Fazullah Sheriff vs Abdul Wahab Khan and Others

Jagadeesan, J.—The predecessor in title of the respondents herein filed the suit O.S. No. 5962 of 1970 on the file of the City Civil Court,

Madras against the petitioner herein for recovery of possession of the suit land or both the land and the superstructure after payment of

compensation to the defendant for superstructure and for other consquential reliefs.

The defendants, who is the petitioner herein, filed a written statement, contesting the claim. Ultimately, the suit was decreed on 26.2.1973 in the

following terms:-

A"" 1. That the defendant is directed to deliver vacant possession of the land without superstructure.

That the first defendant be and is hereby directed to pay the plaintiff a sum of Rs. 90/- being the arrears of rent and damages from 1.10.67 to

30.9.70.

That the defendant is hereby directed to pay Rs. 2.50 per month being subsequent damages till possession is delivered.

4 That the defendant do pay to the plaintiff a sum of Rs. 24.95 ( Rs Twenty four paise ninety five only) as and towards the costs of the suit as

taxed and noted below:-

Particulars of costs

Plaintiffs costs Defendant''s costs

Rs. P. Rs. P.

Stamp on plaint 10 00

Vakalath 1 50

Process 1 50

Petitions 0 75

Counsel foes 11 20

Total 24 95

''A'' Amended as per order in I.A. No. 5088 of 1973 dated 20.4.74.

The petitioner herein filed a claim petition u/s 47 C.P.C. The predecessor-in-title of the respondents herein filed the E.P. No. 1502 of 1979 for

executing the decree for delivery of possession. In the claim petition, the petitioner has stated that the suit was decreed ex-parte and the decree

was amended without notice to him whereby the plaintiff/ respondent herein has been granted the relief of possession by removal of

superstructures, while the original prayer in the plaint was for a direction to put the plaintiff in possession of the suit land both the suit land and the

superstructure after payment of compensation. As the amendment was carried out behind the back of the petitioner, the execution petition as

framed is not maintainable in law. In view of Section 4 of the City Tenants'' Protection Act, 1921, hereinafter referred to as ''the Act'', the

respondent cannot claim delivery of possession after removal of superstructure. Further, in the amendment petition, the respondent has prayed for

provision of compensation for the superstructure and hence, the decree cannot be executed as the same is not enforceable in law.

The predecessor in title of the respondents filed a counter stating that the petitioner herein never filed any petition before the court claiming

compensation for the superstructure. He also never filed any petition u/s 9 of the Act to enforce his right to purchase the land. They allowed the suit

to be decreed ex-parte in 1973. In the E.P. also without claiming any compensation, the petitioner raised objections with regard to the execution of

the decree itself. After 12 years of the decree, the petitioner came up with a claim for compensation as a condition precedent for delivery and this

petition is not maintainable. The executing court, by order dated 18.11.1985, has dismissed E.A. No. 1871 of 1980 filed by the petitioner herein

after considering the contentions of the parties.

The main contention of the counsel for the petitioner is that the petitioner remained ex-parte and the decree has been passed exparte. Originally,

clause 1 of the decree is to the effect that the defendant is directed to deliver vacant possession of the land without superstructure. Subsequently,

the decree has been amended in I.A. No. 5088 of 1983 by order dated 20.8.1974 in the following terms:-

The plaintiff is granted a decree for recovery of vacant possession of the suit land or both land and superstructure after receiving compensation for

the superstructure.

This makes it clear that the plaintiff is entitled to recover possession on payment of compensation to the defendant for the superstructure. Now, the

predecessor in title of the respondents herein have filed the E.P. on the basis of the original decree and hence, the execution is not maintainable

because, Section 4 of the said Act makes it clear that it is incumbent on the part of the Court to fix compensation in the ejectment Suit, and it is

mandatory on the part of the Court to fix the compensation. Even assuming that the E.P. is maintainable by virtue of the amended decree wherein

the direction has been given to the respondents to pay the compensation still the decree cannot be executed as the Court below has not fixed the

quantum of compensation to be paid to the petitioner herein. As the decree passed by the court below is totally contradictory to the provision of

Section 4 of the Act, the. decree is not enforceable in law.

The counsel for the respondents contended that even though the E.P. was filed with the original decree wherein the respondents are entitled to

get delivery of possession without superstructure, by virtue of the amendment of the decree by order dated 20.5.1974, the petitioner is entitled for

compensation and as such the respondents are willing to pay the compensation and the executing court may be directed to fix the quantum of

compensation for the superstructure.

Heard both the counsel. Of course, the point raised by the petitioners counsel is an appreciable one. When a suit for ejectment is filed, section 4

of the Act provides that in a suit for ejectment against a tenant in which the landlord succeeds, the Courts shall ascertain the amount of

compensation, if any, payable u/s 3 and the decree in the suit shall declare the amount so found due and direct that, on payment by the landlord

into court, within three months from the date of the decree, of the amount so found due, the tenant shall put the landlord into possession of the land

with the building and trees thereon. On the basis of this provision, the counsel for the petitioner contended that it is incumbent on the part of the

court to fix the compensation and in the absence of the quantum in the decree for ejectment, the said decree is not valid, Legally, this objection has

to be accepted.

It could be seen that the petitioner herein who is the defendant in the suit had filed the written statement as early as on 30.8.1971. Ultimately, he

allowed the suit to set ex-parte on 26.2.1973. It is admitted by both the counsel that the suit had been decreed ex-parte. Now coming to the

practical aspect of the case, in a suit for ejectment, if the defendant remains ex-parte, without claiming the compensation or without placing any

materials to ascertain the quantum of compensation for the superstructure and allows the suit to be decreed ex-parte, is it open to him to challenge

the decree as in the present case? By virtue of his conduct, the defendant allowed the suit to be decreed exparte, and thereafter taking the

objection that the decree itself is a nullity in the absence of any quantum of compensation. Virtually, this would amount to abuse of process of

court. When once the defendant in a ejectment suit remains ex-parte, thereafter, it is not open to him to challenge the decree even on the ground of

want of statutory requirements. The landlord, who filed the suit as in this case, in the year,1970 and obtained the decree in 1973, will be driven

from pillar to post to get the fruits of the decree. If the contention of the petitioner, is to be accepted, then on his own violation, he makes the

decree nullity and it appears, the plaintiff is to file a fresh suit for the same relief. That may not be the intention of the legislature when they

prescribed the conditions u/s 4 of the Act. It will only applicable to those cases where the defendant put forth his claim and urge the court to fix the

quantum of compensation. Then it is incumbent on the part of the Court to fix the amount of compensation.

Even assuming that it is incumbent on the part of the court to fix the amount of compensation irrespective of the defendant in the ejectment suit

claims any compensation amount or not then the fault of non-fixing of the compensation cannot be attributed to the plaintiff. Virtually, it would be a

mistake on the part of the court because when the statute prescribes that the court shall ascertain the amount of compensation payable u/s 3 and

the decree in the suit shall declare the amount so found due means that it is the duty of the Court to comply with the statutory prescription. Hence,

the other aspect of the case is that because of the mistake committed by the court whether the plaintiff can be deprived of his fruits of the decree is

to be considered. It is not because of the fault of the plaintiff the court failed to fix the quantum of compensation. As it has been held in the

decisions reported in P. Jayarama Pillai v. Union Bank of India Rep by its Branch Manager (1990) T.L.N.J. 339, National Bank For Agriculture

and Rural Development, Bombay-18 v. Gautham Constructions and Fisheries Pvt. Ltd. Madras (1991) T.L.N.J.49 and Jang Singh Vs. Brijlal and

Others, that on one should suffer because of the mistake of the court.

In the decision reported in P. Jayarama Pillai v. Union Bank of India Rep by its Branch Manager 1990 T.L.N.J. 339, it has been held as

follows:-

It is well known that no party can suffer because of the mistake committed by the court. In this case, the mistake committed by the court in

drafting the decree was rectified only in July, 1986 and the decree-holder cannot suffer because of that mistake and loss and their right to apply for

final decree even before the mistake was rectified.

In National Bank For Agriculture and Rural Development, Bombay-18 v. Gautham Constructions and Fisheries Pvt. Ltd. Madras (1991) T.L.N.J.

49, a learned Judge of this court held as follows:-

It is well known that no party can suffer because of the mistake committed by the court. In this case, the mistake committed by the original side of

this Court in not numbering the O.P. Diary own fault to set up the plea of 1he validity of the decree as and when he chooses. Hence, even though

the lower court might have dismissed, the EA for other grounds, for the reasons stated above, I don''t think the E.P can be dismissed on the

ground that the decree is not an enforceable one. The petitioner is entitled for compensation as per Section 4 of the Act especially when he has not

chosen to file any petition u/s 9 enforcing his right to purchase the land and the compensation is to be fixed on the date of the decree. Hence, I

direct the Executing Court to hold an enquiry with regard to the quantum of compensation the petitioner herein is entitled to as on the date of the

decree of the suit and I further direct the respondents herein to pay such compensation before delivery is taken. I am of the view that in the interest

of justice, this would serve the purpose for both the petitioner and the respondents. The Civil Revision Petition is partly allowed with the above

directions. No costs.

In view of the final orders passed in the C.R.P. no further or separate order is necessary in C.M.P. No. 17407 of 1986.