Kapur Chand vs Munshi Ram and Another

Kapur, J.—This is an appeal against an appellate order passed by Mr. Manohar Lal Vij. Senior Subordinate Judge, Delhi, affirming an order of the Subordinate J. 1st Class, Delhi, who held that the tender of the decretal amount was not proved to have been made within the time allowed in the compromise decree and therefore allowed the execution to proceed.

The facts of the case are that a compromise in a suit was entered into between Munshi Ram, the landlord, and Kapur Chand, the tenant, and the decree was that the suit for ejectment would be dismissed if, within seven days from 1-4-1950, the tenant would pay the arrears of rent (Rs.150/-) to the landlord otherwise it shall stand decreed. On 5-4-1950, the J.D. made an Appellant for deposit of the decretal amount and the same day an order was passed by the Court that the money be deposited. It appears that on 6-4-1950, some Court official pointed out that the number of the case had not been given and wrote on the Appellant that the number be given. At any rate, no money was deposited on 6-4-1950, nor does it appear that any tender was made on that date. On 7 and 8-4-1950, the Courts. were closed. On 8-4-1950, the J.D. sent a money order which was rightly refused by the D.H. on 12-4-1950. On 25-4-1950, the J.D. then deposited the money into the Court

As the money was not deposited within the time prescribed under the compromise decree the D. H. took out execution for ejectment and both the Courts. held time the execution could proceed.

In appeal before me Mr.Sarin the learned Counsel for the Appellant has submitted firstly that he had made a good tender on 5-4-1950, because he had made an Appellant to the Court on that day for the deposit of money. This has been negatived by the Senior Subordinate Judge on the ground that although an Appellant was made the money was never actually tendered or deposited. Mr.Sarin submits that the Appellant was not returned to him till about 3 O'' clock on the 6th April and as 7th and 8th were holidays he could not make the deposit. There is no proof that this appln. was returned to him on the 6th at 3 p.m. or that there was anything done by the Ot. which prevented him from making the necessary deposit.

It is then submitted that this decree cannot be executed as the compromise decree amounts to fresh tenancy and the landlord must take fresh proceedings u/s 9, Delhi and Ajmer-Merwara Rent Control Act, and reliance is placed on a judgment of Shah J., in Gurupadappa Shivlingappa Vs. Akbar Sayad Budan Kadri, The learned Judge there said:

When however, there is, as in the present case, a consent decree which creates a fresh contractual relation of landlord and tenant, the Defendent, gets the rights and privileges of a tenant under Act LVII of 1947, and unless the protection of the statute is properly and validly withdrawn, he would not be liable to deliver possession in spite of the terms of the decree.

I do not see how that would apply to the facts of the present case. As far as I have been able to discover the suit for ejectment had been brought u/s 9, Delhi Ajmer Rent Control Act, and a decree was passed under that A Court Whether the decree was passed by consent or in ''invitum'' I fail to see how it becomes a fresh tenancy. . The Court had passed no doubt by consent a conditional order for ejectment, the condition being that if the tenant paid Within a week''s time arrears of rent the suit shall stand dismissed. In other words, if he did not so pay there shall be a decree for ejectment. If that go I cannot see how Section 9, Delhi Act becomes a bar to the present execution proceedings. In my opinion the decree which was passed was a good decree under the Act and therefore could be executed if the condition imposed by the decree was not unfilled.

Finally, it was submitted by Mr. Sarin the learned Counsel for the Appellant that this is a case In which I should give relief against forfeiture. He bases his argument on two grounds. Firstly, he submits that relief can be given against forfeiture u/s 114, T.P. Act which although not applicable in terms to the Punjab should be applied as far as the principles contained therein are concerned. Under this section relief can be given to a tenant for non-payment of rent under certain conditions. Even if the principles are applicable the question is whether in execution matters it should be applied. For this purpose he relies on his second submission which is that a decree which is passed not in ''invitum but on a compromise is governed by the same principles as any ordinary contract and relying on a recent judgment of the Bombay H.C. in ''Gajanan Govind'' v. Pandurang (53) Bom. L.R.100) he submits that in cases where the relationship of landlord and tenant is created or continued by a compromise decree the J.D., if he is a tenant would be entitled to relief against, forfeiture resuiting from his failure to pay the rent at the stipu latcd time. Even in this case the learned judges did keep in mind the distinction between cases where the D.H. is enforcing a penalty and where the D.H. withdrawing the concession which he gave to the J.D. In order to determine this we have to see what the facts of the present case are. The landlord brought a suit for ejectment of the tenant on the ground of non-payment of rent. u/s 9, Delhi and Ajmer-Merwara Rent Restriction Act it was open to the tenant at the very first hearing to pay the arrears of rent due and costs which would have entitled him to defeat the claim of the landlord lor ejectment. He did not do so. On-the other hand, it was agreed between the parties that if within seven days from 1st of April the tenant paid the arrears of rent which was Rs. 150/- the suit would stand dismissed, otherwise it shall stand decreed. In other words, it was a further concession given by the landlord to the tenant that his suit would stand dismissed if the tenant paid within a week not a sum of Rs. 150/-. As I have said above, the tenant did not take advantage of this and was in my opinion remiss and negligent in not paying the amount in the time allowed. Whatever may be said with regard to the 5th and the 6th of April proceedings and sending the money by money-order on the 8th which I am told was refused on the 12th there is no reason why he should have failed to deposit this amount right up to the 25th of April. and I nave already said that his not depositing by the 5th or the 6th of April was by itself negligence. This being my view of the case I have to see whether the Appellant is entitled to any relief against any penalty, if it is penalty.

In the first place, it is not a case of penalty at all but falls within the rule laid down in ''Waman Vishwanath'' v. ''Yeshwant Tukaram 50 Bom. L.R. 688, i.e. it is a withdrawal of a concession by a D.H. and therefore the rule in ''Gajanan Govind'' v. Pandurang Keshav 53 Bom., L.R. 100, is not applicable. A similar rule was laid down by Tek Chand, J., in Mitha v. Remal Das. A.I.R 1937 Lah. 828. There an agreement was made between ''A'' and ''B'' was given possession of A''s land and he was to repair the well or sink a new well and make the land culturable within ten years and after that he was to become owner of half the land. B remained in possession for 20 years but did not fulfill the condition. A suit was then brought by A for possession of the land but a compromise decree was passed by which B was given two more years to fulfil the conditions and on non-fulfilment A had the right to eject B by taking execution proceedings and it was held when an execution was taken out that A was merely withdrawing the condition which he had given to B and was enforcing his original right and in doing so it could not be said that he was attemptingto get more than he was entitled to at the institution of the suit. The learned Judge reld. on another judgment of his in Jhanda Singh v. Piara Singh (AIR 1933 Lah 23) and on a judgment of Bhide J, in Jawala Ram v. Mathra Das (AIR1931 Lah 696). In my opinion, as this is a case where the J.D. was allowed a concession to pay the rent, which he should have paid at the first hearing Under Section9 Rent Restriction Act, within a week of the 1st of enforcement of a penalty but withdrawal of concession by D.H.

Even if it was a case of penalty, equity will refuse to aid a defaulter if the default is willful least the J.D. has been extremely negligent. In my opinion, therefore, this is not a case in which the penalty should be relieved even if this principle applies. Another case which might, well be Pal v. Madan Lal (16 Pat. 395)., There during the pendency of execution proceedings, the D.H. agreed to accept a smaller sum in full satisfaction of the entire sum if the payment was made within a stipulated period, and as the default was committed it was held that time was of the essence of the contract and this was not a case of forfeiture of any kind where aquity would relieve the J.D. In my opinion, therefore, no case has been made out for interference with the orders of the Courts. Below and I, therefore, dismiss this appeal, but having regard to the facts of the case I leave the parties to bear there own costs throughout.