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2011 DIGILAW 693 (GUJ)

T. H. JOSHI v. JASHVANTLAL BABULAL NANDHA

2011-09-23

G.B.SHAH

body2011
JUDGMENT 1. This Civil Revision Application has been filed by the applicant/original appellant/defendant No.1, the judgment debtor on 22.12.2008 seeking prayer to quash and set aside the impugned order dated 7.11.2008 passed below Exh. 13 in Regular Civil Appeal No.9 of 2005 by the learned Principal District Judge, Porbandar. The subsequent conduct of the applicant/original defendant No. 1 after preferring the present Civil Revision Application No.51/2009 is a classic example of an attempt made by the interested litigant along with the help of Advocates engaged by him to see that the matter related to execution proceedings which is pending before the trial court be delayed as far as possible by exercising various tactics for prolonging the same which reflects from the following facts: 2. This Civil Revision Application has been filed by the Power of Attorney holder of the applicant/original defendant No.1 through his Advocate on 22.12.2008. Thereafter, after the compliance of removal of the office objections, for the first time it was listed on the board for admission on 29.6.2009. On request made by the learned Advocate for the applicant, the same was adjourned by the court to 21.7.2009. Likewise thereafter the said revision application was listed on the board for admission on 21.7.2009, 28.7.2009, 10.9.2009, 29.9.2009, 19.11.2009, 3.12.2009 and on 10.12.2009 and on all the above dates, on the request made by the learned Advocate for the applicant the matter was adjourned as referred above. On 10.12.2009 this court (Coram Anant S Dave, J.) has passed the following order: "This revision application is adjourned from time to time either at the request of learned advocate for the applicant or due to his non-availability. In view of the above, the matter be placed only if note for hearing is filed by the learned advocate." 3. Thereafter, on 14.7.2011/21.9.2011 learned advocate for the applicant has filed a note to the office for hearing the revision application at the earliest. The said note is extracted hereunder: "The aforesaid matter has been filed for the purpose of challenging the legality and validity of the impugned order passed by the Hon'ble Court below and the same is pending. Thereafter, on 14.7.2011/21.9.2011 learned advocate for the applicant has filed a note to the office for hearing the revision application at the earliest. The said note is extracted hereunder: "The aforesaid matter has been filed for the purpose of challenging the legality and validity of the impugned order passed by the Hon'ble Court below and the same is pending. It is submitted that during the pendency of the aforesaid matter the execution proceedings has been commenced and speeded up by the other side and there is serious apprehension that if order against the petitioners is passed this Civil Revision Application will become infructuous and, therefore, the aforesaid matter is required to be heard for appropriate order at the earliest and, therefore, kindly placed (sic.) the aforesaid matter for hearing before appropriate Hon'ble Court in the interest of justice." Accordingly this revision application was listed on 22.9.2011 before this court. On 22.9.2011, at 11.00 am, learned Advocate for the applicant requested for time which was granted with a direction to proceed with the matter on the next date and accordingly I have heard Mr Vishal Mehta, learned Advocate for the applicant. 4. The present applicant/appellant Shri T H Joshi, the original defendant No.1-judgment debtor has preferred this Revision Application against respondent No.1 Jashvantlal Babulal Nandha-original plaintiff, judgment creditor as well as the respondent No.2/the original defendant No.2. 5. Respondent No.1/original plaintiff was in occupation of a small shop admeasuring 8 x 4 x 8 feet at the monthly rent of Rs.18/- and was doing business of tailoring work. The said small shop was situated in the immoveable property bearing survey No.3189, 3190 and 3191 at Chhaya, District Porbandar which was of the absolute ownership of the applicant/original defendant No.1. The said shop was purchased by the respondent No.2/original defendant No.2 on 13.3.1998 by registered sale deed from the applicant/original defendant No.1 and thereafter respondent No.2/original defendant No.2 became the owner of the said shop. As such the said transaction was carried out with a view to dispossess respondent No.1/original plaintiff from the said shop. The applicant/original defendant No.1 and respondent No.1/original defendant No.2 had started demolition work of the house situated in the said immoveable property and they also wanted to demolish the north-west side wall of the small shop referred above of the respondent No.1/original plaintiff. The applicant/original defendant No.1 and respondent No.1/original defendant No.2 had started demolition work of the house situated in the said immoveable property and they also wanted to demolish the north-west side wall of the small shop referred above of the respondent No.1/original plaintiff. With a view to save the wall of the shop referred above, a Civil Suit being R.C.S. No.103/1998 was filed by respondent No.1/original plaintiff in the court of Civil Judge (SD) Probandar seeking relief for declaration and permanent injunction and the plaintiff has prayed for granting permanent injunction to restrain and/or prevent the applicant/original defendant No. 1 as well as respondent No.2/original defendant No.2 from making and causing any kind of damage to the wall of the suit shop with the declaration that they shall not take actual and vacant possession of the disputed suit shop occupied by him without applying and adopting due process of law. It is not in dispute that thereafter the respondent No.1/original plaintiff and the applicant/respondent No.2/original defendants No.1 and 2 had entered into written compromise with clear terms and conditions to the effect that the original plaintiffs had to hand over actual and vacant possession of the disputed suit shop for making new construction work and instead of the old shop premises, the original defendants were offered shop on the newly constructed and renovated commercial premises and it has been decided that the rent would be increased from Rs. 18/- to Rs.50/-and simultaneously compensation for the period consumed for making new construction work as his business remained closed during the said period. The said compromise deed appears to have been filed in RCS No.103/1998 under Order XXIII Rule 3 of the Civil Procedure Code, 1908 (for short, "Code") as per the terms and conditions settled between the parties and accordingly the Civil Judge (SD), Porbandar had read over and explained the compromise deed to the parties and the parties have admitted the same as well as their signatures and accordingly had drawn decree in the prescribed proforma as per the terms and conditions settled between the parties. Thereafter the whole building was demolished and after constructing the new construction, the entire premises was handed over to State Bank of Saurashtra, Chhaya, District Porbandar on lease. Thereafter the whole building was demolished and after constructing the new construction, the entire premises was handed over to State Bank of Saurashtra, Chhaya, District Porbandar on lease. The respondent No.1/original plaintiff had no option but to file the execution proceedings vide Execution Petition No.31/1998 in which the applicant/defendant No.1/original judgment debtor has filed Cross Objections at Exh.12 against it and thereafter, after hearing the learned Advocates of the concerned parties of the case, the Civil Judge, (SD), Porbandar has passed order dated 27.10.2004 below application Exh.24 to the effect that warrant under Order 21 Rule 30 and 35 of the Code be issued and be served against the judgment debtor. Being aggrieved by this order, the present applicant/original defendant No.1, the judgment debtor had preferred Regular Civil Appeal No.9/2005 before the District Court at Porbandar and had challenged the legality, validity and maintainability of the respective orders passed against him. After hearing the learned Advocates for the parties, the Principal District Judge, Porbandar has passed the following order on 7.11.2008 in the said Regular Civil Appeal No.9/2005 which reads as under: "(a) The present Regular Civil Appeal filed under section 29 of the Bombay Rent Act for challenging the legality, validity and maintainability of the order passed in connection of application filed at Exh.24 for issuance of warrant under Order 21 Rule 30 coupled with either under Order 21 Rule 35 or O.21 R.36 of CPC, in original Regular Civil Execution Application No.31/1998 by the Civil Judge (SD) Porbandar on 27.10.2004, it stands dismissed accordingly. (b) ..... .... .... (c) ..... .... .... (d) ..... .... ...." 6. Being aggrieved and dissatisfied with the said impugned decision, the applicant/original defendant No.1 has approached this court by way of preferring the present Civil Revision Application under section 29 (2) of the Bombay Rents, (Hotel and Lodging House Rates Control) Act, 1947 (for short, "the Act"). Learned Advocate for the applicant has mainly argued that the consent terms were not recorded in consonance with the prayer sought for by the original plaintiff. Moreover, the compromise deed which has been made sole base of issuance of warrant and the said compromise itself was not in accordance with the statutory requirement and no decree was drawn upon the said compromise. Moreover, the compromise deed which has been made sole base of issuance of warrant and the said compromise itself was not in accordance with the statutory requirement and no decree was drawn upon the said compromise. He has lastly submitted that the terms of the compromise and the nature of the suit which was brought for seeking relief was not available under the execution of the present form and therefore, for taking back the possession, separate proceedings which are tenable in the eye of law ought to have been carried out by the original plaintiff i.e. the opponent No.1 herein. As the learned District Judge has not considered the above aspects in its right perspectives and therefore, the impugned judgment and decree deserves to be quashed and set aside. 7. I have gone through all the papers forthcoming on the record of this Civil Revision Application. Referring to Order XXIII Rule 3 of the Code, 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 which must be 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." Thus, it is clear that while in a Civil Suit when the parties arrive at a compromise and was filed under Order XXII Rule 3 of the Code, the Civil Court shall have to pass a decree as per the terms and conditions entered into by the parties. In the case on hand also the above procedure was followed and decree was drawn and on the basis of the same Execution Petition No.31/1998 was filed before the concerned Court. In the case on hand also the above procedure was followed and decree was drawn and on the basis of the same Execution Petition No.31/1998 was filed before the concerned Court. It is the well settled legal position that even compromise covering the matter extraneous to the suit comes under Order XXIII Rule 3 of the Code which has been amended by the Civil Procedure Code (Amendment) Act, 1976 and it specifically provides that whether or not the subject matter of the agreement/compromise, or satisfaction is identical with the subject matter of the suit or not, if it is between the parties and the compromise is a lawful one, the Court is under a duty to record the same and accordingly it was recorded and decree was drawn. 8. Learned Advocate for the applicant has submitted that though the consensus was arrived at between the parties of Regular Civil Suit No.103/1998 as alleged, the same was submitted in the suit proceedings before the Civil Court and not with the rent court and hence the decree which was passed in the said suit appears to have no value in the eye of law and for taking vacant possession, separate proceedings which shall be tenable in the eye of law ought to have been carried out by the present respondent No.1/original plaintiff and the trial court has not considered this specific contention and accordingly the present Civil Revision Application deserves to be allowed. On this point, in support of his submission, the learned Advocate for the applicant has placed reliance on a decision in the case of Nanubhai Paragji v. Chhaganlal Ranchhodji Desai & Ors. reported in 1993 (2) GLR 1613 . On this point, in support of his submission, the learned Advocate for the applicant has placed reliance on a decision in the case of Nanubhai Paragji v. Chhaganlal Ranchhodji Desai & Ors. reported in 1993 (2) GLR 1613 . Head note of the same reads as under: "Civil Procedure Code, 1908 (V of 1908) - Sec. 96 -Bombay Rents, Hotel & Lodging House Rates Control Act, 1947 - Sec. 28 -Bar of jurisdiction of ordinary Civil Court to try the suit under the Rent Act -Jurisdiction point not raised before the lower court - Question pertains to the inherent lack of jurisdiction of the Court and can be permitted to be raised at any stage of the proceedings even if it is not taken before the lower courts, if there is relationship of landlord and tenant -The claim relates to the recovery of land or possession of the rented premises and the question is required to be dealt with under the Rent Act, section 28 would be attracted - Relationship of landlord and tenant will have to be established and if established and three conditions of Section 28 are fulfilled, the ordinary Civil Court would have no jurisdiction to try such a suit and only the Rent Court would be having the jurisdiction." Another decision on which the learned Advocate for the applicant places reliance is in the case of Mansukhlal Dhanraj Jain v. Eknath Vithal Ogale reported in AIR 1995 SC 1102 . The head note of the same reads as under: "Presidency Small Cause Courts Act (15 of 1882), S.41(1)-Phrase "relating to recovery of possession in S.41(1) - Comprehensive in nature - It covers suit for injunction for restraining licensor from effecting forcible recovery of possession from licensee - Said suit would lie within exclusive jurisdiction of the Small Causes Court and not the city civil court." 9. It is pertinent to note that so far as the case on hand is concerned, as referred above the property has changed hands in which the applicant/original defendant No.1 had sold the said property and respondent No.2/original defendant No.2 had purchased the same and accordingly respondent No.2/original defendant No.2 became the legal owner of the shop in question which was in the occupation of the respondent No.1/original plaintiff when the said transaction took place in the month of March, 1998. It is observed by the courts below that the said transaction was carried out with a view to dispossess respondent No.1/original plaintiff from the said shop and thereafter as the demolition work of the house situated in the immoveable property has commenced and as respondent No.1/original plaintiff had found imminent danger and fear that the north-west side wall of the shop would also be demolished by the applicant/original defendant No.1 and respondent No.2/original defendant No.2, in order to save the above referred wall and the occupation of the shop, respondent No.1/original plaintiff has filed RCS No.103/1998 in the ordinary Civil Court i.e. in the Court of Civil Judge (SD), Porbandar seeking relief for declaration and permanent injunction to restrain and/or prevent the applicant/original defendant No.1 as well as respondent No.1/defendant No.2 from making and cause any kind of damage to the wall of the suit shop with the declaration that they shall not take actual and vacant possession of the disputed shop occupied by him without applying and adopting the due process of law. It is pertinent to note that in the above referred peculiar circumstances, respondent No.1/original plaintiff, with a view to come out from the imminent fear and to save the wall of the suit shop has preferred RCS 103/1998 before the ordinary Civil Court and not before the Rent Court because at that point of time, there was no dispute relates to rent/or recovery of the land/premises but the sole purpose of filing the said suit was to come out from the imminent fear/danger and so in the above referred circumstances, in my view, respondent No.1/original plaintiff has rightly filed the RCS No.103/98 before the ordinary Civil Court and not before the Rent Court and therefore, the above referred two citations relied on by the learned Advocate for the applicant/original defendant No.1 are not applicable to the case on hand. In the case on hand, the applicant/defendant No.1 and the respondent No.1/original defendant No.2 have joined hands and transferred the suit property and thereafter they have started demolition work of the house and thus the above Civil Suit was filed against the original owner as well as against the new owner of the suit shop and thus also under the said peculiar circumstances, the respondent No.1/original plaintiff has rightly filed the Civil Suit before the ordinary Court and not before the Rent Court. 10. 10. The case on hand is squarely covered on the identical facts and issues barring jurisdiction of the court reported in the case of Parvatibai Subhanrao Nalawade v. Anwarali Hasanali Makani and others reported in AIR 1992 SC 1780 wherein in paragraphs 8 to 11, the Apex Court has held as under: "8. We have heard the learned counsel for the parties and have considered the relevant circumstances, and in our opinion, the High Court was not justified either in entertaining the writ petitions or in deciding the merits of the dispute against the appellant. In pursuance of a solemn compromise reached by the tenant (appellant's father) and the landlord-respondent No. 3 the possession of the premises was handed over to the landlord in 1966 on the express stipulations that on the construction of the new building the tenant would get an identical area therein. The fresh construction was completed in 1967 and instead of honouring the pledge given by it in the form of an "undertaking" the respondent Bank inducted the writ petitioners therein and did not make any offer to the tenant or after his death to his heir until the matter reached the High Court on the second occasion and the writ petitions were being argued in 1990. We do not, therefore, think that there is any conceivable reason to condemn the appellant for her insistence for the benefits under the consent decree or for any sympathy with the landlord-Bank or the writ petitioners before the High Court who took advantage of the situation. 9. So far the merits of the matter are concerned, it must be clearly understood that the right of the appellant under the consent decree cannot be defeated in view of the final determination by the High Court on the earlier occasion in Civil Application No. 1819/ 70 and the respondent-Bank must be held liable for making its undertaking good as well as for any suitable compensation for the gross delay of more than two decades since 1967. 10. As to the identification of the particular area in the new building to be allotted to the appellant, the parties have led some evidence, but since we have not examined the same, we cannot take a final decision on merits. 10. As to the identification of the particular area in the new building to be allotted to the appellant, the parties have led some evidence, but since we have not examined the same, we cannot take a final decision on merits. The judgment of the learned District Judge appears to be sketchy so far this aspect is concerned, and we, in the circumstances, remit the matter to the executing Court for reconsideration after permitting the parties to give any additional evidence, they desire to offer without delaying the proceeding and to execute the decree by identifying the premises and giving its possession to the appellant. Before closing this judgment we would like to emphasise that in cases relating to immoveable properties which are governed by the ordinary civil law the High Court should not exercise its special jurisdiction under the Constitution unless the circumstances are exceptional. This aspect has been discussed by this Court earlier on several occasions. 11. In the result the appeals are allowed and the case is remitted to the executing Court for proceeding with the case expeditiously as indicated earlier. The cost of these appeals assessed at Rs. 5,000/-shall be paid by the respondent-Bank to the appellant. Appeals allowed". The above referred decision was rendered by a three Judges' Bench of the Apex Court of India and in my view the observations and findings of the said decision is directly applicable to the case on hand. Under the above circumstances, in my view, there appears no infirmity or illegality in the order dated 7.11.2008 passed below Exh. 13 in Regular Civil Appeal No.9 of 2005 by the learned Principal District Judge, Porbandar. Accordingly the present Civil Revision Application is required to be dismissed. 11. In the result, this Civil Revision Application, being devoid of merit, is dismissed at the admission stage. There shall be no order as to costs. Considering the above referred facts, office is directed to send copy of this judgment to the Principal District Judge, Porbandar with a direction to keep the same with the Execution Petition No.31/1998 pending before the Court at Porbandar.