TMI Blog1993 (2) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... against the respondent/tenant (hereinafter referred to as the tenant ) inter alia on the grounds contained in Sections 12(3) (a) i.e. on the ground of non-payment of rent for a period of over six months inspite of notice of demand; 13(1) (e) i.e. on the ground of nuisance and 13 (1) (g) i.e. on the ground of bona fide personal use, besides other grounds, of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter called the Act ) The tenant filed his written statement on 29th September, 1967 inter alia pleading that the rent charged was excessive; that he was not in arrears of rent, as alleged; that the landlord did not require the suit premises reasonably and bona fide: that the tenant had a large family; that he did not cause any nuisance, as alleged, and that greater hardship would be caused to the tenant if the decree for possession is passed against him than it would be to the landlord if the decree was not passed. The trial court framed the issues on 30th November, 1967. On 21st March, 1968 the parties presented consent terms before the court for passing decree in those terms. Below the consent terms the court passed an order Parties present and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the plaintiff from the defendant. 4. The defendant shall pay to the plaintiff the amount of sanitation tax and education cess for the period from 1967-68 till the defendant hands over possession or the plaintiff takes possession by executing the decree, and if the defendant does not act accordingly the plaintiff shall recover the same by executing the decree. The plaintiff shall accept the amount of court-fee, refunded in this suit, and the defendant shall have no right thereon. 5. The cost of the parties shall be borne by themselves. 6. Decree may be drawn against the defendant in favour of the plaintiff in the manner stated above. Sd/- Illegible Advocate for the Defendant. Dated 21-3-68. Hiralal Mulchand Doshi Ramanlal Ranchbodlal Barot. Sd/- Illegible Plaintiff s Advocate As the tenant failed to deliver possession of the premises by the due date, as agreed, the landlord filed an application for execution. On receipt of notice of filing of the execution application, the tenant filed objections to the executability of the decree and inter alia contended that an eviction decree was not executable as it was a nullity. It was further contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding arrears of rent is it is, therefore, evident that the fact that these arrears of rent were due, has been admitted in this para 2 of the consent terms. It would, therefore, mean that so far as the fact that the rent was due for a period of over six months, which would entitle the landlord to file a suit for possession under Section 12 of the Act, was impliedly admitted . After observing this the High Court took the view that the condition to be satisfied for attraction of Section 12(3)(a) of the Act is that the tenant had neglected to make payment of rent until the expiration of the period of one month after notice as contemplated under sub-section (2) of Section 12 of the Act. The High Court also. noticed that the notice was given by the landlord to the tenant on 14th February, 1967 claiming the total arrears of rent of ₹ 372 and the notice was served on the tenant on 22nd February, 1967. But it held that there was no material in paras 1 and 2 of the consent terms, read together, to show that the tenant had given up the contention that he had not neglected to pay. Another reason given by the High Court for holding the decree to be nullity on the ground of bona fide pers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tanding anything contained in this Act but subject to the provisions of sections 15 and 15A, a landlord shall be entitled to recover possession of any premises if the Court is satisfied (a) (b) (c) (d) (g)that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of public charitable trust that the premises are required for occupation for the purposes of the trust; or (h)......... (i)............ (k)........... Section 13 (2) of the Act read thus 13 (2) No decree for eviction shall be passed on the ground specified in clause (g) of sub-section (1) if the Court is satisfied that, having regard to all the circumstances of the case including the question whether other reasonable accommodation is available for the landlord or the tenant, greater hardship would be caused by passing the decree than by refusing to pass it. Where the court is satisfied that no hardship would be caused either to the tenant or to the landlord by passing the decree in respect of a part of the premises, the court shall pass the decree in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Civil Procedure was applicable to the proceedings. Rule 3 of the Order 23 reads as followed: Compromise of suit Where it is proved to the satisfaction of 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 wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiffs were able to provide lease of other premises for the tenant. It appears that no evidence had been recorded before the compromise order was passed. When the time for execution came, the tenant raised objections under Section 47 of the Code of Civil Procedure. There being no evidence recorded on the merits before the compromise order was passed, the court had to consider the nature and extent of material on which the Court could be said to have satisfied itself about the existence of the grounds. The court inferred that there was implied admission in the compromise which provided for payment of arrears of rent by the tenant in respect of the first ground and that the satisfaction of the court in the matter may be based on an admission by the tenant. The court observed:- From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. The tenant denied this assertion. Some evidence was adduced. Eventually a decree, on the basis of a compromise, was passed. The tenant agreed to vacate the shop by 31st December, 1970. On his failure to do so the respondent took out execution. The tenant filed objection that the decree was a nullity. Paragraph I of the compromise petition stated that due to the necessity of the plaintiffs for their own business of opening grocery shop decree may be granted to them against the defendants . The plaint also mentioned that the landlord had no reasonable accommodation. The court implied an admission of that fact also, even though the compromise did not mention it. The court rejected the tenants contention, that there was admission of the positive aspect only and not of the negative aspect. The appeal was dismissed. The court also upheld the applicability of Order 23 Rule 3 to suit governed by the special statutes. The Court observed that If the agreement or compromise for eviction of the tenant is found, on the facts of a particular case, to be in violation of a particular Rent Act, the Court would refuse to record the compromise as it will not be lawful agreement. If on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecution is totally unwarranted in this case. The executing court is supposed to have examined the nullity of the decree on the basis of the record on which it is based. It cannot permit the parties to lead fresh evidence. The High Court was also in error in assuming that the landlord in a suit for eviction on the ground of bona fide personal requirement is supposed to have pleaded his own comparative hardship in the plaint itself. Section 13(2) comes into play at the stage when the court is satisfied that the ground contained in clause (g) of sub-section (1) of Section 13 of the Act has been made out. It is at that stage that the Court has to examine the question of comparative hardship. It was thus not necessary to plead in the plaint itself Often the parties at the stage of recording of evidence of bonafide personal requirement also lead evidence as to the comparative hardship of the landlord or the tenant. But such averments are not required to be pleaded in the plaint itself to give cause of action to the landlord to enable him to file a suit for eviction of the tenant on the ground of his bona fide personal requirement. The High Court was not right in going into the quest ..... 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