- (1.) The petition for eviction was on the ground of subletting of the premises by the first respondent Kishori Lal, who was substituted by his widow as the legal representative during the pendency of the proceedings after his death. Before the trial got under way, the landlord referred to a compromise that had been entered into by the landlord with the tenant where his tenant Kishori Lal admitted to surrender of possession of one shop and the other shop which he held also under tenancy as having been sublet by him and that the landlord could take possession in accordance with law. The Rent Controller, who had the compromise memo allowed for a contest by the other respondents 2 and 3 and held that the compromise was true and directed eviction. Two appeals have been filed, one at the instance of alleged sub-tenants and another at the instance of legal representatives of the deceased tenant. It was contended at the instance of the alleged sub-tenants that they were partners in business with the deceased tenant and that there had been no subletting in their favour. The appellate Court did not go into the issue of whether the compromise constituted a final adjustment of rights between parties and proceeded to examine whether the alleged sub-tenants could be treated as such and liable to be evicted. He held that there had been no proof of subletting and the landlord being aggrieved is in revision before this Court.
(2.) The manner of undertaking the adjudication at the trial itself, in my view, is erroneous. If a compromise is brought before the Court, the Court is bound to apply the principle of what is laid down under Order 23 Rule 3 and examine whether the compromise was admitted or not. The said provision reads thus: "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." If the compromise is contested as not genuine or not valid being opposed to law, the Court is required to dispose of the issue regarding compromise at the first stage without adjourning the case and if the Court finds that the compromise is genuine, it is bound to pass an order in terms of the compromise. It will be impermissible for a Court to examine a compromise along with the suit. Such a procedure is opposed to scheme of the procedure laid down under Order 23 Rule 3, which I believe, is also the order to be applied in rent control proceedings.
(3.) When the Rent Controller held that the compromise was genuine, it had no reason to examine whether the other contentions raised by respondents 2 and 3 that they were not sub-tenants. This would arise however in a situation where the sub-tenants contended for an act of collusion of the tenant with the landlord, for, a collusion vitiates any transaction and it was always possible for a party to plead in defence that a collusive transaction cannot be enforced by Court. No attempted collusion was sought to be ever established. The sub-tenants, however, were contending for a new position that they were partners with the deceased tenant. Evidently, this has been a case trotted after the death of the tenant himself by prevailing over the widow of the tenant to resile from the original act of admission by the tenant that he had sublet the premises. I cannot believe that the parties did not know the difference between a transaction of subletting by a tenant and a transaction of a partnership with the others. This can at worst be taken to be an afterthought and not reflective of the state of affairs as brought out in the compromise itself.;