A.N. Sen, J.
1. This appeal arises out of the judgment and order passed by Ramendra Mohan Dutta. J. on the 20th of March 1975. The facts material for the purpose of this appeal may be briefly indicated.
2. A suit was filed by the appellants as plaintiffs who happened to be the Trustees of a Trust known as Rai Bahadur Bissessurlal Motilal Halwasiya Trust for recovery of possession of premises No. 150B, Lower Chitpur Road, Calcutta. The defendants to the said suit were (1) Ramricklal Girdhardas, (2) Narsinghdas Haldia and (3) Naaz Cinema. The defendants were carrying on business in the said premises under the name and style of Naaz Cinema. The defendants also filed a suit against the Trustees and in the said suit the defendants had asked for a declaration that the defendants continued to be the tenants under the plaintiffs in respect of the said premises. Both the said suits were settled and terms of settlement were filed. It is necessary to set out the terms of settlement which were filed in the suit. The said settlement between the parties to the suit reads as follows:--
'It is declared that the defendant No. 2 was never the tenant on the premises in suit and a decree is made accordingly.
The plaintiffs and the defendants Nos. 1 and 3 have settled the disputes in the suit on the following terms and conditions:
Terms of Settlement
That from 1st July, 1968 the tenancy in respect of the suit premises will be in favour of Mrs. Laxmi V. Mansata, Hirendra V. Mansata. Suryakanta V. Mansata, Jitendra V. Mansata of No. 87-K, Park Street, Calcutta-16. But for the purpose of serving notice of any sort in respect of tenancy the same shall be deemed to have been served on all it served on any one of them.
2. That the tenancy shall be according to English Calendar month starting from the 1st day of the month and ending with the last day of the same month.
3. That on and from 1st July, 1968 the rent of the suit premises will be Rs. 2,000 (Rupees two thousand) only per month which shall be payable to the plaintiffs landlords of their succeeding month for which the rent shall be due.
4. That the rent of Rs. 2,000 per month, as aforesaid, is inclusive of occupiers' share of the Corporation taxes.
5. That the tenant shall pay from 1st July, 1968 a sum of Rs. 600 (Rupees six hundred) per month by way of hire charged for furnitures along with the rent as aforesaid and will continue to pay the same so long they do not surrender the tenancy or give vacant possession of the premises to the landlords.
6. That the tenants will use the Cinema House being the premises in suit for exhibition of Films and theatrical performance with liberty to make provisions for Canteen and Restaurants outside the auditorium for the facility of its audience only.
7. That the tenants paying rent regularly as per Clause 3 and hire charges as per clause No. 5 and using the premises as per Clause 6 will not be liable to be evicted by the plaintiff/landlords on any grounds whatsoever including the grounds of own use and occupation and/or buildings or re-buildings except as provided hereinafter.
8. That the tenants shall have the option to surrender the tenancy to the plaintiff/landlords or their successors in office by giving six calendar months' notice in writing in advance to them.
9. That the tenants shall carry out all the requisitions and requirements imposed by any competent authority for carrying on the said Cinema business at thesuit premises and in no way the plaintiffs/ landlords shall toe liable for the breach of same by the tenants.
10. The tenants shall be entitled to make at their own costs any additions and alterations to their demised premises or any part thereof including constructional and structural changes and erect any kind of permanent structures and also to install air conditioning plants, machines and apparatus, as would be required from time to time only for the improvement of the Cinema business with prior approval in writing of the landlords and such approval shall not be withheld provided that any such additions and/or alterations will not diminish the total value of the premises in suit. The landlords will sign any plans or drawings which the tenants may submit from time to time for procuring the sanction of the Calcutta Corporation or other local or statutory bodies in connection with such additions, alterations and improvements. But, under no circumstances, the tenants are allowed to make unauthorised constructions, additions or alterations from now onwards which in any way contravenes any law for the time being in force. All repairs, if any, required to the demised premises, the same will be done by the tenants at their own costs. All additions and alterations of a fixed nature will belong to the landlords. The tenants shall have no right to demolish the demised premises in its entirety.
11. The tenants will have the right to sublet the premises partly or wholly to its allied concerns limited to the purpose hereinbefore mentioned but subletting must have the prior approval of the landlords in writing and such permission shall not be unduly withheld. Provided that notwithstanding such subletting the tenants will be responsible for the regular payment of rent and for due performance of the other terms and conditions of the tenancy. Such subtenants shall be bound to observe all the terms and conditions mentioned herein and any breach of any of the terms by the sub-tenants shall be deemed to be the breach by the tenants.
12. That the plaintiffs/landlords shall be entitled to issue 4 (four) passes for free entry in any available class in any or every show at the cinema house except Friday. Saturday and Sunday and public holidays and in the first week of the picture. The entertainment tax, if any, will be payable by the pass-holders.
13. Notwithstanding anything contained hereinabove, if the tenants fail to pay the rent and hire charges in time in respect of the suit premises for any two months or make any breach of any of the terms the landlords shall have the right to take action for ejectment of the tenants.
14. Suit No. 1394 of 1961 filed by the defendant No, 1 in his Court against the plaintiffs in the suit and others in the High Court at Calcutta (Ordinary Original Civil Jurisdiction) is unconditionally withdrawn against all the parties and there will be no order of costs in that suit.
15. Each party will bear and pay itsrespective costs in the suit.
Dated this 6th day of August, 1968.
For self and Naaz Cinema
Ram Prasad Goenka Bhagwati Prasad Khaitan
C. S. Roy Chowdhury & Co.
Madhav Prasad Birla Jagannath Beriwala
Attorney for the defendant Nos. 1 and 3.
Purushottam Das Halwaisya
Signature in Vernacular
by the pen of Ganeshmal Baid
(Laxmi V. Mansata) (in Vernacular)
Narendra V. Mansata
Sham Sundar Halwasiya.
Surya Kant V. Mansata
L. P. Agarwalla & Co. Solicitors.
Jitendra V. Mansata
for the plaintiffs.'
The said settlement was signed on behalf of the plaintiffs, on behalf of the defendants and also on behalf of the Mansata in whose favour a tenancy on the terms and conditions mentioned in the settlement was agreed to be created.
3. Though the said settlement was put in on the 7th of August 1968, it appears that the decree on the basis of the said settlement was not drawn up for a number of years thereafter. It further appears that the department had pointed out to the Court that the department felt some difficulty in drawing up the said decree on the basis of the said settlement,
4. An application was thereafter made on the 29th of January 1975 on behalf of the Mansatas in whose favour the tenancy in respect of the said premises was to be created under the said settlement for being added as parties to the said suit. The prayers of the Mansatas in the said application were-
(a) That the petitioners be added as parties defendants to the above suit
(b) That the Cause Title of the suit in the plaint and the suit register be am-ended as shown in Annexure 'B' to the petition being the grounds herein.
(c) That the minutes of the decree dated 7th August 1968 be rectified as shown in Annexure 'B' to the petition being the grounds herein.
(d) Such other incidental orders be made and directions be given as may be necessary to give effect to the said amendments.
(e) Costs of and incidental to this application be paid by the plaintiffs.
5. The said application moved on behalf of the Mansatas was opposed on behalf of the plaintiffs. The learned trial Judge for reasons recorded in his judgment passed an order directing the Mansatas to be added as party defendants to the suit in terms of prayer (a) of the said application. He also made further order directing that the minutes of the decree dated 7th August 1963 be rectified in the manner following:--
'The suit being suit No. 165ft of 1960. Bragirathmal Kanodia and Ors. v. Ramriklal Girdhardas is decreed in terms of the settlement put in. The suit do stand dismissed as against the defendant No. 2, Narshingdas Haldia. Leave is given to Mr. B. Mullick, Solicitor, to file the warrant of attorney on behalf of the added defendants on his undertaking to complete the order of amendment. The amendment be effected within a fortnight after the reopening of the Court after Easter Holidays on a signed copy of the minutes. The order and the decree be drawn up and completed expeditiously. Leave is granted to the plaintiffs in the cross suit being No. 1399 of 1961 Ramricklal Girdhardas and Ors. v. Bhagirathmal Kanodia and others to withdraw the same unconditionally against an the parties and no order is made in respect of costs thereof. In the facts and circumstances of this case the applicants must pay the costs of this application to the plaintiffs. Interim order made herein is vacated. Let the order not to be effected till 10th April, 1975. Let this order be incorporated in the minutes of the order dated 7th August 1968. Department to act on a signed copy of the minutes.' The learned Judge in his judgment has observed that 'If the order as prayed for is made the Mansatas would enjoy their rights under a decree which would be perfected after the same would be drawn up, completed and filed.'
6. Against the said order of the learned trial Judge, the plaintiffs in the suit have preferred this appeal.
7. The principal contention of Mr. Bhabra who has appeared on behalf of the appellants in support of this appeal is that the learned trial Judge had no jurisdiction to pass the order making the Mansatas as party defendants to the said suit and passing a decree in their favour in the said suit. Mr. Bhabra has argued that the decree is a consent decree and parties to the decree were the plaintiffs and the defendants to the suit It is the argument of Mr. Bhabra that though under the terms of settlement the plaintiffs agreed to create a tenancy in favour of the Mansatas and the said agreement, if necessary, may be enforced in an appropriate proceeding by way of a suit, the learned trial Judge had no jurisdiction to pass a decree in favour of the Mansatas on the basis of the said settlement. Mr. Bhabra has submitted that on the basis of the said settlement the tenancy has already been created in favour of the Mansatas who has come into possession of the said premises on the basis of the said settlement. It is his argument that if there be any disputes between the Mansatas and the plaintiffs with regard to the said agreement between the parties, the said disputes can be adjudicated in a suit. He contends that the plaintiffs never agreed to a decree being passed in favour of the Mansatas in the said suit filed by them for possession against the defendants in the said suit. Mr. Bhabra argues that the plaintiffs had undoubtedly intended to create a tenancy in favour of the Mansatas on the basis of the said settlement but the plaintiffs had never agreed to submit to a decree in favour of the Mansatas. It is the argument of Mr. Bhabra that the said decree was a consent decree which was binding on the parties to the said decree and parties to the decree were parties to the suit. Mr. Bhabra argues that as the decree was a consent decree the learned Judge did not have any jurisdiction without the consent of the parties to alter the nature or character of the said decree and convert the said decree into a decree in favour of the Mansatas. It is the argument of Mr. Bhabra that the plaintiffs never agreed to a decree being passed in favour of the Mansatas and the plaintiffs very likely would not have settled the suit on these terms if the plaintiffs would be called upon to submit to a decree in favour of the Mansatas on the basis of the said settlement. Mr. Bhabra has submitted that the appellants do not have any objection to the saidsettlement and the tenancy which has been created in favour of the Mansatas on the basis of the said settlement. It is his submission that the appellants have acted and want to act on the basis of the said settlement and if the Mansatas have any grievance against the appellants in the matter of implementation of the said agreement between the parties the Mansatas can take necessary action and file a suit against the plaintiffs for enforcement of the said contract between the parties. He contends that the plaintiffs have never agreed that Mansatas would enjoy any rights under a decree or there will be a decree in favour of the Mansatas against the plaintiffs which the Mansatas could execute against the plaintiffs on the basis of the said settlement. Mr. Bhabra has further submitted that the question whether the decree is executable or not is indeed a debatable question. It may be, according to Mr. Bhabra, that the said decree 4s not executable as the said decree does not relate to the subject-matter of the suit and brings in its scope matters which are entirely extraneous to the subject-matter of the suit. Mr. Bhabra has fairly stated before us that if the Mansatas defendants agree to this clarification that the said decree is not executable and will not be executed by the Mansatas against the plaintiffs/ appellants he will not have any grievance merely to the addition of the Mansatas as parties to the suit. As we have already observed his main grievance is against the passing of the decree against the plaintiffs in the suit in favour of the Mansatas.
8. On behalf of the Mansatas Mr. Dutt has argued that the said order of the learned trial Judge is perfectly valid and proper. He has argued that as the decree has not been drawn up and perfected the suit was still continuing and had not terminated and the learned trial Judge had therefore jurisdiction to pass appropriate orders in the suit. He has contended that as the suit was still pending and had not terminated, the learned trial Judge on the application of the Mansatas who are vitally interested in the settlement was perfectly right in adding the Mansatas as party defendants to the suit under the provisions of Order 1, Rule 10 of the Civil P. C. Mr. Dutt has raised an objection that as the impugned order is an order passed by the learned trial Judge on an application under Order 1, Rule 10 of the Civil P. C., this appeal is in-competent and is not maintainable. In support of his contention that the suit remains pending till the decree had been perfected Mr. Dutt has referred to the following decisions:-- 1. Sarojendra Kumar Dutt v. Purnachandra Sinha, reported in AIR 1949 Cal 24 at p. 37. 2. Lakshman Chandra Das v. Nikunja Moni Dassi, reported in 27 Cal WN 755: (AIR 1924 Cal 188). 3, Mohabir Proshad Choudhury v. Chandra Sekhar Sahi, reported in 19 Cal WN 1021: (AIR 1915 Cal 586 (1)).
9. Mr. Dutt has placed particular reliance on the following observations of Das J. in the case of Sarojendra Kumar Dutt v. Purnachandra Sinha, AIR 1949 Cal 24 at p. 37 -- 'There is, therefore, no escape from the conclusion that the suit is not terminated until the decree is perfected, i.e., completed and filed'. Mr. Dutt has argued that as a result of the order adding the Mansatas as parties to the suit, there has been no alteration or change in the consent decree.
10. In the facts and circumstances of this case, we are of the opinion that the order passed by the learned trial Judge clearly changes the nature of the consent decree. Under the terms of settlement there was no decree in favour of the Mansatas. If the parties had intended to create a decree in favour of the Mansatas the parties would undoubtedly, have impleaded the Mansatas as party to the suit before the terms of settlement were filed. We earlier indicated the nature of the suit which was filed by the plaintiffs and also the nature of the suit which was filed by the defendants against the appellants. It cannot be said by any stretch of imagination that the Mansatas were necessary or proper parties to any of the said two suits. It appears that at the time of settlement of the dispute between the parties, the plaintiffs agreed to create a tenancy in respect of the said premises in favour of the Mansatas and the settlement between the parties made necessary provisions for granting of a tenancy in favour of the Mansatas on the basis of the terms and conditions recorded in the settlement between the parties to the suit. As the tenancy was being created in favour of the Mansatas, the Mansatas also signed the said terms of settlement. There was no decree in favour of the Mansatas and it does not appear that the plaintiffs ever intended that any decree would be passed in favour of the Mansatas. The consent decree was a decree between theparties to the suit and the parties to the suit were the plaintiffs and the defendants. The Mansatas were not parties to the suit. The effect of the order of the learned trial Judge is to change the entire character of the consent decree, and to pass a decree in favour of the Mansatas who have not filed any suit and who were not parties to any of the suits filed. In our opinion, the learned trial Judge had no jurisdiction to change the nature and character of the consent decree by adding the Mansatas as parties to the suit and by directing that there will be a decree in favour of the Mansatas in the absence of consent of all the parties. As, in our view, the nature of the decree has been completely changed by the order passed by the learned trial Judge, it cannot be said that the order passed by the learned trial Judge was merely an order adding the Mansatas as parties to the suit under the provisions of Order 1, Rule 10 of the Code and, therefore, the order is not appealable. The order of the learned trial Judge has the effect of bringing about a new decree and the appeal, therefore, in the facts of the instant case, is perfectly competent. We have also our doubts as to whether the provisions of Order 1. Rule 10 can be said to be applicable in the facts of the present case. For proper determination of the suit filed by the plaintiffs against the defendants in the suit the presence of the Mansatas was in no way necessary. For determination of the suit filed by the defendants against the appellants the Mansatas were also not necessary or proper parties. The Mansatas had no kind of interest in the subject-matter of the suit which was filed by the appellant as the plaintiffs against the defendants in their action and by the defendants against the appellants. As we have earlier observed, the suit by the appellants was a suit for possession of the premises and for other reliefs and the suit by the defendants was a suit for declaration that they continued to be tenants under the plaintiffs. In these suits the Mansatas had no interests whatsoever. It cannot be said that for a proper adjudication of the disputes in the said two suits the presence of the Mansatas was necessary. It cannot also be said that any of the said suits were not properly instituted. The interest of the Mansatas came into existence only as a result of the settlement between the parties. The compromise of the suit between the parties to the suit on the basis of the settlement cannot besaid to form any part of the subject-matter of the dispute in the suit. In the view that we have taken we do not consider it necessary to pursue this matter any further and to decide the further 'question whether the application of the Mansatas under Order 1. Rule 10 would be maintainable or not. The executability of the decree does not form any part of the subject-matter of the present proceeding. Though we are inclined to the view that the settlement, which relates to matters entirely outside the scope of the suit, could not be enforced in execution of the decree, yet in the view that we have taken and as the said question does not fall for determination in the present appeal, we do not propose to discuss this contention of Mr. Bhabra any further and we do not, think it necessary to decide this question in the present appeal. As we have already observed the learned trial Judge clearly erred in passing the order as a result of which the character of the entire consent decree was changed. The decree was a consent decree and the learned trial Judge did not indeed have any jurisdiction to change or modify the said decree in the absence of the consent of the parties. In the view that we have taken we do not consider it necessary to deal with the cases which have been cited from the Bar. In our view, the order passed by the learned trial Judge in the instant case is clearly untenable and is without jurisdiction.
11. The appeal is, therefore, allowed. The order of the learned trial Judge is set aside. The application of the Mansatas is dismissed. The learned trial Judge in his order has directed that the Mansatas would pay the costs of the application. That part of the order of the learned trial Judge is sustained. The MANSATA-respondents will pay the costs of the appeal to the appellants.
12. If any decree had been drawn up and perfected on the basis of the order passed by the learned trial Judge on the 7th August, 1968 which is under appeal, the said decree is hereby set aside. The Department will proceed to draw up a fresh decree on the basis of the settlement of the suit between the parties to the suit and will include the terms of settlement as an annexure to the said decree between the parties to the suit.
Bimal Chandra Basak, J.
13. I agree.