Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 612 (RAJ)

Jagdish v. Babulal

2005-02-23

DINESH MAHESHWARI

body2005
Judgment Dinesh Maheshwari, J.-Heard learned Counsel for the parties. During the course of arguments, learned Counsel for the non-petitioner submitted certified copies of compromise, decree and order-sheets which being undisputed and relevant, were taken on record. Perused the entire material available on record. 2. The legal representatives of the tenant-defendant-Judgment debtor have submitted this revision petition against the order dated 04.08.2004 passed by the Executing Court, Civil Judge (Jr. Division), Deeg District Baharatpur in Civil Miscellaneous Case No. 106/1997 whereby the learned Judge rejected the objection petition dated 110.1997 under Section 47 of the Code of Civil Procedure (CPC). 3. Briefly put the facts relevant for the present purposes are that the non-petitioner-Babulal filed a suit for eviction on the ground of default and bona fide necessity against Jagdish (since deceased, represented by the petitioners and the non-petitioner No. 2) in the Court of Civil Judge (Jr. Division), Deeg. It appears that the said suit, provisional determination of rent was made under Section 13(3) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 on 09.04.1996 against which an appeal was preferred by the defendant-tenant and the same was pending before the Additional District Judge, Deeg. The parties to the suit submitted a compromise before the said appellate Court on 28.02.1997 stating that parties have arrived at a compromise and as the defendant Jagdish was defaulter and the suit premises were required reasonably and bona fide by the plaintiff , therefore, it was decided between the parties that defendant Jagdish would vacate the disputed premises by 15.03.1997 and hand over possession to the plaintiff Babulal and towards the arrears of rent, it was decided that the defendant Jagdish would make payment of a sum of Rs. 14,000/-on 15.03.1997 under receipt. It was also stipulated that in other eventuality, the plaintiff would be entitled to recover possession of the suit premises from the defendant through the Court after 15.03.1997 and similarly if the defendent would fail to make payment of Rs. 14,000/-by 15.03.1997, then entire arrears of rent would be recoverable. The parties also agreed that by virtue of compromise, the suit filed by the plaintiff be decreed against defendant and the said appeal shall be dismissed. 4. 14,000/-by 15.03.1997, then entire arrears of rent would be recoverable. The parties also agreed that by virtue of compromise, the suit filed by the plaintiff be decreed against defendant and the said appeal shall be dismissed. 4. It appears from the certified copy of order-sheets submitted by learned Counsel for the non-petitioner that the said compromise filed before the appellate Court was not verified by the appellate Court on 28.02.1997 and the matter was adjourned to 04.03.1997. On this date, the learned Appellate Judge. Additional District Judge, Deeg recorded the order-sheet that the Counsel for the parties were present and compromise was verified and the case was posted for orders on 11.03.1997. On the deed of compromise, the learned Judge recorded on 04.03.1997 that the compromise was presented on behalf of appellant Jagdish and respondent Babulal on 28.02.1997. The compromise was read over and explained to them word by word which they admitted to be correct. The parties were identified by their respective Counsel. Hence, the compromise was verified and was taken on record. From the certified copies of the order-sheets submitted by the learned Counsel, it further appears that on 11.03.1997, the learned Appellate Judge ordered in presence of Counsel for the parties that the compromise has already been verified and as it relates to the original suit, therefore, the same be sent to the lower Court for necessary proceedings and orders. It has also been recorded that the appellant did not press the appeal and, therefore, the appeal was dismissed. On the other hand, order-sheets of the suit proceedings as submitted by the learned Counsel for the non-petitioner show that the suit proceedings were adjourned on 31.03.1997, 11.04.1997 and 15.05.1997 for arguments and then on 02.06.1997, the learned trial Court ordered that the compromise was not bearing the signatures of appellate Judge of verification and, therefore, the signatures be obtained. It appears that thereafter signatures were obtained from the appellate Judge and, therefore, on 04.07.1997, the trial Court decreed the suit in terms of the compromise. 5. It further appears that the plaintiff decree holder moved for execution of the said decree being Execution Case No. 8/1997 in which the Judgment debtor raised objection on 110.1997 to the effect that decreeing of the suit in terms of the compromise on 04.07.1997 was not in accordance with law and the decree was a nullity. 5. It further appears that the plaintiff decree holder moved for execution of the said decree being Execution Case No. 8/1997 in which the Judgment debtor raised objection on 110.1997 to the effect that decreeing of the suit in terms of the compromise on 04.07.1997 was not in accordance with law and the decree was a nullity. No compromise was filed before the trial Court nor was got verified before the trial Court. The compromise was filed before the Additional District Judge, Deeg on 28.02.1997 but it was not acted upon by the parties on that day. According to the objector, the verification dated 04.03.1997 was not valid as the same was not bearing the signatures of the Presiding Officer as is apparent from the order-sheet dated 02.06.1997 in the civil suit. According to the objector, in this view of the matter, when the compromise was neither verified by the parties nor signed by the Presiding Officer, decree could not have been passed on that basis. 6. The objection petition was contested by the plaintiff-decree holder with the submissions that the compromise was sent by the appellate Court to the original Court by the order dated 11.03.1997 when Counsel for the objector attended the Court and sought time for arguments. The decree passed in terms of the compromise has attained finality as no appeal was filed against the same. The signatures of the objector have been identified by his Counsel and that the decree was valid in law. There was no question of discharge or satisfaction of the decree. The objection petition, according to the decree holder, was misconceived. 7. The learned Executing Court considered the rival contentions of the parties and examined the record of the case and found that the fact of due verification of the compromise has been recorded in the order-sheet dated 04.03.1997. The endorsement on the back side of the compromise deed of recital of the compromise having been read over and explained; of the presence of parties, and their identification was not bearing the signatures of the Additional District Judge as on 04.03.1997 and, therefore, the trial Court sent the matter back to the Additional District Judge for the signatures which have been put thereafter. The learned Executing Court observed that placing of the signatures on the verification after 04.03.1997 does not affect the verification itself as order-sheet dated 04.03.1997 clearly recorded that the compromise has been verified. The learned Executing Court also observed that the entire recital on the back side of the compromise deed was scribed in presence of both the parties and thereafter the decree was passed by the trial Court on 04.07.1997 in presence of both the parties. The Executing Court also observed that even if the compromise was beyond the relief claimed in the suit. It was not rendered invalid. The Executing Court accordingly rejected the objection petition by the impugned order dated 04.08.2004 which has been assailed in the present revision petition. 8. The learned Counsel for the petitioners vehemently contended that the impugned order dated 04.08.2004 is illegal and arbitrary and the Executing Court has committed error of jurisdiction in holding that the compromise was valid in law and that the decree passed in pursuance thereof was executable. The learned Counsel strongly relied upon the fact that the compromise filed by the parties on 28.02.1997 was not verified on that date and the verification dated 04.03.1997 was admittedly not signed by the Presiding Officer on that day. According to the learned Counsel, until and unless deed of compromise is executed and signed by the parties and verified by the Presiding Officer in presence of parties, the same would not be valid in law. The learned Counsel also suggested that the Court has not recorded any satisfaction about the existence of grounds of eviction under Section 13 of the Act and, therefore, the decree is a nullity. The learned Counsel for the non-petitioner on the other hand supported the order passed by the Executing Court and placed on record certified copies of the deed of compromise, decree passed by the trial Court and the part of order-sheets of appellate Court and so also the trial Court. 9. Having given a thoughtful consideration to the respective contentions and having perused the record, this Court is clearly of the opinion that the present revision is groundless and deserves to be dismissed. 10. 9. Having given a thoughtful consideration to the respective contentions and having perused the record, this Court is clearly of the opinion that the present revision is groundless and deserves to be dismissed. 10. The learned Executing Court has considered the objection raised before it in its right perspective and after examining the record has rejected the objection petition finding the hyper-technical objection sought to be raised by the objector to be entirely baseless. Apart from relying on the fact that the signatures of the Presiding Officer on the verification as made on 04.03.1997 were obtained later on, the petitioners have not been able to show any illegality or infirmity going to the root of the matter by which the compromise could be said to be invalid or unlawful. True it is that admittedly the Presiding Officer of the appellate Court omitted to sign the endorsement of verification on the deed of compromise but nevertheless, the substance of the matter remains that the compromise was filed before the appellate Court on 28.02.1997 and the same was signed by both the parties and their respective learned Counsel. The order-sheet dated 04.03.1997 further makes it clear that the appellate Court had verified the compromise. The inadvertent omission of the Presiding Officer of signing the endorsement has also been got corrected. Noteworthy it is that in the hyper-technical objection raised and adopted by the objector, the factum of the compromise having been arrived at and having been filed before the Court has not been specifically disputed. The significant fact further remains that on 11.03.1997 in the presence of Counsel for both the parties, the learned appellate Court not only again recorded the fact that the compromise has been verified and further directed that compromise be sent to the trial Court for necessary proceedings, but moreover, the appeal was specifically "not pressed" and was dismissed as such. 11. A reference to the terms of the compromise makes it clear that inter alia it was also agreed between the parties that the appeal would be got dismissed. The attempt on the part of the objector in execution proceedings to suggest that compromise was not acted upon also remains hollow and baseless. Not pressing of the appeal was a direct result of and was in pursuance of the compromise only. The attempt on the part of the objector in execution proceedings to suggest that compromise was not acted upon also remains hollow and baseless. Not pressing of the appeal was a direct result of and was in pursuance of the compromise only. Thereafter, also, the decree in terms of the compromise has been passed as late as on 04.07.1997 by the trial Court and there is nothing on record to show that the defendant-tenant ever put any objection or question about the terms of the compromise or validity of the compromise. If there was any dispute, it was open for the defendant to have alleged that the adjustment or compromise had not been arrived at and upon making of such allegation, the Court concerned would have decided the question before passing of the decree. However, it was too late in the day for the defendant-tenant to assail the compromise decree in execution proceedings and that too on the hyper-technical objection of want of signatures of the appellate Judge on verification. This Court is clearly of the opinion that the objections sought to be raised by the Judgment -debtor in the execution proceedings were not bona fide apart from being wholly baseless and have rightly been rejected by the Executing Court. 12. The submission by the learned Counsel for the petitioners that the verification having not been signed by the appellate Judge on 04.03.1997 and signatures having been obtained later on would vitiate the decree cannot be countenanced particularly when the overall facts and circumstances of the case make it clear that the deed of compromise was signed by both the parties and their respective Counsel on 28.02.1997, was presented before the Court on 28.02.1997, was verified in the presence of parties and their respective Counsel on 04.03.1997 and on its basis, the appeal was not pressed on 11.03.1997 and was dismissed as such. Thereafter, also, the decree has been drawn by the trial Court as late as on 04.07.1997. There is nothing on record to find that the defendant raised any such question for which the appellate Court or the trial Court were required to decide about the existence of the agreement or about its validity or it being vitiated by any illegality, fraud, misrepresentation etc. The trial Court has not committed any illegality in passing the decree in terms of compromise on 04.07.1997. 13. The trial Court has not committed any illegality in passing the decree in terms of compromise on 04.07.1997. 13. This Court is also of the opinion that the objections raised by the Judgment -debtor after passing of the decree since not related to the substance of the matter have rightly been rejected by the Executing Court. The accidental slip or omission or at the most a defect or error in the proceeding of not signing the endorsement of verification has rightly been requested by the trial Court to be corrected and has rightly been rectified by the appellate Court and thereafter, the decree was passed by the trial Court. It may be pointed out that Section 152 of the Code of Civil Procedure invests every Court with powers to correct the errors which arise from accidental slip or omission so as to ensure that the act of the Court is not to the prejudice of any party and that records of the Court are true and represent correct state of affairs. Apart from Section 152, CPC, the inherent power of the Court under Section 151, CPC make it clear that the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of process of the Court are unlimited. A Court may in a given case apart from Section 152, CPC by virtue of its inherent powers too can correct the record so as to bring it in conformity with true intent and purpose of the proceedings. An accidental slip on the part of the learned appellate Judge to sign the verification on 04.03.1997 was rightly got corrected and on that count, the otherwise validity of the decree is not affected at all. 14. It may be noted that every compromise under Order 23 Rule 3, CPC is presumed to be lawful unless proved to the contrary and if it all, the compromise was to be assailed as an agreement not lawful, the onus was heavy upon the defendant to raise and substantiate such grounds at the time of passing of the decree. The defendant having failed to do so is not entitled to turn around and raise objection about want to signatures of the Judge concerned at the stage of execution proceedings. 15. The defendant having failed to do so is not entitled to turn around and raise objection about want to signatures of the Judge concerned at the stage of execution proceedings. 15. So far the suggestion on the part of petitioners that the decree was a nullity for non-existence of the grounds of eviction is concerned, such objection remains contrary to the facts and totally baseless. In the deed of compromise, it has been specifically recited that the defendant was a defaulter and premises were required reasonably and bona fide by the plaintiff . The defendant having admitted existence of grounds of eviction and having agreed for vacating the suit premises, is not entitled to question the validity of the decree nor the decree could be said to be a nullity. 16. The contents of compromise also make it clear that there is an express admission by the tenant about the existence of statutory grounds for eviction and the decree passed on its basis cannot be called a nullity. After the expression admission of the existence of the grounds of eviction, it was not open for the tenant to challenge correctness of the decree as the admissions made in judicial proceedings are absolutely binding on the parties and at any rate the decree cannot be called a nullity as explained by the Honble Supreme Court in no uncertain terms in the case of Hiralal Moolchand Doshi vs. Barot Raman Lal Ranchhoddas, AIR 1993 SC 1449 . When there exists material on record particularly in the compromise itself to indicate that the decree passed on its basis was not in violation of the Act of 1950 but was in accordance with it, the compromise decree was not a nullity and could be executed for its non-compliance. In view of the recitals in the deed of compromise where the existence of ground of default as well as reasonable and bona fide necessity have been admitted by the defendant-tenant, it is clear that before the trial Court, there was enough material to be satisfied about the existence of statutory grounds of eviction and the decree is valid in law. 17. The learned Executing Court has rejected the objection petition after thorough consideration of the entire material on record and this Court is satisfied that the Executing Court has not acted illegally or with any irregularity in exercise of its jurisdiction in rejecting the objections. 17. The learned Executing Court has rejected the objection petition after thorough consideration of the entire material on record and this Court is satisfied that the Executing Court has not acted illegally or with any irregularity in exercise of its jurisdiction in rejecting the objections. The revision petition, therefore, deserves to be dismissed. 18. During the course of arguments the learned Counsel for the petitioners prayed in the last alternative that the petitioners may be allowed some reasonable time to vacate the suit premises. This Court is of the opinion that in the overall facts and circumstances of the case, the petitioners should make any such request only before the Executing Court who shall consider and pass appropriate order thereupon. 19. In the result, the revision petition is dismissed. The impugned order dated 04.08.2004 is affirmed. However, the petitioners shall be at liberty to approach the Executing Court in respect of their request for granting reasonable time to vacate the premises. 20. As the revision petition has been dismissed, the stay petition stands rejected.