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2015 DIGILAW 847 (RAJ)

Chanda Devi v. Manoj Kumar

2015-04-15

P.K.LOHRA

body2015
JUDGMENT P.K. LOHRA, J. 1. Petitioner-plaintiff has invoked revisional jurisdiction of this Court to assail the order dated 25th of November, 2011 rendered by the District Judge, Churu (learned trial Court), whereby efforts made, at her behest to compromise the dispute with respondent-defendants, has proved catastrophic. The learned trial Court, by the order impugned, has declined to verify the compromise allegedly arrived at between the petitioner-landlord and respondents No.1 and 4 to 6 by rejecting her application under Order 23 Rule 3 CPC. By the same order, learned Court below has also rejected the application of sixth respondent under Order 14 Rule 7 read with Section 151 CPC. 2. Succinctly stated, facts of the case are that petitioner instituted a civil suit against respondent-defendants for eviction from a shop situated at Gudri Bazar, Churu and also claimed mesne profitss. It is, inter alia, averred in the plaint that shop in question was earlier jointly owned by Ramjeevan S/o Dungarmal, Naresh Kumar S/o Mahaveer Prasad and Chirangi Lal S/o Amolakchand and let out to Shri Shiv Prasad Leela, father of Govindram, at monthly rent of Rs.25/-, on 16.12.1953. The petitioner purchased the shop in question along with the room on the first floor from her predecessor-in-title on 6th June, 1994. In the plaint, there is a reference of earlier suit for eviction against Govindram, by the lineal descendants/legal heirs of Shiv Prasad and Amolak Chand, from the disputed shop. The suit for eviction was dismissed by the trial Court on 18.08.1979 and the decree of the trial Court is affirmed by the first appellate Court, by its judgment dated 5th of February, 1982. It also emerges out from the pleadings that efforts of landlord against the verdict of the first appellate Court also proved abortive and this Court dismissed the second appeal on 4th March, 2005. 3. The plaintiff has set out a specific case for eviction, against tenant Govindram, that in the interregnum when second appeal was pending, the shop was let out by Govindram to Ramswaroop on 21st of September, 1985 and its possession was also handed over. Therefore, precisely the ground for eviction, set out in the plaint, was subletting of the rented premises. In the suit, Ramswaroop was also arrayed as a defendant, who is respondent No.6 in the present petition. Therefore, precisely the ground for eviction, set out in the plaint, was subletting of the rented premises. In the suit, Ramswaroop was also arrayed as a defendant, who is respondent No.6 in the present petition. In the plaint, a specific averment is made by the petitioner that, while contesting earlier suit, Govindram has not pleaded adverse possession on the disputed shop and as such his status continued to remain as a licensee on the disputed shop. It is, in that background, the suit for eviction is filed by the petitioner on the ground of subletting wherein mesne profits is also claimed. The suit filed by the petitioner-plaintiff is contested by respondent No.2 as well as Smt. Sita Devi W/o Govindram and entire claim of the petitioner for eviction is repudiated in their written statement. During the pendency of the suit, Smt. Sita Devi expired, and therefore, her name was deleted from the array of defendants. Respondent No.6 has also filed separate written statement. On behalf of petitioner-plaintiff, additional pleadings were submitted in response to the written statement of defendants. On the basis of pleadings of rival parties, learned trial Court framed ten issues for determination. It may be noticed here that respondent No.2 in his written statement admitted all the averments contained in the plaint, when the suit was posted for evidence of the plaintiff. 4. The petitioner and respondents No.1 and 3 to 5 submitted an application under Order 23 Rule 3 CPC, indicating compromise between the rival parties, and made a request to the learned trial Court to verify the compromise and to issue necessary decree for eviction. To counter the said application, on behalf of sixth respondent, an application under Order 14 Rule 7 CPC was submitted. Learned Court below heard arguments on both the applications simultaneously and by the order impugned declined to verify the compromise and rejected both the applications. 5. Learned Senior Advocate, appearing for the petitioner, has submitted that in terms of compromise when the original tenant has admitted sub-letting of the premises, the learned Court below has committed material irregularity and illegality in exercise of its jurisdiction in not accepting the compromise and verifying the compromise. Mr. 5. Learned Senior Advocate, appearing for the petitioner, has submitted that in terms of compromise when the original tenant has admitted sub-letting of the premises, the learned Court below has committed material irregularity and illegality in exercise of its jurisdiction in not accepting the compromise and verifying the compromise. Mr. Purohit would contend that after admission of sub-letting, decree for eviction would be equally binding on the sub-tenant and a sub-tenant cannot have locus to question the compromise, which is arrived at between the landlord and original tenant. Mr. Purohit further submits that a consent decree passed under Order 23 Rule 3 CPC, on the ground of sub-letting where the original tenant is admitting sub-letting of the premises, a sub-tenant cannot be allowed to plead collusion and/or fraud perpetrated by the landlord and main tenant. Lastly, learned Senior Counsel has urged that the impugned order has occasioned failure of justice, therefore, the same merits interference in exercise of revisional jurisdiction. Learned counsel for the petitioner has placed reliance on the cases of Rupchand Gupta vs. Raghuvanshi Pvt. Ltd. & Another, AIR 1964 SC 1889 ; Jainuddin vs. Shrimati Gulab & Others, AIR 1975 Raj. 25 and K. Sanjeev A. Rao & Others vs. Dr. Thangam Vergeese (Ms) and Another, (1999) 7 SCC 585 . Per contra, learned counsel for the respondent submits that the learned trial Court has examined the matter objectively and, while considering sixth respondent as a necessary contesting party to the suit and not a formal party, has rightly exercised its discretion, while rejecting application under Order 23 Rule 3 CPC and thus the said order is not liable to be interfered with in exercise of revisional jurisdiction of this Court. Learned Counsel, Mr. Vishal Thakur, would contend that admittedly sixth respondent is party to the litigation, who is in possession of the disputed premises, and therefore, effective compromise was not possible without his concurrence. He, therefore, submits that the learned trial Court has rightly declined to record compromise between the parties to prevent miscarriage of justice and as such the impugned order requires no interference. Learned counsel, while stoutly defending the impugned order, submits that the learned Court below has also taken note of Issue Nos. He, therefore, submits that the learned trial Court has rightly declined to record compromise between the parties to prevent miscarriage of justice and as such the impugned order requires no interference. Learned counsel, while stoutly defending the impugned order, submits that the learned Court below has also taken note of Issue Nos. 4 and 6, which according to the learned Court below, requires adjudication on merits, and therefore, according to the learned counsel for the respondent, learned Court has exercised its discretion judiciously for doing substantial justice in the matter, which is not liable to be upset in the revisional jurisdiction. Lastly, learned counsel would contend that the impugned order has not occasioned miscarriage of justice, and therefore, same is not liable to be interfered with in the limited scope of judicial review. Learned counsel in support of his contentions, has placed reliance on the case of Apani Dei @ Apana Devi & Another vs. Puran Chandra Nayak & Others, AIR 1998 Orissa 145. 6. I have heard learned counsel for the parties, perused the impugned order and thoroughly scanned the record of the case. With a view to subject the impugned order for judicial scrutiny, it has become imperative for this Court to explicate the true meaning of the word “compromise”. The word “compromise” has its origin from a Latin word Compromissum. The literal meaning of word “compromise”, as per Shorter Oxford English Dictionary, is “settlement of a dispute by mutual concession; a concession offered to settle a dispute”. As per Webster’s Encyclopedic Unabridged Dictionary (Deluxe Edition), “compromise” means a settlement of differences by mutual concession and agreement reached by adjustment of conflicting or opposing claims, principles etc., by reciprocal modification of demands. 7. The legal connotation of the word “compromise” or “settlement” is deduced by the Hon’ble Apex Court in State of Punjab & Others vs. Phulan Rani & Another, (2004) 7 SCC 555 . While construing these two crucial terms in sub section (3) & (5) of Section 20 of the Legal Services Authorities Act 1987, the Court held: “A compromise is always bilateral and means mutual adjustment. “Settlement” is termination of legal proceedings by mutual consent.” 8. If the legislative intent is sought to be gathered under Rule 3 of Order 23 of CPC, then it would ipso facto reveal that it is intended to settle the dispute between rival parties perpetually. “Settlement” is termination of legal proceedings by mutual consent.” 8. If the legislative intent is sought to be gathered under Rule 3 of Order 23 of CPC, then it would ipso facto reveal that it is intended to settle the dispute between rival parties perpetually. It is inspired by the maxim “compromissum ad similitudinem judiciorum redigitur” – A compromise is brought into affinity with judgments. Embodiment of this maxim is also clearly traceable on bare reading of Rule 3 of Order 23 CPC. In that background, now I propose to examine the legality and propriety of the impugned order. 9. Upon examination of the impugned order in conjunction with the record of the case makes it crystal clear that the petitioner-landlord filed suit for eviction and mesne profits against respondent-tenant precisely on the ground of sub-letting. While admitting possession of the sub-tenant, he was also impleaded as defendant. If the written statements, which were submitted by some of the defendant-respondents, who were the original tenants, are examined thoroughly, then it would reveal that suit for eviction is seriously contested and a specific plea is also incorporated, in the return, that they are the owners of the suit property on the strength of adverse possession. Induction of sixth respondent as tenant in the disputed premises is also admitted by pleading that he was handed over possession by them as the owners of the premises. Sixth respondent, who was also party to the litigation, has also filed his detailed written statement reiterating the same defence. 10. Learned trial court has also framed issues on the strength of pleadings of rival parties, more particularly Issues No.4 & 6. The burden of proving Issue No.4 is on sixth respondent, whereas Issue No.6 is to be proved by the other respondents. The subsequent action of some of the defendants, i.e., tenants to enter into compromise with the petitioner-landlord has necessitated laying of requisite application for compromise under Order 23 Rule 3 CPC. The learned trial Court examined the terms of the compromise and, after considering objections of the sixth respondent, declined to accept the same and rejected the compromise by the impugned order. 11. The learned trial Court examined the terms of the compromise and, after considering objections of the sixth respondent, declined to accept the same and rejected the compromise by the impugned order. 11. For rejecting the application under Order 23 Rule 3 CPC, the learned trial Court has recorded cogent reasons and has also taken note of the fact that sixth respondent is in possession, and therefore, the compromise may put his rights to jeopardy. Therefore, in that background, the learned Court below has declined to verify the compromise for passing decree for eviction. In my considered opinion, the learned Court below has done substantial justice in the matter, which cannot be made subject-matter of judicial review in this revision petition. 12. The judgment in Jainuddin (supra), on which learned counsel for the petitioner has placed reliance, cannot render any assistance to the petitioner for the simple reason that in that verdict, at the second appellate stage, this Court had declined to set aside a compromise decree at the behest of sub-tenant. In Rupchand Gupta's case (supra), it was yet again a case wherein an effort was made by sub-lessee for setting aside a decree, which was allegedly obtained by the landlord in collusion with the original lessee. It may be observed here that, in that case, sub-lessee was not a party to the litigation and had not joined issue with the landlord. Therefore, in that background, Hon'ble Apex Court has brushed aside the ground of collusive decree asserted by the sub-lessee. In case of K. Sanjeev A. Rao & Others (supra) also, which was a case wherein decree for eviction was passed against the original tenant. In this background, Hon'ble Apex Court, while considering tenancy of sub-tenant as illegal, has declined to interfere with the decree for eviction. Therefore, this judgment too cannot render any assistance to the petitioner. The decision in Apani Dei (supra), on which learned counsel for the respondent has placed reliance, is also not throwing any light on the issue involved in the matter. 13. Hon'ble Apex Court in Zahoor Bux & Another vs. Fareed Bux and Others, (2005) 13 SCC 383 has held that if there is objection about genuineness of compromise, the Court is required to hold inquiry with regard to genuineness and permit the parties to lead oral and documentary evidence on the said question. 13. Hon'ble Apex Court in Zahoor Bux & Another vs. Fareed Bux and Others, (2005) 13 SCC 383 has held that if there is objection about genuineness of compromise, the Court is required to hold inquiry with regard to genuineness and permit the parties to lead oral and documentary evidence on the said question. The Court observed in para 3 as under:- 3. The Deputy Director of Consolidation by his order dated 12-5-1983, disposed of Revisions Nos.1493 and 1494 in terms of the compromise petition filed before him and recorded the compromise. Thereafter an application was filed on 19-5-2000 by Appellant 1 for recall of the said order on the ground that the compromise was forged and fabricated. The Deputy Director of Consolidation by his order dated 5-6-2002, dismissed this application without holding any inquiry as to whether the compromise was genuine or not. If any of the parties has any objection to the recording of compromise on the ground that the same was not genuine inasmuch as it did not bear the signature of the affected party, in that event, the court, which recorded the compromise, is required to hold an inquiry with regard to genuineness or otherwise of the compromise after giving opportunity to the parties to lead oral and documentary evidence on the said question, which procedure having not been adopted by the Deputy Director of Consolidation, we are of the view that the impugned orders passed by the Deputy Director of Consolidation as well as the High Court are fit to be set aside. 14. It goes with saying that in the matter of eviction, decree for eviction of a tenant cannot be passed solely on the basis of a compromise between the parties inasmuch as Court is required to record its satisfaction about the statutory grounds for eviction. Reliance, in this behalf, can be placed on Smt. Nai Bahu vs. Lala Ramnarayan & Others, (1978) 1 SCC 58 . 15. It is trite that scope of revision is limited and Court is to exercise revisional powers in exceptional cases. Interference in revision pre-supposes failure of justice or apprehension of irreparable injury. Hon'ble Apex Court in Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd. (1999) 1 SCC 37 , while examining scope of judicial review under Section 115 CPC, held in para 10 and 11 as under:- 10. Interference in revision pre-supposes failure of justice or apprehension of irreparable injury. Hon'ble Apex Court in Mahabir Prasad Singh vs. Jacks Aviation Pvt. Ltd. (1999) 1 SCC 37 , while examining scope of judicial review under Section 115 CPC, held in para 10 and 11 as under:- 10. In our view, the High Court has committed a jurisdictional error in entertaining the revision petition filed by the respondent challenging the order dated 21-5-1998. That order is clearly not revisable by the High Court in view of the specific interdict embodied in the proviso to Section 115(1) of the Code. Under the same sub-section, a High Court is empowered to call for the records of any case which has been decided by any court subordinate thereto, if it had exceeded or failed to exercise the jurisdiction vested in it, or had acted illegally or with material irregularity. In such cases, the High Court has power to make such order as it thinks fit. The restriction against exercise of such a general power has been incorporated in the proviso which was inserted in the subsection by the CPC Amendment Act of 1976. That proviso reads thus: “Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where:- (a) The order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. (b) The order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.” 11. Out of the two clauses in the proviso, the former has no application to the order which has been challenged in the High Court because even if the application of the respondent filed on 21-5-1998 was granted, the suit would not have been finally disposed of. The later clause could be resorted to only if that order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the respondent. The later clause could be resorted to only if that order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the respondent. Thus, even if such an order passed by the subordinate court has any illegality or is affected by material irregularity, the High Court will not interfere unless the said order, if allowed to stand, would occasion a failure of justice or its effect would be infliction of irreparable injury to any party. 16. Legal position is no more res-integra that revisional powers are not akin to appellate powers inasmuch as appellate jurisdiction involves rehearing of the matter, whereas same is not the case in case of revisional jurisdiction. Constitutional Bench of Hon'ble Apex Court in Hindustan Petroleum Corporation Ltd. vs. Dilbahar Singh, (2014) 9 SCC 78 has held as under:- We are in full agreement with the view expressed in Sri Raja Lakshmi Dyeing Works that where both expressions "appeal" and "revision" are employed in a statute, obviously, the expression "revision" is meant to convey the idea of a much narrower jurisdiction than that conveyed by the expression "appeal". The use of two expressions "appeal" and "revision" when used in one statute conferring appellate power and revisional power, we think, is not without purpose and significance. Ordinarily, appellate jurisdiction involves a re-hearing while it is not so in the case of revisional jurisdiction when the same statute provides the remedy by way of an 'appeal' and so also of a 'revision'. If that were so, the revisional power would become co-extensive with that of the trial Court or the subordinate Tribunal which is never the case. The classic statement in Dattonpant that revisional power under the Rent Control Act may not be as narrow as the revisional power Under Section 115 of the Code but, at the same time, it is not wide enough to make the High Court a second Court of first appeal, commends to us and we approve the same. We are of the view that in the garb of revisional jurisdiction under the above three Rent Control Statutes, the High Court is not conferred a status of second Court of first appeal and the High Court should not enlarge the scope of revisional jurisdiction to that extent. 17. We are of the view that in the garb of revisional jurisdiction under the above three Rent Control Statutes, the High Court is not conferred a status of second Court of first appeal and the High Court should not enlarge the scope of revisional jurisdiction to that extent. 17. In totality, I am unable to find any illegality or material irregularity in exercise of jurisdiction by the Court below in rejecting the application under Order 23 Rule 3 CPC, requiring interference in exercise of revisional jurisdiction of this Court. Moreover, the impugned order has also occasioned failure of justice. 18. Resultantly, revision petition fails and same is, hereby dismissed. Let record of the case be sent back to the learned trial Court forthwith.