Himachal Pradesh High Court
Narinder Kumar vs Rohit Madan & Others on 3 August, 2018
Author: Sanjay Karol
Bench: Sanjay Karol
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Civil Revision No.125 of 2016 Reserved on: 23.05.2018 .
Date of Decision: August 3 , 2018.
Narinder Kumar ...Petitioner.
Versus
Rohit Madan & others ..Respondents.
Coram:
The Hon'ble Mr. Justice Sanjay Karol, Acting Chief Justice. Whether approved for reporting?1 Yes.
For the Petitioner: Mr. Y.P. Sood, Advocate, for the petitioner.
For the Respondents: Mr. R.L. Sood, Sr. Advocate with Mr.Sanjeev Kumar, Advocate, for respondent No.1.
Mr.Anupinder Rohal, Advocate, for
respondents No.2(a) & 2(b).
Sanjay Karol, ACJ
Following questions of law arise for
consideration in the present petition:
(a) As to whether compromise arrived at between the parties to the lis through their counsel, as recorded in the record of proceedings of the learned Mediator is binding upon them and that the Court is bound to accept the same as such, making it executable in law?1
Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 2(b) As to whether an unauthorized person claiming to be a sub-tenant/trespasser can be said to be "any aggrieved party", having any right to prefer a petition under Sub-Section (5) of Section 24 of .
the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as the Act).
(c) Whether the petitioner has got any locus to challenge the findings returned by the authorities under the Act?
(d) Whether findings returned by the authorities below are based on correct and complete appreciation of material placed on record?
(e) Whether such findings are a result of collusion between the landlord and the tenant?
(f) Whether the petitioner is liable to pay use and occupation charges @ 52,500/- per month and if so? then for what period and from which date?
2. Facts are simple.
3. In the year, 1997, Dr.Kailash Kumar Kashyap (hereinafter referred to as the tenant) took shop No.2, Ground Floor, Long Acre Estate, The Ridge, Shimla (hereinafter referred to as the demised premises), on rent for commercial purposes. On 03.03.2006, Rohit Madan (hereinafter referred to as the landlord-successor of original landlord Sh.Narinder Nath Madan), instituted a petition for ejectment of the tenant on the ground of carrying out additions and alterations which cannot be carried out ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 3 without the premises being vacated and the tenant having made substantial additions and alterations, impairing the value and utility of the demised premises. According to the .
landlord, tenant had vertically divided the demised premises into two portions and constructed a mezzanine floor, causing damage to the property.
4. Despite the tenant hotly contesting the petition, the Rent Controller-I, Shimla, H.P. allowed the same, vide order dated 30.06.2011, passed in Rent Application No.8-2 of 2006, titled as Rohit Madan vs. Dr. Kailash Kumar Kashyap. Findings of fact and the order of ejectment sands affirmed by the Appellate Authority i.e. the District Judge Shimla, vide order dated 27.07.2013, passed in Rent Appeal No.59-S/14 of 2011, titled as Dr. Kailash Kumar Kashyap vs. Rohit Madan.
5. Both the tenant and the landlord have accepted the findings of fact and the order of ejectment.
6. However, Sh.Narinder Kumar (petitioner herein) lays challenge to the same by way of present petition, so filed under Section 24(5) of the Act, instituted on 10.08.2016 in the following factual backdrop.
7. It appears that since October, 2009, the tenant allowed the demised premises to be occupied by the ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 4 petitioner, on a monthly rental of `5000/-, subsequently increased to `6000/-. Both the tenant and the petitioner continued to maintain cordial relationship till November, .
2010. Only when the tenant tried to interfere with the possession, petitioner filed a Civil Suit seeking protection, which relief, interim in nature, was granted vide order dated 19.09.2011, passed by Civil Judge(Junior Division), Court No.(6), Shimla, H.P., in Application No.122-6 of 2010, titled as Narinder Kumar vs. Sh. Kailash Kumar Kashyap (Page-
53).
8. Alongwith the instant petition, petitioner has filed three applications: (i) CMP(M) No.1489 of 2016 -seeking condonation of delay in filing the revision petition; (ii) CMP No.7228 of 2016 - seeking leave to file the revision petition;
and (iii) CMP No.7227 of 2016 - seeking stay of operation of order(s) of ejectment.
9. Notice in the all the applications and the revision petition was issued on 22.09.2016.
10. Record reveals that on 28.04.2017, all the parties i.e. the petitioner, landlord and the legal heirs of the tenant were duly represented and certain offers of settlement were exchanged. On 05.05.2017 with the consent of the parties, so accorded through their learned ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 5 counsel, matter was referred to the mediation of a Learned Senior Counsel, a trained Mediator of this Court. Record of proceedings of the learned Mediator, reveals that .
proceedings took place on two dates. On 05.05.2017, learned counsel for the landlord and the tenant stated that they were not in a position to make any statement with regard to the compromise and thus took time to produce the parties.
11. On the following date i.e. 23.06.2017, contesting parties i.e. the petitioner and the landlord compromised the matter on the terms recorded by the learned Mediator, as under:-
"Present: Mr.Y.P.Sood, Advocate, alongwith petitioner Sh.Narinder Kumar.
Sh.J.L.Kashyap, Advocate, for respondent No.1.
Respondent No.1 is not present, however, with the help of the learned counsel for the parties, mediation proceedings have been carried out. Learned counsel for the parties have settled the dispute in the manner that the petitioner shall vacate the accommodation in question on or before 31.3.2021. The petitioner shall pay use and occupation charges at the rate of Rs. 12,000/- per month w.e.f. 1.6.2017 onwards. The petitioner shall not change nature and use of the accommodation in question nor he will sublet or alienate ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 6 the accommodation in question in any other manner. The matter stands amicably settled and it may be placed before the Hon'ble Court on 14.7.2017.
Sh. J.L. Kashyap, Advocate has agreed that his client will give no objection certificate and co-
.
operate in obtaining electricity and water connection in the accommodation in question. Certificate will be supplied to the petitioner within one month from the date of passing of order by the Hon'ble Court. The petitioner has undertaken to regularly deposit the use and occupation charges in the bank account of respondent No.1, details of which have been supplied today to the petitioner."
12. On 14.07.2017, when record of the learned Mediator was placed before the Court, learned counsel, representing the landlord expressed his desire of filing an affidavit in relation to the proceedings of the learned Mediator.
13. On 26.07.2017, Sh.J.L. Kashyap, learned counsel, filed his personal affidavit (Page-105) stating that his client, who is in England, could not be contacted directly, and as per usual practice, he contacted Ms.Smriti Madan, sister of the landlord with whom he had always been discussing legal matters. On telephone, he had informed her of the matter being taken up for mediation. Further on account of his "impaired hearing and advanced age" he "failed to comprehend" the "instructions so imparted to him" for what ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 7 was instructed was that use and occupation charges would be acceptable on the agreed terms, from the date of passing of the order of ejectment (30.06.2011) instead of .
01.06.2017, the date so recorded in the mediation proceedings. When he informed Ms.Smriti Madan, of the proceedings, immediately he was told that the order of mediation was not in accordance with the instructions imparted to him.
14. Supplementing, Ms.Smriti Madan, a legal practitioner at Delhi, has also filed her personal affidavit dated 21.07.2017 (Page-102), stating that the error, in the proceedings of the Mediator, crept in on account of lack of proper communication and incorrect comprehension by her counsel (Sh.J.L. Kashyap), who is aged, 80 years, and has age related health problems.
15. Crucially, in both the affidavits there is no denial of (a) proceedings being correctly recorded by the learned Mediator; (b) intent of the parties to enter into a compromise; (c) agreement with regard to the period by when petitioner was allowed to hand over the demised premises to the landlord; and (d) the amount agreed to be paid as use and occupation charges. The only confusion/dispute being as to whether petitioner was to pay ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 8 the said amount of use and occupation charges from the date of passing of the order of ejectment i.e. 30.06.2011 or 01.06.2017, the date of compromise so recorded by the .
learned Mediator and all this having arisen solely on account of incorrect comprehension of instructions by the learned counsel for the landlord.
16. It be only observed that even subsequent efforts put in by this Court did not yield any fruitful result, in having the matter resolved, which indeed is highly unfortunate.
17. Again on 08.12.2017, the landlord made certain offers, unacceptable to the petitioner, which stand recorded in the order dated 08.12.2017 as under:-
"Without prejudice to respective rights and contentions of the parties, Mr. R.L. Sood, Ld. Senior Counsel under instructions from Mr.Sanjeev Kumar, Ld. Counsel for respondent No.1, states that the respondent is willing to settle the matter with the present petitioner, who otherwise has neither any locus to institute the petitioner nor any right in the premises, on the following terms:
(a) If the petitioner were to handover vacant and peaceful possession of the demised premises to the respondent on or before 31st March, 2018, the landlord shall give up all claims with regard to use and occupation charges.::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 9
Offer so given by the respondent is rejected with the insistence that compromise already stands entered into before the learned Mediator, fixing the rate at which use and occupation charges are to be .
paid, which the petitioner is ready and willing to pay and abide by.
Further even as on date, right from the year 2009, petitioner is in possession of whole of the premises and not the half, as is being so projected."
18. It is a matter of record that petitioner filed another application being CMP No.10315 of 2017, with a prayer that revision petition be ordered to be decided in terms of report of the learned Mediator, incorporating the terms of settlement arrived at between the parties.
19. Also landlord filed an application being CMP No.6299 of 2017, praying for fixation of use and occupation charges @ `52,500/-, per month w.e.f 01.07.2011 (@ `250/-
per sq.ft.), in which, on 22.11.2017, by way of an interim measure, Court directed the petitioner to pay a sum of `12,000/- per month, at least w.e.f. 01.09.2016 onwards.
20. It is in this backdrop, Court is called upon to adjudicate the issues enumerated supra.
::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 1021. It is not in dispute that the order of ejectment dated 30.06.2011 as affirmed vide order dated 27.07.2013, has attained finality insofar as the landlord and the tenant .
are concerned. Even before this court, tenant does not lay any challenge to the same.
22. Undisputedly whole of the demised premises, as on date, is in the physical possession of the petitioner.
23. Petitioner himself claims to have been inducted into the premises sometime in the month of October, 2009, since when he has been paying certain amounts as rent to the tenant. From the record, there is nothing to establish that such induction was with the implicit or tacit much less written, consent of the landlord. There is nothing on record to even prima facie establish that the landlord acquiesced to such arrangement/relationship. It is also not the pleaded, much less, proven case of the petitioner that any sub-
tenancy was created by obtaining consent of the landlord.
24. In fact, perusal of order dated 19.09.2011, passed by Civil Judge (Junior Division), Court No.(6), Shimla (Annexure P-2), reveals that even when the petitioner himself instituted Civil Suit against the tenant, he did not implead the landlord as a party. Observations made and findings returned by the said Court, while disposing of ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 11 application for grant of interim relief, are not disputed by the petitioner. What was the final outcome of suit remains un-disclosed. But be that as it may, petitioner seeks reliance .
on the same and from the said order itself, it is evident that he himself made certain admissions, which, for just determination of the issues in question, this Court deems it necessary to reproduce as under:-
"... ... ...Plaintiff has taken said premises on monthly rent of Rs. 5000/- from the defendant in the month of October, 2009. The rent of the premises was enhanced to Rs. 6000/- per month is averred that since 2004 the applicant is in the peaceful possession of the tenanted premises and he was having cordial relation with defendant." ... ... ...
"... ... ...It is submitted that respondent is himself a tenant in the demised premises and its original owner has filed the rent petition against him. It is submitted that applicant cannot claim any right against respondent qua tenancy." ... ... ...
"Respondent has taken a plea that rent petition with regard to premises in question has already been decided wherein order of eviction of the premises in question has already been passed. Though the eviction petition has already been decided and shop in question is ordered to be vacated and the respondent is not the land lord of petitioner in the rent petition, therefore, he cannot be evicted except without due course to law."
(Emphasis supplied) ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 12 CMP No.10315 of 2017, for passing order on the basis of settlement
25. Fundamental issue which arises for consideration is as to whether the agreement arrived at between the .
parties, as recorded in the record of proceedings of the learned Mediator, through their learned counsel, is binding on them and as to whether, Court can bind the parties to the same and record a settlement making it an executable decree?
26. Mediation is a concept emanating from Section 89 of the Code of Civil Procedure. Relevant provisions whereof read as under:-
"89. Settlement of disputes outside the Court.
(1) Where it appears to the court that there exist elements of a settlement which may be acceptable to the parties, the court shall formulate the terms of settlement and give them to the parties for their observations and after receiving the observations of the parties, the court may reformulate the terms of a possible settlement and refer the same for -
.........
(d) Mediation.
(2) Where a dispute has been referred - .........
(d) for mediation, the court shall effect a compromise between the parties and shall follow such procedure as may be prescribed."::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 13
27. The High Court of Himachal Pradesh, has notified Rules, dated 19.12.2005, termed as "High Court of Himachal Pradesh Civil Procedure Alternative Dispute .
Resolution and Mediation Rules, 2005 (hereinafter referred to as the Rules) as amended from time to time. The relevant clauses thereof are reproduced as under:-
"24. Settlement Agreement:-(1) Where an agreement is reached between the parties in regard to all the issues in the suit or some of the issues, the same shall be reduced in writing and signed by the parties or their power of attorney holder. If any counsel have represented the parties they shall attest the signature of their respective clients.
(2) The agreement of the parties so signed and attested shall be submitted to the mediator who shall with a covering letter signed by him forward the same to the Court in which the suit is pending.
(3) Where no agreement is arrived at between the parties, before the time limit stated in Rule 18 or where the mediator is of the view that no settlement is possible, he shall report the same to the said Court in writing.
25. Court to fix a date for recording settlement and passing decree:- (1) Within seven days of the receipt of any settlement, the Court shall issue notice to the parties fixing a day for recording the settlement, such date not being beyond a further period of fourteen days from the date of receipt of settlement and the Court shall record the settlement, if it is not collusive.
(2) The Court shall then pass a decree in accordance with the settlement so recorded, if the settlement disposes of all the issues in the Suit.::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 14
(3) If the settlement disposes of only certain issues arising in the suit, the Court shall record the settlement on the date fixed for recording the settlement: and
(i) If the issues are severable from other issues and if a decree could be passed to the extent of the .
settlement covered by those issues, the Court may pass a decree straightaway in accordance with the settlement on those issue without waiting for a decision of the Court on the other issues which are not settled.
(ii) If the issues are not severable, the Court shall wait for a decision of the Court on the other issues which are not settled."
(Emphasis supplied)
28. What is "settlement by mediation" is defined in the Rules as under:-
"4. Court to give guidance to parties while giving direction to opt- (1) ... ... ..."
... ... ...
(v) ... ... ..
(c) Settlement by Mediation means the process by which a mediator appointed by parties or by the Court, as the case may be, mediates the dispute between the parties to the suit by the application of the provisions of the High Court of Himachal Pradesh Mediation Rules, 2005 in Part II, and in particular, by facilitating discussion between parties directly or by communicating with each other through the mediator, by assisting parties in identifying issues, reducing misunderstandings, clarifying priorities, exploring areas of compromise, generating options in an attempt to solve the dispute and emphasizing ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 15 that it is the parties own responsibility for making decisions which affect them."
(Emphasis supplied)
29. In Salem Advocate Bar Association, T.N. vs. .
Union of India, (2003) 1 SCC 49 (Commonly referred to as Salem Bar-I), the Apex Court observed that Section 89 of CPC was a new provision and concept of mediation was introduced by amending the provisions of CPC, to reduce the burden of the Court.
30. Further in Salem Advocate Bar Association, T.N. vs. Union of India, (2005) 6 SCC 344, (Commonly referred to as Salem Bar-II), the Court observed that:-
"57. A doubt has been expressed in relation to clause (d) of Section 89 (2) of the Code on the question as to finalisation of the terms of the compromise. The question is whether the terms of compromise are to be finalised by or before the mediator or by or before the court. It is evident that all the four alternatives, namely, Arbitration, Conciliation, judicial settlement including settlement through Lok Adalat and mediation are meant to be the action of persons or institutions outside the Court and not before the Court. Order 10, Rule 1-C speaks of the 'Conciliation forum' referring back the dispute to the Court. In fact, the court is not involved in the actual mediation/conciliation. Clause (d) of Section 89(2) only means that when mediation succeeds and parties agree to the terms of settlement, the mediator will report to the court and the court, after giving notice and hearing the ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 16 parties, 'effect' the compromise and pass a decree in accordance with the terms of settlement accepted by the parties. Further, in this view, there is no question of the Court which refers the matter to mediation/conciliation being debarred from hearing the matter where settlement .
is not arrived at. The Judge who makes the reference only considers the limited question as to whether there are reasonable grounds to expect that there will be settlement and on that ground he cannot be treated to be disqualified to try the suit afterwards, if no settlement is arrived at between the parties."
.........
"62. When the parties come to a settlement upon a reference made by the Court for mediation, as suggested by the Committee that there has to be some public record of the manner in which the suit is disposed of and, therefore, the Court has to first record the settlement and pass a decree in terms thereof and if necessary proceed to execute it in accordance with law. It cannot be accepted that such a procedure would be unnecessary. If the settlement is not filed in the Court for the purpose of passing of a decree, there will be no public record of the settlement. It is, however, a different matter if the parties do not want the court to record a settlement and pass a decree and feel that the settlement can be implemented even without decree. In such eventuality, nothing prevents them in informing the Court that the suit may be dismissed as a dispute has been settled between the parties outside the Court."
(Emphasis supplied)
31. Later on in Afcons Infrastructure Ltd. & Another vs. Cherian Varkey Constructions Co. Pvt. Ltd., & others ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 17 (2010) 8 SCC 24, the Apex Court elaborately discussed the scope of Section 89 CPC in the following terms:-
"39. Where the reference is to a neutral third party ('mediation' as defined above) on a court reference, .
though it will be deemed to be reference to Lok Adalat, as court retains its control and jurisdiction over the matter, the mediation settlement will have to be placed before the court for recording the settlement and disposal. Where the matter is referred to another Judge and settlement is arrived at before him, such settlement agreement will also have to be placed before the court which referred the matter and that court will make a decree in terms of it".
.........
"43. We may summarize the procedure to be adopted by a court under section 89 of the Code as under :
... ... ...
(f) If the parties are not agreeable for arbitration and conciliation, which is likely to happen in most of the cases for want of consensus, the court should, keeping in view the preferences/options of parties, refer the matter to any one of the other three other ADR processes : (a) Lok Adalat; (b) mediation by a neutral third party facilitator or mediator; and (c) a judicial settlement, where a Judge assists the parties to arrive at a settlement.
(g) If the case is simple which may be completed in a single sitting, or cases relating to a matter where the legal principles are clearly settled and there is no personal animosity between the parties (as in the case of motor accident claims), the court may refer the matter to Lok Adalat. In case where the questions are complicated or cases which may require several rounds of negotiations, the court may refer the ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 18 matter to mediation. Where the facility of mediation is not available or where the parties opt for the guidance of a Judge to arrive at a settlement, the court may refer the matter to another Judge for attempting settlement.
.
(h) If the reference to the ADR process fails, on receipt of the Report of the ADR Forum, the court shall proceed with hearing of the suit. If there is a settlement, the court shall examine the settlement and make a decree in terms of it, keeping the principles of Order 23 Rule 3 of the Code in mind.
(i) If the settlement includes disputes which are not the subject matter of the suit, the court may direct that the same will be governed by Section 74 of the AC Act (if it is a Conciliation Settlement) or Section 21 of the Legal Services Authorities Act, 1987 (if it is a settlement by a Lok Adalat or by mediation which is a deemed Lok Adalat). If the settlement is through mediation and it relates not only to disputes which are the subject-matter of the suit, but also other disputes involving persons other than the parties to the suit, the court may adopt the principle underlying Order 23 Rule 3 of the Code. This will be necessary as many settlement agreements deal with not only the disputes which are the subject matter of the suit or proceeding in which the reference is made, but also other disputes which are not the subject matter of the suit.
(j) If any term of the settlement is ex facie illegal or unenforceable, the court should draw the attention of parties thereto to avoid further litigations and disputes about executability."
(Emphasis supplied) ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 19
32. Mediation undoubtedly provides an efficient, effective, speedy, convenient and inexpensive process to resolve disputes with dignity, mutuality, respect and civility .
where parties participate in arriving at a negotiated settlement rather than being confronted with a third party adjudication of their disputes. The very fact that it enables warring parties to sit across the table and negotiate, even if unsuccessful in dispute resolution, undergoing the process creates an atmosphere of harmony and peace in which parties learn to 'agree to disagree'.
33. Further what is referred to mediation is not really the lis before the Court, but the parties thereto, irrespective of the nature, type and number of disputes before the Court, for in a voluntary process, with the facilitation of the Mediator, parties may agree to settle amongst themselves not only what is subject matter of the lis, but all other disputes existing or which are likely to exist in future. Even historically mediation is well recognized concept which finds mentioned in 'Mahabharata' and 'Durga Saptshati'.
34. As already observed by the Apex Court, Mediator does not pass any order or judgment. All he does is, forward the agreement arrived at between the parties to the Court.
Such agreement is to be signed by the parties and ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 20 countersigned by the Advocates whereafter only as is required in law, the Court shall record the statements of the parties, may be through their learned counsel and then pass .
a decree, after satisfying the conditions stipulated under the Code of Civil Procedure {Section 89 as also the High Court of Himachal Pradesh Civil Procedure Alternative Dispute Resolution and Mediation Rules, 2005 (Rules 24 & 25)}.
The mechanism provided is unlike that of the order passed by Arbitrator or the proceeding conducted under Lok Adalat.
The Mediator is required to maintain confidentiality with regard to the proceedings. In fact, the Delhi High Court in its decision dated 17.10.2017, passed in Cr. Reference No.1 of 2016, titled as Dayawati vs. Yogesh Kumar Gosain, has held that agreement arrived at between the parties cannot be used as evidence. When the matter reaches the Court, the Court has to be satisfied also with regard to the fulfillment of the requirements envisaged under Order 23 Rule 3 CPC.
35. The Delhi High Court in Dayawati (supra) has summarized certain principles with regard thereto, in the following terms:-
"101. .........
(i) For a compromise to be held to be binding, it has to be signed either by the parties or by their counsels ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 21 or both, failing which Order XXIII Rule 3 of the CPC would not be applicable. (Ref. : (1988) 1 SCC 270, Gurpreet Singh v. Chatur Bhuj Goel; (2009) 6 SCC 194, Sneh Gupta v. Devi Sarup & Ors.)
(ii) Order XXIII Rule 3 of the CPC casts an obligation .
on the court to be satisfied that the settlement agreement is lawful and is in writing and signed by the parties or by their counsels. (Ref. : (1978) 2 SCC 179, Suleman Noormohamed & Ors. v. Umarbhai Janubhai; (2006) 1 SCC 148, Amteshwar Anand v. Virender Mohan Singh & Ors.).
(iii) An obligation is cast on the court under Order XXIII Rule 3 of the CPC to order the agreement to be recorded and pass a decree in accordance thereof.
(Ref. : (2006) 1 SCC 148, Amteshwar Anand v.
Virender Mohan Singh & Ors. (paras 26 and 27)).
(iv) A consent decree is really a contract between the parties with the seal of the court superadded to it.
(Ref. : (1969) 2 SCC 201, Baldevdas Shivlal & Anr. v. Filmistan Distributors (India) P. Ltd. & Ors.; (2002) 100 DLT 278, Hindustan Motors Ltd. v Amritpal Singh Nayar & Anr.; (2007) 14 SCC 318, Parayya Allayya Hittalamani v. Sri Parayya Gurulingayya Poojari & Ors.).
(v) A consent decree may operate as an estoppel as well.
[Ref. : AIR 1956 SC 346, Raja Sri Sailendra Narayan Bhanja Deo v. State of Orissa; (2007) 14 SCC 318, Parayya Allayya Hittalamani v. Sri Parayya Gurulingayya Poojari & Ors. (para 15)].
102. The practice followed by the civil court before whom the settlement in writing, duly signed by the parties, is placed, is to record the statements of parties confirming ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 22 that the settlement was entered into voluntarily, without any force, pressure or undue influence; that it contained the actual terms of the settlement; and undertakings of the parties to remain bound by the terms thereof. Upon being satisfied that the settlement was voluntary and lawful, the .
civil court takes it on record accepting the undertaking and passing a decree in terms thereof."
36. Even a Coordinate Bench of this Court in CMPMO No. 75 of 2014, titled as Jiwan Lal Sharma vs. Kashmir Singh Thakur, decided on 06.09.2014, has taken a similar view.
37. The Apex Court in Banwari Lal vs. Chando Devi (Smt) (Through LR.S.) and another, (1993) 1 SCC 581, has held that:-
"9. Section 96(3) of the Code says that no appeal shall lie from a decree passed by the Court with the consent of the parties. Rule 1-A(2) has been introduced saying that against a decree passed in a suit after recording a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should not have been recorded. When Section 96(3) bars an appeal against decree passed with the consent of parties, it implies that such decree is valid and binding on the parties unless set aside by the procedure prescribed or available to the parties. One such remedy available was by filing the appeal under Order 43, Rule 1(m). If the order recording the compromise was set aside, there was no necessity or occasion to file an appeal against the decree. Similarly a suit used to be filed for setting aside such decree on the ground that the decree is based on an invalid and illegal ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 23 compromise not binding on the plaintiff of the second suit. But after the amendments which have been introduced, neither an appeal against the order recording the compromise nor remedy by way of filing a suit is available in cases covered by Rule 3-A of Order 23. As such a right .
has been given under Rule 1-A(2) of Order 43 to a party, who challenges the recording of the compromise, to question the validity thereof while prefering an appeal against the decree. Section 96(3) of the Code shall not be a bar to such an appeal because Section 96(3) is applicable to cases where the factum of compromise or agreement is not in dispute."
38. Settlement by mediation is a process by which a Mediator, so appointed by the parties or the Court, mediates the dispute between the parties. Role of a Mediator is to facilitate the discussion between the parties, by whatever mode. Significantly Mediator is to assist the parties in identifying issues, reduce misunderstandings, clarify priorities, explore areas of compromise, generate options with an attempt to solve the dispute and most importantly emphasize "that it is the parties own responsibility for making decisions which affect them". Thus Mediator is not an Arbitrator.
39. Now in the instant case, the agreement recorded by the learned Mediator is neither signed by the parties nor their duly constituted attorney(s). Also learned counsel ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 24 representing the parties have not attested/signed the same.
Be that as it may, this Court is not going to discount the agreement merely on account of the learned counsel not .
having signed the same, for the learned counsel, of long standing, do not lay challenge to the factum of its recording in writing.
40. What is argued is that purely on account of instructions, mistakenly understood, on account of impaired hearing and advanced age, and failure to comprehend the instructions properly, did the learned counsel agree for the mesne profit to be paid at the agreed rate w.e.f. 01.06.2017 and not 30.06.2011, the date of passing of the order of ejectment.
41. Significantly factum of old age or physical disability of the learned counsel is not disputed by the petitioner or his counsel. Equally contents of the affidavit of the learned counsel for the landlord and Ms.Smriti Madan, who imparted instructions, remain uncontroverted. All that is stated in the application dated 07.10.2017 (CMP No.10135 of 2017), filed much after affidavits dated 21.07.2017 (Page-102) and 26.07.2017 (Page-105) were filed, is that "on 05.05.2017 the parties had expressed their willingness for amicable settlement of the dispute, however, ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 25 as Shri J.L. Kashyap, Ld. Counsel for Respondent No.1 wanted to seek instructions from Respondent No.1 to settle the terms of settlement, the mediation proceedings were .
adjourned to 22.6.2017", and "That on 22.6.2017 the mediation proceedings were again taken up by the Ld. Mediator and with the consent of the parties the dispute was amicably settled and the terms of settlement have been recorded by the Ld. Mediator in his report submitted to this Hon'ble Court. The settlement as arrived in the mediation proceeding was acted upon and the applicant had deposited a sum of Rs.12,000/- in Account No.15096 in Punjab & Sind Bank, Ritz Building, Shimla-1 in the name of Mrs. Manju Madan, General Power of Attorney of the respondent No.1. The details of Bank Account were supplied to the applicant by Shri J.L. Kashyap, Advocate.
The above amount however, was later on after few days was returned to the applicant by way of cheque."
42. Now in the instant case, at the first opportune moment, without any delay, learned counsel for the landlord raised the issue of the date from which mesne profits were to be paid. Repetitive though it may seem, but with profit, it can be recorded that on 14.7.2017 when the matter first came up before the Court for passing ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 26 appropriate orders on the proceedings of the Learned Mediator (dated 23.6.2017), the learned counsel had expressed his intent of filing his affidavit in relation to the .
mediation proceedings.
43. Significantly such proceedings, by itself, do not form a settlement as an executable decree. As per Rule 24, Mediator merely forwards the agreement arrived at by the parties, based on his endeavour in helping the parties to themselves arrive at an amicable solution. The settlement agreement becomes binding only with the Court recording the statements of the parties, accepting the agreement and passing a decree or an order, after satisfying "that the parties have amicably settled their dispute" and that it is not collusive, illegal or unworkable. Only then would "settlement between parties" become final in respect of the proceedings pending before the Court. Unless and until the Court passes an order in terms of and as stipulated under Rule 25 of the Rules, compromise recorded by the Mediator cannot be said to be binding in nature. Record of the proceedings by the Mediator cannot be termed to be judicial settlement as distinctive from the settlement arrived in the Lok Adalats etc. Settlement arrived at during mediation proceedings can only become final and binding ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 27 upon the parties, with the same having been recorded and accepted by the Court, forming part of the decree or an order.
.
44. The Apex Court in Byram Pestonji Gariwala vs. Union Bank of India and others, (1992) 1 SCC 31, held as under:-
"11. A compromise is, however, not binding and is liable to be set aside in circumstances which would invalidate agreements between the parties.
"A compromise by counsel will not bind the client, if counsel is not apprised of facts the knowledge of which is essential in reference to the question on which he has to exercise his discretion, for example that the terms accepted had already been rejected by the client. Where counsel enters into a compromise in intended, pursuance of terms agreed upon between the clients, and, owing to a misunderstanding, the compromise fails to carry out the intentions of one side, the compromise does not bind the client, and the Court will allow the consent to be withdrawn. Where, acting upon instructions to compromise, counsel consents under a misunderstanding to certain terms which do not carry into effect the intentions of counsel and the terms are thought by one party to be more extensive than the other party intends them to be, there is no agreement on the subject-matter of the compromise, and the Court will set it aside. But a person who has consented to a compromise will not be allowed to ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 28 withdraw his consent because he subsequently discovers that he has a good ground of defence".
(Emphasis supplied)
45. It is in the aforesaid factual backdrop, this Court .
safely concludes that the parties had not "amicably settled their dispute". It is not as an afterthought, that, only with a view of gaining undue advantage, causing undue and unfair disadvantage to itself or loss to the petitioner, the landlord seeks to resile therefrom.
46. Here parties themselves did not appear. Only learned counsel for the contesting parties appeared before the learned Mediator at the time of recording of proceedings of settlement. Such terms were recorded under misconception of fact and that being instructions imparted to the learned counsel who undisputedly on account of his age suffers from hearing impairment.
47. Settlement by mediation has to be on the lines and terms of the compromise as understood in terms of Rule 3 of Order XXIII of CPC.
48. Compromise made out of Court must necessarily be signed by the parties or their authorized representatives.
It must itself be capable of being embodied in a decree. In the instant case, though the agreement is reduced into writing, but then not signed by the parties or their learned ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 29 counsel, so as to meet the requirement of the statutory provisions and in the absence thereof petitioner cannot insist of passing of the order in terms of the record of .
proceedings of the learned Mediator. The Apex Court in Molla Sirajul Haque and etc. vs. Gorachand Mullick and others, AIR 1993 Calcutta 58, has held the purported compromise not signed by the parties liable to be rejected.
49. The matter needs to be examined from another angle and that being as to whether the agreement is legal or not. Chapter-II of the Indian Contract Act, 1872 (hereinafter referred to as the Contract Act), deals with voidable contracts and void agreements. Section 10 of the Contract Act provides that all agreements are contracts, if they are made by free consent of the parties competent to contract, for a lawful consideration, with a lawful object and not declared to be void.
50. Consent under Section 13 of the Contract Act, is defined to mean that "two or more persons are said to consent when they agree upon the same thing in the same sense".
51. The Apex Court in Som Dev and others vs. Rati Ram and another, (2006) 10 SCC 788, has held that a compromise decree can be passed only on compliance with ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 30 the requirements of Rule 3 of Order 23 of the Code and unless a decree is passed in terms thereof, it may not be possible to recognize the same as a compromise decree.
.
52. Learned counsel for the petitioner seeks reliance on Ghulam Nabi Dar and others vs. State of Jammu and Kashmir and others, (2013) 3 SCC 353 and the ratio of law laid down therein does not advance the case of the petitioner any further, for issue before the Court was totally different. There the parties had entered into a compromise in the Court in a lawful manner.
53. Again reliance upon the decision rendered by a Coordinate bench of this Court in Bimal Kumar vs. Ram Kumar & others, AIR 2007 Himachal Pradesh 70, is also of no consequence inasmuch as the Court found the compromise to have been not only recorded in writing, but also signed by the parties and their learned counsel, which is not the case in hand.
54. Hence the settlement under misconception of fact cannot be said to be a settlement in law. Since this Court, thus far has not recorded the statements of the parties with regard to the agreement or passed any order with regard thereto about its acceptability or legality, the agreement dated 23.06.2017, purportedly arrived at ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 31 between the parties as recorded in the record of the proceedings of the learned Mediator cannot be said to be binding and no order/decree in terms thereof can be .
passed.
55. Thus, for the reasons assigned supra application stands dismissed.
CMP(M) No.1489 of 2016-seeking condonation of delay & CMP(M) No.7228 of 2016-seeking leave to file the revision petition
56. It be observed that the petitioner, on affidavit has made following averments:-
"That the delay in filing the Revision Petition has taken place on account of the fact that the applicant was not party to the eviction petition and had no knowledge about the passing of order of eviction till 20-7-2016. The revision is being filed after obtaining the record without any unnecessary delay."
(Emphasis supplied)
57. This averment, ex-facie is false as is evident from the observations made by the Civil Court in its order dated 19.09.2011 (P-58), reproduced supra. He was fully aware of such fact. In any event, this Court is of the considered view that there has been inordinate, unexplainable delay in filing the present petition. Even though, order of ejectment was passed in the year, 2011, yet petitioner chose not to assail the same before the ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 32 Appellate Authority. He kept on enjoying the property, sitting by the stands. His act and conduct cannot be said to be bonafide.
.
58. The intent of the Legislature is evidently clear and that being that litigation by a person, who is not a party, need not be encouraged, in fact discouraged, for we are dealing with a special legislation of tenancy. All proceedings under the special enactment, either which way, must come to an end, with certainty and expeditiously.
Evidence is to dissuade persons, who are not party to the lis, nor to drag or procrastinate the proceedings, so as to prevent a successful party, from enjoying the benefits accrued to them, by virtue of an order of adjudication. He was fully aware of all proceedings and ought to have apprised the Court at the earliest. As such, these applications need to be rejected. Ordered accordingly.
Petitioner's conduct totally disentitles him for such relief.
59. Notwithstanding the same, Court otherwise proceeds to adjudicate other issues on merit.
60. This Court in Civil Revision No.154 of 2004, titled as Yog Raj Sood vs. Anita Kaushal & another, decided on 01.06.2016, has already discussed the scope of interference ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 33 in a petition for revision filed under Section 24(5) of the Act, in the following terms:-
"31. Now what is the scope of such revisional jurisdiction and the extent of the power which the court .
can exercise is now well settled by a five-Judge Bench of the apex Court reported in Hindustan Petroleum Corporation Limited vs. Dilbahar Singh, (2014) 9 SCC 78.
The findings can be summarized as under:
(i) The term 'propriety' would imply something which is legal and proper.
(ii) The power of the High Court even though wider than the one provided under Section 115 of the Code of Civil Procedure is not wide enough to that of the appellate Authority.
(iii) Such power cannot be exercised as the cloak of an appeal in disguise.
(iv) Issues raised in the original proceedings cannot be permitted to be reheard as a appellate Authority.
(v) The expression "revision" is meant to convey the idea of much narrower expression than the one expressed by the expression "appeal". The revisional power under the Rent Control Act may not be as narrow as the revisional power under Section 115 of the CPC but certainly it is not wide enough to make the High Court a second court of first appeal. While holding so the Court reiterated the view taken in Dattonpant Gopalvarao Devakate vs. Vithalrao Maruthirao Janagawal, (1975) 2 SCC 246.
(vi). The meaning of the expression "legality and propriety" so explained in Ram Dass vs. Ishwar Chander, (1988) 3 SCC 131 was only to the extent that exercise of the power is not confined to jurisdictional error alone and has to be "according to law".
(vii) Whether or not the finding of fact is according to law or not is required to be seen on the touch stone, as to whether such finding of fact is based on some legal evidence or it suffers from any illegality like misreading of the evidence; overlooking; ignoring the material evidence all together; suffers from perversity; illegality; or such finding has resulted into gross miscarriage of justice. Court clarified that the ratio of Ram Dass (supra) does not exposit that the ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 34 revisional power conferred upon the High Court is as wide as an appellate power to reappraise or reassess the evidence for coming to a finding contrary to the findings returned by the authority below.
(viii) In exercise of its revisional jurisdiction High Court shall not reverse findings of fact merely because on reappreciation of the evidence it may .
have a different view thereupon.
(ix) The exercise of such power to examine record and facts must be understood in the context of the purpose that such findings are based on firm legal basis and not on a wrong premise of law.
(x) Pure findings of fact are not to be interfered with. Reconsideration of all questions of fact is impermissible as Court cannot function as a Court of appeal.
(xi) Even while considering the propriety and legality, high Court cannot reappreciate the evidence only for the purposes of arriving at a different conclusion. Consideration of the evidence is confined only to adjudge the legality, regularity and propriety of the order.
(xii) Incorrect finding of fact must be understood in the context of such findings being perverse, based on no evidence; and misreading of evidence.
32.The Court was dealing with the provisions of the Kerala Buildings (Lease and Rent Control) Act, 1965, T. N. Buildings (Lease and Rent Control) Act, 1960 and Haryana Urban (Control of Rent and Eviction) Act, 1973. The incongruity in the decisions rendered by the apex Court in Rukmini Amma Saradamma vs. Kallyani Sulochana, (1993) 1 SCC 499 and Ram Dass (supra) was the backdrop in which the Constitution Bench was called upon to decide the scope of the revisional jurisdiction and the expression "legality and propriety" provided in the relevant statues. The essential question being as to whether in exercise of such powers, the revisional authority could reappreciate the evidence or not. Finally the Court answered the reference by making the following observations:-
"43. We hold, as we must, that none of the above Rent Control Acts entitles the High Court to interfere with the ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 35 findings of fact recorded by the first appellate court/first appellate authority because on reappreciation of the evidence, its view is different from the court/authority below. The consideration or examination of the evidence by the High Court in revisional jurisdiction under these Acts is confined to find out that finding of facts recorded by the court/authority below is according to law and does .
not suffer from any error of law. A finding of fact recorded by court/authority below, if perverse or has been arrived at without consideration of the material evidence or such finding is based on no evidence or misreading of the evidence or is grossly erroneous that, if allowed to stand, it would result in gross miscarriage of justice, is open to correction because it is not treated as a finding according to law. In that event, the High Court in exercise of its revisional jurisdiction under the above Rent Control Acts shall be entitled to set aside the impugned order as being not legal or proper. The High Court is entitled to satisfy itself as to the correctness or legality or propriety of any decision or order impugned before it as indicated above. However, to satisfy itself to the regularity, correctness, legality or propriety of the impugned decision or the order, the High Court shall not exercise its power as an appellate power to reappreciate or reassess the evidence for coming to a different finding on facts. Revisional power is not and cannot be equated with the power of reconsideration of all questions of fact as a court of first appeal. Where the High Court is required to be satisfied that the decision is according to law, it may examine whether the order impugned before it suffers from procedural illegality or irregularity."
[Emphasis supplied]
61. Having perused the record of the authorities below, it cannot be pointed out as to in what manner and as to how findings returned can be said to be perverse, irrational or wholly erroneous. One need not elaborate on the evidence produced by the parties, but the issues answered by the Rent Controller, are based on cogent, material and admissible evidence.
62. From the ocular evidence that of Raghav Sharma (AW.1) and Ms.Manju Madan (AW.2), it is evidently clear ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 36 that the premises in question are required by the landlord, who wants to carry out additions and alterations, which cannot be carried out without the tenant being evicted.
.
Premises are bonafidely required for generating income.
Also the tenant has constructed a mezzanine floor, thereby causing severe damage to the property, impairing its market value and utility. Such findings of fact by the authorities below are clearly borne out from the material placed on record. In fact, from the testimony of Dr.Kailash Kashyap (RW.1), it cannot be inferred that either their testimonies or veracity stand impeached; confronted or belied. It has not come on record that the evidence led is collusive or in any manner only to help the landlord.
63. No perversity or illegality can be found in the finding of fact returned by the Courts below.
64. Mr. R.L.Sood, learned Senior Counsel, vehemently argues that the petitioner cannot be said to be a person aggrieved and as such has no locus to file the present petition.
65. After careful consideration, I am of the considered view that this issue requires to be left open to be considered in an appropriate case, for the reason that ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 37 other submissions made by the petitioner do not find favour with the Court.
66. Since much efforts stand put in, the Court only .
feels to refer to certain decisions on this count.
67. Who can be an aggrieved person stands considered by the Apex Court in the following terms, in Shobha Suresh Jumani vs. Appellate Tribunal Forfeited Property and another, (2001) 5 SCC 755:-
"5. First we would reiterate that the words "any aggrieved person" are found in several statutes. However, the meaning of the expression "aggrieved" may vary according to the context of the enactment in which it appears and all the circumstances. In Sidebotham, Re. ex p Sidebotham, (1880) 14 Ch D 458 (Ch D at p.
465) it was observed by James, L.J.:
"But the words 'person aggrieved' do not really mean a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something."
6. The said passage was referred to and relied upon by this Court in Thammanna v. K. Veera Reddy, (1980) 4 SCC 62 and Northern Plastics Ltd. vs. ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 38 Hindustan Photo Films Mfg. Co. Ltd., (1997) 4 SCC
452."
.........
"9. From the aforesaid scheme of the Act, "any person aggrieved" by an order of the competent .
authority would mean a person whose property is held to be illegally acquired under the Act and which is to be forfeited or whose legal rights qua the said property are adversely affected. According to Black's Law Dictionary, "aggrieved party" refers to "a party whose personal, pecuniary or property rights have been adversely affected by another person's actions or by a Court's decree or judgment. - Also termed party aggrieved; person aggrieved".
Therefore, a relative or associate who has not interest or right in such property cannot be held to be a person aggrieved. It is true that the wife may be aggrieved because her husband's properties are forfeited. But that would not confer a right to file an appeal against such order. There is no infringement of her legal right. For the purposes of the Act husband and wife are different entities. .. ... ..."
(Emphasis supplied)
68. A 'person aggrieved' must be a man who has suffered a legal grievance, a man against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something". (Thammanna vs. K. Veera Reddy and others, (1980) 4 SCC 62).
::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 3969. The Apex Court in Bar Council of Maharasthra vs. M. V. Dabholkar and others, (1975) 2 SCC 702, has held as under:-
.
"28. Where a right of appeal to courts against an administrative or judicial decision is created by statute, the right is invariably confined to a person aggrieved or a person who claims to be aggrieved. The meaning of the words "a person aggrieved" may vary according to the context of the statute. One of the meanings is that a person will be held to be aggrieved by a decision if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is aggrieved if a legal burden is imposed on him. The meaning of the words "a person aggrieved" is sometimes given a restricted meaning in certain statutes which provide remedies for the protection of private legal rights.
The restricted meaning requires denial or deprivation of legal rights. A more liberal approach is required in the background of statutes which do not deal with property rights but deal with professional conduct and morality. .. ... ...".
CMP No.6299 of 2017-Mesne profit
70. The next issue which arises for consideration is as to whether petitioner is liable to pay mesne profits?
71. The demised premises which comprise of 210 sq.ft., fully used for commercial purpose, are situate on the ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 40 Ridge, the very heart of Shimla Town. It is on the ground floor of a busy commercial building commonly termed as Ritz Cine Complex. It has astoundingly high commercial .
value and is accessible by vehicular traffic.
72. A Coordinate Bench of this Court vide judgment dated 6.4.2017, passed in Civil Revision No. 212 of 2016, titled as Sh. Champeshwar Lall Sood & another vs. Sh.
Gurpartap Singh & others, in relation to commercial premises situated on the Mall Road, Shimla, which is not far off from the demised premises, has already determined mesne profits to be @ `250 per sq. ft. Hence this Court, by relying upon the said decision, applying the principle therein, can safely quantify mesne profits of the demised premises to be @ `250/- per sq.ft. The principle for determination of fair compensation as laid down by the Apex Court in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd., (2005) 1 SCC 705 and Marshall Sons & Co.
(I) Ltd. vs. Sahi Oretrans (P) Ltd. and another, (1999) 2 SCC 325, stands duly considered while arriving at such figure.
Thus, petitioner would be liable to pay a sum of `52,500 (210 sq.ft. X `250 per sq.ft.), per month, w.e.f. 30.06.2011, the date of passing of order of ejectment. He is a mere trespasser in the property. This the petitioner shall deposit ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 41 within a period of two months from today. Needless to add, the amount already deposited by the petitioner towards mesne profits in terms of interim order dated 22.11.2017 .
shall be deducted there from.
73. Learned counsel for the petitioner refers to a decision rendered by the Apex Court in H. Seshadri vs. K.R. Natarajan and another, (2003) 10 SCC 449. Well the decision is inapplicable as it deals with the case of determination of proprietary rights of the occupant prior to the execution of the decree and this Court is not dealing with such proceedings.
74. Another decision rendered in Abdul Sattar vs. Khutejabi and others, (2003) 5 SCC 647, is equally inapplicable, for there the Court is dealing with the order of ejectment passed against the persons, who were not tenants under the special Statute, which did not cover the possessors as tenants.
75. Learned counsel for the petitioner lays emphasis on the fact that post agreement recorded in the proceedings of the mediator, the landlord accepted the rent, binding the parties thereupon. This plea is unacceptable. In P. John Chandy and Co. (P) Ltd. vs. John P. Thomas, (2002) 5 SCC 90, the Apex Court clarified that the ::: Downloaded on - 04/08/2018 23:00:01 :::HCHP 42 acceptance of the payment even as rent can be of no consequence. In any event, in the instant case the amount stands immediately returned.
.
In view of the above, present petition is dismissed with the vacating of interim order passed therein.
Pending application, if any, also stands disposed of.
August 3 , 2018
(Purohit/PK)
r to (Sanjay Karol),
Acting Chief Justice.
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