Research › Search › Judgment

Rajasthan High Court · body

2003 DIGILAW 769 (RAJ)

Babu Lal Chaudhary S/o Bhura Ram v. Bihari Lal Saini S/o Syoji Ram Saini

2003-05-20

S.K.KESHOTE

body2003
JUDGMENT 1. - This revision petition is directed against the order dated 11.7.2000 of the learned Additional Civil Judge (Jr.Div.) West, Jaipur City in Civil Suit No. 292/99. Under this order the application filed by the defendant No. 2-petitioner under Order 23, Rule 3 of the CPC has been dismissed. 2. The facts of the case are that the plaintiff-respondent No. 1 filed a suit on 8.7.1999 against the defendants for permanent injunction with the averments that he took the shop in dispute on oral tenancy from one Bhojraj Singh, the father of defendant No. 1(herein the respondent No. 2) on 11.1.1987 on rent of Rs. 100/- per month. After the death of Bhojraj the rent was increased to Rs. 150/- per month. Plaintiff-respondent No. 1 was continuously paying the rent. The rent is stated to have been paid upto June, 1999. However, the rent offered to the landlord of the month of July, 1999, he refused to accept it and asked him to vacate the suit premises. Thus, in this factual backdrop the suit has been filed for permanent injunction restraining the defendant landlord from evicting the plaintiff-respondent No. 1 from the suit premises without due process of law. 3. Along with the suit, an application for temporary injunction has also been filed. 4. The suit has been contested by the landlord. The defence has been taken that the shop was let out by Bhoj Raj Singh on the monthly rent of Rs. 400/- per month instead of Rs. 100/- per month and after the death of Bhojran (sic Bhojraj Singh) the tenant-plaintiff never paid the rent to the defendant No. 2-petitioner. On 11.3.1994 the disputed shop was purchased by the defendant No. 2-petitioner. On 6.9.1999 the parties to the suit entered into a compromise by which the plaintiff-respondent No. 1 had agreed to vacate the shop in dispute after taking Rs. 50,000/- and accordingly the defendant No. 2-petitioner paid him Rs. 50,000/-. The plaintiff-respondent No. 1 handed over the vacant possession of the disputed shop to the defendant No. 2- petitioner, the owner of the disputed shop, on that very day. The terms and conditions of the compromise were reduced in writing on stamp-paper executed in the presence of the witnesses. In this compromise the plaintiff-respondent No. 1 has also agreed that he will withdraw the suit. The terms and conditions of the compromise were reduced in writing on stamp-paper executed in the presence of the witnesses. In this compromise the plaintiff-respondent No. 1 has also agreed that he will withdraw the suit. When the plaintiff-respondent No. 1 not withdrew the suit as per the terms and conditions of the compromise, the defendant No. 2-petitioner filed an application under Order 23, Rule 3 of the CPC duly supported by the affidavit. The prayer has been made therein that the suit be decided in terms of the compromise and a decree be passed accordingly. Reply to this application was filed by the plaintiff-respondent No. 1. This application was rejected under the impugned order. Thus, this revision petition. 5. The learned trial Court rejected this application on the ground that the plaintiff-respondent No. 1 has not received Rs. 50,000/-. The compromise was executed on stamp paper of Rs. 100/-. There are two witnesses to this document. It is also duly notarised by the Notary Public. As per this compromise Rs. 50,000/- have been paid to the plaintiff-respondent No. 1 by the defendant No. 2-petitioner. There is a recital in this compromise that the plaintiff-respondent No. 1 has received Rs. 50,000/-. The mere denial of the receipt of Rs. 50,000/- in the presence of the contents of the document, is not sufficient to non suit the defendant No. 2-petitioner. The learned trial Court has not considered and apperciated the provisions of Order 23, Rule 3 of the CPC in correct perspective. When a dispute has been raised, questioning the contents of the compromise an enquiry is to be made and where ultimately on appreciation of the evidence produced by the parties the trial Court satisfied that this compromise was not entered into, the application could have been dismissed but not in this cursory and slipshold manner as what it has been done under the impugned order. The document is duly notarised and attested by two witnesses, should not have been discarded this way merely on the ground that the other side has denied the receipt of Rs. 50,000/-. The learned trial Court thus has committed a serious error in exercise of the jurisdiction vested in it in passing the impugned order. In case, ultimately, this compromise is accepted, the suit shall stands disposed of finally. Thus, this revision petition is maintainable. 6. 50,000/-. The learned trial Court thus has committed a serious error in exercise of the jurisdiction vested in it in passing the impugned order. In case, ultimately, this compromise is accepted, the suit shall stands disposed of finally. Thus, this revision petition is maintainable. 6. As a result of the aforesaid discussion this revision petition succeeds and the same is allowed with costs which is quantified to Rs. 2,000/- to be paid to the defendant No. 2-petitioner by the plaintiff-respondent No. 1, by Account Payee Cheque/DD/Pay Order. The order dated 11.7.2000 of the learned Additional Civil Judge (Jr.Div.) West, Jaipur City, Jaipur in Civil Suit No. 292/99 is quashed and set aside and the learned trial Court is directed to decide the application of the defendant No. 2-petitioner filed under Order 23, Rule 3 of the CPC, in accordance with the law and in the light of the observation made in this order. The record of the Court below be sent forthwith. The application is to be decided within a period of three months from the date of receipt of the copy of this order. 7. As a result of this order in the revision petition, the stay application does not survive and the same is dismissed.Revision petition allowed. *******