w w w . L a w y e r S e r v i c e s . i n



T S Gupta v/s Kanahialal Ruia


Company & Directors' Information:- RUIA AND RUIA PRIVATE LIMITED [Active] CIN = U51900MH1969PTC014329

Company & Directors' Information:- RUIA AND COMPANY PRIVATE LIMITED [Active] CIN = U74999MH1960PTC011837

    Appeal from Original Order No. 453 of 1962

    Decided On, 18 September 1963

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE P.N. MOOKERJEE & THE HONOURABLE MR. JUSTICE J.K.C. SEN

    For the Appearing Parties: Apurbadhan Mukherjee, Lala Hemanta Kumar, Manick Chandra Banerjee, Soumendra Nath Mukherjee, Advocates.



Judgment Text

P.N. MOOKERJEE, J.


(1) THIS appeal is directed against an order of the learned trial Judge, recording a compromise, on which disputes had arisen between the parties.


(2) THE suit in question was a suit for ejectment, brought by the landlord, the plaintiff respondent, against the tenant, the defendant appellant In respect of the disputed premises, namely, a shop room and a verandah in the ground floor of premises No. 125, Harrison Road. The tenancy carried a rental of Rs. 60/- per month and it ran according to the Hindi calendar (Bodi l to Sudi 15). The suit was preceded by a notice of ejectment, which is dated June 30, 1956, and which appears to have been served on July 4, 1956, expiring with the end of Sawan Sudi 15 (Sambat year), corresponding to August 21, 1956. The suit was brought, so far as the West Bengal Premises tenancy Act, 1956, is concerned, by which it is, admittedly, governed, on the ground of the plaintiff's reasonable requirement of the disputed premises for his own use and occupation. That also was stated in the above notice. The suit was filed on November 14, 1956. On the 3rd January following, the defendant filed his written statement, denying inter alia the relationship of landlord and tenant between the parties, the validity and sufficiency of the notice of ejectment and also the plaintiff's case of reasonable requirement.


(3) ON the above pleadings, issues were framed by the court on May 22, 1957, and the first three issues were framed on the above three defences. On June 10, 1958, a joint application for time was filed by both parties to enable them to file terms of settlement, which were stated to have been already signed by them on May 20, 1958. In the said application, it was stated that the said terms were with the plaintiff's agent J. Misra, who was then away but was expected to come back within three or four days. In the circumstances, an adjournment of the suit was prayed for by the parties. The suit was, accordingly, adjourned to June 18, 1958, when the plaintiff filed his present application under Order 23, rule 3 of the Code of Civil Procedure for recording the compromise, of which a memorandum was filed along with the said petition. The defendant immediately objected to the plaintiff's application on the ground that all the terms, agreed upon between the parties, had not been recorded in the said memorandum. On August 20, 1958, an application was filed by the defendant, purporting to elucidate his above objection, and, on the 29th following, the defendant applied for time on certain grounds. The defendant filed further objections to the plaintiff's above application on december 8, 1959. Thereafter, the plaintiff's aforesaid application was taken up for hearing and, after a prolonged hearing, the said application was allowed by the learned trial Judge on June 28, 1961, and, against his said decision, the present appeal was; filed on July 26, 1961.


(4) THE learned trial Judge allowed the plaintiff's application by rejecting the defence story that the memorandum, filed by the plaintiff, did not represent the real compromise between the parties and that the real memorandum of compromise had been suppressed or withheld by the plaintiff. The defendant's story on the point of the above settlement was that the suit, undoubtedly, had been settled between the parties but the memorandum, which had been filed by the plaintiff and on which the compromise was sought to be recorded, was not the real or the final memorandum. It was of a tentative character, which came into existence on May 19, 1958, but the final compromise and the memorandum thereof followed on the next day, namely, May 20, 1958, under which the parties agreed that the defendant would continue in occupation of the disputed premises as the tenant on an enhanced rental of rs. 80 /- per month. This was denied by the plaintiff. According to him, the only memorandum of settlement, which was made or brought into existence and signed by the parties, was the one, filed by him in court and bearing the date, May 20, 1958. In support of his case, the plaintiff examined himself. The memorandum, which was annexed to the plaintiff's petition, appears to have been signed by both the parties and also bears the date, May 20, 1958, which, according to the defendant, was the final date of settlement. The defendant, in support of his denial of the plaintiff's case and for proving his own case, examined himself, his brother, who, according to the defendant, was present at the time of the relevant negotiation of settlement, as also the clerk of the defendant's lawyer, since deceased, and also the plaintiff's former lawyer, who was in charge of this case, prior to the filing of the above petition.


(5) THE learned trial Judge was not impressed by the defendant's evidence and, on our part too, in view of the various discrepancies and inconsistencies, appearing there in, particularly, in the evidence of the defendant and his brother, and the non-examination of the two persons, Dr. A. Singh and another, who, according to the defendant, were also present at the time of negotiation of the settlement in question, we are unable to place much reliance on the defence testimony. Indeed, the defence story does not appear to have been sufficiently or consistently brought out by the defence evidence of the above two witnesses, namely, the defendant and his brother aforesaid. The other two witnesses, examined by the defendant, are not direct witnesses to the disputed settlement but might have been corroborative of the defence version, if the primary evidence of the defendant in that behalf could have been accepted. That, however, is not possible.


(6) IN the above view, we would agree with the learned trial Judge that, on the materials before the court and in view of the evidence on record, the defence case cannot be accepted and, having regard to the nature of the memorandum, particularly, that it was signed by both parties and was dated- and dated, again, May 20, 1958, the date of final settlement according to the defendant himself,-and a cancellation therein was duly initialed by the defendant, we are not prepared to throw it out, although there may be some circumstances, which may raise some suspicion in the matter. Suspicion is not proof and, merely because there may be some scope for suspicion, in view of the evidence on record, it will not be proper to throw out the memorandum of settlement, put forward by the plaintiff as the final concluding document of settlement between the parties. On the question of fact, therefore, the appellant must fail in this appeal and the recording of the compromise by the learned trial Judge cannot be successfully assailed.


(7) POSSIBLY, Mr. Lala, who argued this appeal on behalf of the appellant, was alive to this aspect and, accordingly, he raised a pure question of law upon the footing that the alleged settlement was, as stated by the plaintiff and as evidenced by the memorandum, filed by him. Mr. Lala contended that the suit was one for ejectment, which came directly under the West Bengal Premises Tenancy Act, 1956. Under that Act, no decree for ejectment was permissible except on one or more of the grounds, mentioned in sec. 13 (1) of the Act. Therefore, unless there was a ground under that section, the court had no jurisdiction to pass a decree for ejectment even by consent. For this, reliance was placed, particularly, on the English case of (1) Middleton v. Baldock (T. W.) and Same v. Baldock (G. B.), (1950) 1 K. B. 657. About the above proposition of law, there can be no doubt or dispute, The jurisdiction of courts to pass decrees for ejectment is founded on and limited by the above statutory provision and the court has no jurisdiction to pass a decree for ejectment, even by consent of parties, in the absence of any of the grounds, mentioned in sub-sec. (1) of sec. 13 of the above Act. The point here, however, is somewhat different. The claim for ejectment was made and decree was claimed on the ground of the plaintiff's reasonable requirement of the suit premises for his own use and occupation. This, indeed, was a jurisdictional fact, which had to be established, before a decree could be passed. Unless this was established, the court would have no jurisdiction to pass a decree for ejectment in the instant case. That, indeed, follows on principle and also from the above English decision, cited by Mr. Lala. It is to be seen, however, that the proof of a fact may not be necessary, if the fact is admitted. In the plaint of the present suit, there was an allegation- a distinct averment-by the plaintiff that he reasonably required the suit premises for his own use and occupation. This was denied by the defendant. An issue was raised upon this question of fact. If, in this context, the defendant consents to a decree for ejectment, it can only be on the footing -or, at least it may be reasonably presumed,-that the above denial was given up by the defendant and the plaintiff's above allegation or averment was accepted or admitted by the defendant ; or, in other words, when, in the instant case, the defendant agreed to have a decree for ejectment, passed against him, it was, in the context of the above pleadings, upon admission or acceptance of the plaintiff's above allegation or averment of reasonable requirement, A fact admitted need not be proved. This, indeed, appears from the very decision (1950 1 K. B. 657], cited, by Mr. Lala, where, at pp. 661 and 669 of the Report, an exception has been made by the learned Judges that, if the jurisdictional fact is admitted, it need not be proved. A settlement or compromise, proceeding upon such admission,-and such admission may well be implied, as here, or express,- would, in the above view, be enough to give the court jurisdiction to pass a decree for ejectment [see also, in this connection, (2) Thom v. Smith, (1947) 1 KB. 307 at pp. 314 and 315].


(8) WE may point out further that the English case (1950) 1 K. B. 657, cited by Mr. Lala, is also clearly distinguishable, as, there, obviously, none of the statutory grounds for ejectment was even averred or claimed to exist (Vide p. 682) and there was no allegation or proof of any such ground and no scope either for any finding of admission in that behalf.


(9) WE would, accordingly, overrule Mr. Lala's contention that the disputed compromise, however valid in fact and however well-established as a matter of fact, cannot be given effect in law and cannot, therefore, be recorded under Order 23, rule 3 of the Code of Civil Procedure, inasmuch as that provision requires the court to record a compromise, only when it is lawful.


(10) IN the premises, this appeal would fail and it will be dismissed. As, however, it appears that the defendant appellant is a medical practitioner, who has his chamber in the disputed premises, we would give him reasonable time to vacate the same. It is true that he has already got some substantial time for the purpose inasmuch as the present suit was instituted in the year 1956 and we are now in 1963, but a defendant in an ejectment suit seldom prepares to leave the disputed premises until the matter of ejectment is finally decided. On this consideration and in the circumstances of this case, we would give the defendant appellant time to vacate the disputed premises until January next in the first instance

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, to be extended till the end of April next, on an undertaking, being given by him to this court to vacate the disputed premises and deliver up peaceful and vacant possession thereof to the plaintiff respondent within the said month of April, provided that, in either case, the defendant appellant goes on depositing, in the trial court to the credit of the decree-holder respondent, a sum of Rs. 600/-per month, month by month, regularly, according to the Hindi calendar (Bodi 1 to Sudi 15) with the further provision that, in case of any two defaults in this respect, the decree for eviction will become executable at once, irrespective and in spite of any provision for time as above or any of the above grace periods, which will, in such event, automatically lapse. (11) IN the circumstances of this case, we would make no order for costs :in this court but the plaintiff will be entitled to his costs of the court below, ;as decreed by the learned trial Judge. SEN, J.--I agree. November 22, 1963. In continuation of our judgment, dated September 18, 1963, we direst that the defendant appellant's undertaking, mentioned in the penultimate paragraph of the said judgment, should be given by November 30, 1963. This direction will form part of our aforesaid judgment.
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