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Devdutta Dheer Vs. Janki Vallabh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. Petn. No. 263 of 1981
Judge
Reported inAIR1986Raj170; 1985(2)WLN320
Acts Code of Civil Procedure (CPC) , 1908 - Sections 47 - Order 23, Rule 3
AppellantDevdutta Dheer
RespondentJanki Vallabh and ors.
Appellant Advocate J.S. Rastogi, Adv.
Respondent Advocate R.K. Pareek, Adv.
DispositionRevision dismissed
Cases ReferredIn Bai Chanchal v. Syed Jalaluddin
Excerpt:
.....it was held as under :it appears to us that it would be travelling beyond the words used by the parties in the compromise deed, to import into it anything like a provision directing execution to be taken in the event of the defendant not vacating the house after the expiry of the period of one yean the compromise does not say that the decree holder shall be entitled to enforce the defendant. the decree clearly created a fresh lease for a period of four years continuing the terms and conditions of the original lease. it is at best a declaration of the right of the lessors to eject the lessees at the end of the lease period if the lessees fail to get a renewal' the above case is clearly distinguishable from the present case. so, in that case, it was held by their lordships of the..........so, the decree was not executable. it was argued by him that the decree holder should have filed a fresh suit for ejectment. it was also objected that the petitioner had paid rs. 30/-per month as rent even for the year 1970 and the decree holder had accepted that rent. thus, according to the petitioner, a fresh relationship of landlord and tenant had been created, and so, the decree holder was estopped to execute the decree.3. the learned munsif, after hearing both the sides, rejected the objections raised by the judgment-debtor petitioner. then, an appeal was preferred by the petitioner, which was dismissed by the learned additional civil judge, vide his judgment dated 15th jan., 81. against that judgment, the present revision petition has been preferred.4. mr. j. s. rastogi on behalf.....
Judgment:
ORDER

Gopal Krishna Sharma, J.

1. This revision petition is preferred against the judgment of Additional Civil Judge, Jaipur District, Jaipur, dated 10th Jan., 81, by which, he confirmed the judgment passed by the Munsif, Jaipur District Jaipur, dated 24th May, 80.

2. Birdhichand and Jankivallabh filed a suit for rent and ejectment against Parmanand, and others, claiming rent on the basis of Rs. 20/- before the Munsif. During the pendency of the said suit, the parties entered into a compromise on 17th Jan., 68, and it was agreed that the defendants would pay Rs. 30/-per month as rent, w.e.f. 1st Mar., 67, and it was further agreed by the defendant that they would vacate the premises in dispute by the end of 1970. On the basis of this compromise, the learned Munsif, on 9th Feb., 68, decreed the suit Thereafter, decree-holder Birdhichand and judgment debtor Parmanand expired. An execution petition was filed by Jankivallabh and the legal representatives of Birdhichand, against the petitioner Devdutta Dheer, who is legal representative of deceased Parmanand. An objection petition was filed by the petitioner, and it was objected that there was a fresh contract of tenancy executed between the parties, and it was agreed that the defendants would pay Rs. 30/- per month as rent and that the defendants agreed to vacate the suit premises at the end of 1970, and so, the decree was not executable. It was argued by him that the decree holder should have filed a fresh suit for ejectment. It was also objected that the petitioner had paid Rs. 30/-per month as rent even for the year 1970 and the decree holder had accepted that rent. Thus, according to the petitioner, a fresh relationship of landlord and tenant had been created, and so, the decree holder was estopped to execute the decree.

3. The learned Munsif, after hearing both the sides, rejected the objections raised by the judgment-debtor petitioner. Then, an appeal was preferred by the petitioner, which was dismissed by the learned Additional Civil Judge, vide his judgment dated 15th Jan., 81. Against that judgment, the present revision petition has been preferred.

4. Mr. J. S. Rastogi on behalf of the petitioner argued that the learned lower Court had no jurisdiction to order execution of the decree when there was no decree for eviction. According to him, there was no direction for delivery of possession by execution through Court, and the decree was a declaratory decree. So, the same was not executable. It was also argued by him that both the parties had entered into a fresh contract of lease. Previously, the rent was at the rate of Rs. 20/-per month, and later on, by this agreement, the defendant agreed to pay Rs. 30/- per month as rent. So, the defendant had agreed to pay an increased rent, and he simply gave an undertaking that he would vacate the suit premises at the end of 1970. So, according to Mr. Rastogi, a fresh contract was entered into between the parties, and on the basis of this fresh contract, a regular suit for ejectment, should have been filed.

5. Mr. Rastogi has also argued that after the passing of the decree, the defendant continued to pay rent to the decree holder, which was accepted by him. So, the tenancy continued. Even after 1970, Mr. Rastogi argued, the petitioner continued to pay rent to the decree holder, and hence, on the basis of this decree, the petitioner cannot be ejected Regarding the receipts of rent paid after 1970, it was argued that the learned lower Court has misread and misconstrued the receipts. The said receipts were clearly receipts for rent, and there is no evidence on the record to show that the same were received as amount for use and occupation.

6. In suport of his argument, Mr. Rastogi has relied on a number of case laws of various High Courts.

7. In Kanmal v. Hukamchand, AIR 1966 Raj 178, which is a Division Bench judgment, a decree was passed on the basis of a compromise under Order 23, Rule 3, C.P.G It was observed therein as under : --

In other words, matters extraneous to the suit are not to be incorporated in the operative part of a decree. It should be confined to the actual subject-matter of the then existing litigation. Anything, which is outside the ambit of the existing litigation will not form part of the decree as such. As regards execution of a compromise decree, to the extent the terms of any compromise fall outside the limits of the suit they are not to be incorporated in the decree and even if they are so incorporated on account of the compromise as a whole having been made a part of the decree, the decree will remain executable only to the extent it is within the limits of the suit and no more. It will depend upon the facts and circumstances of each case as to whether a particular clause in the compromise is within the scope of the particular suit or was outside the limits thereof and for it the proceedings will have to be looked as a whole.'

The above case is distinguishable from the present case. In that case, the defendant was to remain in possession for an indefinite period,' though he was to pay rent regularly for each month. So, it was held herein that it would lead to odd result if eviction could be ordered in execution even in such a case after an indefinite period. It was further held in that case --

'On consideration of the terms of a compromise decree in an eviction suit by the landlord that the clause permitting the tenant to pay a certain amount of rent from a certain date created a fresh tenancy which being outside the suit for eviction could not be enforced in execution of the decree.'

8. In the present case, the defendant agreed to vacate the premises by the end of 1970. It means that a specific date was given for eviction of the defendant So, the case cited above does not help the petitioner in this case.

9. In Khalli Rath v. Eppili Ramachandra, AIR 1953 Orissa 74, a compromise decree was passed in a suit for rent and ejectment, and in the compromise, the defendant had agreed to vacate the premises without notice at the end of the years. An execution petition was filed. Then, an objection was raised that the decree was unexecutable on a plain reading of the terms of the compromise. The lower courts had held that the compromise decree was executable as the suit itself was for possession. In that case, it was held as under : --

It appears to us that it would be travelling beyond the words used by the parties in the compromise deed, to import into it anything like a provision directing execution to be taken in the event of the defendant not vacating the house after the expiry of the period of one yean The compromise does not say that the decree holder shall be entitled to enforce the defendant. Nor does it say that the defendant should deliver back possession at the end of the stipulated period. All that the stipulation amounts to is that the defendant agreed to vacate after a certain date, what would happen in the event of a violation of this provision, was not stipulated or agreed to between the parties. In such circumstances, it is difficult to hold that the parties intended that the plaintiff should recover possession by way of execution as the suit itself was one for possession. We are, therefore, unable to accept the view taken by the courts below that the decree was executable as the suit itself was for possession and would set aside the order under appeal'

In the above case of Khalli Rath (supra), the Judges of the Orissa High Court while interpreting the compromise were of the opinion that looking to the circumstances it was difficult to hold that the plaintiff should recover possession by way of execution as the suit itself was one for possession. But, in the present case, the intention is very clear from the compromise filed by the parties. The suit for rent and ejectment was pending and the rent was Rs. 20/- per month, but, by the compromise, the defendant agreed to pay a rent of Rs. 30/- per month from 1st Mar. 67 and he also agreed to vacate the disputed property at the end of 1970. The intention was very clear here. Rent up to 28th Feb. 67, was paid at the rate of Rs. 20/- per month. Thereafter, no payment of rent was made. So, on 9th Feb. 68, when the compromise was filed, the defendant agreed and sought time to vacate the suit premises by the end of 1970 and from 1st Mar. 67 he agreed to pay rent at the rate of Rs. 30/- per month. The contention of the learned counsel for the petitioner is that the defendant agreed to pay rent at enhanced rate of Rs. 30/- per month, but this was not the position, because, rent was paid only up to 28th Feb. 67 and the defendant took time to vacate the suit premises by the end of 1970. Rs. 30/- per month were fixed for use and occupation of the property and not rent. Thus the intention of the parties in this case from the compromise deed was very clear. The defendant wanted time to vacate the property and for which prayed for up to the end of 1970 and the plaintiff agreed to it. So, the intention was very clear that the defendant would vacate the property and directly, he agreed to ejectment. Instead of enforcing the decree for ejectment immediately, the defendant prayed for some time, and this would mean that the plaintiff gave him time to vacate the premises by the end of 1970. In the decree also, the words are similar that the tenant would vacate the suit premises by the end of 1970. So, the intention was that the decree for ejectment was passed and time was granted to the defendant to vacate the suit premises by the end of 1970, It is incorrect to say that a fresh contract for rent was arrived at by the compromise. Also it is incorrect to say that the defendant continued to be as tenant, because, the plaintiff had accepted Rs. 30/-per month even after 1970.

10. In Dhan Mia v. Jamila Khatun, AIR 1952 Assam 21, it was observed as under : --

That the suit was compromised in so far as it related to the arrears of rent and the manner in which they were to be paid. It was not the intention of the parties that the J.D. would be liable to eviction in execution of the compromise decree. The fresh agreement of tenancy evidenced by the terms of the compromise was extraneous to the decree and the D.H. must be relegated to a suit.'

11. In B.K. Thaper v. Sudhir Kumar, AIR 1966 J & K 13, it was held as under : --

that the terms of the above decree were plain and unambiguous and, therefore, in order to finding out the real intention of the parties, it was not necessary to look into the conduct of the parties. The decree clearly created a fresh lease for a period of four years continuing the terms and conditions of the original lease. Moreover, read as a whole, the decree was purely declaratory in nature and contained no directions that if the tenants did not give up possession on the stipulated date of 1-1-1963, possession should be got through court by executing the decree. There was another important aspect of the matter which also showed that the decree was never intended to be executable. The clause in the previous lease by which the lessee was given the option to renew the lease with the consent of the landlords had also been incorporated in the lease created by the decree by virtue of Clause (1). It was obvious, therefore, that even on 1-1-1963, it was open to the lessee to have claimed renewal of the lease with the consent of the landlord. If the landlords had given their assent to the renewal of the lease, then no question of giving up possession would have arisen. It was clear from the terms of the decree that the parties at the time when they entered into compromise actually contemplated such a contingency. This circumstance was, therefore, wholly inconsistent with the decree being one of an executable nature. The nature of the decree would not be altered merely because the parties treated a declaratory decree as a decree for possession. The judgment debtors were not liable to ejectment without giving notice as required by Section 111 of T. P. Act and the execution of the decree was barred by the provisions of the T. P. Act. The decree created a fresh lease and the judgment debtors could not be ejected without bringing a suit for ejectment under the provisions of T. P. Act.'

Against the decision of the J & K High Court in B. K. Thapar's case, the parties went to Supreme Court. Their Lordships of the Supreme Court in Sudhir Kumar v. Baldev Krishna Thapar, (1969) 3 SCC 611, observed as follows: --

On analysis of the terms of the compromise it is seen that the lessors had granted a fresh lease of the cinema talkies demised; a monthly rent was fixed in respect of the same and the lessees were given an option to renew the lease at the end of the terms fixed though that right is subject to certain conditions. Under these circumstances, the direction in the decree to vacate the suit premises at the end of the term fixed in the compromise would amount to an ineffective direction. Such a direction cannot be considered as an ejectment decree. It is at best a declaration of the right of the lessors to eject the lessees at the end of the lease period if the lessees fail to get a renewal'

The above case is clearly distinguishable from the present case. According to the terms of the compromise in that case, a fresh lease was granted, monthly rent was fixed, and the lessees were given an option to renew the lease at the end of the term fixed, though that right was subject to certain conditions. So, the direction in the decree to vacate the suit premises at the end of the term fixed in the compromise would have amounted to an ineffective direction. So, in that case, it was held by their Lordships of the Supreme Court that that was a declaration of the right of the lessors to eject the lessees at the end of the lease period if the lessees failed to get a renewal. In the present case, the circumstances are quite different The intention of the parties were very clear which shows that the defendant agreed for a decree of ejectment.

12. In Babulal Gulabchand v. Nathulal Badrilal, AIR 1976 Madh Pra 222, a suit for rent and ejectment was filed, and in that suit, a compromise was produced, in terms of the compromise, a decree was passed in favour of the plaintiff. When the execution proceedings started, an objection was raised in the executing Court that the decree was not executable as it was only a declaratory decree. By the compromise, a fresh tenancy was created, and the remedy was to file a fresh suit. The facts of that case and the terms of the compromise were different than that of the present case. In that case, it was agreed that the defendant would pay instalments of arrears of rent and he would also pay the rent, and in case of default of payment of rent, the plaintiff would be entitled to get the possession, and also would be entitled to get the rent. In that case, it was held in terms of the compromise that the compromise created a fresh tenancy and the appellant could not be ousted from the possession in the face of the terms of the decree. The remedy available to the decree holder was filing a fresh suit So, the above case is also distinguishable from the present case, where the terms of the compromise were very clear and the intention of the parties were also clear as mentioned above.

13. In Bhavan Vaja v. Solanki Hanuji Khaoji Mansang, AIR 1972 SC 1371, it has been observed as under : --

It is true that an executing court cannot go behind the decree under execution. But that does not mean that it has no duty to find out the true effect of decree. For construing a decree it can and in appropriate cases it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree, the Court often has to ascertain the circumstance under which these words came to be used. That is the plain duty of the executing Court and if that court fails to discharge that duty, it would be deemed to have failed to exercise the jurisdiction vested in it.'

14. In view of the observations made above by the Supreme Court, the pleadings of the parties as well as the compromise filed by the parties, are to be looked into. The court can certainly ascertain the circumstances under which the compromise was filed. The suit was pending for ejectment, and during the pendency of the suit, the compromise was filed and on the basis of the compromise, the decree was passed. So, the intention of the parties was very clear. The defendant agreed to get a decree passed against him, and he simply wanted time to vacate the suit premises by the end of 1970. So, the executing court could certainly interprete the compromise which was on the record and could also look into the intention of the parties. In the present case, as already mentioned above, there are no specific words in the decree about ejectment, or that after 1970, the decree holder would file execution petition for taking possession. But, the intention of the parties was very clear and the intention was that the defendant agreed to a decree passed against him for ejectment, and he wanted time to vacate the premises by the end of 1970.

15. Thus, the case laws cited above, by the learned counsel for the petitioner are of no help to him. As I have already mentioned above, the intention was very clear. The defendant agreed to get passed a decree for ejectment against him, and the court granted him time to vacate the suit premises, till the end of 1970. After this period, the decree holder would certainly be entitled to execute the decree. It is incorrect to say that this decree was a fresh contract or a declaratory decree. No fresh lease was arrived at between the parties. So, the decree was executable.

16. The learned counsel then argued that even accepting of the rent after 1970, would not mean that there was a fresh tenancy. After 1970 the defendant made payments, but, it was for the use and occupation of the said property. This act of withholding the property after the expiry of 1970 would not create a tenancy of any kind.

17. In Bhawanji Lakhamshi v. Himatlal Jamnadas Dani, AIR 1972 SC819, it has been observed : --

Mere acceptance of amounts equivalent to rent by a landlord from a tenant in possession after a lease had been determined, either by efflux of time or by notice to quit, and who enjoys statutory immunity from eviction except on well defined grounds as in the Act (Bombay Rents, Hotel, and Lodging House Rates (Control) Act, 1947) cannot be regarded as evidence of a new agreement of tenancy. If the tenant asserts that the landlord accepted the rent not as statutory tenant but only as legal rent indicating his assent to the tenant's continuing in possession, it is for the tenant to establish it. Where he fails to so establish it cannot be said that there was holding over by him'.

18. In Bai Chanchal v. Syed Jalaluddin, AIR 1971 SC 1081 their Lordships of the Supreme Court have held as under : --

'We are unable to find any such terms. On the face of it, all that the consent decree envisaged was that, though the judgment debtors were liable to immediate eviction, the decree holders agreed to let them continue in possession for a period of five years. Since this concession was being granted as a special case, the decree holders insisted that mesne profits should be paid at a much higher rate so much so that between all the defendants, governed by the two decrees of 8th July, 1946 and 28th Jan., 1949, the amount payable as mesne profits became Rs. 7,314.80 per annum which had no relation with the original rent of Rs. 199/- per annum for the entire land fixed by the lease of 1895. In fact, the decree holders sought further protection by requiring the judgment debtors to pay the mesne profits in monthly instalments, and the instalments were so fixed that mesne profits due for five years were to be paid within period of three years. There was the further clause that, in case of default of payment of the mesne profits, the defaulting judgment debtors could be immediately called upon to deliver possession, these terms can, in no way, be interpreted as creating a new tenancy constituting the decree holders as landlords and the judgment debtors as their tenants. The terms of the consent decree neither constituted a tenancy nor a licence. All that the decree holders did was to allow the judgment debtors to continue in possession for five years on payment of mesne profits as a concession for entering into a compromise. The argument must, therefore, be rejected.'

19. After considering the entire arguments advanced by both the learned counsel, and the laws cited above by both the sides, I am of the opinion that the arguments of the learned counsel for the petitioner have no substance. The decree was passed in terms of the compromise, and the comrpomise is also to be seen while executing the decree. The intention of the parties is also to be looked into. After interpreting the compromise, I am of the opinion that the intention of the parties was that the decree for ejectment be passed. The defendant prayed for time to vacate the suit premises up to the end of 1970, to which the plaintiff agreed. So, it cannot be said that the decree for ejectment had not been passed. The decree is a clear decree for ejectment, and time was granted up to the end of 1970. So, the decree is not a declaratory decree, and is executable. There is thus no ground to interfere in the judgment of the lower court

20. In the result, the revision petition having no force is dismissed.


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