(2) Saligram v. Narottam Lal (1971 RLW 555)

(3

(4) Suleman Noor Mohammad v. Umarbhai Janubhai ((1978) 2 SCC 179 : AIR 1978 SC 952)

(5) Srimathi Kaushalya Devi & Others v. Shri K.L Bansal ((1969) 1 SCC 59 : AIR 1970 SC 838)

(6) Ferozi Lal Jain v. Man Mal ((1970) 3 SCC 181 : AIR 1970 SC 794)

(7) K.K Chari v. R.M Seshadri . ((1973) 1 SCC 761 : AIR 1973 SC 1311)

(8) Nagindas Ramdas v. Dalpatram Ichharam alis Brijram ((1974) 1 SCC 242 : AIR 1974 SC 471)

(9) Roshan Lal v. Madan Lal ((1975) 2 SCC 785 : AIR 1975 SC 2130)

(10) Smt. Nai Bahu v. Lala Ramnarayan ((1978) 1 SCC 58 : AIR 1978 SC 22)

(11) Bundu v. Smt. Hashmat (AIR 1972 238)

(12) Lal Chand v. Sant Ram (1978 RLW 119)

(13) Ittyavira Mathai v. Varkey Varkey (AIR 1964 SC 907)

R.R Nagori, for Appellant.

S.C Bhandari, for Respondent.

The Judgment of the Court was delivered by

M.C Jain, J.:— This is a judgment-debtor's execution second appeal against the order dated 9.1.1976 passed by the District Judge, Bikaner, whereby he dismissed the appellant's first appeal against the order dated 22.10.1975 of the Munsif, Bikaner, dismissing the appellant's objections against execution of the decree.

2. For disposal of this appeal it would be proper to recall a few facts. The decree-holder Moda Ram instituted a suit for arrears of rent and ejectment. The ejectment was sought on the ground of default, reasonable and bonafied need and nuisance The suit was resisted by the defendant-judgment-debtor. Initially issue No. 1 was framed regarding reasonable and bonafide need and issue No. 2 related to nuisance. Issue No. 3 related to termination of tenancy by a valid notice. Issue regarding default was subsequently added as issue No. 5. After trial, the plaintiff's suit was dismissed on 19.1.1972 Issues No. 1 and 2 were decided against the plaintiff. Issue No. 5 relating to default was decided in favour of the plaintiff. But finding on issue No. 3 was recorded against the plaintiff and it was held that the plaintiff has failed to prove that notice terminating the tenancy was served on the defendant. In view of the finding on issue No. 3 relating to notice the plaintiff's suit was dismissed. The plaintiff went in appeal and in appeal, after hearing the arguments and at the stage when the dictation of judgments was in progress, the parties filed a compromise. The learned first appellate court verified the compromise and examined the legal position, proceeded to act on the compromise and passed a decree for eviction on 17.8.1972 and it was directed that the defendant shall vacate the house on 30.9.1974 and it further directed the defendant to continue to pay the rent month by month and if he failed to pay the rent of any two months, the plaintiff shall be entitled to get the vacant possession of the suit house even before 30.9.1974 and it was further directed that in case the defendant fails to vacate the suit house on 30.9.1974 or on any other date prior to this date on which the defendant makes any two defaults in payment of rent, the plaintiff shall be entitled to get possession over the suit house through court by filing execution application. The plaintiff decree-holder submitted an application for execution on 10.10.1974 when the judgment-debtor failed to comply with the term of the decree to vacate the house on 30.9.1974 In that application for execution on 18.1.1975 the judgment-dobtor raised the following objections specifically:—

(1) that the decree was passed on the basis of the terms of compromise without being satisfied, as to existence of the grounds of eviction, as such, the decree for eviction is a nullity and without jurisdiction.

(2) The parties entered into a fresh tenancy by compromise in view of the fact that previously the rent was Rs. 25/- p.m, but under the compromise agreement the rent was enhanced to Rs. 40/- p.m and the defendant is paying Rs. 40/- p.m to the defendant. In view of the fresh agreement between the parties, the decree cannot be executed and the same is without jurisdiction.

3. The decree-holder submitted his reply to the objections traversing the objections raised by the judgment-debtor and prayed for rejection of the objections. The learned executing court, after hearing the parties, dismissed the objections by its order dated 22.10.1975, against which the judgment-debtor went in appeal, but the appeal also met the same fate. Hence, this second appeal.

4. I have heard Shri R.R Nagori, learned counsel for the judgment-debtor appellant and Shri S.C Bhandari, learned counsel for the decree-holder-respondent.

5. Mr. Nagori, learned counsel for the judgment-debtor-appellant, argued and raised number of contentions, out of them his principal contention is that the plaintiff's suit was not based on section 13(1)(a) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter referred to as “the Act”). The averments in the plaint did not satisfy the requirements of sec. 13(1)(a) and, as such, it cannot be said that the plaintiff sought ejectment of the defendant on the ground of default in payment of rent. He pointed out that the plaintiff simply stated that the defendant had paid rent upto 30.4.1968 and seven months rent upto 30.11.1968 amounting to Rs. 175/- is due. This averment is made by him in para 3 of the plaint and para 4 mentions the ground on which eviction is sought and in para 4(kh) what the plaintiff stated is that the defendant has allowed seven months' rent to fall in arrear, so he is a defaulter. These averments were insufficient to make out a ground for eviction as contemplated under section 13(1)(a) of the Act. According to Shri Nagori, what was essential to plead, was that the tenant has neither paid nor tendered the amount of rent due from him for six months or more than that. Shri Nagori's emphasis is that it ought to have been pleaded by the plaintiff that the tenant not only not paid the amount of rent, but even did not tender the amount of rent. In the absence of such a plea, the suit could not said to be based on the ground mentioned in 13(1)(a). He pointed out that the trial court did not decide issues No. 1 and 2 in favour of the plaintiff and there was no merit so far as these two grounds are concerned. These two grounds were not even convassed before the appellate court, so the basis of the decree appears to be the ground of default and when the ground of default was not pleaded as provided in section 13(1)(a), then the court had no jurisdiction to pass the decree. In support of his contention reliance was placed by Shri Nagori on a decision of this Court in Rajendra Kumar v. Jamna Das (1). He also referred to a decision of this Court in Saligram v. Narottam Lal (2).

6. Shri S.C Bhandari, learned counsel for the decree-holder-respondent, on the other hand, submitted that the averments in paras 3 and 4(kh) of the plaint clearly make out the case under clause (a) of sub-section (I) of Sec. 13 of the Act. The defendant also took it to be a case under clause (a) of Sec. 13(1) as would be clear from the averments made in the written statement and it was in view of the pleadings of the parties that issue No. 5 was struck to the effect that the defendant is a defaulter and the parties went to trial on this issue. Mr. Bhandari submitted that there had been no such case and such a plea was not raised in the suit. Such a plea was not raised even by the judgment-debtor in the objections filed by him. The appellant should not be permitted to raise this objection for the first time in this appeal. Besides that, Mr. Bhandari pointed out that the decision of this Court in Rajendra Kumar v. Jamna Das (supra) has no application to the facts of the present case in view of the variance in pleadings. According to him, in that case, the plaintiff's averment was simply this that the defendant has paid rent upto a certain date, namely 31.12.1967 and thereafter has not paid rent despite repeated demands. There was no pleading to-the effect that the defendant was a defaulter and that the defendant allowed the rent to fall in arrears. He also pointed put that the defence was that the defendant is not a defaulter in view of the fact that the plaintiff did not deliberately accept rent after April 1968. It was offered to him many times, but the plaintiff refused to accept the same and thereafter it was sent by money order and even then the plaintiff did not accept the amount of rent. He referred to the finding on issue No. 5 recorded by the trial court, wherein it is stated that the defendant has failed to prove that the amount of rent was ever sent by money order as no money order receipt has been produced. He urged that the plea of non-offer by the defendant is explicit in para 4(kh) or in any case implicit and the parties went to trial on that basis that there is a plea of non-offer of amount of rent by the defendant.

7. I have carefully considered the submissions advanced by Shri Nagori. In the facts and circumstances, this contention had no merit whatsoever Firstly, the appellant cannot be allowed to agitate this question for the first time in this appeal. No such objection was raised by the appellant in the objections submitted by him before the executing court. The objection was to the effect that the suit for eviction was decreed by the court without satisfying the existence of ground of eviction, so the decree is nullity. An objection to this effect was not raised that there was want of pleading on the part of the plaintiff satisfying the requirements of clause (a) of sub-section (1) of Sec. 13 of the Act. Thus, on this ground alone the contention raised by Shri Nagori deserves to be rejected. Even if the contention is examined on merits, I do not find any substance in it. It is true that in para 4(kh) the ground is not stated in the very words as found mentioned in clause (a) of sub-sec. (1) of Sec. 13, but it is not essential to use the same phraseology. It may be stated that the pleading has to be construed in its essence substance and spirit. In para 4(kh) the plaintiff clearly averred that the defendant has allowed the rent of seven months to fall in arrears, so he is a defaulter (Pratiwadi ne Arsa Sat Mah ka kiraya bhi chada liya hai isliye wah defaulter bhi hai). In reply to this the defendant everred that he is not a defaulter, because he had been continuously offering the rent to the plaintiff, but the plaintiff did not accept the rent deliberately with a view to make him a defaulter. He also stated in para 3 of the written statement that the plaintiff did not accept the rent after April 1968 deliberately. Many times rent was offered to him but the plaintiff refused and so money order was sent, butjie did not accept the same. Shri Nagori urged that the plaintiff did not make a statement in the light of clause (a) of sub-section (1) of Sec. 13 and there is no statement to this effect of the plaintiff that the rent was not offered to him. He did not so state only on the ground that he did not want to tell a lie, as there was a truth in the assertion of the defendant that the rent was in fact offered by the defendant to the plaintiff. The plaintiff stated that 6-7 months' rent was in arrears when the suit was filed by him. Such a statement of the plaintiff, in my opinion, would not improve the appellant's case. The trial court has dealt with this question and has considered the statements of both the parties. The defendant stated that he had been paying rent regularly and when the same is not accepted he had remitted the same by money order and the money order was refused. The trial court found the question of offer on the part of the defendant against him and stated, while recording the finding on issue No. 5, that the defendant had neither stated in his statement that he sent money orders in respect of the months for which the rent is said to be due, nor he filed money orders receipts, so the defendant has failed to prove that the money orders were ever sent. Of-course, it may be observed that it would have been better for the plaintiff to have clearly stated in the plaint not only that the rent was not paid by the defendant, but also that it was never offered to him. In my opinion, the use of the expression ‘defaulter’ implies non-payment of rent, as well as non-offer of rent. A tenant, who does not pay rent, is not only defaulter, but one who even does not offer the rent, is also a defaulter. But if it is found that he had been offering rent, then he cannot be designated as defaulter and it cannot be found that he is guilty of default, as there has been no default on his part, because of his regular offering of rent. Thus, a tenant, who has been regularly offering rent, is not a defaulter, whereas the plaintiff has used the expression ‘defaulter’ which implies that the defendant had neither paid rent, nor offered rent to the plaintiff This appears to be the accepted connotation of the expression ‘default’ or ‘defaulter’. Besides that, it is also significant that the parties went to trial on the basis that there exists ground for eviction as contemplated under clause (a) of sub-section (1) of Sec. 13 and a finding has been recorded by the trial court on issue No. 5 on that basis. In Saligram v. Narottam Lal (supra) what has been observed is that a suit is said to be based on a particular ground if the plaint contains an allegation that the ground subsists. This observation, in my opinion, applies to the present case and as considered above, there was a ground taken by the plaintiff in para 4(kh) of the plaiat. In Rajendra Kumar v. Jamna Das (supra), cited by Shri Nagori, there was no such averment in the plaint, as there exists in the present case. The plaintiff categorically stated that the defendant is a defaulter. What was stated in plaint in that case was that the defendant had paid rent upto a certain period and thereafter had failed to make payment despite repeated demands and, on that basis it was found that the pleading was lacking with regard to the ground contained in clause (a) of sub-sec. (1) of Sec. 13 of the Act Further, in my opinion, that is the case where the objection was taken at a different stage and that, in my opinion, is very material and significant. In the present case the parties went to trial, argued the matter on this ground before the two courts and now it would be too late in the day to allow the judgment-debtor to raise this objection, more particularly, when such objection has not even been raised in the objections filed by the appellant before the executing court.

8. Thus, the first contention advanced by Shri Nagori, has no merit and the same is rejected.

9. It is next contended by Shri Nagori that the decree has been passed solely on the basis of compromise and the first appellate court did not record its satisfaction specifically, nor such satisfaction can be inferred impliedly from the decree passed by the first appellate court. According to Shri Nagori, the first appellate court proceeded to pass the decree simply on the basis that the parties have entered into the compromise and without applying its mind, in terms of the compromise, the decree was passed. He referred to the entire material, which is on record in connection with the various grounds of eviction stated in the plaint. So far as the grounds of personal necessity and nuisance are concerned, he submitted that the trial court found both these grounds against the plaintiff and that in respect of these grounds, contentions were raised in the memo of appeal, but the same were not advanced in arguments, as would app ear from the judgment of the first appellate court. Shri Nagori carried me through the findings of the trial court on issues No. 1 and 2 and also referred to the pleadings in respect of the ground of nuisance and submitted that as per the pleading in the plaint, the ground of nuisance is not made out, so in respect of these grounds there was no objective consideration made by the first appellate court and as regards the ground of default, his emphasis was only on this as pect that there was a lack of requisite pleading. He referred to the whole body of case law, so far emanating from the Supreme Court right from the case of Bahadur Singh v. Muni Subrat Dass (3), till the decision of Suleman Noor Mohamed v. Umarbhai Janubhai (4). The Supreme Court had an occasion to consider this question in its other decisions, namely, Srimathi Kaushalya Devi & Others v. Shri K.L Bansal (5), Ferozi Lal Jain v. Man Mal (6), K.K Chari v. R.M Seshadri . (7), Nagindas Ramdas v. Dalpatram Ichharam alias Brijram (8), Roshan Lal v. Madan Lal (9) and Smt. Nai Bahu v. Lala Ramnarayan (10). I need not discuss all these authorities. After the first three decisions, the law on this aspect was further elaborately considered in K.K Chari v. R.M Seshadri . (supra). In that case their Lordships considered the earlier three decisions and then in paras 26 and 27 summed up the legal position as under:—

“26. The true position appears to be that an order of eviction based on consent of the parties is not necessarily void if the jurisdictional fact viz. the existence of one or more of the conditions mentioned in S. 10 were shown to have existed when the Court made the order. Satisfaction of the Court which is no doubt a prerequisite for the order of eviction, need not be by the manifestation borne out by a judicial finding. If at some stage the Court was called upon to apply its mind to the question and there was sufficient material before it, before the parties invited it to pass an order in terms of their agreement, it possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based.”

“27. It is no doubt true that before making an order for possession the court is under a duty to satisfy itself as to the truth of the landlord's claim if there is a dispute between the landlord and tenant. But if the tenant in fact admits that the landlord is entitled to possession on one or other of the statutory grounds mentioned in the Act, it is open to the court to act on that admission and make an order for possession in favour of the landlord without further enquiry. It is no doubt true that each case will have to be decided on its own facts to find out whether there is any material to justify an inference that an admission, express or implied, has been made by the tenant about the existence of one or other of the statutory grounds. But in the case on hand, we have alreaday referred to the fact specific claim of the landlord as well as the of the fact tenant withdrawing his defence. According to us, such withdrawal of the defence expressly amounts to the tenant admitting that the landlord has made out his case regarding his requiring the premises for his own occupation being bona fide. In the three decisions of this Court, to which we have already referred, the position was entirely different. In none of those cases was there any material to show that the tenant had expressly or impliedly accepted the plea of landlord as true. Therefore those decisions do not assist the respondent-tenant.”

10. On the facts of that case their Lordships found that it cannot be held that the decree [for eviction has been passed solely on the basis of the compromise entered into between the parties and it was observed that it is clear from the various maters referred to that the court was satisfied about the bona fide requirement of the landlord, so held that the decree for eviction is neither void nor inexecutable.

11. In Nagindas Ramdas v. Dalpatram Ichharam alias Brijram (supra) their Lordships observed as under:—

“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 of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction apparently passed on the baris 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 far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under sec. 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary abmissions. 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 conelusive. They can be shown to be wrong.”

……………………………………

“Be that as it may, in cases where an objection as to the non-executa-bility of the decree on the ground of its being a nullity, is taken, the Executing Court is not competent 10 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 foundition 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 fioding 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 distingished from must have been satisfied as to the statutory ground for eviction. To allow the Executing Court to go beyond that limit, would be to exalt it to the status of a Super Court sitting in appeal over the decision of the Rent Court.”

12. In that case their Lordships on the basis of the clear admission in the compro-ise, incorporated in the decree, of the fundamental facts that could constitute ground for eviction under Sec. 12(3)(a), observed that the Executing Court as not competent to go behind the decree and question its validity.

13. In Roshanlal v. Madanlal (supra), Untwalia, J, after considering all earlier decisions, stated the principle of law applicable to such cases, as under:

“In order to get a decree or order for eviction against a tenant whose tenancy is governed by any Rent Restriction or Eviction Control Act the suitor must make out a case for eviction in accordance with the provisions of the Act. When the suit is contested the issue goes to trial. The Court passes a decree for eviction only if it is satisfied on evidence that a ground for passing such a decree in accordance with the requirement of the statute has been established. Even when the trial proceeds ex-pafte, this is so. If, however, parties choose to enter into a compromise due to any reason such as to avoid the risk of protracted litigating expenses, it is open to them to do so. The Court can pass a decree on the basis of the compromise. In such a situation the only thing to be seen is whether the compromise is in violation of the requirement of the law. In other words, parties cannot be permitted to have a tenant's eviction merely by agreement without anything more The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlerd, in the circumstances, is entitled to have such a decree under the law.”

“It is too late in the day to contend that the provisions of Order 23, Rule 3 of the Code of Civil Procedure cannot apply to eviction suits governed by the special statutes. Undoubtedly, compromise of such suit is permissible under the said provision of law. The protection of the tenant is inherent in the language of Order 23, Rule 3 when it says “Where it is proved to the satisfaction of the Court that a suit has been adjusted by any lawful agreement or compromise the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the suits.” If the agreement or compromise for the eviction of the tenant is found, on the facts of a particular case, to be in violation of a particular Rent Restriction or Control Act, the Court would refuse to record the compromise as it will not be a lawful agreement. If on the other hand, the Court is satisfied on consideration of the terms of the compromise and, if necessary, by considering them in the context of the pleadings and other materials in the case, that the agreement is lawful, as in any other suit, so in an eviction suit, the Court is bound to record the compromise and pass a decree in accordance therewith. Passina a decree for eviction on adjudication of the requisite facts or on their admission in a compromise either express or implied, is not different.”

14. In that case in the order, whereby the compromise was recorded, it was stated that the compromise was legal and is within the purview of the plaint. Therefore, plaint verification is accepted and the case is decreed in accordance with the conditions of the compromise. With respect to that order it was observed that it was in full compliance with the requirement of Order 23, Rule 3 of the Code of Civil Procedure. The averment in the plaint was, therefore, accepted and the suit was decreed.

15. In Suleman Noormohamed v. Umarbhai Janubhai (supra) the view taken by the High Court was reversed and it was stated that the High Court was not right that on the face of the compromise purse or the order passed thereon, there was no material to show that the tenant had either expressly or impliedly suffered a decree for eviction or being liable to be evicted in accordance with sec. 12(3)(b) of the Act It was further observed that while recording the compromise under Order XXIII, Rule 3 of the Code, it is not necessary for the Court to say in express terms in the order that it was satisfied that the compromise was a lawful one. It will be presumed to have done so unless the contrary is shown. Their Lordships then referred to the facts and circumstances of the case and stated that the facts clearly show that the tenant had incurred the liability to be evicted under the said provisions of law and the compromise decree was passed on the tenant's impliedly admitting such liability. It was further observed that if a decree for possession would have been passed in inviium the tenant would not have got three years' time to vacate the premises. He, therefore, agreed to suffer a decree by consent and gained three years' time under it.

16. In the last case Smt. Nai Bahu v. Lala Ramnarayan (supra) it was observed that the Court is to be satisfied whether a statutory ground for eviction has been pleaded which the tenant has admitted by the compromise. Thus, dispensing with further proof on account of compromise, the court is to be satisfied about compliance with the statutory requirement on the totality of facts of a particular case bearing in mind the entire circumstances from the stage of pleading upto the stage when the compromise is effected. It was also observed that when a compromise decree is challenged as a nullity in the course of its execution, the executing court can examine relevant materials to find out whether statutory grounds for eviction existed in law. If the pleadings and other materials on the record make out a prima facie case about the existence of statutory grounds for eviction a compromise decree cannot be held to be invalid and the executing court will have to give effect to it

17. I have extracted the principles enunciated by the Supreme Court in various cases, referred to above. It cannot be denied that the Court gets juris diction to pass a decree for eviction only when the stated grounds for eviction exist. If any decree has been passed on the basis of compromise in disregard of the legislative mandate, then it would be a decree without jurisdiction and would be void and would be a nullity. But where the grounds exist, still the Court is required to be satisfied with regard to existence of the grounds, although it is not necessary to record a judicial finding on the question of existence of the ground for eviction, but in that connection the entire material, facts and circumstances, leading to the conclusion as to whether the Court was satisfied or not, can be looked into. As observed in K.K Chari's case (supra) and other cases, it would all depend on the facts and circumstances of each individual case as to whether such satisfaction of the Court was there or not. Such satisfaction can either be found in express words and can even be presumed and inferred from the facts and circumstances. In the light of the principles propounded and as considered above, the facts of the present case need consideration. The plaintiff did plead three grounds of eviction and the parties went to trial on all the three grounds of eviction. The two grounds were found against the plaintiff and the ground of default was found in his favour by the trial court. On appeal by the plaintiff, again the matter was heard. The plaintiff did challenge the findings on issues No. 1 and 2 in the memo of appeal. Arguments were heard not only on one date, but on the request of the parties, arguments were again heard. Thus, the arguments were heard on 10-8-1972 and 14-8-1972 and 17-8-1972 was fixed for judgment. On that date the learned District Judge proceeded to dictate the judgment. He had dictated the plaintiff's case and the defendant's case, as pleaded by them. Then he recorded the dates of receipts along with the amount of rent paid to the plaintiff. He also recorded that he bad gone through the record of the case carefully, after hearing the learned counsel for the parties, and, further proceeded to state the main contentions of the learned counsel for the plaintiff and contentions stated by the learned District Judge related to commission of default by the defendant in payment of rent and although the finding on issue No. 5 was recorded in favour of the plaintiff, but the trial court did not pass a decree for eviction, as service of notice under section 106, Transfer of Property Act, was not proved which finding was erroneous. When these contentions and citations relating thereto were stated by him, the parties filed a compromies and at this stage of the judgment the compromise was verified and the learned District Judge further recorded that in view of this compromise and the legal position, the impugned judgment and decree cannot be maintained. Thereafter he passed the following order:—

“The appeal of the appellant is accepted and the judgment and decree of the court below are set-aside and plaintiff's suit is decreed against the defendant in view of the compromise, a decree for ejectment of the suit house is passed in favour of the plaintiff and against the defendant and the defendant is directed to vacate the suit house on 30-9-74. The defendant is further directed to continue to pay the rent of the suit house month by month and if he failed to pay the rent of any two months within this period of two years the plaintiff shall be entitled to get the vacant possession of the suit house even before 30-9-74. If the defendant fails to vacate the suit house on 30-9- 74 or on any other date prior to this date on which the defendant makes any two defaults in making payment of the rent the plaintiff shall be entitled to get possession over the suit house through court by filing execution application. The parties shall bear their own costs of this appeal as well as of the court below. The compromise shall form a part of this decree.”

18. The compromise reads as under:—

19. Now the question arises as to whether the Court was satisfied as to the existence of the grounds of eviction or not. It may be stated that if the plaintiff pleads several grounds for eviction, before passing the decree, it is not necessary for the Court to be satisfied with regard to all the grounds so pleaded. Even If the Court is satisfied in respect to one ground, then this is sufficient for passing the decree for eviction. In the present case the plaintiff came forward with three grounds for eviction. As already stated, two grounds were found againsit him and from the judgment it appears that the contentions, which were advanced before the learned District Judge, related to issue No. 3, as finding on issue No. 5 was already in favour of the plaintiff and the plaintiff could succeed for obtaining a decree for eviction even solely on the ground of default. It may be that the learned District Judge might not have been satisfied on the ground of personal need and on the ground of nuisance. On perusal of the plaint even prima facie it cannot be said that there could be satisfaction of the Court for passing the decree on the ground of nuisance and similarly it can also be said with regard to the ground of reasonable and bona fide need that the court may not have been satisfied on that ground in view of the fact that the finding recorded thereon by the trial court, was against the plaintiff and no arguments seems to have been advanced before the learned District Judge, though the ground was taken in the memo of appeal. The main contention before the learned District Judge was with respect to issue No. 3 regarding service of notice. But still the ground for reasonable and bonafide need was very much there. Apart from that I am convinced that the learned Distt. Judge appeared to be fully satisfied alteast with regard to the existence of grounds of default. The legal position, of which reference has been made by the learned District Judge in his judgment dated 17-8-1972, atleast appears to be in relation to the ground of default, else this observation would not have been made by the learned District Judge that in view of the compromise and the legal position, the impugned judgment and decree cannot be maintained. Although expressly it has not been stated that the defendant is a defaulter and the case is covered under sec. 13(1)(a), but considering the facts and circumstances in the totality and particularly the observations made by the learned District Judge, the conclusion is irresistable that the learned District Judge proceeded to pass the decree after having satisfied himself as to the existence of ground for eviction. Had such a position been not reached, there does not appear to be any valid reason for the tenant to have suffered eviction by entering into compromise. Realising the weakness in his case, compromise was entered into and he availed the benefit of two years stay in the disputed premises. Thus, in the light of what I have considered above, it cannot be found that the decree was passed in disregard of the provisions of Sec. 13(1). So, it cannot be said that the decree is without jurisdiction, nullity and void.

20. It is next argued by Shri Nagori that the compromise has given rise to a fresh tenancy, as a new agreement came into existence between the parties, whereby the rent was enhanced and two years' time was allowed by the plaintiff, and in view of that the decree has become inexecutable In this connection what has to be seen, is the dominant intention of the parties, whether the parties intended to create a new lease or a fresh tenancy or they simply entered into certain terms with a view that ultimately the tenant may vacate the premises under the decree. In Smt. Nai Bahu v. Lala Ramnarayan (supra) the defendants were allowed certain time to vacate the premises and it was further stipulated that if the defendants do not vacate the premises by that date, the plaintiff shall be entitled to execute the decree against the defendants. There was a further agreement regarding payment of rent and mesne profits. Certain constructions were also allowed to be made by the defendants. Their Lordships observed that after a careful consideration of the terms of the compromise and the whole tenor of the compromise petition it is absolutely clear that there was no intention to create a lease between the parties. It was further observed that, “It is the dominant intention of the document which must guide the construction of its contents. In the recitals of the compromise petition in three places it is stated categorically that “the plaintiff shall be entitled to execute her decree against the defendants.” There was, therefore no intention to create a lease with regard to any portion of the property although cetain arrangements had been entered for the intermediate occupation of a certain portion before vacating that portion after expiry of five years. The few alterations and improvements agreed upon by consent were merely an arrangement for vacating two floors and in order to vacate the remaining portion after using it for five years. There was no intention whatsoever to create a new lease. There is, therefore no question of registration of the decree. The submission is devoid of substance. The High Court is, therefore, clearly wrong in holding that a lease was created by the compromise and that the decree was ineffective on account of non-registration.”

21. In Roshan Lal v. Madan Lal (supra) the suit was filed in the year 1966 and proceeded to trial in October, 1967 and some evidence was adduced. Bus eventually, the parties entered into a compromise and presented a petition in January 1968. The trial Court passed a decree for eviction in accordance with the terms of the compromise. One of the terms of the compromise was that the defendant shall vacate the shop-the suit premises by 31-12-1970. On their failure to do so, execution was levied by the respondents. Similarly, in Nagindas Ramdas v. Dalpatram Icharam alies Brijram (supra) the tenant was allowed to continue to remain possession of the suit premises for four years and it was further recorded in the compromise that of the defendant fails to comply with the terms the plaintiffs would be entitled to execute the decree both for the decretal amount as well as for possession of the suit premises. In the instant case on perusal of the compromise and the order, which has been passed by the learned District Judge, it is clear that the dominant intention of the parties was not to create a new lease. The plaintiff will have a right to execute is pre-dominant in the compromise. Not only the plaintiff has been given right to execute the decree after 30-9-1974, but the plaintiff has been conferred with the right to execute the decree even before the expiry of two years, that is, before 30-9-1974, if the defendant commits default inpayment of rent for two months. It is true that the rent has been enhanced from Rs. 25/- per month to Rs. 40/- per month. Because of enhancement of rent alone, it cannot be said that a new lease has arisen between the parties. The expression “rent” is to be considered in this light that this amount has been fixed between the parties in vtew of the fact that the defendant has been allowed to continue in the disputed premises for two years. For this use and occupation the amount had been agreed between the parties. On account of this agreement between the parties, the dominant intention is not in any way reflected to be creation of tenancy. Thus, this contention too has no force.

22. Shri Nagori then argued that decree for eviction could not have been passed in veiw of the fact that the defendant paid 11 months' rent amounting to Rs. 275/- and Rs. 7/- interest thereon, total Rs. 282/- on 17.3.1969, the date this rent was determined. He poined out that the first date of hearing was 3.2.1969 On that date the learned counsel for the defendant sought time to file written statement and 10.3.1969 was fixed. Thereafter, the case was adjourned to 17.3.1969 and on that date the court proceeded to determined the amount of rent under section 13(4) of the Act. The plaintiff having accepted the rent on that date waived the ground of default and this ground could not be available to him. He submitted that under sub-section (7) of section 13 the court is not empowered to pass a decree for eviction in case the tenant complies with the provisions contained in sub-section (4) and (5) of section 13 of the Act. Alternatively he argued that it should be deemed that the court had extended the time upto 17-3-1969, as the payment was made within two months. Upto twe months the court could extend the time. By implication, it should be found that the court extended the time and so compliance has been made by the defendant. With regard to the plea of waiver, he referred to a decision of this Court in Bundu v. Smt. Hashmat (11) and he also referred to a decision of this Court in Lalchand v. Sant Ram (12) with regard to the power of extension of time for payment of rent. With regard to these contentions, firstly, it may be stated that these objections have not been raised by the appellant in the objections submitted by him before the executing court, so the appellant cannot be allowed to raise these objections for the first time in this appeal. Even otherwise so far as the objection regarding waiver is concerned, it may be stated that the same is not available to the appellant in execution. The appellant ought to have raised this objection in the suit itself. Acceptance of amout of rent, when the same is determined by the court, may amount to waiver, but on that basis he could have contested the suit and submitted before the court that on that ground of default no decree for eviction can be passed. If a decree has been passed in disregard of any provision of law or on any erroneous view of the law, the same cannot be made the subject matter of challenge before the executing court unless the decree is absolutely void and without jurisdiction and is nullity. In Ittyavira Mathai v. Varkey Varkey (13) it was observed that where a court having jurisdiction over the subject-matter and the party, passes a decree it cannot be treated as a nullity and ignored in subsequent litigation even if the suit is one barred by time. It was further observed that if the suit was barred by time and yet, the coutr would be committing an illegality and therefore the aggrieved party would be entitled to have the decree set aside by preferring an appeal against it. It was further observed as under:—

“But it is well settled that a court having jurisdiction over the subject-matter of the suit and over the parties thereto, though bound to decide right may decide wrong, and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and, therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. Courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities.

It is true that S. 3 of the Limitation Act is pre-emptory and that it is the duty of the court to take notice of this provision and give effect to it even though the point of limitation is not referred to in the pleadings. Even so it cannot be said that where the court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the Civil Procedure Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.”

23. In viev of the above observations it is clear that the decree cannot be set at naught simply on the ground that the court ought not to have passed the decree, because the plaintiff accepted the amount of rent and the ground of default was not available to him. Even as regards the alternative argument it may be stated that under Sec. 13(4) of the Act, as it stood at the relevant time, the court is required to pass an order for extension of time. The provision contained in sub-section (4) of Sec. 13 of the Act, contemplates that the tenant shall, on the first date of hearing or on or before such date as the court may, on an application made to it, fix in this behalf, or within such time, not exceeding two months, as may be extended by the court, deposit the requisite amount in court or pay to the landlord. Thus, an application is required to be made by the tenant and on that application the court may fix the date. In the instant case neither any application has been moved by the tenant for fixing the date for payment of rent, nor any order has been passed by the court extending the time beyond the first date of hearing. The application, which was moved by the tenant, was simply for determination of rent. That application was not made on the first date of hearing, but was made on 17.3.1969, the date on which the rent was determined. Even if it is found that impliedly the court extended the time upto 17.3.1969, still when a decree has been passed, it is not open to the executing court to go into the question of passing of the decree in disregard of the provisions of law, as considered while examining the contention of waiver. Thus, even on merits both these contentions are devoid of any force, although these contentions are new.

24. No other pomt survives for consideration nor any other point has been pressed before me. In the result, this appeal has no force, so it is hereby dismissed with costs.