Punjab-Haryana High Court
Ram Lal vs Pyare Lal on 13 July, 2009
Author: K. Kannan
Bench: K. Kannan
R.A. No.58-CII of 2009 (O&M) -1-
in C.R. No.5165 of 2002
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
R.A. No.58-CII of 2009 (O&M)
in C.R. No.5165 of 2002
Date of Decision: 13.07.2009
Ram Lal .....Applicant/Tenant
Versus
Pyare Lal ....Respondent/Landlord
Present: Mr. O.P. Goyal, Senior Advocate with
Mr. Varun Sharma, Advocate
for the petitioner.
Mr. Arun Jain, Senior Advocate with
Mr. Amit Jain, Advocate and
Mr. Chetan Slathia, Advocate
for the respondent.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest ?Yes
-.-
K. KANNAN J.(ORAL)
C.M. No.15042-CII of 2009 Application allowed.
Facts of the case are taken on record.
R.A. No.58-CII of 2009 in C.R. No.5165 of 2002
1. The application seeks for a review of the order passed by me on 28.04.2009. On that day, the revision petitioner was not present either in person or through counsel and the order came to be passed in the presence of learned counsel for the respondent. The review is sought for on the ground that the judgment was delivered in the absence of counsel and the order contains a prima facie error that requires to be corrected.
R.A. No.58-CII of 2009 (O&M) -2-in C.R. No.5165 of 2002
2. The intervention of this Court was sought in revision against the order passed by the Rent Controller directing eviction while disposing of an objection filed by the judgment debtor. Learned Senior Counsel appearing on behalf of the applicant-tenant points out that the order of eviction was passed on 23.01.1991 as per the terms of compromise and the Court that passed an order on consent cannot expand its terms or substitute its own terms to what was agreed to between the parties. The terms are:
"Statement of Sh. Ram Lal s/o Sh. Budh Raj s/o Sh. Piara Lal, aged 60 years, respondent on S.A. I undertook to vacate the disputed shop admitting the grounds of ejectment as correct. I shall vacate the disputed shop on 30.11.1991. I shall only vacate the disputed shop in case the applicant makes a payment of Rs.1,00,000/- in five bi-monthly equal instalments of Rs.20,000/- each by depositing in the Court falling due on 31.03.1991, 31.05.1991, 31.07.1991, 30.09.1991 and 29.11.1991. In case the applicant makes the payment in lump-sum, then I shall vacate the disputed shop within 15 days of the deposit of the amount. In case I fail to vacate the disputed shop by the stipulated time, then the applicant can withdraw the amount deposited by him."
"Statement of Sh. Piara Lal s/o Jai Ram Dass s/o Sugru Ram, aged 53 years applicant on SA:
I have heard the above statement of the respondent and admit the same as correct. The ejectment petition be R.A. No.58-CII of 2009 (O&M) -3- in C.R. No.5165 of 2002 decided accordingly."
3. The order passed by the Court ran thus:
"Respondent has made a statement admitting the grounds of ejectment as correct undertaking to vacate the disputed shop upto and for 31.11.1991, in case the applicant makes the payment of Rs.1,00,000/- (Rs. One Lac) in 5 bi-monthly installments of Rs.20,000/- each by depositing in the Court on 31.03.1991, 31.05.1991, 31.07.1991, 30.09.1991 and 29.11.1991 respectively. In case the applicant makes the payment in lumpsum, then the respondent shall vacate the disputed shop within 15 days of the day of deposit failing which the applicant can withdraw the amount deposited by him. The above statement has been admitted as correct by the applicant. Accordingly, the respondent is ordered to vacate the disputed shop. File be consigned to the record room."
4. According to learned counsel, the tenant had no doubt agreed to vacate the premises if the amount of Rs.1 lac was paid either in five bi-monthly installments commencing from 31.03.1991 and ending with 28.11.1991 or in lump sum. The compromise provided that he would vacate the premises within 15 days of deposit and if he refused to vacate the premises, the landlord was only entitled to take back the money which he had deposited. In other words, the construction which was put in the compromise was to the effect that offer to evict itself could be wholly dependent on his volition only whether he was vacating or not. If he was not vacating in spite of deposit, the only R.A. No.58-CII of 2009 (O&M) -4- in C.R. No.5165 of 2002 remedy that the landlord could have was to take back the money in deposit.
5. It must be noticed that the compromise terms themselves are not too happily worded and while the Court will not normally substitute the terms of the compromise, it will at least make an inference to understand the terms in the manner that will fit in with normal canons of logic. It will be impermissible to assign some meaning to a compromise that is either unworkable or that would reduce the terms of compromise ad absurdum. It should be noticed here that the compromise terms themselves do not read like a conditional one, stipulating that the amount was to be paid before a particular date and if that amount was not paid by that specified date, the landlord would not be entitled to the order of eviction. A harmonious construction of the terms and a logical inference to the words shall be only that the landlord could not have obtained eviction without payment of Rs.1 lac. It cannot be given a meaning that would make the deposit itself meaningless if the tenant chose not to evict and leaving the option to the landlord of merely withdrawing the money which he had deposited. The imprimatur that the Court gave by accepting the terms did not again treat the compromise terms as a conditional one. It did no more than saying that "accordingly, the respondent is ordered to vacate the disputed shop." This expression "accordingly" must be understood as an expression that the Court directed eviction and both the parties were expected to perform the respective obligations namely of the landlord by a deposit of Rs.1 lac and of the tenant, a duty to vacate.
6. The landlord put the decree in execution nearly 7 ½ years R.A. No.58-CII of 2009 (O&M) -5- in C.R. No.5165 of 2002 later but without either complying with the terms of deposit or offering to deposit. On the other hand, the landlord had stated that the condition for deposit itself was against public policy. When objection was taken by the tenant regarding the executability, the Executing Court passed an order directing eviction and by a contemporaneous order directed Rs.1 lac to be paid within 15 days from the date of order. This amount was also deposited as directed by the Court. It is this order which was challenged in revision by the Judgment Debtor.
7. While passing an order on 28.04.2009, I had noticed an absurd situation that the terms of the compromise could be put to if the tenant were to say that if he chose not to vacate, the landlord himself did not have a power to execute the decree. I had also noticed the fact that the compromise terms did not contain any clause referring to the deposit period as constituting the essence of contract between the parties. To my mind, the compromise could be understood only as containing mutual obligations in the manner referred to above namely of the landlord's right to obtain eviction on his liability to deposit Rs.1 lac and the tenant's duty to vacate with a right to withdraw the money. A compromise is invariably a climb down from the respective positions of contesting parties and operates on an elementary principle of "give and take". It can never be "give and give" or "take and take". If the tenant was to contend that he would either withdraw the money or choose not to withdraw and in which case the compromise term could be rendered meaningless will be impressing the character of the compromise to a meaningless gibberish. The order, therefore, passed by the Executing Court directing the amount to be paid rejecting the R.A. No.58-CII of 2009 (O&M) -6- in C.R. No.5165 of 2002 contention of the landlord that it was against the terms of public policy and making it conditional for execution of the decree perfectly accorded with logic, reason and law.
8. Learned Senior Counsel appearing for the applicant-tenant relies on Gupta Steel Industries Vs. Jolly Steel Industries Pvt. Ltd. and another (1996) 11 SCC 678 that a Court cannot interfere with or modify the terms of compromise unless the parties agreed to the same. By directing eviction with a concomitant liability of a landlord to deposit Rs.1 lac is not according to me altering the terms of the compromise which the law interdicts. On the other hand, it is an attempt to bring the best meaning to the compromise. He also refers me to a decision of the Calcutta High Court in Santosh Kumar Ghosh Vs. Bholanath Ghosh and others 2001 AIHC 2492 that held where a compromise decree is for recovery of possession of land on payment of yearly installments and if the party failed to pay the installment within the stipulated time, he would not be entitled to execution of decree merely because he subsequently deposited the amount in Court. The Calcutta High Court again was dealing with the situation where the amounts were to be deposited and delivery was to be effected for extents in proportion to the deposits. The Court found that if the amount was not deposited within the time stipulated, the right itself could be lost. I may not be able to go as far as how the Hon'ble Calcutta High Court understood the law laid down by the Hon'ble Supreme Court in Prithvi Chand Ram Chand Sarlok Vs. S.Y. Shind AIR 1993 SC 1929. I have already stated that the decree itself did not stipulate the period of deposit as of the essence of contract. I have R.A. No.58-CII of 2009 (O&M) -7- in C.R. No.5165 of 2002 given expression to the meaning of the compromise as a right of a decree-holder to obtain on payment of certain sums and the dates mentioned was without a specification as to the consequence of non- deposit. In K.C. Reddy Vs. Batcha Vasudeva Naidu 1999 AIHC 4540, the Andhra Pradesh High Court through a Single Bench dealt with a case of a money decree passed on a compromise and the defendant agreeing to part with the suit sum in satisfaction of the suit claim. The High Court dealt with the effect of non-payment of the amount within the time specified and the refusal of the Court to extend the time in such conditional decree. I have again pointed out above that if there was a conditional decree with the time as to deposit being a pre- condition, the Court's power to extend the time is simply unavailable. The power to enlarge the time, which is available under Section 148 of the Civil Procedure Code is only to the period at the time of passing of the decree. After the decree, the law itself lays down Order 20 Rule 11 (2) CPC that the Court will have no power to enlarge the time if the parties did not concede for the same. We are not confronted with the situation like what obtains in a conditional decree of payment within a particular period. There is no other clause in the compromise terms as to the effect of non-deposit within a particular time. It cannot, therefore, be not understood as conditional for obtaining eviction before any particular date. The decision of the Kerala High Court in V.N. Sreedharan Vs. Bhaskaran AIR 1986 Kerala 49 was a decision where the Kerala High Court was actually casting a duty on Court to give effect to the terms of a compromise and it could never be taken to give rise to a particular meaning that makes it inexecutable. Far from R.A. No.58-CII of 2009 (O&M) -8- in C.R. No.5165 of 2002 supporting the contention of the learned Senior Counsel for the tenant, the Kerala High Court was laying stress on the executability as being one of the main incidences of decree whether it is a compromise decree or not. By the interpretation that the learned Senior Counsel wants to give to the terms of the compromise, he reinforces the inexecutability of the decree as the governing criterion. Salkia Businessmen's Association and others Vs. Howrah Municipal Corporation and others AIR 2001 SC 2970 was a case where the Hon'ble Supreme Court held that the Court should strictly enforce the terms and viewing breach of terms of compromise as matter of mere contract between parties and disregarding it would have disastrous effect on rule of law. The Executing Court directed Rs.1 lac to be deposited by the decree- holder before he could obtain eviction, thereby enforcing the terms of the contract and refusing to the decree-holder a scope to commit a breach in the manner sought for by him by contending that the terms for deposit was against public policy. This decision again re-enforces the fundamental principle that the parties cannot stay away from the terms of a compromise and make it wholly inexecutable unless the inexecutability itself is to be a result of non-compliance of some of the terms.
9. The lengthy discussion that I have undertaken would falsify even the untenable condition that there is an error apparent on the face of record that makes a judgment susceptible for review, which error must be so patent as it would require no further forensic exercise for finding whether a legal reasoning is appropriate or not. I have still taken up this task only to quell an apprehension that the case came to R.A. No.58-CII of 2009 (O&M) -9- in C.R. No.5165 of 2002 be decided by the default of appearance of the revision petitioner by a lackadaisical approach. Nay, I have applied all the relevant points to gain my attention and delivered a judgment on due consideration. There is no scope for review and review application is dismissed.
(K. KANNAN) JUDGE July 13, 2009 Pankaj*