Shanta Debi Verma v. Durga Rani Ghosh — 1998 DIGILAW 46 (CAL)

JUDGMENT Bhaskar Bhattacharya, J. 1. This revisional application under Article 227 of the Constitution or India is at the instance of a judgment debtor in a suit for eviction on the ground of default and is directed against order dated 17.9.1994 passed by the learned Additional District Judge, 7th Court, Alipore in Civil Revision Case No.112 of 1994 thereby affirming Order No. 67 dated 4.3.1994 passed by the Munsif, 2nd Court, Sealdah in Misc. Case No.19 of 1994. 2. The opposite party herein brought against the petitioner in the 1st Court of Munsif, Sealdah a suit being Title Suit No.57 of 1976 on the ground of default in payment of rent. The said suit was subsequently transferred to the Additional Court of Munsif at Sealdah and was renumbered as Title Suit No.22 of 1981. On 14.9.1981 the said suit was decreed on compromise on the basis of petition for compromise tiled by the parties and the same was made a part of decree. The terms of the compromise as embodied in the decree is quoted below:- "(a) That the suit would be decreed on compromise with cost. (b) That on accounting it appears that the plaintiff will get a sum of Rs. 21,800/- (Rupees twenty one thousand eight hundred only) from the defendant towards arrears of rent in respect of the suit property in the above suit upto the month of August 1981, out of which the defendant has this day paid to the plaintiff a sum of Rs. 5,000/- (Rupees five thousand only), the receipt whereof the plaintiff acknowledges hereby and also by a separate receipt given herein. (c) That the defendant would go on paying to the plaintiff the current rent of Rs. 200/- (Rupees two hundred only) as per English Calendar month In respect of the suit property for the months from September 1981 onwards within the fifteenth day of the following month for which it becomes due. (d) That the defendant would pay the balance of the arrears mentioned in Clause (b) above being a sum of Rs. 16,800/- (Rupees sixteen thousand eight hundred only) to the plaintiff at an installment of Rs. 250/- (Rupees two hundred fifty only) per quarter commencing from September 1981). (d) That the defendant would pay the balance of the arrears mentioned in Clause (b) above being a sum of Rs. 16,800/- (Rupees sixteen thousand eight hundred only) to the plaintiff at an installment of Rs. 250/- (Rupees two hundred fifty only) per quarter commencing from September 1981). (e) That so long the defendant will be paying the rent and the installment as stated above, the plaintiff would not be entitled to put the instant decree into and evict the defendant from the property and realize the cost thereof. (f) That any two defaults in payment of the current rent and the installment mentioned above on the part of the defendant would enable the plaintiff to put the instant decree into execution and evict the defendant from the property and realize the cost thereof. (g) That on the defendant's paying of the current rent and the arrears of rent as stipulated above, with the full payment of the said arrears within the period stipulated hereinabove, the instant decree would become a nullity. (h) That this petition of compromise shall form a part of the decree. (i) That each term of this petition of compromise shall be a consideration for the others." 3. There is no dispute that opposite party received the installments towards arrears upto the quarter of September 1982 covering the period of September to November 1982 and also current amount equivalent to rent upto the month of September 1982. There is also no gainsaying the fact that the opposite party refused to accept current amount equivalent to rent for the month of October 1982 sent to her by postal money order and further refused to accept the quarterly installment for December 1982 covering the period of December 1982 to February 1983 sent to her by postal money order. 4. In view of the aforesaid refusals, the petitioner started depositing the amount equivalent to rent from tie month of October 1982 in the Office of the Rent Controller. Calcutta and has been depositing the said amount month by month. So far the installments towards arrears are concerned, installment for the month of December 1982 covering the period of December 1982 to February 1983 having been refused, the petitioner deposited the same in Court vide Challan No. 21905(V) dated 6.12.1982. Calcutta and has been depositing the said amount month by month. So far the installments towards arrears are concerned, installment for the month of December 1982 covering the period of December 1982 to February 1983 having been refused, the petitioner deposited the same in Court vide Challan No. 21905(V) dated 6.12.1982. According to the petitioner, the learned Trial Judge having refused to accept subsequent installment the petitioner went on sending those installments to the opposite party by postal money orders but the latter refused to accept those money orders on each occasion. 5. On the allegation that the petitioner has failed to comply with the terms of the compromise decree, the opposite party put the compromise decree into execution thereby giving rise to Title Execution Case No.14 of 1983. The petitioner filed an application under Section 47 of the Code of Civil procedure thereby challenging the legality and the validity of the execution case and the said application under Section 47 gave rise to Misc. Case No.23 of 1983. Subsequently, the aforesaid Title Execution Case had been transferred to the 2nd Court of Munsif, Sealdah and was renumbered as Title Execution Case No.73 of 1983 and the aforesaid Misc. Case No.23 of 1983 was renumbered as Misc. Case No.29 of 1984. 6. The learned Executing Court by Order No.18 dated 24.8.1985 dismissed the aforesaid execution case and the present petitioner was directed to pay all arrears installment at a time by 14.9.1985. The aforesaid direction was duly complied with by the petitioner on 13.9.1985. Thereafter the opposite party moved this Court in revision under Section 115 of the Code of Civil Procedure which was ultimately disposed of by Hon'ble Mr. Justice M.N. Roy in Civil Order No.1993 of 1986 whereby the order No.18 dated 24.8.1985 was set aside and the learned Executing Court was directed to adjudicate the dispute afresh after taking into consideration the relevant provisions of law. 7. Thereafter parties led evidence and the learned Executing Court by Order 67 dated 4.3.1994 rejected the application under Section 47 of the Code of Civil Procedure filed by the petitioner with a finding that it did not appear from the documents that the petitioner had paid installments between the period of 13.10.1982 and 31.12.1984 in any Court or Rent Controller on refusal by the opposite party. According to the learned Executing Court, non-deposit of the aforesaid amount after refusal by the opposite party was a clear violation of compromise petition it will not be out of place to mention here that in the said order the learned Executing Court specifically found that the petitioner sent arrears rent by money orders but those were refused by the opposite party from 13.10.1982 to 31.12.1984 for Rs.250/-. 8. Being dissatisfied with the aforesaid order passed by the learned Executing Court the petitioner filed a revisional application under Section 115(A) of the Code of Civil Procedure before the learned District Judge, Alipore which was ultimately transferred to the 7th Court of Additional District Judge, Alipore and the learned Additional District Judge, by the order impugned dismissed the said revisional application thereby holding that as the learned Executing Court was not satisfied with regard to the deposits for the period from 13.10.1982 to 31.12.1984 and the validity of those were also in dispute, he did not find any reason to interfere with the said order within the limited scope of Section 115(A) of the Code of Civil Procedure. 9. Mr. S.P. Roy Chowdhury, the learned Senior Advocate appearing in support of the instant revisional application under Article 227 of the Constitution of India has described the orders passed by the Courts below as perverse. According to Mr. Roy Chowdhury there being specific finding of the learned Executing Court that his client had sent the installments from the period of October 1982 to December 1984 by money order and on each occasion the same having been refused by the opposite party it cannot be said that his client had net complied with the terms of compromise. Mr. Roy Chowdhury further contends that as regards amount equivalent to current rent, the learned Executing Court itself has found that from the month of October 1982 his client has been depositing the same with the Rent Controller as the opposite party refused to accept the amount for the month of October 1982. Mr. Roy Chowdhury further contends that in the compromise decree not only a duty has been cast upon to his client to pay arrears of rent as well as current amount but at the same time the opposite party is under an obligation to accept such amount if sent in terms of the said agreement. Mr. Roy Chowdhury further contends that in the compromise decree not only a duty has been cast upon to his client to pay arrears of rent as well as current amount but at the same time the opposite party is under an obligation to accept such amount if sent in terms of the said agreement. The opposite party without any reason having refused to accept such amount, she cannot take advantage of her own wrong. 10. Mr. S. Chowdhury, the learned Counsel appearing on behalf of the opposite party/decree-holder on the other hand has supported the orders passed by the learned Courts below. Mr. Chowdhury fairly concedes that in the fact of the case he was not in a position to argue that his client did not refuse the amount tendered by the petitioner in terms of the agreement. However, Mr. Chowdhury contends that even if his client refused to accept such amount, it was the duty of the petitioner to deposit those amount in Court in terms of Order 21 Rule 1 of the Code of Civil Procedure. Mr. Chowdhury contends that since other modes of depositing the amount specified in the compromise decree were available, simply because his client has refused to accept the same by money order that could not prevent the petitioner from complying with the said order by resorting to the other modes. Taking analogy from Section 21 of the West Bengal Premises Tenancy Act, Mr. Chowdhury contends that even if a landlord refuses to accept rent sent by money order, a tenant is under obligation to deposit the rent with the. Rent Controller and if no such deposit is made, he will be termed as a defaulter notwithstanding the fact that the landlord refused to accept the rent therefore, according to Mr. Chowdhury, in spite of refusal by his client it was the duty of the petitioner to deposit the installments for all those months in the Court. Mr. Chowdhury further contends that in view of the decree passed, the petitioner could not be said to be a tenant within the meaning of West Bengal Premises Tenancy Ace and as such deposits made with the Rent Controller were also invalid and it was the duty of the petitioner to deposit even the amount equivalent to current rent in the Court in terms of Order 21 Rule 1 of the Code of Civil Procedure. 11. 11. After hearing the learned advocates for the parties and after going through the materials on record, in my opinion, the learned Courts below acted illegally and with material irregularity in holding that the petitioner had not complied with the terms of the compromise decree and as such was liable to be evicted by not applying the relevant provision of law. 12. There is no dispute that in the terms of compromise the mode of making payment has not been mentioned. In this connection it will be relevant to refer to the provision contained in Section 38 of the Contract Act which is detailed below:- "Effect of refusal to accept offer of performance where a promisor his made an offer of performance to the promise, and the offer has not been accepted, the promisor is not responsible for non-performance, nor does he thereby lose his rights under the contract. Every such offer must fulfill the following conditions:- (1) It must be unconditional. (2) It must be made at a proper time and place, and under such circumstances that the person to whom it is made may have a reasonable opportunity of ascertaining that the person by whom it is made is able and willing there and then to do the whole of what be is bound by his promise to do. (3) If the offer is an offer to deliver anything to the promise, the promise must have a reasonable opportunity of seeing that the thing offered is the thing which the promisor is bound by his promise to deliver. An order to one of several joint promises has the same legal consequences as an offer to all of them." 13. In this case, as rightly pointed out by Mr. Roy Chowdhury appearing on behalf of the petitioner, there was an obligation on the part of the apposite party to accept the amount if tendered in terms of the agreement. There is no dispute that the amount was sent by money order and that the same was refused. There is also no dispute that the petitioner further sent amount of installments in spite of refusal on the part of the opposite party, for each quarter by money order from October 1982 to December 1984 and an each occasion the same was refused. There is also no dispute that the petitioner further sent amount of installments in spite of refusal on the part of the opposite party, for each quarter by money order from October 1982 to December 1984 and an each occasion the same was refused. The learned Courts below have held that there has been violation of the compromise decree because after such refusal there is no document to show that those have been deposited in Court except far the month of October 1982. In my opinion the principle enumerated in Section 21 of the West Bengal Premises Tenancy Act cannot be made applicable to the instant case. According to Section 21 of the aforesaid Act a duty has been cast by a statute upon a tenant to deposit rent with the Rent Controller even if the amount is refused by land lard when the same is sent by money order. But in the instant case as per compromise decree the moment decree has been passed, the petitioner ceased to be a tenant and as such apart from complying with the terms of compromise she had no obligation to deposit any amount before Rent Controller although she has deposited for abundant precaution. I cannot agree with the submission of Mr. Chowdhury that even if his client had refused to accept money tendered to her by money order. It was the duty of the petitioner to deposit the money again by other modes provided in Order 21 Rule 1 of the Code of Civil Procedure. 14. Order 21 Rule 1 prescribes made of payment under a money decree. In this connection reference may be made to Order 21 Rule 1(5), wherein it has been stated that if the decree balder refuses to accept money sent by postal money order in that case interest shall cease to run from the date on which the money was tendered. The aforesaid provision incorporated in the Code of Civil Procedure clearly indicates that the legislature adopted the principle enunciated in Section 38 of the Contract Act, and even in case of money decree although the liability to pay the decreetal amount will remain but the judgment-debtor cannot be penalized far refusal of the decree holder. The aforesaid provision incorporated in the Code of Civil Procedure clearly indicates that the legislature adopted the principle enunciated in Section 38 of the Contract Act, and even in case of money decree although the liability to pay the decreetal amount will remain but the judgment-debtor cannot be penalized far refusal of the decree holder. In the instant case the decree was not a decree far money as contemplated in Order 21 Rule 1 of the Code but in essence a decree far eviction with a further condition that in case of payment of the amount mentioned therein within the time stipulated, the said decree will be a nullity. The question is whether the petitioner has complied with the terms of the agreement. In view of the clear provision contained in Section 38 of the Contract Act it cannot be said by any stretch of imagination that the petitioner had failed to comply with the terms of the contract thereby losing her right under the same. Therefore, in my opinion, no right accrued in favour of the opposite to enforce the compromise decree and as such the learned Courts below acted in total ignorance of Section 38 of the Contract Act in holding that there has been violation of the terms of the compromise decree and in deprieving the petitioner of the right accrued in her favour for no fault on her part. Thus, in my opinion, the order impugned should not be allowed to stand as the same would occasion failure of justice. The petitioner having done his part of the contract as mentioned in the compromise decree no right accrued in favour of the opposite party to execute the decree. The opposite party should not be permitted to take advantage of her own wrong. The petition under Section 47 of the Code of Civil Procedure is thus allowed.