Ali Ahmed vs Roshan Dass
1971 Latest Caselaw 93 Del

JUDGMENT

P.N. Khanna, J.

(1) THE. premises in disputes forms part of a property, which was owned by one Abdul Rashid. The appellant was a tenant under him in respect of the said premises at a monthly rent of Rs. 12/8-. On March 27, 1957 the said property was sold by Abdul Rashid to the present respondent, together with the right to recover the arrears of rent due from the appellant. The appellant, thus, because a tenant under the respondent with effect from the said date of sale. On April 17, 1957 a notice or demand calling upon the appellant to pay all the arrears of rent was served on him. Not receiving any response, the respondent on May 28, 1957 filed a suit, under section 13 of the Delhi and Ajmer Rent Control Act, 1952, herein called 'the Act', for the appellant's eviction from the said premises on the grounds that he had failed to pay the arrears of rent inspite of notice of demand, that he had changed the user of the shop from that of a milk seller to that of a Soda Water Factory, and that he had caused substantial damage to the premises. July 3, 1957 was the first day of hearing before the Court when the counsel for the parties were present. The case was adjourned to July 10. 1957, for the written statement of the appellant. On the said date. issues were framed after the written statement had been filed.

(2) On February 12. 1958, statement of Public Witness 1, Abdul Rashid was recorded. He stated that he was previously the owner of the property and had sold the same to the respondent by means of a registered sale-deed, certified copy of which was exhibit PI. He had informed the appellant about this conveyance of the property and had asked him to pay rent including the arrears, to the respondent. On May 9, 1958, the adjourned date of hearing in the case, the parties filed a written compromise praying that a decree for ejectment with costs of the suit be passed in respondent's favor against the appellant, with a condition that if the appellant paid to the respondent by July 1, 1958, a sum of Rs. 300 in all consisting of Rs. 260 and Rs. 40 as the amount of rent, he will not be liable to eviction. Otherwise, after July 1, 1958, the respondent would be entitled to get the premises vacated by taking out execution of the decree and also to recover Rs. 300 aforesaid. It was prayed that a decree in accordance with the terms of the said compromise be passed in respondent's favor against the appellant. The statement of the respondent's counsel and of the parties present was then recorded to the effect that the text of the compromise which had been read over to and understood by, them was correct. A prayer was made that the judgment be pronounced in accordance therewith. On this an order was passed for ejectment, in accordance with the said compromise. A condition of the decree was that if he appellant paid by July, 1958, a sum of Rs. 300 in all, the decree for ejectment and costs would be deemed to have been satisfied.

(3) As the amount was not paid in accordance with the condition in the decree, the respondent-landlord applied for its execution, after obtaining the requisite permission from the Competent Authority under the Slum Areas (Improvement & Clearance) Act. The appellant- judgment-debtor filed objections under section 47 of the Code of Civil Procedure read with section 57 of the Delhi Rent Control Act, 1958, which in the meantime had come into operation, saying that at the time of the passing of the ejectment decree, there was no material on record lo make out the ground for ejectment, and that there was nothing from which the Court could satisfy itself about the existence of any of the grounds for ejectment. The decree was accordingly said to be against law and a nullity and, therefore, not executable. These objections were resisted by the respondent, decree-holder. The trial Court, however. found the decree to be valid and executable and dismissed the objections. The learned Additional Senior Sub-Judge, with enhanced appellate powers, concurring with the trial Court dismissed the appeal with costs. The appellant-tenant under these circumstances, has come up to this Court in second appeal.

(4) The only point urged before this Court was that the decree was a nullity and. therefore, inexecutable as it was against the mandatory provisions of sections 13(1) of the Act. which required that the Court must be satisfied about the existence of any of the grounds mentioned in the various clauses of the proviso to sub-section (1) of section 13 of the Act; before an eviction decree was passed. The decree under appeal was passed in accordance with the compromise between the parties, and no material, it was submitted, was brought on record, which could satisfy the Court about the existence of any of the grounds for ejectment. Reliance was placed on three judgments of the Supreme Court Bahadur Singh and another v. Muni Subrat and another, 1969 Rcr 151(1), Ferozi Lal Jain v. Man Mal and others, and Smt. Kaushalya Devi v. K. L. Bansal, .

(5) The relevant portion of section 13 of the Act reads as follows :-

"13.Protection of a tenant against eviction :- (1) Not withstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favor of the landlord against any tenant (including a tenant whose tenancy is terminated) : Provided that nothing in this sub-section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied. In Bahadur Singh's case their lordships of the Supreme Court held that the Court was forbidden to pass a decree for recovery of possession. merely in accordance with the award, without satisfying itself that a ground for eviction existed. In Smt. Kaushalya Devi's case, ejectment was claimed on three grounds, viz. the plaintiff required the premises for occupation as a residence for himself; the defendant already owned a suitable house in Delhi; and that the defendant had defaulted in payment of rent. A compromise was arrived at between the parties in the following terms: "(a) Decree for ejectment be passed in favor of the plaintiff against the defendant, the decree will be executable after the 31st December, 1958, if the defendant does not give possession till then. (b) The standard rent of the premises be fixed at Rs. 40 per mensem, instead of Rs. 50 paid at present payable from the 1st July, 1956, till the defendant vacates the premises. (c) The amount in deposit with this Court be paid to the plaintiff which will be adjusted between the parties."

(6) Statements were also made by the counsel and the parties to the same effect. A decree was then passed in accordance with the said statements and the written compromise. The decree was held to be a nullity as it did not indicate that any of the statutory grounds existed. In Ferozi Lal Jain's(2) case, the compromise petition did not make any reference to the alleged sub-lease, eviction being sought on the ground of subletting. In all these cases, the Court at no stage was called upon to apply its mind to the question whether the alleged ground for eviction has been proved or not. The Court had just acceded to the prayer for passing an eviction order. The satisfaction of the Court. which was a condition precedent for passing an eviction order had not been established. It was for this reason that the order for eviction in all the three case was held to be a nullity. According to the Supreme Court, therefore, the Court can pass decree for eviction under the Act only if it is satisfied about the existence of any of the statutory grounds.

(7) The decree for eviction in the present case, has been passed in terms of the compromise. It is, therefore, necessary to turn to the compromise, to find out if any of the statutory grounds has been established from which it could be said that the Court was satisfied about its existence when it passed the decree of ejectment.

(8) The compromise specifically provides that if the appellant pays to the respondent to July 1, 1958 a sum of Rs. 300 in all, inclusive of a certain amount of rent as well, he will not be liable to eviction. He is to be evicted if the said amount is not paid by the specified date. The eviction was, therefore, ordered on the ground that the appellant failed to pay the rent. Statement of the previous owner of the premises had been recorded establishing the respondent as the owner landlord qua the appellant. Service of a notice of demand dated April 17, 1957 was specifically pleaded in the plaint, while a copy of the notice and postal acknowledgement receipt were attached with the plaint. In reply, the appellant stated in his written statement that the notice was illegal and invalid. The receipt of notice was not specifically disputed. It was not stated as to why it was said to be invalid or illegal. July 3, 1957 was the first day of hearing of the suit. The arrears of rent together with costs had not been paid on that date or on any subsequent date. From the compromise itself, it was clear that there was no dispute about the rent being in arrears. It was under these circumstances that the appellant had conceded the respondent's claim for his eviction, in case he did not pay the said arrears by July 1, 1958. In face of this material, which was already on record, it cannot be said that there was nothing from which the Court could satisfy itself about the existence of the ground for ejectment, specified in clause (a) of the proviso to sub-section (1) of section 13 of the Act, viz. non-payment of arrears of rent. inspite of notice of demand; or that the trial Court had passed the ejectment decree without satisfying itself about the existence of one of the statutory grounds of eviction.

(9) In Babu Ram Sharma v. Pal Singh, 1958 Plr 33, the tenant admitted that he had not paid the rent as alleged by the landlord. It was held by 1. D. Dua J., as his lordship then was, speaking for the Bench of the Punjab High Court, that :-"I do not understand how it was necessary for the Controller to hold any further inquiry". In Vas Dev Sharma v. Milkhi Ram Bhatia, 1960 Plr 888, (5) Grover J" as his lordship then was, observed :-'if the tenant admits after a suit for ejectment has been filed that the landlord is entitled to possession on one of the statutory grounds, the Court can make an appropriate order or if the landlord has made some representation within the terms of the statute to the tenant and which is one of the ingredients of a ground on which possession can be ordered and the tenant accepts that representation and submits to an order, then also the Court will be fully justified in making a valid order of eviction." It is, thus, clear that the decree for eviction is not contrary to the principles enunciated by their lordships of the Supreme Court in the aforementioned three cases. There is, therefore, no merit in this appeal and the same is dismissed. There shall, however, be no order as to costs.