Research › Search › Judgment

Gujarat High Court · body

2003 DIGILAW 539 (GUJ)

HAJIBHAI KASAMBHAI v. DADAMIYA PIRBHAI RAFUGAR

2003-09-10

KUNDAN SINGH

body2003
KUNDAN SINGH, J. ( 1 ) THE respondent-plaintiff No. 1 filed a suit being HRP Suit No. 1250 of 1983 for recovery of possession of the suit premises on the grounds of arrears of rent, suitable acquirement by the tenant and non-user of the suit premises. The suit was decreed by a judgment and decree dated 25. 4. 1991 for recovery of possession of the suit premises or land after removing his hutment on or before 31. 7. 1991 and for recovery of Rs. 1080/- on account of arrears of standard rent at the rate of Rs. 30/-p. m. for three years immediately preceding the date of the suit, and with mesne profit at the rate of Rs. 30/-p. m. from the date of filing of the suit till recovery of the possession of the suit land/premises. The rest of the plaintiffs claim of money decree of standard rent beyond the period of aforesaid three years was rejected. The tenant being aggrieved by the judgment and decree passed by the trial Court preferred Civil Appeal No. 97 of 1991 before the Appellate Bench of the Small Causes Court at Ahmedabad. The appeal was also dismissed vide order dated 24. 4. 2002. Against the judgment and decree passed by the Courts below, this revision application has been preferred by the tenant. ( 2 ) HEARD the learned counsel for the petitioner. Nobody appeared on behalf of the respondents. ( 3 ) THE learned counsel for the petitioner submitted that original plaintiff No. 1 filed a suit No. 1266 of 1979 on 3. 4. 1979 for possession of the premises and for removal of kuchcha and pucca hutmentship treating the petitioner as trespasser with mesne profit from the date of the suit. A settlement was arrived at between the petitioner as well as the original landlord on 12. 1. 1983. On the basis of that settlement, a decree was passed whereby the petitioner was treated as a tenant of the property of 15 sq. yds. at the rate of Rs. 30/-p. m. and the petitioner was required to leave the remaining property admeasuring 29 sq. yds. That settlement has been filed and is on record as Ex. 43. Thereafter, a demand notice was made on 21. 2. 1983 for recovery of possession on the grounds of arrears of rent from 1. 3. yds. at the rate of Rs. 30/-p. m. and the petitioner was required to leave the remaining property admeasuring 29 sq. yds. That settlement has been filed and is on record as Ex. 43. Thereafter, a demand notice was made on 21. 2. 1983 for recovery of possession on the grounds of arrears of rent from 1. 3. 1969 to February, 1983, suitable acquirement by the tenant and non-user of the property by the tenant. The contention of the learned counsel for the petitioner is that the original plaintiff No. 1-landlord never treated the defendant-petitioner as tenant and treated him as a trespasser for the land admeasuring 44 sq. yds. and filed Suit No. 1266 of 1979 for removal of the encroachment made by the defendant-tenant. That suit was decided on the basis of the settlement signed by both the parties vide Ex. 43 and decree was passed as per the settlement. That settlement was acted upon by the parties and the petitioner returned the land admeasuring 29 sq. yds. to the landlord. As the decree was passed in respect of rest of the land admeasuring 29 sq. yds. for possession, the defendant-tenant was treated as a tenant of the land admeasuring 15 sq. yds. from the date of the decree i. e. 12. 1. 1983. As there is no term or condition in the settlement regarding the previous rent for the period prior to the settlement, the petitioner is not liable to pay any rent for the period prior to the settlement and no evidence can be examined or produced by any of the parties in this regard. As per the provisions of Section 91 of the Indian Evidence Act, where the terms of a contract, or of a grant, or any other disposition of property, have been reduced to the form a document, no evidence is required to be given in proof of such terms of such contract, grant or other disposition of property. If any evidence is adduced by any of the party in respect of any term, which is not reduced in writing, that evidence would be inadmissible under Section 91 of the Indian Evidence Act. The petitioner was treated by the landlord as a trespasser prior to the date of the settlement dated 12. 1. 1983. If any evidence is adduced by any of the party in respect of any term, which is not reduced in writing, that evidence would be inadmissible under Section 91 of the Indian Evidence Act. The petitioner was treated by the landlord as a trespasser prior to the date of the settlement dated 12. 1. 1983. The petitioner has been treated by way of the settlement and as per the terms of the decree dated 12. 1. 1983 as tenant of the portion of the land admeasuring 15 sq. yds. Had the petitioner been in arrears of rent of any period, the settlement must have been subject to the payment of that arrears of rent but there is no term or condition that the settlement would be effective only on payment of the mesne profit, damages or the rent prior to the date of the settlement. It is very unnatural that if the settlement has been arrived at and no term has been recorded in the settlement that the petitioner is required to pay any amount regarding the payment of arrears of rent, mesne profit or any damages, the parties would have ignored to mention such term in the settlement. ( 4 ) SECONDLY, the contention of the learned counsel for the petitioner is that by settlement of the plaintiffs suit, the petitioner has been declared as tenant from the date of the settlement for the portion of the property mentioned therein and the petitioner was required to give back the remaining portion of the land i. e. 29 sq. yds. In compliance of the settlement arrived at between the parties, the petitioner has returned and given the possession of that land to the landlord. Further by this settlement, if the landlord omitted any claim of past arrears of rent, mesne profit or compensation, he would be estopped from claiming such rent, mesne profit or compensation regarding the period prior to 12. 1. 1983 the date on which the settlement between the parties was arrived at. Therefore, the findings of the Courts below regarding the arrears of rent in respect of the period prior to 12. 1. 1983 are vitiated and are not sustainable in the eye of law. 1. 1983 the date on which the settlement between the parties was arrived at. Therefore, the findings of the Courts below regarding the arrears of rent in respect of the period prior to 12. 1. 1983 are vitiated and are not sustainable in the eye of law. In respect of this argument, the learned counsel for the petitioner relied upon the decision of the Honble Supreme Court in the case of Byram Pestonji Gariwala vs. Union Bank of India and Ors. reported in 1992 (1) SCC 31 wherein it has been held that compromise in writing and signed by the parties if not arrived at by fraud, misrepresentation or misunderstanding or mistake is binding on the parties and operates as res judicata as also estoppel between the parties and that the decree passed by the High Court on June 18, 1984 in terms of the compromise was a valid decree and it constituted res judicata. The Apex Court has confirmed the view taken earlier by the Court in the case of Shankar Sitaram Sontakke vs. Balkrishna Sitaram Sontakke reported in AIR 1954 SC 352 wherein it is held that a consent decree is binding upon the parties thereto as the decree passed by invitum. The compromise having been found not to be vitiated by fraud, misrepresentation, misunderstanding or mistake, the decree passed thereon has a binding force of res judicata. ( 5 ) ONCE the matter has already been settled on the basis of the settlement arrived at on 12. 1. 1983 it cannot be reopened and no suit is maintainable in view of the provisions of Order 23 Rule 3a of CPC. Rule 3a of Order 23 says that, where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the Court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as the subject matter of the suit. Rule 3a of Order 23, CPC provides that, no suit shall lie to set aside a decree on the ground that the compromise on which the decree is based was not lawful. Explanation V to Section 11 CPC provides that, any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purpose of this section, be deemed to have been refused. On the basis of the aforesaid provisions of law, the learned counsel for the petitioner submitted that the parties have not made the settlement subject to any term regarding the payment of rent, mesne profit or compensation for the period from 1. 3. 1969 to February, 1983. The landlords claim for the rent in respect of that period will be deemed to have been waived under Explanation V to Section 11 CPC. The principle of res judicata will be applicable and the landlord cannot raise such plea which was not taken at the time of the settlement and made in the settlement dated 12. 1. 1983. If the party waives any part of the relief or the Court does not grant or express anything in the decree in respect of any part of relief then it will be deemed to have been refused by the Court. That relief which was not claimed or not granted in the earlier suit, the second suit is barred for the said relief by the doctrine of res judicata. ( 6 ) THE learned counsel for the petitioner further submitted that during the pendency of the suit, the suit property was transferred by the original plaintiff No. 1 to plaintiffs No. 2 and 3 without assignment of rent to the subsequent landlords. Hence the present plaintiffs-respondents are barred and cannot claim the arrears of rent for the period prior to the date of transfer of the suit property in their name. If the property is transferred by the landlord to the subsequent landlord without assignment of rent, the subsequent landlord cannot recover the rent for the period prior to the date of the sale deed. Hence it cannot constitute arrears of rent for the subsequent landlord and no decree could have been passed by the Courts below for recovery of the amount of which the subsequent purchaser was not owner unless the assignment is made in that respect. Hence it cannot constitute arrears of rent for the subsequent landlord and no decree could have been passed by the Courts below for recovery of the amount of which the subsequent purchaser was not owner unless the assignment is made in that respect. In support of this argument, the learned counsel for the petitioner relied on the decision of the Honble Supreme Court in the case of N. M. Engineer and Ors. vs. Narendra Singh Virdi and Anr. reported in AIR 1995 SC 448 wherein it has been held that, where in a deed by which the right, title and interest in the property in dispute was released in favour of one of the co-owners, nowhere any assignment of rent was made, the assignee was not entitled to rent before the assignment and the amount due prior to the deed could not constitute arrears of rent as it was merely an actionable claim. Consequently, notice demanding rent sent before the relinquishment deed by the co-owner was not valid. It was more so when, there was dispute as to the amount of the standard rent and the interim rent fixed by the Small Causes Court was deposited by the tenant. Moreover, there was no arrears outstanding for the period of six months on the date of notice and thus the notice did not satisfy requirement of Section 12 (3) (a) as it could not be said that the tenant had neglected to pay the rent. In such a case, it was not open to the landlord to fall upon Section 12 (3) (b) of the Rent Act and it has been held in paragraph 23 that, "therefore, whatever might have been due prior to deed of lease dated 8. 6. 1967 could not constitute arrears of rent. It was mere an actionable claim. That being so, the notice does not satisfy the requirements of Section 12 (3) (a), more so, in this case, as stated above, the arrears at the rate of Rs. 87/- had been deposited. It is not open to the appellant to call upon Section 12 (3) (b)". ( 7 ) THE next contention of the learned counsel for the petitioner is that the petitioner has raised the question of standard rent in the reply within thirty days of the notice. The trial Court has not framed any issue. 87/- had been deposited. It is not open to the appellant to call upon Section 12 (3) (b)". ( 7 ) THE next contention of the learned counsel for the petitioner is that the petitioner has raised the question of standard rent in the reply within thirty days of the notice. The trial Court has not framed any issue. Under the law, the trial Court is required to frame issue as well as to give finding regarding such question of standard rent if it has been taken at the initial stage in the reply within thirty days of the notice. Even if it is taken at this stage, that the standard rent on the basis of the settlement is Rs. 30/-p. m. , the case would fall within the purview of Section 12 (3) (b ). The Courts below have committed a manifest error in treating the case under Section 12 (3) (a ). Hence, it is a jurisdictional error and vitiates the entire proceedings of the suit. In this respect, the petitioner moved an application before the Appellate Court for amendment of pleadings and for clarifying the question regarding the standard rent but the lower Appellate Court has rejected the same. In para 9 of the reply to the notice, it is mentioned that the tenant has kept the land of 15 sq. yds. from the father of the landlord in 1969 at the rate of Rs. 15/-p. m. . Thereafter, he paid an amount of Rs. 30/-p. m. According to the learned counsel for the petitioner, under what circumstances the amount was raised by the landlord and the petitioner had to accept that amount of rent and was paying the same are not brought on record and as such it can be said that the amount of Rs. 30/- being charged by the landlord for the same premises is not the standard rent. In support of this contention, the learned counsel for the petitioner relied on the decision of this Court dated 6. 10. 30/- being charged by the landlord for the same premises is not the standard rent. In support of this contention, the learned counsel for the petitioner relied on the decision of this Court dated 6. 10. 1977 in the case of Asanda Nainumal Mithaiwala vs. Haji Gulam Mohmad Haji Dada sole Trustee of Haji Gulam Mohamad Haji Dada Vakaf Trust and Ors, in Civil Revision Application No. 122 of 1972 wherein it is observed that, "in order to call a dispute as a dispute about the standard rent, no fixed terminology is laid down by law and nor any such rigid terms are fixed by the standards of common sense as ones to be insisted upon. If from the over all appreciation of the claims and contentions put forth by the contending parties, it appears that the rate demanded was challenged, it is to be assumed that there is a dispute about the standard rent". ( 8 ) IN this respect, the lower Appellate Court has considered the proposition of law, as stated above, that it amounts to raising of a dispute and the proposition of law is not disputed before the lower Appellate Court. The lower Appellate Court has rejected the plea taken by the petitioner in the following terms:-"now in para 9 of the reply Exh. 44 tenant has specifically averred that he does not know about the total area of the plaintiffs land but it is contended that tenant took 15 sq. yds. of land prior to 1969 at the monthly rent of Rs. 15/- and thereafter at Rs. 30/- per month and it is stated that tenant was paying rent regularly per month and the printed rent receipts are also issued in favour of the tenant and then it refers to the averment regarding diary. So from this para 9, there is no dispute regarding the rate of rent nor there is any dispute regarding the extent of property leased. " ( 9 ) I have considered the contentions raised by the learned counsel for the petitioner. ( 10 ) THE respondents have limited the suit only on the ground of arrears of rent before the lower appellate Court and no other ground was argued. ( 11 ) SO far as the arrears of rent is concerned, the settlement has been arrived at between the parties on 12. 1. ( 10 ) THE respondents have limited the suit only on the ground of arrears of rent before the lower appellate Court and no other ground was argued. ( 11 ) SO far as the arrears of rent is concerned, the settlement has been arrived at between the parties on 12. 1. 1983 in the suit proceedings of 1266 of 1979, wherein the petitioner was treated as a tenant from 12. 1. 1983 and as per the decree of the suit also the petitioner was treated as a tenant from 12. 1. 1983. In the settlement there is no term regarding the tenancy of the petitioner for the land in dispute as the suit was filed for recovery of the entire land admeasuring 44 sq. yds. . As per the settlement, the petitioner was required to retain only 15 sq. yds. of land and he was required to return the remaining portion of land admeasuring 29 sq. yds. to the landlord. The settlement was acted upon and as per the terms of the settlement, the petitioner had returned the remaining portion of land admeasuring 29 sq. yds. to the landlord. The petitioner was being treated as a trespasser and illegal encroacher of the land and was not treated by the landlord as a tenant of the whole or any part of the land. He was only recognised and treated as a tenant of the part of the land i. e. 15 sq. yds. There is no term in the settlement that the petitioner would also be liable to pay arrears of rent from 1. 3. 1969 to February, 1983 or mesne profit or damages and it does not appeal to the Court that the landlord would have forgotten to arrive at the settlement without such terms and it is not believable that the landlord without taking anything more or giving something or without claiming any amount regarding arrears of rent, mesne profit or damages for the period from 1. 3. 1969 to February, 1983 would have arrived at such settlement. When the payment of arrears of rent or mesne profit or damages is not the subject or term of the settlement, the parties cannot go beyond that settlement nor the parties can be permitted to lead any evidence in that respect that the petitioner was a tenant since 1. 3. 1969 to February, 1983 would have arrived at such settlement. When the payment of arrears of rent or mesne profit or damages is not the subject or term of the settlement, the parties cannot go beyond that settlement nor the parties can be permitted to lead any evidence in that respect that the petitioner was a tenant since 1. 3. 1969 and he was liable for the payment of arrears of rent from 1. 3. 1969. ( 12 ) IN view of the provisions of Sections 91 and 92 of the Indian Evidence Act, if any term is not mentioned in the settlement or compromise, no evidence can be led to add or vary the terms of compromise or settlement which is already reduced into writing. As per Section 115 of the Indian Evidence Act, when one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing. ( 13 ) AS the plaintiff has already entered into the settlement and that settlement has already been signed by him and on that basis a decree has been passed, the landlord is estopped from raising and he cannot raise any claim regarding the arrears of rent from 1. 3. 1969 and it cannot be permitted that he having been entered into the settlement, can claim such amount which was not made subject of the settlement. As such, the respondents-plaintiffs are barred by the principle of estoppel to raise their claim in respect of the arrears of rent from 1. 3. 1969 to February, 1983. The Courts below have not considered the legal sanctity of the provisions of Section 115 of the Indian Evidence Act. If the landlord has not made any claim in the settlement regarding the arrears of rent, damages or mesne profit for the period from 1. 3. 1969 to 12. 1. 1983, it will be deemed that he has omitted such claim and he will be barred by the principles of res judicata under Explanation V to Section 11, CPC. If the landlord has not made any claim in the settlement regarding the arrears of rent, damages or mesne profit for the period from 1. 3. 1969 to 12. 1. 1983, it will be deemed that he has omitted such claim and he will be barred by the principles of res judicata under Explanation V to Section 11, CPC. Moreover, the matter has already been settled between the parties and on the basis of the settlement, a decree has been passed, the suit regarding arrears of rent for the period from 1. 3. 1969 till the settlement dated 12. 1. 1983 is not maintainable in view of the provisions of Rule 3a of Order 53, CPC. ( 14 ) AND also on the basis of the transfer of property by plaintiff No. 1 to plaintiff Nos. 2 and 3 without assignment of rent, the subsequent landlord is not entitled to recover the rent of the premises for the period prior to the date of sale deed as held by the Apex Court in the aforesaid case. On careful consideration, I find that the Courts below have committed grave error in arriving at the conclusion that the respondents are entitled to recover arrears of rent as ordered by the trial Court without considering the legal position of the notice, entitlement of recovery of rent of the landlords respondents and the statutory provisions, as stated above which disentitle the respondents from recovering the amount of rent as allowed by the trial Court. ( 15 ) HENCE, this revision application deserves to be allowed and accordingly the same is allowed and the judgment and decree passed by the Courts below are hereby set aside. The petitioner would pay regularly the monthly amount of rent and would be liable to pay the amount of rent from the date of sale deed executed by plaintiff No. 1-original landlord to plaintiffs No. 2 and 3 to subsequent landlords subject to adjustment of the payment, if any, made by the petitioner. Rule is made absolute. .