Delhi High Court
Creative Travels Pvt. Ltd. And Anr. vs Joginder Singh Palta on 27 September, 1993
Equivalent citations: 52(1993)DLT371, 1994(28)DRJ331, (1993)105PLR67, 1994RLR21
Author: B.N. Kirpal
Bench: B.N. Kirpal
JUDGMENT B.N. Kirpal, J.
(1) The applicants were the tenants of the premises bearing No. C-56, Anand Niketan, New Delhi which is owned by the respondent.
(2) The rent of the premises was Rs.4,500.00 per month and a suit for possession was filed by the respondent in respect of the said house. A decree in the suit was passed by the Additional District Judge, Delhi in favor of the respondent on 4th February, 1992.
(3) R.F.A. 167/1992 was filed challenging the decree. It appears that the applicants had also filed a writ petition challenging the validity of the amendment of the Delhi Rent Control Act and after the same was dismissed an Special Leave Petition was filed in the Supreme Court.
(4) When the appeal came up for hearing a compromise was arrived at between the parties. The terms of the compromise were that the applicants were to vacate the premises and handover physical possession of the same on or before 31st October, 1993. It was further agreed by the parties that an undertaking by way of affidavit would be filed in this Court to comply with the terms of the settlement. Payment of rent was enhanced to Rs.6,750.00 per month and the Special Leave Petition which had been filed was agreed to be withdrawn and on the undertaking being given the Special Leave Petition has been withdrawn. The appeal itself, viz. Rfa No. 167/92 challenging the decree was also dismissed as withdrawn. In view of the under taking which was furnished and the consent of the parties the respondent was not to execute the decree till 31st October, 1993. The respondent also, in turn, has withdrawn his suit for mesne profit which had been filed against the applicants.
(5) In the present application it has been stated that the applicants have started constructing the house but it is not likely to be completed by 31st October, 1993 and the prayer in the application is that the applicants be given a further period of four months for vacating the premises in question.
(6) The application is vehemently opposed by the respondent and the contention of the learned counsel for the respondent is that this Court has no jurisdiction to grant extension in the absence of any fresh consent by the respondent.
(7) The main question, therefore, which is to be decided is whether this Court can, in a case like the present, even without the consent of both the parties or one party, grant an extension of time by invoking the provisions of Sections 148 and 151 of the Code of Civil Procedure.
(8) Learned counsel turn the applicants has relied on an order passed in FAO(OS) 258/85 where an undertaking to vacate the premises had been given but the time for vacating the same was extended. In that case there was a dispute with regard to the ownership of the property and pending the settlement of the dispute, by the order of the Court, the premises were given on the basis of license to the appellant therein viz. Shri Kuldeep Nayyar. The dispute between the owner and the tenant got settled and. the owner gave notice terminating the license and required the vacation of the premises. The Single Judge ordered Shri Nayyar to handover physical possession and an appeal was filed against the said order. It was in these circumstances that the Court directed vide order dated 24th February, 1986 that Shri Nayyar should continue to pay the license fee for the full term which had originally been granted to him till 31st August, 1987. The reason for this was that after the license was originally granted for three years Shri Nayyar had let out his own house and therefore, he had no premises to shift to if he was required to vacate in 1985. It was by order of the Court and not by consent of the parties, that he was required to furnish an undertaking that he will deliver vacant possession of the premises to the owner on 1st September, 1987. Thereafter an application was filed for extension of time and vide order dated 28th August, 1987 time for vacation was extended till 31st December, 1987. It is this order, extending the lime for vacation, which is sought to be relied upon by the learned counsel for the applicants before us.
(9) The said order can be of little assistance to learned counsel for the applicants. Firstly the premises were originally given on license under orders of the Court. At that time no undertaking was required to be furnished. It was only vide order dated 24th February, 1986 when the Court directed that Shri Nayyar will be entitled to the benefits of full term of the license that he was required to give an undertaking. That undertaking was given. This undertaking was not furnished as a result of a compromise between the parties or consent amongst the parties but it was an undertaking directed to be given by the Court itself. When an application for extension was filed, we find from the record, no reply to the same was filed and the order dated 28th August, 1987 granting extension also does not mention that the request for extension was opposed. It was obvious, under these circumstances, that time for vacating the premises was extended up to 31st December, 1987 with the implied consent of the respondent therein because no reply to the application for extension was filed and nor does was the application appears to have been opposed at the time of arguments. This is not the case berein. Furthermore, the question as to whether the Court has power to grant extension when the original time was given by consent of the parties was not gone into in that case.
(10) Learned counsel then relied on an order passed in Civil Revision No. 148/90 dated 15th May, 1993 by the Single Judge of this Court. This order was made to the effect that "it is appropriate that the petitioner is granted further time of two months on compassionate grounds to vacate the premises." Here again there is nothing to indicate whether the application for extension was opposed or not and furthermore there is no discussion on the question as to whether the Court has jurisdiction to grant an extension.
(11) The main reliance has been placed by the learned counsel for the applicants on the decision of the Division Bench of the Supreme Court in the case of Smt.Periyakkal and others v. Smt. Dakshyani , In that case an appeal had been filed arising out of on order passed on an application under Order 21 Rule 90.CPC, wherein a compromise was entered into between the parties and the time for deposit was stipulated. An application was filed for extension of time and it was held by the Division Bench of the Supreme Court that time would not be extended ordinarily, nor for the mere asking but it would be granted ill rare cases to prevent manifest injustice. While upholding that the Court would not rewrite a contract between the parties it held that the Court would relieve against a forfeiture clause because the contract between the parties had merged in the order of the Court and the Court's freedom to act to further the ends of justice would surely not stand curtailed. The Supreme Court did refer to the decision of that Court in the case of Hukamchand v. Bansilal and others which was delivered by a Bench of three Judges, but it came to the conclusion that the said decision was distinguishable.
(12) It appears to us that the present case squarely falls within the dictum of the Supreme Court in Hakamchand's case. In that case by the consent of the parties, the executing Court dismissed an application of the judgment-debtor under Order 21 Rule 90 Cpc to set aside the sale held under a mortgage decree and allowed him time to pay the decretal amount and the auction-purchaser's commission. This amount was not paid and an application was filed for extension of time. The executing court came to the conclusion that it could not extend the time. This decision was upheld by the Supreme Court who observed that but for the compromise between the parties the confirmation of the sale would not have been postponed. It was observed that "We are of the view that in the circumstances it was not open to the executing court to extend time without consent of parties, for time between October 7,1958 to November 21, 1958 was granted by consent of parties. Section 148 of the Code of Civil Procedure would not apply in these circumstances, and the executing court was right in holding that it could not extend time. Thereafter it rightly confirmed the sale as required under Order Xxi Rule 92 there being no question of the application of Order Xxxiv Rule 5 for the money had not been deposited on November 22, 1958 before the order of confirmation was passed. In this view of the matter, we are of opinion that the order of the executing court refusing grant of time and confirming the sale was correct."
(13) In the present case also there is a decree for possession in favor of the respondent which was liable to be executed immediately but for the consent of the parties who had agreed that the execution should be deterred till after 31st October, 1993. This agreement was arrived at when the compromise was recorded in this Court on 15th May, 1993. Just as in the Hukamchand's case, with the disposal of the application under Order Xxi Rule 90 the sale was bound to be confirmed, similarly with the disposal of this appeal the execution of the decree had to follow but just as inHukumchand's case, with the consent of the parties; the date of execution was postponed, similarly in the present case, with the consent of the parties the date of execution has been postponed till after 31st October, 1993. In Smt. Periyakkal's case however, the question was with regard to deposit of money within the time stipulated. We find that the present case is squarely covered by the decision of a larger Bench of the Supreme Court in the case of Shri Hukumchand (supra) and, therefore, we have no hesitation in coming to the conclusion that this Court has no jurisdiction to extend the lime in the absence of the consent of either of the parties. It is to be borne in mind that when litigation is brought to an end by the parties agreeing to certain terms, it would be unfair and unjust for the Court to pass orders, subsequently and without their consent, which would be at variance with the terms of the agreement. In Periyakkal case it was observed that "The Court would not rewrite contract between the parties.......". When there is a term in the agreement that if the premises are not vacated by 31st October, 1993 the Court decree would be executed and an undertaking to this, effect is furnished, in our opinion that term of agreement cannot be unilaterally altered and the undertaking not acted opon. The parties avoided judgment at the time when the compromise was arrived at. A solemn undertaking was given to this Court that the premises will be vacated by 31st October, 1993. Had the time been fixed for vacating the premises without the consent of the parties, and merely by orders of the Court, there would have been no difficulty for the Court in granting extension. We do feel that the facts as made out in the application give sufficient reasons for extending the time because it appears that the applicants are constructing another house but with the respondent not giving his consent to the extension of any time this Court, in view of the decision of the Supreme Court inHukamchand's case has no jurisdiction to entertain a request for enlargement of time. For the aforesaid reasons this application is dismissed.