KEMI KWAJA MOHIDEEN Vs. SUSAN GALIFE

JUDGEMENT

(1.) HEARD the learned counsel for petitioner. This civil revision petition is admitted. Mr. R. Subramanian appears for the respondent. HEARD both the counsel at length. By consent of both, this civil revision petition is taken up for final disposal.

(2.) THE above civil revision petition has been filed against the order of the Principal District Munsif, Pondicherry in E. A. No. 70 of 1993 in e. P. No. 44 of 1992 in H. R. C. O. P. No. 90 of 1988. THE petitioner is the landlord. THE learned Principal District Munsif allowed E. A. No. 70 of 1993 which was filed under Secs. 47,94 (e) and 151,c. P. C. ,seeking to determine and adjudicate that the decree and the order under execution is a nullity and incapable of execution and consequently to dismiss the E. P. and far other reliefs. THE petitions was presented on 15. 7. 1993 before the said court. THE respondent is a tenant. Before the learned District Munsif, the respondent herein challenged the decree under execution on the ground that it is one passed without jurisdiction and consequently is incapable of execution before the said court. THE lower court, however, rejected the allegation of the respondent that she was not aware of the proceedings in the rent control proceedings and held that such a plea cannot be accepted. THE lower court, after a detailed consideration of the materials placed before it, allowed the E. A. Aggrieved against the said order, the present civil revision petition has been instituted.

(3.) LET me now consider the decisions cited by mr. K. Yamunan, K. K. Chari v. R. M. Seshadri. A. l. R. 1973 S. C. 1311. is a leading case on the issue in question. In that case, both the parties entered in to a compromise whereby the tenant withdrew his defence in the rent control petition and submitted to a decree for eviction unconditionally and the tenant prays for time for vacating upto 5th June, 1969 that the petitioner/ landlord agrees to the same and that the tenant agrees to vacate the petition premises and hand over possession of the entire petition premises to the landlord on or before the said date viz. , 5th June, 1969 without fail under any circumstances and undertakes not to apply for extension of time. It was agreed by both parties that the memo of compromise was executable as a decree of court. The compromise petition was signed by both the parties as well as the advocates appearing for them. The court, after referring to the petition of the landlord, passed the order recording the compromise memo and ordered eviction by consent by granting time to vacate till 5. 6. 1969. After the disposal of the rent control petition, the landlord filed execution petition in the City Civil Court, Madras to execute the order of eviction against the tenant. The tenant filed E. A. No. 1314 of 1969 objecting to the execution of the decree on the ground that it was a nullity and inexecutable and as such he prayed for the warrant of possession issued in execution petition to be recalled and to dismiss the execution petition itself. The tenant's main plea was that the decree sought to be executed was one based on compromise or consent without the rent control court having satisfied itself by an independent consideration regarding the bona fide requirement of the property by the landlord for his own occupation and as such the decree contravened Sec. 10 of the Act. This application was opposed by the landlord saying that the pleas raised by the tenant could not be sustained and that the landlord's case was true and that he unconditionally withdrew his defence and submitted to a decree. Therefore, he pleaded that the decree sought to be executed does not suffer from any infirmity. The City Civil Judge overruled the objections raised by the tenant and dismissed the E. A. The tenant carried the matter to this Court in C. R. P. No. 797 of 1970. This Court by its judgment and order dated 15th September, 1970 has reversed the order of the city Civil Court and accepted the contentions of the respondent- tenant. The learned Judge has held that the decree for eviction dated 31 st March, 1969, is solely passed on the basis of the compromise and the Rent Controller has not applied his mind to satisfy himself whether the bona fide requirement of the landlord has been established. On this line of reasoning, the learned Judge held that the eviction order is a nullity and is not executable. The landlord filed an appeal before the Supreme Court and the Supreme Court in para 24, para 26 and para 27 of its judgment, observed as follows: "para 24: We are not inclined to accept the contention of Mr. Tarkunde that the decree for eviction in the case before us has been passed solely on the basis of the compromise arrived at between the parties. No doubt a reading of the order of the Court dated March 31,1969, isolated from all other circumstances may give the impression that the decree for eviction is passed because of the compromise between the parties. It is no doubt true that the order on the face of it does not show that the court has expressed its satisfaction that the requirement of the landlord is bona fide. If the court had expressed its satisfaction in the order itself, that will conclude the matter. That the court was satisfied can also be considered from the point of view whether a stage had been reached in the proceedings for the court to apply its mind to the relevant question" Other materials on record can also be taken into account to find out if the court was so satisfied. The High court has proceeded on the basis that even if there was material before the court, when it passed the order of eviction by consent, from which it can be shown that the court was satisfied about the requirement of the landlord being bona fide, nevertheless such an order will be a nullity unless the Rent controller has given his decision in favour of the landlord. In our opinion, this view is erroneous. " ''para 26: The true position appears to be that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact viz. , the existence of one or more of the conditions mentioned in Sec. 10 were shown to have existed when the court made the order. Satisfaction of the court, which is no doubt, a pre-requisite for the order of eviction, need not be by the manifestation borne out by a judicial finding. If at some stage the court was called upon to apply its mind to the question and there was sufficient material before it, before the parties invited it to pass an order in terms of their agreement, it is possible to postulate that the court was satisfied about the grounds on which the order of eviction was based. " ''para 2 7: It is no doubt true that before making an order for possession the court is under a duty to satisfy itself as to the truth of the landlord's claim if there is a dispute between the landlord and tenant. But if the tenant in fact admits that the landlord is entitled to possession on one or other of the statutory grounds mentioned in the Act, it is open to the court to act on that admission and make an order for possession in favour of the landlord without further enquiry. It is no doubt true that each case will have to be decided on its own facts to find out whether there is any material to justify an inference that an admission, express or implied, has been made by the tenant about the existence of one or other of the statutory grounds. But in the case on hand, we have already referred to the specific claim of the landlord as well as the fact of the tenant withdrawing his defence. According to us, such withdrawal of the defence expressly amounts to the tenant admitting that the landlord has made out his case regarding his requiring the premises for his own occupation being bona fide. In the three decisions of this Court, to which we have already referred, the position was entirely different. In none of those cases was there any material to show that the tenant had expressly or impliedly accepted the plea of the landlord as true. Therefore those decisions do not assist the respondent-tenant. ''alagiriswami, J. While agreeing with the order passed by Vaidialingam, J, has however thought it necessary to add a few words of his own and allowed the appeal filed by the landlord.