OJHA, J. - (1.) THE dispute giving rise to this Special Appeal relates to a house. It belonged to one Dharam Deo Agarwal. It was let out to Jagdish Saran Rastogi, respondent no. 7. The appellant Ganesh Prasad purchased the house from Sri Dharam Deo Agarwal on 29-12-1970. Thereafter, he made an application under Section 3 of the U. P. (Temporary) Con trol of Rent and Eviction Act, 1947, for permission to file a suit against respon dent No. 7. The necessary permission was granted on 4-5-1971. It was to be opera tive after thirty days. The appellant, however, filed a suit for ejectment of respondent No. 7 on 6- 5-1971. The parties entered into a compromise on 12-5-1971 and the same day a decree for ejectment was passed on its basis. The decree was put in execution on 21-5-1971 and the appellant obtained possession through the Court Amin on 24-5-1971. Thereafter, an objection was filed by Sri Badri Pra sad Tandon, Manager, Thakur Prasad Badri Prasad Junior Girls High School, Moradabad, respondent No. 5, under Order XXI, Rule 100 of the Code of Civil Procedure on the allegation that the house was occupied by the school in its own right and since it was not a party to the decree in execution of which it was dispossessed, it was entitled to be restored to possession over the house. This objection was allowed. Consequent ly the appellant instituted a suit under Order XXI, Rule 103 of the Code of Civil Procedure which is said to be still pend ing. Simultaneously an application has also been made by Ashok Kumar Tan don, Manager of the School under Sec tion 145 of the Code of Criminal Proce dure, on the allegation that the school had been in possession on 24-5-1971 when it was forcibly and wrongfully dispos sessed in execution of a de cree against respondent No. 7 to which it was not a party. On being satis fied that a dispute concerning the house, likely to cause breach of the peace, exist ed, the Magistrate concerned passed a preliminary order on 28-5-1971 and sub sequently made a reference under Sec tion 146 of the Code of Criminal Proce dure to the civil court of competent ju risdiction to decide the question as to which of the parties was in possession over the house on the relevant date. The reference came up before the Munsif, Moradabad. Before the Munsif the case set up on behalf of the appellant was that the school was only a licensee of Jagdish Saran Rastogi, respondent No. 7 and was, therefore, rightly ejected in execution of the decree for ejectment against the said respondent. On this alle gation it was pleaded on behalf of the appellant that the school had not been forcibly and wrongfully dispossessed. Apart from the plea that it had been forcibly and wrongfully dispossessed, it was also pleaded on behalf of the school that the decree in execution of which it was dispossessed was void inasmuch as the house in dispute was covered by the provisions of U. P. (Temporary) Control of Rent and Eviction Act, 1947 and on the date of the decree none of the grounds contemplated by Section 3 of the said Act on the basis of which the suit for ejectment against the tenant could be decreed existed. It was urged that since the permission granted under Sec tion 3 was to be operative after 30 days of 4-5-1971 the date on which the order granting the permission was passed, the decree as passed on 12-5-1971 was illegal. This plea found favour with the Munsif and on the finding that the entire pro ceedings culminating in the compromise decree of 12-5-1971 were null and void, he held that the school was dispossessed forcibly and wrongfully within two months prior to the date of the prelimi nary order. The Munsif recorded the aforesaid finding by his order dated 1-10-1971. On receipt of the finding the Addi tional City Magistrate passed an order on 7-10-1971 to the effect that the house in dispute may be delivered to the school through Badri Prasad, Manager. The ap pellant filed a revision against the order of the Additional City Magistrate which was dismissed by the 1st Civil & Sessions Judge, Moradabad on 24-11-1971. Ag grieved he instituted a writ petition in this Court with a prayer to quash the orders passed in the proceedings. Under Section 145 of the Code of Criminal Pro cedure. The writ petition was dismissed by a learned Single Judge of this Court on 3-12-1973 on the ground that the peti tioner had an alternative remedy by way of a suit for possession and since he had already filed a suit which was pend ing, it was not a fit case for interference under Article 226 of the Constitution. It is against this order that the present spe cial appeal has been filed by Ganesh Prasad.
(2.) IT was urged by learned coun sel for the appellant that the writ peti tion not haying been dismissed summa rily but having been admitted, the learn ed Single Judge was not right in dismiss ing it on the date of the final hearing on the ground that the appellant had an alternative remedy. Reliance was placed on the case of L. Hirday Narain v. In come-tax Officer, Bareilly, AIR 1971 SC 33. Keeping in view the peculiar facts of the instant case, namely, that the ap pellant had already obtained a decree for ejectment of Jagdish Saran Rastogi, respondent No. 7 and his case as set up in proceedings under Section 145 of the Code of Criminal Procedure, was, that the school was a licensee of Jagdish Saran Rastogi and the further fact that the Munsif deciding the reference had come to the conclusion that the school had been forcibly and wrongfully dis possessed only on the ground that the decree passed in favour of the appellant and against Jagdish Saran Rastogi, was null and void, we are of opinion that the point raised in the writ petition before this Court deserved to be decided on merits. The question which falls for consideration in the present case is about the nature of the decree passed in the suit for ejectment referred to above on the basis of compromise between the ap pellant and respondent No. 7. A number of authorities were cited by learned counsel on either side in support of their respective contention in regard to the question as to whether the said decree was a valid decree or was null and void. We, however, do not consider it neces sary to refer to those cases in view of the decision of the Supreme Court in Nagindas Ramdas v. Dalpatram Iccha-ram, AIR 1974 SC 471 which authorita tively lays down the law on the point. In regard to the procedure to be follow ed by an executing court when a ques tion about the invalidity of the decree under execution was raised, it was held:- "Be that as it may, in cases where i 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 de cree, if the decree on the face of it, dis closes some material on the basis of which, the Rent Court could be satisfied with regard to the existence of a statu tory 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 ma terial or jurisdictional fact, the Execut ing Court may look to the original re cord of the trial court to ascertain whe ther there was any material furnishing a foundation for the trial court's jurisdic tion to pass the decree it did. The mo ment it finds that prima facie such ma terial existed, its task is complete. It is not necessary for it to go further and question the presumed or expressed find ing of the trial court on the basis of that material. All that it has to see is whe ther 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." At another place it was held:- "From a conspectus of the cases cit ed at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material be fore 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 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 ad mission made in the compromise agree ment, 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 founda tion 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."
(3.) IN our opinion, the tests laid down above in respect of the powers of an executing court to find out as to whe ther the decree, under execution is a nullity, can be applied in respect of any other court which is called upon to record a similar finding. Applying those tests to the facts of the instant case it would be seen that the decree which was passed itself did not on the face of it disclose any material on the basis of which it may be held that the court pass ing the decree was satisfied with regard to the existence of one of the statutory grounds for eviction contained in Section 3 of the U. P. (Temporary) Control of Rent and Eviction Act, 1947. It had, therefore, to be decided on the basis of the original record whether there was any material furnishing a foundation for passing a decree for ejectment. Copies of the plaint and of the compromise ap plication of the aforesaid suit are on the record of the writ petition. In paragraph 5 of the plaint it was stated that "After weighing the needs of the landlord and the tenant the Rent Con trol and Eviction Officer held that the need of the plaintiff was more genuine and hence he granted permission to sue on 4th May, 1971." The permission granted by the Rent Con trol and Eviction Officer to file a suit for ejectment constitutes a ground for filing such suit under Section 3 of the Act aforesaid. It is true that the allegations made in the plaint are to be substantiat ed by evidence and even for obtaining an ex parte decree the plaintiff has to pro duce evidence to support the allegations made in the plaint. A decree cannot be passed merely on the ground that the defendant has not put in appearance and 'the plaintiff's case is established from the allegations made in the plaint. The posi tion would, however, be different where a written statement or some other docu ment on behalf of the defendant has been filed from which it can be ascertain ed whether a particular allegation made in the plaint stands either expressly or impliedly admitted. If there is such a document which contains an express or implied admission such an admission would, as held in the case of Nagindas, AIR 1954 SC 471 (supra), be fully bind ing on the party that makes it and con stitute a waiver of proof. It can be made the foundation of the rights of the par ties. Applying this test to the instant case it would be seen that in the com promise application respondent No. 7, unequivocally admitted that the appel lant was entitled to a decree for eject ment. It, in our opinion, amounted to, if not an express, certainly an implied ad mission that the facts stated in para graph 5 of the plaint were correct. It is important to note that in the plaint it was not stated that the permission grant ed by the Rent Control and Eviction Officer on 4-5-1971 was to be operative after a month thereof. We are, therefore, of opinion that the allegations made in paragraph 5 of the plaint and the admis sion of its correctness by respondent No. 7, in the manner stated above, conferred jurisdiction on the court seized of the case, to pass a decree for ejectment against respondent No. 7. In our opinion, therefore, the decree passed in trie suit for ejectment was a valid decree and was not null and void. The Munsif in taking a contrary view in his order dated 1-10-1971 in the reference made to him under Section 146 of the Code of Criminal Pro cedure, committed a manifest error of law. This however, is not enough to re cord a finding one way or the other, on the question as to whether the school was forcibly and wrongfully dispossessed from the house in dispute, in execution of the decree passed in the civil suit. It would be forcible .and wrongful if the school was occupying the house of its own. It would not be so, if it was occu pying it on behalf of respondent No.V either as a sub-tenant or as a licensee. It is settled law that in execution of a decree against a tenant-in-chief his sub tenant or licensee can also be ejected. The ejectment of the sub-tenant or lic ensee in such a situation would not be forcible or wrongful. Since the Munsif did not record a finding on the question as to whether the school was in posses sion over the house on the relevant date of its own, as alleged on its behalf or as a licensee of respondent No. 7, as plead ed on behalf of the appellant, it is in our opinion a fit case in which the Mun sif may now be required to record a clear finding on this point so that conse quential orders could be passed by the Magistrate concerned.;