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Chandu Lal Jain v/s Pramod Kumar

    Civil Revision No. 36 of 2013

    Decided On, 18 July 2018

    At, High Court of Judicature at Allahabad

    By, THE HONOURABLE MR. JUSTICE ANJANI KUMAR MISHRA

    For the Appellant: Nipun Singh, Advocate. For the Respondent: Ashish Kumar Singh, Ajay Kumar Singh, Advocates.



Judgment Text

Anjani Kumar Mishra, J.

Heard Shri Nipun Singh for the revisionist and Shri Ashish Kumar Singh for the opposite party.

The instant revision arises out of an execution case, filed for execution of a compromise decree passed in an SCC Suit for arrears of rent and eviction.

The execution case has been dismissed by the execution Court holding it to be not maintainable.

The facts relevant for the purpose of this revision briefly stated are that the revisionist filed SCC Suit No.10 of 2001 for arrears of rent and ejectment against the opposite party. In this suit, a compromise was filed on 18.10.2004. The suit was decided the same day on the basis of the compromise, which was made part of the decree.

According to the compromise, advance yearly rent was to be paid between the 1st to 30th November of each year and that the tenant had paid the rent till 31.10.2004 @ Rs.17,750/- inclusive all taxes. He had also paid advance from 01.11.2004 to 31.10.2005 @ Rs.17,750/- + Rs.750/- i.e. Rs.18,500/-, since, the rent was to be enhanced to Rs.750/- per year. The rent for the next year would be

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Rs.19,250/-. The tenant upon enhancing the rent by Rs.750/- each succeeding year and on depositing the advance rent in Nov each year could retain possession till he wished.

It was also agreed that any enhancement in house and water tax would be borne by the parties, inasmuch as enhancement in house tax would be borne by the plaintiff-landlord while enhancement in water tax would be borne by the defendant. It was also provided that in case of default, the land lord was liable to evict the tenant.

Alleging that the tenant had failed to deposit the rent for 2010- 11 between 1.11.2010 ad 30.11.2010, as required under the compromise, Execution Case No.1 of 2011 was filed on 19.01.2011 praying for eviction of the tenant, in terms of the compromise decree.

The execution case was contested by the tenant landlord on the ground that under the compromise, the landlord was not entitled to possession as no decree for possession had been passed. The decree as regards, enhancement of rent, in future, was declaratory in nature. As regards, the rights of the parties regarding payment and acceptance of future rent, the compromise decree amounted to a fresh lease agreement and that eviction could be ordered only in a fresh suit. It was also alleged that although, the rent was tendered during the period specified, namely, 1st to 30th November 2010, the landlord avoided accepting it. In any case, the advance rent along with interest thereon till 31.01.2011 has been duly deposited on the first date of hearing in the execution case. The Court below found that the compromise decree passed was beyond the scope of the suit itself. Therefore, the same could not be executed and that any violation of the compromise decree provided the landlord a fresh cause of action. In view of the submissions made by learned counsel for the parties, the only point for determination in this revision is whether the compromise decree could be executed by means of an execution case or whether it merely gave a right to the landlord to initiate fresh proceedings for ejectment, in case of violation of the terms of the compromise.

The case of the landlord revisionist, of course, is that the compromise decree was duly executable and in failing to-do-so, the executing Court has committed patent illegality. In support of this contention, reliance has been placed upon the following judgements -

1. Rashid Ahmad (deceased by LRs) Vs. The Munsif Muzaffarnagar and others 1985 ALL, L.J. 108. In this case, the compromise related to payment of the arrears of rent by a particular date, failing which the suit would stand decreed. It thus related the rent, already due. In the case at hand the compromise related to the future rent. The case cited is therefore, distinguishable.

2. Shivshankar Gurgar Vs. Dilip, 2014 (2) Supreme Court Cases 465.

In this case, the Apex Court was dealing with a case where again the compromise decree related to payment of arrears of rent within six months of the compromise, which was not done by the tenant. In the case at hand, the compromise states that there is no default as the arrears have been paid, as also the rent for the succeeding year. This again renders the case cited, distinguishable.

3. Deepa Bhargava and another Vs. Mahesh Bhargava and others, 2009 All. C.J. 408.

This judgement merely holds that the terms of a compromise should be strictly enforced. This authority, in view of the facts therein, does not deal with a situation, as in the case at hand and therefore, does not help the revisionists cause.

4. Vasudev Dhanjibhai Modi Vs. Raja Bhai Abdul Rehman, AIR 1970 SC 1475.

Herein, the Supreme Court has held that the executing Court cannot go behind a consent decree, even if erroneous.

There is no quarrel with this settled deposition of law. However, there is nothing in this judgement which would lead this Court to hold that the compromise between the parties amounts to an executable decree, which in essence is the controversy involved in this revision.

5. Anil K. Surana and another Vs. State Bank of Hyderabad, 2007 (10) Supreme Court Cases 257.

This case holds that directions issued by a Court on the basis of statements made at the Bar, amount to an executable decree, by consent. It again, in my opinion, throws no light on the controversy involved in this revision and is therefore, irrelevant.

6. Pushpa Devi Bhagat Vs. Rajinder Singh and others, 2006(5) SCC 566.

This judgement deals with an objection regarding a decree being a nullity. In this revision, it is no ones case that the compromise decree was a nullity and therefore, this judgement does not appear to be relevant for the purpose of the instant revision.

7. Rambilas Rai (Singh) Vs. Ramji Rai(Singh), AIR 1960 Patna

562. This case deals with a consent decree permitting the entire amount of default to be paid in instalments, within a stipulated period. Here, the default claimed by the revisionist is not the default regarding which the suit was filed. It is a default occurring subsequently and therefore, the same being beyond the scope of the suit itself, the dispute could be decided in execution proceedings.

In Maharaj Kumar Mahmud Hasan Khan Vs. Moti Lal Banker, 1960 ALJ 967(FB), it has been held that "there can be no execution, unless there exists a formal determination of the liability to be specifically enforced."

It has also been held that "a compromise is not a formal determination by the Court of liability of one party to the others."

In an execution case, all questions arising between the parties to the suit, relating to the execution, discharge on satisfaction of the decree. If specific enforcement of a term of a compromise is sought, the same is not a case of execution of the decree. The execution Court only has be determined whether the decree has been adjusted or satisfied. The case of the revisionist would stand on a different footing if the compromise decree provided that on violation of its terms, the landlord revisionists would have an absolute right of reentry without recourse to any legal proceeding. This Court does not find any such absolute stipulation in the compromise, made part of the decree. Besides, in my opinion, an executable decree is necessarily be one which is the scope of the proceedings wherein it was arrived at. The execution case by the revisionist sought to enforce a condition of payment of advance rent between 1st & 30 November of each successive year, and in the case at hand, six years after the compromise decree was passed. This condition was not in issue in the proceedings wherein the compromise sought to be informed/ executed was arrived. The relevant condition merely provided that in case the advance rent was not paid between 1st to 30th Novemer of any year, the plaintiff would be entitled to get the defendant tenant evicted. I am therefore, in full agreement with the Court below in so far as it has rejected the execution case as, not maintainable. In my considered opinion, the compromise decree was for all practical purposes, a fresh lease agreement between the parties. There is yet another reason for coming to this conclusion. Section 111 of the Transfer of Property Act provides situations whereunder, a lease stands determined.Section 111 (g), read as follows :-

(g) forfeiture, that is to say, (1) in case the lessee breaks an express conditions which provides that, on breach thereof, the lessor may re-enter; and on such breach, the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease; Sections 114 and 114 A of the Transfer of Property Act deal with the relief against forfeiture for non-payment of rent. The provision reads as follows -

114. Relief against forfeiture for non-payment of rent -Where a lease of immovable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrears, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred. 114-A. Relief against forfeiture in certain other cases - Where a lease of immovable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may reenter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing-

(a) specifying the particular breach complained of; and

(b) if the breach is capable of remedy, requiring the lessee to remedy the breach; and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy. Nothing in this section shall apply to an express condition against assigning, under-letting, parting within the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of non-payment of rent.

It is clear from a perusal the provisions extracted above that where a lessee in default, being sued for ejectment, at the first hearing of the suit, tenders the arrears with interest thereon and costs of the suit, the Court may not pass a decree for ejectment but, may pass an order relieving the lessee against such forfeiture.

In the case at hand, it has been stated that the rent due along with interest till 31.01.2011 has been duly deposited. Moreover, it is the specific case of the tenant that the advance rent for the year 2010-11 had been tendered, but was not accepted.This question again is a question, which can only be determined in a fresh suit and is not a question determinable in execution proceedings.

In view of the foregoing discussion, the impugned order is not liable to be interfered with.

The revision is without merit and is dismissed.
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