2) of the Act by the tenant.  Order 23 Rule 3 of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 12  

the   Code  of  Civil  Procedure  was  applicable   to   the proceedings.  Rule 3 of the Order 23 reads as followed:               "Compromise of suit  Where it is proved to the               satisfaction  of  Court that a suit  has  been               adjusted  wholly  or  in part  by  any  lawful               agreement or compromise, in writing and signed               by   the  parties  or  where   the   defendant               satisfies  the  plaintiff in  respect  of  the               whole or any part of the subject-matter of the               suit,  the Court shall order  such  agreement,               compromise or satisfaction to be recorded, and               shall pass a decree in accordance therewith so               far as it relates to the parties to the  suit,               whether  or  not  the  subject-matter  of  the               agreement,  compromise or satisfaction is  the               same as the subject-matter of the suit:               Provided that where it is alleged by one party               and denied by the other that an adjustment  or               satisfaction  has been arrived at,  the  Court               shall decide the question; but no  adjournment               shall  be granted for the purpose of  deciding               the question, unless the Court, for reasons to               be recorded,               1125               thinks fit to grant such adjournment.               Explanation  An agreement or compromise  which               is void or voidable under the Indian  Contract               Act, 1872 (9 of 1872), shall not be deemed  to               be lawful within the meaning of this rule." It is clear that whenever there is any lawful agreement  the court is bound to record the agreement or compromise.  There is no provision in the Act which made rule 3 of Order 23  of the  Code  of Civil Procedure  inapplicable  to  proceedings contemplated by the Act.  Nor there is any provision in  the Act  which prohibits parties entering into a  compromise  in the suit for eviction filed under the Act. In  KK Chari v. R.M. Sheshadri (Supra) this Court  took  the view  that even if the satisfaction of the court as  to  the availability  of the ground of eviction is not  recorded  in the  eviction order it will not conclude the  matter.   That the  court was so satisfied can also be considered from  the point  of  view  whether a stage had  been  reached  in  the proceedings for the court to apply its mind to the  relevant question.  Other materials on record can also be taken  into account  to find out if the court was so satisfied.   Though Alagiriswamy, J. agreed with the proposed order but  thought it necessary to add a few words of his own.  He observed :-               "The  law  on  this subject has  gone  into  a               labyrinth and think it is time we took a  hard               look   at  it  and  laid  down   the   correct               position". He referred to English and Indian cases and was inclined  to hold  that  there  should be no objection  to  a  compromise eviction order in rent control proceedings provided it is in accordance  with the Act, i.e., only the landlord has  asked for  possession of the premises on one of the  grounds  laid down  in the Act.  He agreed with the majority  judgment  on the  grounds stated therein.  He, however, thought that  the matter would be considered in the light of what he has  said when a proper occasion arises. Nagindass  v. Dalpatram was a case under Section 28  of  the Bombay  Act (No. 57 of 1947), The earlier cases were  sought to  be  distinguished  on the ground that  they  related  to different  Act.  That line of argument was rejected  on  the ground that object of all these Acts is the same and that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 12  

1126 policy  element  is involved in the enactments  relating  to rent  control in general, both in England and India.   There the  suit for possession was brought on the ground  of  non- payment  of  rent as well as bona fide  requirement  of  the landlord.   In the memo of compromise, the tenant agreed  to pay certain sums as arrears of rent.  The immediate delivery of possession was postponed for sometime till the plaintiffs were able to provide lease of other premises for the tenant. It  appears  that no evidence had been recorded  before  the compromise  order was passed.  When the time  for  execution came,  the tenant raised objections under Section 47 of  the Code of Civil Procedure. There  being no evidence recorded on the merits  before  the compromise  order was passed, the court had to consider  the nature  and extent of material on which the Court  could  be said  to  have satisfied itself about the existence  of  the grounds.    The  court  inferred  that  there  was   implied admission  in the compromise which provided for  payment  of arrears of rent by the tenant in respect of the first ground and that the satisfaction of the court in the matter may  be based on an admission by the tenant.  The court observed:-               "From a conspectus of the’ cases cited at  the               bar, 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.  Such material may               take the shape either of evidence recorded  or               produced  in  the case, or, it may  partly  or               wholly  be  in  the shape  of  an  express  or               implied  admission  made  in  the   compromise               agreement,  itself  Admissions,  if  true  and               clear,  art,  by, far the best  proof  of  the               facts  admitted.  Admissions in  pleadings  or               judicial  admissions, admissible  undersection               58 of the Evidence Act, made by the parties or               their  agents at or before the hearing of  the               case,   stated  on  a  higher  footing   that?               evidentiary  admissions.  The former class  of               admissionss  are  fully binding on  the  party               that  makes  them and constitute a  waiver  of               proof.   The  by themselves can  be  made  the               foundation of the rights               1127               of   the   parties.   On   the   other   hand,               evidentiary admissions which are receivable at               the trial as evidence, are by themselves,  not               conclusive.  They can shown to be wrong.’ The Court also considered the extent to which the  executing court could go into the matter.  It was observed that if the decree  on  the face of it discloses some material,  on  the basis of which the Controller could be satisfied with regard to the existence of a statutory ground for eviction, it  was not  open to the court to go further and it must  accept  it and execute the decree as it stands.  If, on the face of it, the  decree does not show the existence of such material  or jurisdictional  fact,  the Executing Court may look  to  the original  record  of the trial court  to  ascertain  whether there  was,  any material furnishing a  foundation  for  the trial court’s jurisdiction to pass the’ decree it did.   The

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 12  

moment it finds that prima facie such material existed,  its task  is complete.  It is not presumed or expressed  finding of the trial court on the basis of that material.  All  that it  has  to see is whether there was some  material  on  the basis  of which the Rent Court could have  as  distinguished from  must have  been satisfied as to the  statutory  ground for  eviction.   To allow the Executing Court to  go  beyond that  limit, would be to exalt it to the status of  a  super Court sitting in appeal over the decision of the Rent Court. In Roshan Lal v. Madan Lal, (supra) the landlord had filed a suit  against  the tenant for eviction and  for  some  other reliefs  on grounds failing within Section 12(1)(f)  of  the M.P. Accommodation Control Act, 1961 i.e. bona fide personal requirement of no,,-residential premises.  The tenant denied this  assertion.  Some evidence was adduced.   Eventually  a decree,  on  the  basis of a compromise,  was  passed.   The tenant agreed to vacate the shop by 31st December, 1970.  On his failure to do so the respondent took out execution.  The tenant  filed  objection  that the  decree  was  a  nullity. Paragraph  I of the compromise petition stated "that due  to the  necessity of the plaintiffs for their own  business  of opening  grocery shop decree may be granted to them  against the  defendants".   The  plaint  also  mentioned  that   the landlord had no reasonable accommodation.  The court implied an  admission of that fact also, even though the  compromise did  not  mention  it.  The  court  rejected  the   tenants’ contention, that there was admission of the positive  aspect only  and  not  of  the negative  aspect.   The  appeal  was dismissed.  The court also upheld the applicability of Order 23  Rule  3 to suit governed by the special  statutes.   The Court observed that 1128               "If  the agreement or compromise for  eviction               of  the  tenant is found, on the  facts  of  a               particular  case,  to  be in  violation  of  a               particular Rent Act, the Court would refuse to               record the compromise as it will not be 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, then 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." Suleman Noormohammed v. Umarbhai (supra) was again a case in which suit was brought on the ground of non-payment of  rent and  bona  ,ride  personal  necessity  under  the   relevant provisions  for  the  Act.  The decree  for  possession  was passed  on  the  basis  of  a  compromise  under  which  the judgment-debtor was to handover possession by a future date. On his failure to do so, execution application was filed and the  judgment-debtor challenged the validity of the  decree. The order did not mention that the Court was satisfied about the grounds for eviction.  The court read pleadings and came to  the conclusion that there was no serious dispute  to  be tried and if a decree for possession would have been  passed in invitum the tenant would not have got three years time to vacate  the premises; that he, therefore, agree to suffer  a decree by consent and gained three years time under it.  The Court  also relied on the presumption that every  compromise under  Order 23 rule 3 of the Code of Civil Procedure  shall be  presumed  to  be  lawful unless  it  is  proved  to  the contrary.  An admission by the tenant about the existence of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 12  

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 decree cannot be called a nullity to enable the executing court to go behind it. It is clear from the terms of the compromise in the  present case  that there was an implied admission by the  tenant  of the grounds contained in Section 12(3)(a) as well as Section 13(1)(g) of the Act. We  also  notice  that the executing  court  gave  elaborate opportunity 1129 to  the  tenant while substantiating his  objection  to  the validity of the decree by permitting him to lead documentary evidence  which is not ordinarily granted.  This  permission to  a  tenant  to  lead evidence  in  execution  is  totally unwarranted  in this case.  The executing court is  supposed to  have examined the nullity of the decree on the basis  of the  record  on  which it is based.  It  cannot  permit  the parties to lead fresh evidence. The  High  Court  was also in error  in  assuming  that  the landlord  in a suit for eviction on the ground of bona  fide personal  requirement  is supposed to have pleaded  his  own comparative  hardship in the plaint itself.   Section  13(2) comes  into  play at the stage when the court  is  satisfied that  the ground contained in clause (g) of sub-section  (1) of  Section 13 of the Act has been made out.  It is at  that stage  that  the  Court  has  to  examine  the  question  of comparative hardship.  It was thus not necessary to plead in the  plaint  itself  Often  the  parties  at  the  stage  of recording of evidence of bonafide personal requirement  also lead evidence as to the comparative hardship of the landlord or  the tenant.  But such averments are not required  to  be pleaded in the plaint itself to give cause of action to  the landlord  to enable him to file a suit for eviction  of  the tenant on the ground of his bona fide personal requirement. The  High Court was not right in going into the question  of neglect by the tenant of the demanded arrears of rent.  Once the arrears are admitted, it is implied that the tenant gave up the plea of tender.  Surely the executing court could not be justified to permit the tenant to lead evidence of tender by  him before the filing of the suit in compliance  of  the notice of demand as contemplated by Section 12(3)(a) of  the Act after the decree. For the aforesaid reasons the impugned judgment of the  High Court is set aside and the judgments of the lower  appellate court  as  well as the executing court  are  restored.   The appellant/landlord  would be entitled, in the  circumstances of  the  case,  to warrants of  possession  forthwith.   The appellant is also entitled to the costs throughout. N.P.V.         Appeal allowed. 1