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Dammulal and ors. Vs. Kalawati Devi and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberFirst Appeal No. 30 of 1955
Judge
Reported inAIR1960MP18
ActsCode of Civil Procedure (CPC) , 1908 - Order 20, Rules 2 and 18
AppellantDammulal and ors.
RespondentKalawati Devi and anr.
Appellant AdvocateR.K. Pandey, Adv.
Respondent AdvocateR.S. Dabir, Adv.
DispositionAppeal dismissed
Cases ReferredSee Balarama v. Vasudeva
Excerpt:
- - a judge may pronounce a judgment written by his predecessor, but not pronounced (section 199 code of civil procedure) but this clearly implies that at the time of writing the judgment the judge is exercising his jurisdiction. lokenath das, air 1920 pat 578. 12. it would thus be observed that the concensus of judicial opinion has been that order 20, rule 2 of the code of civil procedure empowers the successor to pronounce a judgment which was written by his predecessor after he bad ceased to have jurisdiction over the court. 19. the circumstances of the case indicate clearly that there was a bona fide dispute as regards that rights between the plaintiff on the one hand and defendants nos......case was dismissed. it appears that the building caught fire sometime afterwards. subsequently, chhotelal leased the premises to the plaintiff on 23rd october 1948 as already stated. this was during the pendency of the civil suit noted below.5. defendants nos. 1 and 2 sued the lessors in the court of the 1st additional district judge, jabalpur (civil suit no. 13-a of 1948) for specific performance of the agreement of lease and also for possession of the building. that suit was compromised between the parties. accordingly, an application (exh. d-12), dated 12th december 1949, was presented before the court on that date. the operative part of the compromise, which was embodied in the decree, dated 27 december 1949, is to the following effect:'that the defendants do execute a lease of.....
Judgment:

Bhutt, C.J.

1. This is a defendants' appeal from the decree for money passed by the Court of Additional CivilJudge (Class I), Jabalpur, in civil suit No. 36-B of 1951 (18-B of 1952), dated 3rd February 1955.

2. The suit was based on a bond (Exh. P. 5), dated 9th January 1950, for Rs. 7,000/-. It purports to be executed in favour of the plaintiff-respondent by defendants Nos. 1 and 2 as principal debtors, and by defendant No. 3 as their surety, in consideration of surrender by the plaintiff of her rights under the lease deed Exh. D-7, dated 23-10-1948. The circumstances under which the bond was executed are as under.

3. A building at Jabalpur, called the Gulab Theatre, admittedly belonged to three brothers, Biranlal, Ballilal and Chhotelal. Chhotelal is dead and has left a son Chokhelal (D.W. 3). The three brothers leased the Gulab Theatre to one Jamunadas for a period of six years on a monthly rent of Rs. 300/- under a patta (Exh. D-5) dated 1st July 1944. The lease was renewable for a further period of two years on a monthly rent of Rs. 350/-. Jamunadas entered into an agreement with defendants Nos. land 2 vide Exh. D-4, dated 28th May 1947, for transfer of his rights for the remaining period of the lease. It appears that shortly afterwards the Gulab Theatre was damaged by fire and accordingly defendants Nos. 1 and 2 placed the lessors in its possession for reconstruction. Chhotelal thereafter executed an agreement of lease (Exh. D-7), dated 23 October 1948, in favour of the plaintiff, whereby he purported to give a lease of the Gulab Theatre to her for a period of five years on a monthly rent of Rs. 1,000/-. The document also evidences an agreement between them that they would run cinema shows in the building in partnership in which the plaintiff would have a -/12/-share. The document also shows that the plaintiff was to pay in advance to Chhotelal a sum of Rs. 6,000/- on account of the rent for six months, out of which Chhotelal was liable for Rs. 1,500/- according to his share in the partnership. This is the document the rights under which were said to be, ultimately surrendered by the plaintiff in favour of defendants Nos. 1 and 2.

4. It appears that before the Gulab Theatre was burnt, the lessors had instituted proceedings against defendant No. 2 and Jamunadas before the Rent Controller for terminating the tenancy. That case was compromised, whereby it was agreed that defendant No. 2 would be paying Rs. 4507- per month as rent for the building. An application (Exh. D-II), dated 20th March 1948, to that effect was accordingly made before the Rent Controller and the case was dismissed. It appears that the building caught fire sometime afterwards. Subsequently, Chhotelal leased the premises to the plaintiff on 23rd October 1948 as already stated. This was during the pendency of the civil suit noted below.

5. Defendants Nos. 1 and 2 sued the lessors in the Court of the 1st Additional District Judge, Jabalpur (Civil Suit No. 13-A of 1948) for specific performance of the agreement of lease and also for possession of the building. That suit was compromised between the parties. Accordingly, an application (Exh. D-12), dated 12th December 1949, was presented before the Court on that date. The operative part of the compromise, which was embodied in the decree, dated 27 December 1949, is to the following effect:

'That the defendants do execute a lease of the Gulab Theatre in favour of the plaintiffs on terms and conditions stipulated in the draft lease deed attached herewith and place them in possession of the demised premises accordingly.'

6. Exh. P. 6 is a draft copy of the lease deed, dated 27th December 1949, on the basis of which a formal instrument was executed by defendants Nos. 1 and 2 and the lessors on 25-1-1950. One of the terms thereof is reproduced below:

'Shri Dammoolalji issued one cheque of Rs. 4000/- in words rupees four thousand, in the name of Shri Chhotelal Sahu, on Imperial Bank, Raipur, which he gave in favour of Shrimati Kalawati Devi wife of Jamuna Prasadji Dube Advocate Ganjipura Jabalpur and obtained a receipt from her. Having received this cheque Mst. Kalawati Devi gave up the entitle possession. She had given the advance of Rs. 4000/- for running the very Cinema house. (We) shall pay the amount of Rs. 5000/- in words rupees five thousand in cash to Shri Chhotelal Sahu in presence of the Sub-Registrar at the time of registration. Thus we the tenants shall pay Rs. 9000/- in words rupees nine thousand.'

It is not in dispute that the amount of Rs. 4,000/-, which was paid by defendants Nos. 1 and 2 to the lessors, was paid by them to the plaintiff in satisfaction of the amount that she had paid to them as advance on account of rent.

7. Besides the amount of Rs. 4,000/-, the plaintiff was paid Rs. 300/- by defendants Nos. 1 and 2. The case of the plaintiff was that they had agreed to pay to her Rs. 7,000/- more to complete the consideration for the surrender of her rights. That amount was payable in monthly instalments of Rs. 775/- beginning from 20th February 1950. The bond (Exh. P-5) further recites that 'in the event of any three instalments falling in arrears the entire balance will become payable at once.' It is also not in dispute that only Rs. 750/- were paid to the plaintiff towards the first instalment of the bond. She accordingly claimed Rs. 6,250/- on account of the principal and Rs. 481/4/- on account of interest at 6 per cent per annum by way of damages from 2lst April 1950 to the date of the suit, total Rs. 6,731-4-0.

8. The suit proceeded ex parte against defendant No. 3, Defendant No. 2 admitted execution of the bond in suit. Defendant No. 1 denied execution of the bond but admitted its execution by defendant No. 2. He further admitted that the plaintiff was initially paid Rs. 300/-, and latterly Rs. 750/- towards the bond, by defendant No. 2, but contended that his actions were not binding upon him. The general defence of both the defendants was that Chhotelal alone had no right to grant a lease of the Gulab Theatre to the plaintiff and the lease was not binding upon them inasmuch as they had an existing interest in the leasehold rights granted to Jamunadas. They also pleaded that defendant No. 2 had to execute the bond under undue pressure of the plaintiffs husband, Jamunaprasad Dube (P.W. 2), who did not allow them to run the cinema shows without interruption. It was also averred that Jamunaprasad Dube (P.W. 2) was a pleader if Chhotelal in a criminal case and had used undue influence on him to obtain the lease in favour of his wife,

9. The lower Court negatived the defence and passed a decree for Rs. 6,731/4/- plus costs against all the defendants, It also awarded compensatory costs against defendants Nos. 1 and 2. Hence the present appeal.

10. The judgment was written by Shri B.B.L. Shrivastava after he left Jabalpur on his transfer to Washim and was delivered by his successor Shri D.M. Aney. It was contended on the authority, Lalshah v Rikhiram, 7 CPLR 18 that after Shri B.B.L. Shrivastava left Jabalpur, he had no jurisdiction to write the judgment and accordingly itcould not be delivered by his successor. The cited case was decided by Stevens, Officiating Judicial Commissioner, who relied upon the judgment delivered by the Judicial Commissioner's Court in a previous case, namely, Mt. Fatima v. D. Sinclair, Second Appeal No. 441 of 1887 D/- 22-3-1889 (Nag). The observations made in the previous case, which were relied upon with approval in the cited case, are as below:

'A Judge may pronounce a judgment written by his predecessor, but not pronounced (Section 199 Code of Civil Procedure) but this clearly implies that at the time of writing the judgment the Judge is exercising his jurisdiction. It cannot mean that a Judge who ceases to be a Judge may write a judgment and that judgment will be valid, if pronounced by the succeeding Judge. The judgment derives its whole force and effect from the fact that it is written by a person who has jurisdiction. Once the jurisdiction is gone, the judgment is worth nothing.'

11. The relevant provision of the Code of Civil Procedure governing this question is Order 20 Rule 2 which is reproduced below:

'A Judge may pronounce a judgment written but not pronounced by his predecessor.'

Dealing with the corresponding provision of the old Code, it was held in Girjashankar v. Gopalji ILR 30 Bom 241 that the judgment written (by a Judge after transfer and pronounced by his successor was valid. The same view was taken in Sundar Kuar v. Chandreshwar Prasad Narain Singh, ILR 34 Cal 293 in which the judgment was written by the Judge while he was on leave. This decision came to be considered by a Full Bench of the Calcutta High Court in Satyendra Nath v. Kastura Kumari, ILR 35 Cal 756 in which, approving the previous decision of the Court, it was held that the judgment written by a Judge, who went away on transfer or on leave, and delivered by his successor, was valid. The same view was taken in Basant Bihari v. Secretary of State, ILR 35 All 368 which was a case of a Judge who wrote the judgment after he had ceased to hold office, and in Lilawati Kuar v. Chhotey Singh, ILR 42 All 362: (AIR 1920 All 332) in which the Judge had written the judgment on reversion to another post. In Baramdeo Pande v. Debidatt Singh, ILR 53 All 133: (AIR 1931 All 90) the same view was held in respect of the judgment written by a Judge after he had resigned. In Ghulam Rasul v. Mt. Gul Jan, AIR 1943 Pesh 11 and also in Hargulal v. Abdul Gany Hajee Ishaq, ILR 14 Rang 136: (AIR 1936 Rang 147), it was held that the judgment written by a Judge after he had ceased to have jurisdiction over the Court could validly be pronounced by his successor. See also Mt. Kishni Bai v. Budhu Ram, AIR 1919 Lab. 265, Pratap Kishore v. Gyanendranain, AIR 1951 Orissa 313 and Lakhiama Jiu v. Lokenath Das, AIR 1920 Pat 578.

12. It would thus be observed that the concensus of judicial opinion has been that Order 20, Rule 2 of the Code of Civil Procedure empowers the successor to pronounce a judgment which was written by his predecessor after he bad ceased to have jurisdiction over the Court. To hold that the judge must have jurisdiction, before the judgment is written by him would be to read in Order 20, Rule 2 of the Code of Civil Procedure a limitation which in terms does not exist in it. With respect, therefore, we disagree with the view expressed by Stevens, Officiating Judicial Commissioner, in 7 CPLR 18 (Supra) and hold that the judgment under appeal was validly pronounced.

13. It will be observed that defendants Nos. 1 and 2 had not derived any title from Jamunadas as he had not executed in their favour any registered deed of a lease. It was probably because they did not also pay the rent of the building that the lessors had made an application against Jamunadas and defendant No. 2 to the Rent Controller for permission to terminate their tenancy. It is no doubt true that that case was compromised and an agreement was reached between the parties whereby defendant No. 2 agreed to pay enhanced rent to the lessors. But, soon after that, the building caught fire and was delivered by him to the lessors for reconstruction. There is nothing on record to show that during that time he paid any rent for the building. It was in these circumstances that Chhotelal, one of the lessors gave a lease of the building to the plaintiff and entered into a partnership with her to run the cinema shows.

14. The contention of defendants Nos. 1 and 2 that Chhotelal had no authority to enter into an agreement of lease with the plaintiff without reference to his brothers does not appear to have any foundation. It was Chhotelal alone who had entered into an agreement with defendant No. 2 in respect of the compromise of the case before the Rent Controller: See Exh. D-11. He was also the person who had custody of the documents, which were handed over to his son Chokhelal (D. W. 3) by his widow for production in Court. In these circumstances, we do not see any reason to doubt the testimony of Jamunaprasad Dube (P.W. 2), husband of the plaintiff, that the management of the Gulab Theatre was in the hands of Chhotelal In any case, his brothers did not demur to the lease created by him in favour of the plaintiff and, therefore, must be deemed to have acquiesced in it. In these circumstances, we confirm the finding of the lower Court that Chhotelal had authority to grant the lease of the building to the plaintiff.

15. This brings us to the question as to whether the bond in suit was executed by all the defendants. The evidence of Jamunaprasad Dube (P. W. 2), husband of the plaintiff, is that all the defendants had tome to his house with the bond duly executed and had admitted their signatures on the document before the attesting witnesses. His evidence is confirmed by Balkrishna Tiwari (P.W. 11), who was one of the attesting witnesses. Since the defendants had admitted their signatures on the document, the bond must be held to be proved as duly executed by them.

In fact, it appears from the evidence of defendant No. 1 Dammulal (D.W. 2) that he had himself given a cheque for Rs. 4,000/- to Chhotelal on the Imperial Bank, Raipur, for payment of the amount to the plaintiff, which formed a part of the consideration for surrendering her leasehold rights. This implies that he had knowledge of the bond which was executed to effect the compromise entered into with her. We accordingly uphold the finding of the lower Court that the bond was executed by all the defendants.

16. The contention of defendants Nos. 1 and 2 was that the plaintiff's husband, Jamunaprasad Dube (P W. 2), was interfering with the cinema shows run by them and accordingly they were forced to enter into an agreement with his wife. The only witness on this point is defendant No. 2 Shikharchand (D.W. 4). All that he said however. was that Jamunaprasad Dube (P.W. 2) had told him that if he paid consideration for his wife's legal rights, he would not create any obstruction. This does not amount to any undue pressure. In fact, if any unlawful obstruction was created by him, defendants Nos. 1 and 2 would have taken legal action against him. Jamunaprasad Dube (P.W. 2) has denied creating any obstruction is alleged. The bond was not, therefore, the result of any undue pressure on his part.

17. Although not so expressly pleaded, the defence of defendants Nos. 1 and 2 also appears to be that the plaintiff colluded with Chhotelal to defeat their rights. There is, however, evident that she was aware of any agreement between them and Jamunadas or that there was any collusion between her and Chhotelal. As already indicated above, Chhotelal granted a lease to the plaintiff because of the defaults committed by defendants Nos. 1 and 2 themselves in the payment of rent. The contention that the lease in her favour was collusive cannot, therefore, be sustained.

18. It was also contended that Jamunaprasad Dube (P.W. 2) was a counsel of Chhotelal in a criminal case, and, therefore, he must be made to give up the advantage which he had obtained for his wife from him. Reliance was placed upon Nagendra Bala Dasi v. Dinanath, AIR 1924 PC 34, There is however, nothing on record to indicate that the plaintiff had taken any unfair advantage from Chhotelal, and, in any case, the transaction could only be impeached by Chhotelal or his brothers, if it was induced by undue influence. This contention has, therefore, no force.

19. The circumstances of the case indicate clearly that there was a bona fide dispute as regards that rights between the plaintiff on the one hand and defendants Nos. 1 and 2 on the other which was compromised. As already observed, the plaintiff's claim to the property was bona fide since she had been granted a lease of the building by the manager of the family of the lessors while, for want of a registered document, defendants Nos. 1 and 2 had no real title to the property. Even if defendants 1 and 2 were accepted as tenants by the lessors orally, it does not follow that the plaintiff had no bona fide claim. In these circumstances, the compromise that was effected is binding upon the defendants: See Balarama v. Vasudeva, AIR 1948 PC 7.

20. The result is that the appeal fails. We see no reason to interfere with the award of compensatory costs. The appeal is accordingly dismissed with costs.


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