Skip to content


Narendra Kumar JaIn Vs. Chanchalben Babubhai Panchal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 230 of 1982
Judge
Reported inAIR1983Bom418
ActsCode of Civil Procedure (CPC), 1908 - Order 23, Rule 3
AppellantNarendra Kumar Jain
RespondentChanchalben Babubhai Panchal and anr.
Appellant AdvocateH. Suresh, Adv.;i/b. J.M. Batna and;G.S. Manaswala, Advs.
Respondent AdvocateM.V. Paranipe and;Akikwala, Advs.
Excerpt:
.....the suit that was filed by the licensee for declaration that he was entitled to continue on the suit premises for the particular period and for injunction restraining licensor from interfering with his possession during that period - the court ruled that since the consent decree for possession was allowed to be passed by licensee in consideration of the agreement by licensor to grant time to license, it was related to the suit and was therefore, executable. - indian penal code, 1860 [c.a. no. 45/1860].sections 124-a, 153-a, 153-b, 292, 293 & 295a; [f.i. rebello, smt v.k. tahilramani & a.s. oka, jj] declaration as to forfeiture of book held, the power can be exercised only if the government forms opinion that said publication contains matter which is an offence under either of..........are as follows :--the premises which will be referred to hereinafter as 'factory premises' or 'suit premises' belong to one s. b. sharma and respondent no. 1 is the tenant in respect of the suit premises in which she was carrying on some business and a factory. mr. suresh, the learned counsel appearing for the petitioner. was not able to explain me as to how it was. but the fact remains that though respondent no. 1 has been exclusively the tenant in respect of the factory premises in favour of the present petitioner on 15-10-1963 for 11 months till 14-9-1964, not alone but jointly with her daughter respondent no. 2. having regard to the narrow question involved in the present revision application, it is enough to state that it is an agreement of leave and licence and it is.....
Judgment:
ORDER

1. This revision application is filed by the person who had himself filed the suit as plaintiff in the City Civil Court as early as in the year 1966, and compromised the suit, and as a result of the compromise got extensive benefit to himself. As the consideration for the benefit he allowed the decree for possession to be passed against himself. On the strength of this consideration he enjoyed the possession for a period exceeding even of 15 years and now he wants to come to the Court and state that the decree for possession which was passed by the Court at his own instance is not an executable decree and that the same is not worth even the paper it is typed on.

2. Attempts were made in the trial Court as well as in this Court for taking the Court almost astray by reciting a number of facts which really had no bearing upon the question with which the Court is concerned in these proceedings. I may have occasion to refer to some of them even though they are not relevant for the purpose of this petition principally because arguments were advanced on their basis which threatened, on occasions, to be leading into blind alleys and still, and less (sic).

3. The facts are as follows :--

The premises which will be referred to hereinafter as 'factory premises' or 'suit premises' belong to one S. B. Sharma and respondent No. 1 is the tenant in respect of the suit premises in which she was carrying on some business and a factory. Mr. Suresh, the learned Counsel appearing for the petitioner. was not able to explain me as to how it was. but the fact remains that though respondent No. 1 has been exclusively the tenant in respect of the factory premises in favour of the present petitioner on 15-10-1963 for 11 months till 14-9-1964, not alone but jointly with her daughter respondent No. 2. Having regard to the narrow question involved in the present revision application, it is enough to state that it is an agreement of leave and licence and it is unnecessary to mention the various other terms of the said agreement. By an agreement dated 1-12-1964, the period was extended to 15th Aug. 1965. There were certain other modifications made in the relevant for the purpose of this petition. On 23-9-1965, respondent No. 1, gave a notice to the petitioner calling upon him to vacate the premises in terms of the previous agreement. But instead of complying with the notice. the petitioner filed suit No. 949 of 1966 in the City Civil Court, in substance, for a declaration that the petitioner was entitled to conduct the business uptill 31st Mar. 1970. He also asked for the requisite the injunction against the present respondents on the basis of the said declaration. In the said suit a consent decree dated 19-4-1966 came to be passed and by the consent decree the present petitioner was allowed to conduct the business till 31-3-1970 and he gave an undertaking to the Court to the effect that after the end of that period he would vacate the premises and would hand over possession of the same to the present respondent. ON 26-6-1970, a chamber summons was taken out by the present petitioner himself in the same suit that the defendant in the said suit, that is to say the plaintiff's licensors should be ordered to deposit in the Court a sum of Rs. 20,886/- or in the alternative that the defendant may be ordered to pay to the plaintiff a sum of Rs. 16,150/- and that the plaintiff might be granted liberty to remove the structures admeasuring about 22 ft. by 15 ft. constructed by the plaintiff in the open space of the defendants. The further prayer was that until the above relief was received by the plaintiff. the plaintiff might be relived from the undertaking given by the plaintiff to the Court relating to the handing over of the possession of the suit premises to the defendants. In other words, the chamber summons was taken out for direction from the Court that the defendants were not entitled to enforce the undertaking given by the plaintiff to the Court unless the defendants had themselves returned certain monies owed by the defendants to the plaintiff. A good deal of heated arguments were advanced across the bar on behalf of the petitioner. on the question as to whether this chamber summons forms part of the process of execution of the decree or not. To my mind the entire argument was meaningless one because really speaking nothing turned upon the question as to whether the Chamber summons was taken out in any execution proceedings or not. The question of execution of the consent decree dt. 19-4-1966 did not arise at all because in the consent decree there was no order passed by the Court directing the plaintiff to hand over possession to the defendant on any particular day. All that was done by the consent decree dt. 19-4-1966 was that the undertaking given by the plaintiff to the Court to hand over possession of the suit premises to the defendants on or before 31-3-1970 was recorded in the decree. But no decree was passed against the plaintiff by the Court as such directing the plaintiff to hand over possession of the suit premises to the defendants. There was therefore no question of execution of the said decree. The chamber summons taken out by the plaintiff himself could. therefore. not be a part of the execution proceedings at all. but nothing would turn upon that question.

Whatever that may be, in the chamber summons the parties arrived at further compromise and by virtue of such compromise the plaintiff obtained further time from the defendants to remain on the suit premises and to conduct the business in the suit premises for a further period of 7 years. The consent order in this behalf was passed by the Court on the Chamber summons on 26-6-1970. But what is done by these consent terms is of great significance for ascertaining the exact nature of the order passed by the Court dt 26-6-1970 on the Chamber summons. By the consent terms one of the facilities that was given to the plaintiff was that he was allowed to remain in possession of the suit premises and to carry on his business for a further period of 7 years. This part of the agreement was recorded in the decree passed by the Court. Further the previous undertaking on the part of the plaintiff to hand over possession to the defendants at the end of the period was also recorded in the decree making it relatable to the further period of 7 years. But in addition to these conditions which were mere matters of record, the Court further passed its own order that after the stipulated period of seven years, the plaintiff should hand over peaceful possession of the factory premises, together with the articles and things separately mentioned, to the defendants after the expiry of the said period of seven years. In fact, a decree was passed by the Court on the said Chamber summons on 24th June 1970. That was a consent decree and evidently it was a consent decree passed in modification of the previous consent decree. The said consent decree. thus. did two things. Some of the stipulations between the parties were merely recorded in the decree but there were other stipulations which were not merely recorded by the order in terms of the agreement. but were made enforceable by the orders of the Court. The order for possession was one of such orders. In other words on 24-6-1970, the plaintiff got time for vacating the suit premises extended by a period of 7 years and for the purpose of getting this benefit the plaintiff allowed a decree for possession to be passed against himself by the Court. The previous consent decree dt. 19-4-1966 was thus modified by the consent of the parties and was replaced by a fresh consent decree dt. 26-6-1970. The previous consent decree could not be an executable decree as such. The new consent decree became executable as per the very wording of the decree.

4. However, it may be mentioned here that so far as the undertaking given by the plaintiff to the Court which was incorporated in the first decree dt. 19-4-1966. The defendants, decree-holder, thus got a two-fold remedy against the plaintiff. In the first place, the defendants got a decree in their favour for possession of the suit premises which could be executed against the plaintiff after the end period mentioned in the decree. Secondly there was the undertaking given by the plaintiff to the defendants for giving possession at the end of the period and hence the plaintiff got a second remedy for getting possession. namely, one by way of enforcement of the undertaking.

5. The plaintiff's right to continue to be in possession of the suit premises extended only uptill the year 1977 but even before the expiry of the period on 26-11-1976. the parties entered into an agreement and by that agreement the period of plaintiff's possession of the suit premises was extended by a further period of five years. This agreement was not made subject matter of any decree by the Court as such. By the said agreement not only the period of plaintiff's possession was extended but there were certain alterations made in respect of various payments by plaintiff to defendant. The said agreement was made subject matter of the decree of the Court. But what is extremely important and significant is Clause 6 of the said agreement. In fact the said Clause 6 is of such great importance that it is useful to set out the same verbatim here. It runs as follows :--

'Save as hereinabove provided, all the terms orders undertaking conditions and provisions and articles and things mentioned in the list hereto contained in the hereinabove recited consent order on Chamber summons dt. the 24th day of June 1970, shall remain in full force and effect and be binding upon the parties hereto.'

By virtue of this agreement the plaintiff got time of further 4 years uptill 31st May 1981. But this extension of time was given strictly subject to the conditions that all the other terms and stipulations of the previous consent decree and the consequence flowing from the previous consent decree were retained by the defendants and in fact such retention of those conditions and consequences was evidently a consideration for the purpose of giving extension of time to the plaintiff.

6. The time during which the plaintiff could enjoy the benefit of the possession of the suit premises expired on 31-3-1981. A few things happened before that date and those things are sought to be used by the plaintiff as a ruse for wriggling out of

(a) the undertaking given by him to the Court:

(b) the liability incurred by him by virtue of the decree for possession passed by the Court:

I will presently refer to these events and point out that these events have to bearing whatsoever on the question so far as it relates to the rights of the plaintiff and defendants flowing from the consent decree dt. 24-6-1970.

7. On 21-4-1981, the defendants who will be referred to hereinafter as 'decree holder' filed an application for execution of the consent decree dt 21-4-1981 passed by the Court on 24-6-1980 in Suit No. 941 of 1966. In the said execution application. notice as required by O. 21 R. 22 of the CPC was applied for by the decree holder to be issued to the judgment debtor and the notice in that behalf issued from the Court on 30-6-1981. Various defences were raised by the judgment debtor but I need not refer all of them here because only some of them were pressed into service before me. The long and short of the defence was that. according to the judgment debtor, the decree was not an executable decree. He also challenged the decree holder's right to execute the decree on the ground that she herself had no subsisting interest in the suit premises.

8. All these contentions have been negatived by the learned Judge who heard the proceedings under O. 21 R. 22. In fact he passed an order rejecting substantial part of the contentions urged on behalf of the judgment debtor. In para 44 of his judgment, he in fact made the notice absolute, stating that the decree was enforceable in Act. However, the learned Judge did not pass in order issuing warrant of possession. This was so because. according to the learned Judge. an ex parte decree had been passed against the decree-holder by the Court of Small Causes in some other proceedings instituted by the decree-holder's own landlord against her. According to the learned Judge, it would be a futility for the Court to issue the warrant of possession in favour of the decree-holder at this stage because even if the decree-holder got possession through the instrument of the City Civil Court. that part of the nothing but illusory because that possession would be taken away from her by her own landlord by executing the decree obtained by him against herself. In the concluding para 48 of the judgment. he therefore observed as follows :--

'In the result. the defendant's application is allowed to the extent that the decree is renewed. Application for execution is kept pending. Liberty to the defendants to apply for revival thereof after she succeeds in application against the landlord in the Court of Small Causes.'

As will be presently pointed out. I am in agreement with the ultimate conclusion arrived at by the learned Judge namely that the decree obtained by the respondents against the present petitioner is a perfectly executable decree, as also that part of the learned Judge's order which makes notice under O. 21 R. 22 of the Civil P. C. absolute. However. I have my own doubts as to whether the learned Judge was justified in refraining from issuing an immediate warrant of possession against the present petitioner. the judgment debtor. merely because after getting the possession from the judgment-debtor the respondents were likely to lose the same in favour of their own landlords by virtue of the decree obtained by the latter against the former. If at all. the respondents were the real persons who should be said to be aggrieved by that part of the order passed by the learned Judge because it is that part of the order which is to my mind an erroneous part Mr. Paranjpe the learned Counsel for respondent was however right in making a statement before the Court that in view of the fact that the ex parte decree obtained by the respondents landlords was set aside by the Court of Small Causes. in effect. and in reality, the respondent had no necessity to file any revision application against that part of the order passed by the learned Judge by which they would justifiably aggrieved. My attention was invited to the fact that as a matter of fact the ex parte decree passed by the Court of Small Causes against the present respondents was aside by that Court during the pendency of this revision application. That is one of the events which forms part of certain collateral proceedings. The orders in these collateral proceedings are sought to be used by the present petitioner as a handle for avoiding the execution of the decree for possession that he himself allowed to the passed against himself and for wriggling out of the undertaking given by him solemnly to the Court. Since the contentions in that behalf have been seriously urged before me by Mr. Suresh. the learned counsel for the petitioner. and since according to him they are very relevant for the purpose of deciding the present dispute, it is worthwhile referring to those collateral proceedings and events.

9. It is mentioned above that the respondents are not the owners of the suit premises. The factual position about which there is, no dispute is that the land upon which the factory premises stand belongs to Voltas Company. One Sharma took it on rent from the Company as a monthly tenant. He constructed some structure upon the same and the structure was let out by said Sharma to the husband of respondent No. 1. There is some dispute as to whether the husband of respondent No. 1 was carrying on any business of factory in the structure or not, The fact however remains that there was some machinery lying in the premises but the business might or might not be running. The husband of respondent No. 1 died and after his death respondent No. 1 became the tenant in respect of the structure and this structure she gave on leave and licence to the present petitioner for conducting the business of the factory. It is therefore, evident that there exists no privity of either of contract or agreement between the present-petitioner and said Shri Sharma Said Sharma, it is alleged, gave an ejectment notice to the plaintiff on 2-10-1978. The service of the said notice is stoutly denied by the present respondent No. 1. It is thus a disputed fact. Said Shri Sharma filed two ejectment suits No. RAE 276/998 of 1979 and 274/1014/1979 against the present respondent No. 1. The reason for filing the two suits is that the suit premises consists of two different sets to premises and were let out to respondent No. 1 by two different leases. There is no dispute however that so far as the present petitioner is concerned. he is the licensee of both the suit premises and that is the reason why both of the said premises are referred in this judgment as the suit premises or factory premises. The two suits filed by Sharma against hereinafter referred to as 'ejectment suit'. In these ejectment suits ex parte decrees came to be passed against respondent No. 1 on 2-1-1980. Those two ex parte decrees were sought to be executed by said Sharma and during the execution, obstruction was offered by the present petitioner. The present petitioner thereafter also gave notice to the present respondent No. 1 about the ex parte decree obtained by Mr. Sharma against her. In order to remove the obstructions offered by the present petitioner Shri Sharma took out two obstruction notices against the present petitioners. The proceedings pursuant to the said obstruction notices were settled between the parties on 17-3-1981 and by virtue of that settlement an order in terms of the settlement between the decree-holder Shri Sharma and the obstructionist (present petitioner) were passed by the Court of Small Causes on 15-4-1982 The order is produced before me. The relevant portion of the same runs as follows :--

'1. Plaintiff in person.

2. Obstructionist in person.

3. Both plaintiff and obstructionist admit execution and compromise. I am satisfied that notice-claim to settled by this lawful compromise I direct it to be recorded.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //