Shri Shorey Lal (D) Through L.R. vs Smt. Urmila Devi (D) Through Her ...
2006 Latest Caselaw 1392 Del

JUDGMENT

Sanjay Kishan Kaul, J.

CM No. 11351/2006 Allowed subject to just exceptions.

CM (M) No. 1297/2006

1. A protracted litigation does not seem to see the end of the day. A mutual settlement arrived between the parties is also sought to be set at naught on account of the dishonest intention of one of the legal heirs of the deceased tenant.

2. A suit was filed by Smt. Urmila Devi Jain / landlord against Shri Shorey Lal / tenant for recovery of rent and permanent injunction. Smt. Jain was the owner of property bearing No. 105, Darya Ganj, New Delhi. The suit was instituted on 30.07.1977 and continued for a long period of 27 years. Smt. Jain passed away and her legal heirs had been brought on record in 1998.

3. Finally, a compromise application was filed on 30.07.2004 in terms whereof the tenant was to enjoy the premises during his lifetime and thereafter the premises were to be surrendered by his son, Shri Harish Kumar Katyal to the respondents herein (legal representatives of the original landlord). The future rent was to be paid regularly and the landlords were not to take out any eviction proceedings against the tenant. This application was signed by the petitioner herein, son of Shri Shorey Lal as a token of acceptance of the agreed terms. The statement of the parties was recorded on the same date and after recording the statement of parties, the suit was withdrawn as compromised and a decree- sheet was directed to be prepared accordingly.

4. Shri Shorey Lal subsequently passed away, but the premises were not vacated despite written request. The premises were stated to be lying locked. It is at that time that execution proceedings were filed. The petitioner filed the objections which have been dismissed in terms of the impugned order dated 07.07.2006. The petitioner has thereafter initiated the present proceedings under Article 227 of the Constitution of India aggrieved by the said order.

5. A reading of the impugned order shows that the objections were filed by the petitioner under Order XXI Rule 32 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter to be referred to as, 'the Code').

6. Shri Shorey Lal passed away on 09.02.2005, but the premises were not vacated. The objections were that the civil court had no jurisdiction to pass a compromise decree as well as for eviction / ejectment or delivery of possession as Shri Shorey Lal was a protected tenant under the Delhi Rent Control Act, 1958 (hereinafter to be referred to as, 'the Rent Act'). It was further stated that the suit filed was not for possession, but for injunction and no compromise could have been arrived at in view of the bar of Section 50 of the Rent Act. A further plea raised was that the application was filed for compromise under Order XXIII Rule 1 of the Code, which permitted only withdrawal of the suit. Since there was abandonment of the claim, which was permissible, the plaintiff in the suit had withdrawn the same unconditionally and no decree for possession could have been passed. It was, thus, pleaded that the petitioner was not bound to hand over possession as he was not even a party to the suit. Shri Shorey Lal had passed away leaving behind two sons and one daughter and one of the sons had expired simultaneously. The grandson was stated to be in possession and that the objector was not in occupation and, thus, not bound to deliver possession.

7. The respondents brought to the notice of the trial court the protracted litigation and the statements / undertakings given by the parties. The petitioner was a signatory to the compromise application and, thus, it was pleaded that he could not be permitted to resile from the settlement.

8. The trial court took note of the submissions and came to the conclusion that the present case was not one where a decree was passed after regular trial by a court not having competency to deal with the matter, but it was a case of compromise between the parties and an undertaking given by the judgment debtor, which was sought to be executed. The trial court held that the parties are bound to honour their undertakings. The application was, thus, dismissed with costs. The trial court issued a notice under Order XXI Rule 32 of the Code at the address of the suit property to be served upon the person whoever is in possession of the same.

9. Learned counsel for the petitioner seeks to strenuously contend that the matter raises an important legal issue and the order passed by the trial court is wholly without jurisdiction. In this behalf, a catena of judgments have been cited which need to be referred to.

10. In Sarwan Kumar and Anr. v. Madan Lal Aggarwal 103 (2003) DLT 20 (SC), it was held in the context of the said Act that the authority to pass a decree for ejectment of tenanted premises is with the Rent Controller appointed under the said Act. Section 50 of the said Act specifically bars the jurisdiction of the civil court to entertain any suit or proceeding relating to eviction of any tenant from the premises covered by the said Act and, thus, the civil court lacked inherent jurisdiction to take cognizance of the case and to pass a decree. The challenge to such decree on grounds of nullity could be raised at any later stage including at the stage of execution proceedings. Section 50 of the said Act reads as under:

50. Jurisdiction of civil courts barred in respect of certain matters

(1) Save as otherwise expressly provided in this Act, no civil court shall entertain any suit or proceeding in so far as it relates to the fixation of standard rent in relation to any premises to which this Act applies or to eviction of any tenant there from or to any other matter which the Controller is empowered by or under this Act to decide, and no injunction in respect of any action taken or to be taken by the Controller under this Act shall be granted by any civil court or other authority.

(2) If, immediately before the commencement of this Act, there is any suit or proceeding pending in any civil court, for the eviction of any tenant from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, such suit or proceeding shall, on such commencement abate.

(3) If, in pursuance of any decree or order made by a court any tenant has been evicted after the 16th day of August, 1958, from any premises to which this Act applies and the construction of which has been completed after the 1st day of June, 1951, but before the 9th day of June, 1955, then notwithstanding anything contained in any other law, the Controller may, on an application made to him in this behalf by such evicted tenant within six months from the date of eviction, direct the landlord to put the tenant in possession of the premises or to pay him such compensation as the Controller thinks fit.

(4) Nothing in Sub-section (1) shall be construed as preventing a civil court, from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises.

11. In Sushil Kumar Mehta v. Gobind Ram Bohra (Dead) through his L.R.s , it was again held that where a civil court had no jurisdiction, a decree passed by it is a nullity and the tenant can raise objection to the same even at the stage of execution of the decree. A defect of jurisdiction could not be cured by consent or waiver. The civil court was, thus, held to be a coram non judice. A reference was also made to some of the English judgments to the following effect:

16. In Ledgard v. Bull (1886) 13 IA 134 : 1886 11 App Case 648, the Privy Council laid down that where the original court in a suit was inherently lacking jurisdiction, and was incompetent to try the same, on its transfer by consent of parties, to a court with jurisdiction such consent did not operate as a waiver of the plea of want of jurisdiction.

17. In Barton v. Fincham (1921) 2 KB 291, 299 : 90 LJ KB 451, it was held that:

Parties cannot by agreement give the courts jurisdiction which the legislature has enacted they are not to have.

... the court cannot give effect to an agreement whether by way of compromise or otherwise, inconsistent with the provisions of the Act.

12. In Smt. Nai Bahu v. Lala Ramnarayan and Ors. , it has been held that in a proceeding initiated under any Rent Act, the Court should be satisfied that a statutory ground for eviction has been pleaded which the tenant has admitted before passing a compromise decree for eviction.

13. In Sri Krishna Khanna v. Additional District Magistrate, Kanpur and Ors. while dealing with U.P. Rent Control Legislation, the ramification of a compromise arrived at between the landlord and a tenant were considered.

14. It may be noticed that that Rent Act provided for continuance of power to control the letting and rent of residential and non-residential accommodation and to prevent the eviction of tenant there from. This was stated to be based on public policy. There was curtailment of the rights of letting by a landlord and the power vested with the District Magistrate in the said case. The shop in question had been vacated by the tenant and in terms of the statutory requirement, intimation had been given of vacancy of the shop to the Additional District Magistrate (ADM), who was exercising the powers of the District Magistrate. The landlord wanted the release of the shop for establishing the business of his son, which was declined by the ADM and a formal order of allotment in favor of another person was made. The landlord in the meantime had occupied the shop during the pendency of the proceedings before the ADM. The order of rejection was challenged further. The compromise was recorded between the new allottee and the landlord in a suit proceeding filed by the landlord challenging the order of allotment and in terms whereof the shop was to be released to the landlord.

15. The aforesaid details have been set out because, in my considered view, the judgment would not really have any application to the facts of the present case. The judgment dealt with a situation where on vacation of the premises by a tenant, the jurisdiction vested with the ADM and the premises would not go back to the landlord. It is in these circumstances it was held that any mutual arrangement between the fresh allottee and the landlord could not be binding. It is not in dispute that under the said Act, if a tenant voluntarily surrenders possession to a landlord, there is no legal bar to the same, which is not the position under the U.P. Rent Act.

16. The next judgment referred to by learned Counsel for the petitioner is in Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and Ors. to advance the plea that equity cannot operate to annul a statute. Thus, if the decree turns out to be without jurisdiction, the equitable plea would not be available. This aspect was emphasized by learned Counsel for the petitioner conscious of the fact that certainly on grounds of equity, the petitioner would have no legs to stand.

17. The Supreme Court in Ferozi Lal Jain v. Man Mal and Anr. while dealing with the provisions of the Delhi and Ajmer Rent Control Act, 1952 had emphasized that once that Rent Control Act came into force, a decree for recovery of possession could be passed by the Court only if it was satisfied that one or more of the grounds mentioned for eviction in Section 13(1) of that Act was established. Without such satisfaction, the Court is incompetent to pass a decree for possession. Thus, the jurisdiction of the Court to pass a decree for recovery of possession depended upon the satisfaction of one or more of the said grounds having been proved. Learned counsel emphasized that this legislation was the prior legislation to the said Act. To the same effect is the judgment in Srimathi Kaushalya Devi and Ors. v. Shri K.L. Bansal dealing with that Act.

18. On a conspectus of the aforesaid judgments, I am of the considered view that there can be no doubt about the legal principle that if a court lacks inherent jurisdiction, no decree can be passed by it. Not only that such a plea can be raised even at a subsequent stage including in respect of execution proceedings. Even equitable considerations would not confer jurisdiction. There is, thus, no legal quarrel with the proposition sought to be advanced by learned Counsel for the petitioner. However, legal propositions cannot apply in vacuum and must apply to the facts of a given case.

19. In the factual matrix of the present case, there is no decree; there was no suit for possession filed; and there was also no eviction proceedings under the said Act. If there had been such eviction proceedings, would the question arise of the court of the ARC being satisfied about the grounds set out therein, as a tenant can be evicted only on one of the grounds as set out in Section 14 of the said Act. The relevant provision of which is as under:

14. Protection of tenant against eviction

1) Notwithstanding anything to the contrary contained in any other law or contract, no order or decree for the recovery of possession of any premises shall be made by any court of Controller in favor of the landlord against a tenant:

Provided that the Controller may, on an application made to him in the prescribed manner, make an order for the recovery of possession of the premises on one or more of the following grounds only, namely:

...

20. The suit in question was filed before the Civil Judge only for recovery of rent and permanent injunction. The suit dragged on for 27 years during which period of time the landlady passed away and thereafter the legal heirs contested the matter. Possibly, legal fatigue set in and the parties saw better sense and compromised the matter. It must be appreciated that on questions of arrears of rent, a valuable right had accrued in favor of the landlady / her legal heirs. Monies were due for the payment of rent not made. A tenant must pay the rent agreed to continue to occupy the tenanted premises. In the alternative, standard rent is to be determined under the said Act, which is payable. If a tenant is unable to pay the amount, it is always open to him to vacate and leave the premises. There is no statutory bar to such vacation of premises nor is there a bar thereafter for the landlord to deal with the premises unlike the statutory provisions in the UP Act as dealt with by the Apex Court in Sri Krishna Khanna's case (supra). In the present case, in terms of the settlement arrived at between the parties, the tenant was going to pay only future rent and, thus, valuable rights of recovery of arrears of rent was given up in terms of the undertaking of the tenant. The tenant agreed that after his lifetime, the premises would be surrendered and undertaking was given by the tenant to that effect. The petitioner signed the same in token of his agreement and acceptance. After the demise of the tenant, the intentions of the petitioner became dishonest.

21. Interestingly, the petitioner has claimed that he is not even in occupation of the tenanted premises, but that a grandson of the tenant from his pre- deceased son is in occupation. It is, however, the petitioner who has filed the objections. The petitioner does not even want to honour the undertaking of his deceased father given to the Court.

22. In my considered view, the trial court is right in coming to the conclusion that it is this undertaking which is sought to be enforced and the petitioner is not absolved of the same. It is not a case where the civil court ceased jurisdiction in a matter where there was any inherent lack of jurisdiction and passed a decree. No decree of possession was passed. It is not in dispute that the civil court was competent to deal with the reliefs of recovery of rent and permanent injunction. The civil suit was competently instituted as per the reliefs prayed for in the suit. Thus, what is sought to be executed is the solemn undertaking given by a party in the proceedings. The petitioner being a consenting party can, thus, rightly not be permitted to retract from the undertaking to hand over possession of the suit property.

23. Apart from all this, the courts owe a duty to encourage resolution of disputes by mutual settlement. The disputes between the landlord and tenant were resolved after a prolonged battle of 27 years. The tenant gave a solemn undertaking to the court. Conscious of the uncertainties of human existence and the advanced age of the tenant, a precaution was taken to get the compromise signed even by the petitioner. However, the ingenuity of the human mind has no end. On demise of the tenant, the petitioner has started this second round of litigation.

24. In view of the aforesaid, I am of the considered view that there is no merit in the petition and the same is dismissed with costs of Rs. 5,000/-. The costs to be deposited with the Delhi High Court Mediation and Conciliation Centre in UCO Bank Account No. 48852 within 15 days.