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Bethanna Nadar Vs. M. Srinivasan and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1962)1MLJ418
AppellantBethanna Nadar
RespondentM. Srinivasan and ors.
Cases ReferredIn Mooriantakath Ammoo v. Matathankandy Vatakkayil Pokkan
Excerpt:
- .....to the suit (tenants and the landlord) that a decree might be passed for rs. 82-8-0 on account of rent in suit and for ejectment in respect of the shop in suit in favour of the plaintiff against the defendants. the defendants should vacate the shop by 4th march, 1953 and hand over possession to the plaintiff and the plaintiff would hand over its possession again to the defendants within six months from 4th march, 1953, after constructing it afresh. though, according to the decree, possession was to be given to the plaintiffs on 4th march, 1953, it was actually delivered by the defendants between 7th and 15th march, 1953. on completion of the building, the landlord did not deliver possession to the tenants, and the tenants filed three applications for being put into possession. their.....
Judgment:

Kailasam, J.

1. The petitioner is the plaintiff in O.S. No. 199 of 1958 on the file of the District Munsif's Court, Tiruvaiyaru. He filed a suit against the respondent-defendant for recovery of possession of the suit property after removing the superstructure and for past and future mesne profits. The trial Court granted a decree, and, as against that decree, the defendant (respondent herein) filed an appeal to the District Judge, West Thanjavur. While the appeal was pending, the parties entered into a compromise and the compromise deed was filed into Court. The Court passed a decree as follows:

1. That the suit (O.S. No. 199 of 1958, District Munsif's Court, Tiruvaiyaru) do stand dismissed on condition that appellants (defendants 3, 4 and 5) and 2nd respondent (defendant 3) deposit into Court the arrears of rent till this date at 14 annas per month from the date of institution of plaint, i.e., 18th October, 1957, within two weeks from this date.

2. That appellants and 2nd respondent do attorn to the first respondent (plaintiff) as tenants of the suit site and pay a rent of 14 annas per mensem payable on or before the 30th of each month, the first instalment being payable on 30th July, 1959.

According to Clause 1, the defendant had to pay arrears of rent from the date of the suit to the date of the decree within two weeks of the date of the decree. Accordingly, the arrears of rent ought to have been paid by 10th July, 1959. The defendant did not pay the rent on 10th July, 1959, but paid it only on 30th July, 1959. He filed a petition, I.A. No. 282 of 1959, before the District Judge for excusing the delay in filing the lodgment schedule and for paying the money as per Clause 1 of the decree. The plaintiff-petitioner opposed the petition. The lower Court found that there is no expression in the decree to show that time was of essence, and as there was no default clause to entail a dismissal of the appeal, the Court was entitled to grant time. The learned District Judge excused the delay and allowed the petition. Against the said order, the petition has been filed by the plaintiff.

2. Sri T.S. Kuppuswami Ayyar, learned Counsel for the petitioner, contends that the decree is in terms of the compromise arrived at by the parties and the Court is not entitled to amend any clause of the decree which was passed in pursuance of the compromise. He relies on a decision of the Supreme Court reported in Ram Nath v. Ram Nath Chhittar Mal : [1961]1SCR600 and the decision in Mooriantakath Ammoo v. Mathankandy Vatakkayil Pokkan : AIR1940Mad817 . In the case before the Supreme Court, a compromise was entered into between the parties to the suit (tenants and the landlord) that a decree might be passed for Rs. 82-8-0 on account of rent in suit and for ejectment in respect of the shop in suit in favour of the plaintiff against the defendants. The defendants should vacate the shop by 4th March, 1953 and hand over possession to the plaintiff and the plaintiff would hand over its possession again to the defendants within six months from 4th March, 1953, after constructing it afresh. Though, according to the decree, possession was to be given to the plaintiffs on 4th March, 1953, it was actually delivered by the defendants between 7th and 15th March, 1953. On completion of the building, the landlord did not deliver possession to the tenants, and the tenants filed three applications for being put into possession. Their Lordships held that the decrees were passed substantially in accordance with the provisions of Section 15 of the Act, and, as was contended by the plaintiffs they were decrees under which the premises had to be vacated by the defendants on a specified day. Under that section, they had the right to elect and did elect to get possession after rebuilding; this possession was to be given by the landlords to the tenants within a reasonable time, and six months' period was fixed by consent between the parties. Their Lordships further held that, as the defendants did not deliver possession to the plaintiffs on or before the date specified in the decree, the provisions of Section 15 contained in Sub-section (3) of the Act were not available to them and they were not entitled to be put into possession as prayed by them. It may be noted that that decree was passed on a compromise memo, filed by the parties. The Supreme Court declined to interfere when the tenant did not put the landlord in possession on the specified date. In Mooriantakath Ammoo v. Matathankandy Vatakkayil Pokkan : AIR1940Mad817 the decree was passed on an agreement between the parties. His Lordship observes that an essential term of the agreement embodied in the decree cannot be changed by an act of the Court on the application of one only of the parties, but the consent of both parties to the original agreement would be necessary for its modification. The Court, in such a case, is doing nothing more than give judicial force to a contract and there is no basis for the decree other than the contract. This principle is applicable to a provision in the compromise decree which fixed a definite period for the performance of an obligation as an essential part of the contract, such as the deposit of a sum of money by one party as a condition of his recovering possession of the property. Mr. T.K. Subrahmanya Pillai for the respondents contends that the condition as to payment of the rent within two weeks of the date of the decree is not an essential condition of the decree, and that even though the decree might have been based on a compromise memo, the Court is entitled to modify the terms by extending the time. I am unable to agree with the contention of Mr. T.K. Subrahmanya Pillai. The suit is for declaration of title and for possession after removing the superstructure. In the appeal, the matter was compromised and the term is that the defendant should deposit into Court arrears of rent from the date of plaint till the date of the decree within two weeks from the date of the decree. I am unable to hold that this is not an essential condition of the decree.

3. In the circumstances, the lower Court had no jurisdiction to grant any extension of time. The order of the lower Court is set aside and this petition is allowed.

4. There will be no order as to costs....


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