U. Devadas Rao vs Gobordhan Dutta

Amitabha Dutta, J.—This is an appeal from the decision of the learned Subordinate Judge, 5th Court, Alipore reverting the decision of the learned Munsif Second Additional Court, Alipore who has allowed the appellant judgment debtor''s objection u/s 47 read with Section 151 of the CPC for dismissing the Title Execution Case No. 56 of 1972 In Misc. Case No. 20 of 1973. The respondent brought Title Suit No. 201 of 1966 against the appellant who was a monthly tenant In the western portion of the ground floor of a two storied building at 4B, Sailendra Halder Street. Kalighar, Calcutta at a monthly rent of Rs. 90/- for his eviction on the grounds of subletting, nuisance, and reasonable requirement for the owner''s own use and occupation as mentioned in Section 13(1)(a), (e) and (ff) of the West Bengal Premises Tenancy Act. 1956. The said suit ended in a com promise on the basis of a joint petition filed by the parties which reads as follows :

The humble petition of the plaintiff and the defendant in the above suit Most respectfully sheweth :

That the above suit was Instituted for khas possession of the premises to the plaintiff after evicting the defendant therefrom and the mesne profit.

That through the intervention of common friends and well wishers of the parties your petitioners have comprised the above suit on the following :

Terms

(a) That the suit will be decreed in favour of the plaintiff.

(b) That the plaintiff shall net be entitled to execute the decree till 31st March 1973 provided the defendant pays to the plaintiff a sum of Rs 140/- per month within seven days of every English calendar month by way of mesne profits for use and occupation of the premises commencing from April 1968.

(c) That it is specifically agreed by and between the parties that the defendant would be entitled to use and occupy the suit property with the amenities of continuous supply of water for which the plaintiff would take all possible steps, (be it noted that the supply would be available during the normal hours of supply of water given by the Corporation of Calcutta to the premises).

d) That the defendant has deposited rent and carnages upto March, 1968 in the court and the plaintiff would be entitled to withdraw the same without security as also any sum lying deposited in favour of the plaintiff in the office of the Rent Con-roller, Calcutta.

e) That if the defendant falls or neglects to pay the mesne profits for use and occupation of the premises as mentioned in clause (b) above for two months or mere the plaintiff shall be entitled to execute the decree immediately and take khas possession of the premises and the plaintiff in that case need not wait till 31st March 1973. The tender of means profit by cress cheque or by money order or by deposit in court would be sufficient compliance.

f) That if the defendant chooses to continue in his possession for another years beyond March, 1973 he would intimate in writing to the plaintiff at least before a month from the date of expiry of the stipulated period and this option of the defdt would be deemed to be irrevocable. In that case the defendant shall be liable for payment of means profile at enhanced rate for use and occupation of the premises which would be determined by the lawyers of both the parties in taking into account or any increase of Municipal Tax after execution of this Solenama.

(g) That on or before 31st March 1976 the defendant shall quit and vacate the premises in suit and deliver vacant and peaceful possession of the same to the plaintiff. If the defendant falls to vacate the premises within 31 et March, 1976 the plaintiff shall be entitled to put the decree in execution and obtain possession of the suit property.

(h) That the defendant vacating the premises within that 31st March, 1973 or 31st March, 1976 the decree for eviction and mesne profit shall stand fully satisfied and none of the parties have any claim against the other

(i) That the parties shall mutually accommodate each other in the matter of using common amenities and shall wipe out the arena of conflict as far as practicable, through the mediation of the lawyers and the parties (who In case of divergence of opinion, shall appoint an umpire whose decision would be final and the arbitration clause cannot be avoided by the parties during the period of occupation of the defendant).

(j) That the parties shall bear their own cost.

(k) That no party has any manner of claims against the other The defendant will forego claims for money If still due to the plaintiff as per order No. 22 of the Rent Controller, Calcutta dated 26.3.1964 in case no. 906/B of 1962.

(1) That each term of the solenama would be considered as consideration for alia other terms.

In the circumstances your petitioners pray that your honour would be pleased to decree the suit in terms of the solenama making the solenama a part of the decree. And your petitioners as In duty bound shall ever pray.

On 8.4.1968 the said suit was decreed on consent in terms of the compromise petition filed by the parties which form a part of the decree.

Admittedly the appellant did not pay to the respondent the mesne profit for the months of June. July end August, 1972, So the respondent put the consent decree into execution in Title Execution Case No. 56 of 1972. The appellant filed an application u/s 47 read with Section 151 of the Cede of Civil Procedure claiming that the execution case was not maintainable in law as a new tenancy had been granted to him at an enhanced lent by the appellant under the compromise decree and that the appellant could not be evicted without a fresh suit for eviction under the West Bengal Premises Tenancy Act, 1956. The respondent filed petition of objection denying the said plea and claiming that the appellant was liable to be evicted in execution of the consent decree for failure to pay mesne profit for more than two months as provided in clause (c) of the petition of compromise forming part of the decree. The learned Munsif has held that what is payable by the defendant to the plaintiff under the terms of the compromise is really rent although it has been celled mesne profit and that the relationship of landlord and tenant has been established between the parties after the defendant paid rent to the plaintiff In terms of the compromise. In that view he has upheld the objection to execution of the decree raised by the appellant The first appellate court has reversed the decision of the learned Munsif as it has held that grant of time to the tenant who has suffered a decree for eviction on payment of mesne profit cannot be considered as grant of fresh tenancy and that the compromise decree is valid and executable

Before this Court the principal submission made by the learned advocate for toe appellant is that the consent decree is a nullity as the court had no jurisdiction to pass a decree without being satisfied that one or more of the grounds for eviction existed and there is nothing to show that the court was satisfied of the existance of any such ground before it passed the decree. In this connection reliance has been placed on the decision of the Supreme Court in Ferozi Lal Jain Vs. Man Mal and Another, and in the case of Kaushalya Devi and Others Vs. Shri K.L. Bansal, supporting the said proposition. But in my view the law has been clarified by the Supreme Court in its subsequent decisions. In the case of Nagindas Ramdas Vs. Dalpatram Ichharam alias Brijram and Others, , the Supreme Court referred to the decision in K.K. Chari Vs. R.M. Seshadri, in which the aforesaid two cases among others were distinguished and it has been held that the principle that emerges is that if at the time of the passing of the decree there was some material before the court on the basis of which the court could be prima facie satisfied about the existance of a statutory ground for eviction, it will be presumed that the court was so satisfied and the decree for eviction apparently passed on the basis of a compromise would be valid. Such material may take the shape either of evidence recorded or produced in the case or it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement itself. (Part 26 at pages 476-477). The Court further observed (vide para 29; '' All that it (the executing court) has to see is whether there was some material on the basis of which the rent court could have as distinguished from must have been satisfied as to the statutory ground for eviction To allow the executing court to go beyond that limit would be to exalt it to the status of a superior court sitting in appeal over the decision of the rent court. Since in the Instant case there was a clear admission in the compromise incorporated in the decree of the fundamental facts that could constitute a ground tor eviction u/s 12(3)(a), the executing court was not competent to go behind the decree and question its validity". In the case of Roshen Lal vs. Madan Lal AIR 1975 SC 210 the Supreme Court held (vide paragraph 5) "The compromise must indicate either on its face or in the background of other materials in the case that the tenant expressly or impliedly is agreeing to suffer a decree for eviction because the landlord in the circumstances is untitled to have such a decree under the law " In the case of Smt. Nai Bahu Vs. Lala Ramnarayan and Others, the compromise decree In the eviction suit recited that the defendant admitted fully the plaintiff''s claim in the suit and provided that the decree dated 13th July, 1960 was executable only after 5 years that the defendants were to pay mesne profit at Rs. 170/- per month from 15.7.60 regularly on the 15th of next month till they actually vacated the house by the pointed date i.e. 15.7, 65 and that if the defendants failed to comply with the above term the plaintiff would be entitled to execute the decree In that case the Supreme Court observed as follows :

After careful consideration of the terms of compromise and the whole tenor of the compromise petition it is absolutely clear that there was no intention to create lease between the parties. It is the dominant Intention of the document which must guide the construction of its contents In the recital of the compromise petition in three places it is stated categorically that "the plaintiff shall be entitled to execute her decree against the defendants". There was, therefore, no intention to create a lease with regard to any portion of the property although certain arrangments had been entered into for the interim occupation of a certain portion before vacating that portion after expiry of five years." (vide paragraph 20 at page 28).

In the present case unfortunately the record of Title Suit No. 201 of 1966 has been destroyed under the rules. It is, however, not disputed that the plaintiff brought the suit for eviction on the statutory ground mentioned In clauses (a), (e) and (if) of sub-section (1) of Section 13 of the West Bengal Premises Tenancy Act. Having regard to this position and the consent decree passed in the suit in the light of the aforesaid decisions of the Supreme Court I find that there is no substance in the points raised on behalf of the appellant that the consent decree is a nullity that the construction of the decree by the executing court is correct as the amount payable as mesne profit mentioned in the compromise petition should be construed as rent as defined under the Transfer of Property Act according to the rule in pail material that the expression default of '' two months or more in clause (e) in the compromise petition is vague end that the renewal clause therein indicates the intention to create a fresh tenancy. It appears from clause (a) of the compromise petition that the defendant who was aware of the grounds of eviction in the suit accepted the plaintiff''s claim for eviction by agreeing "that the suit will be decreed in favour of the plaintiff." This clause considered in the background of the statutory grounds for eviction on which the suit was bated shows an implied admission of the existence of such grounds and the satisfaction of the court which passed the decree as to the existance of such grounds should be presumed.

The rule in pari materia does not apply when a contrary intention is manifested by other qualifying or explanatory terms and where the expression used are intended to convey a different meaning. In the instant case the amount payable by a tenant who has suffered a decree for eviction cannot be interpreted as rent on a supposed theory of creation of new tenancy which is contrary to the dominant Intention of the parties manifested by the terms of the compromise in at least two places mentions that the plaintiffs shall be entitled to execute the decrees and obtained possession of the suit premises. The amount payable for use and occupation partakes of the character of mesne profits as the tenant ceases to be a tenant after an ejectment decree is passed against him (vide Section 2(h) of the West Bengal Premises Tenancy Act The clause (g) in the compromise petition giving the defendant option to continue occupation of the suit premises upto 31 3.76 on payment of mesne profit at enhanced rate does not in my view lead to any reasonable inference that the parties intended to create a fresh tenancy in the suit premises in favour of the defendant It is well settled that under the guise of Interpretation the court cannot make a new decree for the parties On a consideration of the terms of the compromise petition as a whole we find that there was absolutely no intention to create a fresh tenancy and that the parties agreed to a decree for eviction of the defendant the execution of which was kept in suspension and the defendant was allowed to occupy the suit premises for a maximum period up to 31.3.76 on the terms and conditions mentioned in the compromise petition. As the defendant failed to pay mesne profit for three months from June to August, 1972 the plaintiff was entitled to execute the decree In terms of clause (e) of the compromise petition which forms part of the decree. In my view in the present case the consent decree was validly passed and the learned Subordinate Judge has rightly held that it is executable reversing the decision of the executing court.

In the result I find that there is no merit in this appeal. The appeal is dismissed. No order is made as to costs.

Let the records be sent down to the court below as early as possible.