AHMED ABDUL SAYEED Vs. NARBHERAM AND BACHUBHAI

JUDGEMENT

(1.) THIS revision petition arises under the Rent Control Act at the instance of the landlord. The eviction petition is filed on the ground of bonafide requirement. Both the Courts below arrived at concurrent findings that there is bonafide requirement. But however the claim for eviction was negatived on the ground that the landlord on an earlier occasion waived the right to enforce eviction on the ground of bonafide requirement. In the dispute culminating in CRP 226/62 and incorporated in the compromise decree exhibited as A-2 it was agreed that the landlord shall not claim the eviction of the tenant from the suit premises on the ground of requirement and the tenant gave up the right to seek fixation of fair rent.

(2.) THE learned counsel for the petitioner contended that this agreement is opposed to public policy and the contracting out of the Provisions of the statute is not enforceable and as such the compromise decree does not preclude the petitioner from seeking eviction. The learned counsel for the respondent contended that the waiver of benefits under the Act is not in derogation of the provisions of the statute and the question of contravening the public policy does not arise.

(3.) IN Nagindas v. Dalpatram, 1974 R.C.R. 148 (S.C. ) : A.I.R. 1974 S.C. 471, it is held that the Rent Court under the Bombay Rents, Hotel and Lodging House Rates Control Act, is not competent to pass a decree for possession either in invitum or with the consent of the parties on a ground which is de hors the act or outside the purview of the Act. It is further held that contracting out of the statutory grounds is inherent in the public policy built into the statute. In Ferozi Lal v. Man Mal, 1970 R.C.R. 375 (S.C.) : A.I.R. 1971 S.C. 794, it is held that the jurisdiction of the Court to pass a decree for recovery of possession of any premises depends upon the satisfaction of one or more of the grounds mentioned in Section 13(1) of the Delhi and Ajmer Rent Control Act, 1952 and the Court is not competent to pass the decree solely on the basis of the compromise between the parties. In Waman Suriniwas v. R.B. and Co., AIR 1959 SC 689, arising under Bombay Rents, Hotel and Lodging House Rates Control Act, the landlord filed a suit for ejectment on the ground of non-payment of rent and subletting of the premises. The defence of the tenant was that under the terms of the leave he had the right to sublet the premises. It was contended that the right of landlord to sue ejectment on the ground of subletting being a personal right for his benefit, the landlord must be taken to have waived it as by an express contract and he could not evict under Section 13(1)(e) of the Act. In the context of considering this contention the Supreme Court held that the plea of waiver cannot be raised because as a result of giving effect to that plea the Court would be forcing an illegal agreement and thus contravene the statutory provisions and produce the very result which the statute prohibits and makes illegal. It is further held that the question is not merely of waiver of statutory rights enacted for the benefit of an individual but whether the Court would aid in enforcing a term of the agreement which the Act declares to be illegal. Regarding waiver it is held as follows :-