Jawahar Prasad Sao vs Narayan Mishra
2021 Latest Caselaw 654 Jhar

                                     1


    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   W.P.(C) No. 47 of 2013
                             ----

Jawahar Prasad Sao, son of Prakash Sao, resident of Chotta Nimdih P.O. and P.S. Chaibasa, District Singhbhum West.

                                   ...     ...    Petitioner
                           Versus

Narayan Mishra, son of late Govind Mishra, resident of Chotta Nimdih, P.O. and P.S. Chaibasa, District Singhbhum West.

                                          ...      ...    Respondent
                             ----

CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

----

For the Petitioner : Mr. Rohitasya Roy, Advocate For the Respondent : Mr. Rahul Kumar Gupta, Advocate Mr. Jitendra Nath Upadhyay, Advocate

----

C.A.V. on 05.02.2021 Pronounced on 11.02.2021

With the consent of the parties, hearing of the matter has

been done through video conferencing and there is no

complaint whatsoever regarding audio and visual quality.

2. The instant petition is under Article 227 of the

Constitution of India for quashing of the order dated

23.11.2012 passed by the learned Civil Judge (Junior Division),

Chaibasa in Miscellaneous Case No. 07/2012 arising out of

Execution Case No. 03/2012 by which a petition filed under

Section 47 of the Code of Civil Procedure by the judgment

debtor for dismissal of the execution case on the ground that

the decree passed on compromised is non-executable, has been

rejected.

3. The brief facts of the case as per the pleading made in the

writ petition read hereunder as -

A suit for eviction has been filed on the ground of Section

11(c) and (d) of the Jharkhand Building (Lease, Rent &

Eviction) Control Act, 2000 (hereinafter to be referred to as the

Act, 2000) for seeking a decree of eviction against defendant,

Jawahar Prasad Sao from the suit premises which is a house

situated at Holding No. 1040, Chaibasa Town Khas Mahal Pplot

No. 339 and 340 corresponding to New Survey Settlement Plot

No. 333, 334 (a) (b) (c) under New Survey Khata No. 67 within

Chaibasa Municipality Ward No. 7, Municial Holding No.

07/220 P.S. Chaibasa, District West Singhbhum. The plaintiff

namely, Narayan Mishra, the respondent herein, has also

claimed arrears of rent at the rate of Rs. 300/- per month from

the month of November, 2006 to August, 2007 amounting to

Rs. 2,700/- and the same has been mentioned in Schedule 'B'

of the plaint.

The case of plaintiff (the respondent herein) is that the

defendant (the petitioner herein) is a monthly tenant who used

to pay rent to Late Radha Govind Mishra and after his death

Binod Basini Devi used to receive the monthly rent of Rs. 300/-

per month. After the property was allotted to the plaintiff,

Binod Basini Devi (mother of the plaintiff) issued a notice dated

09.11.2006 directing the defendant to pay rent of the suit

premises to the plaintiff but defendant did not pay rent either

to Binod Basini Devi or to plaintiff from the month of

November, 2006 onwards. Therefore, he has become a defaulter

and he has forfeited his right to remain as a tenant.

The further case of the plaintiff is that the plaintiff

required suit premises for his bona fide personal necessity as

he was residing in a rented house and the defendant has

already constructed his house and is living there but suit

premises has been kept under lock and key without any

reason.

On service of notice, the defendant appeared and

contested the suit by filing written statement where his

preliminary point of objection was that suit is not maintainable

in its present form, plaint is not in accordance with the

provision of Order VI Rule 2(3) of the Code of Civil Procedure,

plaint has not been signed and verified in accordance with law

as also the suit has been undervalued and is barred by

principle of estoppel, waiver and acquiescence.

The main ground of the defendant is that the suit property

was leased out jointly in the name of Radha Govind Mishra and

Ram Lakhan Mishra in the year 1961. The defendant was

inducted as a tenant by the grandfather of the plaintiff namely

Raghunandan Mishra, who collected the rent from defendant

during his life time. After his death, his son Radha Govind

Mishra collected the rent from the defendant and after the

death of Radha Goving Mishra, his widow namely, Smt. Binod

Basini Devi is collecting monthly rent according to her

convenience from the defendant and the present rate of rent

was Rs.500/- per month which was being paid by the

defendant to land lady Smt. Binod Basini Devi and Binod

Basini Devi issued rent receipt in lieu of the rent received.

The further case of the defendant is that the plaintiff got a

letter issued to defendant purported to be issue by his mother

Binod Basini Devi with a direction to the defendant to pay rent

for the tenanted premises to the plaintiff but when defendant

personally contacted with Binod Basini Devi to discuss about

the aforesaid letter, she denied and expressed ignorance to

have issued any such letter to the defendant.

The trial court has framed altogether seven issues. The

parties have laid oral and documentary evidence on their

behalf. The decree has been passed against the plaintiff vide

decree dated 28.08.2009 in Eviction Suit No.19/2007.

The plaintiff/judgment debtor/the respondent herein has

preferred an appeal before the appellate court being Eviction

Appeal No. 10/2009 before the District Judge, Singhbhum

West at Chaibasa. On appearance of the decree holder/tenant,

a joint compromise petition was filed on behalf of both the

parties informing the court that both the parties have settled

their dispute and differences on the terms and conditions as

referred therein with the agreement that the decree

holder/petitioner herein shall quit and vacate and restore Khas

possession of the suit property to the appellant on or before the

expiry of two years from the date of compromise petition i.e.,

23.04.2010. The parties have agreed that within the said period

of two years, the landlord shall not execute the decree. It has

further been agreed between the parties that monthly rent of

the suit property shall be continued to be paid by the tenant to

mother of the appellant/respondent herein namely Smt. Binod

Basini Devi with the further agreement that the status of both

the parties shall not be changed.

After expiry of two years if the respondent/petitioner

herein fails to restore Khas possession of the property to the

appellant/respondent herein, the appellant will be entitled to

execute the decree and to take possession of the suit property

and rent if became due by the process of the court, for ready

reference, the contents of the joint compromise petition is being

referred hereunder as :-

"1. That both the parties have settled their dispute and differences on the following terms and conditions :-

(a) That the appellant is the land-lord and respondent is tenant with respect of the suit property.

(b) That it is agreed between the parties that the respondent shall quit and vacate and restore khas possession of the suit property to the appellant on or before the expiry of two years from the date of this compromise petition i.e. 23.04.2010.

(c) That within the said period of two years it is agreed between the parties that the appellant shall not execute the decree.

(d) That it is further agreed between the parties that monthly rent of the suit property shall be continued to be paid by the respondent to mother of the appellant namely Smt. Vindhya Vashini Devi. It is, however, made clear that status of both the parties shall not be changed.

(e) That unfortunately if mother of the appellant shall die during the said stipulated period of two years, monthly rent will be paid by the respondent to the appellant.

(f) That after expiry of the two years if the respondent fails to restore khas possession of the suit property to the appellant, the appellant is entitled to execute the decree and take possession of the suit property and rent if become due realized the process of the court."

The appellate court, on the basis of the aforesaid joint

petition, has disposed of the Eviction Appeal in terms of the

compromise vide order dated 23.04.2010 by making this

compromise petition part of the decree and accordingly directed

for preparation of the decree in terms of the compromise

petition. Accordingly, decree in appeal was prepared on

23.04.2010. The tenant when not vacated the premises, as

agreed in the joint compromise petition, execution case has

been filed by the landlord being Execution Case No.03/2012

but the said execution case has been objected by the tenant by

filing a petition under Section 47 of the Code of Civil Procedure

stating inter alia therein that the decree under execution is not

based on any of the ground for eviction of the tenant as per

Section 11 of the Act, 2000, rather the decree is simply based

on compromise hence such decree is not executable to evict a

tenant in possession of building. Only those decrees are

executable which are based on one or the other ground

enumerated in Section 11 of the Act, 2000.

Rejoinder to the aforesaid petition was filed by the

judgment debtor/landlord stating inter alia therein that the

decree has been passed in Eviction Suit No. 03/2012 by way of

compromise and the same cannot be challenged on any ground

since the decree holder (tenant) knew that the Eviction Suit

No.19/2007 was filed against him for his eviction from the

tenanted premises on the ground mentioned in the said suit.

The executing court passed an order on 23.11.2012 by

dismissing the petition filed under Section 47 of the Code of

Civil Procedure on the ground that the tenant had to vacate the

suit premises after two years from the date of compromise on

23.04.2010 and the prescribed period since has lapsed, as

such, the tenant is bound to vacate the suit property as per the

decree and since the decree of the appellate court is based on

compromise, the same cannot be challenged before the lower

court.

The tenant has filed the instant petition under Article 227

of the Constitution of India reiterating the ground that the

executing court has not appreciated the fact that in absence of

the ground as stipulated under the provision of Section 11 of

the Act, 2000, even if there is a compromise but in absence of

the aforesaid ground the decree prepared on the basis of that

compromise petition would be nullity in the eye of law and

hence not executable.

4. Mr. Rohitasya Roy, learned counsel appearing for the

petitioner, in support of his argument has relied upon the

judgment rendered by the Hon'ble Apex Court in the case of

Srimathi Kaushalya Devi & Others v. Shri K.L. Bansal

reported in (1969) 1 SCC 59 and in the case of Nagindas

Ramdas v. Dalpatram Ichharam @ Brijram and Others

reported in (1974) 1 SCC 242.

5. Per contra, Mr. Rahul Kumar Gupta, assisted by Jitendra

Nath Upadhyay, learned counsel appearing for the landlord-

respondent herein, has submitted that there is no infirmity in

the order passed by the executing court while dismissing the

petition filed under Section 47 of the Code of Civil Procedure as

because even though there is no reference in the compromise

petition about the executory ground of eviction as provided

under the Act, 2000 but since the aforesaid grounds are

available on record i.e., in the plaint filed before the original

court, the evidence recorded in order to prove the said grounds

and further the pleading made in the memo of appeal and,

therefore, while passing a decree on compromise by the

appellate court, even if the statutory grounds have not been

referred, the order passed by the appellate court cannot be said

to suffer from infirmity as because the appellate court, after

going through the material available on record and prima facie

being satisfied with the availability of the statutory grounds,

has passed the decree.

He submits that the executing court, by considering the

aforesaid aspect of the matter, has rightly not allowed the

petition filed under Section 47 of the Code of Civil Procedure as

because the scope of Section 47 is very narrow and the decree

passed by the appellate court is based upon the availability of

the statutory grounds in the other documents available on

record.

Mr. Gupta has also relied upon the judgment rendered by

the Hon'ble Apex Court in the case of Nagindas Ramdas v.

Dalpatram Ichharam @ Brijram and Others reported in

(1974) 1 SCC 242 and in the case of Hiralal Moolchand

Doshi v. Barot Raman Lal Ranchhoddas (dead) by LRS

reported in (1993) 2 SCC 458.

6. Having heard learned counsel for the parties and after

going through the material available on record, this Court

deems it fit and proper to refer certain admitted facts for proper

adjudication of the lis i.e., the landlord/respondent herein, has

filed an eviction suit on two statutory grounds as has been

provided under Section 11 (c) and (d) of the Act, 2000 for

seeking decree against the defendant/tenant from the suit

premises. The ground provided under Section 11(c) of the Act,

2000 provides that where the building is reasonably and in

good faith required by the landlord for his own occupation or

for the occupation of any person for whose benefit the building

is held by the landlord while Section 11(d) provides that where

the amount of two months' rent, lawfully payable by the tenant

and due from him is in arrears by not having been paid within

the time fixed by contract or in the absence of such contract,

by the last day of the month next following that for which the

rent is payable or by not having been validity remitted or

deposited in accordance with Section 16, thus, two grounds are

the personal necessity and default in making payment of rent

as would be evident from the judgment of the original court,

extract of which is being quoted and referred hereunder as :-

"2. .... ....

After the property was allotted to the plaintiff, Binod Basini Devi (mother of the plaintiff) issued a notice dated 09.11.06 directed the defendant to pay rent of the suit premises to the plaintiff but defendant did not pay rent either to Binod Basini Devi or to plaintiff from the month of Nov. 2006 onwards. Therefore, he has become a defaulter and he has forfeited his right to remain as a tenant.

.... .... plaintiff required suit premises for his bona fide personal necessity as he was residing in a rented house and defendant has already constructed his house and defendant is living there but suit premises has been kept under lock and key without any reason."

However, the landlord could not be able to prove his case

and as such, judgment has been passed against him.

The aforesaid judgment/decree has been assailed by the

landlord in the appeal being Appeal No. 10/2009 assailing the

order passed by the original court in Eviction Suit No. 19 of

2007. While the matter was pending before the appellate court,

an agreement has been reached in between the landlord and

tenant and accordingly, a joint compromise petition has been

filed on behalf of both the parties which has been referred and

quoted hereinabove.

The appellate court, on the basis of the said compromise

petition and recording the agreement reached in between the

parties, has drawn the decree and accordingly disposed of the

appeal.

The landlord has filed an execution proceeding before the

original court i.e., court of Civil Judge (Junior Division),

Chaibasa being Execution Case No. 03/2012.

The tenant has filed a miscellaneous case being

Miscellaneous Case No. 07/2012 under Section 47 of the Code

of Civil Procedure raising objection about the aforesaid

execution proceeding on the ground that the compromise does

not contain any statutory ground of eviction as provided under

the Act, 2000 and, therefore, the decree being nullity, is not

executable. The aforesaid petition filed under Section 47 of the

Code of Civil Procedure has been dismissed against which the

present petition has been filed.

7. The main contention of the learned counsel appearing for

the petitioner/tenant, is that the statutory ground is not

available and, therefore, the judgment is nullity in the eyes of

law hence not executable. In support of his submission he

relied upon the judgment rendered in the case of Srimathi

Kaushalya Devi & Others v. Shri K.L. Bansal (Supra).

8. I have gone through the judgment rendered by the Hon'ble

Apex Court in the case of Srimathi Kaushalya Devi & Others

v. Shri K.L. Bansal (Supra) and found therefrom the factual

aspect that one Raghunath Sharma, predecessor-in-interest of

the appellants preferred a suit for the eviction of his tenant on

three grounds i.e., personal requirement, the tenant owned a

house and defaulted in payment of rent. However, the said

grounds have been denied by the defendant but subsequently

thereafter an application was filed that the plaintiff and the

defendant have agreed for compromise on certain terms and

accordingly the decree was drawn up. In terms of the said

compromise the premises when not vacated, one execution

case has been filed in which a petition under Section 47 of the

Code of Civil Procedure has been filed challenging the validity

of the decree alleging that the same has been passed in

contravention of the provision of Section 13 of the Delhi and

Ajmer rent Control Act, 1952 and hence the decree was a

nullity.

The High Court on revision, held that the decree was a

nullity as the order passed on the basis of the compromise did

not indicate that any of the statutory grounds mentioned in

Section 13 of the Act existed. The Hon'ble Apex Court in the

said case by placing reliance upon Bahadur Singh's

case [Civil Appeal Nos. 2464 and 2468 of 1966] has held

that the decree passed on the basis of an award was in

contravention of Section 13(1) of the Act because the Court had

passed the decree in terms of the award without satisfying itself

that the ground of eviction existed. The Hon'ble Apex Court has

observed that "on the plain wording of Section 13(1) the Court

was forbidden to pass the decree. The decree is a nullity and

cannot be enforced in execution." The Hon'ble Apex Court,

accordingly, declared that the decree, in so far as it directs

delivery of possession of the premises to the landlord, is a

nullity and cannot be executed.

Further, reliance has been placed upon the judgment

rendered in Nagindas Ramdas v. Dalpatram Ichharam @

Brijram and Others (Supra). In the aforesaid judgment, the

factual aspect also revolves around execution of a decree made

in terms of compromise wherein it has been held that no decree

or order of eviction can be passed unless the Rent Court or

Tribunal is satisfied, on the basis of extrinsic material as to the

existence of all the essential facts constituting a statutory

ground for eviction.

In the judgment rendered in the case of Nagindas

Ramdas v. Dalpatram Ichharam @ Brijram and Others

(Supra), the same has also been relied upon by the respondent

landlord on the ground that if it finds that prima facie such

material existed as to the statutory ground for eviction, even if

such ground is not available in the compromise petition or the

decree prepared on the basis of the compromise, the decree

would not be a nullity.

Learned counsel for the respondent/landlord has also

relied upon the judgment rendered in the case of Hiralal

Moolchand Doshi v. Barot Raman Lal Ranchhoddas (dead)

by LRS (Supra) in which the view as has been taken in the case

of Nagindas Ramdas v. Dalpatram Ichharam @ Brijram

and Others (Supra), has been reiterated.

9. This Court, after going through the judgment rendered by

Hon'ble Apex Court in the case of Nagindas Ramdas v.

Dalpatram Ichharam @ Brijram and Others (Supra), has

found therefrom that the case of Srimathi Kaushalya Devi &

Others v. Shri K.L. Bansal (Supra) has also been taken into

consideration in the said case by the Hon'ble Apex Court and it

has been observed by going through the factual aspect involved

therein that in the said case there was absolutely no material,

extrinsic or intrinsic to the consent decree on the basis of

which, the Court could be satisfied as to the existence of a

statutory ground for eviction. Further, it has been held 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 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. Further, it has been laid down

therein that in the 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 materials

on the basis of which, the 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 it 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 prima facie such material existed, its task is

complete. It is not necessary for it to go further and question

the presumed or expressed finding of the trial court on the

basis of that material.

The thing which is to be seen is as to 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 eviction.

The relevant paragraphs of the judgment rendered in

Nagindas Ramdas v. Dalpatram Ichharam @ Brijram and

Others (Supra) are being quoted hereunder as :-

"19. Construing the provisions of Sections 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

invitum or with the consent of the parties on a ground

which is de hors the Act or ultra vires the Act. The

existence of one of the statutory grounds mentioned in

Sections 12 and 13 is a sine qua non to the exercise of

jurisdiction by the Rent Court under these provisions.

Even parties cannot by their consent confer such

jurisdiction on the Rent Court to do something which,

according to the legislative mandate, it could not do.

23. 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 Counsel 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 case, Kaushalya Devi

case and Ferozi Lal Jain case. 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 the basis of which, the Court

could be satisfied as to the existence of a statutory

ground for eviction.

27. 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 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. Admissions, if true and clear, are by far the best

proof of the facts admitted. Admissions in pleadings or

judicial admissions, admissible under Section 58 of

the Evidence Act, 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 admissions are fully binding on the party that

makes them and constitute a waiver of proof. They by

themselves can be made the foundation of the rights of

the parties. On the other hand, evidentiary admissions

which are receivable at the trial as evidence, are by

themselves, not conclusive. They can be shown to be

wrong.

30. 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, the 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 it

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

prima facie such material existed, its task is complete.

It is not necessary for it to go further and question the

presumed or expressed finding 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 eviction. 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 under Section 12(3)(a), the

executing court was not competent to go behind the

decree and question its validity."

Further, in the case of Hiralal Moolchand Doshi v.

Barot Raman Lal Ranchhoddas (dead) by LRS (Supra) it has

been observed that we are dealing with the question of nullity

of a decree because the executing court is bound to execute the

decree and cannot go behind the same unless the decree

passed by it is a nullity. The decree to be called a nullity is to

be understood in the sense that it is ultra vires the powers of

the court passing the decree and not merely voidable decree. It

has further been held therein that if there is a contest, the

court can pass a decree for eviction only if the court is satisfied

about the existence of grounds mentioned in two sections

quoted hereinabove. But the satisfaction can also be inferred

impliedly. All sorts of pleas are taken in the pleadings but it

does not debar the parties to give up any of the pleas.

Further, an admission by the tenant about the existence

of a statutory ground, expressly or impliedly, will be sufficient

and there need not be any evidence before the court on the

merits of the grounds before the compromise order is passed.

The relevant paragraphs of the judgment in Hiralal

Moolchand Doshi v. Barot Raman Lal Ranchhoddas (dead)

by LRS (Supra) are quoted hereunder as :-

8. It may be noticed that we are dealing with the question of nullity of a decree because the executing court is bound to execute the decree and cannot go behind the same unless the decree passed by it is a nullity. It appears, there is a lot of confusion as to what is meant by "decree being null and void". In the context which we are dealing, a decree is said to be a nullity if it is passed by a court having no inherent jurisdiction. Merely because a court erroneously passes a decree or there is an error while passing the decree, the decree cannot be called a nullity. The decree to be called a nullity is to be understood in the sense that it is ultra vires the powers of the court passing the decree and not merely voidable decree.

14. There is no doubt that if there is a contest the court can pass a decree for eviction only if the court is satisfied about the existence of grounds mentioned in two sections quoted hereinabove. But the satisfaction can also be inferred impliedly. It is clear from the reading of the plaint and the written statement that it was a common case that the agreed rate of rent was Rs

10 per month. It is clear from the reading of the consent terms that the tenant agreed about the claim of the arrears of rent and stated inter alia that he had deposited it partly in the court on September 2, 1967. It is true that in the written statement the tenant had taken the plea that the landlord was avoiding to take the rent and he was not neglecting to pay. But by the admission in the compromise terms, it appears, that the tenant gave up the plea of tender of rent before the filing of the suit. There was no material of any tender by money order or otherwise on the record when the compromise was filed. All sorts of pleas are taken in the pleadings but it does not debar the parties to give up any of the pleas. On the facts of the case it is clear that the burden was on the tenant to prove the tender of rent before the suit, after service of notice of demand. The admission contained in the compromise shows complete admission of the tenant about the arrears of rent read with the allegation of the landlord in the petition about the existence of arrears of rent after service of notice of demand. In the written statement the notice of demand had been admitted but the plea was of tender of rent. Even a reply was sent to the notice of demand. Thus in the absence of any material on the record of previous tender it can safely be assumed that there was sufficient material in the light of the agreed terms that the tenant had made himself liable to be evicted on the ground contained in Section 12(3)(a) of the Act. Even on the second ground of eviction, namely -- bona fide personal requirement of the landlord, the very fact that the tenant asked for accommodation of time shows that the claim of the landlord for eviction of the tenant on the ground of his bona fide personal requirement was impliedly admitted by the tenant. Again there is implied admission of comparative hardship as contemplated by Section 13(2) of the Act by the tenant. Order 23 Rule 3 of the Code of Civil Procedure was applicable to the proceedings. Rule 3 of Order 23 reads as follows:

"Compromise of suit.--Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise, in writing and signed by the parties or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-

matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject-matter of the agreement, compromise or satisfaction is the same as the subject-matter of the suit:

Provided that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the Court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the Court, for reasons to be recorded, thinks fit to grant such adjournment.

Explanation.-- An agreement or compromise which is void or voidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule."

22.Suleman Noormohamed v. Umarbhai [(1978) 2 SCC 179 : AIR 1978 SC 952] was again a case in which suit was brought on the ground of non-payment of rent and bona fide personal necessity under the relevant provisions of the Act. The decree for possession was passed on the basis of a compromise under which the judgment-debtor was to hand over possession by a future date. On his failure to do so, execution application was filed and the judgment-debtor challenged the validity of the decree. The order did not mention that the Court was satisfied about the grounds for eviction. The Court read pleadings and came to the conclusion that there was no serious dispute to be tried and if a decree for possession would have been passed in invitum the tenant would not have got three years' time to vacate the premises; that he, therefore, agreed to suffer a decree by consent and gained three years' time under it. The court also relied on the presumption that every compromise under Order 23 Rule 3 of the Code of Civil Procedure shall be presumed to be lawful unless it is proved to the contrary. An admission by the tenant about the existence of a statutory ground, expressly or impliedly, will be sufficient and there need not be any evidence before the court on the merits of the grounds before the compromise order is passed. If there is an admission of the tenant it will not be open to him to

challenge its correctness as the admission made in judicial proceedings are absolutely binding on the parties. At any rate decree cannot be called a nullity to enable the executing court to go behind it.

23. It is clear from the terms of the compromise in the present case that there was an implied admission by the tenant of the grounds contained in Section 12(3)(a) as well as Section 13(1)(g) of the Act.

10. Learned counsel appearing for the writ petitioner has

relied upon the judgment rendered in the case of Srimathi

Kaushalya Devi & Others v. Shri K.L. Bansal (Supra) but as

has been held in the case of Nagindas Ramdas v. Dalpatram

Ichharam @ Brijram and Others (Supra) that the case of

Srimathi Kaushalya Devi & Others v. Shri K.L. Bansal

(Supra) is having no extrinsic or intrinsic material showing the

ground available.

11. This Court, after considering the judgments rendered by

Hon'ble Apex Court in the case of Nagindas Ramdas v.

Dalpatram Ichharam @ Brijram and Others (Supra) and

Hiralal Moolchand Doshi v. Barot Raman Lal

Ranchhoddas (dead) by LRS (Supra), has gone across the

factual aspects wherefrom this Court has found that admittedly

a suit for eviction has been filed by the landlord on two

statutory grounds that are provided under Section 11(c) and (d)

of the Act, 2000. The tenant has appeared and filed its written

statement and contested the case. Therefore, it is not in

dispute that the tenant was having no knowledge about the

statutory grounds as has been mentioned in the plait filed

before the original court.

Further, the evidence has also been led to prove/disprove

these two grounds as would be apparent from the judgment

appended as Annexure - 2 to the writ petition.

Further, the landlord, after having lost before the original

court, has filed an appeal raising the grounds questioning the

judgment passed by the original court wherein also the

statutory ground as has been mentioned under Section 11 (c)

and (d) of the Act, 2000 have been mentioned.

Further, the mother has also given a notice showing the

statutory ground, the receipt of notice has not been disputed

by the tenant.

Subsequent to filing of the appeal, a joint compromise

petition has been filed wherein the tenant has come to an

agreement for eviction of the premises within a period of two

years and if not vacated, the landlord will be at liberty to file

the execution proceeding as also the tenant has agreed to make

payment of rent during the aforesaid period. Decree has been

prepared on the basis of the said compromise petition by the

appellate court and thereafter the execution proceeding has

been filed before the original court. Thus, there is no dispute

about the fact and that even it cannot be disputed by the

learned counsel appearing for the petitioner that the statutory

grounds were not available before the appellate court while

preparing the decree on the basis of the joint compromise

petition.

The Hon'ble Apex Court in the judgment rendered in the

case of Nagindas Ramdas v. Dalpatram Ichharam @

Brijram and Others (Supra) and Hiralal Moolchand Doshi v.

Barot Raman Lal Ranchhoddas (dead) by LRS (Supra) has

clearly held that if the rent court, on the basis of

extrinsic/intrinsic material as to the existence of all the

essential facts constituting a statutory ground for eviction,

comes to a conclusion and prepares decree on the basis of

compromise and merely because the grounds having not been

mentioned in the compromise petition, it cannot be said that

the decree is a nullity due to absence of statutory grounds.

It has been held by the Hon'ble Apex Court in the case of

Nagindas Ramdas v. Dalpatram Ichharam @ Brijram and

Others (Supra) that if there is no extrinsic or intrinsic material

to the consent decree on the basis of which, the Court could be

satisfied as to the existence of a statutory ground for eviction,

the decree can be passed on the basis of compromise even if

statutory ground has not been referred.

Likewise, in the judgment rendered in the case of Hiralal

Moolchand Doshi v. Barot Raman Lal Ranchhoddas (dead)

by LRS (Supra) also, the Hon'ble Apex Court has reiterated the

same view.

Further, herein the admitted fact is that the tenant is a

decree holder but in appeal he has entered into a compromise

with the landlord agreeing to vacate the premises within a

period of two years failing which execution proceeding will be

filed by the landlord. This terms of the compromise is in no way

be said that the writ petitioner is not knowing about the

statutory ground available. The aforesaid joint compromise will

amount to admitting the fact about availability of the ground as

because there was no reason for the tenant to enter into an

agreement by way of a joint compromise petition with the

landlord even after being a decree holder before the trial court.

It requires to refer herein that the writ petitioner has won

the eviction suit even though the decree has been passed in his

favour and when the appeal has been filed he entered into a

joint compromise basing upon which the appellate court has

passed the decree but when the proceeding reached to the

stage of execution, an objection has been filed by filing a

petition under Section 47 of the Code of Civil Procedure.

Admittedly, the writ petitioner has agreed to vacate the

premises after expiry of the period of two years and during the

period of two years if not vacated, to file execution proceeding,

meaning thereby, the petitioner consciously has entered into

the aforesaid joint compromise wherein he has got two years'

time and when the execution case has been filed, the objection

has been filed which is nothing but misuse of the process of the

court only for the purpose of delaying the process.

12. So far as the scope of Section 47 of the Code of Civil

Procedure is concerned, it is not in dispute that Section 47 of

the Code of Civil Procedure confers power upon the executing

court to determine a question if arising between the parties in

the suit in which the decree was passed or their representative

relating to execution or discharge or satisfaction of the decree,

shall be determined by the executing court and not by a

separate court.

13. This court has gone across various judgment pronounced

by Hon'ble Apex Court dealing with Section 47. The relevant

would be to refer the judgment rendered in the case

of Brakewel Automotive Components (India) v. P.R. Selvam

Alagappan reported in (2017) 5 SCC 371 wherein their

lordships of Hon'ble Apex Court, while dealing with the scope

of Section 47, have laid down the proposition at paragraphs 21

and 22 as is being referred herein below:--

"21. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof.

22. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman (1970) 1 SCC 670 : 1971 (1) SCR 66 in essence enunciated that only a decree which is a nullity can be the subject matter of objection

under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt:

"6. A Court executing a decree cannot go behind the decree between the parties or their representatives; it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties.

7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction."

14. It is evident from the observation made by Hon'ble Apex

Court in those paragraphs as referred herein above that the

purview of scrutiny under Section 47 of the Code qua a decree

is limited to objections to its executability on the ground of

jurisdictional infirmity or voidness are plethoric. A Court

executing a decree cannot go behind the decree until it is set

aside by an appropriate proceeding in appeal or revision, a

decree even if it be erroneous is still binding between the

parties. When a decree which is a nullity, for instance, where it

is passed without bringing the legal representatives on the

record of a person who was dead at the date of the decree, or

against a ruling prince without a certificate, is sought to be

executed an objection in that behalf may be raised in a

proceeding for execution. Again, when the decree is made by a

Court which has no inherent jurisdiction to make it, objection

as to its validity may be raised in an execution proceeding if

the objection appears on the face of the record where the

objection as to the jurisdiction of the Court to pass the decree

does not appear on the face of the record and requires

examination of the questions raised and decided at the trial or

which could have been but have not been raised, the executing

Court will have no jurisdiction to entertain an objection as to

the validity of the decree even on the ground of absence of

jurisdiction.

15. At paragraph 23 of the said judgment it has been laid

down by taking aid of the judgment passed by Hon'ble Apex

Court in the case of Dhurandhar Prasad Singh v. Jai

Prakash University, reported in (2001) 6 SCC 534 laying

therein that exercise of power under Section 47 of the Code is

microscopic and lies in a very narrow inspection hole and an

executing court can allow objection to the executability of the

decree if it is found that the same is void ab initio and is a

nullity, apart from the ground that it is not capable of

execution under the law, either because the same was passed

in ignorance of such provision of law or the law was

promulgated making a decree unexecutable after its passing.

16. This Court, after taking into consideration the scope of

Section 47 of the Code of Civil Procedure and coming to the

factual aspect of this case, is of view that the order passed by

the court below cannot be said to suffer from infirmity as

because the executing court, after taking into consideration the

decree passed by the appellate court, on the basis of joint

compromise petition as also the material available on record

about the availability of statutory ground, is right in dismissing

the petition. The said order has been challenged under Article

227 of the Constitution of India but it is not in dispute that the

high court can set aside or reverse the finding of an inferior

court or tribunal only in a case where there is no evidence or

where no reasonable person could possibly have come to the

conclusion which the court or tribunal has come to.

17. This court also intends to go through the scope of Article

227 of the Constitution of India. Dealing with the scope of

Article 227 of the Constitution of India, Hon'ble Apex Court in

the case of Shalini Shyam Shetty v. Rajendra Shankar

Patil reported in (2010) 8 SCC 329 has been pleased to laid

down therein regarding the scope of Article 227 which relates

to the supervisory powers of High Courts and by taking aid of

the judgment rendered by Hon'ble Full bench of Calcutta High

Court in the case of Dalmia Jain Airways Ltd. v. Sukumar

Mukherjee reported in AIR 1951 Calcutta 193 wherein it has

been laid down that Article 227 of the Constitution of India

does not vest the high Court with limit less power which may

be exercised at the court's discretion to remove the hardship of

particular decisions. The power of superintendence it confers is

a power of a known and well recognized character and should

be exercised on those judicial principles which give it its

character. In general words, the high court's power of

superintendence is a power to keep the subordinate courts

within the bounds of the authority, to see that they do what

their duty requires and that they do it in a legal manner.

18. The power of superintendence is not to be exercised

unless there has been;

(a) an unwarranted assumption of jurisdiction, not vested in

a court or tribunal; or

(b) gross abuse of jurisdiction; or

(c) an unjustifiable refusal to exercise jurisdiction vested in

courts or tribunals.

19. Further in the aforesaid judgment Hon'ble Apex Court has

taken aid of a judgment rendered in the case of Mani Nariman

Daruwala v. Phiroz N. Bhatena reported in (1991) 3 SCC

141 wherein it has been laid down that in exercise of

jurisdiction under Article 227, the high court can set aside or

reverse finding of an inferior court or tribunal only in a case

where there is no evidence or where no reasonable person

could possibly have come to the conclusion which the court or

tribunal has come to.

20. Hon'ble Apex Court has made it clear that except to this

limited extent the High Court has no jurisdiction to interfere

with the finding of facts.

21. Further in the judgment rendered in the case

of Laxmikant Revchand Bhojwani v. Pratapsingh

Mohansingh Pardeshi, reported in (1995) 6 SCC 576 it has

been laid down that the High Court under Article 227 cannot

assume unlimited prerogative to correct all species of hardship

or wrong decisions. Its exercise must be restricted to grave

dereliction of duty and flagrant abuse of fundamental

principles of law and justice.

22. It has been laid down at paragraph 47 of the aforesaid

judgment that the jurisdiction under Article 227 is not original

nor is it appellate. This jurisdiction of superintendence under

Article 227 is for both administrative and judicial

superintendence. Therefore, the powers conferred under Article

226 and 227 are separate and distinct and operate in different

fields. Another distinction between these two jurisdictions is

that under Article 226 the high court normal annuls or

quashes an order or proceeding but in exercise of its

jurisdiction under Article 227, the high court, apart from

annulling the proceeding, can also substitute the impugned

order by the order which the inferior tribunal should have

made.

23. It has further been laid down regarding the powers to be

exercised by the high court under Article 227 of the

constitution of India. The High Court, in exercise of its

jurisdiction of superintendence, can interfere in order only to

keep the tribunals and courts subordinate to it within the

bounds of its authority, in order to ensure that law is followed

by such tribunals and courts by exercising jurisdiction which

is vested with them and by not declining to exercise the

jurisdiction which is vested in them. Apart from that, high

court can interfere in exercise of its power of superintendence

when there has been a patent perversity in the orders of the

tribunals and courts subordinate to it or where there has been

a gross and manifest failure of justice or the basic principles of

natural justice have been flouted.

24. In exercise of its power of superintendence high court

cannot interfere to correct mere errors of law or fact or just

because another view than the one taken by the Tribunals or

courts subordinate to it, is a possible view. In other words the

jurisdiction has to be very sparingly exercised.

25. This Court, therefore, is of the view in the entirety of the

facts and the discussions made hereinabove that there is no

infirmity in the order passed by the executing court warranting

any interference by this Court in exercise of powers conferred

under Article 227 of the Constitution of India.

26. Accordingly, the writ petition, having no merit, is

dismissed.

27. The interim order dated 25.02.2013 shall stand vacated.

28. This Court, before parting with the order, deems it fit and

proper taking into consideration the fact that the eviction suit

is of the year 2007 and from the date of filing it is almost more

than 13 years and as informed by the learned counsel for the

parties that the Execution Proceeding is at the stage of Delivery

of Possession, in view thereof, the executing court is directed to

proceed with the matter and conclude the execution proceeding

within a period of one month from date of receipt of copy of this

order.

29. Pending interlocutory applications (I.A. No. 658 of 2016

and I.A. No. 2258 of 2020) stand disposed of.

(Sujit Narayan Prasad, J.) N.A.F.R.

Birendra/