T.S. Singh Deo vs Ramanuj Dubey and Another

Hon''ble Shri Prashant Kumar Mishra, J.

Writ Petition Under Article 226/ 227 of the constitution of India

This writ petition under Article 227 of the Constitution of India has been preferred by the plaintiff/landlord challenging the Executing Court''s order dated 28.9.2004 whereby the Executing Court i.e., the Fifth Civil Judge, Class-II, Ambikapur has allowed judgment debtor''s application u/s 3 read with Article 135 of the Limitation Act, 1963 (henceforth the "Act") and has dismissed the execution application on the ground that the Execution Application having been preferred after 3 years from the date of decree is barred by limitation as provided under Article 135 of the Act and as such it deserves to be dismissed. The petitioner/plaintiff preferred a suit for permanent injunction against the respondents/defendants seeking issuance of a decree to restrain them from damaging/demolishing the tenanted premises or to repair the same by themselves or through any relative, servants or agents and also for restraining them to create sub-tenancy or to allow Defendant No. 2 to enter into the tenanted premises. This prayer was made on the allegation that Defendant No. 1 Ramanuj Dubey is the tenant at a monthly rent of Rs. 250/-. However, he is undertaking major reconstruction by demolishing the premises and is trying to handover possession to the third parties and is also not paying rent to the plaintiff. It was specifically mentioned in Para 4 of the plaint that a separate suit for eviction of Defendant No. 1 is filed, however to avoid misjoinder of two different reliefs and to avoid complication, the present suit is filed. The defendant No. 1 has, in fact, allowed Defendant No. 2 to occupy the premises and the said Defendant No. 2 has installed sign board of his own-shop and is causing demolition/major repairs in the premises. In their written statements, the defendants stated that defendant No. 1 is regularly paying the rent and is in occupation of the premises. The tenanted shop being in dilapidated condition, some repairs are undertaken as Defendant No. 1 suffered theft in his shop because of weak windows and doors. It was stated that one Atul Dubey member of the joint family of Defendant No. 1 is opening his office in the tenanted premises and the premises has never been handed over to Defendant No. 2 and in fact said Defendant No. 2 is not at all concerned with the suit shop.

During the pendency of the suit, an application for compromise under Order 23 Rule 3 CPC was filed in which Para 1.b relevant for the present dispute was couched in the following words:

The defendant No. 1 shall retain possession as a tenant till 30.11.1996 and thereafter he shall hand- over possession to the plaintiff because the construction is old and the plaintiff bonafidely needs the premises for the purpose of reconstruction and if Defendant No. 1 demands from the plaintiff, he shall provide one newly constructed shop to the Defendant No. 1, for which, a separate agreement shall be entered into between the parties.

On 22.11.1995, a decree in terms of compromise was passed vide Annexure P-4. The decree holder thereafter moved an application for execution to which a reply was filed by the judgment-debtor vide Annexure P-5 and at the same time, a separate application u/s 3 read with Article 135 of the Act was preferred for dismissing the execution application being barred by limitation as it has been submitted after more than 3 years as provided under Article 135 of the Act. In his reply to this application, the petitioner stated that Article 135 of the Act is not attracted and the subject decree being a decree for eviction, the same can be put to execution at any point of time.

The Executing Court however agreed with the submission made by Respondent No. 1 tenant and has dismissed the execution application.

The issue falling for consideration before this Court is whether the compromise decree is a decree for mandatory injunction to which Article 135 of Limitation Act is applicable or is a decree for eviction under Rent Control Act. The suit as it was originally filed was for permanent injunction as the plaintiff prayed for issuance of a decree for restraining the defendants to demolish the tenanted premises and for restraining Defendant No. 2 to enter into plaintiff''s premises. There was no prayer for passing a decree for eviction. However, at the same time there was no prayer also for issuance of decree for mandatory injunction. In the application for recording compromise filed under Order 23 Rule 3 of CPC parties agreed before the Court to pass a decree for eviction when the defendant promised that since the plaintiff needs the premises for reconstruction, he shall vacate the premises by 30th of November, 1996 and the plaintiff in turn promised to hand over one newly constructed shop to the Defendant No. 1, for which, a separate agreement will be entered into. Thus it is a decree in terms of Section 12(1)(h) read with Section 18 of the C.G. Accommodation Control Act, 1961 (henceforth "the Act 1961"). Even if the original plant did not make any pleading or sought any relief for eviction but the parties by agreement and more particularly Defendant No. 1 by his admission of the ground enumerated u/s 12(1)(h) conferred jurisdiction on the trial Court to pass a decree for eviction on the ground which falls within the ambit of Section 12(1)(h) read with Section 18 of the Act, 1961. In Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, , it has been held that the Court considering a case under the Rent Control Act is not competent to pass a decree for possession either in invitum or with the consent of the parties on a ground which is de-hors the Act or ultra vires the Act. A prohibitory mandate to the Rent Court that it shall not travel beyond the statutory grounds mentioned in Sections 12 and 13 (of the Bombay Rents, Hotel and Lodging House Rates Control Act) and to the parties that they shall not contract out of those statutory grounds is inherent in the public policy built into the statute with further observation that mere fact that Order 23 Rule 3 of CPC is applicable to the proceedings in a suit under the Bombay Rent Act, does not remove that prohibition on the Rent Court or empower it to make a decree for eviction de-hors the statute. The Supreme Court further observed that the consent decree for possession passed by the Court is not necessarily a nullity. If there was a clear admission in the compromise, incorporated in the decree, of the fundamental facts that could constitute a ground for eviction under S. 12 or S. 13, it will be presumed that the court was satisfied about the existence of such statutory ground and the decree for eviction though apparently passed on the basis of a compromise, would be valid. While laying down the principle, the Supreme Court followed its earlier decision rendered in K.K. Chari Vs. R.M. Seshadri, .

In the present case also, though the plaint did not mention any ground for eviction u/s 12(1) of the Act 1961, however, by incorporating the ground u/s 12(1)(h) read with Section 18 of the Act in the compromise application the tenant admitted one of the ground for eviction and conferred jurisdiction on the Court to pass a decree for eviction of the suit premises. Thus a suit for permanent injunction as it was originally filed culminated into passing a decree for eviction on one of the grounds u/s 12(1) of the Act 1961 and as such the decree is not for issuance of any mandatory injunction so as to attract Article 135 of the Limitation Act but is rather a plain and simple decree for eviction and the learned Executing Court has committed serious error of jurisdiction by treating the same as a decree for mandatory injunction and dismissing the application for execution as barred by limitation.

For the foregoing reasons, this Court is of the considered opinion that if the impugned order is allowed to remain intact it shall occasion failure of justice inasmuch as execution of a decree for eviction passed in terms of compromise has been dismissed wholly on untenable grounds. The petition under Article 227 of the Constitution of India deserves to be and is hereby allowed. The impugned order is set aside. There shall be no order as to costs.