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PETITIONER: SMT. KAMLABAI & ORS. A v.

       Vs.

RESPONDENT: MANGILAL DULICHAND MANTRI

DATE OF JUDGMENT14/10/1987

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) MUKHARJI, SABYASACHI (J)

CITATION:  1988 AIR  375            1988 SCR  (1) 464  1987 SCC  (4) 585        JT 1987 (4)    82  1987 SCALE  (2)755

ACT:      C.P. and  Berar Letting  of  Houses  and  Rent  Control order, 1949.  13-The provision  puts restriction on right of landlord to  determine the tenancy-Permission required under the clause  is needed  only when landlord wants to terminate the tenancy.      Transfer of  Property Act,  1882-ss. 106  and  111-Read with cl. 13 of the C.P. and Berar Letting of Houses and Rent Control order 1949-cl. 13 of the order does not restrict the tenant  from  surrendering  the  lease  either  by  specific agreement or by implication demonstrated by conduct.

HEADNOTE:      On 24-2-1970  the appellants filed an application under cl. 13(3)  of the  C.P. and Berar Letting of Houses and Rent Control  order,   1949  for   permission  to   issue  notice determining  the  respondent’s  lease  of  the  premises  in question on  grounds of  bona fide need, subletting, etc. On 28-3-1970 both the parties made an application for recording compromise. By  the terms  of the compromise, the respondent expressly  admitted   the  claim   of  the   appellants  for permission to  terminate the  tenancy, and, surrendering his tenancy rights,  undertook to  vacate  the  premises  on  or before 31-3-1974.  By an  order dated  31-3-1970,  the  Rent Controller filed  the proceedings  observing that the matter had been  compromised out  of court  and since  there was no provision for  recording of  compromise, he was treating the petition of  compromise as  an application  for  filing  the proceedings.      On 18-2-1974  the parties  entered into  an arbitration agreement wherein  it was clearly mentioned that the tenancy in favour  of  the  respondent  stood  surrendered  and  the arbitrator should  decide how  much further  time should  be granted to  him for vacating the premises and what should be the quantum of damages for use and occupation thereof beyond 31-3-1974. Pursuant to the arbitration, a further compromise was entered  into by which time till 31-3-1977 was given for vacating the  premises. An  award was  made in terms of this compromise on  29-3-1974 and  a decree in terms of the award was passed by the Civil Judge on 16-4-1974. 465

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    The  respondent   wrote  two   letters  requesting  for extension of  time to  vacate the premises, firstly upto the end of  December 1977,  and then  upto the  end of December, 1980. However, the respondent did not vacate the premises on 31-12-1980 and  the appellant  applied for  execution of the decree. Notice  was issued,  under 0.21, r.22, C.P.C. but no cause  was   shown  by  the  respondent.  On  24-3-1981,  an application  was  made  by  the  parties  for  recording  of compromise to the effect that time for vacating the premises was  extended   upto  31-12-1982   as   the   last   chance. Accordingly, the  executing court  passed an order disposing of the execution application as compromised.      The respondent  did not  vacate the  premises on 31-12- 1982. The  appellant filed a fresh application for execution on 31-1-1983.  When moves  for a  further compromise failed, the respondent filed objections claiming that the decree was a nullity  and could not be executed as it had been obtained without the  prior permission  contemplated under  cl. 13 of the aforesaid  Rent Control  order. The  Civil Court, by its order dated  1-10-1985, rejected the objections and directed the execution to proceed.      The respondent  approached the  High Court  in revision but his  application was dismissed in limine. The respondent sought special  leave to  appeal and  this Court disposed of the matter  directing the  High Court  to admit the revision and hear  it on  merits and dispose it of in accordance with law. The High Court allowed the revision petition.      Allowing the appeal, ^      HELD: The  scheme of  cl. 13  of  the  C.P.  and  Berar Letting of  Houses and  Rent Control  order, 1949  indicates that it  is meant  to protect  the rights  of the  tenant by restricting the  rights of the landlord. Sub-cl. (I) thereof starts wit  the expression no landlord" making it clear that it is  a restriction  put on  the right  of the  landlord to determine the  tenancy. Sub-cl.(2)  indicates  that  when  a landlord seeks to obtain permission under sub-cl. (1) he has to apply  to the  Rent Controller. Sub-cl. (3) provides that the  Rent   Controller  shall  grant  permission  if  he  is satisfied in  respect of  the grounds enumerated thereunder. Thus, the  permission which  is required  under  cl.  13  is needed  only  when  the  landlord  wants  to  terminate  the tenancy. It  is not  at all necessary if the tenant wants to surrender the  lease or  terminate the tenancy or vacate the premises. Clause  13 of  the order  does  not  restrict  the tenant  from  surrendering  the  lease  either  by  specific agreement or  by implication demonstrated by conduct. [473G- H; 474H; 475A-B] 466      (b)  Section  106  of  the  Transfer  of  Property  Act provides for  termination of  the lease either by the lessor or by  the lessee,  and, s. 111 thereof, which lays down the various circumstances  under which  the lease  of  immovable property comes  to an  end, contemplated  implied surrender. [475F; G]      In this  case, the terms of the compromise filed on 28- 3-1970 made  it clear  that the  tenant himself  offered  to vacate the  premises on  or  before  31-3-1974  without  any recourse  to   any  proceedings   before  the  Rent  Control Authorities or  the Civil Court. From the language of cl. 13 of the  Rent Control  order aforesaid it is plain that after this compromise  there remained nothing for which permission could be  granted by  the Rent  Controller. Thus,  when  the landlord  sought   per  mission,  the  tenant  came  forward offering to  surrender the lease thereby expressing a desire

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to terminate  the lease  from a particular date. As is clear from cl.  13 aforesaid, no permission is necessary where the tenant chooses  to terminate  the lease  either by  a notice under s. 106 or by surrender under s. 111 of the Transfer of Property Act. [476B-D]      The agreement  of arbitration  signed  by  the  parties clearly stated  that party  No. 2,  namely the  tenant,  had surrendered his  tenancy rights and agreed to deliver vacant possession. The arbitration was entered into on the basis of this agreement  and an  award was  passed.  The  decree  was passed in  terms of the award. During the proceedings before the Civil  Court no  objection was raised that the decree of eviction could  not be  passed as there was no permission of the  Rent   Controller  to   determine  the  lease.  Clearly therefore the decree which is to be executed is not a decree for eviction  on the  basis of determination of lease by the landlord but  is a  decree passed  on the basis of the lease having been  determined by  the tenant himself by surrender. [476G-H; 477H; 478A]      Shah Mathuradas  Maganlal &  Co. v. Nagappa Shankarappa Malaga & ors., A.I.R. 1976 S.C. 1565, referred to.      The High  Court was  in error in applying the principle of ’a  contract contrary  to public policy’ to the agreement of arbitration  and compromise  filed before  the Arbitrator and in  arriving at  the conclusion  that it  could  not  be permitted. The  arbitration agreement,  the compromise filed before the  Arbitrator and  the Award, and the decree passed by the  Court all  put together clearly go to show that what was referred  to arbitration was not as to whether the lease was determined  or not  but the  period for which the tenant should be  permitted to  continue in  possession. The  lease came to an end by surrender and what 467 was evolved  by the  Award was  an arrangement  on new terms which was  A not a contract just to bypass cl. 13 aforesaid; for, when  the lease  itself is  determined nothing survives and therefore it could not be contended that it was contrary to the provisions of cl. 13. [479A-D]      The High  Court was  also not  right in  coming to  the conclusion that there was no surrender as possession was not handed over.  The tenancy came to an end by mutual agreement and what  was sought  by arbitration  as an  arrangement for time on  payment of  damages for  use and occupation. It did not either  continue the  old tenancy  or start  a new  one. [481B-C]      Foster v. Robinson, [1950] All E.R. 342, referred to. C      If the  tenant intended to raise the objection that the decree in  question could  not have been passed on the basis of the  arbitration Award  as it was in contravention of cl. 13 aforesaid,  he should  have raised  it when the Award was filled in the Court and notice was served on him. The tenant admittedly did  not raise  this objection  which was open to him even  when the  decree was  put to  execution more  than once. In  this view  of the  matter, the contention that, by not raising  this objection  earlier the respondent has lost his right  to raise the objection and is estopped from doing so, deserves  to be  accepted. It has already been held that the principles  of constructive  res judicata are applicable even in execution proceedings. [481D-F]      Mohanlal Goenka  v.  Benoy  Kishna  Mukherjee  &  Ors., A.l.R. 1953 S.C. 65, referred to.

JUDGMENT:

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    CIVIL APPELLATE  JURlSDlCTION: Civil Appeal No. 4102 of 1986.      From the  Judgment and  order dated  11.9.1986  of  the Madhya Pradesh High Court in Civil Revision No. 176 of 1986.      F.S. Nariman, V.A. Bobde, Anoop V. Mehta, Shyam Mudalia C, and A.K. Sanghi for the Appellants.      V.M Tarkunde,  Madan Lokur,  N.S. Manudhane  and Subodh Lalit for the Respondent.      The Judgment of the Court was delivered by 468      OZA J. This appeal arises out of the judgment passed by the High  Court of  M.P. in  Civil Revision No. 176/86 dated 11.9.86.      This matter  arises out  of execution proceedings. This execution case  was filed  by the  present appellant against the  non-appellant   judgment-debtor  claiming   relief   of possession of property Including the Cinema Theatre known as Gujanan Talkies  bearing House  No. 57(209)  in Ward  No. 12 (new Ward  No. 11) Chalapula on Nazul Plot No. 72, Sheet No. 53-D, Khamgaon  Teh. Khamgaon Distt. Buldhana with furniture etc. Against  an order passed in this execution in favour of the decree  holder the  present  appellant,  the  respondent judgment-debtor filed  a revision  petition before  the High Court  of  Bombay  at  Nagpur.  The  revision  petition  was rejected and against that order a special leave petition was filed before  this Court  by Its order dated 4.3.86 in Civil Appeal No. 842 of 1986 set aside the order of the High Court and observed  that the  High  Court  shall  dispose  of  the revision petition  afresh after  hearing parties  and giving reasons in  support of  the conclusions.  It appears that at the time  of hearing,  a request  was made  by  the  learned counsel for the judgment-debtor present respondent which was also supported  by the  counsel for  the other  side for the revision being  sent to  some other High Court than the High Court of  Bombay at  Nagpur and  consequently  the  revision petition was  sent to  the High  Court  of  M.P.  where  the learned Judge  of the  High Court  disposed of this revision petition by  the impugned judgment and after obtaining leave from this Court the present appeal is before us.      The facts  giving rise  to this  appeal  are  that  the petitioners appellants are the landlords, and the respondent admittedly are  the tenants  of the suit premises which is a cinema house alongwith furniture, fittings and other things.      On Feb.  24, 1970  the  appellants-landlords  filed  an application under Sec. 13(3)(i), (ii), (iii) and (iv) of the Rent  Control   order  for   permission  to   issue   notice determining the  respondent’s lease over the premises on the grounds of  eviction mentioned in the application which were bona fide,  need, subletting,  arrears of rent for more than three months  and habitual  default in payment of rent. This application was filed against the five respondents, three of whom are  sub-tenants. on  9.3.1970, the respondent appeared and filed  W.S. denying  the  allegations  but  it  was  not pleaded that  there was  a written  consent for keeping sub- tenants which  is essential  under Section 13 clause 3 (iii) and therefore  in substance  Sec. 13(3)(iii) was, in effect, admitted. 469      The case  was fixed  for filing  of documents  and  was adjourned to  16.3.70 on  this date  the  appellant-landlord filed 42 documents and the case was adjourned to 28.3.70. On this date  an application  was made  by both the parties for recording of  compromise.  The  respondent-tenant  expressly admitted the  claim of the appellant-landlord for permission for termination  of tenancy  and  surrendering  the  tenancy

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rights  undertook  to  vacate  the  premises  on  or  before 31.3.1974. The  learned Rent Controller on 31.3.70 passed an order saying  that as there is no provision for recording of a compromise,  the petition  for compromise is treated as an application for  filing of  the  proceedings.  He  therefore filed the  proceedings observing  that the  matter has  been compromised out of the Court.      On 25.6.  1970 there  was a partition between the three landlords and  the property  in dispute fell to the share of Shri Vallabhdas Mohta.      On 18.2.1974  an agreement  was arrived  at between the parties for  referring the matter to the arbitration wherein it was  clearly mentioned  that the tenancy in favour of the respondent tenant  stands  surrendered  and  the  Arbitrator should decide how much further time should be granted to the respondent-tenant for  vacating the premises and what should be the  quantum of  damages for  use and  occupation  beyond 31.3.1974  which   was  the  agreed  date  for  delivery  of possession in  their earlier  compromise. It is contended by the appellant  that this  agreement for referring the matter to the  Arbitrator clearly  showed that  the parties  agreed that the tenancy stands surrendered and is substituted by an arrangement for  continuance of  possession. lt appears that in pursuance  of the  arbitration a  further compromise  was entered into  by which  time till  31.3.1977 was  given  for vacating the  premises and  the  compensation  for  use  and occupation was  fixed at Rs.1300 plus taxes and on 29.3.1974 an award  was made  in terms  of this  compromise and on the basis of  this award  Civil Judge, Senior Division, Khamgaon by his order dated 16.4.1974 passed a decree in terms of the award in  Civil Suit  95/74 after  notice to the parties who were represented by counsel.      On 29.12.76  respondent wrote  a letter  requesting for extension of  time to  vacate upto the end of December, 1977 on  the   ground  that  his  amount  was  blocked  with  the Distributors of  films. On 18.12.77 respondent wrote another letter for  extension of  time for  a longer  period as  the amount could  not be  realised during  the short  period and agreeing to  vacate the  premises positively  by the  end of December, 1980. 470 On 10.7.1978  the partition was effected between the-members of the  HUF of  Shri Vallabhdas Mohta. On 27.4.79 Vallabhdas Mohta was  elevated to  the Bench. As the respondent did not vacate as  per their  assurances on  31.12.1980 the  present appellant filed an execution case No. 11/81 for execution of the decree.  Notice was  issued under  order 21  Rule 22  of C.P.C. but  no cause  was shown  by the  respondent  and  on 24.3.81 an application was made by the parties for recording of compromise  to the  effect that  time  for  vacating  the premises is  extended upto 31.12.1982 as the last chance. On 24.3.81 the executing court passed an order disposing of the Execution Application as compromised.      On 31.12.82 the respondent did not vacate and hand over possession. Consequently  on 3  1.1.1983 a fresh application for execution  was filed  by the  appellant bearing No. 4/83 alongwith four  documents.  On  29.9.1983  respondent  filed another application  requesting for  recording a  compromise that the  time is  further  extended  upto  30.6.1984.  This application was  signed only by two of the appellants and in sub-stance there  was no  effective compromise  but  in  the application the  respondent stated  that the matter has been settled. The appellant filed a reply on 20.10.83 denying the settlement  and   saying  that   it  was  only  a  tentative suggestion but  was not  finally settled.  On  26.12.83  the

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respondent  filed  objections  claiming  that  decree  is  a nullity and can not be executed. On 21.1.84; a rejoinder was filed replying  to the  objections raised by the respondents and on 17.4.84 the appellant filed an application praying to the  Court   to  decide  the  objections  as  a  preliminary question.      On 1.10.85  Civil Court  rejecting the objections filed by the  respondents directed the execution to proceed and on 4.10.1985 on  the request  of the respondent granted 10 days stay in  execution. On  14.10.85 a revision application was, filed by  the respondent  in the  High Court and on 15.10.85 this revision  was dismissed  by the  Bombay High  Court  in limine after  hearing  both  the  parties  but  granted  one month’s time  staying the  execution to approach this Court. SLP was  filed before  this Court  on 23.10.85  but  in  the meantime on  15.11.85 one  month’s time  granted by the High Court  expired.   The  respondent   moved  the  trial  court (executing court) and executing court granted a week’s time. On 19.11.85  the respondent  also moved  the High  Court for further extension of time but the prayer was rejected by the High Court  and ultimately  on 30.11.85  decree was executed through the  process of  the Court  and possession was taken from the  respondent. on  9.12.85 in  the  SLP,  this  Court passed an order that the appellant he 471 put in  possession to  run the business of the Cinema house. The respondent  was permitted to take away his machinery and other things but it was directed that the appellant will not create any  interest in favour of the third party during the pendency of  the matter.  Consequently between  28.12.85 and 30.12.85 the  respondent removed  all  his  machineries  and other sundry  articles. This Court on 4.3.86 granted special leave and  disposed of the Matter finally and remitted it to the High Court to admit the revision petition and hear it on merits and  dispose it  of in  accordance with  law  and  on request made  by the parties the matter was sent to the M.P. High Court.  The property  was given  in possession  of  the receiver although  in between  the petitioners had installed and put  up a new screen. It was also observed by this Court that the  revision petition will be disposed of within three months. Thereafter  the revision petition was disposed of by the M.P.  High Court  by the impugned judgment against which the present appeal is filed.      It was  contended by  learned counsel for the appellant that the  C.P. &  Berar Letting  of Houses  and Rent Control order, 1949 is a regulatory order-and controls the action of the landlord  in certain aspects only. According to him Sec. 2 sub-clause  6 read  with Sec.  2  sub-clause  5  and  Sec. 13(1)(a) and  (b) shows  that it  was meant  for restricting eviction in specific circumstances by fettering the right of the landlord  to terminate the tenancy under Sec. 106 of the Transfer of  Property Act  with the  permission of  the Rent Controller. But  according to  the learned counsel so far as tenant is  concerned no  permission  is  necessary  and  the tenant may  terminate the  tenancy by  giving a  quit notice under Section  111 of  the Transfer  of Property  Act or may surrender the  tenancy rights by mutual agreement under Sec. 111(e) or  surrender impliedly  under Sec.  111(f) and  such termination may  be lawfully done by the tenant eyen before, during or after the proceedings under clause 13 of the order and so  far as  this  right  of  the  tenant  is  concerned, according  to   the  learned   counsel,  no   permission  is necessary.      In accordance  with the  compromise  where  the  tenant declares his  intention  to  surrender  the  tenancy  it  is

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unnecessary for the landlord to pursue the proceedings under clause 13  as the tenant agrees to go and therefore once the tenant expresses  the desire  to surrender the tenancy there is no  need for  termination of  the lease  by the  landlord under Sec. 106. Consequently the compromise petition in this case  filed   before  the   Rent  Controller   rendered  the proceedings for  permission unnecessary.  In the face of the compromise it appears that if the view 472 taken  by  the  Rent  Controller  is  not  correct  then  in substance the order indicates that he granted permission for surrender of the tenancy and it is only in that context that he could pass an order for filing of the application as once the lease  is surrendered  the question  of determining  the lease  does  not  arise  and  it  was  contended  that  this conclusion is  the direct  result of  the  recitals  in  the compromise and  the order  passed by  the  Rent  Controller. According to the learned counsel it could only be understood to mean  two things i) that the lease stands surrendered and therefore the need of permission to determine does not arise or that  as the tenant expresses his desire to surrender the lease  stands  terminated  and  therefore  the  question  of permission does  not arise  or as  the tenant  expresses the desire  to   surrender  the  Rent  Controller  .  files  the proceedings thereby  impliedly permitting  the determination of lease  by surrender. In either of the event, according to the learned  counsel, in the face of the order passed by the Rent Controller the objections raised by the judgment-debtor in execution could not be sustained.      It  was   also  contended  that  delivery  of  physical possession by  the tenant  to the  landlord is  not  a  pre- requisite for an effective and valid surrender under Section ] 11(e)  and (f).  It is  only a  circumstance from which an implied surrender  may be  inferred as it is also one of the modes of  implied surrender.  Similarly actual  delivery  of possession is  also not  essential for  the determination of lease as according to him, the plain language of Sec. 111(e) and (f)  of Transfer  of Property Act does not indicate that delivery  of   possession  is   an  essential  requisite  of surrender.      According  to   the  learned   counsel  compromise  and subsequent extension  of time  by mutual  consent ultimately shows the  respondent. tenant’s  conduct that at every stage the original position of surrender of his tenancy rights was accepted and  admitted and  still after  securing  about  12 years on  the basis  of such  compromises this objection has been raised  ultimately as according to the learned counsel, the objection  to the  executability of  the decree  or  its validity should  have been  raised at the earliest moment as is clear  that this  decree  of  1974  on  the    basis  of compromise of 1970 is not questioned for all these years but is questioned  for the first time in 1983 and repeatedly the judgment-debtor respondent  having accepted the position and got further time extended by either compromise or other vise clearly  indicates   that  he  accepted  this  position  and therefore he  is estopped  from raising such an objection at this stage.  Learned counsel for the respondent on the other hand contended  that  clause  13(1)  of  the  order  clearly provides 473 that no  lease could be determined without the permission of the Rent  Controller and  therefore when on the basis of the compromise in  1970 A  the Rent  Controller passed  an order filing the  application, it  is clear that no permission was granted  and  according  to  him  after  that  a  number  of

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compromises have  been entered  into but  as  initially  the lease has  not been  determined with  the permission  of the Rent Controller the decree for eviction could not be said to be in  accordance with  Clause 13  and  on  this  basis  the objection filed by the respondent judgement-debtor are fully justified. Learned  counsel for  both  the  parties  on  the questions involved  referred to  series of decisions of High Courts and of this Court in support of their contentions.      Even learned  counsel  for  the  respondent  could  not contend that even if a tenant intend to terminate the lease, a permission  under Section  13 was  necessary  nor  it  was contended that  even if  a tenant  intended to surrender the lease he  could not do so without the previous permission of the Rent  Controller under  Clause 13.  In fact clause 13 of the order  puts restriction on the rights of the landlord to terminate the  tenancy and  seek eviction.  It is because of this that  sub-clause 3  of clause 13 of this order provides for  grounds   on  the  basis  of  which  a  permission  for determining the  lease could  be granted.  A perusal of this Sec 13 of the order therefore indicates that restriction has been imposed  on the  right of the landlord to seek eviction by determining  the lease  of the tenant and that could only to be  done on  specific grounds  specified in clause 3 with the previous permission of the Rent Controller.           "  13(1)   No  landlord  shall,  except  with  the           previous written permission of the Controller-           (a) xx xx xxx F           (b) where  the lease  is determinable by efflux of           the time  limited thereby,  require the  tenant to           vacate the house by process of law or otherwise if           the tenant is willing to continue the lease on the           same terms and conditions." The scheme  of this order clearly indicates that it is meant to protect  the rights  of the  tenant  by  restricting  the rights of  the landlord. It initially puts an embargo on the right of  a landlord  to  determine  the  lease,  if  he  so chooses. But  it does  not restrict  the tenant to surrender the lease  either by specific agreement or by an implication demonstrated by  conduct and  it will be therefore necessary to examine the H 474 proceedings  which  started  with  the  application  of  the appellant landlord for permission under clause 13, the reply filed by the respondent-tenant, compromise petition filed by both the  parties and ultimately an order passed by the Rent Controller and  it is  in fact  the interpretation  of  this order which  is really  material for  the decision  of  this matter as  the sole ground challenging the execution is that this decree  of  eviction  is  obtained  without  the  prior permission under  clause 13 of the order, the decree can not be executed  and in  our opinion  therefore it  is  in  this context that  the order  passed by the executing court which rejected the  objections of  the judgment-debtor  respondent and the  High Court  of  M.P.  which  allowed  the  revision petition and  allowed the  objections filed by the judgment- debtor has to be examined.      The  executing   court  by   its  order  dated  1.10.85 considered the  question including  the question of estoppel raised by  the appellant  decree-holder, the  learned  Court came to  the conclusion that after the compromise and orders of the Rent Controller in original Suit No.5/74 was filed in which the  decree was passed which is now being executed. It was held  that the  tenant respondent  did  not  raise  this objection in  the suit  and that the suit could not be filed as there is no previous permission of the Rent Controller in

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accordance with  Clause 13  of the order. It also shows that the first execution i.e. Execution No. 11/1981 was filed and notice was  served on the judgment-debtor the decree was not challenged by  the judgment-debtor on the ground that it was obtained without  the permission  of the Rent Controller. In this view  of the  matter the  executing court  rejected the objections holding  that if  after the passing of the decree it was  put to  execution on  number of  occasions when  the judgment-debtor instead of raising an objection only pleaded for time and time was extended again and . again. Ultimately after 11  years  for  the  first  time  this  objection  the judgment-debtor  could   not  raise,   the  executing  court rejected the  objections filed  by  the  objector  judgment- debtor.      In fact  the basic  question  is  as  to  what  is  the restriction put  because of Sec. 13 of the C.P. & Berar Rent Control order.  As this  Ci Section has been quoted above it is very clear that it starts with no landlord and it is this which makes  it clear  that it  is a  restriction put on the right of  landlord to  proceed with the determination of the tenancy and  for that purpose it is necessary that he should obtain the  permission of  the Rent Controller. Sub-clause 2 of this  Section again  indicates that when a landlord seeks to obtain  permission under  sub-sec. 1 then he will have to apply to the Rent Controller. 475      Sub-clause 3  of this  Section thereafter provides that the  Rent   Controller  shall  grant  permission  if  he  is satisfied in respect of grounds enumerated as sub-clauses of clause 3 of Section 13. The scheme of this Section therefore clearly indicates  that the  permission  which  is  required under Sec.  13 is  only needed  when the  landlord wants  to terminate the  tenancy. It  is not  at all  necessary if the tenant wants to surrender the lease or terminate the tenancy or vacate  the premises.  Section 106  of  the  Transfer  of Property Act reads as under:-           "106. In the absence of a contract or local law or           usage to  the  contrary,  a  lease  of  immoveable           property   for   agricultural   or   manufacturing           purposes shall  be deemed  to be a lease from year           to year,  terminable, on the part of either lessor           or lessee, by six months, notice expiring with the           end of  a year  of the  tenancy, and  a  lease  of           immoveable property for any other purpose shall be           deemed  to   be  a  lease  from  month  to  month,           terminable,  on  the  part  of  either  lessor  or           lessee, by  fifteen days’ notice expiring with the           end of a month of the tenancy.                Every notice  under this  section must  be in           writing, signed  by or  on behalf  of  the  person           giving it, and either be sent by post to the party           who is  intended to  be bound by it or be tendered           or delivered personally to such party or to one of           his family  or servants,  at his residence, or (if           such  tender   or  delivery  is  not  practicable)           affixed to a conspicuous part of the property." This provides  for termination  of the lease and it is clear that the  lease could  be determined either by the lessor or by the lessee and it is only when the lease is determined by the lesser  i.e. Iandlord  that provisions  of Section 13 of the C.P.  & Berar  Rent Control  order is  attracted but not otherwise.      Section 111  of the  Transfer of  Property Act provides for  various  circumstances  when  the  lease  of  immovable property comes to an end. It contemplates surrender, implied

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surrender and  it is  in this  context that  the  compromise filed before  the Rent  Controller deserves to be looked at. This compromise  was filed  before the  Rent  Controller  on 23.3.70. The relevant clause of this compromise reads:           "(b) The  applicants assure  and hereby  undertake           not to  evict N.A. 2 before 3 1st March, 1974. The           Applicant No. 2 476           shall vacate  the premises  on or  before that day           without recourse  to any  procedure to be followed           either before  Rent  Control  Authorities  or  the           Civil Court. It is  therefore clear  that the  tenant himself  offered to vacate the  premises on  or before  31st March, 1974 without any recourse  to any  proceedings before  any  Tribunal.  It therefore clearly  appears from  this  compromise  that  the tenant agreed  to surrender  the lease and further agreed to hand over  possession on or before 31st March 1974. It is in this context  that if language of Sec. 13 is examined, it is plain that  after this compromise there remained nothing for which permission  could be  granted by  the Rent Controller. The  permission  is  necessary  if  the  landlord  wants  to terminate the  tenancy on  any one  sf the grounds available under the  provisions of Section 13 and before granting such permission the  Rent Controller has to satisfy himself about the existence  of the  grounds. In  this case  when landlord sought  permission  the  tenant  came  forward  offering  to surrender the lease thereby the tenant expressed a desire to terminate the  lease from  a particular date and as is clear from the  language of  Section  13  that  no  permission  is necessary where  the tenant  chooses to  terminate the lease either by a notice under Sec. 106 or by surrender under Sec. 111  of  the  Transfer  of  Property  Act  and  under  these circumstances  therefore   the  order  passed  by  the  Rent Controller filing  this compromise  appears to  be just  and fair. It appears that the Rent Controller took the view that as the tenant himself has offered to surrender and determine the lease  by surrender  the question of permission does not arise.      In 1974, Civil Suit No. 5/74 was filed before the Civil Judge and  an agreement  of arbitration was filed before the Court. In  this agreement of arbitration the first clause is very material which reads as under:           "Whereas Party  No. 2  had surrendered his tenancy           rights and had agreed to deliver vacant possession           of the  following property to landlord party No. 1           and" It is  signed by  the landlord  and the  tenant  and  it  is clearly stated  that party No. 2 had surrendered his tenancy rights and had agreed to deliver vacant possession. It is on the basis  of this arbitration agreement that the matter was before the  Arbitrator where  the compromise was filed which is the  basis of  the award  and on the basis of the award a decree was  passed by  the Court  of Civil  Judge,  Khamgaon Senior Division  in Regular Civil Suit No. 95/74. During the proceedings in 477 this suit it is clear that no objection was raised that a decree for eviction could not be passed as there was no permission of the Rent Controller to determine the lease. On the contrary the arbitration agreement itself started with the condition that the tenant had already surrendered his tenancy rights as is clear from the clause quoted above. Clause 2 incorporated in the compromise filed before the Arbitrator reads as under:

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         |"(2) That Party No. 2 shall pay Rs 1301 (Rs Thirteen hundred and, one only) per month as damages from 1.4.1˜74 and shall also pay all the present and future taxes, including house tax and nazal rent, regularly every month in advance. The quantum of damages is agreed between the parties only upto the agreed date of vacation, after which Party No. 1 will be entitled to damages on the basis of the then market rate." A similar clause in the agreement and consequent decree go to show that as lease was surrendered and a new arrangement was substituted under which the respondent continued in possession and agreed to hand over possession upto 31.3.77.      Thereafter there was no objection that could be raised to the passing of this decree for eviction and thereafter when possession was not given as provided for in this decree upto 31.3.77 further time was sought and ultimately in spite of repeated extension of time the possession was not handed over till 31.12.80 an execution case was filed which was No. 11/81 and notice was issued under order 21 Rule 22. In response to this notice again an application was made for recording of compromise for grant of time till 31.12.82 as a last chance and on 24.3.81 the executing court passed an order disposing of the execution on the basis of the compromise permitting time upto 31.12.82. But when possession was not delivered even on 31.12.82 an execution was filed on 31.1.83 bearing No. 4/83 out of which the present appeal arises.      It is clear that from the beginning in 1970 when the compromise was filed before the Rent Controller the tenant has admitted to have surrendered the tenancy rights and thereby determined the lease by surrender. This was again reaffirmed when second time the arbitration was entered into and on the basis of that arbitration agreement, an award was passed on the basis of a compromise, and a decree was passed in terms of the award. Clearly therefore the decree which is to 478 be executed  is not  a decree  for eviction  on the basis of determination of  the lease  by the landlord but is a decree passed on  the basis  of lease having been determined by the tenant himself  by surrender  which has  been stated  by the tenant on number of occasions in categorical terms.      In  Shah   Mathuradas  Maganlal   and  Co.  v.  Nagappa Shankarappa Malaga and others, AIR 1976 S.C. 1565 this Court had the occasion to examine the question of surrender and it was observed as under:           "A surrender  clause (e) and (f) of Section 111 of           the Transfer of Property Act, is an yielding up of           the term  of the  lessee’s interest to him who has           the immediate  reversion of the lessor’s interest.           It takes  effect like a contract by mutual consent           on the  lessor’s acceptance  of  the  act  of  the           lessee. The  lessee cannot,  therefore,  surrender           unless  the   term  is  vested  in  him;  and  the           surrender  must   be  to  a  person  in  whom  the           immediate  reversion  expectant  on  the  term  is           vested. Implied  surrender  by  operation  of  law           occurs by  the 1)  creation of a new relationship,           or by relinquishment of pos session. If the lessee           accepts a new lease that in itself is a surrender.           Surrender can  also be implied from the consent of           the   parties   or   from   such   fact   as   the           relinquishment of  possession by  the  lessee  and           taking over possession by the lessor."      It appears  that the  learned Judge  of the  High Court

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felt that  when originally a compromise was filed before the Rent Controller  it was  not in  accordance with Sec. 13. In fact Sec.  13 contemplates a permission for determination of the lease but where the tenant agrees to determine the lease himself by  mutual consent  the question  of permission does not arise.  Apart from  it, it  has not been noticed that in the reply filed before the Rent Controller the subletting is not disputed  and it  is  not  pleaded  by  the  tenant  the judgment-debtor now  the respondent  that the  sub-lease was with the  written consent of the landlord as is required and in this  view of the matter the order of the Rent Controller could even  be interpreted  to mean  that permission  ˜, was granted but  apart from  it as  the order itself states that the matter  is filed  apparently because the Rent Controller felt that  as the tenant himself has agreed to determine the lease on a particular date there is no question for grant of permission and  it is here it appears that the learned Judge fell into the error.      Thereafter the  learned Judge  of the  High  Court  has examined 479 the agreement of arbitration and the compromise filed before the Arbitrator,  and had applied the principle of a contract contrary to the public policy and on that basis have come to the conclusion  that this could not be permitted. Here again it appears  that the  learned Judge  has committed an error. Apparently the  arbitration agreement,  the compromise filed before the Arbitrator and the Award and the decree passed by the Court  all put together clearly go to show that what was referred to  the Arbitration was not as to whether the lease is determined  or not  but what  was referred was the period for which  he should be permitted to continue in possession. The determination of lease was agreed between the parties as it was  even agreed earlier. The only question therefore was grant of  time on the new terms and conditions which were to be determined  by the  Arbitrator. Thus,  in fact  the lease came to  an end  by surrender  and what  by  the  Award  was evolved was  an arrangement  on new terms and this therefore does not  appear to  be any  contract just to bypass Section 13, as  when the lease itself is determined nothing survives and therefore it could not be contended that it was contrary to provisions of Section 13.      In Foster v. Robinson, [1950] 2 All E.R. 342 a question more  or   less  similar,   as  is   before  us,   came  for consideration.  In  that  case  the  question  of  surrender although the  tenant  continued  to  be  in  possession  was considered. It was observed as under:           "The landlord,  a  farmer,  was  the  owner  of  a           cottage. Shortly  after the  1914-19  18  war  the           defendant’s father  was engaged  to work  for  the           landlord on  his farm,  and at  the time  of  that           engagement and  in consequence  of his  employment           the cottage was let to the defendant’s father at a           rent of   3.5.s  a half  year. Shortly before May           1946, the  defendant’s father,  owing to  age  and           infirmity, gave  up work,  and in that month there           was made  between him  and the  landlord a  verbal           agreement whereby  the  existing  tenancy  was  to           cease, the  landlord was  not to  charge rent  any           more, and the defendant’s father was to be allowed           to live  in the  cottage for  the remainder of his           life rent  free. On  Jan. 15, 1950 the defendant’s           father died.  The defendant,  a  daughter  of  the           deceased, had  lived with him in the cottage for a           number of years and was residing there at the date

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         of his  death. The landlord informed the defendant           that it was his intention to sell the cottage, but           that she  could continue to reside there rent free           until Apr.  6, 1950.  On Feb. 18, 1950, letters of           administration were granted to the defendant 480      who refused  to leave the cottage, claiming that at the      date A  of his death her father was still a contractual      tenant under  the original tenancy and that tenancy was      now vested in her. The question  on the  facts quoted above was examined and in plain language it was observed:      "The question  in the  present case  is whether  on the      facts as  found by the learned county court judge there      are  circumstances   which  prevent   the  tenant  from      asserting that the old relationship has been superseded      by the new. Put in its simplest form, if there is a new      arrangement which  the tenant represents by his conduct      that he  is asserting, then he is estopped from denying      that the  landlord was capable of entering into the new      arrangement, and,  if the  pew arrangement could not be      entered into if the old agreement subsisted, it follows      that the  tenant is equally prevented from denying that      the old agreement has gone." And having so found it was further held:      "Having  so   found,  I  can  see  no  ground  why  the      transaction should  not have  the  result  the  parties      intended it  should have.  I think  it amounts to this,      that  the  determination  of  the  former  tenancy  was      equivalent to  delivery up  of  possession  under  that      tenancy and then a resumption of possession under a new      transaction immediately afterwards. I think, to use the      language of  Cockburn, C.J. in Oastler v. Henderson (6)      (2  Q.B.D.   578)  there   was  a   virtual  taking  of      possession. If  the key  had been  handed over and then      been handed  back  the  next  minute  that  would  have      symbolised the  delivery up and the grant of possession      and  I  cannot  think  that  it  vitally  matters  that      performance was not gone through. That is the effect of      a surrender  by operation  of law in such a case as the      present and  the learned Judge has so found, and, there      being evidence to support that finding, we would not be      justified in  differing from his conclusion as to fact,      and, if  not, it  seems to  me the  conclusions which I      have stated  necessarily follow. The whole question is:      Was the  old contractual  tenancy  determined?  Was  it      determined as  the result  of surrender by operation of      law? The  learned county court judge found that it was,      and I think that is a finding supported by the evidence      without any misdirection. 481      in law and that this appeal should be dismissed." It is  thus clear  that when  the  parties  surrendered  the tenancy  and  substituted  by  a  fresh  arrangement  merely because technically the possession was not handed over is of not much consequence. Apparently in the present case also by mutual  agreement  the  tenancy  came  to  an  end,  and  by arbitration what  was sought  was an arrangement for time on payment of damages for use and occupation. Admittedly it did not either  continue the old tenancy or started any new one. This substitution  of new  arrangement and the determination of the  old by  mutual agreement  clearly indicates that the tenant surrendered  his tenancy  rights and  the court below was not right in coming to the conclusion that the surrender is no there as possession was not handed over.

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    The next  question which is of some importance is about raising of  the objections  at the earlier stage. Admittedly when the award was filed in the court, notice was served and no objection was raised. If the tenant intended to raise the objection that  this decree  on the basis of the award could not be  passed as  it was in contravention of Sec. 13 of the Rent Act  and therefore was absolutely without jurisdiction. Such an objection could have been raised there and then. The tenant admittedly  did not  raise this  objection which  was open to  him. In  this view of the matter, the contention on behalf of  the appellant about the constructive res-judicata also is  of some significance. This question of constructive res judicata in execution proceedings came before this Court in Mohanlal Goenka v. Benoy Kishna Mukherjee and others, AIR 1953  S.C.  65.  In  this  decision  following  the  earlier decision of  the Privy  Council, this  Court ruled  that the principles of  constructive res-judicata  will be applicable even in execution proceedings.      It is  also clear that if when the decree was passed on the basis  of award  and notice  was issued to the judgment- debtor respondent  no such  objection was raised. It is also clear that  the decree was put in execution on more than one occasions and  this objection  was for the first time raised only in 1983. In this view of the matter also the contention of the learned counsel for the appellant that by not raising this objection  earlier the  judgment-debtor  has  lost  his right to  raise this  objection and he is estopped, deserves to be  accepted, although  in the  light  of  what  we  have discussed earlier,  it is  not necessary  to  go  into  this question,  having  come  to  the  conclusion  on  the  first question against the respondent. 482      In the  light of  the discussion  above  therefore  the judgment passed by the High Court can not be maintained. The appeal is therefore allowed. The judgment passed by the High Court is set aside and that passed by the executing court is maintained. In the circumstances of the case the parties are directed to bear their own costs. H.L.C.                                       Appeal allowed. 483