Eviction Cannot Be Ordered Solely On The Basis Of Compromise Between Landlord And Tenant: Kerala HC [Read Judgment]

The Kerala High Court has observed that an order for eviction of a tenant cannot be passed solely on the basis of a compromise between the landlord and the tenant and the court should be satisfied that a statutory ground for eviction has been pleaded by the landlord which the tenant has admitted by the compromise.

The division bench comprising Justice CK Abdul Rehim and Justice R. Narayana Pisharadi set aside a single bench order which, while disposing a writ petition filed by the landlord, directed the bank to surrender vacant possession of the building occupied by it as a tenant.

In its judgment in Central Bank of India vs. Beena Thiruvenkitam, the bench dealt with the issue whether a court can order eviction merely because the landlord and the tenant have entered into compromise. It observed:

"Even in a case where the landlord and the tenant have entered into a compromise, in which the tenant has agreed to vacate the premises, a court ordering eviction has to satisfy itself that a statutory ground of eviction has been made out by the landlord. An order for eviction of a tenant cannot be passed solely on the basis of a compromise between the landlord and the tenant. The court is to be satisfied whether a statutory ground for eviction has been pleaded which the tenant has admitted by the compromise. If the court does not find the permissible grounds for eviction disclosed in the pleadings and other materials on the record, no consent or compromise will give jurisdiction to the court to pass a valid order of eviction. The Rent Control Court is not competent to pass an order for possession with the consent of the parties on a ground which is dehors the Act or ultra vires the Act. The existence of one of the statutory grounds mentioned in the Act is a sine qua non to the exercise of jurisdiction by the Rent Control Court. Even parties cannot by their consent confer such jurisdiction on the court to do something which according to the legislative mandate, it could not do. No doubt, the court can pass an order for eviction on the basis of the compromise. But, order of eviction cannot be based merely on an agreement between the landlord and the tenant. The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly agreed to suffer a decree for eviction because the landlord is entitled to have such an order under the law. 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 have entered into a compromise."

However, the court added that, an admission by the tenant about the existence of a statutory ground, expressly or impliedly, will be sufficient and there need not be any evidence before the court on the merits of the grounds before order of eviction is passed on the basis of the compromise.It added:

"An order for eviction of a tenant is not necessarily void, if the existence of one or more of the conditions provided under the rent control statute were shown to have existed when the court made the order. Satisfaction of the court, which is no doubt a pre-requisite for the order of eviction, need not be by the manifestation borne out by a judicial finding. 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 eviction (See K. K. Chari v. R. M. Seshadri: AIR 1973 SC 1311). If at the time of the passing of the order of eviction, 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 order for eviction passed on the basis of a compromise would then be valid. Such material may take the shape of an express or implied admission made by the tenant in the compromise agreement itself"

'Tenant' Bank Does Not Owe Any Public Duty To Landlord

The bench then considered the issue whether the High Court could issue a direction to a tenant, in exercise of the power under Article 226 of the Constitution of India, to vacate the premises occupied by him, inspite of the bar under Section 11(1) of the Act. The court noticed that the bank does not owe any public duty towards the landlord to vacate the building occupied by it and that the legal right of the landlord, to get the building owned by her vacated by the bank, has to be enforced by her through the forum provided for that purpose. The court said:

"It cannot be said that there was any failure on the part of the bank in discharging any statutory obligations, so as to enable the respondent to invoke the writ jurisdiction of this Court under Article 226 of the Constitution. The bank has no legal duty or obligation to vacate the building occupied by it unless the owner of the building establishes any one of the grounds specified under the Act. Normally, resort to the jurisdiction under Article 226 of the Constitution is not intended as an alternative remedy, which may be obtained by other mode prescribed by statute. In such circumstances, we are of the considered view that no writ of mandamus or direction could have been issued to the bank to surrender vacant possession of the building occupied by it as a tenant, by by-passing the provisions contained under the Act."

Tenant Not Prohibited From Vacating The Premises On A Request Made By The Landlord

The bench, though allowed the writ appeal filed by the bank, further observed:

"The Act does not prohibit a tenant from vacating the premises on a request made by the landlord. When such surrender is made by a tenant, it would not be illegal. Surrender of the building by the tenant, at the request of the landlord, would only promote healthy business relations…Even after the lapse of two years, nothing has happened. We hope that the authorities of the bank would take earnest efforts to vacate the building avoiding another round of litigation. We make it clear that it is not a direction issued to the bank."

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