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T.V. Balakrishnan Vs. T.S. Venkatachalam - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai High Court
Decided On
Case NumberC.M.P. No. 7812 and C.R.P. No. 1707 of 1979
Judge
Reported inAIR1980Mad99; (1980)1MLJ175
ActsContract Act, 1872 - Sections 28; Tamil Nadu Buildings Act, 1960
AppellantT.V. Balakrishnan
RespondentT.S. Venkatachalam
Appellant AdvocateT.R. Ramachandran, Adv. for ;R. Krishramurthi, ;A.R. Lakshmanan and ;R. Muthukumaraswami, Advs.
Respondent AdvocateK. Unni Krishnan, Adv.
Cases ReferredAnantdas v. Ashburner and Co.
Excerpt:
.....he would not be taking any further proceedings in any court against the order of eviction. in view of this categorical stipulation to which the revision petitioner bound himself, i am clearly of the opinion that the petitioner in the civil revision petition cannot be permitted to prosecute the revision petition, contrary to the said agreement, which as pointed out by the allahabad high court in anantdas v......any further time and in view of this endorsement, the tenant cannot file and prosecute the present civil revision petition'. 2. the fact that such an endorsement was made by the petitioner in the civil revision petition is not denied before me. consequently the only question that arises for consideration is, what is the legal consequence of this endorsement made by the revision petitioner. according to the learned counsel for the respondent in the revision petition, in view of the above endorsement made by him, the revision petitioner had disabled himself from filing the civil revision petition and this court has to dismiss the civil revision petition. in support of this contention, the learned counsel drew my attention to two decisions, namely, one of the allahabad high court in anant.....
Judgment:
ORDER

1. C. M. P. No. 7812 of 1979 has been filed to dismiss the civil revision petition C. R. P. No. 1707 of 1979. The said revision petition itself is filed against the order of the authorities functioning under the Tamil Nadu Act 18 of 1960 dismissing the petition filed by the petitioner in the revision petition to set aside the ex parte order for eviction passed on 2-11-1971. The respondent in the revision petition, who has filed the present civil miscellaneous petition to dismiss the revision petition contends as follows,namely

'that when the bailiff went to evict the petitioner in the revision petition and take possession of the property pursuant to the order of eviction on 23-7-1979, the petitioner in the revision petition, namely, the tenant made the following endorsenment:- Today I have gone through the contents of the order. I undertake to vacate the portion in the premises 54 Mowbrays Road, Madras 18 on 18-9-1979, without raising objection in this court and without taking any further proceedings in any court against the order of eviction. I accept the finality of the order of eviction. Two fans in the premises belong to the landlord which I shall leave intact. I have no objection to vacate by the 18th August, 1979, and I do not want any further time and in view of this endorsement, the tenant cannot file and prosecute the present civil revision petition'.

2. The fact that such an endorsement was made by the petitioner in the civil revision petition is not denied before me. Consequently the only question that arises for consideration is, what is the legal consequence of this endorsement made by the revision petitioner. According to the learned counsel for the respondent in the revision petition, in view of the above endorsement made by him, the revision petitioner had disabled himself from filing the civil revision petition and this court has to dismiss the civil revision petition. In support of this contention, the learned counsel drew my attention to two decisions, namely, one of the Allahabad High Court in Anant Das v. Ashburner and Co., (1875) ILR 1 All 267 (FB) and the other of the Calcutta High Court in Protab Chunder Dass v. Arathoon 1882 ILR 8 Cal 455, and also to a Bench decision of this High Court in Dr. Thirumal Rao v. Ranganatha Mudaliar, 1949 Mad LJ 280wherein a reference to. the decisions of the Allahabad High Court and the Calcutta High Court cited above has been made. The decision of the All High Court is directly in point. In that case, there was an agreement whereby the judgment debtor bound himself not to file an appeal, if the decree holder would give the judgment, debtor time to satisfy the decree and it was held that that agreement was not hit by Section 28 of the Contract Act. The court observed:

'He forwent his right to question in appeal the decision which had been passed by an ordinary tribunal. Such an agreement is, in our judgment, prohibited neither by the language nor the spirit of the Contract Act and an appellate court is bound by the rules of justice, equity and good conscience to give effect to it and to refuse to allow the party bound by it to proceed with an appeal'.

3. The Bench of this court in the decision referred to already distinguished the above decision on the facts of the case before the Bench of this court. In the case dealt with by the Bench of this court a letter was given by the tenant against whom an order for eviction was passed to the following effect

'As you have brought a warrant of possession against me in the above E. P. for the ground floor No. 95 Thayagaraja Road, Thyagarayanagar, I request you time for today and I assure you that I will give complete possession of the said place by tonight'.

With reference to this language the Bench observed.

'Prima facie there is nothing in the letter expressly waiving the right of appeal, a right which the petitioner was entitled to under Section 12 of the Act. We are unable to hold that there is any Implied undertaking not to file an appeal which can be gathered from the language of the letter. The petitioner was faced with a warrant of possession and the prospect of being turned out of the house unceremoniously by the bailiff. He therefore requested time till the night to surrender possession. Merely because he prayed for and obtained time to comply with the order of eviction passed by the Rent Controller it cannot be said that he had elected to treat the order of the Rent Controller as final and/or, that he had abandoned his right of appeal'.

While referring to the decisions of the Allahabad High Court and the Calcutta High Court mentioned already, namely, Anant Das v. Ashburner & Co. (1875-77)

ILR I All 267 (FB) and Protab Chunder Dass v. Arathoon (1882) ILR 8 Cal 455, the Bench observed

'The learned Advocate for the respondent referred us to cases in Anantdas v. Ashburner and Co. 1875 ILR I All 267 (FB) and Protab Chunder Dass v. Arathoon (1882) ILR 8 Cal. 455 in which in consideration of a concession or indulgence from the decree holder the judgment-detor agreed not to file an appeal, They can have no bearing whatever on the facts of this case'.

4. The facts of the present case am nearer to the facts of the cases dealt with in the decisions of the Allahabad High Court and the Calcutta High Court referred to already than the facts in the case dealt with by the Bench of this court, in the decision mentioned above, The endorsement which I have extracted will clearly show that the petitioner in the revision petition had asked for and obtained a reasonable time for vacating the premises and also had stated that he accepted the finality of the order of eviction and that he would not be taking any further proceedings in any court against the order of eviction. In view of this categorical stipulation to which the revision petitioner bound himself, I am clearly of the opinion that the petitioner in the civil revision petition cannot be permitted to prosecute the revision petition, contrary to the said agreement, which as pointed out by the Allahabad High Court in Anantdas v. Ashburner and Co. 1875 ILR I All 267 (FB) is not opposed to any principle of law.

Under these circumstances C. M. P. No. 7812 of 1979, is ordered as prayed for and the civil revision petition namely C R. P. No. 1707 of 1979, will stand dismissed. There will be no order as to costs, in the revision petition.

5. Revision petition dismissed.


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