CHIMANLAL HARILAL KHARVA Vs. RAMJIBHAI AMBALAL GANDHI

JUDGEMENT

(1.) <DJG>SHELAT J</DJG> * * * *

(2.) As already pointed out hereabove the question relating to the fraud alleged in the suit no longer now survives. The only point that remains to be considered is as to whether the decree passed by the Court in Civil Suit No. 817 of 1956 is invalid so as to treat it as nullity and that way unenforceable against plaintiff-appellant as alleged by him. The contention made out by Mr. Patel the learned advocate for the appellant is that sec. 13(1) of the Act makes it obligatory on the part of the Court to feel satisfied that the landlord reasonably and bona fide required the suit premises for his personal use and occupation under sec. 13(1)(g) and unless it is so shown the decree directed to be passed by the Court in pursuance of the consent terms arrived at between the parties would be invalid and nullity. It was then pointed out by reference to the endorsement or the order passed therebelow that the Court had not applied its mind and mechanically as it were it appears to have directed the decree to be drawn up in terms of compromise as the parties had presented the same. His emphasis was that the order does not show in the first place any such words about the learned Judge having satisfied himself about the requirements contemplated under sec. 13 of the Act before a decree for eviction was passed and secondly by reason of use of words hence ordered to be recorded after the words parties agreed when read out. According to him the learned Judge ordered it to be recorded as they admitted when it was read out to them. Now it is clear and over which there is no dispute that the procedure to be followed in suits or matters arising under the Act have to be one as laid down in Civil Procedure Code 1908 and that includes the provisions contained in Order 23. It would therefore followed that the provisions contained in Order 23 Rule 3 would govern any such suit filed under this Act though no doubt the Court was one constituted under the special Act for the purpose contemplated therein. Order 23 Rule 3 Civil Procedure Code provides as under :

(3.) Now it is clear that any party to a suit has absolute right to give up any claim or adjust in such a manner as he thinks best. But if he wants a decree to be passed in persuance of any such adjustment between the parties in a suit it can only be done provided it does not offend against any of the provisions of the Act under which any such suit is filed or that it is unlawful in any other manner. This Act no where prohibits or forbids any person from arriving at such a settlement between the parties and obtain a decree in terms thereof. The contention of Mr. Patel is that it violates the provisions of the Act inasmuch as as the Court which passed the order directing a decree to be drawn up in terms of compromise failed to apply its mind for satisfying itself that the landlord was reasonably and bona fide in need of the premises and that a decree passed in terms of the compromise would not cause greater hardship to the tenant as required under sec. 13 of the Act. Those considerations in my opinion arise when it has to decide those issues in the case and not while recording any such compromise in a suit. Sec. 13 of the Act does not say so that the Court has to consider these issues at the time of considering whether it should pass a decree under Order 23 Rule 3 of Civil Procedure Code. It has to go by these provisions and if he does not find it any way unlawful it has to record the same if it relates to the suit. Such an order when passed it operates as an estoppel by record and parties are even estopped from contending contrary to what they have agreed to in the consent terms. It raises an estoppel just In the same way as a judgment after the Court has exercised its judicial discretion. In Bhaishanker Nanabhai v. Keshavji & Co. I.L.R. 36 Bombay 263 it was held that a consent decree had to all intents and purpose the same effect as res-judicata as a decree passed per invitum and this notwithstanding the words in sec. 11 of the Civil Procedure Code has been heard and finally decided. The point has been set at rest by the Supreme Court in Shanker Sitaram v. Balkrishan Sitaram (1955) 1 S.C.R. 99 Their Lordships of the Supreme Court have observed at p. 107 as under :