# Shah Rmlkfal Chwrilal v. Sindhl Shyumla/ Mulchand, 12 Guj. La1v Rcporttr

- **Citation:** [1974] 2 S.C.R. 544
- **Court:** Supreme Court of India
- **Decided:** 1973-11-30
- **Bench:** D. G. Palekar, V. R. Krishna !Yer, R. S. Sarkari A
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/shah-rmlkfal-chwrilal-v-sindhl-shyumla-mulchand-12-guj-la1v-rcporttr-6164
- **Pages:** 11

## Headnote

Bombay Rent Act, 1947, Ss. 12 and 13-Compromise decree for evlction-Wf!tn
may M passed.
The rcspondcnt·1andlord instituted a suit under the flomboy Rent Act ror
possession against the appellant-tenant on two Founds, namely, arrears in IXlYmtnt
of rent and bona fide requorement of the prcnuscs for personal use and occupotion.
A compromise decree was passed. When the appellant apphcd for e=ution of the
decree, the appellant contended intc; alia \hat the compromi.<C dccnx had been
passed by the Rent Court wtthout sattsfymg tlself ns to the exoslcucc of &rounds of
eviction under the Act and hence, bcmg 11 nulhty, was not executable. The Executing
Court accepted the contention. _In appeal, the nppellate. Court.sct aside the <fumissa1
and remanded the matter holdms that there were admtss.oons m the comprollllSC it·
self from which the Court could be satisfied nbout the c.'istencc of both the natutary
grounds for eviction alleged in the plnint. A revision to the High Court w-~ di;.
missed.
Dismissing the appeal to this Court,
HELD : (I) Tho public policy permeating thL• Act is the protection of ltoan~>
against unreasonable eviction. Construing the provisioros of s.l2.13 and 28 of the Act
in the light of th~ policy, it should be held that the Rent Court under the Act "'
cot competent to lY.lSS a deem: for possession either in in>itum or with the consem
of the parties on a ground which "de/tors the Act or ultra vir<' the Act. TheW...
ten<:e of one of the stntutory grounds mentioned in s. 12 and 13 is o si!lt qliiZ 110n to
the aercisc of junschction by the Rc!ll Court. Parties, by their consent cannot
confer jurisdicuon on the Rent Court to do something which, according to the
legi:Jalive mandate, it could not do. {550C-E]
Shah Rmlkfal Chwrilal v. Sindhl Shyumla/ Mulchand, 12 Guj. La1v Rcporttr
1012, approved.
Dunon v. Fiachom, (19~11 2 K. n. 291 at 299, applied.
(2) The fact that 0. 23 r. 3, C.P.C., i! applicable to the pr~"lliogs does not
remove that fetter or empower the Rent Court to make a d<'Cn:<: for evtction dzlwn
the statu i.e.
Even. under that prov~ion. the Court, be foro ordcnng that the compromiSe be rccordtd, IS n:qum:d to sausfy 1L'>Cif al>out the lawfuln= of the agreement
Such lawfuln= or otlw:rwi.se of the agrtlemcnt is to be judged also on the ground
"'hcthcr ~rms of the compromise oro.> consostcnt with th\0 provi>ions of tha Rent
Act, (55JA.C]
(3) Dul, lf at the time of the passing of the dccrt:e there was some matetiU before the Court on the bas~ of which the
Court could
prima facie be suu.sfit:d
nbout the exm~!'ce of a $latutory ground fur eviction, it will be presumed .that the
coun WiiJ ""QUSflcd and the decree fur eviction though pa.'ISN on the b:lSIS ofthC
compromise: ~vould be valid. Such material may be in form of evidence roconkd~
produced or II rn:l)' be partly or. wholly bo tn the shape of ~'pn.-;s or
unpl~ ••
udmtSJ.tons nude on tho compronll5e ngn:cmenl. Admissoous tf tnoe ami cl~r .-
by fa~ the be>t PI'O<Jf of lite facts adoniucd e<JX."Cially when they arcjuuidal adn11""""
admt>,.blc under 1. ~H, Evidcn.;:e Act. [552l'·H)
ln the J?<=nt ca<e, bcc:luS<l of the admission to pay
the urrears ~f ['!RI t~
m~s'!" pruhts at_ th'l' contractual mtc "!ld the withdr.t\\1ng of his
apph-"U1"~
ll.auon of ttand'u.d rent, th~r•. was no do.putc with regan!"' Ute amount ot :;t:l.
of
rent, and th..~ »at an :>dnu.<>ton that ~he 1\:nt was in um:aN. The adonisst<>!'
the>e matenal f~tcu con.~lltute Q ground rur eviction under 1, 12 (3JI(a). [55JB·DI
JJn!'a4ur Singh v. Mun/ Sul>rut Duss, [19691 2 S.C.R. 432, Kt~ush.llra Dj;7;j
Slt~l 1\. L Ba11>uf1 (1969) 2 S.CR. Ji14:S, an<J FttC!:I Lui Juin v. M"" ,ll<li.(
3 S.C.C. J~l, herd tnapphcablc.
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NAGL'IIlDAS V, QALPATRAM (Sarkaria, 1.)
545
K. K. Chari v. B. M. Seshadri, (1973] 1 S.C.R. 761, followed.
Jt~hw(llll RaJ Mulukchand v. ,Anandila!- Bapala!, · [196S] 2, S.C.R. 3SO,
distilliuished.
· (4) Further the Executing Court is not competent to go behind the decree

## Text

544
NAGINDAS RAMDAS
''·
DALPATRAM ICHHARAM@ BRIJRAM AND ORS.
November 30, 1973
[D. G. PALEKAR, V. R. KRISHNA !YER AND R. S. SARKARI A, JJ,)
Bombay Rent Act, 1947, Ss. 12 and 13-Compromise decree for evlction-Wf!tn
may M passed.
The rcspondcnt·1andlord instituted a suit under the flomboy Rent Act ror
possession against the appellant-tenant on two Founds, namely, arrears in IXlYmtnt
of rent and bona fide requorement of the prcnuscs for personal use and occupotion.
A compromise decree was passed. When the appellant apphcd for e=ution of the
decree, the appellant contended intc; alia \hat the compromi.<C dccnx had been
passed by the Rent Court wtthout sattsfymg tlself ns to the exoslcucc of &rounds of
eviction under the Act and hence, bcmg 11 nulhty, was not executable. The Executing
Court accepted the contention. _In appeal, the nppellate. Court.sct aside the <fumissa1
and remanded the matter holdms that there were admtss.oons m the comprollllSC it·
self from which the Court could be satisfied nbout the c.'istencc of both the natutary
grounds for eviction alleged in the plnint. A revision to the High Court w-~ di;.
missed.
Dismissing the appeal to this Court,
HELD : (I) Tho public policy permeating thL• Act is the protection of ltoan~>
against unreasonable eviction. Construing the provisioros of s.l2.13 and 28 of the Act
in the light of th~ policy, it should be held that the Rent Court under the Act "'
cot competent to lY.lSS a deem: for possession either in in>itum or with the consem
of the parties on a ground which "de/tors the Act or ultra vir<' the Act. TheW...
ten<:e of one of the stntutory grounds mentioned in s. 12 and 13 is o si!lt qliiZ 110n to
the aercisc of junschction by the Rc!ll Court. Parties, by their consent cannot
confer jurisdicuon on the Rent Court to do something which, according to the
legi:Jalive mandate, it could not do. {550C-E]
Shah Rmlkfal Chwrilal v. Sindhl Shyumla/ Mulchand, 12 Guj. La1v Rcporttr
1012, approved.
Dunon v. Fiachom, (19~11 2 K. n. 291 at 299, applied.
(2) The fact that 0. 23 r. 3, C.P.C., i! applicable to the pr~"lliogs does not
remove that fetter or empower the Rent Court to make a d<'Cn:<: for evtction dzlwn
the statu i.e.
Even. under that prov~ion. the Court, be foro ordcnng that the compromiSe be rccordtd, IS n:qum:d to sausfy 1L'>Cif al>out the lawfuln= of the agreement
Such lawfuln= or otlw:rwi.se of the agrtlemcnt is to be judged also on the ground
"'hcthcr ~rms of the compromise oro.> consostcnt with th\0 provi>ions of tha Rent
Act, (55JA.C]
(3) Dul, lf at the time of the passing of the dccrt:e there was some matetiU before the Court on the bas~ of which the
Court could
prima facie be suu.sfit:d
nbout the exm~!'ce of a $latutory ground fur eviction, it will be presumed .that the
coun WiiJ ""QUSflcd and the decree fur eviction though pa.'ISN on the b:lSIS ofthC
compromise: ~vould be valid. Such material may be in form of evidence roconkd~
produced or II rn:l)' be partly or. wholly bo tn the shape of ~'pn.-;s or
unpl~ ••
udmtSJ.tons nude on tho compronll5e ngn:cmenl. Admissoous tf tnoe ami cl~r .-
by fa~ the be>t PI'O<Jf of lite facts adoniucd e<JX."Cially when they arcjuuidal adn11""""
admt>,.blc under 1. ~H, Evidcn.;:e Act. [552l'·H)
ln the J?<=nt ca<e, bcc:luS<l of the admission to pay
the urrears ~f ['!RI t~
m~s'!" pruhts at_ th'l' contractual mtc "!ld the withdr.t\\1ng of his
apph-"U1"~
ll.auon of ttand'u.d rent, th~r•. was no do.putc with regan!"' Ute amount ot :;t:l.
of
rent, and th..~ »at an :>dnu.<>ton that ~he 1\:nt was in um:aN. The adonisst<>!'
the>e matenal f~tcu con.~lltute Q ground rur eviction under 1, 12 (3JI(a). [55JB·DI
JJn!'a4ur Singh v. Mun/ Sul>rut Duss, [19691 2 S.C.R. 432, Kt~ush.llra Dj;7;j
Slt~l 1\. L Ba11>uf1 (1969) 2 S.CR. Ji14:S, an<J FttC!:I Lui Juin v. M"" ,ll<li.(
3 S.C.C. J~l, herd tnapphcablc.
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NAGL'IIlDAS V, QALPATRAM (Sarkaria, 1.)
545
K. K. Chari v. B. M. Seshadri, (1973] 1 S.C.R. 761, followed.
Jt~hw(llll RaJ Mulukchand v. ,Anandila!- Bapala!, · [196S] 2, S.C.R. 3SO,
distilliuished.
· (4) Further the Executing Court is not competent to go behind the decree if the
decree on the face of it discloses some material on the basis of which the rent court
coulJ be satisfied with regard to the existence of a statutory ground for eviction.
If on the face of it the decree does not show the existence of such material or juris4ictional fact, the Executing Court may look to the original record of the trial
court *o ascertain whether there was any material furnishing a foundation for the
trial court's jurisdiction to pass the decree. The moment it finds that prima facie
·such material existed its task is complete, and it was not competent to go behind the
decree and question its validity. [SS3G·SS4B]
CIVIL APPELLATE JURISDICTION : Civil
ApPeal No. 2479 (N)
of 1972.
Appeal by Special Leave from the judgment and order dated the
26th O;:tober 1972 of the Gujarat High Court at Ahmedabad in Civil
Re-visicu Application Ko. 1254 of 1972.
S. K. Dlwk1kia, for the appellant. ·
1'. jJ. Part~h and Sunanda Blzandare, for the respondents.
Tl:t> Jndga:er.t of the Court was delivered by
SAil.KARIA, J.-Whether the decree. dated September 23, 1964,
pas.;.;;t! by the Trial Judge in Regular Suit No.6 of 1963, filed under the
. Boi:J.b:ly Rent Control Act, 1947 (for short, C<!lled Bombay Rent Act)
directing the eviction of th' appellant is a nullity and, as such, inexe-
. cutable, is the only question that falls for decision in this appeal by
specia1leave. It arises out ?f these facts:
.t\ppellant was a tenan't of the premises at Ward No. 3, Nondh No.
1823/9 in the Salabatpur area of Surat. He was in arrears of rent
since 16·1()..1961. On 16-11·1962, the landlords (respondents herein)
served a notice on the appellant terminating his tenancy and also requiring him to pay the arrears of rent. On 2-1-1964, the landlords
instituted the suit in the Court at Surat for possession against the
tenant on two grounds, namely :
(i) non-payment of rent in arrears for a period of more than one '. r
year,
.
;· 1
(ii) bona fide requirement of the premises by the landlords for
· their own use and occupation.
·
The rate of contractual rent was Rs. 15/- per month. On 23-9-1964
the parties at:rlved at a compromise, the terms of which, as incorporated in the decree, were as under.:
"(I) The defe; .. u.!ant do hand over possession of the suit
premises by 30-9-1968 without any objection. The
tenant to pay Rs. 532·50 P as arrears of · rent and.
mesne profits upto 3()..9-1964. The plaintiff
is to ·
receive Rs. 380/- deposited by the defendant in court
and the remaining amount is to be paid by the defendant
to· the
plaintiffs on or about 31-12-1964.
The
defendant is to pay Rs. 1 Sfp. m. as mesne profits
from 1-1()..1964.
. ··~ ~-
546
SUPREME COURT REPORTS
(1974] 2 S.C.R.
(ii) The relationship of the landlord and tenant between
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the parties has come to an end and no· such relationship is to be created by the compromise. The defendant has been given time to vacate the suit premises
by way of grace. If the defendant fails to comply
with the aforesaid terms of the decree, the plaintiffs
would be entitled to execute the decree both for the
decretal amount as well as for possession of the suit
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premises.
(iii) If the plaintiffs get for the defendant the lease of the
premises bearing Nondh No. 1602 of Ward No. 3
on a monthly rent of Rs. 50/- the defendant is to. hand
over the possession of the suit premises immediately.
(v)
The parties are to bear their own costs."
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On 12-1-1968, the landlords filed a petition for execution of the
decree. It was dismissed as pre-mature. The tenant having failed
to pay Rs. 152/50 i.e. the balance of arrears. by the agreed date, the
decree-holders on 17-1-1968,
again took out execution for the recovery of the said amount.
Thereafter, on 3-10-1968, the landlords
filed the second petition to recover possession of the suit premises in
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,execution of the decree.
The tenant admitted that he had, according to the compromise,
•
agreed to give possession on 30-9-1968, but added that in 1968 A.b.,
the ground floor of the premises bad become submerged in ~ood
waters, and thereupon the decree-holders seeing his (tenant's) plight,
orally agreed to allow him to continue in the premises on payment of
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a monthly rent of Rs. 15/-. and thus the decree had been adjusted and
satisfied. Subsequently, by another application,
th~ judgment·
debtor raised an objection that since the decree had been passed by the
c;ourt without satisfying itself as to the existence of a ground of eviction under the Bombay Rent Act, it was a nullity, and as such, not
executable. ·
-·
~e executing court (Joint Civil Judge, Surat) rejected the story
of .adJ~stment. and satisfaction of the decree, but accepted the. other
obJection holdmg that the decree was void because "the Court d1d not
apply its mind while allowing it under s. 13 (I) (j), Rent Act". With
regard to the second ground it was said that it had ceased to exist
because "under the terms of compromise the default in payment of
rent was waived and the defendant was given time to pay up to 30-9-68''.
In the result, the execution was dismissed.
From the order of the executing court, the decree-holders carried
an appeal to the Extra Assistant Judge, Surat, who held that there was
ample material in the shape of admissions in the compromise. itself,
from which the court could be sati ~ fic-d about the existence of both the
statutory grounds ,. or eviction alleged in the plaint. He, therefore,
set aside the dismissal of the execution and remanded the case to the
executing court "to be dealt with in accordance with Jaw". Aggrieved
by that order of the Extra Assistant Judge, the tenant preferred a
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NAGINDAS v. DALPATP.AM (Sarkaria, 1.)
547
revision petition in the High Court of Gujarat,. The revision was
dismissed in limine by an order dated 26-10-1972, against ~hich this
appeal by ,special leave has been filed.
Mr. Dholakia, learned Counsel for the appellant, contends that in
view of public policy which underlies all Rent Control Acts, including
the Bombay Rent Act, no decree or order of evictio""' <:an be passed
unless the Rent Court or Tribunal is satisfied, on tbt oasis of extrinsic material as to the existence of all the essential facts constituting
a statutory ground for eviction, It is stressed that in the instant case
the material, if any, preceding the decree or even the . so-called
admission. of the rent being in arrears in the compromise itself, was
far too insufficient to make out a ground for eviction under s;. 12(3)
of the Bombay Rent Act. Clause (a) of s. 12(3), proceeds the argument, could not cover the case because the tenant had deposited the
rent due upto the date of the suit and had also made .an application
for fixation -or standard rent; and clause (b) of the same sub-section
did not apply because no interim standard rent had been fixed by the
Court. As regards the gro.und of bona fide personal requirement of
the land-lords, it is urged that there was not even a scintilla of material from which the satisfaction of the court as to the existence of a
ground under s. 13 could be spelled out. The decree, concludes
the Counsel, being based solely on the consent of the partiee, was a
nullity, and was directly hit by the rule laid down by this Court in
Bohadur Singh v. Muni Subrat Dass;(l) Kaushalya Devi v. Shri K. L.
Bonsa/(2)
and Ferozi La/ Ja;n v. Man Mal (3). Learned Counsel
has further attempted to distinguish this Court's decision in K. K.
Chari v. R. M. Seshadri (4) on the ground that there was documentary
and oral evidence of the plaintiff which had not been challenged in
cross-examination, from which the statutory ground of the premises
being required by the landlord for bona fide personal os:cupation, had
been fully made out. Reference has also been made to Jeshwant Rai
Mulukchand v. Anandilal Bapalal(~ and Shah Rasiklal Chwnilal v.
Sindhi Shyamlal Mulchand(6).
·
On the other hand, Mr. Parekh, learned Counsel for·the respon·
dent!, has canvassed three principal contentions:
(i) The appeal
should be dismissed on the preliminary ground that there is no equity
in this case in favour of the appellant who has, in spite of the ample
time
granted
to him,
contumaciously
failed
to
comply
with
the decree and
surrender possession
even five years after
the expiry of the agreed date fixed for this purpose in the decree.
Counsel has cited in support of this contention, the decisions of this
Court in A. M. Allison v. R. L. Sen (1) and Shri Balwantrai Chimanlal
Trivedi v. M. N. Nagreshna an4 ors. 1)
(ii) The principle laid down by
(1) (1969]2, S.C.R. 432.
(3) l 19701 3, ~.c.c. ts t.
(.1) [196'1 2, S.C.R. 3~0.
(7) [19,7] S.C.R. 3S9.
(2) [1969] 2, S.C.R. 1().41.
(4) [1973]1, s.c.c. 761.
(6} 12, Guj. Law Reporter 1012.
(8)l1961lt, S.C.R. 113.
....
'
.,
548
SUPREME COUilT REPORTS
[1974] 2 s.c.~.
thi» Court in the cases relied upon by Mr. Dholakia, is not applicable
to a compromise decree passed under the Bombay Rent Act because:
(a) The provisions of s. 13 of the Delhi and Ajmer Rent (Control)
Act, 1952 (for short, Delhi Rent Act) and s. 10 of the Madras Buildings (Lease and Rent Control) Act, 1960 (for short Madras Rent Act),
on the interpretation of which the said decisions are based, are materially different from ss; 12 and 13 of the Bombay Rent Act;
(b) by virtue of Rule 8 of the Bombay Rent Act Rules,
the provision of the Code of Civil Procedure, including 0 ·23, Rule 3, which
gives a mandate to the court to pass a decree in terms of a compromise,
are applicable to suits tinder the Bombay Rent Act, but the application
of the Code to proceedings before the Rent Controller/Tribunal under
the Delhi Rent Act or Madras Rent Act has been expressly excluded.
In support of this contention reliance has been placed on Chandan Baj
v. Surjan (1). (iii) Even if the ratio of the said Supreme Court decisions
applies to decrees under the Bombay Rent Act, then also both the
statutory grounds for eviction pleaded in the plaint, had been expressly
or impliedly admitted by the defendant in the compromise, and it will
be presumed that in passing the eviction decree the court was satisfied
about the existence of those grounds. In this view, according to the
Counsel, the instant case will fall within the ratio of Seshadri's case
(sup-ra).
At the stage of the final hearing of the appeal, especially after the
learned Counsel for the appellant had addressed us on merits, we do
not propose to go into the preliminary ground urged by Mr. Parekh.
If the decree turns out to be without jurisdiction, this equitable plea
will be of no avail; because equity cannot operate to annul a statute.
If the decree is found to be in conformity with the statute, the appeal
will fail on that ground, alone, and it will be wholly unnecessary to
consider the equitable aspect of the matter.
We, therefore, come straight to the contention (H) raised by Mr.
Parekh. In order to find out whether or not a decree or order of eviction can be passed by the Rent Court/Tribunal exercising special
jurisdiction under any of these statutes-Delhi Rent Act, Madras
Rent Act and Bombay Rent Act-on a ground which is not one of the
statutory grounds of eviction, it is necessary to have a peep into the
historical background of the Rent Control laws, in general, and a
quick look at the broad scheme and language of the relevant statutory
provisions of these Actc;.
The strain of the last World War, Industrial Revolution, the largescale exodus of the working people to urban areas and the social and
political changes brought in their wake social problems of considerable magnitude and complexity and their concomitant evils. The
country was faced with spiralling inflation, soaring cost of living,
increasing urban population and ·Scarcity of accommodation. Rack
renting and large scale evictio;1 of tenants under the guise of the ordinary law, exacerbated those c:onditions making the economic life
(1) A.T.R. 1972 M.P. 106.
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NAGINDAS V. Q.UPATRAM (Sarkaria, 1.)
549
of the community unstable and insecure. To tackle these problems
and curb these evils, the Legislatures of the States in India enacted
Rent Control legislations.
The preamble of the Bombay Rent Act states that the object of the
Act is "to amend and consolidate the law relating to the control of
rents and repairs of certain premises, of rates of hotels and lodging
houses and of evictions". The language ~f the preambles of the Delhi
Rent Act and Madras Rent Act is strikingly similar. The broad
policy· and purpose as indicated in their preambles is, substantially
the same viz., to protect tenants against their landlords in respect of
the rents, evictions and repairs: With the same beneficent end in
view, all the three Acts interfere with contractual tenancies and make
provisions for fixation of fair and standard rents, or protection against
-eviction of tenants not only during the continuance of their contractual
tecure but also after its determination.
Indeed, the neologism
••statutory tenant" has rome into existence because of this protective
policy which is common to all enactments of this kind. Further, all
\he three Acts create Courts(fribunals of special and exclusive juris·
diction for the enforcement of their provisions.
Section 28 ·of the Bombay Rent Act which begins with ·a t1on·
obsttlllte clause, specifies Courts which shall have exclusive jurisdiction to entertain and try any suit .or proceeding between a lan~lord
and a tenant inter alia relating to (a) recovery of rent of any pre~157s ;-
(b) recovery of possession of any premises to which' the prOVISIOns
of Part II apply. The words "t6 which the provisions of Part II
apply>' are significant. They indicate that the exclusive jurisdiction
for recovery of possession is to be exercised when the provisions of
Part II, which include ss. 12 and 13, apply.
All these three Acts Jay down specific grounds more or less similar,
on which a decree or ·order of eviction can be passed by the Rent
Court or the Tribunal exercising exclusive jurisdiction. In the Delhi
Rent Act, such grounds are specified in a consolidated form under s. ·
13, while the same thing has been split up into two and provided in
two sections (12 and 13) in the Bombay Rent Act which represent the
negative and positive parts of the same pattern. Taken together,
they are exhaustive of the grounds on which .:he Rent Court is competent to pass a decree of possession. Similarly, in the Madt'as Rent
Act, the grounds on which a tenant can be evicted, are given in ss.
10, 14to 16.
Section 13 of the Delhi Rent Act starts with a non-obstante clause
viz., "Notwithstanding anything to_ the contrary contained in. any
other .law or any contract, no decree or order for the rec<ivery of
possession of any premises shall be passed by any Court in favour
of the landford against any tenant. . •... . . " Likewise, s. 10(1)
of the Madras Rent Act starts with the clause, "a tenant shall not be
evicted whether in execution of a decree o·r otherwise except in accordance with the provisions of this section or sections 14 to 16."
550
SUPREME COURT REPORTS
[1974] 2 S.C.J.t.
[twill thus be seen that the Delhi Rent Act and the Madras Rent
Act expressly forbid the Rent Court or the Tribunal from passing a
decree or order of eviction on a ground which is not any of the grounds
mentioned in the relevant sections of those statutes. Nevertheless,
such a prohibitory mandate to the Rent <;ourt that it shall not travel
beyond the statutory grounds mentioned m ss. 12 and 13, and to the
parties that they shall not contract out of those statutory grounds,
is inherent in the public poli~ built into the statute (Bombay Rent
Act).
In Rasiklal Chunilal's case (supra), a Division Bench of the Guja·
rat High Court has taken the view that in spite of the fact that there is
no express provisions in the Bombay Rent Act prohibiting contracting out, such a prohibition· would have to be read by implication consistently with the public policy underlying this welfare measure. If
we may say so with respect, this is a correct approach to the problem.
Construing the provisions of ss. 12,13 and 28 of the Bombay Rent
Act in the light of the public policy which permeates the entire scheme
and structure of the Act, there is no escape from the conclusion that
the Rent Court under this Act is not competent to pass a decree for
possession either in invitwn ·or with the consent of the parties on a
ground which is dehors t!_, Act or ultra vires the Act. The existence
of one of the statutory grounds mentioned in ss. 12 and 13 is a sine
ql!.a non to the exercise of jurisdiction by the Rent Court under these provtsions. Even parties cannot by their consent confer such jurisdic·
tion on the Rent Court to do something which, according to the legislative mandate, it could not do.
In the view we take, we are fortified by the ratio of the decision
~n Barton v. Fincham(l), Therein the Court of Appeal was consider·
mg the scheme of the Rent Restrictions Act, 1920, the language of
s. 5 of which was similar to s. 13 of the Delhi Rent Act. In that
context, Atkin L. J. stated the law on the point thus :
"The section appears to me to limit definitely the jurisdiction of the Courts in making ejectment orders in the
case of premises to .which the Act applies. · Parties cannot
by agreement give the Courts jurisdiction which the Legislature has enacted they are not to have.
If the parties before the Court admit that one of the
events has happened which give the Court jurisdiction, and
there is no reason to doubt the bona fides of the admission,
the Court is under no obligation to make further inquiry
as to the question of fact; but apart from such an admission
the Court cannot give effect to an agreement, whether by
w_ay of compromise Of!. otherwise, in~;:onsistent with the proVISions of the Act.."
·
It is true that in Barton's case just as in Seshadri's COJI (supra),
the statute under consideration expressly prohibited the Court from
passing a decree on a ground· which was not covered by the statute but
(1) [1921]2, K..B. 291 at 299.
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NAGINDAS V. QALPATRAM (Sarkaria, ].)
551
the principl.e s equally applicable to cases nnder statutes which place
sue~ a Jetter on the jurisdiction of the Court, by necmary implication.
The mere fact that Order 23, Rule 3, of the Code of Civil Pro~edure
is applicable to the proceedings in a suit under the Bombay Rent Act,
-does not remove that fetter on the Rent Court or empower it to make
a decree · for eviction dehors the statute. Even under that provision of the Code, the Court, before ordering that the compromise be·
recorded, is required to satisfy itself about the lawfulness of the agreement. Such lawfulness or otherwise of the agreement is to be judged,
also on the ground whether the terms of the compromise are consistent with the provisions of the Rent Act.
In view of what has been said above, it is clear that the general
principles enunciated by this Court in cases referred to by the learned
Covnsel for the appellant, are a relevant guide for determining whether
in a particular case the consent decree for possession passed by the
Court under the Bombay Rent Act is or is not a nullity. But the case
in hand is not in line with Bahadur Singh's case, Kaushalaya
De~i's
case and Ferozi La/ Jain's case (supra).
On facts, they are distinguishable from the instant case. In those cases, there was absolutely no
material, extrinsic or intrinsic to the consent decree on lhe basis of
whi-::h. the Com t could be satisfied as to the existence of a statut9ry
ground for eviction.
·
The case before us falls well nigh within the ratio of Seshadri's
case (supra). Therein, K. K. Chari, who was under an eviction or~er,
purchased the suit premises in the same city for his occupatton.
Seshadri was then the tenant of the suit premises under the vendor.
and after the purchase, he attorned in favour of the appellant and had
been paying rent to him. Chari issued notices under s. 106 of the·
Transfer of Property Act, terminating the tenancy of Seshadri. Since
Seshadri did not surrender possession, Chari filed a suit for eviction
under s. 10 (3) (a)(i) of the Madras Act mainly on the ground tbat h~
required the premises for his bona fide uSe and occupation. Seshadn
controverted Chari's claim. At the commencement of the enquiry,
Chari was examined before the Court.
He
particularly testified
how he had purchased the house for his own occupation. He also
filed a number ofdocuments.to establish that the requirement of premises for his own occupation was true. Seshadri did not prefer to·
cross-examine Chari. About ll months thereafter, both the parties.
entered into a compromise in these terms :
''(I)
The respondent hereby withdraws his defence in
the aforesaid petition and submits to a decree for
eviction unconditionally.
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(2)
The respondent prays that time for vacating upto
. June 5, 1969, might please be given and the petitioner
agrees to the same.
(3)
The respondent agrees to vacate the petition premises and hand over possession of the entire petition
premises to the petitioner on or before the said date
:552
SUPREME COURT REPORTS
[ 1974] 2 s.c.R.
viz. June 5, 1969, without fail under any cir,cumstances and undertakes not to apply for extension of
time.
(4)
It is agreed >by both the parties that this memo
of
comprof"lise is executable as a Decree of ~ourt."
The Court, after referring to the petition of the landlord being
under s. 10 (3)(a)(i), of the Act on the grourid of his own occupation,
,passed the following order :
"Compromise memo filed and recorded. By
consent
eviction is ordered granting time to vacate till June 5, 1969.
No costs."
The aforesak.. terms of the compromise were also inco;porated in
the order. After distinguishing the former three cases viz. JJahadur
Singh's case, Kaushalaya Devi's case and Ferozi La/ Jain's case, Vaidia·
lingam J. speaking for himself and Dua J. (comprising majority).
enunciated the iaw on the ~oint, thus :
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'The true position appears to be that an order of eviction
based on. consent of the parties is not necessarily void if the
jurisdictional fact . :z., the existence of one or more of the
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conditions mentionc!d in Section 10 were shown to have
existed when the Court made the order. Satisfaction of
the Courl, which is no doubt a pre-requisite for the order
of eviction, need not be by the manifestation borne
out by a judicial finding. If at some stage the Court was
called upon to apply its mind to the question and there was
sufficient material before it, before the parties invited it to
[
pass an order in terms of their agreement, it is possible to
postulate that the Court was satisfied abc "~ the grounds
on which the order of e'Viction was based ............... .
If the tenant in fact admits that the landlord is entitled to
possession on one or other of the s..atutory grounds men·
tioned in the Act, it is open to the court to act on that
admission and make an order for possession in favour of
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the landlord without further enquiry.''
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
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decree f'Jr eviction, though apparently passed on the basis of a com·
prom!se, woul<i be valid. Such material may take the shape either
of ev1dence 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, are by
far the best proof of the facts admitted. Admissions in pleadings or
judicial
admissions, admissible under s. 58 of the Evidence Act,
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made by the parties or their agents at or before the hearing of the case,
stand on a higher footing than evidentiary admissions. The former
class of admi~sions are fully binding on the party that makes them and
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NAGINDAS V. DALPATRAM (Sarkaria, /.)
553
constitute a waiver of proof. They by themselves can be made the
foundation of the rights of the parties On the other band, evidentiary
admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.
We do not find any force in the contention of Mr. Dholakia, that
the facts admitted in the compromise, itself were insufficient to make
out even a prima facie ground for eviction mentioned in s. 12 (3) (a}
of the Bombay Rent Act, merely because the tenant had made an
application for fixation of standard rent, which was still pending at
the time of passing of the decree. By admitting to pay the arrears of
rent and mesne profits at the rate of Rs. 15/- per month, the tenant
had clearly withdrawn or abandoned his application for fixation of
standard rent. The admission in the compromise was thus an ad-·
mission of the material facts which constituted a ground for eviction
under s. 12 (3) (a). Rent was admittedly payable by the month;
since the application for fixation of fair rent stood withdrawn, there·
was no dipute with regard to the amo.unt of standard rent. Further,
the rent was admittedly in arrears for a period of more than six montha; ·
so much so that in the present case, the tenant had neglected to pay tht:·
balance of arrears, amounting to Rs. 152/50, even long after the decree and the landlord was rompe,lled to recover the same by execution,
The case of Jeshwant J<ai Mulukchand (supra) , cited by Mr. Dholakia, does not advance his stand. In that case, there was a serious
dispute regarding the amount of standard rent. Though the :final
order of standard rent was passed by the Court of Small Causes,
neither the landlord nor the tenant accepted the determination and
each side questioned the. amount by filing Revision Petitions. In tl-:
present case, however, no disppte regarding the standard rent was
subsisting at the time of compromise. That dispute was put an end
to by the compromise itself.
Be that as it may, in cases where an objection as to the non-executability of the decree on the ground of its being a nullity,is taken, the
Executing Court is not competent to go behind the decree, if the decree on the face of it, discloses some material on the basis· of which, ~he .
Rent Court could be satisfied with regard to the existence of a statutory·
ground for eviction. In such a case it must accept and execute the
decree as ~t 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 moment it finds that prim•
fgcie such material existed, its task is complete. It is not necessary
for it t<? go further and question the J .>umed or eApressed findini.
554
SUPREME COURT REPORTS
[1974] 2 s.c.R.
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 evi.ction. 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. Since in the
instant case, there was a clear admission in the compromise, incorporated in the decree, of the fundamental facts that could constitute
a :ground for eviction tmdcr s. 12 (3) (a), the Executing Court was not
competent to go b~hind the decree and question its validity.
For the foregoing reasons, the app~al fails and is dismissed with
costs.
V.P.S.
Appeal dismissed.
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