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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs.  8256-8257 OF 2018 (Arising out of Special Leave Petition (Civil) Nos.24615-24616 of 2017)

M/s Alagu Pharmacy & Ors.      ……Appellants

Versus

N. Magudeswari          ..…. Respondent   

JUDGMENT

Uday Umesh Lalit, J.

Leave granted.

2. This  appeal  is  directed  against  the  final  judgment  and order  dated

29.03.2016 in  Civil  Revision Petition (NPD) No.586 of  2016 as  well  as

against the order dated 02.12.2016 in Review Petition No.89 of 2016 in said

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Civil Revision Petition (NPD) No.586 of 2016 passed by the High Court of

Judicature at Madras, Bench at Madurai.

3. The appellants 2 to 4 are doing business in the name and style of M/s

Alagu Pharmacy i.e. the appellant No.1. The appellants claim to be tenants

in the suit property owned by the respondent herein since 1998.  On or about

22.02.2012  a  lease  agreement  was  entered  into,  which  according  to  the

appellants was signed by the respondent, extending/renewing the period of

lease.   On  13.11.2013  and  07.12.2013  the  respondent  had  issued  legal

notices calling upon the appellants to vacate the suit property alleging inter

alia  that  the  lease  agreement  dated  22.02.2012  was  not  signed  by  the

respondent and was a forged document, to which reply was given by the

appellants on 17.01.2014.  On 17.01.2014 itself a complaint (Exh.P-10) was

lodged by the respondent alleging commission of forgery. According to the

appellants, on 20.01.2014 the respondent alongwith her husband and some

henchmen  tried  to  evict  the  appellants  which  attempt  was  successfully

resisted by the appellants.  In the circumstances, O.S. No.135 of 2014 was

filed by the appellants on 21.01.2014 seeking relief of permanent injunction

against the respondent from interfering with their peaceful possession and

enjoyment of the suit property save and except by due process of law.  After

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hearing the appellants, an ad interim injunction was granted by the District

Munsif, Coimbatore.

4. It appears that on 29.01.2014 a compromise (Exh.P-11) was entered

into  between  the  appellants  and  the  respondent.   It  is  the  case  of  the

appellants that they were summoned to the police station in connection with

the complaint lodged by the respondent (Exh.P-10) and under the pressure

employed by the police, said Exh. P-11 was entered into. Soon thereafter  an

Eviction Petition  i.e. R.C.O.P. No.29 of 2014 was filed by the respondent

before the Principal Rent Controller-cum-District Munsif, Coimbatore  for

eviction of the appellants.  It is the case of the appellant that they were again

asked to  appear  before  the  police  on 27.03.2014 and under  the  pressure

exerted  by the police a compromise deed was entered into under which the

appellants agreed to vacate the suit property.  Said compromise deed was

presented before the Court on 28.03.2014 and  following order was passed

by the Rent Controller and Principal District Munsif,  Coimbatore:

“Petition  dated  08.02.2014  filed  under  Section  10(2)(ii)(a), 10(3)(c)  of  Tamil  Nadu  Buildings  (Lease  and  Rent  Control) Act,  1960  and  the  petitioner  filed  this  petition  against  the respondents  to  vacate  the premises and to deliver  the vacant possession  of  the  petition  mentioned  property  more  fully described hereunder in the schedule and cost of this petition.

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This petition coming on this day for hearing before me in the presence of  Thiru.  M.  Sanjaiyan,  Advocate  for  petitioner and of Thiru. Somasundaram, Advocate for respondent.  Both parties  filed compromise memo and both parties  present  and this day this Court doth order direct as follows:

1. That the respondents  be and are  hereby granted time  upto  31.10.2015  to  vacate  the  petition mentioned  property  and to  handover  the  vacant possession of the same to the petitioner/landlord and

2. That the respondents are hereby directed to pay the present monthly rent of Rs.19080/- pm to the petitioner/landlord  till  the  date  of  delivery  of possession of the property (i.e. upto 31.10.2015) by way of cheque; and  

3. That  in  case  of  default  to  do  so  by  the respondents,  the  petitioners  are  entitled  to  take appropriate action through court of law against the respondents.

4. The compromise petition do form part of this final order, and  

5. That there be no order as to cost.”

5. On  07.10.2015, a letter was sent by the respondent calling upon the

appellants to vacate the premises by 31.10.2015 in terms of the aforesaid

compromise  decree.   On  07.12.2015,  an  appeal  being  R.C.A.  (CFR)

No.31591  of  2015  was  filed  by  the  appellants  before  the  Principal

Subordinate  Judge,  Coimbatore  against  the  aforesaid  compromise  decree

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dated  28.03.2014.   Along with said  appeal  IA No.465 of  2015 was also

preferred seeking condonation of delay of 604 days in filing said appeal.   

6. The respondent having contested the matter, said IA No.465 of 2015

was taken up for consideration by the appellate court.  It was submitted on

behalf  of  the  appellants  that  they  were  pressurized  into  signing  the

compromise  deed  and  said  compromise  was  brought  about  because  of

pressure exerted by the police.  Reliance was placed on complaint Exh.P-10

by the respondent and compromise letter Exh.P-11 dated 29.01.2014.  On

the other hand, it was submitted on behalf of the respondent that there were

numerous  occasions  for  the  appellants  to  raise  a  grievance  that  the

compromise in question was brought  about by coercion and yet  no such

objection was ever raised.  It was, therefore, submitted that the delay of 604

days in preferring the appeal ought not to be condoned.   

7. The appellate court by its Order dated 19.01.2016 accepted said IA

No.465 of 2015 and condoned the delay subject to payment of Rs.2000/- by

the appellants to the respondent.  It was observed by the appellate court as

under:  

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“8. The main  contention  of  the  respondent  is  compromise made  before  the  trial  court  with  free  will  and  now  the respondent  is  tried  to  drag on the matter  and preventing the respondent from enjoying the fruit source of the compromise decree.   On  the  side  of  respondent  Ex.R1  and  R4  marked. Ex.R1 compromise memo; R2 document for already received the certified copy of  fair  and final  order;  R3 letter  from the respondent to the petitioner; R4 postal acknowledgement.  On perusal of respondent side documents to disprove the facts of Ex.P-10  and  Ex.P-11  no  documents  have  been  filed.   The landlord-tenant relationship is admitted.  The allegations made by the respondent  against  the petitioners  is  lease deed dated 22.02.2012 is forged one and complaint has been given to the police  regarding  the  forged  documents  and  the  petitioners themselves come to the agreement they are undertake to vacate the  petition  mentioned  property,  there  is  no  police  threat  or complaint or coercion by the police or by the respondent.  In order to consider the documents filed by the petitioners Ex.P-10 is  the  police  complaint,  prepared  by  the  respondent Magudeswari  against  the  2nd petitioner/appellant.   In  the complaint the allegations made against the 2nd petitioner is that there is life threat  to the respondents and the lease deed has been created by the 2nd petitioner by forging the signature of the respondent and requesting the police to take proper legal action against  the  2nd petitioner.   Once  the  written  complaint  filed before the police mentioning the name of the accused,   if the police finds it is true for that police have to register FIR against the accused and proceed with the investigation as per law.  But on perusing of  Exh.P-11 compromise letter  dated 29.01.2014 between the respondent and the 2nd petitioner addressing to the inspector  of  police,  City Crime Branch.   In  continuation the RCOP  has  been  filed  and  memo  of  compromise  filed, compromise decree has been passed.  As stated above the duty of the police is only to register the case against the accused and proceed against the accused for the offence committed for the crime, they are not entitled to make any compromise against the crime unless and until it is provided by law and further before when compromise arrived at  court,  the previous compromise has been arrived at police station.  From Ex.P-11 itself there

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arises suspicion whether the petitioner has put into any force or any threat  to make the compromise before the court.   Hence from the above discussions there is a police force with regard to file  the  compromise  regarding  RCOP 29/14  and  previously compromise letter has been arrived before the police.   Hence there is  a suspicion arises petitioner must be put into any threat or  coercion  at  the  time  of  filing  the  compromise  memo  in RCOP and now the petitioner filed the petition to condone the delay of 604 days.  Hence from the above discussions it is clear the petitioners have explained the delay of 604 days in filing the appeal  and  the  explanation  submitted  by  the  petitioners  is acceptable one.”

8. The aforesaid order was challenged by the  respondent by preferring

Civil Revision Petition before the High Court of Judicature at Madras which

Revision  Petition  was  allowed  by  the  High  Court  vide  its  orders  dated

29.03.2016.  It was observed by the High Court as under:

“5. There are two courses open to the tenants.  One is that the tenants would have stated before the Court which recorded the compromise  that  the  compromise  was  out  of  compulsion  or coercion  on  the  part  of  the  police  during  enquiry  of  the complaint  preferred by the landlady.  In that  case,  the Court which  recorded  the  compromise  would  have  dealt  with  that issue.  That is not the case here.  When that is not the case, it is far fetched for the appellate court to come to a conclusion that the tenants might have been put into coercion or force before entering into the compromise.   It  is  equally probable that  in order to get the closure of complaint, the tenants would have opted to enter into a compromise and thereafter, the tenants are put forth an allegation of invalidity of compromise.  Even if the tenants had some difficulty in expressing themselves before the trial court, the appeal would have been filed immediately after the compromise decree, if there had been any vitiating factors

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while entering into the compromise.  But, the appeal had not been filed in time.  Therefore, the conduct of the tenants would only indicate the procrastinating approach in dealing with their case.”

9. The appellants preferred a review petition which was rejected by the

High Court on 02.12.2016.  This appeal challenges the correctness of both

the orders passed by the High Court. We heard Mr. Ratnakar Dash, learned

Senior  Advocate  for  the  appellants  and  Mr.  S.  Thananjayan,  learned

Advocate appearing for the respondent.

10. The  order  passed  by  the  appellate  court  shows  that  compromise

Exh.P-11 was brought about on 29.01.2014 that is even before the eviction

petition was filed by the respondent.  Further, said compromise Exh.P-11

was addressed to the Inspector of Police, City Crime Branch.  The appellate

court had further observed that complaint Exh.P-10 and compromise Exh.P-

11 were not disputed by the respondent and no document in rebuttal was

filed.  The complaint (Exh.P-10) proceeds on a premise that the lease deed

dated 22.02.2012 was a forged document and there was no relationship of

landlord-tenant  between  the  parties.   Yet  an  eviction  petition  was  filed,

seeking eviction of the appellants under the concerned Rent Act.  There is an

inherent  contradiction  in  the  stand  adopted  by  the  Respondent.   In  the

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circumstances,  the  assertion  made  by  the  appellants  that  pressure  was

exerted  through  the  police  and  they  were  compelled  to  enter  into

compromise  is  prima  facie  acceptable.   In  Ajad  Singh  v.  Chatra  and

Others1, compromise recorded in Police Station inter alia was not found to

be acceptable by this Court and the matter was remanded.  It was observed,

“…..the appellate court ought to have taken note of the fact that the said

compromise was recorded in the Police Station and during the pendency of

the suit.”  It is true that there was a delay of 604 days in filing the appeal, but

in cases where there is reasonable doubt that police may have forced a party

to enter into compromise, the process of Court ought to weigh in favour of a

party who alleges to be victim of such pressure.  It may be pertinent to note

that the order passed by the High Court does not even deal with this aspect

nor was any submission made that the assessment made by the appellate

court was in any way incorrect or imperfect.

11. Further, eviction petition was filed seeking eviction of the appellants

under  Section  10(2)(ii)(a),  10(3)(c)  of  Tamil  Nadu Buildings  (Lease  and

Rent Control) Act, 1960.  Said Sections are as under:

1 (2005) 2 SCC 567 (para 8)

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“10(2)  A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after  giving  the  tenant  a  reasonable  opportunity  of  showing cause against the application, is satisfied-

…….

(ii)  that  the  tenant  has  after  the  23rd  October  1945 without the written consent of the landlord-  

(a) transferred his right under the lease or sublet the entire  building or  any portion thereof,   if  the lease does not confer on him any right to do so, or  …..

                         .….

(3) …….

(c)  A landlord  who is  occupying  only  a  part  of  a building, whether residential or non-residential, may, notwithstanding  anything  contained  in  clause  (a), apply  to  the  Controller  for  an  order  directing  any tenant  occupying  the  whole  or  any  portion  of  the remaining part of the building to put the landlord in possession  thereof,  if  he  requires  additional accommodation  for  residential  purposes  or  for purposes of a business which he is carrying on, as the case may be.”

12. The eviction in terms of the aforesaid provisions can be ordered only

if the concerned Rent Controller or Court is satisfied that the ground seeking

eviction is made out.  It has been held by this Court that unless and until

ground seeking eviction in terms of the concerned contract is not made out,

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no eviction of a tenant can be ordered, even if the parties had entered into a

compromise.  For  example,  in  K.K.  Chari  v.  R.M.  Seshadri2 this  Court

considered its earlier decisions in three cases as under:-

“20. There are three decisions of this Court which require to be considered. In Bahadur Singh v.  Muni Subrat Dass3 a decree for eviction passed on the basis of a compromise between the parties, was held, by this Court, to be a nullity as contravening Section 13(1) of the Delhi and Ajmer Rent Control Act, 1952. The facts therein were as follows:

“The  tenant  and  the  son  of  the  landlord  referred  the disputes between them to arbitration. The landlord was not a party to this agreement. The arbitrators passed an award  whereunder  the  tenant  was  to  give  vacant possession  of  the  premises  in  favour  of  the  landlord within a particular time. This award was made a decree of court.  The landlord, who was neither a party to the award  nor  to  the  proceedings,  which  resulted  in  the award being made a decree of court, applied for eviction of  the  tenant  on  the  basis  of  the  award.  The  tenant resisted  execution  by  raising  various  objections  under Section 47 of the Code of Civil Procedure. One of the objections was that the decree for eviction based upon the award was a nullity as being opposed to the Delhi and Ajmer Rent Control Act, 1952. This Court held that the decree directing the tenant to deliver  possession of the premises to the landlord was a nullity, as it was passed in contravention  of  Section  13(1)  of  the  relevant  statute. After quoting the sub-section, this Court further held that the decree for eviction passed according to an award, in a proceeding to  which the landlord  was not  a  party and without the court satisfying itself that a statutory ground of eviction existed, was a nullity and cannot be enforced

2 (1973) 1 SCC 761 3 (1969) 2 SCR 432

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in execution. It will be seen from this decision that the decree was held to be a nullity because the landlord was not a party thereto, and also because the court had not satisfied itself that a ground for eviction, as required by the statute, existed. This decision is certainly an authority for the proposition that a court ordering eviction has to satisfy itself that a statutory ground of eviction has been made out by a landlord. How exactly that satisfaction is to  be  expressed  by  the  court  or  gathered  from  the materials, has not been laid down in this decision, as this court was not faced with such a problem.”

21. In Kaushalya Devi v. Shri K.L. Bansal4 the question again rose under the same Delhi statute regarding the validity of a decree passed for eviction on compromise. The plaintiff therein filed a suit for eviction of the tenant on two grounds—

(a) the premises were required for their own use; and (b)the  tenant  had  committed  default  in  payment  of rent.

22. The  tenant  filed  a  written  statement  denying  both  these allegations. He disputed the claim of the landlord regarding his requiring the premises for his own use bona fide and also the fact of his being in arrears. When the pleadings of the landlord and  the  tenant  were  in  this  state,  both  parties  filed  a compromise memo in and by which they agreed to the passing of a decree of eviction against the tenant. Representations to the same effect were also made by the counsel for both parties. The court passed the following order:

“In view of the statement of  the parties’ counsel and the written compromise, a decree is passed in favour of the plaintiff against the defendant.”

The tenant did not vacate the premises within the time mentioned as per the compromise memo. On the other hand,

4 (1969) 1 SCC 59

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he  filed  an  application  under  Section  47  of  the  Civil Procedure Code pleading that the decree is void as being in contravention of Section 13 of the Delhi statute. The High Court held that the decree was a nullity, as the order was passed  solely  on  the  basis  of  the  compromise  without indicating  that  any of  the  statutory grounds mentioned in Section  13  existed.  Following  the  decision  in  Bahadur Singh this Court upheld the order of the High Court. Here again, it will be seen that the manner in which the court’s satisfaction is to be expressed or gathered has not been dealt with.

23. A similar  question  came  up  again  before  this  Court  in Ferozi Lal Jain v. Man Mal5. The landlord filed an application for eviction of the tenant on the ground that he had sublet the premises without obtaining his consent in writing. Subletting, without the consent of the landlord in writing, was one of the grounds,  under  Section  13(1)  of  the Delhi  statute  entitling  a landlord to ask for eviction. The tenant denied the allegation that he had sublet the premises. Both the landlord and the tenant entered into a compromise and the court,  after  recording the same, passed the following order:

“As per compromise, decree for ejectment and for Rs 165 with proportionate costs is passed in favour of the plaintiff and against the defendant.  The parties shall be bound by the terms of the compromise. The terms of  the  compromise  be  incorporated  in  the  decree- sheet....”

24. As the tenant did not surrender possession of the properties within  the  time  mentioned  in  the  compromise  memo,  the landlord  levied  execution.  It  was  resisted  by  the  tenant  on various grounds one of which was that the decree for eviction was a nullity, being in contravention of Section 13 of the Delhi Statute. This contention was accepted by the execution court, as well as by the High Court. This Court, after a reference to the

5 (1970) 3 SCC 181

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provisions  of  Section  13,  held  that  a  decree  for  recovery  of possession can be passed only if the court concerned is satisfied that  one or  other  of  the grounds mentioned in  the section is established. This Court, further observed:

“From the facts mentioned earlier, it is seen that at no stage, the Court was called upon to apply its mind to the question whether the alleged subletting is true or not.  Order  made  by  it  does  not  show  that  it  was satisfied that the subletting complained of has taken place,  nor  is  there  any  other  material  on  record  to show  that  it  was  so  satisfied.  It  is  clear  from  the record that the court had proceeded solely on the basis of the compromise arrived at between the parties. That being so there can be hardly any doubt that the court was  not  competent  to  pass  the  impugned  decree. Hence the decree under execution must be held to be a nullity.”

13. In  Nagindas  Ramdas  v.  Dalpatram  Ichharam  alias  Brijram  and

Others6 it was stated:-

“17. It  will  thus  be  seen  that  the  Delhi  Rent  Act  and  the Madras  Rent  Act  expressly  forbid  the  Rent  Court  or  the Tribunal from passing a decree or order of eviction on a ground which  is  not  any  of  the  grounds  mentioned  in  the  relevant Sections  of  those  statutes.  Nevertheless,  such  a  prohibitory mandate to the Rent Court that it shall not travel beyond the statutory grounds mentioned in Sections 12 and 13, and to the parties  that  they  shall  not  contract  out  of  those  statutory grounds, is inherent in the public policy built into the statute (Bombay Rent Act).

6 (1974) 1 SCC 242

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18. In Rasiklal Chunilal case, a Division Bench of the Gujarat High Court has taken the view that in spite of the fact that there is  no  express  provision in  the  Bombay Rent  Act  prohibiting contracting out, such a prohibition would have to be read by implication consistently with the public policy underlying this welfare measure. If we may say so with respect, this is a correct approach to the problem.

19. Construing the provisions of Sections 12, 13 and 28 of the Bombay  Rent  Act  in  the  light  of  the  public  policy  which permeates the entire scheme and structure of the Act, there is no escape from the conclusion that the Rent Court under this 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  ultra  vires  the  Act.  The  existence  of  one  of  the statutory grounds mentioned in Sections 12 and 13 is a sine qua non to the exercise of jurisdiction by the Rent Court under these provisions.  Even parties  cannot  by their  consent  confer  such jurisdiction  on  the  Rent  Court  to  do  something  which, according to the legislative mandate, it could not do.  ….   22. The mere fact that Order 23 Rule 3, of the Code of Civil Procedure is applicable to the proceedings in a suit under the Bombay  Rent  Act,  does  not  remove  that  fetter  on  the  Rent Court or empower it to make a decree for eviction de hors the statute. Even under that provision of the Code, the Court, before ordering that the compromise be recorded, is required to satisfy itself about the lawfulness of the agreement. Such lawfulness or otherwise of the agreement is to be judged, also on the ground whether the terms of the compromise are consistent  with the provisions of the Rent Act. ….

27. 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

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existence of a statutory ground for eviction, it will be presumed that  the  Court  was  so  satisfied  and  the  decree  for  eviction though apparently 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  far  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 a 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.”

14. The common thread that runs through the aforesaid pronouncements

of this Court is – in cases where protection under a Rent Act is available, no

eviction can be ordered unless ground seeking eviction is made out, even if

parties  had entered into a compromise.   Moreover,  the invalidity  on that

count can even be raised in execution.  In the present case, the order dated

28.03.2014 did not remotely note that any particular ground under the Rent

Act was made out.   

15. In the circumstances, in our considered view, the order passed by the

appellate court was absolutely correct and did not call for any interference

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on part of the High Court.   We, therefore, allow the present appeals and

restore  the  order  dated  19.01.2016  passed  by  the  appellate  court  in  IA

No.465 of 2015.  The appeal shall now be heard on merits and disposed of in

accordance with law.  Since there was delay of more than 600 days on part

of the appellants, we direct that the appellants shall pay costs of Rs.50,000/-

to the respondent which shall be over and above that already imposed by the

appellant court and shall be made over within six weeks from this Judgment.

The appeals stand allowed in the aforesaid terms.

..………………………J. (Abhay Manohar Sapre)

..……………………… J. (Uday Umesh Lalit)

New Delhi, August 14, 2018.