Shri Gandhi Ashram, Meerut v. Ram Gupta — 1982 DIGILAW 1336 (ALL)

JUDGMENT B.D. Agrawal, J. - This is judgment debtor's appeal. 2. On Mar. 14, 1967, plaintiff instituted Original Suit No. 83 of 1967 in the Court of Munsif, Kasganj, for eviction and recovery of damages for use and occupation in respect of a shop (including the upper apartment) described in the plaint. The suit ended in a compromise between the parties recorded on Aug. 30, 1967. The rent payable in respect of the accommodation in suit had been Rs. 125/- per month. In the compromise which formed part of the decree, it was provided that the judgment-debtor, Gandhi Ashram, had paid Rs. 200/- as costs to the plaintiff in full and that the Gandhi Ashram was to remain in possession of the accommodation in question as tenant. The tenancy was to commence on the first day of each calendar month. It was further provided that defendant No. 1 the Gandhi Ashram had paid through its manager the rent up to Mar., 1967 at the rate of Rs. 125/- per month and that with effect from April. 1, 1967, the rent was to be Rs. 175/- per month which they would be paying upto Mar. 31, 1974, and thereafter they shall vacate the accommodation. The decree passed on the basis of this compromise 'was put into execution by the plaintiff-decree-holder on April., 4, 1974. An objection was raised under S. 47, C. P. C. by the Gandhi Ashram, the judgment-debtor, on May 15, 1974, asserting that their possession in respect of the accommodation in dispute was that of a tenant and that the eviction could not be had without compliance to the requirements of U.P. Act XIII of 1972. The decree-holder resisted saying that no tenancy was created in favour of Gandhi Ashram under the compromise and that the period up to Mar. 31, 1974 was allowed for vacating only as an act of grace on the part of the decree-holder. The objection raised under S. 47 was upheld by the learned Munsif Kasganj on July 26, 1974. In appeal this was affirmed by the learned Civil Judge, Etah, on May 13, 1975. It was observed that the expression 'rent' had been used in the compromise as a misnomer for 'damages' for use and occupation. The objection raised under S. 47 was upheld by the learned Munsif Kasganj on July 26, 1974. In appeal this was affirmed by the learned Civil Judge, Etah, on May 13, 1975. It was observed that the expression 'rent' had been used in the compromise as a misnomer for 'damages' for use and occupation. The principle applied by the lower appellate Court was that o compromise should be interpreted in a manner which tends to shorten litigation and the Court should resist any attempt on the part of any of the parties to constitute (construct) the decree in such a way as to multiply litigation. It was further stated that it was open to a tenant to waive the benefit available under the Rent Control Act. Aggrieved, the judgment-debtor, namely, the Gandhi Ashram preferred this appeal. 3. Learned counsel for the appellant contended that there was a fresh tenancy created in favour of the appellant on Aug. 30, 1967 in terms of the compromise incorporated in the. decree. For this he laid stress on the terms and contents of the said compromise, Relevant portion of Cl. 1 of this compromise incorporated in the decree provides : " ---------vkSj eqn~nk;ys ua0 1 xka/kh vkJe dklxat nqdku e; okyk [kkuk futkbZ ij fdjk;s nkjkuk dkfct jgsxk vkSj mldh fdjk;snkjh gj ekg dh ,d rkjh[k ls 'kq: gks dj ml ekg dh vkf[kj rkjh[k dks [kRe gqvk djsxhA " CL. provides as under:- "2- ;g fd eqnk;ys ua0 1 vius ctfj;s eSustj fl)s'ojhyky JhokLro us dqy tsj fdjk;k ekg ekpZ lu~ 67 rd eq0 dks 925@& ekgokj ds fglkc ls vnk dj fn;k gS vkSj vizSy lu 67 ls eqn~nk;ys ua0 1 xka/kh vkJe dklxat 175@& ekgokj ds fglkc ls gj ekg ds vkf[kj esa ctfj;s jlhn eq0 dks rk0 31 ekpZ lu~ 74 rd vnk djrs jgsaxs vkSj mlds ckn nqdku e; okyk[kkuk futkbZ dks [kkyh djds eqn~nbZ dks n[ky ns nsaxsA" The significant features about this compromise are that the suit giving rise to the same was instituted on Mar. 14, 1967, by the plaintiff for eviction on the ground presumably that the defendant had been in arms of rent. The rent payable had been Rs. 125/- per month only. This was paid up to Mar. 31, 1967 at this rate, but with effect from April. 1, 1967, it was stipulated to be enhanced to Rs. 175/- per month. 14, 1967, by the plaintiff for eviction on the ground presumably that the defendant had been in arms of rent. The rent payable had been Rs. 125/- per month only. This was paid up to Mar. 31, 1967 at this rate, but with effect from April. 1, 1967, it was stipulated to be enhanced to Rs. 175/- per month. It is not indicated from the side of the decree-holder that the accommodation was required by him for his own use. Further, there is no provision contained in the compromise to the effect that, in the event of the defendant judgment-debtor making default in the payment of rent at the rate of Rs. 175/- per month, the plaintiff shall be entitled to evict them in execution of the same decree. It is also not provided that, upon the expiry of Mar. 31, 1974, and in the event of the defendant failing to deliver possession to the plaintiff, the latter shall be entitled to execute the same decree for that purpose. These are the normal features which a compromise decree contains in case the decree-holder merely intends to grant certain time to the judgment debtor to vacate and where it is not intended that a fresh tenancy should be created. I am in agreement with the observation of the lower appellate Court that the use of the expression 'rent' is inconclusive in itself. It is not the label or the nomenclature which matters, the Court has to look to the substance of the transaction. The terms contained in the compromise have to be considered in their totality. The compromise recites in explicit and unambiguous terms that the position of defendant No. 1-the Gandhi Ashram-shall be that of a tenant with effect from April 1, 1967 at the enhanced rent at the rate of Rs. 175/- per month and that the tenancy shall commence on the first day of each calendar month. If the intention of the parties was merely that defendant No. 1 be granted time up to Mar. 1974 to vacate, the recital with regard to the tenancy in the compromise, mentioned above would have been entirely uncalled for. It is not clear why, in that event, it was not provided instead that the judgment-debtor could continue in occupation for a specified length of period on payment of certain rent and that thereafter they shall be liable to eviction. It is not clear why, in that event, it was not provided instead that the judgment-debtor could continue in occupation for a specified length of period on payment of certain rent and that thereafter they shall be liable to eviction. In any case, there shall have been a provision made enabling the decree-holder in that event to obtain eviction forthwith upon failure on the part of defendant No. 1 to comply with the terms proposed. On the contrary, the action taken was exhausted with the compromise entered into between the parties. 4. It is well settled that it is the substance and not the form of the document which would determine the legal character. The test propounded is the intention of the parties. For ascertaining the intention, the language in the document constitutes the best guidance. In this case the language employed for the compromise contained in the decree is explicit, and in no uncertain terms. It says that defendant No. 1 was being admitted as tenant upon the rate of rent specified. The attending circumstances may be looked into where there is ambiguity existing in the construction of the document. In Konchada Ramamurty Subudhi (dead) by his Legal Representatives v. Gopinath Naik, AIR 1968 SC 919 it was held that the Court has to ascertain in such a case the intention of the parties. The use of the expression 'rent' was inconclusive. At page 922 it was observed: "But what is very significant is Cl. (d) which enables the decree-holder to execute the decree if the judgment-debtor fails to pay rent for any three consecutive months. This it seems to us, shows that the intention of the parties was not to enter into the relationship of a landlord and tenant. We may mention that the importance of this fact was adverted to in Sumatibai Waman Kirtikar v. A.B. Shirgaonkar, AIR 1949 Bom 402-404 where Chagla, C. J. observed "On the failure of the defendant to pay any of the amount which is fixed as rent on its due date, the only right the decree gave to the judgment-creditor was to have it executed for the amount which remained due, it did not entitle the judgment-creditor to take possession of the land on default of payment of rent". 5. 5. In Laxman Prasad v. Shyam Swarup Chandak, AIR 1980 All 242 relied for the respondent, the main terms of the compromise were that the defendant would continue as tenant of the shop at Rs. 30/- per month from 1-1-1965 up to 31-12-1974 and after the expiry of this period, he was to vacate the shop and "in the event of his failing to vacate the same the decree-holder would have a right to take possession by executing the decree". (emphasis is mine). Brother M.N. Shukla, J. applied the test of the intention of the parties and, taking into consideration the terms of the compromise decree in that case, it was held that the intention of the parties was not to continue the old tenancy or create a new tenancy and that it was merely a concession granted to the appellant to retain possession for a period of ten years. The landlord had arrogated or retained in that case too the power to evict the other party within the said period by putting the same decree to execution in the event of failure on the part of the defendant to comply with the term thereof. The Supreme Court has regarded a provision in relation to this, namely, the provision for execution of the decree in the event of default in payment as of considerable significance. The absence of any such provision denotes the converse, in my opinion. The action, in other words, was not kept alive by the parties in the instant case the defendant No. 1 was admitted as tenant upon payment of enhanced rate of rent for the period specified and the rest was left to be governed obviously in accordance with the law relating to the relationship of landlord and tenant, as may be in force for the time being. If the intention of the parties had been to grant a mere concession to defendant No. 1, it does not appear that the decree-holder will have failed to make a provision for eviction of defendant No. 1 even prior to Mar. 31, 1974 in the event of the latter failing to pay the enhanced rent. In my view, therefore, a new tenancy was created in favour of defendant No. 1 on Aug. 30, 1967, and in the absence of a registered instrument, this operated as tenancy from month to month. 6. 31, 1974 in the event of the latter failing to pay the enhanced rent. In my view, therefore, a new tenancy was created in favour of defendant No. 1 on Aug. 30, 1967, and in the absence of a registered instrument, this operated as tenancy from month to month. 6. The U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, came in force on July 15, 1972. Sub-sec. (1) of S. 20 creates a bar to the institution of a suit for eviction of a tenant from a building notwithstanding the determination of his tenancy by efflux of time and sub-sec (2) contains the grounds upon which a suit for eviction against the tenant in a building may be filed. Defendant No. 1 having been the tenant in respect of the building in question, on the date immediately preceding July 15, 1972, the bar of S. 20 (1) is attracted and, in the absence of any of the grounds mentioned in sub-sec. (2), the eviction could not be made and that too could be possible by a suit instituted for this purpose. In an appropriate case the landlord may also take recourse to sub-sec. (1) of S. 21 of this Act. In view of the tenancy, therefore, created in favour of defendant No. 1, by the compromise entered into on Aug. 30, 1967, there could not be execution of the decree against them for eviction. Learned counsel for the appellant urged also that the compromise entered into on Aug. 30, 1967 is vitiated because the trial Court does not appear to have applied its mind to consider whether any of the grounds contained in S. 3 (1) of U.P. Act 3 of 1947 for eviction were satisfied. It was argued that the decree based on such a compromise should be taken as a nullity and that it could not be open to the defendant No. 1, the tenant, to waive the rights conferred under the provisions of the U. P: Act, 3 of 1947. In view of the finding recorded in respect of defendant No. 1, namely, that a fresh tenancy was created in favour of defendant appellant, this question is not required to be gone into in the appeal. In view of the finding recorded in respect of defendant No. 1, namely, that a fresh tenancy was created in favour of defendant appellant, this question is not required to be gone into in the appeal. Assuming that the provision for eviction in the compromise form in the basis of the decree was made on the basis of the default incurred by defendant No. 1 within the meaning of S. 3 (1) (a) of U.P. Act 3 of 1947 and that this furnishes the background or the material for the said decree even though it does not appear to be specifically considered, as observed in K.K. Chari v. R.M. Seshadri, 1973 Ren. CJ 589 : AIR 1973 SC 1311 , suffice it to say for purposes of this case, that the eviction of defendant appellant could not be had by execution in the instant case in face of a new tenancy created in their favour. 7. For the above, the appeal succeeds and is allowed. The order dated May 13, 1975 is set aside. The objection under S. 47, C.P.C. is allowed. Costs on parties.