# KANI RAM AND ANR v. SMT. KAZANI AND ORS

- **Citation:** [1973] 1 S.C.R. 254
- **Court:** Supreme Court of India
- **Decided:** 1972-04-19
- **Case number:** C.A. No. 247 of 1971
- **Bench:** K. S. Hl!GDE, A. N. Grover, G. K. Mitter
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/kani-ram-and-anr-v-smt-kazani-and-ors-5784
- **Pages:** 4

## Headnote

Delhi & Ajmer Rent Control Act, 1952, s 13.-Decree of ejectment
passed after compromise between landlord and tenant-Court passing
decree satisfied on facts that provisions of s.
13 are complied withQuest'on whether such decree is valid is a mixed question of fact and law
to wh'ch principle of constructive res judicata applies.
J instituted a suit for ejectment and recovery of rent under clauses
(a) and (e) of s. 13 of the Delhi & Ajmer Rent Control Act 1952 in respect of a house situate in Delhi, against the tenant. The grounds on
which ejectment was sought were non-payment of rent and
bona
fide
personal requirement of ti\e landlord.
A decree of ejectment only was
passed on the basis of compromise. The decree holder filed ~n ·application fdr execution. The tenant raised objections one of which was that the
decree was not based on the findings of the Court but on a compromise
and was theref()re a nullity.
The Executing Court dismissed the objections and the order was upheld in appeal by the Senior Sub Judge. The
High Court dismissed the revision petition. Thereafter the house in question was transferred by sale. A fresh application for execution was filed
against the present respondents which was allowed by the Executing Court.
An appeal having failed the respondents filed a revision in the High Court.
A Single Judge allowed the revision application accepting the respondents
plea that the d_ecree was a nullity and rejecting the plea of the decreeholder that the objection was barred by constructive res judicata.
The
latter plea was rejected on the ground that the decision of the courts in
the first· set of execution proceedings on the question of validity of the
clecree was a pure question of law. The decree holders appealed to this
Court with certific)lte. Allowing the appeal,
.
HLD : The High Court fell into an error in considering that the
decisions of the Courts in the previous execution proceedings involved a
pure question of law.
In the judgment of the Senior Subordinate Judge
given in the first set of execution proceedings the various circumstances
were considered by which the learned judge came to the conclusion that
the court which passed the decree for eviction was satisfied that one or
more of the groun&; mentioned in s. 13 of the Rent Control Act had
been made out. The decision given in the first set of execution proceedings was thus not one of law only but of a mixed question of law and
fact.
Such a decision undoubtedly would operate as
res iudicata.
In
execution proceedings s. 11 of the Code of Civil Procedure does not apply
in terms but the rule of constructive res
judicata bas
always
been
applied.
[256D, G-HJ
In Yiew of the above decision the question whether the decree was a
nu11ity did not survive for consideration.
Bahadur Singh & Another v. Muni-Sabrat Dass & Another [19681 Z.-
S. C.R. 432. referred to,
Mathura Prasad Ba;oo Jaiswal & Ors. v. Dossibai N. B. Jee;eebhoy,
[19701 3 S.C.R. 830, applied.

## Text

254
KANI RAM AND ANR.
v.
SMT. KAZANI AND ORS.
April 19, 1972
(K. S. Hl!GDE, A. N. GROVER AND G. K. MITTER, JJ.]
Delhi & Ajmer Rent Control Act, 1952, s 13.-Decree of ejectment
passed after compromise between landlord and tenant-Court passing
decree satisfied on facts that provisions of s.
13 are complied withQuest'on whether such decree is valid is a mixed question of fact and law
to wh'ch principle of constructive res judicata applies.
J instituted a suit for ejectment and recovery of rent under clauses
(a) and (e) of s. 13 of the Delhi & Ajmer Rent Control Act 1952 in respect of a house situate in Delhi, against the tenant. The grounds on
which ejectment was sought were non-payment of rent and
bona
fide
personal requirement of ti\e landlord.
A decree of ejectment only was
passed on the basis of compromise. The decree holder filed ~n ·application fdr execution. The tenant raised objections one of which was that the
decree was not based on the findings of the Court but on a compromise
and was theref()re a nullity.
The Executing Court dismissed the objections and the order was upheld in appeal by the Senior Sub Judge. The
High Court dismissed the revision petition. Thereafter the house in question was transferred by sale. A fresh application for execution was filed
against the present respondents which was allowed by the Executing Court.
An appeal having failed the respondents filed a revision in the High Court.
A Single Judge allowed the revision application accepting the respondents
plea that the d_ecree was a nullity and rejecting the plea of the decreeholder that the objection was barred by constructive res judicata.
The
latter plea was rejected on the ground that the decision of the courts in
the first· set of execution proceedings on the question of validity of the
clecree was a pure question of law. The decree holders appealed to this
Court with certific)lte. Allowing the appeal,
.
HLD : The High Court fell into an error in considering that the
decisions of the Courts in the previous execution proceedings involved a
pure question of law.
In the judgment of the Senior Subordinate Judge
given in the first set of execution proceedings the various circumstances
were considered by which the learned judge came to the conclusion that
the court which passed the decree for eviction was satisfied that one or
more of the groun&; mentioned in s. 13 of the Rent Control Act had
been made out. The decision given in the first set of execution proceedings was thus not one of law only but of a mixed question of law and
fact.
Such a decision undoubtedly would operate as
res iudicata.
In
execution proceedings s. 11 of the Code of Civil Procedure does not apply
in terms but the rule of constructive res
judicata bas
always
been
applied.
[256D, G-HJ
In Yiew of the above decision the question whether the decree was a
nu11ity did not survive for consideration.
Bahadur Singh & Another v. Muni-Sabrat Dass & Another [19681 Z.-
S. C.R. 432. referred to,
Mathura Prasad Ba;oo Jaiswal & Ors. v. Dossibai N. B. Jee;eebhoy,
[19701 3 S.C.R. 830, applied.
CIVIL APPELLATE JURISDICTION : C.A. No. 247 of 1971.
A
'
,.
B
c
D
E
F
G
H
A
KAN! RAM v. KAZAN! (Grover, J.)
255
Appeal by Special Leave from the Judgment and Order dated
the 27th August, 1970 of the Delhi High Court in Civil Revision
No. 554 of 1969.
0. C. Mathur and P. C. Bhartarl, for the appellants.
B
Sardar Bahadur Saharya, Vishnu Bahadur Saharya and
Y ougindra Khushalani, for the respondents.
c
D
E
F
G
H
The Judgment of the court was delivered by
Grover, J, This is an appeal by special leave from
a
judgment of the Delhi High Court.
One Jaigopal instituted a suit for ejectment and recovery of
rent under clauses (a) and (e) of s. 13 of the Delhi & Ajmer Rent
Control Act 1952 in respect of a house situate in Pahargunj against
the tenant.
The grounds on which ejectment was sought were
non-payment of rent and bona fide personal requirement of the
landlord.
The suit was resi9ted by the ttmant on various grounds
but ultimately on June 2, 1956 a decree for ejectment was passed
on the basis or a compromise.
The suit with regard to the recovery of arrears of rent was dismissed.
On June 6,
1959, the
decree holder filed an application for execution of the decree. The
tenant raised various objections; one of the objections was that the
decree sought to be executed was based on a compromise and not
on any findings of the court witli the result that it was a nullity.
On September 7, 1960 the Executing Court dismissed the objection and allowed the execution application of the landlord.
That
order was coniirrned in appeal by the Additional Senior Sub-Judge
on October 13, 1961.
The judgment-debtor went up in revision
but the same was dismissed by Mahajan J. on December 19, 1962.
In March 1962, Jaigopal the decree holder sold t share in the
house in dispute to Kani Ram and Babu Lal the present appellants
before us.
The remaining t share was sold by him to one RamjiJal.
Jn the year 1963 an execution application was filed by the
appellants and Ramjilal after obtaining the necessary orders of the
court under Order 21, Rule 16 of the Code of Civil Procedure. In
1969 the appellants also obtained the order of the
competent
authority under the Slum Areas (Improvement and Clearance)
Act to execute the decree for eviction.
On February 9,
1968
Ramjilal sold his right, title and interest in a portion of the house
in dispute to Tara Chand, one of the judgment-debtors.
On July
26, 1968 an application for execution was filed a&ainst the present respondents which was allowed by the Ex:cutmg Court. An
appeal against that order by the respondent failed.
The matter
256
SUPREME COURT REPORTS
[ 1973] l S.C.R.
was taken in revision by the respondent to u1c tllgL. Court and a
learned single judge alk>wed the revision application and directed
the execution application to be dismissed.
There are only two points which require determination.
One
is whether the matters agitated in the second set of execution proceedings were barred by the applicability of constructive res
judicata.
The other is whether the original decree for ejectment
was valid and was not a nullity.
The High Court took the view
that the decisions of the courts in the first set of execution proceedings did not operate as res judicata as the substantial question
involved was purely one of law.
According to the High Court a
decree for ejectment obtained under the Delhi & Ajmer Rent
Control Act on the basis of compromise was a nullity.
Although
in the previous execution proceedings which ended with the order
of Mahajan J., made on December 19, 1962 it-had been held that
tht' decree was valid that decision could not bar an objection being
raised by the judgment-debtors in the second set of proceedings
with regard to the validity of the decree which was a pure question
of law.
In our judgment the High Court fell into an error in
considering that the decision of the courts in the previous execution
proceedings ending with the order of Mahajan J., made on December 19, 1962 involved a pure question of law.
A perusal of the
orders both cf the Executing Court and the first appellate court
shows that it was on an examination of the entire facts that the
courts arrived at the conclusion that when the decree for ejectment
was made the Court had satisfied itself about the existence of the
grounds which had been alleged in the petition filed by Le landlord.
It is true that s. 13 ( 1) of the Rent Control Act prohibited the
court from passing the decree or order for recovery of possession
of any premises in favour of a landlord against the tenant unless
the court was satisfied that one or more of the ground; given in
that provision existed; (See Bahadur Singh & Another v.
Muni
Su brat Dass & Another) (1). In the judgment of the Senior Subordinate Judge dated October 30, 1961 given in the ·first set of
execution proceedings the various circumstances were considered
by which the learned judge ca~e to the conclusion that the court
which passed the decree for eviction was satisfied that one or more
of the grounds mentioned in s. 13 of the Rent Control Act had
been made out.
The decision given in the first set of execution
proceedings was thl!s not one of law only but of a mixed question
of law and fact.
Such a decision undoubtedly would operate as
res judicata.
In execution proceedings s. 11 of the Code of Civil
Procedure does not apply in terms but the rule of constructive res
judil::ata has always been applied.
Even according to the judgment
(I) [1969] 2 S.C.R. 432
A
B
c
D
E
F
G
H
A
B
c
KANI RAM v. KAZAN! (Grover, J.)
257
of this Coutt in Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai ·
N. B. Jeejeebhoy(1) on which the learned judge of the High Court
relied in the judgment under appeal laid down that a mixed question
of law and fact ·determined in the earlier proceedings between the
same parties could not be questioned in a subsequent proceeding
between them.
We have no manner of doubt for these reasons
that the High Court was wrong in not sustaining the judgment of
the Senior Sub-Judge, Delhi, dated November 14, 1969 by which
the crder of the ExecutiJllg Co•1rt dated August 23, 1969 had been
upheld.
In this view of the matter the second point calls for no
decision.
In the result the appeal is allowed, the order of ft,,. : ligh Court
is set aside and that of the courts below restoren.
The appellants
will be entitled to costs in this Court.
G.C.
Appeal allowed.
(1) [1970] 3 S.CR. 830.