Roy v. Mahabir Prosad Rajghoria — 1986 DIGILAW 426 (CAL)

JUDGMENT 1. THE moot point for determination in this appeal arising from the judgment and decree passed by the learned Chief Judge, City Civil Court, Calcutta, is whether "relief" against eviction under the proviso to section 17 (4) of the west Bengal Premises Tenancy Act, 1956 (hereinafter referred to as. "the Act" For the sake of convenience) is to be granted by the court upon adjudication of all the materials on record in a suit and cannot be affected by bipartite agreement between the parties to a suit, out of court and submitted to court for disposal of the suit on the basis of that bipartite agreement or compromise. 2. THE plaintiff-respondent filed previously on 12. 10. 66 a suit for eviction of the defendant from an office-room at the first floor of premises No. 7, Pollock Street, P. S. Hare Street, Calcutta, (hereinafter called "the suit premises" for the sake of convenience) on the ground of default in payment of rent and on other grounds. That suit, being ejectment Suit No. 182 of 1966., was decreed only for costs against the defendant-appellant in terms of a petition of compromise, which formed a part of the decree. One of the terms of that petition of compromise was that it was a case of first default and the defendant-appellant had complied with section 17 (2) of the Act and had made all deposits of rent and as such was entitled to relief under section 17 (4) of the Act and there would be a decree only for costs of the suit. On the basis of that petition of compromise, that Ejectment suit No. 1824 of 1966 was decreed only for costs on compromise on 30. 8. 73. Subsequently, the plaintiff-respondent filed another ejectment suit, being Ejectment Suit No. 57 of 1975, against the appellant for eviction of the appellant from the suit premises on the ground of default in payment of rent since August, 1973, after service of a notice of ejectment, the validity of which was not disputed in this appeal. The defence of the appellant was that there was no default in payment of rent as there was amicable payment of rent from August, 1973 to March, 1974, though without receipt, and there was deposit of rent in the office of the Rent Controller from April, 1974. The defence of the appellant was that there was no default in payment of rent as there was amicable payment of rent from August, 1973 to March, 1974, though without receipt, and there was deposit of rent in the office of the Rent Controller from April, 1974. The learned chief Judge, after recording evidence, decreed the suit for eviction on disbelieving the alleged plea of payment by the appellant for the months from August, 1973 to March, 1974. One of the grounds argued before the learned Chief Judge, at the time of hearing of that ejectment suit no. 57 of 1975, was that the relief against eviction in the earlier Ejectment Suit No. 1824 of 1966, was not granted by the court after coming to a finding in that earlier Ejectment Suit that it was a case of first default by the appellant in payment of rent for four months within a period of 12 months. This contention of the appellant was not accepted by the learned Chief Judge, who decreed the suit for eviction. Being aggrieved by this judgment and decree passed ' by the learned Chief Judge, the present appeal has been filed. Mr. Sen, the learned Advocate for the appellant, does not challenge the finding of the learned Judge that there was no payment of rent amicably for the period from August, 1973 to March, 197*. He does not challenge the finding of the learned Chief Judge that there was default by the defendant-appellant in payment of rent in respect of the suit premises. His sole contention is that as the earlier suit ended in a decree for costs only on the basis of a petition of compromise, it cannot be at all stated that a relief against eviction was granted by the court in that earlier Ejectment Suit after coming to a finding about such first default! on the basis of the materials on record in the earlier suit. The contention is that Section 17 of the Act controls section 13 of the Act, under which a decree for eviction can be passed on the various grounds mentioned in section 13 (1) of the Act, "notwithstanding anything to the contrary in any other law". Mr. on the basis of the materials on record in the earlier suit. The contention is that Section 17 of the Act controls section 13 of the Act, under which a decree for eviction can be passed on the various grounds mentioned in section 13 (1) of the Act, "notwithstanding anything to the contrary in any other law". Mr. Sen contends that this non-obstante clause in section 13 (1) of the Act goes to show that in the absence of determination of first default by the court on the basis of the materials on record in the earlier ejectment suit, no relief can be said to have been granted by the court in the earlier suit against eviction and hence, the appellant is protected from eviction in the present ejectment suit as the default in payment of rent by the defendant in the present ejectment suit will be his first default. 3. THIS contention is resisted by Mir. Tagore, the, learned Advocate for the respondent. 4. AFTER hearing the submissions of Mr. Sen and Mr. Tagore, we are not inclined to accept the contention of Mr. Sen that 'there was no relief against eviction under the proviso to section 17 (4) of the act by the court in the earlier suit. First, the decree passed in the earlier suit was a decree passed by the Court on the basis of a petition of compromise. It was the duty of the court before recording the petition of compromise to ascertain that the terms were lawful. This is evident from the provision in Order 23 Rule 3 of the Code of Civil procedure. The court found the terms of the petition of compromise filed in the earlier ejectment suit as lawful and hence, passed a decree only for the costs of the earlier suit on the basis of the petition of compromise, which formed part of the decree. The earlier suit could not have ended merely on the filing of the petition of compromise in that suit. The passing of the decree for costs in that suit on the basis of the petition of compromise was an act of the court and the relief against eviction flowing from the terms of the petition of compromise, was also granted by the court. The passing of the decree for costs in that suit on the basis of the petition of compromise was an act of the court and the relief against eviction flowing from the terms of the petition of compromise, was also granted by the court. Secondly, the proviso to section 17 (4) of the Act before its amendment by the West Bengal Premises Tenancy (Amendment) Act, 1969, stood as follows :- ' "provided that a tenant shall not be entitled to any relief under this Sub-section if he has made default in payment of rent for four months within a petiod of twelve months. " by the Amending Act of 1969, the proviso' to section 17 (4) of the Act stands as follows at present :-"provided that a tenant shall not be entitled to any relief under this sub-section if:, having obtained such relief once in respect of the premises, he has again made default in the payment of rent for four months within a [period of twelve months. " 5. THE expression, "having obtained such relief once in respect of the premises", and the word "again" in between the words "he has", and "made default1" have been added by the Amending Act of 1969. The effect of this proviso after the amendment in 1. 969 is that a tenant shall not be entitled to relief against eviction for the second time after having obtained such relief once in respect of the premises by making deposit of rent as required by Sub-section (1), sub-section (2) or sub-section (2a) of section 17 of the Act. It is nowhere stated in the Amending Act of 1969 that the finding regarding relief is to be obtained from court and that relief cannot be decided by the parties by an agreement or compromise. The expression used is, "having obtained such relief once in respect of the premises". There is no expression as "having obtained such relief once from the court in respect of the premises. " In the circumstances, there is no bar on the parties themselves deciding to grant relief to the tenant in a suit in respect of the first default in payment of rent. This position cannot be altered in view of the non-obstante clause in section 13 (1) of the Act. 6. " In the circumstances, there is no bar on the parties themselves deciding to grant relief to the tenant in a suit in respect of the first default in payment of rent. This position cannot be altered in view of the non-obstante clause in section 13 (1) of the Act. 6. THIRDLY, the doctrine of estoppel has been extended by the Supreme court also to contracts, vide Sunderabai v. Devaji, A. I. R. 1954 s. C. 82. To allow the defendant-appellant now to take up the position that the default in payment of rent for which the earlier ejectment suit was filed was not a first default, in the absence of adjudication of first default by court on the basis of the materials in the record of the earlier suit, would be to encourage circuity of action which would be the last thing a court would ever countenance, after the respondent himself entered into the agreement with the appellant in the earlier suit and filed the petition of compromise in the earlier suit to the effect that default in payment of rent leading to the filing of the earlier suit was a case of first default for which the appellant was entitled to relief against eviction. Considering the above facts and circumstances, we find no merit in this appeal. 7. THE appeal is, accordingly, dismissed on contest with costs to the respondent. 8. ON the verbal prayer of the learned Advocate for the appellant, the appellant is granted time for nine months to deliver vacant possession of the suit-premises to the respondent on condition of his filing an undertaking in this court within fifteen days from this date for vacating the suit premises on expiry of nine months from this date and on the further condition of the appellant's depositing in the court below month by month, to the credit of the plaintiff-respondent, a sum equivalent to the rate of rent at Rs. 55/- per month, by the 15th of each succeeding English Calendar month, first of such deposit having to be made along with the arrears of rent, if any and if not already deposited in the court below, by the 13th of November, 1986. In default of filing of the undertaking or in default of the making of the deposits for any one month in accordance with this order, the decree for eviction will be executable at once. In default of filing of the undertaking or in default of the making of the deposits for any one month in accordance with this order, the decree for eviction will be executable at once. In the event the deposits are made as directed above, the plaintiff-respondent will be entitled to withdraw the same without furnishing any security. Let the lower court record be sent down to the court below, after drawing up of the decree, by a special messenger at the cost of the respondent. Appeal dismissed.