IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1303 of 2009 Sri Ajay Prasad @ Ajay Kumar, son of Late Bindeshwari Rai, resident of Chhoti Machuatoli, Danapur Cantt, P.S. Danapur, District Patna. ……………..Judgement Debtor-Petitioener Versus Dr.S.M.Badrul Hassan, son of Late M. Shamshul Hassan, resident of Saguna Mainpur Bari Haveli, P.S.-Danapur, District-Patna at present residing at House No. 560, Road No. 37, Patliputra Colony, Distt. Patna. ………………Decree Holder-Opposite Party ----------- 5 06.09.2011 Heard Mr. J.S. Arora, learned counsel appearing on behalf of the petitioner and Mr. Abbas Haider, learned counsel appearing on behalf of the opposite party and with the consent of the parties, this revision application has been finally heard and disposed of at this stage. This revision application has been filed against the order dated 04.06.2009 passed by Munsif, Danapur in Execution Case No. 11 of 2008. There is no dispute that the petitioner is a tenant of the opposite party who is admittedly his landlord. There is also no dispute that there had earlier been an eviction suit which had ended in a compromise decree on the basis of the compromise petition jointly filed by both the parties. From perusal of the compromise petition which has been annexed with the supplementary affidavit filed in the revision application it appears that one of the terms incorporated in clause (a) is that the defendant has agreed to pay the amount of arrears of rent as well as the 2 current rent in the manner stipulated therein and thereafter it has been further agreed that if the defendant makes default in payment of the amount of arrears of rent and current rent as stipulated, the plaintiff/landlord would become entitled to recover possession by putting the decree in execution without resorting to filing a suit afresh. For easy reference Clause (a) and (c) of the compromise petition which is part of the compromise decree is being mentioned as follows:- (a) Out of total amount of arrears of rent at the rate of Rs. 1200.00 per month as per Gregorian Calendar month from April 2005 to October 2006 amounting to Rs. 18000/- the defendant shall pay Rs. 500/- per month together with current rent of Rs. 1200/- total amounting to Rs. 1700/- to the plaintiff from the month of December 2006 with regularity till the arrears are cleared. (c) In case of default in payment of rent as aforesaid it shall be permissible for the plaintiff to take 3 over possession of the premises detailed at the foot of this petition and arrears by executing this decree itself without filing a suit a fresh. Thereafter, it appears that the plaintiff/opposite party has filed Execution Case No. 11 of 2008 before Munsif, Danapur for executing the compromise decree for recovery of possession by dispossessing the defendant/petitioner from the suit premises on the ground that he had committed breach of the terms of the compromise by not paying the amount of the arrears of rent and current rent as stipulated therein. The defendant/petitioner/judgment debtor appeared in the execution case and filed a petition under Section 47 of the Code of Civil Procedure raising objection to the executability of the decree and praying for dismissal of the execution case on the ground, firstly, that the compromise decree as such for eviction is not executable as it does not conform to the grounds mentioned in Section 11 of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 (henceforth as ‘Act’) and the satisfaction of the Court regarding the existence of those grounds or either of them is absent. The other ground raised by the defendant/petitioner is 4 that he has never committed default and breach of the terms of the compromise by not paying the rent as stipulated in the compromise decree. The learned Court below after hearing the parties has, by the impugned order, dismissed the aforesaid petition of the defendant/petitioner filed under Section 47 of the Code of Civil Procedure, which is under challenge in this revision application. The first ground of objection to the executability of the decree is that no satisfaction has been recorded by the Court passing the decree regarding existence of any of the grounds as mentioned in Section 11 of the Act and thus the decree having been passed solely on the consent of the parties is nullity and therefore not executable. It has been submitted that the existence of one of the grounds as mentioned in Section 11 of the Act was sine qua non for conferring the jurisdiction upon the Court to pass a decree for eviction and the consent of the parties cannot cure the inherent lack of jurisdiction as statutorily mandated. By placing the term of the compromise petition, it has been contended that a new lease has been created and as such also this execution cannot proceed in absence of a decree conforming to the requirement of section 11 of the Act. 5 From the perusal of the terms of the compromise petition, it does not appear that the parties have thereby intended to create a new tenancy. There is no statement in the compromise petition, made part of the decree, that a new tenancy is being created rather, in fact, it is a decree for eviction the execution of which has been deferred only till the defendant / tenant commits default in payment of rent in breach of the terms stipulated therein. Therefore, there is no substance in the submission on behalf of the petitioner in this regard that a new tenancy has been created. Further from Clause (a) of the compromise petition, it is apparent that the defendant / tenant has accepted that Rs. 18, 000/- is in arrears and the rent is Rs. 12000/- per month. As such, there is clear admission regarding default in payment of rent by the defendant/tenant and this can be taken to be judicial admission and binding upon the defendant / tenant. It was not necessary for the Court passing the compromise decree to record its satisfaction separately in view of this admission. The Hon’ble Supreme Court in Nagindas Vs. Dalpatram reported in A.I.R. 1974 S.C. 471, in similar circumstance, has held as follows:- “26. From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the 6 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 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.” The admission regarding the rent being in arrear (the quantum of the amount of the arrears suggesting non- payment for more than a year) and the acceptance by the defendant /tenant to pay the same in the manner as agreed by 7 the compromise are sufficient by themselves to establish a ground for eviction as envisaged under Section 11 of the Act. It can be, thus, easily inferred that this material fact regarding default was there before the Court before it accepted the compromise petition and passed the compromise decree accordingly. This aspect has also been considered by their Lordships in the case of K.K. Chari Vs. R.M. Seshadri reported in A.I.R. 1973 S.C. 1311 wherein it has been held: “……..if the compromise decree is based on the grounds on which the landlord could claim a decree for eviction under Section 13 of the East Punjab Urban Rent Restriction Act, then it is within the jurisdiction and competence of the Rent Controller to pass such a decree with a default clause; it is similarly competent for the civil court to execute such a decree when default has occurred………..” On the basis of the discussion as made above, it is held that the compromise decree in question in the present case is a valid decree under the Act and capable of being executed. The learned Court below has correctly decided this issue and has rightly rejected the first objection of the defendant / tenant. The second ground of objection to the executability of decree relates to the payment of rent as stipulated in the 8 compromise decree. From the terms of compromise decree it is clear that it would become executable only when the defendant would commit default in payment of the part of the arrears of rent and current rent as mentioned and agreed upon in the compromise petition. Therefore, in case of denial of this fact by the defendant/tenant a finding of default in payment as above mentioned becomes sine qua non for maintainability of the execution case. The plaintiff/landlord has filed the execution case alleging that there had been default in payment of rent and breach of the terms of the compromise by the defendant/tenant in not making payment of the arrears of rent and current rent as stipulated but the defendant/tenant has denied the said fact and has asserted that there has been no default in payment of rent and there is no breach of the terms of the compromise as alleged and he has been regularly making payment of the amount of rent as agreed in terms of the compromise. In such a situation, it was incumbent upon the executing Court while deciding the petition under Section 47 of the Code of Civil Procedure to reach to a finding on this issue as well. From perusal of the impugned order it does not appear that any finding has been arrived at by the executing Court on this issue while 9 dismissing the petition filed by the petitioner under Section 47 of the Code of Civil Procedure. The learned Court below thus, has, committed error of jurisdiction in dismissing the petition under Section 47 of the Code of Civil Procedure without deciding this issue. As such, this revision application is allowed, the impugned order is set aside and the matter is remitted back to the executing Court below who shall decide the second ground of the objection as raised by the defendant/tenant pertaining to the default in payment of rent and breach of terms the of compromise as alleged by the opposite party and denied by the petitioner, after hearing the parties, in accordance with law. It is made clear that this remand order is limited to the abovesaid ground alone as the first ground of the objection to the executability of the decree has been rightly decided against the defendant/tenant by the executing Court and accordingly earlier upheld. The executing Court is directed to proceed expeditiously and decide the matter preferably within six months from the date of receipt of a copy of this order. Saif /- (V. Nath, J.)