Research › Search › Judgment

Himachal Pradesh High Court · body

2002 DIGILAW 264 (HP)

Jayant Kumar v. Darshan Singh

2002-09-16

M.R.VERMA

body2002
JUDGMENT : M.R. Verma, J. This second appeal under section 100 of the Code of Civil Procedure has been preferred by the appellant/plaintiff (thereafter referred to as 'the appellant') against the judgment and decree dated 2.11.1998 passed by the leaned District Judge, Una in civil appeal No. 16/96, whereby the judgment and decree dated 25.11.1995 passed by the learned Sub Judge 1st Class, Amb passed in civil suit No. 13/95 has been affirmed on 25.11.1995. 2. Brief facts leading to the presentation of this appeal are that the appellant instituted a suit against one Dhani Ram (since deceased and now represented by his legal representatives respondents/defendants No. 1 to 5 and respondent-defendant Sham Kumar (hereafter referred to as 'the respondents') for declaration to the effect that the land measuring 41.76 Sqr. Decimetres comprising in khewat Khatauni No. 255 min/423, khasra No. 1156 situated in Up-mahal Dev Nagar, village Gagret, Tehsil Amb, District Una is in possession of the appellant as lessee on payment of annual rent and the entries made by the settlement officer vide order dated 19.11.1994 at the back of the plaintiff are wrong, illegal, void, baseless, unauthorized made without jurisdiction, contrary to the actual position at the spot and ineffective against the rights of the appellant and for permanent injunction as a consequential relief restraining the respondents from interfering in any manner whatsoever, in the peaceful possession and smooth running of business by the appellant, taking possession by use of force, demolishing the structures and causing any damage to the walls/roofs etc. of the structures. The case of the appellant as made out in the plaint is that deceased defendant Dhani Ram leased/rented out the suit land to him and one Shiv Narain Pandey on permanent basis for construction of shop-cum-veranda-cum-residence on annual rent of Rs. 360/- in the month of June, 1977. Therefore, with the consent of the said deceased the appellant and Narian Pandey raised Kacha Kharposh room along with two verandas over the suit land as denoted by letters ABCD in the site plan attached with the plaint, entirely at their expense by spending Rs. 1500/-. 360/- in the month of June, 1977. Therefore, with the consent of the said deceased the appellant and Narian Pandey raised Kacha Kharposh room along with two verandas over the suit land as denoted by letters ABCD in the site plan attached with the plaint, entirely at their expense by spending Rs. 1500/-. In the ear 1979 said Narian Pandey left the premises after settlement of the expenses and accounts and thereafter appellant remained in exclusive possession of the suit premises as tenant on payment of annual rent to the deceased and had been getting premises renovated at his expenses and has also got electricity meter installed therein in his own name with the consent of the deceased and is running a petty Tea shop and is residing in the premises in the suit. In July, 1986, the deceased increased the rent of the premises from Rs. 360/-to Rs. 600/- per annum which the appellant had paid unto June, 1992 and is willing to pay the remaining rent which was due at the time of institution of the suit. During the settlement operation, the deceased Dhani Ram admitted receiving of annual rent of Rs. 600/- before the settlement authorities in respect of the suit land and got the appellant recorded as a tenant. In August, 1991, appellant had gone to Calcutta leaving behind his wife to manage his business and on her demanding the price of Biddis and Match Boxes from the deceased he became furious and besides abusing the wife of the appellant damaged the wall of the shop. The matter was reported to the police. Thereafter, the deceased filed a false, baseless rent petition just to unnecessarily harass the appellant. The deceased also instituted a false and baseless suit seeking permanent injunction restraining the appellant from raising any construction over the suit land and started extending illegal of interference with the possession/business of the appellant and to demolish suit premises and thus oust the appellant there from forcibly. This led the appellant to institute CS No. 96/92 against the deceased defendant & Ors. Along with the application for temporary injunction wherein ad-interim it injunction was granted against the deceased defendant & ors., At a later stage, on compromise having been arrived at between the parties both the suits were withdrawn on 30.8.1992. This led the appellant to institute CS No. 96/92 against the deceased defendant & Ors. Along with the application for temporary injunction wherein ad-interim it injunction was granted against the deceased defendant & ors., At a later stage, on compromise having been arrived at between the parties both the suits were withdrawn on 30.8.1992. Thereafter, the deceased instituted an eviction petition before the Rent Controller, Amb, which was at a later stage withdrawn. Thereafter, the respondents again started threatening to interfere with the possession, enjoyment and user of the suit land and business of the appellant and to demolish the premises. The plaintiff had to institute a suit for injunction being C.S.No. 121/94 and during the pendency thereof, the deceased by misrepresenting the facts and in collusion with the settlement staff wrongly and illegally sold the suit property to respondent Sham Kumar vide sale deed dated 7.6.1994 for the construction for a sum of Rs. 5000/-. The appellant then moved an application under Order 1 Rule 10 C.P.C. to implead respondent Sham Kumar in the pending suit. In the meanwhile, defendant Sham Kumar who is a rich and influential person in connivance with the settlement authorities and at the back of the appellant procured order dated 19.11.1994 from the settlement officer and as a consequence entries were made in the remarks column of the khatauni bandobast which remarks are wrong, illegal, void, baseless, unauthorized made, without jurisdiction and not binding on the appellant. Emboldened by the aforesaid wrong and illegal order and entries in the remarks column, the respondent started threatening to demolish the suit premises with a view to oust the appellant forcibly. Hence, the present suit. 3. The respondent contested the suit. In the written statement they raised preliminary objections that the suit was not maintainable in its present form, the appellant is stopped by his act and conduct to institute the suit and the civil court has no jurisdiction to try the suit. On merits, it was claimed that the appellant being a non-agriculturist and a resident of other state no tenancy in his favour could be created, therefore, the claim to the contrary is incorrect. On merits, it was claimed that the appellant being a non-agriculturist and a resident of other state no tenancy in his favour could be created, therefore, the claim to the contrary is incorrect. It is averred that the structures in suit were raised by the deceased and he used to repair the same and ultimately sold the suit property of respondent Sham Kumar and the appellant has no concern with the suit properties and there is no relationship of landlord and tenant between the parties. The appellant was serving in Mittal Udhyog but was shunted out from the employment in the year 1985 and thereafter on the request of the appellant the deceased rented the promises to him , at monthly rent Rs. 600/-. The appellant, however, failed to pay the rent regarding which petition is pending. The plaintiff denied the title of the landlord, therefore, the deceased had withdrawn the petition with liberty to file afresh. It is further claimed that the appellant is a quarrelsome person and has not paid the rent to the deceased which the deceased was entitled to recover till the date of sale of the suit property in favour of respondent No.6 Since there is no relationship of landlord and tenant between appellant and respondent Sham Kumar, therefore, respondent Sham Kumar is entitled to recover the damages on account of unauthorized use and occupation from the appellant. It is also claimed that the appellant has suppressed and withheld the true facts and has not come to the court with clean hands inasmuch as, in all the suits instituted by the appellant he admitted the construction of the disputed premises by the deceased. Rest of the allegations in the plaint has been denied. 4. Appellant filed replication, wherein the grounds of defence taken in the written statement were denied and the claim as made out in the plaint was reasserted and reaffirmed. 5. Before framing any issue in the suit, the suit was referred to Lok Adalat for amicable settlement. Rest of the allegations in the plaint has been denied. 4. Appellant filed replication, wherein the grounds of defence taken in the written statement were denied and the claim as made out in the plaint was reasserted and reaffirmed. 5. Before framing any issue in the suit, the suit was referred to Lok Adalat for amicable settlement. On 25.11.1995 the matter was compromised as per the statements of the appellant and respondent Sham Kumar and counsel for him and the deceased and as a consequence, a compromise decree was passed by the trial Court to the effect that the appellant would remain possession of the suit properties without paying any rent till 25th of November, 1997 on which date he would hand over the vacant possession and in the event of his failure to do so liability to pay the rent till the aforesaid date would accrue. 6. Being aggrieved appellant preferred an appeal in the court of learned District Judge, Una, which was dismissed by the impugned judgment and decree. Hence, this appeal. 7. I have heard learned counsel for the parties and have also gone through the record. 8. It may be pointed out that initially this appeal was admitted on 3.6.1999 but without framing any substantial question of law. After hearing the parties, the lapse was cured vide order dated 12.8.2002 when the following substantial questions of law were formulated:- 1) Whether the statement of the plaintiff and the defendant No.2 along with the counsel of defendant No.2 was in accordance with the provision of Order 23, Rule 3 C.P.C. and could be made basis for passing the judgment and decree? 2) Whether the H.P. Urban Rent Control Act specifically bars the jurisdiction and powers of the civil court to hear petitions or order eviction of tenants in a civil suit simplicitor for declaration with the alternate relief of permanent injunction? Substantial question of law No.1 9. It was contended by the learned counsel for the appellant that a compromise to be valid for the purpose of Order 23 Rule 3 CPC, must be reduced into writing and must be signed by the parties. However, this 4 requirement-of a valid compromise has not been complied with in this case, A therefore, the impugned judgment and decree passed on such compromise, is a nullity. 10. However, this 4 requirement-of a valid compromise has not been complied with in this case, A therefore, the impugned judgment and decree passed on such compromise, is a nullity. 10. On the other hand, learned counsel for the respondents had 1 contended that the compromise is based on the duly recorded statements of the parties and signed by the parties and the counsel, therefore, the requirements of the compromise being in writing and duly signed by the parties and the counsel, therefore, the requirements of the compromise being in writing and duly signed by the parties, stand complied with in the present case and the compromise, therefore, cannot be said to be a nullity and the compromise decree is binding on the parties. 11. A perusal of the record reveals that the compromise in question has been reduced into writing in the form of the statements of appellant, Sham Kumar, respondent No.6 and the counsel representing the respondents before the trial court. Thus, evidently, the requirements of the compromise being in writing and signed by the parties are duly complied with and a judgment and decree on the basis thereof, could be legally passed. (see Krishan Mohan Singh v. Sri Chand Gupta and others (1994 (1) Civil Court Cases 232). Substantial Question of law No.2 12. It was contended by the learned counsel for the appellant that the impugned decree, even if based on compromise, is a nullity because the jurisdiction of the Civil Court to pass such a decree is barred under section 14 of the H.P. Urban Rent Control Act, 1987 (hereafter referred to as 'the Act') and, therefore, the decree is without jurisdiction and deserves to be set aside. 13. On the other hand, learned counsel for the respondents I contended that the decree has been passed in a suit instituted by the appellant himself and is based not only on his consent but also on the terms and conditions as suited the plaintiff and, thus, being a consent decree, the civil court had the jurisdiction to pass it and it cannot be held to be invalid or without jurisdiction. 14. Relevant part of section 14 of the Act reads as under: "14. Eviction of tenants. 14. Relevant part of section 14 of the Act reads as under: "14. Eviction of tenants. (1) A tenant in possession of a building or rented land shall not be evicted there from in execution of a decree passed before or after the commencement of this Act or otherwise and whether before or after the termination of the tenancy, except in accordance with the provisions of this Act." 15. It is clear on a bare reading of the aforesaid provisions that these provisions do not create any bar regarding institution of a civil suit, but merely debars the execution of a decree passed before or after the commencement of the Act or otherwise except in accordance with the provisions of the Act. 16. The present suit had been instituted by the appellant. It clearly emerges from the pleadings that earlier the plaintiff was inducted as a tenant by Dhani Ram, predecessor in interest of R-1 to R-5 over the premises in suit on payment of rent. Subsequently, said Dhani Ram sold the property to R-6 Shyam Kumar. Merely because the premises stood transferred, will not terminate the tenancy in favour of the appellant. It is clear from the pleadings of the parties and other material placed on record that relationship of 7 landlord and tenant exist between the parties. In the suit the appellant has prayed for a decree for declaration that he is in possession of the premises as a tenant and as a consequential relief, the respondents be restrained from interfering in his possession, user, enjoyment and smooth running of his business in any manner. Such a suit could be instituted by the appellant only before a civil court. Therefore, it cannot be said that the Civil Court had no jurisdiction to entertain and try the suit. The suit, however, was. not tried on merits, but was compromised by the parties as per the compromise arrived at between them and as a consequence, the impugned decree has been passed. The provisions of section 14 of the Act as already noticed hereinabove, do not bar the jurisdiction of the civil court to entertain such a suit and dispose it of as per the compromise between the parties. The provisions of section 14 of the Act as already noticed hereinabove, do not bar the jurisdiction of the civil court to entertain such a suit and dispose it of as per the compromise between the parties. Such a decree may be rendered unexcitable by virtue of the provisions of section 14 of the Act but the decree cannot be said to have been passed without jurisdiction and a nullity. (See Hari Chand v. Ramesh Kumar (19977 (1) RLR 149). 17. In view of the above findings, the impugned judgment and decree do not call for any interference by this court and as a result, this appeal is dismissed. Parties are, however, left to bear their own costs.