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Kedarnath Gangagopal Misra Vs. Sitaram Narayan Moharil - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 309 of 1966 with Civil Revn. Appln. Nos. 309 of 1966 and 220 of 1967
Judge
Reported inAIR1969Bom221; (1968)70BOMLR788; ILR1969Bom324; 1968MhLJ762
ActsIndian Contract Act, 1872 - Sections 2 and 28; Evidence Act, 1872 - Sections 115
AppellantKedarnath Gangagopal Misra
RespondentSitaram Narayan Moharil
Appellant AdvocateD.K. Khamborkar, Adv.
Respondent AdvocateN.S. Munshi, Adv.
Excerpt:
.....28 - agreement between decree-holder in ejectment suit and judgment-debtor that latter not to file appeal in consideration of one month's time for vacating premises--whether agreement hit by section 28.;an agreement was reached between the decree-holder in a suit for ejectment and rent and the judgment-debtor whereby the latter agreed not to file a second appeal against the decree on consideration of getting one month's time for vacating the premises. on the question whether the agreement was affected by the provisions of section 28 of the indian contract act,;that as the judgment-debtor had gained breathing time of one month to find alternative accommodation, that could be considered a good consideration for the contract, and;that the contract was valid and enforceable and was not..........was dismissed, a decree was produced and execution was revived. 2. on august 31, 1966, plaintiff decree-holder accompanied by the bailiff of the court and the warrant for execution went to the doors of the present appellant. the plaintiff decree -holder had all the means at that time to throw out the appellant and obtain physical possession of the premises. after some negotiation, it appears that appellant assured the respondent plaintiff that he would not pursue any further remedy by way of second appeal provided one month's time is given to vacate. it is alleged that respondent accepted this representation and agreement was reached between the parties. it was reduced rant for execution at the instance of the bailiff. with this arrangement being done, decree-holder plaintiff returned.....
Judgment:

1. The respondent in this appeal is the landlord plaintiff and the appellant is the defendant tenant. A decree for eviction, rent and mesne profits was obtained by the respondent in the trial Court on April 30 1965. The tenant appellant filed an appeal against the decree in the District Court which came to be dismissed on August 22, 1966. came to be dismissed on August 22, 1966. As soon as decree in the trial Court was obtained the respondent filed petition for execution. Execution was stayed because of the stay order obtained form the appellate Court. Immediately the appeal was dismissed, a decree was produced and execution was revived.

2. On August 31, 1966, plaintiff decree-holder accompanied by the bailiff of the Court and the warrant for execution went to the doors of the present appellant. The plaintiff decree -holder had all the means at that time to throw out the appellant and obtain physical possession of the premises. After some negotiation, it appears that appellant assured the respondent plaintiff that he would not pursue any further remedy by way of Second Appeal provided one month's time is given to vacate. It is alleged that respondent accepted this representation and agreement was reached between the parties. It was reduced rant for execution at the instance of the bailiff. With this arrangement being done, decree-holder plaintiff returned and the warrant was lodged back in the court.

3. During that month which was obtained by the appellant as breathing time, he filed Second Appeal No. 309 of 1966. He also applied for stay. As soon as notice of the interim stay of execution was received by the respondent plaintiff he rushed to this Court and made civil application No. 194/1967. By that application it is urged that the appellant defendant having agreed not to file the appeal and having obtained the advantage of sending back the warrant and the bailiff and having further obtained the time of one month, he cannot file the appeal. The appeal is incompetent and should be dismissed as such.

4. This applications opposed by the appellant. He urged that the plaintiff respondent gave him one month's time under the warrant, without any representations by the judgment-debtor. That was an act of grace of the decree-holder and it was not a part of any contract. Having given him time and having made an endorsement to that effect, the bailiff and the decree-holder went away. They returned after some time and then demanded the second part of the writing on the warrant from the appellant. Under threat and force he was made to write that part, by which he stated that he would not file any appeal. The giving of one month's time by the decree holder and the appellant's agreement not to file the appeal are two independent and distinct events. Since this plea was raised, I passed an interim order by framing an issue which was sent down for recording evidence and certifying the same. In respect of that issue, the trial Court certified that the two parts of the writings are the result of a single transaction of agreement between the parties. The plaintiff decree-holder's plea has been accepted as it is supported by the bailiff and another witness Arvind Khandekar. The defence of the judgment-debtor has been rejected. When the papers reached the appellate Court, learned District Court heard the Counsel on both sides and confirmed the finding given by the trial Court . In this manner the appeal along with the application has now come up again for hearing.

5. Only two points arise for my consideration. Shri Khamborkar, appearing for the appellant urged that the finding given by the two courts below should not be accepted. He read out to me a portion of the bailiff's statement. The bailiff nowhere proves the alleged terms of agreement. In the circumstances, it is urged that the allegation of the plaintiff decree-holder fully is that both the parts of the writing on the reverse of the warrant took place at one and the same time. Both the writings of the decree holder as well as the judgment -debtor are a result of a single transaction of agreement between the parties. If this so, it obviously means that the decree holder agreed to accommodate the judgment-debtor by giving him one month's time to remove kit and to find alternate accommodation. He gave this accommodation because the judgment-debtor agreed not to file any appeal. This is, therefore, a case where decree-holder could have thrown out the judgment debtor along with his kit. Nothing prevented him in law from doing so. Even then knowing how litigation can be protracted the decree-holder seems to have made peace with the judgment - debtor by giving him one month's time to vacate. In the circumstances, I agree with the findings given by the two Courts below and hold that there was an agreement reached between the judgment debtor and decree-holder which is reflected in the writings of the two parties. The agreement was the judgment debtor shall not file any appeal in the High Court against the decree of the District Court on the consideration of getting one month's time for vacating the premises.

6. The second point that arises for consideration is whether such an agreement is legal and valid. If it is a valid agreement, then the appellant shall not be allowed to proceed with his remedy of this appeal. Shri Khamborkar in that behalf relies upon the provisions of Section 28 of the Indian Contract Act. Every agreement by which any party there to is restricted absolutely from enforcing in the ordinary tribunals, is declared void. Shri Khamborkar urges that the judgment-debtor had a right in law to prosecute his further remedies under the Code of Civil Procedure. The right of appeal, against the decree of the District Court, could be exercised by him at his volition. However, by the contract made with the decree-holder he is prevented from filing any such appeal. this is a contract in contravention of Section 28 and cannot be enforced.

7. It is not possible to accept this argument. In fact, this is not strictly a contract by which the appellant has agreed not to follow legal remedies by usual legal proceedings in the ordinary tribunals of the land. The circumstances under which the agreement came to be effected and the nature of that agreement must be noted, in order to under stand the real implication of that agreement. This was a simple suit between landlord and tenant, where the landlord had already obtained the permission of the Rent Controller for terminating the tenancy. The Suit had resulted in a decree in the two Courts below. Undoubtedly, the appellant had a right to file an appeal in this Court. Whether any success would be obtained in the appeal or not is at best a matter of guess work at that stage. For ought we know, the appeal may be dismissed in limine at the motion hearing. A warrant for possession was standing in the door along with the decree-holder. If nothing was done at that time, the judgment-debtor stood the prospect of being thrown out from the premises with his bag and baggage. From the evidence led it appears that there were some other persons living with the judgment debtor. The prospect of being thrown out along with those persons and the personal effects was obviously serious. When decrees are passed in Courts, it is common knowledge that compromises are effected out of Court or adjustments are made in the decrees which are got certified from Courts. These are valid contracts. Even though a person has got a right of appeal, he is not obliged to file an appeal against the decree. If no appeal is filed during the period of limitation, the decree becomes final. In the circumstances, if the judgment-debtor has gained breathing time for finding alternate accommodation and has put off the evil day by one month, that could be considered a good consideration for such a contract. This is not a contract which is affected by Section 28 of the Indian Contract Act. A distinctions has to be made between contracts which are opposed to public policy or contracts which are ink the nature of bona fide settlement of a dispute or claim. Where parties evaluate circumstances, make a compromise and actually derive benefit under it, they cannot be permitted, after the benefit is enjoyed, to turn round and plead bar of Section 28 of the Contract Act.

8. Shri Munshi, for the respondent, has relied upon several judgments, but it would be enough to refer to a few of them. The first judgment relied upon is a Full Bench decision of the Allahabad high Court in the case of Anantdas v. Ashburner and Co. ILR (1875) All 267. Plaintiff Ashburner and Co. had obtained a money-decree against Anantdas. The judgment debtor agreed with the decree-holder that he would not file an appeal against the decree provided the time stipulated by the agreement was given to him for making payment. Accordingly, time was granted In spite of this agreement, Anantdas filed an appeal. It was objected by the respondent that the appeal was incompetent in view of the agreement arrived at between the parties. On behalf of judgment-debtor, Anantdas, it was sought to be argued that the contract was initiated by the provisions of Section 28 of the Indian Contract Act. The Full bench of the Allahabad High Court negatived this contention by pointing out that the agreement was not prohibited by Section 28 of the Indian Contract Act and that the appellate Court was bound by the rules of justice, equity and good conscience to give effect to it and refuse to allow defendant to proceed with the appeal which he had instituted in contravention of it. The Full Bench points out that Section 28 of the Indian Contract Act incorporates a well recognised rule of English Courts which prohibits all agreements purporting to oust the jurisdiction of the Courts, but not with standing this rule, it was long since determined that if a person after mature deliberation enters into an agreement for the purpose of compromising a claim bona fide made to which he believes himself to be liable, and with the nature and extent of which he is fully acquainted, the compromise of such a claim is a sufficient consideration for the agreement, and the agreement is valid.

9. The next judgment relied upon is a Privy Council decision in Munshi Amir Ali v. Maharani Inderjit Koer, (1870) 14 Moo Ind App 203 (PC) In an appeal that was pending in the high Court, the parties agreed that the high Court need confine its judgment only to one issue and they agreed to abide by the finding on that issue. No appeal would be filed against the decision. the high Court accordingly found on that issue and held the Mukhtyarnama concerned to be a forged document. Being aggrieved, and in spite of the undertaking in the High Court the appealed to Her Majesty in Council. On a preliminary objection being raised that such an appeal does not lie, there lordships of the Privy Council upheld that objection. Their lordships of the Privy Council pointed out that by confining the decision of the High court to genuineness of the Mukhtyarnama, the appellant was really substituting a non suit for an adverse verdict, leaving it open to Baboo Bischen Singh and the appellant himself, if he can get a new and genuine document in his favour to bring a fresh suit. It was , therefore, held that this was a good consideration and the contracts was valid. The appeal was, therefore dismissed on that preliminary ground alone, The ratio of both these judgments has been followed ink the Division bench decision of the Calcutta High Court in Protab Chunder Dass v. Arathoon ILR 1882 Cal 455 . The facts of that case show that a judgment-debtor against whom decree was obtained was arrested and brought before the Court. He then made an application by which he agreed not to file an appeal against the decree and claimed some time for making payment of the decree. The plaintiff decree holder agreed to his proposal and gave him time to make payment of the decree. On this agreement being reached, which the Court accepted, the judgment-debtor was released from arrest. In spite of it, the judgment-debtor filed an appeal and a preliminary objection was raised the such an appeal was incompetent. following the principle laid down in the above two cases, Calcutta High Court says that the judgment- debtor having induced the decree-holder to believe, and having expressly undertaken that he would not prefer an appeal, and having by this representation and undertaking procured his own release from arrest, was estopped from acting contrary to his deliberate representation and undertaking.

10. Shri Khanborkar argued before me that the endorsement made by the judgment-debtor relates to a future undertaking not to file an appeal. I do not see any substance in this argument. the Contract Act conceives of agreement for which consideration could be for some thing done in the past or being done at present or to be done at present or to be done in the future. There is no illegality in the agreement arrived at between the judgment- I would, therefore, hold that the present appellant is not entitled to prosecute the appeal. The appeal itself is to be held incompetent and dismissed as such with costs.

11. In view of this judgment in the main appeal, Counsel agree that Civil Revision Application No. 220 of 1967 becomes infructuous and should be dismissed as such. there shall be no order as to costs in that revision application.

12. Appeal and revision dismissed


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