Research › Search › Judgment

Himachal Pradesh High Court · body

2014 DIGILAW 1005 (HP)

H. K. BHARDWAJ v. RAJNESH KUTHIALA

2014-07-30

RAJIV SHARMA

body2014
JUDGMENT : RAJIV SHARMA, J. 1. This revision petition is instituted against the order dated 8.8.2012 rendered by the Rent Controller (7), Shimla in Execution Petition No. 7-10 of 2012. 2. "Key facts" necessary for the adjudication of this petition are that respondent-landlord (hereinafter referred to as the "landlord" for convenience sake) filed a petition u/s 14 of the H.P. Urban Rent Control Act, 1987 (hereinafter referred to as the "Act" for brevity sake) for ejectment of the petitioner-tenant (hereinafter referred to as the "tenant" for convenience sake). The building was constructed in the year 1952 by the grandfather of the landlord. The premises were let out to the tenant for residential purposes by the father of landlord late Sh. Hari Krishan Kuthiala in the year 1974. He has since expired. The landlord wanted to demolish the premises and construct new rooms in its basement by joining the same in the ground floor and wanted to add more rooms in order to accommodate his own family and the son, who was of marriageable age. The premises were required bona fide for the purpose of rebuilding and reconstruction. Rebuilding and reconstruction could not be carried out without getting the premises in occupation of the tenant vacated. The accommodation in possession of the landlord was insufficient. The premises had come to his share as per decree rendered in Civil Suit No. 716/1993 decided on 13.8.1994. 3. The petition was contested by the tenant. Learned Rent Controller framed issues on 22.10.2007. However, during the pendency of the proceedings, joint application was moved under order 23 rule 3 of the CPC for passing decree/eviction order on the basis of compromise entered into between the parties. Learned Civil Judge (Junior Division), Court No. 7, allowed the petition on 28.6.2010, subject to condition that landlord shall not execute the order before 31.5.2018. The parties were directed to comply with the terms and conditions mentioned in the application and affidavit. The non-compliance of the terms and conditions by the tenant granted the liberty to the landlord to execute the order even before 31.5.2018. The tenant was directed to handover the vacant possession of the premises on or before 31.5.2018. Statements of both the parties were recorded. 4. Landlord filed Execution Petition No. 7-10/2012 before the Civil Judge (Junior Division), Court No. 7, Shimla under order 21 rule 11 of the Code of Civil Procedure. The tenant was directed to handover the vacant possession of the premises on or before 31.5.2018. Statements of both the parties were recorded. 4. Landlord filed Execution Petition No. 7-10/2012 before the Civil Judge (Junior Division), Court No. 7, Shimla under order 21 rule 11 of the Code of Civil Procedure. According to the landlord, rent for the months of April, May and June, 2011 was deposited by the Judgment Debtor, i.e. tenant on 26.6.2011 and thereafter for the months of October, November and December, 2011, the same was deposited on 27.2.2012. Detailed reply was filed by the tenant. According to the averments contained in the objections, landlord was estopped by way of equitable estoppel to file the petition. It was further averred that Clause 2 (C) of the compromise was punitive and penal. Landlord filed reply to the objections filed on behalf of the tenant/Judgment Debtor. Learned Civil Judge (Junior Division) passed order in Execution Petition No. 7-10 of 2012 on 8.8.2012. 5. What emerges from the facts enumerated hereinabove is that landlord has instituted a petition u/s 14 of the Act. Matter has been compromised between the parties. Statements of the parties were recorded. Terms and conditions of the compromise were duly incorporated in the application filed under order 23 rule 3 of the Code of Civil Procedure. Clause 2 (C) of the agreement reads as under: "That the second party shall pay the rent of the disputed set of each month either personally or through his bank account and in case of failure of the second party to do the same the order of eviction passed on the basis of compromise shall become executable before 31.5.2018." 6. According to plain reading of Clause 2 (C) of the compromise deed, second party, i.e. tenant was bound to pay rent of the disputed premises. Rent was to be paid on or before 7th of each month. Tenant has paid rent through cheques for seven months on 30.3.2011 and thereafter on 24.6.2011, 27.2.2012 and 28.4.2012 after the filing of the execution petition. Rent was to be paid on or before 7th of each month. However, it is evident from the pleadings that rent was paid after 3-4 months and the rent was sent through cheques. Merely that the landlord has accepted the cheques would not amount to estoppel or acquiescence or waiver. Rent was to be paid on or before 7th of each month. However, it is evident from the pleadings that rent was paid after 3-4 months and the rent was sent through cheques. Merely that the landlord has accepted the cheques would not amount to estoppel or acquiescence or waiver. Tenant was bound to pay the rent as per the compromise/consent decree. It was clearly stipulated in clause 2 (C) of the compromise/consent decree that in case of failure of the tenant to pay the rent, order was to become executable even before 31.5.2018. Tenant cannot claim equitable consideration for the simple reason that he himself has committed breach of expressed terms and conditions of the compromise order. 7. In the objections preferred against the execution petition, tenant has not averred that he has deposited the rent and the same has been accepted by the landlord. There is only bald assertion made by the tenant that landlord had been receiving rent of each and every month through cheques, which were deposited in his bank account and the same have been received personally by the landlord. There is no reference when the cheques were sent by the tenant and accepted by the landlord after the passing of order dated 28.6.2010. 8. In the instant case, compromise has been permitted by learned Rent Controller and the Eviction Petition has been disposed of in view of the compromise incorporated therein. This compromise is binding on the parties and can not be termed as dehors the H.P. Urban Rent Control Act, 1987. The tenant has undertaken to vacate the premises by 31.5.2018 subject to conditions incorporated in the consent/compromise decree. The Land-lord could recover possession by way of execution of this decree in case there was any breach of the terms and conditions incorporated in the decree. The petitioner has failed to establish that he has complied with the conditions specified in the compromise/consent decree. It can not be gathered from the facts that the Land-Lord has waived clause 2(C) of the compromise. Waiver being a question of fact is to be established by the parties who intend to rely upon such principle. Something more than mere payment and acceptance of amount is necessary to prove the waiver. 9. The plea of waiver was required to be pleaded and proved. Waiver being a question of fact is to be established by the parties who intend to rely upon such principle. Something more than mere payment and acceptance of amount is necessary to prove the waiver. 9. The plea of waiver was required to be pleaded and proved. The plea of waiver cannot be permitted to be allowed unless there is specific representation and there is foundation in the pleadings. The reference that landlord had been accepting the rent from the tenant is before the passing of the judgment and decree and not thereafter. 10. Mr. H.K. Bhardwaj has relied upon the following judgments to prove waiver: 1. Chotalal Shaw Vs. Ram Golam Shaw and Others, . AIR 1975 Cal 436 : 80 CWN 36 2. Motilal Padampat Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Others, AIR 1979 SC 621 . 3. Sen and Co. Vs. Sm. Mani Mala Sadhu, AIR 1980 Cal 155 . 4. Bibi Amna Khatun and Others Vs. Zahir Hussain and Another, AIR 1981 Patna 1. 5. Life Insurance Corporation of India and Others Vs. O.P. Bhallah and Others, AIR 1989 Patna 269. 6. D.C. Oswal Vs. V.K. Subbiah and other, AIR 1992 SC 184 . 7. B.L. Sreedhar and Others Vs. K.M. Munireddy (Dead) and Others, (2003) 2 SCC 355 . 8. Cauvery Coffee Traders, Mangalore vs. Hornor Resources (international) Company Limited, (2011) 10 SCC 420 . 9. Satyawati Vs. Rajinder Singh and Another, (2013) 9 SCC 491 . However, the judgments relied upon by Mr. H.K. Bhardwaj are not applicable to the facts and circumstances of the present case since there is no foundation laid down by the tenant of waiver by the Landlord in reply filed to the execution petition. 11. Their Lordships of the Hon'ble Supreme Court in Satyawati Vs. Rajinder Singh and Another, have held that there should not be unreasonable delay in execution of a decree because if the decree holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain. Their Lordships have held as under: "9. Rajinder Singh and Another, have held that there should not be unreasonable delay in execution of a decree because if the decree holder is unable to enjoy the fruits of his success by getting the decree executed, the entire effort of successful litigant would be in vain. Their Lordships have held as under: "9. Looking to the facts of the case, in our opinion, the High Court was not right while confirming the order passed by the Executing Court for the reason that the Executing Court had taken into account certain other reports for the purpose of rejecting the execution proceedings and for coming to the conclusion that the decree was not executable. 10. Looking to the facts of the case and upon hearing the learned counsel, we are of the view that the order passed by the Executing Court dated 16th March, 2009, which has been confirmed by the High Court is not correct for the reason that the Executing Court ought not to have considered other factors and facts which were not forming part of the judgment and the decree passed in favour of the appellant-plaintiff. Once the decree was made in favour of the appellant-plaintiff, in pursuance of the judgment dated 19th January, 1996 delivered by the District Judge Faridabad, in our opinion, the Executing Court should not have looked into other reports which had been submitted to it afterwards. 11. Upon perusal of the reports, we find that the local commissioner's report clearly describes the land which admeasures 80 sq. yard and which is forming part of Khasra No. 95/24/2 and the report given by the local commissioner also gives details of the land in question by way of a sketch. In our opinion, the Executing Court ought to have looked at the sketch which was prepared by the local commissioner and which was accepted as a correct sketch by the Appellate Court while delivering the judgment dated 19th January, 1996, which has become final." 12. Accordingly, in view of the analysis and discussion made hereinabove, there is no merit in the petition and the same is dismissed. However, since the tenant is an Advocate, it would be difficult for him to find out new premises, therefore, he is ordered to vacate the premises on or before 15th August, 2015, subject to compliance of all the conditions enumerated in the compromise order dated 28.6.2010. However, since the tenant is an Advocate, it would be difficult for him to find out new premises, therefore, he is ordered to vacate the premises on or before 15th August, 2015, subject to compliance of all the conditions enumerated in the compromise order dated 28.6.2010. Pending application(s), if any, also stands disposed of. No costs.