J.B.MEHTA - (1.) This group of matter raises the third question which we have left open in our earlier decision in Letters Patent Appeal No. 35 1969 and S. A. No. 770 of 1960 decided on September 24 1970 (Hussain Dadu & Anr. v. Kunvarbhai Prabhudas XI G.L.R. 610) where this Division Bench had disposed of the two questions as to when a consent decree operates as a lease and when it could be said to be a penal decree so as to justify equitable relief against forfeiture or such penalty. The third question which was left open was as to when the consent decree could be treated as a nullity even by an executing Court or in a collateral proceeding. This third question has been raised in these matter because of the three latest decisions of the Supreme Court in this connection. As regards the true ratio of these decisions there has been a difference of opinion amongst the various Single Judges of this Court. Brother Sheth J. has therefore made a Reference in the last two referred matters by formulating the question for our answer in the following terms:- Whether the ratio decidendi of the three decisions of the Supreme Court is applicable to cases governed by sec. 13 of the Saurashtra Rent Control Act in view of the fact that the language of sec. 13 of the Delhi Act is materially different from the language of the Saurashtra Act. As all these matters raise this common question we are disposing of all these matters by this common order.
(2.) Before going into the ratio of these three decisions it would be material at the outset to examine certain settled principles on the basis of which such a contention of nullity could be gone into by the executing Court. In Ahmedabad Municipal Corporation v. Joitaram X G.L.R. 431 speaking for the Division Bench consisting of myself and Thakore J. I had pointed out the settled legal position especially after Hiralal Patni's case A.I.R. 1962 S.C. 199 at page 201 that the executing Court could go into the question of validity of a decree only on the short ground that the decree was a nullity in the true sense. In such a case the distinction must always be kept in mind between the objections which are of a technical nature and which could be waived. It is only the objection as to the competence of the Court over the subject matter to try the suit or over the parties which could not be waived and which would therefore render a decree a nullity in the true sense and such an objection alone could be raised before the executing Court or even in the collateral proceedings. This conclusion was arrived at on the application of the settled workable test as evolved by Justice Cole ridge in Homes v. Russel (1841) 9 Dowl 487 as under:- It is difficult sometimes to distinguish between an irregularity and a nullity; hut the safest rule to determine what is an irregularity and what is a nullity is to see whether the party can waive the objection; if he can waive it amounts to an irregularity; if he cannot it is a nullity. This workable test was followed by their Lordships in Dhirendra Nath Goral v. Sudhir Chandra Ghosh I.L.R. 1964 S.C. 1300 at page 1304. In this decision I had also considered as to when this objection of nullity can be raised in the context of a consent decree which was passed under O. 23 R. 3 of the Code of Civil Procedure. O. 23 R. 3 in terms provides as under:- 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 of 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 suit. The expression so far as it relates to the suit has been given a wide so as to include matters which form a consideration and are thereby intimately connected with the subject matter and the Court need not confine operative part of the decree only to what is strictly spreading the subject matter of the suit as seen from the frame of the suit or the reliefs claimed. Besides even if the trial Court wrongly incorporated in the consent decree even a portion which did not relate to the suit the question would arise whether such an error was only one in the exercise of the jurisdiction or one which would make the decree a nullity in the true sense. As for the later class of errors it was pointed out at page 444 that if the Court recording compromise had no jurisdiction for incorporating any part of the compromise into the decree the decree would be ultra vires and therefore void and a nullity because the Court would lack inherent jurisdiction to entertain the compromise. Therefore it was held that such an objection of nullity in the context of a consent decree under O. 23 R. 3 could be urged even before the executing Court if the trial Court lacked inherent jurisdiction over the subject matter itself to entertain such a compromise as the matter was one on which the Civil Courts jurisdiction was wholly excluded or because it was the Court of limited jurisdiction and it had no jurisdiction over the subject matter on which it sought to pass a consent decree or because the suit as instituted was inherently incompetent. It was therefore held that every Court in this connection must approach this problem of the settled principles as indicated in Hiralal Patni's case keeping in mind those objections which are of a technical nature and which can be waived and the real or substantial objection on the scope of the competence of the Court which could not be waived and which struck at the very authority of the Court to pass any such consent decree or any decree on merits as well. It is only when the Court lacked such inherent competence over the subject matter or the parties that the decree would be nullity and the question could be urged even before the executing Court. If however the Court did not lack such inherent competence or jurisdiction to record a compromise and the error which it had committed was one in incorporating the entire compromise in the operative decree or such an error which was merely an illegality the error would be one in the exercise of jurisdiction. Such an objection would be one which could be waived and so if no appeal or revision or writ proceeding was filed it would not be open to the executing Court in any event to go into any such objection. In Vasudev Modi v. Rajabhai Abdul Rehman A.I.R. 1970 S.C. 1475 a decree for ejectment on a lessee was passed by the Court of Small Causes under the Rent Act without any objection to its jurisdiction. Even when the question of jurisdiction of that Court to entertain such a suit depended upon interpretation of the terms of the agreement of a lease and the user to which the land was put at the date of the grant of lease in view of the definition of the term premises under the Act it was held by their Lordships that these questions could not be permitted to be raised in an execution proceeding so as to displace jurisdiction of the Court which passed it. At page 1476 their Lordships pointed out that when a decree which is a nullity for instance where it is passed without bringing the legal representative on :-record of a parson who was dead at the date of the decree or against a ruling prince without a certificate or 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 however 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 question raised and decided at the trial or which could have been but have not been raised the executing Court would have no jurisdiction to entertain the objection as to the validity of the decree even on the ground of absence of jurisdiction of such a Court of limited jurisdiction. It was therefore held by their Lordships that the High Court could not in execution interpret terms of the lease for finding out whether the premises in question were covered by the Rent Act. The executing Court could not go behind the decree between the parties or their representatives and could not entertain an objection that the decree was incorrect in law or in fact until it was set aside by an appropriate proceeding in appeal or revision. A decree even if it were erroneously passed must be held to be binding as between the parties. Therefore even in the case of Court of limited jurisdiction it is now well-settled that the objection as to nullity can be raised before the executing Court if such an objection appeared on the face of the record and did not require any further investigation into facts to determine that question.
(3.) In this connection another settled principle must also be borne in mind. As Farewell J. pointed out in Soho Square Syndicate Ltd. v. E. Pollard & Co. Ltd. 1940 A. E. R. 601 at page 605 prohibition against contracting out of a statute even when it is not express can be implied by considering whether the Act is ore which is intended to deal with the private rights only or whether it is an Act which is intended from the point of view of public policy to have a more extensive operation. It is rightly not disputed that a statute like the Rent Restriction Act even if it does not contain an express provision prohibiting contracting out would have to be read as containing this implied prohibition on wider grounds of public policy. In these days of shortage of housing accommodation and of business premises in the areas where such Rent Restriction Acts are brought into force their object is to control rents and to protect tenants from eviction. In the context of such Rent Restriction Act therefore which are enacted in the interest of public peace and welfare the extension operation is clearly intended. Such statutes could not be interpreted as merely giving individual protection They rest on a more solid basis of the wider public policy. That is why even when an express provision prohibiting contracting out is not enacted such a prohibition would have to be read by implication consistently with the public policy underlying such a welfare measure. In Barton v. Fincham 1921 (2) K. R. 295 the Court of Appeal considered the scheme of the corresponding Rent Restriction Act 1920 The relevant sec. 5 created a restriction that no order or judgment for the recovery of possession of a dwelling house to which the Act applies can he made unless one or the other ground was made out. In the context of such a Rent Restriction Act scheme Bankes L. J. held at pages 295-295 that the legislature had secured its object as regards claims for possession by placing fetter not upon the landlords action but upon the action of the Court by definitely declaring that the Court shall exercise its jurisdiction only in the instances specified in the section and in no others. The legislature had in clear unmistakable language restricted the jurisdiction of the Court and therefore no agreement between the parties could give the Court a jurisdiction which the legislature had said it was not to exercise. The legislature had limited the exercise by Court of their full jurisdiction. Atkin L. J. at page 299 further observed that sec. 5 of the Act definitely limited the jurisdiction of the Court in making ejectment orders in the case of premises to which that Act applied and parties could not by agreement give the Courts jurisdiction which the legislature had enacted they were not to have. Atkin L J. however clarifies the position by stating that if the parties before the Court admitted that one of the events had happened which gave the Court jurisdiction and there was no reason to doubt the bona fides of the admission the Court was under no obligation to make further inquiry as to the question of fact; but apart from such an admission the Court could not give effect to an agreement whether by way of compromise or otherwise inconsistent with the provisions of the Act. In Thorne v. Smith 1947 (1) K. B. 307 at page 313 this decision was sought to be distinguished before the Court of Appeal on the ground that the consent decree was invalid because the relevant ground was not set out as the basis of the plaintiffs claim that he required the house for his own residence and the eviction order was obtained merely on the of the tenant without any inquiry by the concerned Judge. At page 314 Bucknill L. J. in terms pointed out that if the landlord by his own statement had satisfied the tenant that he intended to occupy the house himself and that the tenant could not successfully resist the claim and in these circumstances the tenant had stated this expressly in the Court the Judge would surely have had the jurisdiction to make the order on that ground. As the defendant was legally represented the Judge was entitled to make an order on the assumption that this was the true position. Before making an order for possession the Judge was under a duty to satisfy himself as to the truth if there was dispute between the landlord and-the tenant but if the tenant had in effect agreed that the landlord had a good claim to an order under the Act the Judge had jurisdiction to make the order for possession under the Act without further inquiry. Somerwell L. J. at page 315 rightly pointed of that as the defendant was legally represented the County Court Judge was rightly satisfied that the order could be properly made on the consent of the tenant. Somerwell L. J. in this context made the pertinent observation which would be very appropriate in the present cases as regards the express consent order which would suggest some compromise or which might be inconsistent with the provisions of the Act. The learned Judge observed when the defendant is agreeing to submit to judgment because he is satisfied that the plaintiff can establish his right to an order under the Acts it might be advisable to avoid the use of the word consent which may have a wider meaning and cover cases where the consent was the result an arrangement which could not properly be made the basis of an order. Therefore forbidden consent decree in violation of the latter created by the relevant Rent Act would be only those consent orders which are inconsistent with such Acts or which are in other words forbidden eviction decrees which are purely the result of an agreement which could not properly by mad:- basis of such eviction order because of the fetter placed by the legislature on the full jurisdiction of the Court. In Middleton v. Baldock 1950 (1) K. R 657 the strong Bench of the Court of Appeal consisting of Evershed M. R. Denning L. J. and Jenkins L. J. again considered these two authorities. Jenkins L. J. at page 669 deduced the following principle from the aforesaid two decisions:-_ Under the Acts in question the Court only has jurisdiction to order possession on one or other of the specified statutory grounds. It is not however always obliged to hear a case out; for if a tenant appears and admits that the landlord is entitled to possession on one of the statutory grounds the Court may act on that admission and make the appropriate order. Again-and this I think is an extension of what I have just said-if there is a representation made by the plaintiff landlord to the effect for instance that the landlord wants the premises for his own occupation - which is one of the ingredients of a ground on which possession may be ordered and the tenant accepts that representation and on that footing submits to an order then the order can validly be made subject to the possibility that in the event of the representation turning out to have been false the efficacy of the order may be destroyed But in my judgment the Court cannot go further than that and exercise a general jurisdiction to make a consent order without inquiry or investigation simply because the tenant appears in Court and says:- ill consent to an order or says in the witness box that the does not contest the landlords right. I think that that necessarily follows from the principle that possession can only be ordered on one or other of the statutory grounds and that the tenant cannot waive the statutory protection by agreement. This principle has been rightly extended both by Denning L. J. in Smith V. Poulter 1947 (1) A. E. R. 216 and by Winn L. J. in the Court of Appeal in Preachey Property Corporation v. Robinson 1966 (2) A. E. R. 981 to the case of judgment by default. The relevant Rent and Mortgage Interest Restriction Act provided in the relevant sec. 3(1) as under:- No order or Judgment for the recovery of possession of any dwelling-house to which the principal Act apply or for the ejectment of a tenant therefrom shall be made or given unless the Court considers it reasonable to make such an order or give such a judgment and One or other of two additional conditions is satisfied. It should be borne in mind that under sec. 17(2) both the County Courts and the High Courts had concurrent jurisdiction to entertain such suit for recovery of possession. In the High Court however the procedure of judgment by default prevailed. As soon as he writ was served and there was non-appearance by the defendant the judge had to sign the judgment merely as an administrative or ministerial step in default of appearance by the defendant. That is why this statutory bar created by sec. 3(1) as a fetter on the Courts jurisdiction would be ignored when the High Court signed the said judgment in default of appearance. In that context both Denning L. J. and Winn L. J. in terms held that as sec. 3 limits the jurisdiction of the Court it was the duty of the Court to see whether the conditions required by the Act were satisfied even though no plea was raised by the tenant. As the Court had not determined whether it was reasonable to make such as order or to give such judgment evicting the tenant and as that was something which sec 3(1) prohibited the judgment in default was held to be a nullity. This being a condition precedent such a forbidden decree could not be passed. Therefore where it is a consent decree in this sense which is inconsistent with the Act or which is forbidden by the Act or where it is an exparte decree in default of appearance the legislature having given a mandate that this shall not be done the decree of eviction whether it is a consent decree or not is in such circumstances held to be a nullity. The ratio of these decisions however must be clearly confined to such consent decrees which Somerwell L. J. rightly defined by saying that these were decrees inconsistent with the Rent Act where the Court could not be said to have been satisfied at all so as to have any foundation for exercising the jurisdiction to pass such a decree either on the consent of the parties or otherwise. As the tenant in such a public statute could not waive protection under the Act the parties consent could not confer jurisdiction on the Court to do something which the legislature said it could not do. That is why such a forbidden decree is held to be a nullity in the true sense and such a plea can be raised even before the executing Court or even in a collateral proceeding.;