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2010 DIGILAW 17 (CAL)

Ajit Kumar Jana v. Anil Baran Singha

2010-01-07

PRANAB KUMAR DEB

body2010
JUDGMENT 1. THIS revisional application has been filed against the order 17.9.2009 in J. Misc. Case No. 43 of 2004 whereby the learned Court below dismissed the application filed by the defendant/petitioner under section 47 of the CPC. 2. The suit for eviction being O.S. No.37 of 1994 was filed by the opposite parties on the ground of reasonable requirement and default. During the course of the proceeding the respondents/plaintiffs and the defendant/petitioner effected a settlement with the stipulation that the defendant would 'vacate the suit premises by December, 2000. It was also stipulated that the defendant would pay the current rent and also the arrear rent to the landlord by December, 2000. The suit was, accordingly, decreed in terms of the compromise petition. Defendant/petitioner not having delivered the possession in spite of consent decree being passed by the learned Trial Court, the aforesaid decree was put into execution. At the stage of execution the defendant/petitioner came up with the application under section 47 of the CPC, challenging the execution of the decree. The aforesaid application under section 47 of the CPC was, however, dismissed by the learned Executing Court. Aggrieved by the said order, the defendant/petitioner has filed the instant revisional application under section 227 of the Constitution of India. 3. APPEARING on behalf of the petitioner, Mr. Jiban Ratan Chatterjee, learned Senior Advocate, has submitted that in dismissing the application under section 47 of the CPC the learned Executing Court has failed to appreciate the fact that mere consent decree is not sufficient to justify, the eviction of a tenant. It is submitted that unless the landlord satisfies the requirements of the provision of Premises Tenancy Act, ouster of a tenant cannot be effected even through execution of consent or compromise decree. 4. REFERRING to the case of Nai Bahu vs. Lala Ramnarayan and Ors., reported in AIR 1978 SC 22 , it is submitted that the Apex Court has underlined that if the Court does not find the permissible grounds for eviction disclosed in the pleadings and other materials on the record, no consent or compromise will give jurisdiction to the Court to pass a valid decree of eviction. It is argued that the Apex Court has underscored that the Court is to be satisfied whether a statutory ground for eviction has been pleaded which the tenant has admitted by the compromise. It is argued that the Apex Court has underscored that the Court is to be satisfied whether a statutory ground for eviction has been pleaded which the tenant has admitted by the compromise. The Court is required to be satisfied about compliance with the statutory requirement on the totality of the facts of a particular case bearing in mind the entire circumstances from the stage of pleadings upto the stage when the compromise is effected. It is further argued that since there was no positive finding that the eviction was required on any of the grounds enumerated in section 13 of the West Bengal Premises Tenancy Act, the impugned judgment on compromise ought to have been treated as a nullity. The learned Executing Court, it is submitted, has dolefully failed to appreciate. 5. DRAWING the attention of the Court to the consent decree, Mr. Chatterjee has submitted that there is no whisper about the tenant committing default, nor there is any whisper about the justification of the landlord seeking eviction on the ground of reasonable requirement. The grounds of eviction as pleaded in the plaint not having been substantiated and vindicated, the consent decree cannot be effected to, as urged by Mr. Chatterjee. 6. DEFENDING the impugned order passed by the learned Executing Court, Mr. Chakraborty learned Senior Advocate, has submitted that the application under section 47 of the CPC was filed on behalf of the petitioner/defendant in a, desperate bid to stay in illegal manner in the premises in question. It is submitted that the grounds of eviction having been pleaded by the plaintiffs/respondents, the learned Trial Court has rightly passed the order for eviction on consent of the parties. Commenting on the question of ground of eviction, Mr. Chakraborty has submitted that the suit for eviction was filed on the ground of default as well. In the compromise petition the defendant/petitioner himself had acknowledged the factum of default in payment of arrear rent. In view of such ground of eviction having been well explained, the learned Trial Court had no hesitation in passing the decree on consent. 7. DWELLING on the question of maintainability of the application under section 47 of the CPC, Mr. Chakraborty has submitted that the defendant himself filed a separate suit with the specific contention that the consent decree was obtained by practicing fraud. That pleading was not accepted by the learned Trial Court. 7. DWELLING on the question of maintainability of the application under section 47 of the CPC, Mr. Chakraborty has submitted that the defendant himself filed a separate suit with the specific contention that the consent decree was obtained by practicing fraud. That pleading was not accepted by the learned Trial Court. Challenging the aforesaid dismissal of the suit, an appeal was preferred. The Appeal Court, it is submitted, also endorsed the view that there was no fraud had been practised for obtaining the consent decree. The points raised in the execution proceeding having been earlier urged in the earlier suit filed by the petitioner/defendant, the same issue cannot be allowed to be urged again. The finding of the Court in the separate suit will operate as res judicata, as submitted by Mr. Chakraborty. 8. IT is on record that during the pendency of O.S. No. 37 of 1994, the petitioner and the respondents effected settlement. One of the important clauses of the consent decree was that the defendant would vacate the suit premises by December, 2000. The other important clause was to the effect that the defendant would pay the arrear rent by December, 2000. The plea that the compromise petition did not bear the signature of the petitioner/defendant was not accepted by the Court in the suit filed by the petitioner, challenging the execution of the consent decree. During the pendency of the execution proceeding the defendant/petitioner tacitly acknowledged the factum of execution of the compromise petition. The factum of making default in payment of arrear rent had been well acknowledged in the compromise petition itself. Judging this aspect, the learned Executing Court had viewed that the ground of eviction had been well explained and detailed in the compromise petition itself. As underscored in the case of Nai Bahu (supra), when a compromise decree is challenged as a nullity in the course of its execution the Executing Court can examine relevant materials to find out whether statutory grounds for eviction had been pleaded. If the pleadings and other materials on the record make out a prima facie case about the existence of statutory grounds for eviction, a compromise decree cannot be held to be invalid and the Executing Court will have to give effect to it. 9. I have gone through the pleadings made in the aforesaid suit for eviction. If the pleadings and other materials on the record make out a prima facie case about the existence of statutory grounds for eviction, a compromise decree cannot be held to be invalid and the Executing Court will have to give effect to it. 9. I have gone through the pleadings made in the aforesaid suit for eviction. The eviction of the tenant/defendant was sought for on the ground of default and reasonable requirement. The materials on record also do indicate that eviction was sought for on the ground of default. The pleadings and the materials on record do make out a prima facie case about the existence of a statutory ground for eviction. In view of such disclosure on ground for eviction through pleadings, the compromise decree cannot be held to be invalid. 10. The plea of, the petitioner/defendant that the consent decree was obtained by practicing fraud was turned down by the learned Trial Court in Title Suit No. 114 of 2003. The finding so made by the learned Trial Court also upheld in the appeal. There is reason to believe that the plea that the decree is a nullity has been made in a last ditch effort to protect himself from being evicted in due execution of decree. Similar plea as raised herein had been taken up in the Title Suit No. 114 of 2003 as well as in the connected appeal, being Appeal No. 41 of 2007 which was subsequently renumbered as Appeal No. 63 of 2007, filed by the petitioner/defendant, challenging the finding made by the learned Trial Court. It was urged that the statutory ground for eviction had not been pleaded and there was no such admission of the grounds of eviction by the tenant/defendant in the compromise petition. The point having been decided earlier in a suit between the parties, the same issue cannot be allowed to be raised again in execution proceeding. Considering the facts and circumstances of the case and having regard to the provision of law. I do not find any justification to interfere with the order passed by the learned Trial Court. The learned Trial Court has rightly observed that Executing' Court cannot go beyond the decree. The decree as passed, by the learned trial is to be executed unless it is found to be a nullity. I do not find any justification to interfere with the order passed by the learned Trial Court. The learned Trial Court has rightly observed that Executing' Court cannot go beyond the decree. The decree as passed, by the learned trial is to be executed unless it is found to be a nullity. The plea of nullity not having been substantiated, the learned Executing Court has rightly rejected the aforesaid application under section 47 of the CPC. The well reasoned order thus does not call for any interference in revision. 11. IN the result, the present revisional application is dismissed. However, there will be no order as to costs. 12. URGENT xerox certificate copy of this order, if applied for, be given to the parties. Appeal dismissed.