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V.S. Karandikar and Sons Through Its Partners and ors. Vs. Girdharilal Gokuldas Shah and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 5276 of 1984
Judge
Reported in1986(2)BomCR261
ActsBombay Rents, Hotel and Loading House Rates Control Act, 1947 - Sections 13 and 15A; Code of Civil Procedure (CPC) , 1908 - Sections 47; Constitution of India - Article 227
AppellantV.S. Karandikar and Sons Through Its Partners and ors.
RespondentGirdharilal Gokuldas Shah and ors.
Appellant AdvocateH.H. Yagnik Kantilal Parikh & Co.
Respondent AdvocateK.J. Abhyankar, Adv. for respondent Nos. 1 to 5
DispositionPetition allowed
Excerpt:
tenancy - possession - sections 13 and 15a of bombay rents, hotel and lodging house rates control act, 1947, section 47 of code of civil procedure, 1908 and article 227 of constitution of india - suit to recover possession of immovable properties on grounds of arrears of rent and bona fide requirement - suit ended in compromise - tenant's contention was that compromise decree resulted in creation of fresh lease - contention upheld - dominant intention of the document was transfer of property as leasehold right - terms requiring giving six months notice before vacating was consistent with creation of leasehold right - registration of compromise decree showed that it was not intended to be mere concession in favour of tenant - held, compromise decree created fresh lease and so protected.....b.c. gadgil, j.1. plaintiffs in suit no. 342 of 1984 of the file of the joint civil judge (junior division), satara, have filed this writ petition challenging the orders passed by the 2nd extra assistant judge, satara in civil miscellaneous appeal no. 169 of 1984. the trial court had granted an ad interim injunction against the defendants restraining them from executing the decree passed in regular civil suit no. 273 of 1966. the defendants challenged this order by filing the above mentioned civil miscellaneous appeal no. 169 of 1984. the said appeal was allowed and the ad interim injunction was vacated. it is this order that is being challenged before me.2. at this stage, certain facts are not in dispute. gokuldas gujar who was the predecessor-in title of respondents nos. 1 to 5 had.....
Judgment:

B.C. Gadgil, J.

1. Plaintiffs in Suit No. 342 of 1984 of the file of the Joint Civil Judge (Junior Division), Satara, have filed this writ petition challenging the orders passed by the 2nd Extra Assistant Judge, Satara in Civil Miscellaneous Appeal No. 169 of 1984. The trial Court had granted an ad interim injunction against the defendants restraining them from executing the decree passed in Regular Civil Suit No. 273 of 1966. The defendants challenged this order by filing the above mentioned Civil Miscellaneous Appeal No. 169 of 1984. The said appeal was allowed and the ad interim injunction was vacated. It is this order that is being challenged before me.

2. At this stage, certain facts are not in dispute. Gokuldas Gujar who was the predecessor-in title of respondents Nos. 1 to 5 had filed Regular Civil Suit No. 273 of 1966 against Vishwanath Karandikar and Venkatesh Mudholkar. This Gokuldas Gujar and respondents Nos. 1 to 5 are hereinafter referred to as Gujar. Similarly, Vishwanath Karandikar and the petitioners who are holding the interest of Vishwanath Karandikar are hereinafter referred to as Karandikar. It was a suit to recover possession of certain immovable property situated at Satara. That property mainly consist of a theatre known as Shrikrishna Theatre and Chitra Talkies. The suit was filed under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 (hereinafter referred to as the Rent Act) on two grounds viz. (1) default in payment of rent and (2) bona fide and reasonable requirements by Gujar for his own use and occupation. During the pendency of the suit, the name of Mudholkar was deleted. The suit proceeded only against Vishwanath Karandikar. The present petitioners (who have now filed Regular Civil Suit No. 342 of 1984 in question) are the partners of a firm which is carrying on business in the name of Chitra Talkies. The said suit of 1966 ended in compromise decree for possession and certain other reliefs. I would refer to the various terms of the compromise decree in details at the later stage. However, for the present, it is sufficient to state that the contention of Karandikar is that the said compromise decree has created a fresh contractual lease between Karandikar and Gujar and that therefore the decree is not executable. Another contention is that at any rate the said compromise decree constitutes creation of a licence as contemplated by section 5(4-A) so as it to be protected under section 15A of the Rent Act. It is needless to say that certain licences subsisting on 1-2-1973 get protection and under section 15A a licensee under such licence is deemed to be a tenant to be protected by the Rent Act. The third contention of Karandikar is that the compromise decree is a nullity, inasmuch as the trial Court which passed the decree did not apply its mind for the purpose of finding out as to whether there existed any ground under the Rent Act for eviction of Karandikar. With these principal allegations, Karandikar filed the suit in question for appropriate reliefs including an injunction restraining Gujar from executing the said decree. In that suit an application for temporary injunction was filed. The trial Court came to the conclusion that Karandikar had made out a prima facie case. Thus, the injunction was granted. As stated earlier, the Appellate Court negatived Karandikar's contentions and consequently the temporary injunction was vacated.

3. It was urged by Shri Yagnik for the petitioners-Karandikar that a plain reading of the compromise decree would show that the decree created a fresh lease. He also urged that at any rate a licence which deserves protection under section 15A of the Rent Act has been created by the compromise decree. Shri Abhyankar arguing for the respondents-Gujar urged that the compromise decree did not have any such effect and that there is a decree for eviction with certain concessions to the judgement-debtors-Karandikar. Thus, everything depends upon the construction and true effect of the compromise decree. It would, therefore, be necessary to note the salient terms of the decree. They are as follows :---

(1) After taking into account the amount spent by Karandikar for the repairs of the property, the amounts paid by him to Gujar and the amount deposited by Karandikar in Court, it is found that Gujar has to pay Rs. 13,000/- to Karandikar by the end of 31st July, 1971.

(2) The premises are reasonable and bona fide required by Gujar for his own use. However, as Karandikar has invested a lot of amount, it was decided between the parties that Karandikar should deliver possession to Gujar by the end of 31st July, 1984, i.e. after thirteen years from 31-7-1971.

(3) For running the theatre, if Karandikar feels it necessary to effect repairs and alterations and to increase the sitting accommodation, Gujar has no objection and grants consent for such work. However, this consent is limited only upto an account of Rs. 1,00,000/-. Gujar will bear 65 percent of the expenses upto Rs. 1,00,000/-. The expenses over and above Rs. 1,00,000/- will have to be incurred by Karandikar at his own cost.

(4) If the above expenses are less than Rs. 1,00,000/-, Gujar will bear 65 percent, while Karandikar will have to bear 35 percent of the expenses.

(5) After taking into construction the amount that was being spent over the property by Karandikar, it is agreed that Karandikar should pay to Gujar Rs. 800/- per month for the use for the property. However, out of that amount, Karandikar would retain Rs. 485/- per month for the satisfaction of the amount of Rs. 13,000/- (as mentioned in sub-paragraph (1) above) and of the share of expenses to be borne by Gujar. The remaining amount of Rs. 315/- should be paid by Gujar on or before 10th of every month. If Karandikar would commit default for six months in such payment, Gujar would be entitled to recover the amount with 6 percent interest in execution of this decree.

(6) Karandikar would have to give six months advance notice in case he decides to deliver possession before the expiry of thirteen years. In such contingency, Gujar will have to pay Rupees 5,820/- per year for the unexpired period of thirteen years. In addition he has also to pay the unpaid amount as mentioned in earlier paragraphs. Such payment is to be made by Gujar before taking possession. Otherwise, Gujar would be liable to pay interest at 12 percent per annum and in addition he would also be liable to pay Rs. 500/- per month as damages. There would be charge of all this amount on the suit property.

(7) The Municipal taxes on the property will be paid by Gujar however, if there is any increase in the Municipal taxes, that increase will have to be borne by Gujar and Karandikar equally. In case Gujar fails to pay his such share in the taxes, Karandikar may pay and would be entitled to get it back from out of the amount of mesne profits payable to Karandikar to Gujar.

(8) Karandikar may use the articles that are lying in the premises while carrying out repairs and alterations. The furniture fixed by Karandikar after 1965 in the auditorium belongs to Karandikar. Karandikar would be entitled to remove that furniture while changing it. Apart from this furniture, the rest of the furniture belongs to Gujar. Karandikar may use those articles in the repairs and alterations. The articles which cannot be used may be sold by Karandikar and the price amount may be used towards the repairs of the premises.

(9) Karandikar would not be liable to pay any amount for the use of the theatre for the days on which cinema will not be exhibited on account of the work of repairs and alteration going on in the theatre. However, this non-payment would be upto a maximum period of 180 days.

(10) Karandikar has to deliver possession of the theatre along with the furniture etc. as mentioned in sub-paragraph (2). Karandikar would be at liberty to remove his belongings from the cabin room and the office, but while doing so he should not cause any damage to the building.

(11) In case Karandikar would not deliver possession as mentioned in sub-paragraph (2), Gujar would be entitled to recover it in execution of this decree. Karandikar would be liable to pay Rs. 40/- per day from 1-1-1984 till actual delivery of possession.

(12) There compromise decree should be registered.These terms have been relied upon by the learned Advocate on behalf of both the sides but for the purpose of the making their rival contentions. Shri Yagnik urged that all the terms reads together would show that the parties intended to have a fresh lease for a long period of thirteen years. As against that, Shri Abhyankar argued that by the above compromise the parties agree upon a decree for possession coupled with certain concession to the defendants to how he should run the theatre and hand over possession after a period of thirteen years. It cannot be doubted for a moment that parties can enter into a fresh contract of lease by a compromise decree. Everything will depend upon the intention of the parties. The scheme of the agreement together with the various rights and liabilities covered by the compromise would be relevant. The question as to how the compromise decree should be interpreted for finding the intention of the parties is considered by a Division Bench of the Court in the case of Ramjibhai Virpal v. Gordhandas, 56 Bom.L.R. 365 . The relevant head-note reads as follows :

'In a suit between the landlord and his tenant where the tenant claims the protection of the Rent Restriction Act, it would be open to the landlord to enter into an agreement with the tenant by which the relationship of landlord and tenant can be created afresh between the parties. Where the agreement is reduced to writing, the relationship brought into existence by the writing must always be determined into light of the words used by the parties in executing the document. The substance of the transaction has to be determined, and if in substance the transaction appears to be one of lease, the fact that an effort is made to clothe the transaction with an appearance of licence by the use of ingenious and clever would not alter the essential character of the transaction. In that sense the use of words such as 'mesne profits' or 'compensation' can have no material effect. But this is a statement of one aspect of the matter. In determining the nature of the transaction itself courts have inevitable to take into account the words used by the parties, and in that sense it would be wrong to suggest that the words used in the document, such as 'compensation' or 'mesne profits' are of no consequence whatever. In deciding the question as to what was the intention of the parties in executing the document courts would have to look at the document as a whole, give the words used in the document their pain, grammatical meaning, and determine the intention of the parties in that manner ..... '

The Supreme Court had also an occasion to consider as to how the compromise decree should be construed in order to find out as to whether the decree constituted a fresh lease or not. In the case of Nai Bahu v. Lala Ramnarayan : [1978]1SCR723 , the Supreme Court has observed in paragraph 20 as follows :---

' It is the dominant intention of the document which must guide the construction of its contents .....'

Similarly, in the case of a Kalloo v. Dhakadevi : [1982]3SCR201 , the question of determining the compromise filed in an execution petition arose. The Supreme Court has held as follows in paragraph 6 :---

'When a compromise petition is filled in an execution proceeding, and a contention is raised by the judgment-debtor on a subsequent execution being started by the decree-holder that the compromise has given rise to a fresh contract between the parties and that the decree sought to be executed is not executable, what is to be seen is whether the decree has been extinguished as a result of the compromise and a fresh contract has emerged. When a compromise takes place in the course of execution of a decree for eviction, the compromise may extinguish the decree and create a fresh lease, or the compromise may provide a mere mode for the discharge of the decree. What actually takes place depends on the intention of the parties to the compromise. And the intention has to be gathered from the terms of the compromise and the surrounding circumstances including the order recorded by the Court on the basis of the compromise.'

This Court in the case of Sumatibai v. Anant A.I.R. 1949 Bom 402, had to deal with the question about the construction of a compromise decree. Looking to the terms of the document, this Court has held that the compromise decree constituted a lease. In that case, suit was filed on 16-4-1944 for eviction. Exactly one year later, i.e. on 16-4-1945, the suit ended in a compromise decree. The defendant was to vacate on 30-6-1947. He was to pay rent till that time. However, there was no clause in the decree that if the amount was not paid the plaintiff would be entitled to recover possession. The absence of such clause in the compromise decree has been considered by this Court in the following words (vide paragraph 5) :---

'On the failure of the defendant to pay any of the amount which is fixed as rent on its due date, the only right the decree gave to the judgment-creditor was to have it executed for the amount which remained due; it did not entitle the judgment-creditor to take possession of the land on default of payment or rent.'

This approach about the absence of a clause permitting possession for non-payment has been approved by the Supreme Court in the case of Ramamurty Subudhi v. Gopinath : [1967]2SCR559 . It is held therein that the substance of the document must be preferred to the form and that the real test is the intention of the parties-whether they intended to create a lease or not. Before the Supreme Court there was a compromise decree which granted a time to the judgment-debtor possession. Clause 1(d) of the compromise decree provided immediate eviction for non-payment for three months. In paragraph (12) the Supreme Court has discussed this clause in the following words :--

'....... But what is very significant is Clause (d) which enables the decree holder to execute the decree if the judgment debtor fails to pay rent for any three consecutive months. This it seems to us, shows that the intention of the parties was not to enter into the relationship of a landlord and tenant. We may mention that the importance of this fact was advertise to in Sumatibai Waman Kirtikar v. A.B. Shirgaonkar, A.I.R. 1949 Bom. 402 where Chagla, C.J., observed: On the failure of the defendant to pay any of the amount which is fixed as rent on its due date, the only right the decree grave to the judgment -creditor was to have it executed for the amount which remained due; it did not entitle the judgment-creditor to take possession of the land on default of payment of rent.'

It is therefore, necessary to find out as to what Gujar and Karandikar intended when they entered into a compromise.

4. Thus, the terms of the document and the surrounding circumstances will have to be looked into for the purpose of interpreting and understanding the tension of the parties. Shri Abhyankar relied upon Clause 2 of the compromise which made a provision that Karandikar should deliver possession on 31-7-1984 as the premises were reasonably and bona fide required by Gujar. Clause 11 made a provision that Gujar would be entitled to get possession in execution of the decree. Shri Abhyankar, therefore, submitted that the parties intended that Gujar should get possession of the property and that a concession was given to karandikar that he could deliver possession after thirteen years. He also laid much stress on the fact that the restrictions under the Rent Act were applicable at the time when the decree was passed and in that background it would not be possible to hold that after having filed the suit for possession Gujar would again enter into a fresh lease by the said compromise. It is true that these aspects are, to a certain extent, relevant. But they alone would not be decisive. The rest of the terms of the compromise will have to be taken into account while determining the real intention of the parties. It will be too broad a proposition to be accepted that in a suit governed by the rent restriction legislation there cannot be a fresh lease by a compromise decree. The existence of the rent restriction has been considered by this Court in Ramjibhai's case supra. Shri Abhyankar laid much stress on the observations at pages 377, 378 and 379 of the said report. I would reproduce those relevant observations :

' Mr. Tarkunde says that the compromise merely show the adjustment of pre-existing rights between the parties. Both parties claimed rival rights. The plaintiff claimed that he was entitled to evict the defendant. The defendant claimed that he was entitled to continue in possession. These rival contentions were adjusted and the respective rights set up by the parties were compromised and their character and effect were determined by the terms of the compromise...

As I have just mentioned, it would be possible for a statutory tenant to give up his status as such tenant and to enter into a fresh tenancy agreement with the landlord ; and it would be open to the landlord in such a case to create the relationship of landlord and tenant between himself and him extent. But that must clearly appear to have happened in a given case before it could be said that the landlord has transferred the right to enjoy his property to the tenant.

There is yet another point on which Mr. Tarkunde relies and that is that a compromise decree of the kind with which we are dealing in the present appeal cannot be treated as a transfer at all. It is no more and no less than an adjustment of antecedent rights in terms of which a decree has followed....

Looking at the decree as a whole it seems to us clear that the plaintiff could not have intended to 'constitute the defendant a tenant of the suit premise. All that he was prepared to do was to accommodate the tenant out of compassion or humanity and the material terms of the decree are consistent with this compassionate motive of the landlord ....'

Shri Yagnik, however, submits that the above observations are of no use while interpreting the compromise decree in question.

5. Shri Yagnik urged that the following provisions in the compromise decree would carry more weight than the rest of the from of the decree :---

(1) Karandikar was permitted to spend large amount which might even exceed Rs. 1,00,000 /- over the repairs, alterations and the increase in the sitting accommodation.

(2) The expenses were to be borne by Gujar and Karandikar in the prescribed percentage viz., 65 per cent and 35 per cent.

(3) Karandikar was permitted to spend an amount even more than Rs. 1,00,000/-, but in that case he had to bear those expenses and Gujar was not to make any contribution.

(4) Karandikar was to pay Rs. 800/- per month to Gujar. The cash payment was to be of Rs. 315/- per month. Gujar was permitted to recover the amount with interest if there would be a default for six months in payment. However, the decree nowhere provided that Gujar would be entitled to get possession in case of such default.

(5) Karandikar was not entitled to vacate the premise unless he would give six months advance notice.

(6) If Karandikar would vacate before the prescribed period, Gujar had to pay Rs. 5,820/- per year for the unexpired period of thirteen years. This payment was to be made at the time of taking possession. Otherwise, Gujar was liable to pay interest at 12 percent and also monthly compensation at Rs. 500/-.

(7) Karandikar was permitted to use the articles that were lying in the premises for carrying out the repairs and alterations. Not only that, the articles which could not be so used were to be sold by Karandikar and the price amount was to be spent towards the repairs.

(8) Karandikar was not to pay anything to Gujar upto a period of 180 days if the work of repairs and alterations would be going on for that period.

(9) The parties agreed that the compromise decree should be registered.

What is submitted on behalf of Karandikar is that all the above terms are incompatible with grant of any concession to Karandikar. Shri Yagnik urged that these terms lend support for the construction that the compromise contemplated creation of a fresh lease.

6. It does not appear probable that Gujar wanted to give a sort of concession particularly when the parties agreed that Karandikar was to remain in possession for a very long period of thirteen years. There is much substance in the contention of Shri Yagnik that ordinarily a landlord who claims possession for bona fide and reasonable requirement would not agree for such a long period. The matter does not rest at that. It is very difficult to accept that while granting the concession as alleged by Gujar, he permitted Karandikar to spend huge amount on the repairs, alterations, etc. Similarly, it does not appeal to reason that Gujar will agree to bear 65 per cent of the expenses. Shri Yagnik is right when he contends that this term goes inconsistent with any element of concessions to be granted to Karandikar.

7. The clause requiring Karandikar to give six months advance notice before vacation the property earlier than the prescribed period of thirteen years is again highly inconsistent with the intention of other parties that Karandikar should be given just a concession to occupy the premises for thirteen years. If it was really a concession and nothing more, the parties would not have insisted upon Karandikar giving any such notice. On the contrary, the parties would have agreed that in spit of permission to be in property for thirteen years, Karandikar would be at liberty to hand over possession ever earlier and Gujar would be ready to get back possession without there being any term of six months advance notice. There is much substance in the contention of Shri Yagnik that a provision for giving six months notice is not in consonance with the parties agreeing to have a concession in favour of Karandikar. In fact, such a notice contested that Karandikar has a right to be in possession for thirteen years and that he has to give a notice if he has to do away with that right at any earlier time. This position gets strengthened form another provision which requires Gujar to pay to Karandikar Rs. 5,820/- per year for the unexpired period of thirteen years if Karandikar opts to quit the property earlier. One fails to understand as to how and why Gujar who wanted to bestow a sort of concession on Karandikar would undertake a liability to pay certain amount if Karandikar decided to waive the said alleged concession by quitting the property earlier that the prescribed period of thirteen years. The fact that Gujar agreed to pay such amount is more consistent with Gujar letting out the property for a period of thirteen years on certain terms including the expenditure of huge amount by Karandikar over the repair etc. The impact of this term of the payment of Rs. 5,820/- per year can as well be considered in its proper prospective if an illustration is taken. Under the compromise, Karandikar can quit the property any time say after a year or so and even without spending any amount over the repairs, alterations, etc. In such contingency, Gujar would be liable to pay a huge amount of Rs. 69,840/- (i.e. Rs. 5,820/- x 12 ). This illustration would show that there was no element of concession as alleged by Shri Abhyankar. On the contrary, the parties intended to transfer the property as a leasehold right. In addition, one cannot forget that the compromise decree did not permit Gujar to take possession if Karandikar would commit default in the payment of monthly amount. The only right given to Gujar is to recover that amount with interest without any additional right to claim immediate possession.

8. Shri Abhyankar submitted that all the above-mentioned provisions in the compromise decree would be noting but the financial arrangements agreed between the parties at the time of granting a concession to Karandikar of delivering possession after thirteen years. In my opinion, it will be very difficult to brush aside the above-mentioned terms on such basis. On the contrary, these terms are more compatible with the parties agreeing for a fresh lease.

9. The above terms do not go consistently with the grant of concession as alleged by Shri Abhyankar. In fact, these terms indicate that time was not granted on account of any compassion and humanity. Similarly by these terms, the existing rights between the parties have not been settled and there was no question of adjustment of antecedent rights as discussed by this Court in the decision in Ramjibhai's case (supra) (the relevant portion of which is reproduced in paragraph 4 herein above). In fact, the compromise decree created fresh rights and liabilities, e.g. Karandikar right to spend large amount on repairs and alterations; Gujar's liability to hear a portion of these expenses and to pay Rs. 5,820 /- per year.

10. It may not the out of place to make a mention of another clause in the compromise decree. The parties agreed that the said compromise decree should be registered. In my opinion, the provision for registration of the decree could not have been contemplated by the parties if they intended a grant of a concession. On the contrary, the agreement about the registration of the decree is more consistent with the transfer of leasehold property in favour of Karandikar. It would thus be clear that though the form of the decree connotes that there was a decree for eviction under the Rent Act, still that form will not be of much importance, inasmuch as the substance of the compromise decree indicates a clear intention that the parties intended to have a fresh lease for thirteen years on certain terms and conditions which cannot be said to be incidental to the grant of any concession. It is true that the compromise decree does not use the word 'rent' when making a provision for the monthly payment by Karandikar to Gujar. However, the use of a particular word or absence of some words not be decisive if the substance of the compromise is different. In fact, all the terms read together would indicate a definite intention of creation of lease. The learned 2nd Extra Assistant Judge has held that the compromise decree does not create and fresh lease. However, in view of the above discussion, the learned 2nd Extra Assistant Judge has committed an error which is apparent on the face of the terms of the compromise decree.

11. The next contention of Shri Yagnik is that the position would not be different even if it is assumed that the compromise decree does not create a fresh lease. According to him, the decree, at any rate has created a licence in favour of karandikar and that the licensee karandikar is protected under the provisions of seduction 15A of the Rent Act. The Rent Act is amended in 1973. Section 5(4-A) is added for defining the term 'licensee'. The relevant portion of the definition reads as follows :---

'licensee' in respect of any premises ......, means the person who is in occupation of the premises ........., under a subsiding agreement for licence given for a licence fee or charge........, and the expressions 'licence', 'licensor' and 'premises given on licence' shall be construed accordingly:'

Section 15A(1) provides as follows :---

'Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force or in any contract, where any person is on the 1st day of February, 1973 in occupation of any premises, or any part there of which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purposes of this Act, the tenant of the landlord in respect of the premises or part thereof, in his occupation.'

The argument of Shri Yagnik is that the compromise enter into between Gujar and Karandikar constituted a licensee under which Karandikar became a licensee so as to be protected by the Rent Act. Realise was placed on a decision of the Court in the case of Jacob David v. Baldev Phatak, 77 Bom.L.R. 254. In that case there was an agreement of leave and licence dated 10-11-1966. The licensor plaintiff terminated the licence and filed a suit for possession on the strength of title. On 24-3-1971 the parties entered into a compromise. A consent decree was passed. It stated that after termination of the licence, the defendant had no right to posses and possession had been ordered in favour of the plaintiff. The possession was to be given on 31-3-1974. During the intervening period, the defendant was to pay certain monthly amount to the plaintiff. The compromise provided that the plaintiff would be entitled to execute the decree earlier if there would be two defaults in such payment. Thus, the defendant was in possession-on 1-2-1973 (i.e. the date mentioned in section 15A under this compromise. The defendant sought protection from eviction in view of the above amendment. This Court has held as follows :

'A consent decree is a contract between the parties to which is superseded 'the command of the Judge' or 'the imprimatur of the Court. It is, as the very expression indicates, a cross-breed between a contract and a decree. It is neither purely a contract not purely a decree but has some of the characteristics and incidents of both.....'

The material note further reads as follows :---

'Held, (1) that when the plaintiff agreed not to executes the decree till March 31,1974, that necessarily created in the defendant a correlative right to resist execution of the decree if the plaintiff made any such attempt prior to that date :

(2) that provision in the consent decree was not an ex gratia concession made by the plaintiff.

(3) that, having regard to the definition of the tern licensee in sub-section 4-A of section 5 of the Act read with the definition of 'licence' in section 52 of the Indian Easements Act, 1882, all the ingredients necessary for the purpose of constituting a licence were present in the instant case : and

(4) that, therefore, the defendant was entitled to the protection of the new section 15A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 and to relief by way of permanent injunction restraining the plaintiff from taking any proceedings in pursuance of the consent decree'.

During the course of the arguments, I was told that in appeal arising from this order the Division Bench held that on a true construction of the decree a mere concession was granted to the defendant and that there was no license as such.

12. Shri Abhyankar contended that the view taken in 77 Bom.L.R. 254 dose not hold good in view of the Division Bench decision of this court in the case of Narendra v. Jethalal, 80 Bom.L.R. 196. It is, however, material to note that this Division Bench decision has negatived the claim for protection under section 15A mainly on the ground that the property in question did not constitute premises as defined in section 5(8) of the Rent Act. This can ben seen from the discussion at page 206 of the report, The Division Bench has posed the following two further questions :

(1) Whether the consent decree can be considered as an agreement as contemplated by the definition in section 5(4-A)

(2) Whether a licence was created by the consent decree?

The Division Bench did not decide these questions. Thereafter there is a discussion as to whether the defendants even if assumed to be licensees as contemplated by the amended provisions would be protected from eviction. The relevant discussion in this respect appears at pages 212, 213 and 214 of the report, What is observed is that the non obstante clause in section 15A does not affect the operation of a decree, This non-obstante clause read :

'Notwithstanding anything contained elsewhere in this Act or anything contrary in any other law for the time being in force or in any contract...........'

The Division Bench has held that this clause does not take away the rights and obligations arising out of a decree and that, therefore, a licensee under a consent decree would not get any protection. It was contended by Shri Yagnik that this view is not correct. His argument is two-fold. According to him, the consent decree does not nullify the contract on the basis of which the decree has been passed. All that is done is that the said contract is suppurated with the command of the Judge. It is argued that even after this super adding of a court's command the contract between the parties still exists and that the said contract would not be of any importance particularly on account of the non obstante clause in section 15A. The second submission of Shri Yagnik is that the decree is sought to be executed in accordance with law relating to execution of the decrees and that, this law about execution' is covered by the non obstante clause. He contended that the said non obstante clause would, therefore, prevent the execution of the decree on the basis of the law relating to execution. Shri Yagnik appears to be on a better footing as far as the first point is concerned. Similarly, there is some substance in the second submission, In this background, I think that the above-mentioned decision of the Division Bench needs to be reconsidered. Consequently, it would have been necessary to place the matter before the Chief Justice for referring it to the Division Bench for reconsideration of the above decision. However, it is not necessary to follow this procedure particularly when on a true and proper construction of the decree in question I have come to the conclusion that the said decree created a fresh lease and such a lease is protected under the Rent Act. That perfection exists even if the amended section 15A is left out of consideration.

13. It was lastly urged by Shri Yagnik that the decree would not be executable even if it is assumed that the decree does not create a fresh lease. His argument is that a consent or a compromise will not give jurisdiction to the Court to pass a valid decree for eviction if the Court does not find that there exist and ground for eviction under the Rent Act. Shri Abhyankar did not challenge this legal position. He, however, contended that the plaint is based upon certain grounds under the Rent Act and that the decree is passed on the basis of certain admission in the compromise decree. According to him, such a decree is quite legal and proper. This submission of Shri Abhyankar is well founded as can be seen from the decision of the Supreme Court in the case on Nai Bahu Lala Ramnarayan (supra). Thus, there is no substance in the contention of Shri Yagnik that the decree is void for want of jurisdiction and as such not executable.

14. Shri Abhyankar contended that this is a writ petition under Article 227 of the Constitution and that, therefore, I should not exercise writ jurisdiction for interpreting the decree in a manner different from the interpretation given by the learned 2nd Extra Assistant Judge. Interpretation of the decree is a question of law and the decision given by the learned 2nd Extra Assisted Judge about such interpretation is so erroneous, incorrect and perverse that the interests of justice require that the impugned order of the learned 2nd Extra Assistant Judge should be quashed.

15. Before closing, I would like to state that all the observations made above are for the purpose of finding out whether prima facie case exists for the grant of temporary injunction and thus they are limited for this purpose.

16. The net result, therefore, is that the petition succeeds. The order of the 2nd Extra Assistants judge in Civil Miscellaneous Appeal No. 169 of 1984 is quashed and the order of the Civil Judge granting temporary injunction in favour of the plaintiffs-petitioners in restored on the petitioners gibing a sworn undertaking in the trial Court within two weeks from today that they would continue to the in physical possession of the property and that they would not create any third party interest during the pendency of this litigation. Parties to bear their own costs of this petition.

17. After the above judgment was pronounced, a request was made on behalf of the respondents that the suit may be ordered to be expeditiously heard. The petitioners have no objection for such hearing. It is, therefore, directed that he suit should be expeditiously heard and decided preferably before the end of December 1985.

With of this order should be sent down immediately.


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