SULEMAN NOORMOHAMED AMD OTHERS Vs. UMARBHAI JANUBHAI

JUDGEMENT

(1.) This is a decree-holders" appeal by special leave. The sole respondent is the judgment-debtor. The appellants filed a suit against the respondent in the Small Causes Court at Ahmedabad in 1964 claiming a decree for eviction against him on the ground of non-payment of rent and bona fide personal necessity. The grounds made out were in accordance with the relevant provisions of The Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - hereinafter to be referred to as the Act. The respondent filed a written statement with a view to contest the suit. Eventually on account of the default of the defendant the suit was taken up for hearing ex parte and an ex parte decree was passed on the 16th of March, 1966. The defendant applied under O. 9, R. 13 of the Code of Civil Procedure - hereinafter to be referred to as the Code, for setting aside the decree. It was set aside. But ultimately the suit was disposed of on the 1st March, 1967 on compromise between the parties. According to the terms of the compromise decree the judgment-debtor was to hand over possession of the suit premises to the decree-holders within a period of three years i. e. by 1st of March, 1970. But he did not do so. Thereupon the decree-holders filed an execution case to get possession of the property. The respondent contested the execution on the ground that the decree was a nullity. The first Court accepted his plea but on appeal by the decree-holders it was held by the Appellate Court that the decree was not a nullity and was executable. The respondent filed a revision application in the Gujarat High Court which has been allowed. The High Court has accepted the respondent"s plea that the compromise decree is a nullity and hence cannot be executed.

(2.) It is not necessary to review again and again all the earlier judgments of this Court on the point. It will be sufficient to refer only to two namely, Nagindas Ramdas v. Dalpatram Ichharam (1974) 2 SCR 544 - a judgment which is noticed by the High Court also in its order under appeal and the case of Roshan Lal v. Madan Lal (1976) 1 SCR 878.

(3.) It was pointed out in Nagindas"s case (supra) by one of us (Sarkaria J.) that the existence of one of the statutory grounds mentioned in Sections 12 and 13 of the Act, as in the case of other similar States Statutes, is a sine qua non to the exercise of jurisdiction by the Rent Court in order to enable it to make a decree for eviction. Parties by their consent cannot confer jurisdiction on the Rent Court to do something which according to the legislative mandate it could not do. The Court while recording a compromise under Order XXIII, Rule 3 of the Code has to satisfy itself that the agreement between the parties is lawful, in other words is not contrary to the provisions of the Act. But it has been clearly laid down in Nagindas"s case (1974) 2 SCR 544 at page 552: