Bombay High Court
Rasiklal vs Govind Pandurang Anantwar on 6 March, 1992
Equivalent citations: AIR1993BOM34, 1996(1)BOMCR444, AIR 1993 BOMBAY 34, 1992 BOM CJ 811 (1996) 1 BOM CR 444, (1996) 1 BOM CR 444
ORDER
1. Landlord Govind Pandurang Anantwar initialed rent control proceedings seeking permission to terminate the tenancy of the tenant Rasiklal Kiranawala, amongst other, on the ground of bona fide need. The landlord then on 30-6-1976 filed a civil suit claiming injunction against the tenant from carrying out any construction, alteration in the tenanted premises. The trial Court granted the temporary injunction. During the pendency of the suit, the parties settled their dispute and adjusted their rival claim. Compromise decree on 16-11-1978 was accordingly drawn. The terms of compromise amongst others are -- that the tenant from 27-2-1979 to continue in the tenanted premises on enhanced rent as indicated, for a period of 10 years. After expiry, the tenant to vacate and deliver the possession to the landlord. In case of breach, the tenant to pay Rs. 5,000/- by way of damages to the landlord.
2. The tenant since failed to vacate, the landlord started execution of the compromise decree for recovery of possession of a tenanted premises as well money claim towards the damages of Rs. 5,000/-, arrears of rent and legal charges. The tenant objected to the execution. According to him, there was no surrender of a tenancy. On failure to vacate, the landlord as a term embodied in the decree, was under obligation to take steps according to law to evict the tenant. The executing Court by order dated 8-1-1990 rejected the claim for recovery of possession but upheld the money claim.
The landlord, therefore, presented Civil Revision Application No. 665 of 1990 against rejecting his claim for recovery of possession, whereas the tenant presented Civil Revision Application No. 199 of 1990 against order granting money claim to the landlord.
3. Mr. Daga, the learned Counsel appearing for the tenant in both the revision applications, besides the objection before the executing Court, raised additional ground.
According to the learned Counsel, compromise decree for possession is a nullity since it is beyond the claim of injunction as involved in the suit. In support, he placed reliance on a decision reported in Shri Changdeo Sugar Mills v. B. S. & A. Industries Ltd., . Moreover, the Instant suit since filed on 30-6-1976 could not be saved by the Amendment to 0. 23, R. 3 of the Civil P.C. by Amending Act 104 of 1976 which subsequently on 1-2-1977 came into force. In support, he invited my attention to a decision reported in Chekkara Ponnamma v.
A. S. Thammayya, . In the submission of the learned counsel, therefore, the decree for recovery of possession is not executable.
4. No doubt, the suit as filed was not for recovery of possession of the tenanted premises. Undisputedly, the prayer was for restraining the tenant from carrying out any construction or renovation, alteration in the tenanted premises. The tenant for more beneficial and peaceful enjoyment of tenanted premises for 10 years, agreed to deliver the possession on expiry thereof. This Court in a decision in case of Shri Changdeo Sugar Mills, (cited supra) on which reliance is placed by the learned counsel, while considering the scope of 0.23, R. 3 as then existed, observed (at p. 117 of AIR) :--
"A distinction has to be borne in mind between the prayers in the plaint and the scope of the subject-matter of the suit."
It is further observed that the term "so far as it relates to suit" in 0.23, R. 3 is wide enough and embraces any term which is a consideration for the compromise.
5. It could not be debated that the tenanted premises was the subject-matter of the suit for injunction. The tenant was restrained from carrying out any alterations construction or renovation. At the time of settlement, as a term the landlord undertook to carry but construction and by withdrawing the Rent Control proceedings guaranteed to the tenant enjoyment of possession for a period of 10 years. Delivery of vacant possession thereafter by the tenant to landlord was apparently a consideration for the term to which the landlord agreed. The delivery of vacant possession of the tenanted premises has, therefore, a direct nexus being a con- sideration, with the subject-matter of a suit which is the tenanted premises. In view of this, a term of a decree for delivery of vacant" possession docs not fall beyond the ambit of O. 23, R. 3 of the Code.
6. Mr. Daga then urged that taking into consideration the entire text of a compromise decree it constitutes a fresh lease. In support, he invited my attention to the terms in Clause 2 where the landlord agreed for reletting of the tenanted premises after reconstruction. As per Clause 10, the tenant agreed to pay enhanced rent for a period of 10 years. Clause 11, provides for the renewal of a tenancy and clause 20, provides for a termination of tenancy in case of any breach of term or condition by the tenant. According to the learned Counsel all these terms taken together, indicate a definite intention of the parties to create a fresh lease. A compromise decree which incorporates such fresh lease is compulsorily required to be registered under S. 17(i)(d) of the Registration Act, 1908, as well under S. 107 of the Transfer of Property Act: In absence of any registration, the compromise decree does not affect any immovable property in view of S. 49 of the Act. As such, the decree cannot be executed for recovery of possession. In support of the submission, the reliance is placed on a decision reported in M/s. Technicians Studio v. Smt. Lila, .
In the case before the Supreme Court, the landlord obtained a decree for eviction against the appellant who was a sub-tenant. Appellant went in revision. The revision was disposed of in terms of compromise. As per the terms of compromise, the appellant was agreed to be treated as a direct tenant of the landlady on a monthly rent for a period of 16 years. The Supreme Court, therefore, held that the agreement creates a fresh lease and the same requires registration. However, the ratio as enunciated arising out of the facts has no application to the instant case.
7. Mr. Chandurkar, the learned counsel appearing for the landlords in both the revisions has rightly submitted that the tenancy was in vogue since beginning. There was no termination at the time of compromise. The compromise deed does not create any fresh lease between the parties. The submission is well merited.
The Supreme Court in a decision reported in Nai Bahu v. Lala Ramnarayan, , has laid down a test that the dominant intention of the document must guide the construction of its contents. It is, therefore, necessary to examine the tenor of the compromise-deed to ascertain as what was the will of parties at the time of entering into compromise.
As a term of compromise, the tenant vacated the tenanted premises. However, this was the arrangement to facilitate the landlord to carry out the construction of the premises. His vacating the tenanted premises has not brought an end to the tenancy which was in vogue on the date of the compromise. This is fortified from clause 2 of the compromise decree, wherein it is specifically mentioned that the landlord not to claim any rent during the period from vacating till the re-entry by the tenant. The re-entry of the tenant in the tenanted premises was certainly in pursuance of the tenancy which was subsisting. No doubt, there was an enhancement of rent after re-entry. However, it was incidental and a device for a consideration of the reconstruction and renovation of the tenanted premises. In view of this term, "shall re-let" as appears in clause 2, is clearly a misnomer. On examining the entire tenor, the compromise decree neither involved any transfer nor it creates an instrument of conveyance. As such, in view of a decision reported in Girdharilal v. Hukamsingh, ," the" compromise decree is not liable to be registered.
8. Mr. Daga, alternatively made a submission that if the compromise decree is treated as an instrument of surrender, it needs registration being a document of reconveyance. Reliance is placed on a decision report-ed in M. S. Ram Singh v. B. S. Surana, and Neelkantha Rao v. State of Mysore, AIR 1960 Mysore 87.
Mr. Chandurkar, the learned counsel appearing for the landlord, successfully repealed the submission. It is rightly submitted that the surrender extinguishes a right of a tenant in future to hold a possession. The decree which incorporates such surrender which extinguishes right is covered by S. 17(1)(d) of the Registration Act. Since the decree in question does not record compromise as regards the property, beyond the subject matter of suit is exempted from registration under sub-clause (vi) of sub-
section (2) of S. 17 of the Act. I agree with the submission.
9. Mr. Daga then urged a main point that the terms of the decree does not bring an end to the tenancy and the same subsists even after the expiry of the period mentioned therein. He particularly invited my attention to clauses 11, 12 and 20 as incorporated in the compromise decree. Clause 11 empowers the landlord to renew the tenancy after the expiry of 10 years. Clause 12 reads as thus:--
"That after a period of ten years commencing from Falgun Sudi I Samvat 2033 the defendant shall vacate the delivery the vacant possession of the house No. 130/1 to the plaintiff, failing which the plaintiff shall he at liberty to terminate his tenancy and proceed against him for his eviction according to law."
The learned counsel stressed on the clause underlined by me. Clause 20 as discusssed provides for the termination of tenancy in case of breach.
The learned Counsel then invited my attention to Clause 13(1)(b) of the C. P. and Berar Letting of Premises and Rent Control Order, 1949, and made a submission that even if the tenancy is determinable by efflux of time, permission to terminate the tenancy is necessary under sub-clause (1) of Clause 13. The compromise decree which is passed without obtaining the permission is non est in view of a decision reported in Namdco v. Prakash, 1987 Mah LJ 1085. It is further urged that if clause 12 of the compromise decree is held to be a surrender then it would amount to contracting out, which is impermissible in view of S. 23 of the Contract Act. Such interpretation of clause 12 would defeat the provisions of the Rent Control Order which creates obligation on the landlord to obtain the permission of the Rent Control Authorities before terminating the tenancy. As such, the compromise decree would be a nullity. He placed reliance on a decision reported in Murlidhar v. State of U.P., and (Sic).
10. There could hardly be any debate that surrender is one of the modes of terminating the tenancy as prescribed under S. 111 of the Transfer of Property Act. Surrender brings an end to the tenancy. As explained by this Court in a decision reported in Shreekisandas v. Daulat, 1964 Mah LJ (Note) 21 that it amounts to giving up of a right by a tenant and in that eventuality permission of the Rent Controller is not necessary.
Whether the parties intended to bring an end to tenancy right is to be ascertained as indicated by the Supreme Court in a decision of Nai Bahu (cited supra) from the tenor of the document and dominant intention of the parties.
10. It would be therefore, appropriate to examine the set of circumstances which led the parties to a compromise as reflected in the decree. It is revealed that the tenanted premises is a double storeyed building situated in a business locality of City of Nagpur and was initially let out on a monthly rent of Rs. 65/-. Adjacent to the tenanted premises, the landlord has his own residential house bearing No. 130/1. The tenant intended to demolish the common wall situated between the two houses and carry out certain construction in the tenanted premises. It appears that the tenant intended to carry out the construction to make the use of the tenanted premises more beneficial. The landlord injected him. Moreover, the landlord was in bona fide need of the tenanted premises. On this back-ground, the tenant agreed to vacate the tenanted premises so as to facilitate the landlord to carry out the construction which was certainly to his advantage. The landlord further agreed not to press his claim of bona fide need of the premisee for time being. The tenant further agreed to deposit with the landlord Rs. 1,200/-, returnable on delivery of vacant possession of the tenanted premises to the landlord. The tenant was to be continued for a period of 10 years on enhanced rent. The tenant agreed after expiry to deliver the vacant possession. The tenant has reasserted the condition also in clause 16. Under clause 13, the tenant agreed to construct a wall in between the houses of the parties so as to completely sever the access.
After going through the entire text and tenor of the document, the intention of the parties is writ large. It is further significant that the parties faithfully acted upon the terms for a period of 10 years. It is explicit that the tenant could enjoy the premises in question in more beneficial manner after its reconstruction by the landlord. This reconstruction provided access between the two premises. The landlord further agreed to defer his claim for bona fide need. It is apparent that the landlord agreed to the conditions only on unequivocal assurance to secure a vacant possession after the expiry of the period of 10 years. As such, it is more explicit as reflected from the document that the dominant intention of the parties was that after enjoyment of the premises by the tenant for a fixed period of 10 years to bring an end to the tenancy.
11. To hold as suggested by the learned counsel Mr. Daga that second part of clause 12 imposed the condition on a landlord, in the event of the tenant's failure to vacate the premises, to go through ritual of seeking permission from the Rent Controller then to terminate the tenancy under S. 106 of the Transfer of Property Act and thereafter to institute proceedings for eviction, would be completely injurious to the dominant intention of the parties and would tend to distort the tenor of the compromise decree. Taking into consideration the various clauses, according to me, the surrender is complete. The Second Part of Clause 12 on which a much stress is given by the learned counsel is superfluous and redundant. Undisputedly, after surrender the tenancy comes to an end and the landlord is not required to seek permission from the Rent Controller. Clause 20 on which reliance is placed by the learned Counsel provides for termination of a tenancy. Mr. Daga, therefore, urged that the tenancy could be terminated only in accordance with law. However, Clause 20 provides for a termination in case of any breach on the part of a tenant before expiry of period of 10 years as indicated in Clause 12 of the compromise decree. Clause 20, according to me, does not suggest a termination of tenancy after the period of 10 years.
13. Clause 11 of the decree no doubt provides for renewal. However, the clause is unilateral. This clause does not provide any option to the tenant to continue in the tenanted premises after expiry of a period of 10 years. The option is only vested in the landlord. Even to attract clause 13(1)(b) of the Rent Control Order, it is not pointed out that the tenant before the period of expiry expressed his willingness to continue in the tenanted premises. This further ratifies that the tenancy came to an end on expiry of the said period. On the contrary, the landlord by telegram dated 7-3-1989 called upon the tenant to vacate the premises since there is no further renewal. In reply dated 13-3-1989, the tenant did not even claim his renewal. As such, the permission under Clause 13(1)(b) does not become necessary.
14. Mr. Daga then made a submission that S. 111 of the Transfer of Property Act provides various modes of determination of lease; surrender being the integral part it flows from the lease. I do not agree with the proposition. Surrender being the extinguishing of a right of a tenant, even depends on the subsequent events which do not form a part of a lease. As such, surrender does not necessarily flow from the lease. It is completely separable and also contingent on the events which are not envisaged in the lease.
15. Mr. Daga then made a submission that even if a surrender is relinquishment of tenancy right, unless possession is delivered is not complete. According to him, any agreement to deliver possession in future, does not constitue a surrender. In support, the learned Counsel placed reliance on a decision reported in Romesh Chand v. Kirpa, , Ramayan Prasad v. Mt. Gulabo Kuer, , Shah Mathuradas v. Nagappa, , M. S. Ram Singh v. B. S. Surana, AIR 1972 Cal 910, Tarabai v. Padamchand, and Dattatraya v. Shripad, .
16. The Supreme Court has answered the controversy in a decision reported in Kamla-bai v. Mangilal Mantri, . It is observed that, "It is plain that afler the compromise was arrived, there remained nothing for which permission could be granted by the Rent Controller. No permission was necessary where the tenant chose to terminate the lease either by a notice under S. 106 or by surrender under S. 111 of the Transfer of Property Act and under these circumstances therefore the order passed by the Rent Controller filing the compromise was just and fair. No objection could be raised to the passing of the decree for eviction and thereafter when possession was not given as provided for in the decree further time was sought and ultimately in spite of repeated extension of lime the possession was not handed over. It was clear that the lease came to an end by surrender and what by the award was evolved was an agreement on new terms and this therefore did not appear to be any contract to by-pass clause 13 as when the lease itself was determined, nothing survived and therefore, it could not be contended that it was contrary to the provisions of clause 13. When the parties surrendered tenancy and substituted it by fresh agreement, merely because physically the possession was not handed over, was not of much consequence. Substitution of new arrange'ment and the determination of the old by mutual agreement clearly indicated that the tenant surrendered his tenancy right and the court below was not right in coming to the conclusion that the surrender was not there as possession was not handed over."
In view of the ratio laid down, the submission of the learned Counsel for the tenant is wholly without any merit.
17. Mr. Daga faintly tried to urge that in view of the decision in Kamlabai as cited that the tenant agreed to deliver possession on the date and what was postponed was the delivery of physical possession. According to him, time to deliver actual possession was left to the decision of the arbitrator. However, the tenant agreed to deliver notional possession. They entered into an agreement. As such, the ratio evolved from the fact has no application. The submissions are devoid of substance and completely without merit. The landlord, therefore, must succeed.
18. As regards the claim of Rs. 5,000/- as granted by the executing Court, it is rightly pointed out by Mr. Daga that amount of Rs. 5,000/- was payable in case of breach of any of the term during the period of 10 years, as indicated under Clause 12. As such, since there was no breach during the period of 10 years, the landlord is not entitled to recover Rs. 5,000/- in execution of a compromise decree. Mr. Chandurkar, the learned Counsel appearing for the landlord, conceded to this aspect. Hence the following order:--
19. Civil Revision Application No. 665 of 1990 presented by the landlord is allowed, impugned order dated 8-1-1990 rejecting the claim of landlord for recovery of possession is hereby set aside. The executing Court is directed to proceed with the execution of the compromise decree for recovery of possession of the suit premises.
Civil Revision Application No. 199 of 1990 is partly allowed. Claim to the extent of Rs. 5,000/- as granted in the execution by the trial court is hereby set aside. No order as to costs.
At the request of Mr. Daga, the present order is stayed for a period of 5 weeks from today.
20. Petition partly allowed.