R.C. Lahoti, J.
1. Peculiar facts have given rise to this appeal. It is a classical example of petty landlord-tenant litigation being dragged on for unreasonable length of time, thanks to procedural tools available to unscrupulous litigants and errors of procedure unwittingly committed in law Courts.
2. The suit accommodation is residential held by the tenant/defendant/appellant on a monthly rent of Rs. 60/-. The plaintiff/ respondent is a practising lawyer. It appears that the defendant/appellant No. 1 was a clerk in the office of the plaintiffs father, who too is an Advocate. Presumably this close affinity, and probably the convenience of the Advocate father and son, persuaded them in permitting their clerk occupying their premises as a tenant some time in the year 1974-75. According to the defendant No. I, he snapped his office relationship with the plaintiff w.e.f. 30-9-1976. The plaintiff must have expected the defendant No. 1 to vacate the premises simultaneously with his dissociating himself with the plaintiff because that was the prime consideration behind creation of tenancy. However, the erstwhile clerk of the plaintiff did not turn out to be that straight, simple and obliging gentleman as the plaintiff had expected of him. The tenant discontinued his residence in the suit premises but instead of restoring back the possession to the plaintiff, passed it on the defendants Nos. 2 and 3, none else than real brothers of the tenant. The defendant No. 1 also withheld payment of rent to the landlord with the result that the suit for ejectment came to be filed on 15-3-1978 after service of demand-cum-quit notice seeking relief on the grounds available under Clauses (a) and (b) of Sub-section (1) of Section 12 of the M. P. Accommodation Control Act, 1961 (hereinafter 'the Act' for short).
3. The defendant No. 1, and the defendants Nos. 2 and 3, filed separate written statements, taking similar pleas. The defendants proved to be disgruntled foes, as is apparent from the manner of drafting the written statements, the language employed therein, the pleas projected and the subsequent conduct of theirs at the trial. Ownership of the plaintiff in the premises was challenged. Insinuations were made stating that the plaintiff's father was indulging in unethical practice and because of the protest raised by the defendant No. 1- the clerk, the advocate-master had threatened him with lesson being taught with the assistance of his clients, the Police, the Court and the society. The written statement filed by the defendant No. I was further amended so as to introduce para 21 therein, outwardly enlarging the plea of challenge to the title of the plaintiff, but in reality narrating the dispute which had taken place between the advocate father and son at family partition between them. Several revision petitions were preferred against interlocutory orders and on several occasions this matter had come up to this Court earlier too. All this contributed to long pendency of the case before the trial Court and it could be disposed of only on 2-2-1987 after a long pendency of about 9 years.
4. The proceedings before the lower appellate Court in the appeal preferred by the defendants, is the story of defendants' similar conduct and dilatory tactics retold. Petitions under Article 227 of the Constitution were preferred to this Court during the pendency of the appeal. Adjournments were prayed by filing numberless applications exhausting all such available provisions of the Civil P.C. on which the tenant could have laid hand. At one stage, application Under Section 340, Cr. P.C. was filed by the clerk defendant, seeking prosecution of his erstwhile employer, charging him with having filed a false affidavit in the Court. Ultimately, the appear was dismissed confirming the decree of the trial Court.
5. On 6-5-1991, this appeal was filed. Another Bench of this Court took note of the landlord's sufference and showed indulgence by directing early hearing of the appeal. Thanks to the co-operation rendered by both the counsel that the matter has been heard finally.
6. A preliminary objection was raised to the maintainability of the appeal which was disposed of by Shacheendra Dwivedi, J. by order dated 12-2-1992 holding the appeal to be maintainable prima facie.
7. Vide order dated 12-3-1992, K. M. Pandey, J. admitted the appeal for hearing parties framing the following substantial questions of law:--
(1) What is the effect of the order of the First Appellate Court holding that the appeal was not maintainable ?
(2) What is the effect of the finding given by brother Shacheendra Dwivedi, J. that the appeal is prima facie maintainable ?
(3) Whether the judgment and decree passed by the First Appellate Court suffer from the defect that it has not been decided on merits. If so, what relief can be granted to the appellant ?
(4) Can the second appeal be decided on merits in the absence of any finding by the First Appellate Court ?
8. Before embarking upon dealing with the questions as framed, it would be useful to notice a few more relevant facts which are nothing but a brief narration of the proceedings before the trial Court. The defendant No. 1 was conducting the proceedings in the trial Court acting for himself and also as General Power of Attorney holder of his brothers, the defendants Nos. 2 and 3. On 17-12-86 when Malchand (P.W. 1), the father of the plaintiff, was under cross-examination, the trial Court suggested to the parties that it would be in their interest if they compromised, in view of the nature of controversy, the background of their relationship and the longdrawn pendency of the petty suit. Better sense did prevail with the parties; they readily agreeing with the suggestion volunteered and agreed in the presence of the Court, stating that the defendants would vacate the premises within a period of one and a half month from the date and in the matter of arrears they would leave the dispute to be resolved by the presiding Judge of the Court, to whom they agreed to assign the status of a sole arbitrator, undertaking to submit to his decision which would bind both of them.
9. It would be useful to reproduce the Court proceedings as recorded in the statement of Malchand (P.W. 1) so as to give a complete and correct picture of what had transpired thereat. It is as under :--
^^bl LVst ij U;k;ky; }kjk mHk;i{kksa dks ;g lq>kofn;k x;k fd eqdnek l~u '' ls yfEcr gS vkSj djhc ' lky iqjkuk gks pqdk gSAo vkt dy 'kklu us yksd vnkyr ds ek/;e ls iqjkus izdj.kksa esa jkthukek djk dj ,dgh fnu esa fujkdj.k dj jgh gS bl izdj.k esa Hkh mHk;i{kksa dks jkthukek dj ysukpkfg;s mHk;i{k jkthukek gsrq lger gS oknh vfHkHkk'kd dk lq>ko gS fdizfroknhx.k edku [kkyh djds oknh o oknh vfHkHkk'kd ds lqiqnZ dj ns vFkokfjDr vkf/kiR; ns os vkSj os fjDr vf/kiR; izkIr gksus dks lwpuk U;k;ky; dksnsosaxs mlds ckn nwljk fookn cdk;k fdjk;s ds lEcU/k esa jgrk gS mlds lEcU/k esamudk lq>ko gS fd os rFkk mudk i{kdkj lger gS fd bl lEcU/k esa U;k;ky; dks ghlhy vkjohVs'ku dh Lohfr nsrs gS vkSj U;k;ky; ml lEcU/k esa tks cdk;k fdjk;kckcr vkns'k nsxk og oknh dks Lohdkj gksxkA izfroknhx.k Hkh lger gS fd os vkt lsMs< ekg es edku vfuok;Z:i ls [kkyh dj ds fjDr vkf/kiR; oknh dks nsdj mlls mllEcU/kh jlhn izkIr dj ysxsA o og jlhn U;k;ky; esa is'k dj nsaxsA izfroknhx.knwljs e~n~ns ij Hkh lger fd ,fj;j ds lca/k esa U;k;ky; tks Hkh vkns'k nsxh mlckcr iap U;k;ky; dks gh fu;qDr djus dh Lohrh nsrh gS ml ckcr U;k;ky; dks tksfu.kZ; gksxk og mUgsa ekU; gksxkA izfroknh blls Hkh lger gS fd Ms< ekg vf/kdrevof/k yh gS ijUrq blls iwoZ Hkh og edku [kkyh djds U;k;ky; dks lqfpr djsaxs ftl fnu U;k;ky; dks lwfprdjsaxs mlh fnu ;g izdj.k ys fy;k tkosxk o U;k;ky; izdj.k esa ;ksX; vkns'k mlhfnu ikfjr dj nsxhA mijksDr dkj.kksa ls ftjg ykxs ugha dh xbZ o ftjg lqjf{kr j[khtkrh gS o lk{kh dks eqDr fd;k tkrk gSA**
10. The correctness of the proceedings recorded as above has not been disputed by the appellant, or by any of the parties, for the matter of that. Nor could the correctness have been disputed, for the record of the court proceedings made by the Court is too sacrosanct to be called in question by any parties, except by well recognised modes. (See, State of Maharashtra v. Ramdas Nayar, AIR 1982 SC 1249 and Bhagwati Prasad v. Delhi State Mineral Development Corporation, AIR 1990 SC 371).
11. It has certainly not been contended by the appellants that the Court had in any manner influenced or prevailed upon any of the parties so as to make them agreeable to what was proposed. There was no reason for the Court to have done so. It was very reasonable on the part of the Court to have suggested to the parties to settle the matter in such a manner as they wished, so as to see the litigation being brought to an end. The parties responded by agreeing that the premises would be vacated. The minor dispute as to arrears of rent was agreed to be resolved and accepted in accordance with such opinion of the Court as it might choose to express. In other words, the appellant agreed to abide by such statement as may be made by the Court in reference to a matter in dispute and to admit and act upon what would be stated by the Court.
12. In the opinion of this Court, the appellant is merely stretching the litigation by resorting to technicalities and for reasons more than one, he cannot be permitted to wriggle out of the consequences of what he had deliberately done and invited. Firstly, he adopted a procedure to settle the dispute extra cursus curiae on which the Court and the opposite party acted and hence he would be bound by the procedure adopted; secondly, the act of the appellant would attract the applicability of Section 20 of the Evidence Act, 1872 and he would be bound by what the Court stated in its order on reference by him as to a matter in dispute; lastly, insofar as ejectment part is concerned, the defendant would be deemed to have abandoned his defence and so also the decree for ejectment shall have to be sustained.
13. In Rosily Mathew v. Joseph, AIR 1987 Ker 42, the parties adopted a procedure for having their dispute resolved by appointment of Commissioner with authority to get the compound wall constructed at the expense of the appellant and this was in deviation from the usual procedure of resolving the disputes. Question arose whether such procedure could legally bind the parties. It was held (at p. 46 of AIR) :--
'It is equally well established that if the Court with the consent of the parties or with their acquiescence departs from the usual course of procedure (governing the case) and decides a question of fact, the said decision is neither appealable nor review-able. The parties are bound by the order which in the circumstances of the case partakes of the character of a consent decree. (1896) AC 136, AIR 1936 Mad 856, AIR 1957 Mad 95, and AIR 1961 Andh Pra 71 (FB), Followed.'
I find myself in respectful agreement with the view so taken by Kerala High Court. The principle is supportable by rules of fair play and doctrine of estoppel. The parties have a right to fight battle of wits in courts of law but they qannot be accommodated playing games of hide and seek. 'Heads I win and tails you loose' may be a rule of prudence but is certainly not a rule of law. A litigant cannot be permitted to challenge to his own advantage the validity of procedure suggested or consented to by him on the result thereof going against him.
14. Section 20 of the Evidence Act, 1982 provides as under :--
'20. Admissions by persons expressly, referred to by party to suit.-- Statements made by persons to whom a party to the suut has expressly referred for information in reference to a matter in dispute are admissions.
Illustration
The question is, whether a horse sold by A to B is sound.
A says to B -- 'Go and ask C, C knows all about it'. 'C's statement is an admission.'
15. In K. M. Singh v. Secretary, Asso-ciation of Indian Universities, AIR 1992 SC 1356, an interesting situation arose. The plaintiff in a service matter agreed to abide by the statement made by two officers of the department in the presence of a Commissioner in Gurudwara and Mandir. The two officers were to make the statement on special oath. They did so. The result went against the plaintiff. It was submitted that Oaths Act, 1963 having been repealed the procedure adopted was not known to law and therefore the plaintiff could not be bound by decision based on a special oath. Their Lordships of the Supreme Court referred to Section 20 of Evidence Act and held (at p. 1360 of AIR):
'It will be noticed that in the present case the oath was administered as per plaintiff/ petitioner's statement and, therefore, there is thus no manner of doubt that the oath taken by two persons in pursuance of the offer of the petitioner amounted to admission of respondent's claim on his part within the meaning of Section 20 of the Evidence Act. The two persons were the nominees of the plaintiff and the statements of the nominees by virtue of Section 20 of the Evidence Act would be treated as an admission of the parties. Thus the orders of the trial Court dated 14th October, 1988 and 30th January, 1989, were unassailable and the High Court has rightly dismissed the revision petition.'
Their Lordships referred to Full Bench decision of Punjab & Haryana High Court in Florabel Skinner v. Jai Bajrang Kale Mandir Ram Lila Mandal, Hissar, AIR 1980 Punj & Har 284, wherein it was held :
'An offer made by one person on acceptance by the person to whom such offer is made, becomes an agreement under the taw of Contract and none of the parties can resile therefrom. On this principle, the statement made by the plaintiff, in the instant case, that the suit be decided on the basis of statement made by defendant on acceptance by the defendants, became a binding contract between the parties and none of the parties could resile therefrom at any time after the contract was complete.'
16. The statement by Court in its order as to liability of defendants in the matter of arrears of rent would be a statement, made by one to whom the defendants had expressly referred for information in reference to a matter in dispute and hence would bind the defendant/appellants as admissions within the meaning of Section 20 of the Evidence Act.
17. Clearly enough, the lis consisted of :
(i) plaintiff's entitlement to eject the tenant and alleged sub-tenants;
(ii) entitlement of the plaintiff to recover the alleged arrears of rent.
The two disputes were capable of being separated into two.
18. The first dispute was settled in the presence of the Court. Strictly speaking, it would be a misnomer to call it a compromise. In fact the defendants had abandoned their defence to ejectment and conceded to the claim of the plaintiff. That was the major part of the dispute. The dispute as to the quantum of arrears was secondary, insignificant and negligible. While the plaintiff had alleged that the defendant was holding one part of the premises at a monthly rent of Rs. 40/- w.e.f. 1-1-1974 and another similar part at a monthly rent of Rs. 20/- w.e.f. 1-4-1975 thereby making a total of Rs. 60/- per month for the total premises in possession of the defendant No. 1; the defendant No. 1 had simply denied this averment stating that the rent of Rs. 40/- was excessive looking to the rate of rent prevailing in the township and without taking any specific plea as to Rs. 20/- the rate of other part of the premises.
Assuming for a moment (without holding so) that the Court had no business to act as arbitrator to decide the dispute as to rent, even that would not lead the defendant/ appellants to anywhere. As already noticed the defendants had admitted the suit accommodation having been taken on rent at the rate of Rs. 40/- per month; their only defence was that the rate was excessive. Unless and until the defendants had succeeded in securing scaling down of the rate of rent by initiating appropriate proceedings before the Rent Controlling Authority they were bound to pay the rent at the agreed rate. What appeared to be a dispute outwardly was in reality no dispute at all and there is nothing which was required to be resolved by the Court. Even if the dispute as to quantum of rent would not have been referred to the Court and even if the Court would not have held in favour of the plaintiff by acting as sole arbitrator, even then the same decree would have been passed in favour of the plaintiff. The Court's acting as arbitrator has made no difference.
19. In civil cases, within the four corners of substantive law, the parties are the commanders of their respective advances and defences. Several pleas may be available to them under the law and under the Sun, but they may choose not to raise them in their pleadings. They may raise their pleas but they may choose to withdraw or abandon them, wholly or partly, at any stage of the proceedings. Just as the plaintiff may unconditionally withdraw or abandon his claim or pleas wholly and partly, so also there is nothing in the law which debars the defendant from withdrawing or abandoning his defence or any plea therefrom, wholly or partly. On 7-12-86, the defendant abandoned his defence to eviction and agreed to vacate the premises. Having done so, and having persuaded the Court and the opposite party in action upon such abandonment, he cannot be permitted to turn round and revive the dispute raised earlier but voluntarily abandoned later by him. If only the defendant would not have abandoned his defence, the plaintiff would have the his remaining evidence and the Court would have judicially adjudicated upon the pleas of the parties. The defendant had made them not to do so.
20. It was contended that in view of the provisions contained in Sec. 12 of the Act unless and until the plaintiff had succeeded in making out one of the grounds for ejectment and unless and until the Court had recorded in its decision finding as to availability of such ground, the decree for ejectment passed thereon would be bad. The challenge has been successfully met by the learned Counsel for the plaintiff/respondent placing reliance on volumes of case law dealing with the compromise decrees in suits under Section 12 of the Act, a few of which authorities are noticed hereafter.
21. In Smt. Nai Bahu v. Lala Ramnarayan, AIR 1978 SC 22, their Lordships of the Supreme Court held (at p. 27 of AIR) :--
'When a compromise decree is challenged as a nullity in the course of its execution the executing court can examine relevant materials to find out whether statutory grounds for eviction existed in law. If the pleadings and other materials on the record make out a prima facie case about the existence of statutory grounds for eviction a compromise decree cannot be held to be invalid and the executing Court will have to give effect to it.'
22. In the plaint, grounds under Clauses (a) and (b) of Sub-section (1) of Section 12 of the Act were clearly set out. The statement of the plaintiff's father Malchand (P.W. 1) made on oath is available on record which also provides material for holding availability of the grounds under Clauses (a) and (b) above-said, which statement was not fully cross-examined and hence there would be no reason to disbelieve the statement, which amply makes out availability of grounds under Clauses (a) and (b) abovesaid.
23. Before parting one has to remind himself that one of the ways of curbing the demon like rising figure of legal disputes is to avoid and overrule the pleas of technicalities and to go by concentrating and adjudicating upon the pleas of substance. That appears to be an underlying spirit behind enactment of Section 100, C.P.C. in its amended form, confining jurisdiction of this Court to hearing on substantial questions of law alone, not even on questions of law merely and certainly shutting out hearing on pleas founded on technicality or on disputes of facts. Before parting, let the decision of the Supreme Court in Collector, Land Acquisition, Anantnag v. Mst. Katiji, AIR 1987 SC 1353, be read where their Lordships have emphasised the necessity of taking 'justice oriented approach', observing (at p. 1354 of AIR) :
'It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.'
Unhesitatingly this Court is of the opinion that there has been no injustice with the defendants; their technical pleas should not hold the ground and it is likely injustice to the plaintiff oozing out of technical pleas of the defendant/appellants which has to be possibly avoided.
24. I have examined the merits of the case and also disposed of all the contentions touching the merits of the case raised by both the learned Counsel for the parties at the time of hearing. It is, therefore, not considered necessary to examine and answer whether first appeal was maintainable or not and whether this appeal too is maintainable or not. It is not at all necessary to remand the matter for hearing by the first appellate Court. The second appeal has been disposed of on merits in view of the submissions at length made by the parties.
25. For all the foregoing reasons, this appeal is held to be devoid of any merit and is dismissed. The appellants shall bear their own costs and also pay that of the plaintiff/ respondents throughout. Counsel's fee as per schedule, if certified.
26. At the time of delivery of judgment the learned Counsel for the appellants submitted that the appeal having been dismissed, the appellants may be allowed reasonable time for vacating the premises. It is directed that the decree for ejectment shall not be available for execution until 31-3-1993 subject to the appellants filing an undertaking on affidavit before the executing Court on or before 4-1-1993 to the following effect:--
(i) that on or before 15-1-1993 they shall deposit the entire money part of the decree passed against them with the executing Court subject to adjustment for the amount already deposited, but including the arrears up to 31-1-1993;
(ii) on or before 15th day of each succeeding month they shall deposit the amount of rent falling due for that month;
(iii)that on or before 31-3-1993 they shall vacate the premises and hand over vacant and peaceful possession to the plaintiff/landlord and shall not in between part with possession in favour of anyone else;
(iv) failing the filing of undertaking or failing compliance with any of the conditions abovesaid, the decree for ejectment shall become available for execution forthwith.