- (1.) THIS is an application in-revision filed by Hakim Kabir Ahmed against an order of the Additional Munsiff No. 1, Jodhpur, City, dated 31st Jan. , 1978, whereby objections of the petitioner under Section 47, Civil Procedure Code relating to execution of the decree for his eviction from the suit premises were dismissed and the decree was held to be executable.
(2.) THE relevant facts giving rise to this revision-application may be briefly stated as follows:--Mst. Bhanwari Bai instituted a suit for eviction against Hakim Kabir ahmed from her shop in the court of the Munsiff, Jodhpur City, on the ground that the premises were required reasonably and bona fide by her for the use or occupation of herself. The learned Munsiff decreed the suit for eviction against the petitioner. On 1st and 2nd appeals by the petitioner, the judgment, and decree passed by the learned munsiff were upheld and confirmed. The petitioner then preferred an appeal in the Supreme Court of India against the judgment and decree of the High Court. The appeal was admitted for hearing by the supreme Court. Later on, in the course of arguments of the appeal before the Supreme Court, the parties thereto amicably settled their dispute and prayed to the Supreme Court for decision of the appeal in accordance with the terms of the settlement. The Supreme Court was pleased to pass an order on 17th Nov. , 1976, which is set out below in extenso:- "at the hearing of these appeals there has been a settlement between the parties and it has been agreed that the respondent would not execute the orders for ejectment of appellants till three months from today. It has also been agreed that the respondent would deposit in each of the three cases in the trial court Rupees 3,000/-, reduced by the amount of arrears of rent due from the appellant in question within one month from today. The appellants undertake in that event to vacate the shops in their respective possession immediately on the expiry of three months from today. The appellants would be entitled to withdraw the amounts deposited by the respondent in their respective cases immediately after vacating the shops. If the respondent fails to deposit in any of these cases the amount of Rs. 3000/-, reduced by the amount of arrears of rent due from the appellant in that case, the said appellant would not be bound to vacate the shop in his occupation within three months from today, but would be entitled to vacate it immediately after two months of the intimation of the deposit of that amount in the trial Court. The appellant in that event would also after vacating the shop be entitled to withdraw that amount from the trial Court. An undertaking is given on behalf of the appellants that after the amounts mentioned above are deposited by the respondent, the appellants would vacate the shops in question and hand over the possession thereof to the respondent without any obstruction. The appeals are disposed of in the above terms. The parties shall bear their own costs throughout. " After the decision given by the Supreme Court, the decree-holder non petitioner proceeded to execute her decree in the lower court, i. e. the court of the Munsiff, Jodhpur City, Hakim Kabir Ahmed judgment-debtor raised an objection to the execution of the decree on the ground that the provisions of Section 14 (2) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter referred to as the Act, as amended by the Rajasthan Premises (Control of Rent and Eviction) (Amendment) Ordinance of 1975 (now Amending act No. 14 of 1976) which have retrospective effect from 29th September, 1975, prohibited passing of decrees for eviction on the ground set forth in clause (h) of Sub-section (1) of Section 13 of the Act, unless the Court was satisfied that greater hardship would be caused by passing the decree for eviction than by refusing to pass it. The above objection to the execution of the decree was based on the change in law that had occurred during the pendency of the appeal before the Supreme Court. The petitioner's contention in the lower court was that prior to the Amendment Ordinance of 1975, if the landlord required the premises reasonably and bona fide for the use and occupation of himself or his family, he could obtain a decree for eviction of the tenant, but, after coming into force of the Amendment Ordinance and now the Amending act (14 of 1976), the Court is required to further examine the question of comparative greater hardship between the landlord and the tenant before passing a decree for eviction. According to the petitioner, the Supreme Court gave its decision on his appeal as per terms of the settlement between the parties without examining the question of comparative greater hardship between the landlord and the tenant and so the decree for eviction, being a nullity, is not executable. The learned Munsiff overruled the above objection by his order dated 31st January, 1978 after hearing the learned counsel for the parties. As against this order, petitioner has come up in revision to this Court as stated above.
(3.) I have carefully gone through the record and heard the learned counsel for the parties. It has been contended before me by the learned counsel for the petitioner that the Supreme Court had proceeded alone on the basis of the compromise entered into by the parties before it without satisfying itself as to the existence of the ground of eviction mentioned in Clause (h) of. Section 13 (1) read with Sub-section (2) of Section 14 of the Act as amended by Ordinance of 1975 (now Act No. 14 of 1976) and, therefore, the decree sought to be executed against the petitioner must be declared to be a nullity. In support of his above contention, the learned counsel for the petitioner placed reliance on ferozi Lal v. Man Mal. AIR 1970 SC 794; Kaushalya Devi v. K. L. Bonsai, AIR 1970 SC 838; K. K. Chari v. R. M. Sheshadri AIR 1973 SC 1311, Roshan Lal v. Madan Lal, AIR 1975 SC 2130, Smt. Nai Bahu v. Lala Ramnara-yan, AIR 1978 sc 227 and Rahrnan v. Ram Chand, AIR 1978 SC 413. The learned counsel for the non-petitioner, on the other hand, urged that the order of the Supreme court based on the compromise of the parties is not void, because before passing an order in terms of the agreement of the parties the Supreme Court satisfied itself about the existence of the ground on which the ground of eviction was based and it acted on the admission of the petitioner and decided the appeal in favour of Bhanwari Bai upholding the decrees for eviction passed by the courts below. In support of his above contention, the learned counsel for the non-petitioner relied upon Nagindasv. Dalpatram, AIR 1974 SC 471; P. Raju v. Bala Krishna, AIR 1978 Mad 62 and Muni Lal v. Prescribed Authority, AIR 1978 SC 29.;