J.B.MEHTA - (1.)These two matters arise out of execution of two eviction decrees which this landlady got against her two concerned tenants on January 10 1966 in the two suits Nos. 17/65 and No. 18/65 respectively. The C. R. A. relates to the tenant Bhrambhatt Parsottam Motisinh against whom suit No. 17/65 was filed by this landlady on the ground also of arrears of rent from November 1 1962 to December 31 1964 and on the common ground of personal requirement for her son-in-law who was residing with her and the suit premises were necessary for extending his coal business which was carried on by him. The tenants in both the suits had disputed the landlords claim by filing a written statement and they were represented by some lawyer. The landlord was represented by Mr. Khatri. Before evidence was recorded the parties filed compromise purshis in identical terms. In the first clause in that compromise Purshis it is stated that the plaintiffs suit was admitted. It may be noted that this term is not specifically mentioned in the consent decree which has been actually passed in both the suits. Before passing the consent decree which is in identical terms the learned trial Judge had on the same day January 10 1966 recorded a small order as under:-
Advocate Shri Khatri on behalf of the plaintiff and defendant in person admits the terms of the compromise. Hence decree be drawn accordingly. The amount of costs deposited by the defendants to be refunded to him or to his pleader and the amount of arrears of rent to be paid to the plaintiff or his pleader. Half of the Court fees paid by the plaintiff on the plaint be refunded to him or his pleader.
The consent decree in clause (1) states that the suit premises would be delivered to the landlady by the defendant on January 31 1971 and if the defendant failed to deliver possession the landlady could get possession by the assistance of the Court. Under clause (2) it was specified that the amount of mesne profits till January 15 1966 which had been deposited by the defendant shall be taken by the plaintiff. The third clause provided that the defendant would have to pay to the landlady a sum-of Rs. 15/per month as damages for use and occupation from 15-1-66 together with municipal taxes. The fourth clause mentioned that whatever sum was deposited in addition to the rent shall be paid to the defendant and each side was to bear its own costs. After the aforesaid period given to the two tenants by this identical consent decree in each case the landlady filed two execution applications. In one matter the executing Court allowed the application under sec. 47 of the Code on the ground that the consent decree was a nullity. But in appeal the appellate Court held that the decree was not a nullity but it remanded the matter for consideration of other issues raised before the Executing Court and that is why that opponent has filed Appeal from Order before this Court. In the second matter both the Courts took the view that treating the plaint and decree in the light of an application under sec. 47 the decree was a valid decree and therefore against that decision the tenant Bhrambhatt Purshottam has filed the present revision application. As both the matters raise identical questions they are disposed of by this common order.
(2.)A bare perusal of the consent purshis and the order recorded by the trial Court discloses that both the defendants had admitted the claim made in the suit and had agreed to the consent terms on the basis of which the consent decree was passed. The order further reveals that on the plaintiff side advocate Mr. Khatri was present while the defendant in person had admitted the terms of the compromise. Even though the consent decree does not specifically mention the first term of the compromise purshis that the suit claim of the plaintiff was admitted that term has been admitted before the Trial Judge. The only material question is as to what is the effect of that admission in the light of the allegations made in the plaint. So far as the ground of arrears was concerned even though Mr. J. V. Desai vehemently argued that in case of the tenant Bhrambhatt Purshottam the rent was in arrears of 26 months and therefore at the date of the decree the tenant had lost all protection and it was only exgratia that he was given that relief there is nothing to substantiate that contention. The consent terms categorically state that the above rent had been deposited till January 15 1966 and even the cost of the suit which was paid by the tenant had to be refunded to him and the landlord had foregone the cost. Therefore even in that case the suit was really decreed only on the ground of bona fide personal requirement under sec. 13(1)(g) and not on the ground of the tenant being in arrears of rent. In the other suit Maneklal was in arrears only for two months November 1 1964 to December 31 1964 and therefore he also having deposited all the rent there was no question raised of his eviction on the ground of arrears of rent. Therefore the whole dispute between the parties has to be resolved on the footing that the consent decree has been passed on the ground of bona fide personal requirement on the basis of the admission of the said claim by these tenants.
(3.)The legal position in this connection is now well settled. In K. K. Chari v. R. M. Sheshadri A.I.R. 1973 S.C. 1311 their Lordships categorically laid down at page 1319 that a consent decree for eviction under the Rent Act would be a nullity if it has been passed solely on the basis of a compromise arrived at between the parties. The order of the Court passed on the consent terms did not show on its face that the Court had expressed its satisfaction that the requirement of the landlord was bona fide. If the Court had expressed its satisfaction in the order itself that would conclude the matter. That the Court was so satisfied could also be considered from the point of view whether a stage had been reached in the proceedings for the Court to apply its mind to the relevant question. Other materials on record could also be taken into account to find out if the Court was so satisfied. At page 1320 their Lordships pointed out the true legal position that an order of eviction passed on consent of parties was not necessarily void if the jurisdictional fact viz. the existence of one or more of the conditions mentioned in sec. 10 were shown to have existed when the Court made the order. Satisfaction of the Court which was no doubt a prerequisite for the order of eviction need not be by the manifestation borne out by a judicial finding. If at some stage the court was called upon to apply its mind to the question and there was sufficient material before it before the parties invited it to pass an order in terms of their agreement it was possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based. Their Lordships however pointed out that before making an order for possession the Court was under a duty to satisfy itself as to the truth of the landlords claim if there was a dispute between a landlord and a tenant. But if the tenant in fact admitted that the landlord was entitled to possession on one or other of the statutory grounds mentioned in the Act it was open to the Court to act on that admission and make an order for possession in favour of the landlord without further enquiry. Each case would have to be examined to find out whether there was any material to justify an interference that an admission express or implied had been made by the tenant about the existence of one or other of the statutory grounds. The case before their Lordships was under the Tamil Nadu Buildings (Lease and Rent Control) Actsec. 10(3)(a)(i) where the rent Controller had only to be satisfied of the landlords bona fide personal requirement In that context their Lordships observed that if the evidence was led and there was no crossexamination by the tenant and on the contrary he entered into a compromise with. drawing his defence and submitted to the decree for eviction unconditionally his withdrawal of the defence after the plaintiff had given evidence and filed Exhibits in support of its plea would mean that the tenant accepted as true the claim of the landlord that he required the premises for his personal occupation. He had accepted the position that the landlord had made out the statutory requirement entitling him to ask for possession of the premises. Under the circumstances the tenant had accepted the plea of the landlord which made it futile that the Rent Controller must again embark upon an enquiry regarding the requirement of the landlord being bona fide and adjudicate upon the same. That is why it was held that on the facts of that case there remained no dispute between the landlord and tenant which the rent controller could possibly adjudicate before passing the consent decree. At page 1320 their Lordships have pointed out that the plea about the decree being void and as such not executable could always be raised before the Executing Court. Their Lordships pointed out that it was needless to observe that the Executing Court would have to adjudicate upon that plea and for that purpose relevant material would have to be considered. Therefore there was no unsurmountable difficulty for an Execution Court to consider whether a particular eviction decree was void as being contrary to the relevant section of the statute governing the matter. Further His Lordship Alagiriswami J. in the concurring judgment pointed out that such consent decrees can be passed on so long as it was not inconsistent with the provisions of the Act. The Punjab decision in Vas Dav v. Milkhi Ram A.I.R. 1960 Pun. 514 was found to be almost on identical facts and was referred to at page 1325. It was in terms pointed out from that decision that enough material and evidence had come on the record to satisfy the Court as well as the tenant that the grounds on which ejectment had been sought would be ultimately established and when the tenant entered into a compromise so it was implicit in the aforesaid circumstances that he was admitting the correctness of the grounds which had been taken for his ejectment. Therefore such an eviction order based on a compromise where the landlord had asked for possession on any one of the grounds provided in the Act on the basis of which he could ask for possession would be valid. Therefore the real test laid down by their Lordships is that every case will have to be examined to find out whether the eviction decree is solely on the basis of the compromise decree or whether the Court has been satisfied as to the relevant mandatory requirement before passing such a consent decree. It may be noted that that in this decision Their Lordships had not to consider the other relevant fetter which arises in Rent Act similar to our Bombay Act where there is a further fetter on the power of the Rent Court where a decree is sought to be passed on the ground of bona fide personal requirement that the conditions precedent specified in sec. 13(2) shall be fulfilled. In such cases in order to find out whether this was a forbidden decree in view of the mandate given to Rent Court by the statute this further requirement would also have to be inquired on the facts of each individual case. In Rasiklal Chunilal v. Shantilal 12 G.L.R. 1012 speaking for the Division Bench I had exhaustively considered this question as to when a consent decree was forbidden decree under the Rent Act so that such objection about nullity could be raised in execution. I had pointed out that the Rent Act having given protection to the tenant on the wider grounds of public policy this statutory protection could not be waived by the tenant and that is why the Rent Court could not ignore the mandatory terms of the statute and make a consent order without statutory inquiry or investigation simply because the tenant appeared in the Court and said that he consented to the order. At page 1022 I pointed out that a forbidden consent decree in violation of the statutory protection created by the relevant Rent Act would be only those consent orders which were inconsistent with such Act or which were in other words forbidden eviction decrees as they resulted solely on the basis of compromise between the parties ignoring the fetter placed by the legislature on the full jurisdiction of the Rent Court. At page 1023 I had further pointed out of that in such cases possession has to be ordered not only on one or other of the statutory grounds as the tenant cannot waive such statutory protection by agreement but the Court has further to see that even further mandatory conditions required by the Act were satisfied before passing the eviction decree. I had also pointed out at page 1025 the settled distinction between a mere illegality and a nullity. If the Court wrongly held that it was satisfied as to the existence of the relevant ground under the Rent Act it could not be said to be committing an error involving or pertaining to its jurisdiction. It would only be giving a wrong decision remaining within its mandated area. Such a decision could be challenged only in appeal or revision but it could not be challenged in a collateral proceedings because the Court had not gone outside its ambit or had done something which the legislature had forbidden it. It is only when the Court passed a forbidden decree by going outside its ambit of jurisdiction by passing a decree de hots the Rent Act or which is ultra vires the Rent Act on a ground which is not one of the grounds under the Rent Act or by ignoring a mandatory fetter that the decree would lack inherent jurisdiction of such a Rent Court. In such a case it would be immaterial whether it is a consent decree or a decree in invitum and the decree would be a nullity because it is a forbidden decree. Therefore it was pointed out at page 1026 that as per the settled legal position in such rent restriction statute where there was a fetter created on the jurisdiction of the Rent Court not to evict a tenant unless it was satisfied as to the existence of one or other ground under the Act the decree of eviction is treated as a nullity only if it is passed without any foundation for the jurisdiction of the Rent Court or by ignoring or violating the said mandate of the legislature. If however the Court said that it had been satisfied of the relevant grounds it clearly remained within its ambit of jurisdiction as the legislature has created that particular forum and conferred power on it to decide whether a particular ground under the Rent Act was made out before passing the order of eviction. In such cases even if the Rent Court was wrongly satisfied as to the existence of the relevant ground under the Act before ordering eviction this order could not be questioned in a collateral proceeding. It would necessarily follow that in such cases this order could not be challenged as a nullity even before the executing Court because the Court having not gone out of the mandated area and having remained within its area of jurisdiction had merely committed an error in the exercise of jurisdiction which could be challenged only in appeal or revision and not by collateral attack. Therefore this decision makes it clear that such a consent decree would be a forbidden decree as being founded solely on the consent of the parties if it is inconsistent with the mandatory terms of the Rent Act or the Rent Court ignores any of the mandatory fetters before passing the eviction decree. In case of a ground of bona fide personal requirement Rent Court even in invitum can never pass its eviction decree merely on being satisfied that the landlord had proved his bona fide and reasonable personal requirement of the suit premises. It would have to go into the next question as to the ground of comparative hardship as required by mandatory terms of sec. 13(2) and it is only when the Court was satisfied that greater hardship would result to the landlord that the eviction decree could be passed. Therefore in cases arising under the Bombay Rent Act when the ground of eviction is bona fide and personal requirement under sec. 13(1)(g) while judging the validity of a consent decree this additional fetter under sec. 13(2) will have to be borne in mind because if that fetter is ignored it would again be a forbidden decree even though the decree proceeds on a relevant ground under the Rent Act. Mr. J. V. Desai in this connection vehemently relied upon my observations at page 1032 where this ratio was applied by us to the facts of that particular case. It was found that the plaintiff was careful enough to file a suit on two grounds of personal requirement and arrears of rent. The arrears were not paid at the time of written statement or even at the date of the first hearing when the issues were settled and even clause (2) of the consent terms was that the balance amount was paid only on the date of the consent decree. Besides the consent decree categorically mentioned that the defendant was granted exgratia some time only to give him relief and from that date relationship of landlord and tenant between the parties had been brought to an end. The tenant was represented by a lawyer who had gone through all the facts and had admitted the plaintiffs claim which was based on these two relevant grounds under the Act. We therefore found that there was ample material before the Court in the shape of admission of the parties who knew about their true legal position and in such circumstances when tenant admitted the plaintiffs claim as wholly justified or in toto and only exgratia accommodation was given to him by not executing decree for some time the consent decree was not a forbidden decree While referring to the contention that the admission was as to bona fide requirement and the issue of greater hardship had not been gone into it was pointed out at page 1033 that proof of these facts would be necessary only when the parties had disputed the relevant facts. If the tenant admitted relevant fact and in fact admitted claim of the landlord in toto and only wanted exgratia relief for decree being not executed for some time there was no dispute on the facts of the case as regards both the relevant issues as to the bona fide and reasonable requirement and also as to the question of greater hardship. Therefore this decision was on the particular facts of that case and on the contrary it categorically lays down that the admission must to be categorical to show that there is no dispute as regards both these factors of bona fide and reasonable requirement of the landlord and as to the question of greater hardship. On the facts of that particular case the finding no doubt was that there was no dispute as regards both the facts but in every case the finding has to be arrived at by the Executing Court before holding that this is not a forbidden decree. That is why in the next decision in Letters Patent Appeal No. 66 of 1969 B. K. Mehta J. speaking for both of us in the decision dated September 24 1971 categorically relied on these observations and held that where the factum of comparative hardship was clearly in dispute between the parties it was incumbent upon the Court to satisfy itself under sec. 13(2) of the Rent Restriction Act that the tenant would not be put to a greater hardship in case a decree was passed in terms of compromise said to have been arrived at between the parties. It was further pointed out that the trial Court had in terms found that the tenant would be put to greater hardship if the decree for eviction was passed as the landlord was in possession of a spacious building and was not under a threat of eviction. It was also said in the consent terms that alternative accommodation was not available at the relevant time and therefore timelimit was agreed and it was held that the factum of comparative hardship was clearly in dispute between the parties on the face of those consent terms. Therefore the consent decree could not be passed for eviction without the Court going into statutory questions as required by sec. 13(2). In S. A. No. 544 of 1971 decided on August 18 1972 our learned brother Dave J. has followed the aforesaid decision in the same context where such time was given and the Rent Court had not gone into the question of comparative hardship at all. Such a consent decree was therefore held to be a nullity which could not be executed.
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