BISHNU BANERRJEE Vs. STATE

JUDGEMENT

(1.) THE plaintiff/opposite party filed Title Suit no. 21 of 1972 in the Fifth Court of the learned Munsif at Alipore, 24-Parganas against the petitioner for eviction and recovery of possession of the entire one storeyed building being portion of premises no. 12a. Hern Chandra Street', Calcutta on the ground of default in making payment of rent since May, 1971. The said suit was contested by the petitioner by filing written statement denying and disputing the material allegation made in the plaint. In the said suit the petitioner also made an application under section 17 (2) read with section 17 (2a) of the West Bengal Premises Tenancy Act, 19. 56 inter alia, denying and disputing the relationship of landlord and tenant between the parties. Subsequently a petition of compromise was filed signed by both the parties on or about August 6, 1974 in the said suit. In the said petition of compromise it was stated inter alia, that the petitioner had admitted that he was a tenant in respect of the entire 12 A, Hem Chandra Street, Calcutta, that the petitioner also admitted that he was a defaulter in payment of rent since May, 1971; that the opposite party was entitled to get a decree for eviction of the entire premises No. 12 A, Hem Chandra Street, Calcutta, the petitioner would deliver vacant and peaceful possession of the said entire premises No. 12 A, Hem Chandra Street, Calcutta to the opposite party by the last day of the month of March, 1975; that during the continuance of the petitioner's possession under the terms of the said compromise none was to disturb the petitioner in his peaceful possession and enjoyment of the said premises and that the opposite party would give up his claim for arrears of rent and damages if the petitioner had complied with the terms of the said compromise. On February 2, 1975 the petitioner filed an objection to the recording of the said compromise questioning inter alia the legality of the terms of the said compromise and prayed that the said compromise should not be recorded and the suit should not be decreed on the basis of the said compromise petition. The petitioner also filed an application for permission to withdraw the said compromise petition inter alia on the ground that no order had yet been passed regarding recording of the said compromise and that the application under section 17 (2)read with section J 7 (2 A) of the West Bengal Premises Tenancy Act was not disposed of till then and he was not aware of the legal position that if he had complied with the provisions of section 17 (2) and 17 (2a)of the said Act he was to get protection under section 17 (4) thereof and there could be no estoppel against the statute. By an order dated june 9, 1973 the learned Munsif allowed the said application of the petitioner for withdrawal of the compromise petition inter alia, on the ground that the final compromise petition that was filed in court incorporates extraneous matters and the lawfulness of the compromise petition was doubtful and that the said compromise petition did not reflect the free will and consent of the petitioner. Against the said order the opposite party preferred an appeal being Misc. Appeal No. 434 of 197 5 and the learned Fifth Additional District Judge, Alipore, 24-Parganas by his Order dated April 26, 1976 allowed the said appeal setting aside the order of the learned Munsif and remanded the matter to the trial court with the direction to dispose of the said application under Order XXI11 Rule 3 of the Code of Civil Procedure afresh after giving the parties opportunity to adduce fresh evidence. Being dissatisfied with the said order of the lower appellate court the petitioner moved a revisional application in this court. and obtained a Civil rule which was disposed of by the Hon'ble Mr. Justice Chittatosh mookerjee (as His Lordship then was) on January 31, 1976 directing the lower appellate court to decide whether the compromise in question was lawful or not and whether the same should be recorded. The said Misc. Appeal No. 434 of 1975 again came up for hearing before the lower appellate court according to the said direction of this court and the learned Fifth Additional District Judge at Alipore, 24-Parganas by his Order dated 29th March, 1986 allowed the said appeal and decreed the suit on compromise holding inter alia, that there was no bar to accept the petition of compromise to be a "lawful agreement made between the parties. Being aggrieved by the said order of the lower appellate court the petitioner has come up in revision in this Court.

(2.) IT was contended by Mr. Mukherjee, learned Advocate appearing on behalf of the petitioner with. Mr. Tarun Chatterjee that 'lawful agreement in the present context should be taken to mean an agreement which is lawful within the meaning of the Indian Contract Act and other Jaws governing substantive rights of the parties to the agreement and reference was made to Section 23 of the Indian Contract Act. It was also contended by Mr. Mukherjee that the ejectment suit being one, governed entirely by the provisions of the West Bengal Premises tenancy Act, 1956, the legality of the agreement is to be examined in the context of the sprit or letters of. that Act and in view of the fact that the Rent Control Act being a piece of welfare legislation for the protection of the tenant whom the legislature considered to be the weaker of two parties to the contract of tenancy, a decree for possession either with consent or on contest, cannot be passed on any ground de hors the Act or ultra vires the Act. in such a case there is a prohibitionary mandate to the court that is shall not travel beyond the statutory grounds mentioned in the Rent Act and also to the parties that they shall not contract out of those statutory grounds. Reference was made to the case of Nagin Das v. Dal Path ram, reported in AIR 1974 SC 471. According to Mr. Mukherjee, in such a case for the purpose of effecting the compromise, the court must come to a satisfaction of its own that one or other of the different statutory grounds exists on the materials and/or admission placed before the Court and the court is also to see whether the compromise in question is a lawful one. References were made to the cases in Roshaalal and Anr. v. Madan Lal and Ors. reported in AIR 197. 5 SC 2130 and Smt. Nai Bahu v. . Lala Ram Narayan and Ors. reported in AIR 1978 SC 22.

(3.) MR. Mukherjee further contended that without disposing of the application under Section 17 (2) of the West Bengal Premises Tenancy act the Court can not pasu even a consent decree and if it does so, it would be without jurisdiction and a nullity and' in support of his said contention Mr. Mukherjee referred to the cases in Mahendra dutta and Co. (P)Ltd. v. Lima Charran Law. reported in 68 CWN 179 and Dr. D. N. Mukherjee v. Jatindra Nath Bhaduri reported in 69 cwn 199. Relying on the aforesaid decisions. Mr. Mukherjee contended that whether be it a contested or a compromise decree, the court is to see that a ground under Section 13 (1) of the West Bengal Premise tenancy Act, 1956 exists and for that purpose if application under Section 17 (2) of the said Act is -pending, it has to dispose of the same before passing such a decree and he also - cited the' decision in putin Kumar Chowdhury v. Sadbindra Mohan Rose arid Anr. reported in 1978 (1) CLJ 645 in support of his sale contention. Mr. Mukherjee also contended that there cannot be a waiter of any statutory of right and submitted that there cannot be any waiver of the right under Section 17 (2) of the West Bengal Premises Tenancy Act and no question of waiver does arise when the Court fails to discharge its statutory duties. Mr. , Mukherjee further referred to the draft compromise petition (Ext. A) to prove that there were marked differences between the clauses of the said draft compromise and those of the compromise petition that was filed in Court and since the said draft compromise petition was proved without objection and the opposite party also in cross-examination did not challenge the said document, it should be presumed that the compromise petition that was filed in Court was not a lawful compromise petition. Mr. Mukherjee lastly submitted that since the disputed Compromise petition was filed prior to the coming into force of the Code of Civil Procedure (Amendment) Act, 1976 extraneous facts could not be incorporated in the said compromise petition, although such incorporation was allowed to be made under the provisions of Order XXII Rule 3 of the said Amendment Act.