NAGINDAS RAMDAS versus DALPATRAM ICHHARAM@ BRIJRAM AND ORS.

544 NAGINDAS RAMDAS ''· DALPATRAM ICHHARAM@ BRIJRAM AND ORS. November 30, 1973 [D. G. PALEKAR, V. R. KRISHNA !YER AND R. S. SARKARI A, JJ,) Bombay Rent Act, 1947, Ss. 12 and 13-Compromise decree for evlction-Wf!tn may M passed. The rcspondcnt·1andlord instituted suit under the flomboy Rent Act ror possession against the appellant-tenant on two Founds, namely, arrears in IXlYmtnt of rent and bona fide requorement of the prcnuscs for personal use and occupotion. compromise decree was passed. When the appellant apphcd for e=ution of the decree, the appellant contended intc; alia \hat the compromi.<C dccnx had been passed by the Rent Court wtthout sattsfymg tlself ns to the exoslcucc of &rounds of eviction under the Act and hence, bcmg 11 nulhty, was not executable. The Executing Court accepted the contention. _In appeal, the nppellate. Court.sct aside the <fumissa1 and remanded the matter holdms that there were admtss.oons m the comprollllSC it· self from which the Court could be satisfied nbout the c.'istencc of both the natutary grounds for eviction alleged in the plnint. revision to the High Court w-~ di;. missed. Dismissing the appeal to this Court, HELD : (I) Tho public policy permeating thL• Act is the protection of ltoan~> against unreasonable eviction. Construing the provisioros of s.l2.13 and 28 of the Act in the light of th~ policy, it should be held that the Rent Court under the Act "' cot competent to lY.lSS deem: for possession either in in>itum or with the consem of the parties on ground which "de/tors the Act or ultra vir<' the Act. TheW... ten<:e of one of the stntutory grounds mentioned in s. 12 and 13 is o si!lt qliiZ 110n to the aercisc of junschction by the Rc!ll Court. Parties, by their consent cannot confer jurisdicuon on the Rent Court to do something which, according to the legi:Jalive mandate, it could not do. {550C-E] Shah Rmlkfal Chwrilal v. Sindhl Shyumla/ Mulchand, 12 Guj. La1v Rcporttr 1012, approved. Dunon v. Fiachom, (19~11 2 K. n. 291 at 299, applied. (2) The fact that 0. 23 r. 3, C.P.C., i! applicable to the pr~"lliogs does not remove that fetter or empower the Rent Court to make d<'Cn:<: for evtction dzlwn the statu i.e. Even. under that prov~ion. the Court, be foro ordcnng that the compro-Such miSe be lawfuln= rccordtd, or IS otlw:rwi.se n:qum:d to of sausfy the agrtlemcnt is 1L'>Cif al>out to the be lawfuln= judged also of the on agreement the ground 1 "'hcthcr ~rms of the compromise oro.> consostcnt with th\0 provi>ions of tha Rent Act, (55JA.C] (3) Dul, lf at the time of the passing of the dccrt:e there was some matetiU be-fore the Court on the bas~ of which the Court could prima facie be suu.sfit:d nbout the exm~!'ce of $latutory ground fur eviction, it will be presumed .that the compromise: coun WiiJ ""QUSflcd ~vould be valid. and the Such decree material fur eviction may be though in form pa.'ISN of evidence on the roconkd~ b:lSIS ofthC produced or II rn:l)' be partly or. wholly bo tn the shape of ~'pn.-;s or unpl~ •• udmtSJ.tons nude on tho compronll5e ngn:cmenl. Admissoous tf tnoe ami cl~r .-by fa~ the be>t PI'O<Jf of lite facts adoniucd e<JX."Cially when they arcjuuidal adn[11]"""" admt>,.blc under 1. ~H, Evidcn.;:e Act. [552l'·H) m~s'!" ln the pruhts J?<=nt at_ th'l' ca<e, contractual bcc:luS<l of mtc the "!ld admission the withdr.t\\to pay 1ng of the his urrears apph-"U~f ['!RI [1]"~ t~ ll.auon of ttand'u.d rent, th~r•. was no do.putc with regan!"' Ute amount ot :;t:l. of rent, the>e and matenal th..~ f~tcu »at con.~lltute an :>dnu.<>ton Q ground that rur ~he eviction 1\:nt was under in um:aN. 1, 12 (3JI(a). The [55JB·DI adonisst<>!' JJn!'a4ur Singh v. Mun/ Sul>rut Duss, [19691 2 S.C.R. 432, Kt~ush.llra Dj;7;j 3 Slt~l S.C.C. 1\. L J~l, Ba11>ufherd 1 (1969) 2 tnapphcablc. S.CR. Ji14:S, an<J FttC!:I Lui Juin v. M"" ,ll<li.(

K. K. Chari v. B. M. Seshadri, (1973] 1 S.C.R. 761, followed. Jt~hw(llll RaJ Mulukchand v. ,Anandila!- Bapala!, · [196S] 2, S.C.R. 3SO, dis-tilliuished.

· (4) Further 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 coulJ be satisfied with regard to the existence of statutory ground for eviction. If on the face of it the decree does not show the existence of such material or juris-B 4ictional fact, the Executing Court may look to the original record of the trial court *o ascertain whether there was any material furnishing foundation for the trial court's jurisdiction to pass the decree. The moment it finds that prima facie ·such material existed its task is complete, and it was not competent to go behind the decree and question its validity. [SS3G·SS4B]

CIVIL APPELLATE JURISDICTION : Civil ApPeal No. 2479 (N) of 1972.

Appeal by Special Leave from the judgment and order dated the 26th O;:tober 1972 of the Gujarat High Court at Ahmedabad in Civil Re-visicu Application Ko. 1254 of 1972.

S. K. Dlwk1kia, for the appellant. ·

1'. jJ. Part~h and Sunanda Blzandare, for the respondents.

Tl:t> Jndga:er.t of the Court was delivered by

SAil.KARIA, J.-Whether the decree. dated September 23, 1964, pas.;.;;t! by the Trial Judge in Regular Suit No.6 of 1963, filed under the . Boi:J.b:ly Rent Control Act, 1947 (for short, C<!lled Bombay Rent Act) directing the eviction of th' appellant is nullity and, as such, inexe-. cutable, is the only question that falls for decision in this appeal by specia1leave. It arises out ?f these facts:

.t\ppellant was tenan't of the premises at Ward No. 3, Nondh No. 1823/9 in the Salabatpur area of Surat. He was in arrears of rent since 16·1()..1961. On 16-11·1962, the landlords (respondents herein) served notice on the appellant terminating his tenancy and also re-quiring him to pay the arrears of rent. On 2-1-1964, the landlords instituted the suit in the Court at Surat for possession against the tenant on two grounds, namely : on two grounds, namely : two grounds, namely :

tenant on two grounds, namely : on two grounds, namely : two grounds, namely : (i) non-payment of rent in arrears for period of more than one '. r year, . ;· 1

(ii) bona fide requirement of the premises by the landlords for · their own use and occupation. ·

The rate of contractual rent was Rs. 15/- per month. On 23-9-1964 the parties at:rlved at compromise, the terms of which, as incorpora-G ted in the decree, were as under.:

"(I) The defe; .. u.!ant do hand over possession of the suit premises by 30-9-1968 without any objection. The tenant to pay Rs. 532·50 P as arrears of · rent and. mesne profits upto 3()..9-1964. The plaintiff is to · receive Rs. 380/- deposited by the defendant in court and the remaining amount is to be paid by the defendant to· the plaintiffs on or about 31-12-1964. The defendant is to pay Rs. 1 Sf-p. m. as mesne profits from 1-1()..1964.

. ··~ ~-

(ii) The relationship of the landlord and tenant between the parties has come to an end and no· such relation-ship is to be created by the compromise. The defen-dant has been given time to vacate the suit premises by way of grace. If the defendant fails to comply with the aforesaid terms of the decree, the plaintiffs would be entitled to execute the decree both for the decretal amount as well as for possession of the suit premises.

(iii) If the plaintiffs get for the defendant the lease of the premises bearing Nondh No. 1602 of Ward No. 3 on monthly rent of Rs. 50/- the defendant is to. hand over the possession of the suit premises immediately.

(v) The parties are to bear their own costs."

On 12-1-1968, the landlords filed petition for execution of the decree. It was dismissed as pre-mature. The tenant having failed to pay Rs. 152/50 i.e. the balance of arrears. by the agreed date, the decree-holders on 17-1-1968, again took out execution for the re-covery of the said amount. Thereafter, on 3-10-1968, the landlords filed the second petition to recover possession of the suit premises in ,execution of the decree.

The tenant admitted that he had, according to the compromise, • agreed to give possession on 30-9-1968, but added that in 1968 A.b., the ground floor of the premises bad become submerged in ~ood waters, and thereupon the decree-holders seeing his (tenant's) plight, orally agreed to allow him to continue in the premises on payment of monthly rent of Rs. 15/-. and thus the decree had been adjusted and satisfied. Subsequently, by another application, th~ judgment· debtor raised an objection that since the decree had been passed by the c;ourt without satisfying itself as to the existence of ground of evic-tion under the Bombay Rent Act, it was nullity, and as such, not executable. · -·

~e executing court (Joint Civil Judge, Surat) rejected the story of .adJ~stment. and satisfaction of the decree, but accepted the. other obJection holdmg that the decree was void because "the Court d1d not apply its mind while allowing it under s. 13 (I) (j), Rent Act". With regard to the second ground it was said that it had ceased to exist because "under the terms of compromise the default in payment of rent was waived and the defendant was given time to pay up to 30-9-68''. In the result, the execution was dismissed.

From the order of the executing court, the decree-holders carried an appeal to the Extra Assistant Judge, Surat, who held that there was ample material in the shape of admissions in the compromise. itself, from which the court could be sati ~ fic-d about the existence of both the statutory grounds ,. or eviction alleged in the plaint. He, therefore, set aside the dismissal of the execution and remanded the case to the executing court "to be dealt with in accordance with Jaw". Aggrieved by that order of the Extra Assistant Judge, the tenant preferred

NAGINDAS v. DALPATP.AM (Sarkaria, 1.)

revision petition in the High Court of Gujarat,. The revision was dismissed in limine by an order dated 26-10-1972, against ~hich this appeal by ,special leave has been filed.

Mr. Dholakia, learned Counsel for the appellant, contends that in view of public policy which underlies all Rent Control Acts, including the Bombay Rent Act, no decree or order of evictio""' <:an be passed unless the Rent Court or Tribunal is satisfied, on tbt oasis of extrin-sic material as to the existence of all the essential facts constituting statutory ground for eviction, It is stressed that in the instant case the material, if any, preceding the decree or even the . so-called admission. of the rent being in arrears in the compromise itself, was far too insufficient to make out ground for eviction under s;. 12(3) of the Bombay Rent Act. Clause (a) of s. 12(3), proceeds the argu-ment, could not cover the case because the tenant had deposited the rent due upto the date of the suit and had also made .an application for fixation -or standard rent; and clause (b) of the same sub-section did not apply because no interim standard rent had been fixed by the Court. As regards the gro.und of bona fide personal requirement of the land-lords, it is urged that there was not even scintilla of ma-terial from which the satisfaction of the court as to the existence of 0 ground under s. 13 could be spelled out. The decree, concludes the Counsel, being based solely on the consent of the partiee, was nullity, and was directly hit by the rule laid down by this Court in Bohadur Singh v. Muni Subrat Dass;(l) Kaushalya Devi v. Shri K. L. Bonsa/(2) and Ferozi La/ Ja;n v. Man Mal (3). Learned Counsel has further attempted to distinguish this Court's decision in K. K. Chari v. R. M. Seshadri (4) on the ground that there was documentary and oral evidence of the plaintiff which had not been challenged in cross-examination, from which the statutory ground of the premises being required by the landlord for bona fide personal os:cupation, had been fully made out. Reference has also been made to Jeshwant Rai Mulukchand v. Anandilal Bapalal(~ and Shah Rasiklal Chwnilal v. Sindhi Shyamlal Mulchand(6). ·

On the other hand, Mr. Parekh, learned Counsel for·the respon· dent!, has canvassed three principal contentions: (i) The appeal should be dismissed on the preliminary ground that there is no equity in this case in favour of the appellant who has, in spite of the ample time granted to him, contumaciously failed to comply with the decree and surrender possession even five years after the expiry of the agreed date fixed for this purpose in the decree. Counsel has cited in support of this contention, the decisions of this Court in A. M. Allison v. R. L. Sen (1) and Shri Balwantrai Chimanlal Trivedi v. M. N. Nagreshna an4 ors. [1]) (ii) The principle laid down by (1) (1969]2, S.C.R. 432. (2) [1969] 2, S.C.R. 1().41. (3) l 19701 3, ~.c.c. ts t. (4) [1973]1, s.c.c. 761. (.1) [196'1 2, S.C.R. 3~0. (6} 12, Guj. Law Reporter 1012. (7) [19,7] S.C.R. 3S9. (8)l1961lt, S.C.R. 113.

.... ' .,

thi» Court in the cases relied upon by Mr. Dholakia, is not applicable to compromise decree passed under the Bombay Rent Act because:

(a) The provisions of s. 13 of the Delhi and Ajmer Rent (Control) Act, 1952 (for short, Delhi Rent Act) and s. 10 of the Madras Build-ings (Lease and Rent Control) Act, 1960 (for short Madras Rent Act), on the interpretation of which the said decisions are based, are ma-terially different from ss; 12 and 13 of the Bombay Rent Act;

(b) by virtue of Rule 8 of the Bombay Rent Act Rules, the pro-vision of the Code of Civil Procedure, including 0 ·23, Rule 3, which gives mandate to the court to pass decree in terms of compromise, are applicable to suits tinder the Bombay Rent Act, but the application of the Code to proceedings before the Rent Controller/Tribunal under the Delhi Rent Act or Madras Rent Act has been expressly excluded. In support of this contention reliance has been placed on Chandan Baj v. Surjan (1). (iii) Even if the ratio of the said Supreme Court decisions applies to decrees under the Bombay Rent Act, then also both the statutory grounds for eviction pleaded in the plaint, had been expressly or impliedly admitted by the defendant in the compromise, and it will be presumed that in passing the eviction decree the court was satisfied about the existence of those grounds. In this view, according to the Counsel, the instant case will fall within the ratio of Seshadri's case (sup-ra).

At the stage of the final hearing of the appeal, especially after the learned Counsel for the appellant had addressed us on merits, we do not propose to go into the preliminary ground urged by Mr. Parekh. If the decree turns out to be without jurisdiction, this equitable plea will be of no avail; because equity cannot operate to annul statute. If the decree is found to be in conformity with the statute, the appeal will fail on that ground, alone, and it will be wholly unnecessary to consider the equitable aspect of the matter.

We, therefore, come straight to the contention (H) raised by Mr. Parekh. In order to find out whether or not decree or order of evic-tion can be passed by the Rent Court/Tribunal exercising special jurisdiction under any of these statutes-Delhi Rent Act, Madras Rent Act and Bombay Rent Act-on ground which is not one of the statutory grounds of eviction, it is necessary to have peep into the historical background of the Rent Control laws, in general, and quick look at the broad scheme and language of the relevant statutory provisions of these Actc;.

The strain of the last World War, Industrial Revolution, the large-scale exodus of the working people to urban areas and the social and political changes brought in their wake social problems of consi-derable magnitude and complexity and their concomitant evils. The country was faced with spiralling inflation, soaring cost of living, increasing urban population and ·Scarcity of accommodation. Rack renting and large scale evictio;1 of tenants under the guise of the or-dinary law, exacerbated those c:onditions making the economic life

(1) A.T.R. 1972 M.P. 106.

of the community unstable and insecure. To tackle these problems and curb these evils, the Legislatures of the States in India enacted Rent Control legislations.

The preamble of the Bombay Rent Act states that the object of the Act is "to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and of evictions". The language ~f the preambles of the Delhi Rent Act and Madras Rent Act is strikingly similar. The broad policy· and purpose as indicated in their preambles is, substantially the same viz., to protect tenants against their landlords in respect of the rents, evictions and repairs: With the same beneficent end in view, all the three Acts interfere with contractual tenancies and make provisions for fixation of fair and standard rents, or protection against -eviction of tenants not only during the continuance of their contractual tecure but also after its determination. Indeed, the neologism ••statutory tenant" has rome into existence because of this protective policy which is common to all enactments of this kind. Further, all \he three Acts create Courts(fribunals of special and exclusive juris· diction for the enforcement of their provisions.

Section 28 ·of the Bombay Rent Act which begins with ·a t1on· obsttlllte clause, specifies Courts which shall have exclusive jurisdic-tion to entertain and try any suit .or proceeding between lan~lord and tenant inter alia relating to (a) recovery of rent of any pre~157s ;-(b) recovery of possession of any premises to which' the prOVISIOns of Part II apply. The words "t6 which the provisions of Part II apply>' are significant. They indicate that the exclusive jurisdiction for recovery of possession is to be exercised when the provisions of Part II, which include ss. 12 and 13, apply.

All these three Acts Jay down specific grounds more or less similar, on which decree or ·order of eviction can be passed by the Rent Court or the Tribunal exercising exclusive jurisdiction. In the Delhi Rent Act, such grounds are specified in consolidated form under s. · 13, while the same thing has been split up into two and provided in two sections (12 and 13) in the Bombay Rent Act which represent the negative and positive parts of the same pattern. Taken together, they are exhaustive of the grounds on which .:he Rent Court is com-petent to pass decree of possession. Similarly, in the Madt'as Rent Act, the grounds on which tenant can be evicted, are given in ss. 10, 14to 16.

Section 13 of the Delhi Rent Act starts with non-obstante clause viz., "Notwithstanding anything to_ the contrary contained in. any other .law or any contract, no decree or order for the rec<ivery of possession of any premises shall be passed by any Court in favour of the landford against any tenant. . •... . . " Likewise, s. 10(1) of the Madras Rent Act starts with the clause, "a tenant shall not be evicted whether in execution of decree o·r otherwise except in accord-ance with the provisions of this section or sections 14 to 16."

[twill thus be seen that the Delhi Rent Act and the Madras Rent Act expressly forbid the Rent Court or the Tribunal from passing decree or order of eviction on ground which is not any of the grounds mentioned in the relevant sections of those statutes. Nevertheless, such prohibitory mandate to the Rent <;ourt that it shall not travel beyond the statutory grounds mentioned m ss. 12 and 13, and to the parties that they shall not contract out of those statutory grounds, is inherent in the public poli~ built into the statute (Bombay Rent Act).In Rasiklal Chunilal's case (supra), Division Bench of the Guja· rat High Court has taken the view that in spite of the fact that there is no express provisions in the Bombay Rent Act prohibiting contract-ing out, such prohibition· would have to be read by implication con-sistently with the public policy underlying this welfare measure. If we may say so with respect, this is correct approach to the problem.

Construing the provisions of ss. 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 decree for possession either in invitwn ·or with the consent of the parties on ground which is dehors t!_, Act or ultra vires the Act. The existence of one of the statutory grounds mentioned in ss. 12 and 13 is sine ql!.a non to the exercise of jurisdiction by the Rent Court under these pro-vtsions. Even parties cannot by their consent confer such jurisdic· tion on the Rent Court to do something which, according to the legis-lative mandate, it could not do.

In the view we take, we are fortified by the ratio of the decision ~n Barton v. Fincham(l), Therein the Court of Appeal was consider· mg the scheme of the Rent Restrictions Act, 1920, the language of s. 5 of which was similar to s. 13 of the Delhi Rent Act. In that context, Atkin L. J. stated the law on the point thus :

"The section appears to me to limit definitely the juris-diction of the Courts in making ejectment orders in the case of premises to .which the Act applies. · Parties cannot by agreement give the Courts jurisdiction which the Legis-lature has enacted they are not to have.

If the parties before the Court admit that one of the events has happened which give the Court jurisdiction, and there is no reason to doubt the bona fides of the admission, the Court is under no obligation to make further inquiry as to the question of fact; but apart from such an admission the Court cannot give effect to an agreement, whether by w_ay of compromise Of!. otherwise, in~;:onsistent with the pro-VISions of the Act.." ·

It is true that in Barton's case just as in Seshadri's COJI (supra), the statute under consideration expressly prohibited the Court from passing decree on ground· which was not covered by the statute but (1) [1921]2, K..B. 291 at 299.

the principl.e s equally applicable to cases nnder statutes which place sue~ Jetter on the jurisdiction of the Court, by necmary impli-cation.

The mere fact that Order 23, Rule 3, of the Code of Civil Pro~edure is applicable to the proceedings in suit under the Bombay Rent Act, -does not remove that fetter on the Rent Court or empower it to make decree · for eviction dehors the statute. Even under that pro-vision of the Code, the Court, before ordering that the compromise be· recorded, is required to satisfy itself about the lawfulness of the agree-ment. Such lawfulness or otherwise of the agreement is to be judged, also on the ground whether the terms of the compromise are consis-tent with the provisions of the Rent Act.

In view of what has been said above, it is clear that the general principles enunciated by this Court in cases referred to by the learned Covnsel for the appellant, are relevant guide for determining whether in particular case the consent decree for possession passed by the Court under the Bombay Rent Act is or is not nullity. But the case in hand is not in line with Bahadur Singh's case, Kaushalaya De~i's case and Ferozi La/ Jain's case (supra). On facts, they are distingui-D shable from the instant case. In those cases, there was absolutely no material, extrinsic or intrinsic to the consent decree on lhe basis of whi-::h. the Com t could be satisfied as to the existence of statut9ry ground for eviction. ·The case before us falls well nigh within the ratio of Seshadri's case (supra). Therein, K. K. Chari, who was under an eviction or~er, purchased the suit premises in the same city for his occupatton. Seshadri was then the tenant of the suit premises under the vendor. and after the purchase, he attorned in favour of the appellant and had been paying rent to him. Chari issued notices under s. 106 of the· Transfer of Property Act, terminating the tenancy of Seshadri. Since Seshadri did not surrender possession, Chari filed suit for eviction under s. 10 (3) (a)(i) of the Madras Act mainly on the ground tbat h~ required the premises for his bona fide uSe and occupation. Seshadn controverted Chari's claim. At the commencement of the enquiry, Chari was examined before the Court. He particularly testified how he had purchased the house for his own occupation. He also filed number ofdocuments.to establish that the requirement of pre-mises for his own occupation was true. Seshadri did not prefer to· cross-examine Chari. About ll months thereafter, both the parties. entered into compromise in these terms :

''(I) The respondent hereby withdraws his defence in the aforesaid petition and submits to decree for eviction unconditionally.

(2) The respondent prays that time for vacating upto . June 5, 1969, might please be given and the petitioner agrees to the same.

(3) The respondent agrees to vacate the petition pre-mises and hand over possession of the entire petition premises to the petitioner on or before the said date

viz. June 5, 1969, without fail under any cir,cums-tances and undertakes not to apply for extension of time.

(4) It is agreed >by both the parties that this memo comprof"lise is executable as Decree of ~ourt."

The Court, after referring to the petition of the landlord being under s. 10 (3)(a)(i), of the Act on the grourid of his own occupation, ,passed the following order :

"Compromise memo filed and recorded. By consent eviction is ordered granting time to vacate till June 5, 1969. No costs."

The aforesak.. terms of the compromise were also inco;porated in the order. After distinguishing the former three cases viz. JJahadur Singh's case, Kaushalaya Devi's case and Ferozi La/ Jain's case, Vaidia· lingam J. speaking for himself and Dua J. (comprising majority). enunciated the iaw on the ~oint, thus :

'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 . :z., the existence of one or more of the conditions mentionc!d in Section 10 were shown to have existed when the Court made the order. Satisfaction of the Courl, which is no doubt pre-requisite for the order of eviction, need not be by the manifestation borne out by 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 is possible to postulate that the Court was satisfied abc "~ the grounds on which the order of e'Viction was based ............... . If the tenant in fact admits that the landlord is entitled to possession on one or other of the s..atutory grounds men· tioned 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.''From 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 statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree f'Jr eviction, though apparently passed on the basis of com· prom!se, woul<i be valid. Such material may take the shape either of ev1dence 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 s. 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 admi~sions are fully binding on the party that makes them and

constitute waiver of proof. They by themselves can be made the foundation of the rights of the parties On the other band, evidentiary admissions which are receivable at the trial as evidence, are by them-selves, not conclusive. They can be shown to be wrong.

We do not find any force in the contention of Mr. Dholakia, that the facts admitted in the compromise, itself were insufficient to make out even prima facie ground for eviction mentioned in s. 12 (3) (a} of the Bombay Rent Act, merely because the tenant had made an application for fixation of standard rent, which was still pending at the time of passing of the decree. By admitting to pay the arrears of rent and mesne profits at the rate of Rs. 15/- per month, the tenant had clearly withdrawn or abandoned his application for fixation of standard rent. The admission in the compromise was thus an ad-· mission of the material facts which constituted ground for eviction under s. 12 (3) (a). Rent was admittedly payable by the month; since the application for fixation of fair rent stood withdrawn, there· was no dipute with regard to the amo.unt of standard rent. Further, the rent was admittedly in arrears for period of more than six montha; · so much so that in the present case, the tenant had neglected to pay tht:· balance of arrears, amounting to Rs. 152/50, even long after the dec-ree and the landlord was rompe,lled to recover the same by execution,

The case of Jeshwant J<ai Mulukchand (supra) , cited by Mr. Dho-E lakia, does not advance his stand. In that case, there was serious dispute regarding the amount of standard rent. Though the :final order of standard rent was passed by the Court of Small Causes, neither the landlord nor the tenant accepted the determination and each side questioned the. amount by filing Revision Petitions. In tl-: present case, however, no disppte regarding the standard rent was subsisting at the time of compromise. That dispute was put an end to by the compromise itself.

Be that as it may, in cases where an objection as to the non-exe-cutability of the decree on the ground of its being nullity,is taken, the Executing Court is not competent to go behind the decree, if the dec-ree on the face of it, discloses some material on the basis· of which, ~he . Rent Court could be satisfied with regard to the existence of statutory· ground for eviction. In such case it must accept and execute the decree as ~t 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 foundation for the trial. court's. jurisdiction to pass the decree it did. The moment it finds that prim• fgcie such material existed, its task is complete. It is not necessary for it t<? go further and question the J .>umed or eApressed findini.

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 evi.ction. To allow the Executing Court to go beyond that limit, would be to exalt it to the status of super Court sitting in appeal over the decision of the Rent Court. Since in the instant case, there was clear admission in the compromise, incor-porated in the decree, of the fundamental facts that could constitute :ground for eviction tmdcr s. 12 (3) (a), the Executing Court was not competent to go b~hind the decree and question its validity.

For the foregoing reasons, the app~al fails and is dismissed with costs.

Appeal dismissed.