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Ganesh Prasad v. State Of U.P & Others

Allahabad High Court

Mar 29, 1974

Judgment

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Structured Summary of the Opinion (Special Appeal — Ganesh Prasad)

Factual and Procedural Background

The subject matter was a house originally belonging to Dharam Deo Agarwal which had been let to Jagdish Saran Rastogi (respondent No. 7). The appellant, Ganesh Prasad, purchased the house on 29.12.1970 and obtained permission under Section 3 of the U.P. (Temporary) Control of Rent and Eviction Acts, 1947, to file a suit for ejectment; permission was granted on 4.5.1971 and stated to be operative after thirty days. Despite that, the appellant filed a suit for ejectment on 6.5.1971. A compromise was recorded on 12.5.1971 and a decree for ejectment was passed the same day. Execution of that decree was put into effect and possession was obtained by the appellant through the Court Amin on 24.5.1971.

An objection under Order XXI Rule 100 CPC was filed by Badri Prasad Tandon (respondent No. 5) alleging that the house was occupied by a school (Thakur Prasad Badri Prasad Junior Girls High School) in its own right and that the school was not a party to the decree; the objection was allowed. The appellant then instituted a suit under Order XXI Rule 103 CPC (pending at the time of the opinion). Simultaneously the school applied under Section 145 CrPC alleging forcible and wrongful dispossession on 24.5.1971; a Magistrate issued a preliminary order (28.5.1971) and made a reference under Section 146 CrPC to the Civil Court to decide who was in possession on the relevant date.

Before the Munsif, the appellant's case was that the school was a licensee of respondent No. 7 and therefore properly ejected in execution of the decree; the school alleged (inter alia) that the decree was void because the house was covered by the U.P. Rent Act and permission under Section 3 was not operative until 30 days after 4.5.1971, hence the decree of 12.5.1971 was illegal. The Munsif found the compromise decree of 12.5.1971 to be null and void, held the school was forcibly and wrongfully dispossessed, and recorded this in an order dated 1.10.1971.

Following that finding, the Additional City Magistrate ordered delivery of the house to the school (7.10.1971). The appellant's revision against that order was dismissed by the 1st Civil & Sessions Judge, Moradabad (24.11.1971). The appellant petitioned this Court under Article 226 of the Constitution challenging the orders in the Section 145 CrPC proceedings; the Single Judge dismissed the writ petition on 3.12.1973 on the ground of availability of alternate remedy (a pending suit for possession). The present special appeal challenges that dismissal and the underlying findings and orders.

Legal Issues Presented

Whether the decree of ejectment passed on 12.5.1971 on the basis of a recorded compromise between the appellant and respondent No. 7 was a valid decree or a nullity.
Whether the Munsif (in the Section 146 CrPC reference) was correct in holding the compromise decree to be null and void and in finding that the school was forcibly and wrongfully dispossessed.
Whether the Single Judge erred in dismissing the writ petition on the ground of alternative remedy despite admitting the writ petition for consideration.
Whether, as a consequence of the above, the school was entitled to be restored to possession (and the nature of the school's possession: own possession vs. sub-tenant or licensee of respondent No. 7).

Arguments of the Parties

Appellant's Arguments

The appellant relied on the fact that he had obtained permission under Section 3 of the U.P. Rent Act to sue the tenant and that a decree for ejectment was obtained (by compromise) on 12.5.1971; he contended the school's dispossession was not wrongful if the school occupied as a licensee of respondent No. 7.
The appellant argued the writ petition deserved decision on merits despite the existence of alternative remedies; reliance was placed on L. Hardev Narain v. Income Tax Officer, Bareilly (1970 2 SCC 355) to contest the Single Judge's dismissal on grounds of alternative remedy.
Before the Munsif the appellant specifically pleaded that the school was a licensee of respondent No. 7 and therefore the school had not been forcibly and wrongfully dispossessed.

School / Respondent's Arguments

The school (through its manager) contended it was in possession of the house in its own right and was not a party to the decree in execution of which it was dispossessed; it therefore claimed wrongful and forcible dispossession.
The school also argued that the decree of 12.5.1971 was void because the house was governed by the U.P. (Temporary) Control of Rent and Eviction Act, 1947, and that the permission granted under Section 3 on 4.5.1971 was to be operative only after 30 days; hence the decree dated 12.5.1971 was illegal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Nagindas Ramdev v. Dalpatram Iccharam alias Brijrar (1974 1 SCC 242)	Sets out the tests governing the powers of an executing court (and similar courts) when an objection is raised that a decree is a nullity: - Whether the decree on its face discloses material to show a statutory ground for eviction; - If not, the executing court may inspect original trial record to see if there was prima facie material justifying jurisdiction; - Admissions in compromise/judicial admissions can supply such material and constitute waiver of proof.	The court applied these tests to conclude that the compromise and the plaint (paragraph 5) furnished prima facie material (including an implied admission in the compromise) that the Rent Control Officer had granted permission to sue; on that basis the decree was held to be valid and not a nullity. The Munsif's contrary conclusion was held to be a manifest error of law.
L. Hardev Narain v. Income Tax Officer, Bareilly (1970 2 SCC 355)	Cited by the appellant in support of the proposition that, once a writ petition is admitted, it should not have been dismissed summarily on the ground of alternative remedy without deciding the admitted matter on merits (as urged by the appellant).	The Court noted the appellant relied on this authority and, in view of the particular facts (an existing decree and the Munsif's contrary finding that the decree was null), held that the point raised in the writ petition deserved consideration on merits rather than summary dismissal on the ground of alternative remedy.

Court's Reasoning and Analysis

The court framed the principal question as whether the compromise decree of 12.5.1971 was a valid decree or a nullity. It observed that a number of authorities were cited but declined to take them up in detail, instead relying on the authoritative test laid down in Nagindas Ramdev v. Dalpatram Iccharam (1974 1 SCC 242).

The court explained the Nagindas principle: where a decree is alleged to be a nullity, an executing (or similar) court should first look at the decree itself to see whether it discloses material on its face from which a rent court could be satisfied of a statutory ground for eviction. If the decree does not show such material on its face, the court may inspect the original trial record to ascertain whether prima facie material existed to found the trial court's jurisdiction. If such material is found, the executing court's task is complete; it need not re-examine the trial court's ultimate finding.

Applying that framework, the court examined the plaint and the compromise application available on the writ record. Paragraph 5 of the plaint stated that the Rent Control and Eviction Officer, "after weighing the needs of the landlord and the tenant," had granted permission to sue on 4.5.1971. The court treated the permission granted by the Rent Control and Eviction Officer as a statutory ground enabling a suit under Section 3 of the U.P. Rent Act. The court acknowledged that allegations in a plaint normally must be proved, but noted that where there is an express or implied admission in the compromise application or in the record, such admissions may amount to a waiver of proof and can form the foundation for the court's jurisdiction.

The court found that in the compromise application respondent No. 7 unequivocally admitted that the appellant was entitled to a decree for ejectment. The court construed that admission as at least an implied admission of the facts stated in paragraph 5 of the plaint (including the Rent Control Officer's grant of permission). Importantly, the plaint did not state that the permission granted on 4.5.1971 was to be operative only after one month. On this basis the court concluded that there was prima facie material before the trial court sufficient to confer jurisdiction to pass the ejectment decree. Accordingly, the decree was valid and not a nullity.

The court therefore concluded that the Munsif's order of 1.10.1971, which held the compromise decree null and void, was a manifest error of law. However, the court emphasized that this conclusion did not by itself decide whether the school had been forcibly and wrongfully dispossessed, because that depends on whether the school occupied the house in its own right or as a sub-tenant/licensee of respondent No. 7. The court noted the settled principle that, in execution of a decree against a tenant-in-chief, a sub-tenant or licensee may also be ejected and such ejection would not be forcible or wrongful.

Because the Munsif had not recorded a clear finding on whether the school possessed the house on the relevant date in its own right or as licensee/sub-tenant of respondent No. 7, the court found it appropriate to remit the reference to the Munsif for fresh determination in accordance with the legal observations made in the opinion. The court further ordered that if possession had already been delivered to the school, it should not be dispossessed until final orders in the Section 145 CrPC proceedings, and that the house should be treated as in custody legis for that period. The court also quashed the orders of the Single Judge, the Munsif, the Additional City Magistrate and the 1st Civil & Sessions Judge insofar as they were inconsistent with its conclusions.

Holding and Implications

Core Ruling: Appeal allowed; the compromise decree dated 12.5.1971 is held to be a valid decree and not a nullity, the impugned orders of the Munsif, Additional City Magistrate and 1st Civil & Sessions Judge are quashed, and the matter is remitted to the Munsif for fresh findings.

Implications and direct consequences:

The Single Judge's dismissal of the writ petition (3.12.1973) is set aside and the appeal succeeds.
The Munsif's finding (1.10.1971) that the compromise decree was null and void is quashed as a manifest error of law.
The Munsif is directed to record a fresh finding on the Section 146 CrPC reference in light of the court's observations, specifically to decide whether the school was in possession in its own right or as a licensee/sub-tenant of respondent No. 7.
The Additional City Magistrate is to pass consequential orders in the Section 145 CrPC proceedings consistent with the fresh finding by the Munsif.
If possession has already been delivered to the school, it shall not be dispossessed until final orders are passed in the Section 145 CrPC proceedings; meantime the house is to be treated as custody legis.
No order as to costs was made by the court.

The opinion does not assert the creation of a new legal precedent; it applies existing Supreme Court authority (Nagindas Ramdev) to the facts and remits the factual question of the school's precise status in possession for determination.

Show all summary ...

N.D Ojha, J.:— The dispute giving rise to this Special Appeal relates to a house. It belonged to one Dharam Deo Agarwal. It was let out to Jagdish Saran Rastogi, respondent No. 7. The appellant Ganesh Prasad purchased the house from Sri Dharam Deo Agarwal on 29.12.1970 Thereafter, he made an application under Section 3 of the U.P (Temporary) Control of Rent and Eviction Acts 1947, for permission to file a suit against respondent No. 7. The necessary permission was granted on 4.5.1971 It was to be operative after thirty days. The appellant, however, filed a suit for ejectment of respondent No. 7 on 6.5.1971 The parties entered into a compromise on 12.5.1971 and the same day a decree for ejectment was passed on its basis. The decree was put in execution on 21.5.1971 and the appellant obtained possession through the Court Amin on 24.5.1971 Thereafter, an objection was filed by Sri Badri Prasad Tandon, Managar, Thakur Prasad Badri Prasad Junior Girls High School, Moradabad, respondent No. 5, under Order XXI Rule 100 of the Code of Civil Procedure on the allegation that the house was occupied by the school in its own right and since it was not a party to the decree in execution of which it was dispossessed, it was entitled to be restored to possession over the house. This objection was allowed. Consequently the appellant instituted a suit under Order XXI, Rule 103 of the Code of Civil Procedure which is said to be still pending. Simultaneously an application had also been made by Ashok Kumar Tandon, Manager of the School under Section 145 of the Code of Criminal Procedure, on the allegation that the School had been in possession on 24.5.1971 when it was forcibly and wrongfully dispossessed in execution of a decree against respondent No. 7 to which it was not a party. On being satisfied that a dispute concerning the house, likely to cause breach of the peace, existed, the Magistrate concerned passed a preliminary order on 28.5.1971 and subsequently made a reference under Section 146 of the Code of Criminal Procedure to the Civil Court of competent jurisdiction to decide the question as to which of the parties was in possession over the house on the relevant date. The reference came up before the Munsif, Moradabad. Before the Munsif the case set up on behalf of the appellant was that the school was only a licensee of Jagdish Saran Rastogi, respondent No. 7, and was, therefore, rightly ejected in execution of the decree for ejectment against the said respondent. On this allegation it was pleaded on behalf of the appellant that the school had not been forcibly and wrongfully dispossessed. Apart from the plea that it had been forcibly and wrongfully dispossessed, it was also pleaded on behalf of the school that the decree in execution of which it was dispossessed was void in as much as the house in dispute was covered by the provisions of U.P (Temporary) Control of Rent and Eviction Act, 1947, and on the date of the decree none of the grounds contemplated by Section 3 of the said Act on the basis of which the suit for ejectment against the tenant could be decreed existed. It was urged that since the permission granted under Section 3 was to be operative after 30 days of 4.5.1971 the date on which the order granting the permission was passed, the decree as passed on 12.5.1971 was illegal. This plea found favour with the Munsif and on the finding that the entire proceedings culminating in the compromise decree of 12.5.1971 were null and void, he held that the school was dispossessed forcibly and wrongfully within two months prior to the date of the preliminary order. The Munsif recorded the aforesaid finding by his order dated 1.10.1971 On receipt of the finding the Additional City Magistrate passed an order on 7.10.1971 to the effect that the house in dispute may be delivered to the school through Badri Prasad, Manager. The appellant filed a revision against the order of the Additional City Magistrate which was dismissed by the 1st Civil & Sessions Judge, Moradabad on 24.11.1971 Aggrieved he instituted a writ petition in this Court with a prayer to quash the orders passed in the proceedings under Section 145 of the Code of Criminal Procedure. The writ petition was dismissed by a learned Single Judge of this Court on 3.12.1973 on the ground that the petitioner had an alternative remedy by way of a suit for possession and since he had already filed a suit which was pending, it was not a fit case for interference under Article 226 of the Constitution. It against this order that the present special appeal has been filed by Ganesh Prasad.

2. It was urged by learned counsel for the appellant that the writ petition not having been dismissed summarily but having been admitted, the learned Single Judge was not right in dismissing it on the date of the final hearing on the ground that the appellant had an alternative remedy. Reliance was placed on the case of L. Hardev Narain v. Income Tax Officer, Bareilly 1970 2 SCC 355 Keeping in view the peculiar facts of the instant case, namely, that the appellant had already obtained a decree for ejectment of Jagdish Saran Rastogi, respondent No. 7, and his case as set up in proceedings under Section 145 of the Code of Criminal Procedure, was, that the school was a licensee of Jagdish Saran Rastogi and the further fact that the Munsif deciding the reference had come to the conclusion that the school had been forcibly and wrong-fully dispossessed only on the ground that the decree passed in favour of the appellant and against Jagdish Saran Rastogi, was null and void, we are of opinion that the point raised in the writ petition before this Court deserved to be decided on merits.

3. The question which falls for consideration in the present case is about the nature of the decree passed in the suit for ejectment referred to above on the basis of compromise between the appellant and respondent No. 7. A number of authorities were cited by learned counsel on either side in support of their respective contention in regard to the question as to whether the said decree was a valid decree or was null and void.

4. We, however, do not consider it necessary to refer to those cases in view of the decision of the Supreme Court in Nagindas Ramdev v. Dalpatram Iccharam alias Brijrar 1974 1 SCC 242 which authoritatively lays down the law on the point. In regard to the procedure to be followed by an executing court when a question about the invalidity of the decree under execution was raised, it was held:—

“Be that as it may, in cases where an objection as to the non-executability of the decree on the ground of its being a nulity, is taken the Executing Court is not competent to go behind the decree, if the decree on the face of it, discloses some material on the basis of which, the Rent Court could be satisfied with regard to the existence of a statutory ground for eviction. In such a case it must accept and execute the decree as it stands. If, on the face of it, the decree does not show the existence of such material or jurisdictional fact, the Executing Court may look to the original record of the trial court to ascertain whether there was any material furnishing a foundation for the trial court's jurisdiction to pass the decree it did. The moment it finds that prima facie such material existed, its task is complete. It is not necessary for it to go further and question the presumed or expressed finding of the trial court on the basis of that material. All that it has to see is whether there was some material on the basis of which the Rent Court could have as distinguished from must have been satisfied as to the statutory ground for eviction.”

5. At another place it was held:—

“From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence or a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparenly passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by for the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.”

6. In our opinion, the tests laid down above in respect of the powers of an executing court to find out as to whether the decree under execution is a nullity, can be applied in respect of any other court which is called upon to record a similar finding. Applying those tests to the facts of the instant case it could be seen that the decree which was passed itself did not on the face of it disclose any material on the basis of which it may be held that the court passing the decree was satisfied with regard to the existence of one of the statutory grounds for eviction contained in Section 3 of the U.P (Temporary) Control of Rent and Eviction Act, 1947. It had, therefore, to be decided on the basis of the original record whether there was any material furnishing a foundation for passing a decree for ejectment. Copies of the plaint and of the compromise application of the aforesaid suit are on the record of the writ petition. In paragraph 5 of the plaint it was stated that “After eighing the needs of the land lord and the tenant the Rent Control and Eviction Officer held that the need of the plaintiff was more genuine and hence he granted permission to sue on 4th May 1971.” The permission granted by the Rent Control and Eviction Officer to file a suit for ejectment constitutes a ground for filing such suit under Section 3 of the Act aforesaid. It is true that the allegations made in the plaint are to be substantiated by evidence and even for obtaining an ex-parte decree the plaintiff has to produce evidence to support the allegations made in the plaint. A decree cannot be passed merely on the ground that the defendant has not put in appearance and the plaintiff's case is established from the allegations made in the plaint. The position would, however, be different where written statement or some other document on behalf of the defendant has been filed from which it can be ascertained whether a particular allegation made in the plaint stands either expressly or impliedly admitted. If there is such a document which contains an express or implied admission such an admission would, as held in the case of Nagingdas be fully binding on the party that makes it and constitute a waiver of proof. It can be made the foundation of the right of the parties. Applying this test to the instant case it would be seen that in the compromise application respondent No. 7, unequivocally admitted that the appellant was entitled to a decree for ejectment. It, in our opinion, amounted to, if not an express, certainly an implied admission that the facts stated in paragraph 5 of the plaint were correct. It is important to note that in the plaint it was not stated that the permission granted by the Rent Control and Eviction Officer on 4.5.1971 was to be operative after a month thereof. We are, therefore, of opinion that the allegations made in paragraph 5 of the plaint and the admission of its correctness by respondent No. 7, in the manner stated above, conferred jurisdiction on the court seized of the case, to pass a decree for ejectment against respondent No. 7. In our opinion, therefore, the decree passed in the suit for ejectment was a valid decree and was not null and void. The Munsif in taking a contrary view in his order dated 1.10.1971 in the reference made to him under Section 146 of the Code of Criminal Procedure, committed a manifest error of law. This however, is not enough to record a finding one way or the other, on the question as to whether the school was forcibly and wrongfully dispossessed from the house in dispute, in execution of the decree passed in the civil suit. It would be forcible and wrongful if the school was occupying the house of its own. It would not be so, if it was occupying it on behalf of respondent No. 7 either as a sub-tenant or asalicensee. It is settled law that in execution of a decree against a tenant-in-chief his sub-tenant or licensee can also be ejected. The ejectement of the sub-tenant or licensee in such a situation would not be forcible or wrongful since the Munsif did not record a finding on the question as to whether the school was in possession over the house on the relevant date of its own, as alleged on its behalf or as a licensee on respondent No. 7, as pleaded on behalf of the appellant, it is in our opinion a fit case in which the Munsif may now be required to record a clear finding on this point so that consequential orders could be passed by the Magistrate concerned.

7. In the result, the appeal succeeds and is allowed. The order of the learned Single Judge is set aside and the orders passed by the Munsif, Moradabad, Additional City Magistrate, Moradabad and the I Civil & Sessions Judge, Moradabad, on 1.10.1971, 7.10.1971 and 24.12.1971 are quashed. The Munsif will now record a finding on the reference afresh in accordance with law in the light of the observations made above and the Additional City Magistrate will, therefore, pass a consequential order in proceeding under Section 145 of the Code of Criminal Procedure. If possession has already been delivered to the school, it shall not be dis-possessed until final orders are passed in proceedings under Section 145 of the Code of Criminal Procedure but the house will, for this period, be treated as custody legis. There shall, however, be no order as to costs.

8. Appeal allowed.