# SULEMAN NOORMOHAMED ETC. ETC v. UMARBHAI JANUBHAI

- **Citation:** [1978] 3 S.C.R. 387
- **Court:** Supreme Court of India
- **Decided:** 1978-02-23
- **Case number:** Civil Appeal No. 226 of 1976
- **Bench:** R. S. Sarkaria, N. L. Untwalia
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/suleman-noormohamed-etc-etc-v-umarbhai-janubhai-7328
- **Pages:** 6

## Headnote

Civil Procedure Code--Order 23 Rule 3-While
recording
compromise
whether court should niention that the
compromise
is lawfuf-.Can
it be
presumed-Bo1nbay Rent Act 1947-Sec. l2(3)b-Decree based on compro·
mise whether a nullity-Statutory ground for eviction whether can be made
out from the material before the court-Cornpro1nise deed by
which
tenant
agrees to pay arrears of rent as den1anded in the plaint, if sufficient.
The appellant landlord ftled a suit against the respondent tenant claiming
a decree for eviction on grounds of non-payment of rent and
for
bonafide
personal necessity in accordance with the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947. The respondent filed a written
statement.
An exparte decree was passed w4ich was set aside on the application of the
respondent. Ultimately, the suit was disposed of on the compromise between
the parties. According to the terms of the compromise the tenant
was
to
hand over possession of the suit premises to the landlord within a period
of
3 yec.rs.
The tenant did not vacate on the expiry of the period and contested
the execution on the ground that the decree was a nullity. The Trial Court
held that the decree was a nullity. That was upset by the Appellate Court.
The High Court accepted the Revision Application filed by the tenant and held
that the compromise decree· is a nullity and. therefore, cannot be
executed.
The High Court held that the order passed by the Court did not disclose any
satisfaction recorded by the Court about the existence of one or more grounds
of eviction under the Act, and in the compromise pursis also
there
is
no
admission on the part of the tenant express or implied.
Allowing the appe-al,
HELD: 1. It has been laid down by the Court in th~ case of
Nagindas
Ramdas '1hat existence· of any of the statutory grounds is a sine quo non to the
exercise of jurisdiction by the Rent Court in order to enable it to
nlake
a
decree for eviction. It was also laid down that if at the time of passing of
the decree there Vilas some material before the Court on the basis of which the
Court could be pri!na facie satisfied about the existence of a statutory ground
for eviction it \vould be presumed that the court was
so satisfied and the
decree for eviction though apparently passed on the basis of a compromise
would be valid. This Court also held that such material might take the shape
of either of evidence recorded or prcduced or express or implied
admission
made in the co1nrrcmise a.greement itself. In Rosilanlal's case this Cou!"t held
that the Court can pass a decree on the basis of a compromise and that in such
a situation the only thing to be seen is whether the compromise is in violation
of the requirements or law. [389 C-G]
Nagindas Ran1das v. Dalpatram lchharani @ Brijra1n and Ors., [1974] 2
S.C.R. 544 and Ros/Jan Lal v. Madan Lal, [1976] 2 S.C.R. 878, relied on.
2. There is abundant intrinsic material in the compromise itself to indicate
that the decree passed upon its basis was not in violation of the Act but was
in accordance with it. If there is no dispute about the standard rent or no
bonafide dispute or the dispute raised is a mere pretence of it a decree can
follow under section 12(3)(b) of the Act i1n a suit in which ro.1t is not due
for 6 mon\hs or ~ore b~t _is d!-le even for lesser pe_riod.
The tenant will get
the protection against eviction 1n such a case only 1f he pays or tenders
in
court on the first date of hearing of the suit or such other date as the Court
may fix.
In the instant case·, the High Court was not right that on the face
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SUPREME COURT REPORTS
[1978] 3 S.C.R·
of the compromise pursis or the order passed thereon there was no material
to show that the tenant had either expressly or impliedly suffered a decree for
eviction as being liable to be evicted in accordance with section
12(3)(b).
While recording the compromise under order 23 rule 3 of the Civil Procedure
Code, it is not necessary for the Cour

## Text

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387
SULEMAN NOORMOHAMED ETC. ETC.
v.
UMARBHAI JANUBHAI
February 23, 1978
[R. S. SARKARIA AND N. L. UNTWALIA, JJ.J
Civil Procedure Code--Order 23 Rule 3-While
recording
compromise
whether court should niention that the
compromise
is lawfuf-.Can
it be
presumed-Bo1nbay Rent Act 1947-Sec. l2(3)b-Decree based on compro·
mise whether a nullity-Statutory ground for eviction whether can be made
out from the material before the court-Cornpro1nise deed by
which
tenant
agrees to pay arrears of rent as den1anded in the plaint, if sufficient.
The appellant landlord ftled a suit against the respondent tenant claiming
a decree for eviction on grounds of non-payment of rent and
for
bonafide
personal necessity in accordance with the Bombay Rents, Hotel and Lodging
House Rates Control Act, 1947. The respondent filed a written
statement.
An exparte decree was passed w4ich was set aside on the application of the
respondent. Ultimately, the suit was disposed of on the compromise between
the parties. According to the terms of the compromise the tenant
was
to
hand over possession of the suit premises to the landlord within a period
of
3 yec.rs.
The tenant did not vacate on the expiry of the period and contested
the execution on the ground that the decree was a nullity. The Trial Court
held that the decree was a nullity. That was upset by the Appellate Court.
The High Court accepted the Revision Application filed by the tenant and held
that the compromise decree· is a nullity and. therefore, cannot be
executed.
The High Court held that the order passed by the Court did not disclose any
satisfaction recorded by the Court about the existence of one or more grounds
of eviction under the Act, and in the compromise pursis also
there
is
no
admission on the part of the tenant express or implied.
Allowing the appe-al,
HELD: 1. It has been laid down by the Court in th~ case of
Nagindas
Ramdas '1hat existence· of any of the statutory grounds is a sine quo non to the
exercise of jurisdiction by the Rent Court in order to enable it to
nlake
a
decree for eviction. It was also laid down that if at the time of passing of
the decree there Vilas some material before the Court on the basis of which the
Court could be pri!na facie satisfied about the existence of a statutory ground
for eviction it \vould be presumed that the court was
so satisfied and the
decree for eviction though apparently passed on the basis of a compromise
would be valid. This Court also held that such material might take the shape
of either of evidence recorded or prcduced or express or implied
admission
made in the co1nrrcmise a.greement itself. In Rosilanlal's case this Cou!"t held
that the Court can pass a decree on the basis of a compromise and that in such
a situation the only thing to be seen is whether the compromise is in violation
of the requirements or law. [389 C-G]
Nagindas Ran1das v. Dalpatram lchharani @ Brijra1n and Ors., [1974] 2
S.C.R. 544 and Ros/Jan Lal v. Madan Lal, [1976] 2 S.C.R. 878, relied on.
2. There is abundant intrinsic material in the compromise itself to indicate
that the decree passed upon its basis was not in violation of the Act but was
in accordance with it. If there is no dispute about the standard rent or no
bonafide dispute or the dispute raised is a mere pretence of it a decree can
follow under section 12(3)(b) of the Act i1n a suit in which ro.1t is not due
for 6 mon\hs or ~ore b~t _is d!-le even for lesser pe_riod.
The tenant will get
the protection against eviction 1n such a case only 1f he pays or tenders
in
court on the first date of hearing of the suit or such other date as the Court
may fix.
In the instant case·, the High Court was not right that on the face
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of the compromise pursis or the order passed thereon there was no material
to show that the tenant had either expressly or impliedly suffered a decree for
eviction as being liable to be evicted in accordance with section
12(3)(b).
While recording the compromise under order 23 rule 3 of the Civil Procedure
Code, it is not necessary for the Court to say in express terms in the order
that it was satisfied that the compromise was a lawful one.
It will
be
pre~
sumed to have done so unless the contrary is shown.
But that apart, on exami~
nation of the plaint which certainly should be looked into and which must have
been in the records of the Court at the time of passing of the
compromise
decree, it would be found that landlords had claimed arrears of rent for two
months at the rate of Rs. 17 /- per month and mesne profits also for one month
upto the date of the suit at the same rate. They had also claimed electricity
charges @ Rs. 2/- per month. In the compromise petition the same amount
of rent, mesne profit and electric charges are admitted by the tenants
to be
payable to the landlords. There is nothing to indicate that any genuine dispute was raised by the tenant in regard to t~ standard rent or the electric
charges nor is there anything to show that he had ever filed a Petition under
section 11 of the· Act or any other provision of law for fixation of standard
rent. Nor was he able to show that the Court at his request had ever fixed
any other date for payment of the said amount. In view of his admission in
the compromise deed to pay the rent as demanded it is manifest that there was
no dispute in the case in regard to the standard rent. The facts clearly show
that the tenant had incurred liability to be evicted under the said provisions of
law and the con1promise decree was passed on the tenant's impliedly admitting
such liatility. [390 F-G, 391 C-D, E-H, 392 A-Bl
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 226 of 1976.
(Appeal by Special Leave from the Judgment and Order dt. the
17th October, 1975 of the Gujarat High Court in Civil Revision
Appln. No. 679 of 1972).
P. H. Parekh, Manju Sharma & C. B. Singh for the Appellants.
V. N. Ganpule for the respondent.
The Judgment of the Court was delivered by
UNTWALIA, J.-This is a decree-holders' appeal by Special leave.
The sole respondent is the judgment debtor.
The appellants filed a
suit against the respondent in the Small Canses Court at Ahmedabad
in 1964 claiming a decree for eviction against him on the ground of
non-payment of rent and bonafide personal necessity.
The grounds
!flade out were in accordance with the relevant provisions of The
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947hereinafter to be referred to as the Act.
The respondent filed a written statement with a view to contest the suit. Eventually on account of
the default of the defendant the suit was taken up for hearing ex-parte
and an ex-parte decree was passed on the 16th of March, 19_6?. The
defendant applied under Order IX Rule 13 of the Code ?f Ov!l Procedure-hereinafter to be referred to as the Code, for setting aside the
decree. It was set aside.
But ultimately the suit was disposed of on
the 1st March, 1967 on compromise between the parties.
According
to the terms of the compromise decr~e, the judgment-debtor was.
~o
hand over possession of the suit prennses to the decree holders :-v1thm
a period of three years i.e. by 1st of March, 1970 .. But he did not
do so.
Thereupon the decree-holders filed an ex.ecu!Ion case to get
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('[ "D!JVM!Ufl) IVH8flNVf
·~ Ooll!VHOl\ll!OON
389
poosession of the property. The respondent contested the execution
A
on the ground that the decree was a nullity.
The first Court accepted his plea but on appeal by the decree-holders it was held by the
Appellate Court that the decree was not a nullity and was executable.
Tue respondent filed a revision application in the Gujarat High Court
which has been allowed.
The High Court has accepted the respondent's plea that the compromise decree is a nullity and hence cannot
be executed.
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It is not necessary to review again and again all the earlier judgments of this Court on the point.
It will be ~ufficient to refer only to
two namely, Nagindas Ramdas v. Dalpatram Ichharam @
Brijram
and Ors(')-a judgment which is noticed by the High Court also in
its order under appeal and the case of Roshan Lal v. Madan Lal(').
It was pointed out in Nagindas's case (supra) by one of us (SarKaria J) that the existence of one of the statutGry grounds mentioned
in sections 12 and 13 of the Act, as in the case of other similar States
Statutes, is a: sine qua non to the exercise of jurisdiction by the Rent
Court in order, to enable it to make a decree for eviction.
Parties by
their consent cannot confer jurisdiction on the Rent Court to do something which according to the legislative mandate it could not do. The
Court while recording a compromise under Order XXIII, Rule 3 of
the Code has to satisfy itself that the agreement between the parties
is lawful; in other words is not contrary to the provisions of the Act.
But it has br~a clearly laid down in Nagindas's case at page 552 :
" ...... that if at the time of the passing of th~ decree,
there was some material before the Court, on the basis of
which, the Court could be prima fade satisfied, about the
existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction,
though apparently passed on the basis of a compromise,
would be valid.
Such material may take the shape either
of evidence recorded or produced in the case, or, it may
partly or wholly be in the shape of an express or implied
admission made in the compromise agreement, itself, .... "
In Roshan Lal's case, one of us (Untwalia J.) following Nagin-
.das's case r~iterated the same view.
At page 882
deliv~ring the
judgment of this Court, it has been said :-
"The Conrt can pass a decree on the basis of the compromise. In such a situation the only thing to be seen is
whether the compromise is in violation of the requirement
of the law.
In other words, parties cannot be permitted to
have a tenant's eviction merely by agreement without anything more.
The compromise must indicate either on its
face or in the background of other materials in the case that
the tenant expressly or impliedly is agreeing to suffer a deer
ree for eviction because the landlord, in the circumstances,
is entitled to have such a decree under t11e law."
(1) [1974] 2 S.C.R. 544.
(2) [1976] I S.C.R. 878.
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With reference to the requirement of the law under Order XXIII Rule
3 of the Code, it has been observed further on the same page :-
If the agreement or compromi~<e for the eviction of the
tenant is found, on the facts of a particular case, to be in
violation of a particular Rent Restriction or Control Act,
the Court would refuse to record tile compromise as it will
not be a lawful agreement. If on the other hand, the Court
is satisfied on consideration of the terms of the compromise
and, if necessary, by considering them in the context of the
pleadings and other materials in the case, that the agreement is lawful, as in any other suit, so in 8:ll eviction suit,
the Court is bound to record the compromise and pass
a
decree in accordance therewith.
PassiJ1g a decree for eviction on adjudication of the requisite facts or on their admission in a compmmise either express or implied, is not
different."
The High Court has held the decree to be a nullity on the following grounds :-
( 1) Admittedly, the order passed by the learned Judge
does not disclose any satisfaction recorded by him
about the existence of one or more grounds of eviction under the Act. Naturally, therefore, the decree
does not disclose that the learned Judge, who passed
the eviction decree, was satisfied about the existence
of any of the grounds for eviction.
(2) In the compromise pursis also, there is no admission on the part of the defendant, express or implied,
under section 12 or section 13 of the Act."
In arriving at the said conclusions the High Court has left out of
consideration the affidavit filed on behalf of the appellants at the time
the suit was taken up for hearing ex-parte and the ex-parte decree
following thereupon.
We also do not propose to refer to those materials to arrive at our conclusions which are different from those of
the High Court.
But even apart from !hose materials, there is abundant intrinsic material in the compromise itself to indicate that the
decree passed upon its basis was not in violation of the Act bu't was ·
in accordance with it.
In Vora Abbasbhai Alimahmomed v. Haji Gttlamnabi Haji Safibhai(') Shah J, as he then was, delivering the judgment of this Court
pointed out that when the conditions pf clause (a) of sub-section (3),
of section 12 of the Act are fulfilled the Coult is bound to pass a:
decree in ejectment against the tenant.
But in relation to clause (b),
it has been said at page 166 :-
"The clause deals with cases not falling within cl. ( 3) (a)
i.e. cases (i) in which rent is not payable by the month (ii)
in which there is a dispute regarding the standard rent and
(!) [196415S.C.R.157.
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NOORMOHAMED v. JANUBHAI (Untwalia, !.)
3Sl
permitted increases, (iii) in which rent is not due for six
months or more. In these cases the tenant may claim protection by paying or tendering in Court on the first day of
the hearing of the suit or such other date as the Court may
fix, the standard rent and permitted increases and continuing
to pay or tender in Court regularly such rent and permitted
increases till the suit is finally decided and also by paying
costs of the suit as directed ]?y the Court."
If clause (b) is attracted as being any other case of the type (ii) i.e.
"in which there is a dispute regarding the standard rent and permitted
Increases", then in such a case, "the tenant would not be in a position to pay or tender the standard rent, on the first date of hearing,
and fixing of another date by the Court for payment or tender would
be ineffectual, until the standard rent is fixed."
Hence the Court,
on the application of the tenant, has to fix the standard rent first.
But if there is no dispute or no bona fide dispute, or the dispute raised
is a mere pretence of it, a decree can follow under clause (b) of subsection (3) of section 12 of the Act in a suit in which rent is not
due for six months or more but is due even for a lesser period. The
tenant will get the protection against eviction in such a case only if
he pays or tenders in Court on the first date of the hearing of the
snit or such other date as the Court may fix the rent due (leaving asside the question of costs).
In the instant case the High Court was not right that on the face
of the compromise pursis or the order passed thereon, there was
no
material to show that the tenant had either expressly or impliedly
suffered a decre~ for eviction as being liable to be evicted in accordance with section 12(3)(b) of the Act.
While recording the compromise under Order XXIII Rule 3 of the Code, it is not necessary
for the Court to say in express terms in the order that it was satisfied
that the compromise was a lawful one. It will be presumed to have
done so, unless the contrary is shown.
But that apart, on examination of the plaint which certainly could be looked into and which must
have been in the records of the Court at the time of the passing of
the compromise decree, it would be found that the landlords had
claimed arrears of rent for two months @ Rs. 17 /- per month and
mesne profit also for one month upto the date of the suit at the same
rate.
They had also claimed light charges @ Rs. 2/- per month. In
the compromise petition, paragraph 2, the same amount of rent, mesne
profit and electric charges are admitted by the tenants to be payable
to the landlords
There is nothing to indicate that any genuine dispute was raised by the tenant in regard to be standard rent or the
electric charges Nor is there anything to show that he had ever filed
a petition under section 11 of the Act or any other provision of law
for fixation of standard rent.
In other words there is
nothincr
to'
'
b
show that the tenant could claim protection from eviction in accordance with clause (b) of sub-section (3) of section 12 of the Act on
the ground that he was not in a position to pay or tender the rent
due on the first date of the hearing of the suit, which must have been
fixed before the passing of the ex-parte decree. Nor was he able to
show that the Court at his request had ever fixed any other date for
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payment of the said amount In paragraph 3 of the compromise petition also it is admitted that the standard rent would be Rs 17 /- per
month plus Rs '21- electric charges and the defendant would pay the
mesne profits at the aforesaid rates from
1-3-1967. It is, therefore,
manifest that there was no such dispute in this case in regard
to
standard rent which could give any protection to the tenant against
his eviction under section 12(3)(b) of the Act The facts clearly
show that he had incurred the liability to be evicted under the said
provisions of law and the compromise decree was passed on
the
tenant's impliedly admitting such liability If a decree for possession
would have been passed in illvitum the tenant would not have got
three years' time to vacate the premises.
He, therefore, agreed to
suffer
a
decree
by
consent
and
gained
three
years'
time
under it.
But the unavoidable uncertainties of litigation and
the delay in disposal of cases at all stages have
enabled
him
to gain a period of about 11 years more by now.
In our judgll)e!lt
the decree under execution is not a nullity and has got to be executed by the Execution Court without any further loss of time, as quickly
as possible.
In the result, we allow this appeal with costs and set aside the
jv.dgment and order of the High Court.
P.H.P.
Appeal allowed.
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