DIGAMBAR NARAYAN KULKARNI Vs. GAJANAN LAXMAN BARVE

JUDGEMENT

(1.) THE petitioner had filed a suit against the respondent for possession of block of three rooms of house No. 12 situated in Somwar Peth in Poona inter alia on the ground that the petitioner bow, fide required the premises for personal use and occupation. It appears that the matter was adjourned for evidence after the tenant had filed his written -statement contesting the claim of the plaintiff and on June 18, 1968 when the suit was fixed for evidence, a compromise application came to be filed signed by both the plaintiff and the defendant and the respective counsel. According to the terms of the compromise, the defendant was to vacate one room on the first floor on or before April 30, 1970 and hand over possession of the same to the plaintiff and if the room was not so handed over, the plaintiff was at liberty to execute the compromise decree. The terms of the compromise further provided that the remaining portion of the premises would be continued to be held by the tenant as tenant of the plaintiff at Ks. 12 per month and parties were to bear their own costs. A decree in terms of such compromise was prayed. The learned Judge recorded the compromise and directed a decree to be drawn accordingly. A decree accordingly came to be drawn by the Additional Judge, Small Cause Court, Pune. Execution proceedings of this decree commenced on June 8, 1970 when a Darkhast application was; filed by the decree -holder almost after about two years after the passing of the compromise decree. The tenant raised an objection in the execution proceedings stating that the decree was inexecutable as it was passed on the basis of the compromise in contravention of s, 13(1) of the Bombay Eents, Hotel and Lodging House Bates Control Act, 1947 (hereinafter referred to as the 'Kent Act'). Consequently, the warrant was also alleged to be a nullity. An additional ground on which the warrant issued was challenged was that while the compromise decree was only for one room, the warrant was issued for the entire accommodation in the possession of the tenant. On behalf of the decree -holder, the executing Court was moved for rectification of the error about the extent of the property mentioned in the warrant for possession and he contested the challenge that the decree was null and void. It does not appear from the record that any further enquiry was made in the circumstances in which the compromise decree came to be passed, but the executing Court held that the decree for possession was passed on the basis of the compromise entered into by the parties and it did not indicate that any of the grounds mentioned in Section 13 of the Rent Act existed. The decree was, therefore, held to be a nullity in view of the decision of the Supreme Court in Kaushalya Devi v. K.L. Bansal. : [1969]2SCR1048 . The executing Court, therefore, cancelled the possession for warrant issued in favour of the decree -holder. The decree -holder filed an appeal against this order and the learned District Judge took the view that the trial Court had accepted the compromise and converted it into a decree in a mechanical manner. He also further found that the compromise decree did not indicate that the trial Court had applied his mind to the issue of comparative hardship. The learned District Judge also placed reliance on the decision of the Supreme Court in Kaushalya Devi's case. The petitioner -landlord has now filed this petition challenging the orders of the executing Court and the District Judge, Poona.

(2.) IT is contended by Mr. Ketkar that a compromise decree need not be set aside in every case as a matter of course as has been done by the executing Court in the instant case and it was contended that none of the two Courts has applied its mind to the question as to whether there was any evidence or material to show that there in fact existed any statutory ground for eviction of the tenant. The learned Counsel relies on a later decision of the Supreme Court in Nagindas v. Dalpatram : [1974]2SCR544 , in which the Supreme Court has observed that the consent decree for possession passed by the Court is not necessarily a nullity and if there was an admission in the compromise incorporated in the decree of the fundamental facts that would constitute a ground for eviction under Section 12 or under Section 13, it would be presumed that the Court was satisfied about the existence of such statutory ground and the decree for eviction, though apparently passed on the basis of a compromise, would be valid.

(3.) NOW , it is apparent on the record that the executing Court has set aside the compromise decree merely on the ground that it is a compromise decree. It has itself not gone into the question as to whether any one of the statutory grounds could be said to have been established even as a result of the compromise.