Allahabad High Court
Km. Anshu Jain And Others vs Suresh Prakash Garg And Others on 10 March, 2021
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR RESERVED Court No. - 4 Case :- WRIT - A No. - 71464 of 2010 Petitioner :- Km. Anshu Jain And Others Respondent :- Suresh Prakash Garg And Others Counsel for Petitioner :- Nagendra Kumar Srivastava Counsel for Respondent :- Sanjai Srivastava,Ajit Kumar,Vivek Srivastava connected with Case :- WRIT - A No. - 52191 of 2011 Petitioner :- Km. Anshu Jain And Others Respondent :- Suresh Prakash Garg And Others Counsel for Petitioner :- Nagendra Kuamr Srivastava Counsel for Respondent :- Vivek Srivastava,Mohit Kumar Shukla,Nipun Mohan Hon'ble Vivek Kumar Birla,J.
1. Heard Sri Nagendra Kumar Srivastava, learned counsel for the petitioners-tenants and Sri Mohit Kumar along with Sri Mohit Kumar Shukla, learned counsel appearing for the respondents-landlords.
2. Leading petition has been filed challenging the impugned orders dated 1.11.1994 and 16.11.2010 passed by the Prescribed Authority/Judge Small Causes Courts, Bulandshahar.
3. The petitioners herein are the tenants of the shop no. 58, Chowk Bazar, Bulandshahar. Initially the said shop was in the tenancy of grandfather of petitioners late Jugmandar Das Jain. After his death, as per family settlement between the legal heirs of late Jugmandar Das Jain, the shop in question was given to Sri Raj Bahadur Jain by means of inheritance from his father. Thereafter, the respondents-landlords initiated the proceedings under Section 21(1)A of the Act No. 13 of 1972 against Sri Raj Bahadur Jain. In the release application, it was stated that the shop in question is required to fulfill the need of his family and the need of the landlord is bona fide and genuine. Thereafter, father of the petitioner late Raj Bahadur Jain filed his written statement in the release application stating therein that the need of the landlord is not bona fide and genuine. On 1.11.1994 one alleged compromise application was filed before the prescribed authority, on the basis whereof the prescribed authority passed the impugned order dated 1.11.1994, against which the tenants-petitioners filed a suit being Original Suit No. 380 of 2004, which was decreed vide judgement and order dated 25.10.2008 wherein it was recorded that after the death of father of the petitioners Raj Bahadur Jain the tenancy right has been inherited by the petitioners and they are the tenants of the shop in question. No appeal against the said judgement was filed by the respondents-landlords. Thereafter, the respondent-landlord Surendra Kumar Jain filed an application dated 18.11.2004 under Section 23 of the Act No. 13 of 1972 for execution of the order dated 1.11.1994, against which petitioners-tenants filed their objection on 16.3.2005. The prescribed authority allowed the application 4A filed under Section 23 of the Act No. 13 of 1972 vide impugned judgement and order dated 16.11.2010. Hence the present petition.
4. Submission of learned counsel for the tenants-petitioners is that the orders impugned herein are illegal, perverse and suffer from manifest error of law. It is next submitted that in view of provisions of Section 21(1)A of Act No. 13 of 1972 for release of the shop in question, prescribed authority ought to record its findings in respect of the bona fide need and comparative hardship. It is further submitted that the court below in its judgement 25.10.2008 passed in original suit no. 380 of 2004 recorded a finding that after the death of Raj Bahadur Jain the tenancy right devolved to his legal heirs. It is further submitted that application filed by the respondent-landlord under Section 23 of the Act No. 13 of 1972 was not maintainable as all the legal heirs of Raj Bahadur Jain was not impleaded. He lastly submits that the respondent-landlord has already got the other shop and the same was let out to another person and as such, the need of the respondent-landlord is not at all bona fide.
5. Learned counsel for the petitioners has placed reliance on the judgements of Ratan Lal vs. Additional District Judge, Bulandshahar and others 1979 (5) ALR 509, Firozi Lal Jain vs. Man Mal 1970 (3) SCC 181, Barkat Ali & Another vs. Badri Narain (D) by Lrs. 2008 (4) SCC 615, Pancham vs. Ram Gen and others 2009 (3) ARC 593, Jagdish Lal Sah vs. Additional District Judge, Nainital & Ors. 2006 (1) JCLR 276 (Uttaranchal), Gian Devi Anand vs. Jeevan Kumar & Ors. 1985 (2) SCC 683, Gauri Shanker:Suresh Gupta:Rajat Roy vs. Union of India:Rajdevsingh: Sobha Singh Private Limited 1994 (6) SCC 349, Nai Bahu vs. Lal Ramnarayan 1978 (1) SCC 58, Srimathi Kaushalaya Devi vs. K.L. Bansal 1969 (1) SCC 59, Saroja vs. Chinnusamy (Dead) by LRs. and Anr. 2007 (8) SCC 329, Smt. Kishan Pyare vs. Rent Control and Eviction Authority-cum-Prescribed Authority, Bulandshahar 2005 (1) JCLR 748, Ramchandra Dagdu Sonavane (D) by Lrs. & Ors. vs. Vithu Hira Mahar (Dead) by Lrs. & ors. 2009 (10) SCC 273, Sajjadanashin Sayed Md.B.E.E. (D) By Lrs. vs. Musa Dadabhai Ummer 2000 (2) JT 352, Aanaimuthu Thevar (Dead) by Lrs. vs. Alagammal 2005 (6) JT 333, Sulochanaamma vs. Narayanan Nair 1994 (2) SCC 14 and M/s Alagu Pharmacy & others vs. N. Magudeswari 2018 (8) SCC 311.
6. Per contra, learned counsel for the landlord submitted that the property was required for personal use of landlord and family of the landlord being Surendra Prakash Garg. Consequently, an appeal under Section 21(1)(a) of the Act was filed before the prescribed authority and that since the tenant Raj Bahadur Jain could not defend against the personal need of the landlord and admittedly entered into a compromise and since the tenant was old person, therefore, taking a sympathetic view of the matter a settlement was arrived at between the landlord and the tenant and compromise to this effect was entered into and filed on 1.11.1994 in the aforesaid PA Case No. 27 of 1992. According to this, the release application was allowed in part and out of the total area of shop being 7.9 ft x 23 ft a shop having 5.6 ft x 12 ft was repaired / constructed and was left in possession of the tenant on the condition that he will remain in possession till his lifetime and thereafter there will be no succession of any right devolving tenancy on legal heirs. The tenant was barred from giving possession of the shop. It was decided that he shall continue to pay rent @ Rs. 18/- per month, which was the earlier rent of the entire accommodation, which will not be changed during his lifetime. It was further provided that the legal heirs shall handed over possession of the shop after death of the original tenant, Raj Bahadur Jain and it was left open that if they failed to do so, the process of recovery of possession of the shop may be initiated as admittedly, compromise was entered into between the landlord and tenant. Although, petitioners herein claimed that they were not aware of such compromise and that they were only aware of this fact that the part of the shop in possession of Raj Bahadur Jain, their predecessor, was handed over to the landlord. It is submitted that this fact itself is sufficient to indicate that the petitioners were aware of this fact that the release application has been compromised on the basis of a compromise and the compromise was admittedly acted upon and the original tenant had, in fact, taken benefit of the same by avoiding the possession of the release application as well as by remaining in possession of a part of the shop. Submission is that the original tenant had, in fact, admitted the bonafide need of the landlord and agreed to release the shop in part and it is only on that basis the compromise was entered into and undisputedly, is a part of the order of the judgment of the prescribed authority. Submission, therefore, is that now the petitioners herein cannot go back on the compromise entered into by the original tenant on technical ground as the compromise was acted upon and they have enjoyed fruits of the compromise for such long years from 1994 to 2014 till the filing of the present litigation for obtaining possession of the shop under tenancy when the petitioners failed to vacate the same. He further submitted that the Original Suit No. 380 of 2014 filed by the petitioners herein for permanent injunction against the landlord was not maintainable and in any case, has no effect on the proceedings before the prescribed authority, moreso, when the landlord adopted proper procedure of law for taking back the possession. It is submitted that the said suit was barred under Section 41 (h) of the Specific Relief Act and was not maintainable. He further submitted that in any case, the tenancy right stood extinguished in view of the compromise of the year 2004 and that the status of Raj Bahadur Jain was that of a licensee thereafter till his death, which stood terminated on his death. Submission, therefore, is that the petitioners did not have any right to acquire any tenancy right in place of Raj Bahadur Jain and the present process is nothing but an abuse of process of law as the compromise was acted upon and the petitioners have enjoyed the fruits of the compromise, which was never disputed by Raj Bahadur Jain and he enjoyed the possession in pursuance of part release only till his death and even the rent was never enhanced.
7. Learned counsel for the landlord has placed reliance on judgments of in the cases of Rakesh Shukla vs. District Magistrate / Sub Divisional Magistrate and another 2002 ALL. L.J. 2388, Saudan Singh Yadav vs. Asstt. Regional Transport Officer (ADM) Mainpuri 1994 (23) ALJ 299, Shree Krishna Jotish Pathshala Kanya Inter College, Bisalpur, Pilibhit and another vs. District Inspector of Schools, Pilibhit and others 1988 UPLBEC 739, Deepa Bhargava and another vs. Mahesh Bhargava and others 2009 (75) ALR 317, Sova Ray vs. Gostha Gopal Dey 1988 AIR (SC) 981, Suleman Noormohamed vs. Umarbhai Janubhai 1978 AIR (SC) 952, Mehar Jahan vs. J.S.C.C./Prescribed Authority, Meerut 1998(2) ARC 587, State of West Bengal vs. Hemant Kumar Bhattacharjee 1966 AIR(SC) 1061, Raghunath and others vs. Ram Khelawan and others 1968 RD 344, Chandrika Misir vs. Bhaiya Lal 1973 AIR(SC) 2391, Jaggan vs. Dular and others 1966 ALJ 1966, Mathura Prasad Bajoo Jaiswal vs. Dossibai N.B. Jeejeebhoyf 1971 AIR (SC) 2355, P. Nirathilingam vs. Annaya Nadar and others AIR 2002 SC 42, Annamreddi Bodayya vs. Lokanarapu Ramaswamy 1984 AIR (SC) 1726, K.V. George vs. Secretary to Government, Water and Power Department, Trivendrum 1990 AIR (SC) 53, ITC Limited vs. Debts Recovery Appellate Tribunal 1998 AIR(SC) 634 and Jagdish Chander Ghatterjee vs. Kishan 1972 (2) SCC 461.
8. I have considered the submissions and have perused the record.
9. On perusal of record I find that the crux of the argument of learned counsel for the petitioners is that if the compromise decree is contrary to statutory provisions, the same is a nullity and cannot be executed. Placing reliance on judgment already referred above crux of the submission is that since prescribed authority had not satisfied itself and that the bonafide need and comparative hardship had not examined any relevant material to find out whether the statutory provisions ground of eviction are proved, the compromise decree, purely on that basis, was a nullity. In the present case, from perusal of record it is clear that the original tenant Raj Bahadur Jain was in possession of a shop measuring 7.9 ft x 23 ft and in the release application filed on the ground of personal need of the family, he agreed to remain in possession of the shop 5.6 ft wide x 12 ft. deep only, which was to be handed over to him by the landlord after the order of the court within 15 days. The compromise further reflects that the old rent @ Rs. 18/- per month was to continue. One cannot be oblivious of the fact that this release application was filed in the year 1992 and even on that point of time Raj Bahadur Jain was old tenant on a meagre rent (old rent) of Rs. 18/- per month, which was not to be increased till he was to remain in possession. The tenant Raj Bahadur Jain clearly stated that he has only daughters and no son, he, therefore, agreed in his wisdom that he will remain in possession of the shop till his lifetime and thereafter, the tenancy shall not devolve on his legal heirs. This fact was specifically mentioned in paragraph 3 of the terms of the compromise and there was a clear understanding that neither his daughters nor their husbands shall claim any tenancy over the shop left in possession of Raj Bahadur Jain and shall hand over the possession to the landlord and if they failed to do so, the landlord will be at liberty to take possession through court. Paragraph 4 of the terms clearly indicates that the expenses for repair of the shop (after making the shop smaller to be left in occupation of the tenant) was to be borne by the landlord. This compromise is not in dispute and is an admitted document. It is also not in dispute that this compromise was acted upon and the release application was decided accordingly. For ready reference terms of the compromise are quoted as under:-
न्यायालय श्रीमान स्थित अधिकारी प्रथम अपर सिविल जज बुलन्दशहर।
वाद संख्या 27सन् 1992 सुरेन्द्र प्रकाश गर्ग बनाम राज बहादुर जैन समझौता पत्र श्रीमान जी, उपरोक्त वाद मे हम फरीकेन मे निम्न शर्तो के आधार पर बाहमी फैसला हो गया हेः-
1- यह कि निजाई व दुकान इस समय 7 फीट 9 इंज चौड़ाई में व 23 फीट गहराई में है जिसमें से 5 फीट 6 इंच चाडी व 12 फीट गहरी तैयार दुकान मालिक जायदाद आदेश के बाद 15 दिन में मरम्मत कराकर विपक्षी किरायेदार को देगा तथा विपक्षी किरायेदार अधिक शेष आराजी उत्तर को पूर्व को मालिक जायदाद को छोड़ेगा जिसमें कोई ऐतराज नहीं है।
2- यह कि भविष्य में पुराना किराया 18-00 माहवार ही लिया जावेगा और भविष्य में किराया नही बढ़ेगा।
3- यह कि विपक्षी भविष्य में किसी अन्य व्यक्ति को दुकान में नही बिठायेगा तथा यदि दौरान किरायेदारी किसी भी कारणो से विपक्षी श्री राज बहादुर जैन की मृत्य हो जाती है तो उस सूरत में श्री राज बहादुर जैन की ओर से कोई उत्तराधिकारी किरायेदारी का नही होगा। श्री राज बहादुर जैन के पुत्र न होने के कारण से श्री राज बहादुर की पुत्रियों व उनके पतियों को कोई हक हकूक किरायेदारी मे नहीं पहूंचेगे ओर दुकान मे से सामान निकालकर स्वामी जायदाद को श्री राज बहादुर के वारिसान व जानशीन सौप देगें अन्यथा सक्षम अदालत से दखल ले लिया जावेगा।
4- खर्चा मरम्मत दुकान मालिक जायदाद करेगा।
5- खर्चा मुकदमा फरीकेन बजिम्मे फरीकेन होगा।
अतः उक्त फैसले के शर्तो के बाजार पर मुकदमा निर्णित फरमाया जावे।
बुलन्दशहर दिनांक/ विपक्षी प्रार्थी राज बहादुर जैन सुरेन्द्र प्रकाश गर्ग (राज बहादुर जैन) सुरेन्द्र प्रकाश गर्ग किरायेदार मालिक जायदाद
आज यह तफसीमानामा 32ए पक्षकारो द्वारा दिया गया है। सुरेन्द्र प्रकाश गर्ग को श्री अनिल जोसी ने शनाख्त किया हे तथा राज बहादुर को श्री राकेश वर्मा द्वारा ने शनाख्त किया पेश होकर आदेश हुआ कि तस्दीक हो।
स्वीकार किया जाता है।
ह० अस्पष्ट 1-11-94 एडी. सि. जज 1-11-94 सुरेन्द्र प्रकाश गर्ग राज बहादुर जैन ह० अपठनीय 1-11-94
10. As per compromise, after carving out the shop at the expense of the landlord to be left in possession of the tenant Raj Bahadur Jain he was to be put in possession and he, admittedly, continued to remain in possession of the shop for about ten years till his death at the same old rent @ Rs. 18/- per month. It is, therefore, clear that the compromise was actively and effectively acted upon and was respected by both the landlord and the tenant Raj Bahadur Jain. The petitioners herein being daughters of the tenant were obviously beneficiary, may be indirectly, of such compromise as the tenant Raj Bahadur Jain continued in peaceful possession of the said shop till his death as the proceeding of the release application did not proceed further on the basis of such compromise. From the record it is further reflected that even after death of Raj Bahadur Jain no challenge to this compromise was raised for considerably long time, as per landlord, for about 16 years.
11. There is no quarrel with the law that in cases where protection under a Rent Act is available, no eviction can be ordered unless ground seeking eviction is made out, even if parties had entered into a compromise and that the invalidity on that count can even be raised in execution. However, whether petitioners can take shelter of such law in the facts and circumstances of the case? I am of the view that the law is also settled that a party cannot be permitted blow hot - blow cold, where he knowingly accepts the benefit of a contract, or conveyance, or of an order, he is estopped from denying the validity of, or the binding effect of such contract, or conveyance, or order upon himself. This rule is applied to ensure equity. A reference may be made in this regard to a judgment of Hon'ble Supreme Court in the case of Rajasthan State Industrial Development and Investment Corporation and another vs. Diamond & Gem Development Corporation Limited and another 2013 (5) SCC 470.
12. The net effect of judgment rendered in the case of Raghunath Prasad Pande vs. State of Karnataka and others 2018 (5) SCC 594 is that once the compromise decree has been acted upon, a party cannot be permitted to go back from the same and the same is not liable to be set aside.
13. In the present case, it is very much clear that release application was filed on the ground of bonafide need. It is a case where the property was released in part and therefore, it is clear that the old tenant had entered into compromise (1) that probably he was not in a position to defend the release application and (2) that he was to remain in possession over the part of the property on the front side for old rent of Rs. 18/- per month throughout his lifetime. It is also reflected that the smaller shop was carved out, out of the bigger shop and was again handed over to the tenant Raj Bahadur Jain to remain in his possession till his lifetime. It is also clear that he was the sole tenant and had every right to enter into compromise about his tenancy rights. Not only the existence of compromise but the execution thereof is still not in dispute and that arrangement under the compromise continued for about 10 years till the death of the tenant Raj Bahadur Jain and they enjoyed the benefits arising out of such compromise.
14. In such view of the matter, at present, clearly it is not a case where the original tenant is coming forward with a case that some fraud was played upon him and the compromise is contrary to statutory provisions. On the other hand, he remained in possession over the agreed part of the accommodation on old rent @ Rs. 18/- per month, which did not increase for about ten years during his lifetime. In other words, the compromise was continuously acted upon by the parties. Thus, now the legal heirs cannot come forward and say that they are the statutory tenant and this compromise was nullity as they were not a party or that it is contrary to law.
15. Insofar as the injunction suit is concerned, decree of civil court granting permanent injunction cannot override the proceedings under the provisions of UP Act 13 of 1972 between the landlord and tenant. Therefore, even if the decree of the Original Suit No. 380 of 2014 was not challenged any further, the same would be of no consequence. The petitioners herein have remained in possession all throughout and have been successfully delayed the delivery of possession, which they were supposed to deliver under the compromise entered into by the predecessor, the original tenant immediately after his death.
16. I have also gone through the judgments relied on by the learned counsel for the parties. Their facts appears to be distinguishable in nature although, as already noticed, there is no quarrel with the settled law as noted in the preceding paragraphs of this judgment.
17. In the opinion of the court the compromise was validly entered into between the landlord and the sole tenant, who enjoyed the fruits or the benefits of the same. The issue of decree to be a nullity is being raised by the legal heirs by simply seeking relief, bye-passing the benefits enjoyed by their predecessor, the original tenant and therefore by them also through him. The terms of the compromise further indicate that the compromise was, in fact, executed at the cost of the landlord carving out a new shop out of a larger shop and handing over the same to the original tenant and by incurring loss towards rent as well as, the rent of the tenant was continued to be Rs. 18/- per month during lifetime of the original tenant Raj Bahadur Jain.
18. In such view of the matter, I do not find any good ground to interfere in the orders impugned herein in exercise of powers under Article 226 of the Constition of India.
19. Present petition is devoid of merits and is accordingly dismissed.
20. However, having considered the facts and circumstances of the case, subject to filing of an undertaking by the petitioner-tenant before the Court below, it is provided that:
(1) The tenant-petitioner shall handover the peaceful possession of the premises in question to the landlord-opposite party on or before 31.8.2021;
(2) The tenant-petitioner shall file the undertaking before the Court below to the said effect within two weeks from the date of passing of this order;
(3) The tenant-petitioner shall pay damages @ Rs. 2,000/- per month by 07th day of every succeeding month and continue to deposit the same in the Court below till 31.8.2021 or till the date he vacates the premises, whichever is earlier and the landlord is at liberty to withdraw the said amount;
(4) In the undertaking the tenant-petitioner shall also state that he will not create any interest in favour of the third party in the premises in dispute;
(5) Subject to filing of the said undertaking, the tenant-petitioner shall not be evicted from the premises in question till the aforesaid period;
(6) It is made clear that in case of default of any of the conditions mentioned herein-above, the protection granted by this Court shall stand vacated automatically.
(7) In case the premises is not vacated as per the undertaking given by the petitioner, he shall also be liable for contempt.
21. There shall be no order as to costs.
Order Date :- 10.3.2021 Lalit Shukla