Judgment:
V.S. Kotwal, J.
1. The validity and legality of a decree passed on a compromise is the main question that is being posed in this proceeding which had invited a controversy of some allied matters which obviously has expanded the field for adjudication and answer to that question. The suit premises are located on Rajaram Road within the city limits of Kolhapur. The respondents herein are the landlords while the petitioner society was inducted as the tenant in some portion of the building on certain rental basis. The Society fell in arrears from September 1973. An event occurred in between when some portion in possession of the Society was surrended to the landlord with the proportionate scaling down of the rent at Rs. 2,300/- per month. Thereafter also some further portion was surrended by the tenant and the rent was reduced to Rs. 1,600/- per month which finally was further reduced to Rs. 900/- per month as the tenant surrendered additional areas. Since the Society did not pay all the dues, the landlords preferred Regular Civil Suit No. 108 of 1978 in the Civil Court at Kolhapur and the relief restricted only to the recovery of the amount of Rs. 32,155/-, the spilt up being that originally Rs. 61,155/- were due out of which adjustment was made in respect of Rs. 2,900/-.
2. Before the petitioner Society could enter in its defence the parties arrived at a settlement on 18th April, 1978 under which the petitioner had agreed to pay the said dues, though instalments were allotted for Rs. 1,000/- per month whereas the last instalment was for Rs. 1,200/-. It is stipulated that in case of any two defaults in the payment of the said amounts, the plaintiffs would be entitled to recover the full amount out of the asserts and the estate of the society and a further stipulation was added that in that event the plaintiff would also be entitled to get the possession of the premises. It may be reiterated once again that the suit was admittedly not for possession but restricted it still to recovery the amount.
3. On the footing of this compromise which was accepted by the parties and which was also accepted by the Court, a decree in all those terms was recorded. The chapter ostensibly was closed but not in reality.
4. Since the petitioner Society committed two defaults, the plaintiffs levied execution of the said compromise decree. In the execution proceedings as objection was raised that the decree, in so far as it relates to the possession of the premises, is a nullity for several reasons and therefore was not executable. The prayer for dismissal of the Darkhast on that footing was negatived by the executing Court against which this petition is filed by the petitioner Society under Article 227 of the Constitution of India.
5. The facts relating to the factual structure are enough except the various terms of the compromise which would be reproduced at the proper point of time. Shri Bhimrao Naik, learned Counsel for the petitioner Society canvassing multi fold contentions, submitted that the decree relating to the question of possession is a nullity on various grounds such as, non-application of mind by the Court passing the decree, that, there was no satisfaction by the said Court about the validity of the compromise and also about the existence of a ground for eviction which could be permissible under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ('the Rent Act'). He also submitted that such a decree should not have been passed even under the compromise in a suit in which no relief for possession even inferentially was asked for. As the other plank, he contended that the tenancy continued and it is not as it that by way of concession the plaintiffs were allowed to stay in the premises whereafter they were obliged to vacate the same. He also submitted that the terms of compromise are completely misconstrued. All these contentions are countered by Shri K.J. Abhyankar, the learned Councel for the respondents. According to him, though conceding that no relief for possession was incorporated in the plaint, still by necessary implications a ground for possession has been reflected mainly under section 12(3)(a) and even under section 12(3)(b) of the Rent Act and that is carried forward in the terms of the compromise, and therefore, notwithstanding there being no specific relief for possession having been claimed, still a ground for eviction as permissible under section 12 of the Rent Act has been included in the suit itself and therefore, the decree cannot be said to be a nullity. He also submitted that on the facts of this case and the recitals in the compromise, the satisfaction of the Trial Court can even be presumed. As regards the other line of contentions raised on behalf of the petitioner Society, Shri Abhyankar countered by submitting that the petitioner society had accepted the claim of the plaintiff even regarding the implied plea for eviction and further sheerly as a concession that it was stipulated that he has to vacate in case of two defaults so that there was no question of continuation of the tenancy and the absence of the clause that the petitioner Society was to continue under any fresh agreement to stay in the premises is a pointer in that behalf.
6. Both sides endeavoured to place reliance on certain ratios available in that field. Since the controversy has assumed quite a substantial dimension, it would be worthwhile to refer to a few of the decisions in that behalf to understand the trust of the rival contentions and to resolve the same.
7. In Bahadur Singh and another v. Muni Subrat Dass and another : [1969]2SCR432 , the facts suggested that the workshop conducted by the tenant was creating nuisance which was objected to by the landlord's son and by an understanding between the tenants and the landlord's son, the dispute was referred to an arbitrator who made an award when certain terms were settled regarding the working of the workshop which was to be removed after some period and the tenants were to hand over possession to the landlord. The award was filed in the Court and a decree was passed on that basis. The tenants objected to the validity of the decree, amongst other grounds, contending that it was in contravention of the Delhi and Ajmer Rent Control Act. It was held that the decree for delivery of possession was a nullity since it was contrary to the provisions contained in the said Rent Control Act and it was against the prohibition under the said Act as no ground for possession existed, and it was held that in a proceeding which was not for possession and the landlord was not a party and the Court could not have satisfied about the existence of any ground for eviction.
8. In Ferozi Lal Jain v. Man Mal and another : AIR1970SC794 , eviction suit was brought on the ground of illegally subletting under section 13 of the Delhi and Ajmer Rent Control Act, wherein the parties compromised under which the tenant was given four years time to deliver possession of the premises and since he did not honour the decree execution was levied which was objected mainly on the ground that the decree was in contravention of section 13 of the said Act and thus was a nullity. This objection was upheld when it was observed that such a decree could have been passed only if the Court was satisfied about the existence of any ground described under section 13(1) of the said Act which event only could give jurisdiction to the Court, and it was further indicated that neither the order by itself nor any material is enough to show that the Court was so satisfied, but it proceeded entirely on the compromise.
9. In Smt. Kaushalya Devi and others v. K.L. Bansal : [1969]2SCR1048 , an ejectment suit was filed on three counts, viz., the bona fide requirement of the landlady, the tenant being in possession of other premises and the tenant having defaulted in payment of the rent. The parties entered into a compromise under which the defendant agreed to suffer the decree for possession though it was stipulated that the decree would be executable after a particular period upto which the defendant was entitled to stay. On that basis the decree was passed which was challenged in the execution proceedings, more or less on the same ground as was canvassed in Ferozi Lal Jain's case, cited supra and practically the same provisions of Delhi and Ajmer Rent Control Act were the subject matter.
10. The matter was further reviewed by the Supreme Court in K.K. Chari v. R.H. Seshadri : [1973]3SCR691 . After certain development qua the said property, ultimately, ejectment suit was filed by the landlord asking for possession, one of the ground being for bona fide personal requirement and also because the landlord was under the rigour of an eviction decree filed in another suit in respect of the premises where he was residing as a tenant. This suit was resisted by the tenant on various ground and affidavits and counter affidavits as also several documents were filed and actually some evidence was recorded and it is thereafter that the parties entered into a compromise under which the tenant withdrew his defence and submitted to the decree for eviction but was given time to vacate which he had undertaken. On that basis the decree in terms of compromise was passed. Practically on the same grounds the execution was opposed by the tenant. The High Court had upheld the ground about the Court having not being satisfied about the bona fide requirement of the landlord, and it is thereafter that the Supreme Court reversed it and upheld the validity of the decree. Certain observation were made after taking survey of the earlier decisions regarding the satisfaction of the Court about the existence of a ground for eviction and also regarding the necessity or otherwise to reflect that satisfaction in the order itself and the ratio in the earlier decisions though relied upon appears to have been modified to some extent though keeping intact the basis foundation about the existence of a ground for eviction as prescribed under the rent statute and the satisfaction of the Court in that behalf. A question was posed as to how exactly that satisfaction is to be expressed by the Court or gather from the material, and it was answered in favour of the validity of the decree which was not clarified in the earlier decisions. It was enunciated that the correct position would be that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact viz., existence of one or more of the conditions mentioned in section 10 of the said Rent Control Act were shown to have existed when the Court made the order. It was reitered that satisfaction of the Court was no doubt a prerequisite for the order of eviction but it was clarified that such satisfaction need not be by manifestation borne out by a judicial finding and if at some stage the Court was called to apply its mind to the question and there was sufficient material before it, it is possible to postulate that the Court was satisfied about the ground on which the order of eviction was based. It was also indicated about the relevance of the tenant admitting the landlord's claim for possession resting on one or other of the statutory ground then it is open for the Court to act on that admission and make an order of possession. It was indicated that each case will have to depend on its own fact to point out whether there was any such material in support of such satisfaction and about the existence of a ground for eviction. On the other count it was held, that once it is accepted that the question of decree being void and thus not executable on any ground available in law can be raised before the executing Court then it is needless to say that the executing Court will have to adjudicate upon that plea and for that purpose it can consider the relevant material. Alagiriswami, J., in his separate but concurring judgment added some further observations though in consonance with the main judgment. It was however indicated that once it is established that a statutory ground for eviction did exist for which possession was sought for and when the tenant has clearly admitted the landlord's claim for possession on any such ground permissible under the Act withdrawing his defence then it is futile to hold that the Rent Controller must again embark upon an enquiry regarding the requirement of the landlord being bona fide and adjudicate upon the same. The applicability of the provisions of Order 23, Rule 3 of the Code of Civil Procedure has been accepted to such a proceeding of a compromise decree. It was also indicated by the learned Judge that if the compromise decree is based on the ground on which the landlord could claim a decree for eviction, then it is within the jurisdiction and competence of that Court a pass a decree for possession. It was further indicated, relying on a decision of the Punjab High Court in , that in a suit for ejectment a decree for possession can be passed under a compromise and the landlord is entitled on any of the statutory grounds if the landlord makes some representation within the terms of the statute to the tenant and which is one of the ingredients of a ground for eviction and the tenant accepts that representation and submits to that order, then also a decree for eviction can be passed. It should be noted with advantage that the various observations made in this decision are resting on the glaring feature that even before the parties compromise the matter there was over whelming material in the shape of affidavits, documents and oral evidence on record to suggest quite satisfactorily that the landlord has been pressing his claim for possession right from the stage of issuance of notice and has made out a ground in that behalf through the documents and the substantive evidence and it is in that context that it has been said that apart from the compromise there was adequate material which could have satisfied the Court about the existence of a ground for eviction. This aspect in that behalf is quite relevant.
11. In Nagindas Ramdas v. Dalpatram Ichharam and others : [1974]2SCR544 , a decree for eviction on the ground of non-payment of rent for more than one years and bona fide requirement of the landlord was filed in which the parties arrived at a compromise under which the tenant agreed to vacate the premises after a particular period and the relationship of landlord and tenant between the parties had come to an end and which is not to be created by the compromise but the defendant was merely given time to vacate by way of grace and in case of failure the decree to be executed. Execution was levied on the failure where also the same objection was taken when all the earlier principles were reiterated and in the analysis it was observed that from a conspectus of various cases 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 would be valid, and 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 admission made in the compromise.
12. In Roshan Lal v. Madan Lal A.I.R. 1973 S.C. 2130, similar question was answered in the similar manner. Possession was sought for under section 12(1)(f) of the Madhya Pradesh Accommodation Control Act, in which a compromise was arrived at on the basis of which eviction decree passed. The tenant had agreed to vacate the shop premises by a particular period and on his failure the decree was to be executed. He dishonoured the undertaking and contested the execution proceeding more or less on the same ground that the decree was a nullity. Therein also the resume of all the earlier decisions was taken and it was indicated that in order to get a decree for eviction, the suitor must make out a case for eviction in accordance with the provisions of the Act. When the suit is contested the issue goes to trial and the Court would pass a decree only if it is satisfied on evidence that a ground for possession in accordance with the requirement of the statute has been established. If the parties compromise, then the Court, before passing a decree, has to see whether the compromise is not in violation of the requirement of law and the compromise must indicate either on its face or in the background of other material that the tenant expressly or implied agreed to suffer a decree for eviction because the landlord in that case is entitled to have such a decree under law or otherwise, the parties cannot be permitted to have a tenant's eviction merely by such an agreement. If the Court therefore, is satisfied on the terms of the compromise and in the context of the pleading and other material, about the existence of the ground for eviction and the agreement being lawful, then the decree can follow for, the provisions of Order 23, Rule 3 of the Code of Civil Procedure were accepted as applicable. In Smt. Nai Babu v. Lala Ramnarayan and others : [1978]1SCR723 , in a suit for eviction under a compromise decree the tenant was given five years' time to vacate the premises and since he did not vacate, Darkhast was filed which was challenged more or less on the same grounds. In the compromise the tenant had admitted the full claim of the plaintiff for possession and arrears of rent. The right of the executing Court to examine the relevant material about the existence of a statutory ground for eviction was accepted. The question about the non availability of such a ground under section 4 of the Madhya Pradesh Accommodation Control Act was considered in the context of the claim that the premises were required for residence and business purpose when initially the user was only for non-residential purpose, the distinction in the provisions of the Delhi Rent Control Act was examined in that context and it was held that such claim for possession was permissible under the said Madhya Pradesh Accommodation Control Act. The earlier principles about the satisfaction of the Court about the existence of such a ground are reiterated.
13. In Suleman Noormohamed v. Umarbhai Janubhai A.I.R. 1978 S.C. 932, eviction was sought on the ground of non-payment of rent and the landlord's bona fide personal requirement of the premises which was in accordance with the Bombay Rent Act. The matter was compromised under which the tenant was to hand over premises after a particular period and on his failure when execution was levied, it was challenged on the ground that the decree being nullity. All these cases which are referred to have been once again considered and practically the same principle is enunciated. It was indicated that it may not be strictly necessary that the order itself should in express terms suggest the satisfaction of the Court about the existence of a ground for eviction but it can be assumed on the basis of the material that is available on record, if, of course, the same material is adequate to reach that conclusion and it is on facts and as pleaded in the plaint as also in the compromise that it was held that the decree for possession could have been passed but, under the compromise the tenant agreed to suffer the decree mainly because he gained enough time to vacate the premises. The challenge to the validity of the decree was therefore negatived. A few more decisions are cited which will fall in the second category relating to the question as to whether the terms of compromise in a given case would suggest a mere concession having been given to the tenant in vacating the premises or whether the tenancy continued or a new tenancy agreement is brought into existence and it touches the second plank of the contention raised on behalf of the petitioner which is already indicated.
14. A short survey of many of the decisions available in that field is taken by the learned Single Judge of this Court, R.A. Jahagirdar, J., in Prithvichand Ramchand Sablock v. S.Y. Shinde, : AIR1985Bom297 . A similar question was agitated and was finally adjudicated. In Gajanan Govind Pathak v. Pandurang Keshav Puntambekar 53 Bom.L.R. 100, the plaintiff had filed a suit to recover possession on the ground of arrears of rent wherein a compromise decree was passed suggesting that the defendant was to pay certain amount by a particular date, and if it was so done, he was to continue his stay in the premises as a tenant on previous terms. In case, however, of failure the plaintiff was authorised to take possession of the property through the process of Court. The agreed term that if the amount as prescribed was paid by the defendant, then he should continue as a tenant on previous terms was construed to spell out the continuation of the tenancy of the defendant and therefore it was further observed that if the defendant failed to make payment as per the consent decree he could be released against forfeiture by the Court on his making payment. The facts and the ratio based on it has much relevance to the facts of the instant case.
15. In Konchada Pammaurthy Subudhi v. Gopinath Naik and others : [1967]2SCR559 , which is more relied upon on behalf of the respondents, a compromise decree was passed enabling the decree holder to execute the decree, if the tenant failed to vacate the premises by a particular time, and a stipulation was added that the decree holder could execute that decree even earlier if the tenant failed to pay the rent for three consecutive months. It was held that such a decree did not create or continue the tenancy but the time given to the tenant by postponement of the date of the execution of the decree is merely by way of concession and the failure on the part of the tenant to comply with it would entitle the plaintiff to execute the decree and recover possession, and by the added clause regarding three defaults the only effect that was achieved was that the execution of the decree which normally could have been after the said period mentioned in the other clause, was accelerated so that the plaintiff need not wait till the original period was over. This, therefore, did not create or continue the tenancy but was obviously out and out a concession and the clause of three defaults did not change the position because in any event the tenant had no option but to vacate the premises, the only question remained about the point of time when the decree can be executed. Even if there were no three default, the tenant was under the obligation to vacate the premises, though, after the stipulated period fixed under the compromise and could not raise the defence that since he has not committed any such three defaults, he could continue in the premises even after the further period fixed for vacating was over. Construction contrary to this as sought to be placed by Shri Abhyankar the learned Counsel on the ratio of this case obviously is unsustainable.
16. In Bai Chanchal v. S. Jalaluddin : [1971]2SCR171 , which was more or less on similar pattern of Ramamurthy's case, therein, the tenant under the compromise was under an obligation in any event to vacate the premises after a particular period but in case of default of payment of mesne profits, he would be required to deliver possession forthwith and therefore, it was not stipulated that if there was no such default, then he will continue to stay in the premises even after the specified date. This was also therefore, treated as a mere concession.
17. In Smt. Nai Babu v. Lala Ramnarayan and others : [1978]1SCR723 , under the compromise it was agreed that the plaintiff was to get possession of some part of the premises immediately while the other part was to be vacated by the tenant after a fixed period. Therein also it was held that the said stipulation of giving time to vacate was merely by way of concession. It is true that in this case and other cases also there was no provision in specific terms for the defendant to continue if he had paid the amount and it becomes clear that in most of these cases the decree was executable and it was not made unexecutable on the fulfilment of certain conditions.
18. In the case before Jahagirdar, J., the consent terms in an eviction suit were to the effect that the possession was to be given by a particular time and in case of its failure, the plaintiff was to execute the decree for possession. It was, however, specifically incorporated in the consent terms of the decree that the defendant was given the concession that if he will pay the entire amount as mentioned in the decree by the time of which he was required to vacate the premises, then there would be no execution of the decree. The tenant deposited only partial amount on which basis execution was raised which was opposed and the learned Single Judge held that the said clause was penal in nature and relief against forfeiture should be given on that account and Darkhast was dismissed on that ground by the appellate Court and the High Court endorsed that finding. The learned Single Judge further observed that the question as to whether the consent decree creates a new tenancy or continues the existing one will depend upon the language of the decree, but it was further observed that it is not the language used in the compromise which is relevant but what the parties intended to do is more germane. On analysis, the learned Judge observed that since the defendant was allowed to continue if he fulfilled the condition, the relationship of landlord and tenant has not come to an end. If, however, in a case if merely time had been given to vacate the premises whereafter there is no option to the tenant but to vacate, then it could be said that giving of the time amounted merely to a concession and not creation of a tenancy or continuance of the tenancy. On facts it was held that it was not merely a case of giving time but the option was given to the tenant to pay the amount and to continue in the premises as the tenant and what is continued beyond the stipulated period is the possession of the premises from the date of the decree till that period and if payment is made by the said time the possession to continue from the date of the decree itself till it is brought to an end in accordance with law. The learned Single Judge incorporated certain deductions from these ratios which are on the same pattern as indicated herein above, The said ratio, therefore, as enunciated by the learned Single Judge, with respect, with which I am in agreement would serve as a relevant guide line to the facts of the instant case also.
19. To complete the discussion on all the issues reference to a decision of the Gujarat High Court in Hajam Hussein Dadu and another v. Bai Kunverbai Prabhudas and another : (1971)12GLR610 , would not be out of place. It has been observed therein that if in a suit for ejectment under the consent terms a concession is given to the tenant to remain in possession with a default clause and the failure on the part of the tenant, such a decree cannot be said to be a penal decree. If, however the decree allowed the tenant to continue in possession subject to a forfeiture clause, it would carry the implied term giving power to the Court to relieve against the forfeiture and the same would be the position even though the consent terms did not create a fresh lease and it allows the tenant to continue possession indefinitely so long as he paid the rent. In such a case, if the consent terms provide that the tenant's right would be forfeited on his committing default at any time in payment of the rent, the landlord will be clearly getting a larger relief for possession when the default would be committed. It is significantly observed that what was originally the money decree with a stipulation that the tenant shall continue to remain in possession and merely provided the consequence of default would ripen into a decree for possession, and therefore, 'the smaller money decree gets enlarged into a larger decree of possession on the default of the tenant', and such a clause would be clearly 'a penal clause'. Such case would not contain any concession as such as could be agreed in other cases for a decree of possession straight away though giving time to the tenant. The distinction was once again brought on the surface between such two cases when it was observed that in the first case the compromise terms clearly involve from the outset a decree for possession though only a concession by giving time to the tenant is incorporated, this would be in contrast to the other type of cases where the intention of the parties is merely to secure payment of some of money and in case of the default in such case, relief could be given to the tenant against such a penalty and the landlord can even be compensated by payment of interest or otherwise. It was further indicated that if the protection of the tenant under the Rent Control Act is thus sought to be done away with by such a penal clause which immediately results in a decree for possession on his default in paying the rent, such a clause would be by way of penal stipulation, and the entire right to continue in possession which is first granted and which carried the status of a statutory tenant would stand forfeited when the default would take place and the intention of the parties in providing such penalty is obviously to secure payment. The provisions of section 74 of the Contract Act would be attracted and it was held that even by consent the Court under the Rent Act could not pass such a decree whereby a statutory tenant renounced his protection under the Act. It was further indicated that the stipulation which did not create at the outset any decree for eviction would clearly create the relationship of a statutory tenant whose protection cannot be wiped out by such a penal stipulation, and thus, the landlord would not be entitled to a larger decree of eviction on the future date which would be against the mandate of the concerned Rent Control Act.
20. It may not be necessary to carve out over again the principles enunciated in all these ratios in both the categories though it would suffice to observe that those contained in their fold several relevant aspects such as existence of a valid ground for eviction as permissible under the Rent Control Statute and not travelling beyond that frame work, satisfaction of the Court in that behalf, the mode of reflection of such satisfaction, permissibility of the executing Court to consider that feature, the nature and the impact of an admission of a party in the compromise, the construction of the terms of compromise, the distinction between a case serving only as a concession and creation or continuation of tenancy etc.
21. Normally a decree for possession passed under a compromise would occur in a suit where possession is asked for by the plaintiff and therefore there is much substance in the contention raised by Shri Naik, learned Counsel for the petitioner, that, if it is otherwise, and the suit is not for possession at all, then parties agreeing to give possession under a compromise and decree for possession based on such compromise would not be permissible. The observations of Alagiriswami, J., in K.K. Chari's case (supra) to some extent would be relevant in that context as---
'Of course, a compromise can be valid only if it is in accordance with the Act, i.e. only if the landlord has asked for possession of the building on one of the grounds laid down in the Act. For instance, a landlord merely on the ground that he is the owner of the building cannot come to the Rent Controller and ask for possession of the property and the Rent Controller cannot pass a valid order merely because the tenant submits to an order of eviction. Bhadur Singh's case : [1969]2SCR432 , is an instance in point. In that case the landlord did not even apply for eviction. But where the landlord specifically asks for possession on any one of the grounds on the basis of which he is entitled to ask for possession under the provisions of the Act there will be no objection to the tenant either submitting to an order of eviction or entering into a compromise submitting to an order of eviction.
xx xx xx xx xx xx xxxx xx xx xx xx xx xxThere is a good deal of force in the submission of the learned Counsel for the landlord that enough material and evidence had come on the record to satisfy the Court as well as the tenant that the ground on which ejectment had been sought would be ultimately establised and when the tenant entered into the compromise, it was implicit in the aforesaid circumstances that he was submitting the correctness of the grounds which had been taken for his ejectment.'
These observations, to some extent atleast, would tend to support the said plea that basically the plaintiff landlord moving the Court should ask for the relief of possession and it is thereafter that it should be considered whether his claim is based on any of the grounds as permissible under the Rent Control Act and it is only thereafter that the stage would be reached to consider and examine the compromise and to find out whether a ground for eviction exists or not, more so, since the search to locate any permissible ground for eviction would normally correlate with the basic relief for possession in the suit itself or otherwise such as exercise may be in vacuum. This is equally so, since the plea in the compromise is referable to the plaint itself and the so called admission of the tenant in the compromise admitting the plaintiff's claim would equally be referable to the claim in the plaint and further, such an admission in the compromise in a given case may not necessarily be one accepting the obligation to vacate the premises. As suggested in the said observations as an illustration that the landlord cannot go to the Rent Controller and ask for possession on the only ground that he is the owner of the building which itself impliedly suggests asking of the relief for possession. So also, such a suit either on contest or even without a contest entail in a decree for possession if no such relief is asked for. Similarly, the other effect would be that the plaintiff going to the Court without asking for relief for possession would come out of the Court with a decree having the effect of giving possession which otherwise could not have been obtained in the suit itself. No doubt, it is canvassed to the contrary on behalf of the respondents even on the basis of the said observations that the main and the uppermost anxiety should only be to find out whether a ground for eviction as prescribed under the Act exists and is made out or not which could be irrespective of the absence of the relief in the suit, so that there should be a suit where relief for possession is not actually claimed though a permissible ground for eviction would still exist on the basis of which relief for possession could have been decreed if it was so asked for and as such the question of the nature of the relief would be secondary but the one relating to the existence or otherwise of a permissible ground for eviction would be primary, as contended by the learned Counsel for the respondent. In view of these rival propositions in the context of the thrust and the various features as suggested by Shri Naik and their apparent plausibility to put it in the minimum, the contention advanced by Shri Abhyankar that though the suit may not be for possession nor any such relief is asked for, still, the Court can examine if inferentially atleast a permissible ground for eviction could be spelt out from the recitals of the Plaint and correspondingly of the compromise and consequently the existence of any such ground would itself be enough, is open to a serious debate. To recapitulate, in the instant case admittedly the suit is not for eviction at all; even the notice which preceded asked only for the rental arrears and the suit also restricted to the monetary claim and it would be apparent from the tenor of the compromise that predominantly that also focussed on the monetary claim. However, even assuming though with obvious reservations, in favour of permissibility of the suit basically not being required necessarily for possession though there does exist atleast inferentially some valid and lawful ground for possession as permissible under the Act as canvassed on behalf of the respondents, still, its absence and restricting only to the monetary claim would furnish a formidable clue atleast to find out the real intention of the parties which may even dilute the effect of any reference in the compromise to the possession of the premises because there was no intention whatsoever at any stage on the part of the landlord to ask for possession and on the part of the tenant to hand over possession. Therefore, in the minimum and without undermining the thrust of Shri Naik's contention that basically the suit should be one for possession and even assuming otherwise about the permissibility of a suit as suggested by Shri Abhyankar, still, that circumstances can be taken into account to find out the real intention of the parties so that apart from the gradations, the impact of the suit basically not being for possession, cannot be completely wiped out which would continue to be relevant atleast in some field which impact has all the potentials to tilt the balance in a given case in favour of not accepting the compromise, which intention in turn could further serve as a guide line to construe the compromise and also to reach the conclusion whether the Court would have been satisfied in passing a decree for possession. However, in the instant case, this aspect and the controversy about the nature of the suit may not change the complexion in the face of other clinching aspect about the nature of the compromise in the context of the various ratios available in the second category of cases already discussed about the continuation of tenancy and not merely there being any concession as such. In the light of these settled principles, it would be proper and equally necessary to examine and construe the compromise in question in the instant case.
22. Under the first clause the defendant admitted the plaintiff's claim. The defendant further admittedly that the suit premises were taken on rent as per second clause. Under the third clause the defendant admitted the plaintiff's claim of Rs. 32,155/- being the rent upto end of January 1978 and the notice charges. Under Clause 4 defendant suggested that it was not possible to pay the said amount in lumpsum. Rs. 31,200/- was the amount due upto end of December 1977 out of which Rs. 15,000/- are agreed to be paid by end of April 1978. Out of that after the filing of the suit till that day Rs. 9,000/- are paid and thus Rs. 6,000/- being the balance out of that amount is to be paid to the plaintiff by end of April 1978. If the defendant fails to pay that amount then the plaintiff would be entitled to execute the decree and recover the said amount even out of the assets and estate of the society Clause 5 has created much of controversy. It recites that the balance of Rs. 16,200/- out of Rs. 21,200/- after payment of Rs. 15,000/- is to be paid by 15 monthly instalments of Rs. 1,000/- each with Rs. 1,200/- as the sixteenth instalment and that is how the whole amount is to be paid.
23. The first instalment is to be paid by end of May 1978 whereafter the further instalments are to be paid every month without fault. The further recital in this clause, however, is relevant because the same generates the entire controversy. It reads ---
'In case of default in any two instalments committed by the defendant, then at that time the plaintiff can recover the entire amount as due at that time under the decree even out of the assets and estate of the society and can also take the possession of the premises'.
The sixth clause mentions that amount due for January 1978 has been paid. The seventh clause refers to the notice charges of Rs. 55/- which are to be paid by end of May 1978. The last clause stipulates that the parties to bear their own costs and the plaintiff would be entitled to the refund of the Court fees. It then recites that the parties have agreed on these terms and a decree in consonance thereof should be passed. This is dated 15th of April, 1978.
24. On the parallel track, it is worth referring to the nature of the plaint. It is for recovery of Rs. 32, 155/-. Various paragraphs refer to as to how the premises have been rented out to the society on a particular rental and how the initial rent was reduced on account of certain event of the defendant surrendering some portion, and then it recites that the defendants are in possession of some portion on the monthly rental of Rs. 200/- and the defendant had to pay the amount of rent from 1st of July, 1977. Paragraph 5 of the plaint specifically and unmistakably mentions that this amount was demanded from the defendant and on their failure, it was again demanded under the notice dated 6th of January, 1978 whereafter also the amounts are not paid and 'hence the plaintiffs are obliged to file this suit against the society for recovering the arrears of rent'. The cause of action is shown as, September 1975 for the rent and on every 10th day of a month for the subsequent rent. Paragraph 7 gives the spilt up of the rent due from September 1975 being Rs. 61,155/- out of which Rs. 2900/- were adjusted as the Society spent that amount for certain repairs. The amount of Rs. 32,155/- was thus treated as the balance due which was accepted as the amount for the purpose of Court fees and jurisdiction, and on which amount Court fees were paid. Paragraph 9 contains the main relief as the plaintiffs pray that Rs. 32,155/- as demanded in paragraph 7 of the plaint be paid to the plaintiff's from the defendant society and out of the society's assets.
25. Shri Abhyankar, learned Counsel strenuously endeavoured to submit that though conceding that the suit is not for possession as no relief in that behalf is claimed, and further conceding that only monetary claim is included in the suit, still the tenor of the plaint and also of the compromise would suggest that a ground for eviction under section 12(3)(a) or even under section 12(3)(b) has been atleast inferentially made out as, according to him, the defendants are in arrears of rent for more than six months when no dispute is raised nor the amount is paid within one month after the notice, and therefore, the plaintiffs could have been entitled to get the decree for eviction under section 12(3)(a) of the Rent Act. He placed much reliance on Clause 3 of the compromise in that behalf to support that contention, and according to him the recital in Clause 5 which is very much relied upon by him qua reference to possession in case of two defaults, would in a composite form infer existence of a ground for eviction and agreement of the parties to get possession in case of two defaults and according to him, this is permissible under the Rent Act. He further submitted that the suit not being specifically one for eviction would not make any difference in view of this term in the compromise because it could be a suit for eviction. He further submitted that only a concession is given in Clause 5 and if there is default by the defendant in two instalments, then he has agreed to suffer decree for possession, and therefore, according to Shri Abhyankar, this is not a case where the tenancy was continued. All those contentions are countered by Shri Naik, learned Counsel for the petitioner, and in my opinion with full justification regarding the construction of these two documents and the intention of the parties in that behalf.
26. Even a bare perusal of the plaint and the compromise would leave no manner of doubt that the dominant and the only intention of the parties was restricted to the money claim which is very prominently reflected in the plaint also. No ground for eviction even inferentially has been incorporated in both these documents and it is difficult to spell out any such ground even inferentially. The so called controversial recital in the last portion of Clause 5 is obviously sought to be misconstrued on behalf of the respondents. Even the entire tenor of Clause 5, if read in proper context would leave no manner of doubt that the plaintiffs have all the intention to receive Rs. 31,200/- as the amount due though to be paid in 16 instalments. It is the stipulated that in case of default of any two instalments, the entire amount due at that time was to be recovered from the society's assets and this is also a dominant part, and the further reference that the plaintiff was to get the possession of the premises cannot be read in isolation or divorced from the context. It is apparent that the plaintiff had the sole intention to claim the rental dues for which the notice was given and the plaint makes it clear that the suit is being filed only to recover the money and that is also impliedly reflected in the compromise which compromise further suggests that in order to either persuade or even pressurise the defendant to pay the said amount a clause is added of two defaults when the entire amount due would be recoverable. This first deterrent is incorporated in that document to compel the defendant to pay the amount regularly and only as a precaution, a further deterrent is incorporated suggesting that the plaintiff was also entitled to get possession, though the whole mechanise was obviously to persuade, compel or even force the tenant to pay the rental dues under the pressure of certain consequences and the plaintiff was obviously solely interested in securing and getting the said amount.
27. At the time of the compromise beyond the notice and the plaint, there was no other material before the Court apart from the compromise deed because by then the defendant had not even raised the point of defence and the suit was practically compromised at the threshold. Therefore, the Court could only refer to the plaint and the notice to decide whether the compromise should be accepted or not and also to find out whether a ground for eviction has been made out or not all of which was necessary for formulating the satisfaction of the Court before passing the decree. It is not shown that the order of the Court on its face reflects any such satisfaction though it appears to be otherwise, and, therefore, it would become necessary to peruse the material and the circumstances to find out whether the Court could have been satisfied and was in fact satisfied and, as stated, beyond the plaint and the compromise, there is no other material. The perusal of both these documents even read together would fully justify that no ground existed for eviction nor any ground was made out in both these documents nor had the plaintiff asked for possession even under the compromise much less in the plaint and right from the issuance of the notice the dominant intention of the plaintiff was merely to get the money. Consequently, therefore, this is not a case where the Court could have been justifiably satisfied about the existence of a ground, though on the contrary, the Court could have been satisfied clearly that not only no ground for eviction was made out, not only no eviction was sought for but the only intention of the parties was to give and receive money and that is how the entire transaction was restricted to a money claim. Any contrary satisfaction also could not have arisen so as to comply even with the provisions of Order 23, Rule 3 of the Code of Civil Procedure, and consequently, the Court could not have passed a decree for eviction based on such compromise. It is worth noting as the other relevant shade that the so called admission incorporated in the compromise by the tenant does not embrace the required prescription about accepting the claim of eviction and also about accepting the existence of a ground for eviction, whereas, the entire admission is restricted to the monetary claim of the plaintiff. This is manifestly clear since the first clause which contains such so called admission expressly recites that the defendants accept and admit the plaintiff's claim in the suit and the claim in the suit is admittedly only to recover the rental dues. However, the other plank resting on the guidelines in the ratios clubbed together in the second category would clinch the issue in favour of the petitioner-tenant. It is also clear from the recitals of the compromise including Clause 5 that this is a case where the defendant was given a mere concession but the tenancy very much continued to exist which is apparent from the said recitals because in case if no defaults were committed by the tenant, the landlord would not have been entitled to possession, whereas the tenant would have been entitled to continue possession as a statutory tenant indefinitely so long as he paid the rent regularly and was not evicted by lawful means. This, therefore, falls in the second category of cases where there is no concession as such but the continuation of tenancy. This is reiterated by the fact that this is not a case where possession is sought for at the outset and the defendant being required to vacate and the plaintiff being entitled to possession is a must. On the contrary, normally, the plaintiff was not entitled to possession. This is also not a case where a decree for possession was to be passed in any event except its execution was postponed, but, on the contrary, this is a case where a decree for possession was not to be passed. It also becomes apparent that it contains a penal clause and the tenant will have to be relieved from forfeiture and the plaintiff would be entitled only to get the money claim under the compromise and not possession of the premises. In other words, by allowing the decree for possession to be passed, a smaller claim of money is being illegally transformed and expanded in a larger claim for possession which was never asked for, which was never intended to be so, and for which no ground has been made out and which was also never agreed by the tenant. A question was posed to Shri Abhyankar, learned Counsel, in that behalf, as to whether if the defendant had not committed any default much less two defaults, could he have continued in the premises, and the answer had to be in the affirmative. It may also be argued with some justification that by inserting the clause in the compromise about the two defaults and getting possession contingent on that, it may mean that it is that feature and contingency that is being made as a cause of action and ground for eviction and obviously both are not available or permissible in the Rent Control Act for getting possession by the landlord and therefore, by such a term the parties cannot be allowed to get the relief of possession which would fall outside the purview and scope of the Rent Act. In my opinion, further comments are not necessary because this discussion makes it amply clear that no decree for possession could have been passed on the basis of such a compromise. There has not been and could not be satisfaction of the Court as required under the law before passing the decree and the Court also does not appear to have applied its mind to the crux of the matter. All this therefore makes the decree for possession a nullity and consequently inexecutable. This point has also been missed even by the executing Court.
28. Shri Abhyankar, learned Counsel further tried to submit that the prayer of the petitioner was first rejected by the executing Court and it was renewed under other exhibit which was also rejected and according to him, the second application was not maintainable as being affected by the principles of res judicata. This is obviously an incorrect reading of the record because in the earlier application the petitioners herein had merely asked for time to submit their objections and the executing Court merely rejected that application which obviously was not on merits and thus there is no question of any principle of res judicata being available. The contention of Shri Abhayakar that the objections that are being taken in this petition were not specifically taken before the executing Court is also not correct because those are clearly reflected in the said order. Even the contention falling in the second category about the penal nature of the clause and reference to section 74 of the Contract Act are indicated in the order itself. It also appears that the Executing Court felt that all those objections could not be tenable at that stage because those must have been taken by him in the original suit and the compromise indicates that he had consented for the compromise. This really begs the issue instead of answering it. Even the learned Assistant Judge has also not properly considered the impact of all these contentions raised in appeal on behalf of the petitioners.
29. Before closing the chapter, one thing stands on the forefront viz., that even after the so called default, admittedly the plaintiffs have accepted some amounts from the amount due from the defendant and this, to some extent, would certainly have some relevance though in the limited field.
30. The last contention raised by Shri Abhyankar, learned Counsel that no interference would be justified under Article 227 of the Constitution has also hardly any merit. It is true that the field in such a proceeding is always narrow and the Court should not, as a matter of course, interfere with the findings of the courts below. However, this would mainly depend on the facts and circumstances of each case and cannot be considered as a principle of universal application. The facts of the instant case are clear and there is equally clear error apparent on the face of the record and the objections raised by the petitioners go to the root of the matter and if not allowed to be entertained, not only it would entail in a failure of justice but a decree which even ex-facie is a nullity would be allowed to be executed. Both the courts below have not considered any of these circumstances which are quite relevant and the validity of the contention raised on behalf of the petitioners even in this limited field fully in consonance with the settled principles as enunciated by various courts as also by the Supreme Court, and in my opinion therefore, the interest of justice fully demand and justify interference with the impugned order.
31. Shri Abhyankar however, is right in his submission that this should not affect the other part of the decree relating to the recovery of rental arrears. Both parts are obviously separable and therefore, it can be legitimately upheld that only that part of the decree which relates to the relief for possession will have to be struck down as a nullity so that the execution proceeding which is already initiated can continue though restricting only to the claim of recovery of rental arrears. This would therefore follow that the warrant of possession, if issued, will have to be withdrawn and cancelled.
32. The net result is that the petition would succeed.
33. Rule made partly absolute.
34. The decree in question, in so far as relating to the relief for possession of the suit premises is declared as a nullity and consequently the execution proceeding initiated by the respondents- decree holders qua the relief for possession of the suit premises is quashed with the necessary consequence that if an warrant for possession is already issued in the proceeding, it shall be withdrawn and would stand cancelled. However, the other part of the decree restricting to the monetary claim to remain intact, with the result that the execution proceeding restricting to that monetary claim and recovery of the said amount to continue in accordance with law.
35. There will be no order as to costs.