ORDER
Amiya Kumar Mookerji, J.
1. This Rule was obtained by the plaintiff-landlady and it is directed against an order of the learned Munsif holding that the tenant defendant's application under Section 17-D of the West Bengal Premises Tenancy Act, 1956 was maintainable for setting aside a consent decree.
2. Plaintiff brought a suit for ejectment against the opposite party from a portion of premises No. 21/2. Belgachia Road, on the ground that the opposite party was a defaulter in payment of rent since December 1964. The opposite party in his written statement denied that he was a defaulter. On or about March 12. 1968, the plaintiff and the opposite party filed a joint petition of compromise and in terms of the same, the learned Munsif passed a decree. In terms of the said compromise decree the tenant undertook to vacate the premises within December. 1969. In default, execution might be started for recovery of possession. While continuing in occupation of the premises in suit in terms of the said consent decree, on 6th December, 1969, the tenant opposite party filed an application under Section 17 D of the Act for setting aside the said decree passed in the suit. The petitioner resisted the said application on the ground that it was not maintainable in view of the fact that decree in question was a consent decree and not a decree in invitum. The learned Munsif by his order dated 3rd of December 1970, allowed the opposite party's prayer in preliminary form upon the view that the opposite party's said application under Section 17 D was maintainable. Petitioner, being aggrieved against the said order, moved this court and obtained the present Rule.
3. Mr. Basu, appearing on behalf of the petitioner, contended that as no decree was passed for recovery of possession of the premises in suit on the ground in Clause (i) of Sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act, the learned Munsif acted illegally and with material irregularity in exercise of his jurisdiction in holding that Section 17-D of the Act was applicable in the instant case.
4. Mr. Basu, further, contended that the consent decree was but a contract with the command of the court super-added to it and the court had no jurisdiction to read into it something which the parties did not agree upon namely, the defendant being declared a defaulter in payment of rent.
5. The plaintiff brought the ejectment suit on the ground under Section 13 (1) (i) of the Act The defendant denied that he was a defaulter in his written statement. Except default, there was no other ground for ejectment. A Division Bench of this Court held in Dr. T. S. Gupta v. Kanahilal Ruia. (1964)68 Cal WN 353, that the court had no jurisdiction to pass a decree for ejectment, even by consent of parties, in absence of any of grounds mentioned in. Section 13 (1) of the West Bengal Premises Tenancy Act. In Ferozi Lal Jain v. Man Mal. : AIR1970SC794 , the Supreme Court held that the jurisdiction of the court to pass a decree for recovery of possession of any premises depends upon its satisfaction that one or more of the grounds mentioned in the section for ejectment in the Tenancy Act have been proved. The court was not competent to pass a decree solely on the basis of the compromise arrived at between the parties.
6. In the instant case, the only ground for ejectment was default under Clause (i) of Sub-section (1) of Section 13of the Act. So, in the instant case the decree was passed under Section 13 (1) (i) of the Act, otherwise, the court was not competent to pass a consent decree for ejectment, in view of the above decision of the Supreme Court.
7. Next point for consideration is, whether a consent decree can be set aside under Section 17-D of the Act. The provisions of Section 17-D are similar to paragraph 9-B (3) of the Calcutta House Rent Control Order 1943, as amended on 29-8-1949, Mr. Basu referred to some of the decisions of this Court under the said paragraph of 1943 Rent Control Order where it was held that para 9-B (3) of the Calcutta House Rent Control Order 1943, has no application to a decree for possession obtained by consent.
8. Mr. Basu in this connection referred to two Bench decisions of this Court, Manick Chandra Pal v. Haripada Roy. 52 Cal WN 230 -- (AIR 1949 Cal 151); Mrs. Julie Sen v. Surjendra Mohan Roy Chowdhury, (1945) 49 Cal WN 700 and two Single Bench decisions, Smt. Parbati Debi v. Dr. S. N. Sen, (1946) 50 Cal WN 242 and Sm. Kironsashi Dassee v. Hirendra Nath Das, (1946) 50 Cal WN 245.
9. In 52 Cal WN 230 (231) -- (AIR 1949 Cal 151), two Single Bench decisions of this Court, (1946) 50 Cal WN 242 and (1946) 50 Cal WN 245 were considered, one of which was decided by Gentle. J. and other by Clough. J. Both the learned Judges held that a decree for possession passed on consent of the parties is excluded by the language of paragraph 9-B (3) of the Calcutta House Rent Control Order. The Division Bench, however, does not decide the question whether or not paragraph 9-B (3) excludes consent decree altogether. At page 234 of the report, Mukherjea, J. (as he then was) observed that the wording of paragraph 9-B (3) of the Calcutta House Rent Control Order does not interms exclude a consent decree. In that case an application of the defendant under Section 9-B (3) of the Order to set aside the consent decree was dismissed on the ground that the decree did not attract the provisions of the said paragraph. So. that decision does not help the petitioner. As regards the next Bench Decision referred to by Mr. Basu, (1945) 49 Cal WN 700, in that case the point was left undecided.
10. In Haji Mohd. Ekramal Haque v. Rebati Bhusan Mukherjee. (1949) 53 Cal WN 859, a Division Bench of this Court held that the words used in Sub-paragraph (3) of paragraph 9-B of the order are quite general and there is no reason for excluding a consent decree from its purview.
11. In a case, where the plaintiff prays for a decree for ejectment on the only ground of default, and by consent a decree is passed, in my opinion, that decree comes within the purview of Section, 13 (1) (i) of the West Bengal Tenancy Act. and can be set aside under Section 17-D of the Act. Absence of any provision for payment of arrears of rent in the compromise decree does not change the character of that decree and brings it outside the scope of Clause (i) of Sub-section (1) of Section 13 of the Act, as I have said before, otherwise the court had no jurisdiction to pass a consent decree for recovery of possession in absence of any of the grounds mentioned in Section 13 (1) of the Act. In the instant case only ground for ejectment was of default. So, the consent decree was passed under Clause (i) of Sub-section 13 (1) of the Act and as such provisions of Section 17-D of the Act are attracted.
12. In the result, this rule is discharged but there will be no order as to costs.