DALBIR KUMAR Vs. GIRDHARI LAL

JUDGEMENT

(1.) THIS Civil Second Appeal arises out of an application filed by respondent/tenant under Section 47 read with section 151 of the Code of civil Procedure filed before the Court of Sub Judge Jammu on December 22,1978 challenging the compromise decree for eviction passed against him on a compromise admittedly entered into by the respective parties on October 7, 1978, where by the landlord agreed with the denent for passing of a decree for eviction of the suit shop by granting ten years time upto the end of December, 1978 and that the defendant/tenant agreed to give the possession of the suit shop to the respondent by January 1, 1979 and continue to pay rent at the rate fixed initially by the rent note. By this application the compromise deed is challenged on the ground that the same be declared nullity being contrary to the provisions of the Jammu and Kashmir Houses and Shops Rent Control Act, 1966. It is further alleged in the application that the decree passed on the basis of compromise is a nullity and not executable, because the sole ground of the personal requirement on the basis of which the suit was brought is not at all proved by the landlord and there was no admission to that effect by the defendant/tenant with the compromise deed, and thus there was no ground available to the Court or to the landlord to pass a decree for ejectment on the basis of such a compromise. Inter alia in the application it was also pleaded that the landlord has brought another suit for ejectment of the tenant Sham Lal from another shop and the said suit is also based on the personal requirement and necessity and even the suit shop before it was allotted to the present respondent/tenant was got vacated by the landlord from one Banarsi Dass on the ground of personal requirement. The application filed by the respondent/tenant was contested by the landlord on several grounds. It was submitted that there was enough material before the Court, which passed the decree for eviction available under Section 11 of the J&K Houses and Shops Rent Control Act, 1966 (hereinafter called the Act) to pass the decree on the basis of categorical compromise by the tenant obtaining as along as ten years time by the entering into the compromise on October 7, 1968 and getting the time to vacate the premises by January 1,1979. The application is based on malafides, the subsequent suit about which the reference is made by the applicant/respondent was filed by the necessity of other son of the land lord and that the tenant has no right to challenge the ejectment of the shop, which was later on let out to him and also it was further alleged that till September, 1978 the tenant/respondent acting upon the said compromise decree was aware of this fact that he has to vacate the suit premises by January 1, 1979 and being satisfied on that account had filed a suit for ejectment against his own tenants Pt. Raisa Ram and two others, which was decreed in his favour on September, 30 1978 in Civil Suit No, 146 of 1976 and thus he cannot resile from the benefit taken by him from a long period of ten years under the decree for compromise and thus the decree is neither a nullity nor in -executable. It is also clear by going through the record and thereafter the landlord /appellant also filed the execution petition on January 3, 1979 for possession of the suit shop.

(2.) THE learned Sub -Judge (C. J. M.) Jammu by this order passed on August, 2, 1979 allowed the said application of the respondent tenant holding the decree as nullity and in -executable, On appeal by the appellant before the learned District Judge, Jammu. the appeal was also dismissed by the learned District Judge, by his order dated September 15, 1980 confirming the order passed by the learned Sub -Judge (C. J, M) Jammu. Thus the present Civil Second Appeal praying that the order passed by both the Courts below be set aside and decree passed on Compromise for eviction of the disputed shop be held to be valid and executable,

(3.) THE facts in brief are already mentioned above. The main dispute out of which the present appeal arises several questions of law, to decide the appeal the appoint relevant for the disposal relates to the validity of the decree passed on the basis of compromise against the respondent/tenant. It is admitted by the respective parties that a suit under Section II of the Act was filed against the respondent by the appellant, wherein the personal requirement needed under Section 11 (1) (h) of the Act is pleaded. The evidence of the plaintiff was over in the Civil Suit and four witnesses and the plaintiff, who was examined by the trial Court in support of his contention thereafter the defendant led his evidence and wanted to examine fifteen witnesses of which the list was submitted by him and till the date the compromise was entered into, he examined ten witnesses and thereafter the present compromise was entered into by the respective parties on October 7, 1968 on the basis of which a decree for ejectment was passed by the learned trial Court granting time to the tenant/respondent to hand -over the possession of the shop before January 1, 1979. On filing the compromise the statement of the plaintiff as well as of the defendant was recorded by the trial Court verifying the compromise and thereafter in presence of the respective parties, the trial Court passed the decree on the basis of said compromise. The ingenuity started on December 22, 1978, when the tenant field the present application under Section 47 read with Section 151 of the Code of Civil Procedure challenging the said decree after obtaining the benefit of ten years under the decree by the respondent/tenant.