Gujarat High Court
Ramanbhai M. Parmar And Ors. vs Smt. Ambaben Hargovinddas on 28 March, 1995
Equivalent citations: (1995)2GLR1909
JUDGMENT S.D. Shah, J.
1. In this group of Civil Revision Applications, the respondent is the judgment-creditor and petitioners are the judgment-debtors (defendants). It appears that the respondent-plaintiff instituted Regular Civil Suit No. 461 of 1988 against Manubhai Dahyabhai Parmar (since deceased) now represented by legal heirs and representatives, who are the petitioners. The suit was filed to recover possession of the suit premises for non-payment of rent commencing from 9-3-1987 at the rate of Rs. 29/- per month till the date of the suit and for further relief of payment of rent or mesne profit at the rate of Rs. 29/- till the possession of the suit premises is handed over to the plaintiff. In such suit, the heirs and legal representatives of the original defendant appeared and contended that the rent at the rate of Rs. 29/- per month was excessive and the standard rent was Rs. 15/-only. It appears at the hearing of the suit, i.e., on 17th March, 1993 before Civil Judge, (SD), a compromise Pursish was filed at Exhibit-39, which inter alia directed that the projected shed beyond 6 feet in the western direction in the land of the plaintiff was to be removed by the defendant. Secondly, it was agreed between the parties that monthly standard rent of the room was Rs. 39/- and standard rent was accordingly decided and it was directed that defendant shall pay the standard rent every month at the rate of Rs. 39/-. The third condition stipulated that all arrears of rent then due were to be paid by the defendant at a time on or before 15th May 1993 and if the defendant fails to pay the rent, it was directed that the plaintiff shall be entitled to recover possession of the suit room by treating the said consent decree as decree for possession. The fourth condition stipulated that in case the defendant would pay up the rent within the time stipulated in the consent terms or by 31st March, 1993, the plaintiff shall not be entitled to recover possession of the suit premises and the defendant shall, thereafter, pay rent every month at the aforesaid rate of Rs. 39/- per month.
2. In Civil Revision Application No. 308 of 1994, the very landlord sued to recover possession of the suit room, inter alia on the ground that rent was due and payable at the rate of Rs. 30/- per month from 30th November, 1984, i.e., for a period of 23 months and that the defendant was liable to pay the same. He also claimed mesne profit at the rate of Rs. 30/- per month from the defendant till realisation of possession. The defendant-original tenant Fogatbhai Jivabhai Parmar, expired and was represented by his heirs and legal representatives, who are the petitioners before this Court. They appeared before the tiral Court and resisted the suit by contending that the standard rent of the suit room at the rate of Rs. 30/- was excessive and that standard rent of the suit room as per Municipal Record was only Rs. 15/-. It appears that when the suit was posted for final hearing before the Fourth Jt. Civil Judge (JD), a compromise Pursis was filed at Exhibit-31 and it inter alia directed the defendant to remove projected portion beyond 6 feet from the rented room in the western portion of the land of the plaintiff. It was also stipulated that parties have agreed that the rent of Rs. 40/- per month would be the standard rent and the defendants-tenants were directed to pay monthly rent at the rate Rs. 40/- every month, that being the standard rent. It was also directed that mesne profit due on the date of the suit shall be paid all at a time on or before 15th of May, 1993 by the defendant and in case the defendant would fail to pay up such rent, the plaintiff was entitled to recover possession of the suit shop by treating the said consent terms as a decree for possession. It was further stipulated that if defendant would pay up the rent and mesne profit by 31st May, 1993 at the aforesaid rate, plaintiff was not entitled to recover possession of the suit shop.
3. It appears that the very respondent-plaintiff also instituted Regular Civil Suit No. 462 of 1988 against the present petitioner to recover possession of the suit room on the ground that he was in arrears of payment of rent. He inter alia prayed that the rent of the suit premises at the rate of Rs. 45/- per month was due and payable by the tenant from 1-3-1987 and that upto 30th November, 1988 total amount of Rs. 945/- was due and payable. He further prayed that mesne profit at the rate of Rs. 45/- per month till the date of realisation of possession of the suit room should also be awarded to him. The defendant-tenant appeared in the suit and contested the standard rent at the rate of Rs. 45/- per month was excessive and claimed that the standard rent was much less. This suit was also compromised before 5th Jt. Civil Judge, (SD) on 22nd February, 1993 by a compromise Purshis at Exhibit-62 and as per such compromise, identical directions as regards projection beyond 5 feet from the room of defendant in western portion were issued. It was further agreed between the parties that monthly rent of the suit premises at the rate of Rs. 55/- per month was fixed as standard rent and the defendant was to pay the standard rent at that rate. It was further agreed that arrears of rent then due and payable by the tenant were to be paid by the tenant at a time on or before 23rd of April, 1993. In case, the tenant would fail to pay up the rent by the stipulated time, the plaintiff was entitled to recover possession of the suit room by treating the consent decree as a decree for possession. It was also agreed that in case the defendant would pay up the rent then due as well as subsequent rent by 31st April, 1993, the plaintiff was not entitled to recover possession of the suit room from the defendant.
4. It is thus clear that in all the three suits instituted by the respondent judgment-creditor, consent decree was passed and standard rent was fixed at a rate higher than the standard rent demanded by the plaintiff and secondly even the arrears of rent were directed to be paid at a rate higher than the rate demanded by the plaintiff within stipulated time. It appears that in all the three suits the defendant paid up the rent in the following manner:
_______________________________________________________________ Sl. No. Date Receipt No. Amount Paid _______________________________________________________________ Regular Civil Suit No. 461 of 1993:
Rs.
1 8-6-1993 67 78.00 2 6-9-1993 C1-81 156.00 3 1-12-1993 C2-76 945.00 Regular Civil Suit No. 464 of 1988: 1 8-6-1993 C-66 80.00 2 3-9-1993 C-176 160.00 3 1-12-1993 C2-77 970.00 Regular Civil Suit No. 462 of 1988:1 8-6-1993 C-68 165 2 3-9-1993 177 165 3 1-12-1993 C-275 935
_____________________________________________________________
5. In view of the aforesaid development, the respondent judgment-creditor instituted Regular Darkhast Nos. 20 of 1993, 22 of 1993 and 21 of 1993 in the Court of Third Jt. Civil Judge (SD), Bharuch to recover possession of the suit rooms from the respective tenants on the ground that they were required to pay, as per the terms and conditions of the consent decree, the rent at the rate of standard rend fixed by the Court on or before the date stipulated in the consent terms and since all the tenants have failed to pay the standard rent at the aforesaid rate, she was entitled to recover possession of the suit premises as per terms and conditions No. 3 of the consent terms and that, therefore, warrant for possession of the suit rooms should be issued and possession should be handed over.
6. It appears that the Third Jt. Civil Judge (SD), who heard the execution application passed common Order on 27th January, 1994 for issuance of warrant of possession under Order 21 Rule 35 inter alia holding that the tenants have failed to pay the arrears of rent as directed by the consent decree within the stipulated time. However, before passing such order, it is submitted before this Court that he called upon tenants in each case to deposit arrears of rent at the rate at which the standard rent is fixed and all petitioners - tenants have deposited all arrears of rent at the stipulated rate on 1st of December, 1993, that can be seen from the tabular details stated hereinabove. Therefore, on the date on which the Executing Court proceeded to pass the impugned order he has by his own direction perhaps relieved the petitioners-tenants from the liability of forfeiture.
7. The aforesaid common judgment and order of the Executing Court in all the three Darkhast proceedings is under challenge in this group of Civil Revision Applications. Mr. Shailesh Parikh, learned Counsel appearing for the petitioners-tenants (judgment-debtors) has submitted that it is the duty of the Executing Court to see to it as to whether Court, on the basis of consent terms, could have passed such decree especially when neither from the consent terms nor from any other material on record, the Court could have enhanced the standard rent than the standard rent claimed by the respondent landlady. In this connection, definition of the word "standard rent" as given in Section 5(10) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 is relevant and is reproduced hereunder:
(10) "standard rent" in relation to any premises means-
(a) where the standard rent is fixed by the Court and the Controller respectively under the Bombay Rent Restriction Act, 1939 (Bom. 16 of 1939), or the Bombay Rents, Hotel Rates and Lodging House Rates (Control) Act, 1944 (Bom. 2 of 1944), such standard rent; or
(b) where the standard rent is not so fixed - subject to the provisions of Section 11
(i) the rent at which the premises were let on the first day of September, 1940, or
(ii) where they were not let on the first day of September, 1940, the rent at which they were let before that day, or
(iii) where they were first let after the first day of September, 1940, the rent at which they were first let, or
(iv) in any of the cases specified in Section 11, the rent fixed by the Court.
8. From the aforesaid definition of "standard rent" read in connection with Section 11 of the Bombay Rent Act, there is no manner of doubt that the Court is required to fix the standard rent in cases where the dispute is raised about the standard rent. It is open to the Court on being satisfied on evidence to hold that the contractual rent is the standard rent. It is also open to the Court, once again on being satisfied on evidence that the rent being claimed by the landlady is higher than the standard rent. However, when the landlady herself in all the three suits referred to hereinabove has claimed that the standard rent of the suit premises was Rs. 29 per month in Regular Civil Suit No. 461 of 1988, Rs. 30 per month in Regular Civil Suit No. 464 of 1988 and Rs. 45 per month in Regular Civil Suit No. 462 of 1988 and when the petitioner-tenants have in each case disputed such amount to be the standard rent and in absence of any evidence of any nature whatsoever either oral or documentary, the trial Court in all cases, simply based on the consent terms without any application of mind whatsoever raised the standard rent to Rs. 39, Rs. 40 and Rs. 55 respectively in all the three suits without recording any evidence and without assigning any reason whatsoever. It is undoubtedly true that the consent decree is nothing but a contract between the parties to which is superadded the seal of the Court, but Court which is called upon to perform its statutory duty of fixing the standard rent shall have to be more vigilant, judicious and conscious when it is without any support documentary or otherwise raising standard rent from the one demanded by the landlady without assigning any reason whatsoever. The Court is not expected to abdicate its function of deciding standard rent more particularly when it is raising the standard rent to an amount which is not even demanded by the landlady as standard rent or contractual rent. Admittedly, neither the landlady nor the tenants have produced any material worth the name before the trial Court excepting the consent terms justifying the raising of the standard rent from the one which was demanded by the landlady as standard rent. In this connection, reference is required to be made to the decision of the Apex Court in the case of Prithvichcmd Ramchand Sablok v. S.Y. Shinde . Justice A.M. Ahmadi (as His Lordship then was) speaking for the Apex Court, was dealing with the consent decree, where the tenants were required to give the possession to the landlord by 10th October, 1970. By Clause-3 of the consent decree, a specific concession was given to the tenant to pay over the entire amount of arrears of rent, future mesne profits, electricity charges, water charges, the rent of the godown and the expenses of the suit by 10th October, 1970 and in such an eventuality it was agreed that the plaintiff will not execute the decree for possession. The trial Court passed a decree in terms of the compromise. The arrears so calculated worked out to Rs. 3,353.58 ps. as on 10th October, 1970. The tenant, however, paid a sum of Rs. 2,040/- only on 9th February, 1970 and, therefore, did not comply with the terms regarding payment of entire arrears on or before 10th October, 1970. In execution proceedings tenant raised objection as regards executability of the decree. The Executing Court rejected the objections raised by the tenant and ordered issuance of warrant for possession. The appeal preferred by the tenant came to be allowed. The order of the Executing Court was set aside and the prayer for eviction was dismissed. The decree-holder moved the High Court under Article 227 of the Constitution. The Bombay High Court set aside the order of the appellate Court and remitted the matter to the appellate Court with direction to decide the character of the compromise terms on the basis of which eviction was sought. The appellate Court reconsidered the matter and once again allowed the appeal. Against the said order, the decree-holder once again moved the High Court under Article 227 of the Constitution. The High Court considered the various provisions and the propositions of law and ultimately concurred with the appellate Court holding that the eviction of the tenant on the consent terms was correct and it was not required to be interefered with.
9. It was in the aforesaid circumstances that the Supreme Court was approached and the Apex Court made very pertinent observations after elaborate reference to the Scheme of Bombay Rent Act in Para-4 of the reported judgment. The Apex Court thereafter proceeded to observe:
It is well-settled that a decree passed on the basis of a compromise by and between the parties is essentially a contract between the parties which derives sanctity by the Court superadding its seal to the contract. But all the same the consent terms retain all the elements of a contract to which the Court's imprimatur is affixed to get it the sanctity of an executable Court order. We must, however, point out that the Court will not add its seal to the compromise terms unless the terms are consistent with the relevant law. But, if the law vests exclusive jurisdiction in the Court to adjudicate on any matter, e.g. fixation of standard rent, the Court will not add its seal to the consent terms by which the parties have determined the standard rent unless it has applied its mind to the question and has satisfied itself that the rent proposed by consent is just and reasonable. In such a case it is the independent satisfaction of the Court which changes the character of the document from a mere contract to a Court's adjudication which will estop the tenant from contending otherwise in any subsequent proceedings as operate as res judicata. If the standard rent is fixed solely on the basis of agreement between the parties, such a decree in invirum will not preclude the tenant from contending in any subsequent proceeding that the rent is excessive and require the Court to fix the standard rent.
10. From the aforesaid pertinent observations of the Supreme Court it becomes clear that the trial Court was under statutory obligation to decide the question of standard rent when the amount claimed by the landlady as standard rent was disputed by the tenants. In any case, there was no justification on the part of the trial Court in raising the amount of standard rent than the one demanded by the landlady in absence of any evidence or material, oral, documentary or otherwise. The trial Court could not have added its seal to the consent terms by which the parties have determined the standard rent unless it had applied its mind to the question and has satisfied itself that the rent proposed by the consent Pursish is just and reasonable. It is the independent satisfaction of the Court which changes the character of the document, from a mere contract to an adjudication. In the present case not only there is no independent satisfaction of the trial Court as regards amount of standard rent but no material or evidence whatsoever in form of oral or documentary evidence existed before the trial Court so as to justify the trial Court to raise the standard rent from the one which was demanded by the landlady. It is, therefore, a case of total non-application of mind by the trial Court where it has failed to exercise its statutory functions and has blindly fixed the standard rent on the basis of the agreement between the parties. In such an eventuality, it is always open to the parties to challenge such a decree so as to contend that it was not bound by such a decree.
Secondly, in the present case, even at the increased rate, the Executing Court has called upon the tenant to pay rent in each case and before the Executing Court could pass any order in each execution proceeding the tenants have paid up their rent at a rate higher than the one which was demanded by the landlady. Ir so doing the Executing Court has exercised the power given to it under Section 148 of C.P. Code. Section 148 of C.P. Code deals with enlargement of time and it is reproduced hereunder:
148. Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.
11. In the case of Smt. Periyakkal and Ors. v. Smt. Dakshyani reported ir , the question arose before the Supreme Court as to whether the Executing Court can extend time for compliance with the requirement of consen decree to deposit the stipulated amount within the stipulated time. The Apex Cour speaking through O. Chinnappa Reddy, J. made following pertinent observations The parties, however, entered into a compromise and invited the Court to make an order in terms of the compromise, which the Court did. The time for deposit stipulated by the parties became the time allowed by the Court and this gave the Court the jurisdiction to extend time in appropriate cases. Of course, time would not be extended ordinarily nor for the mere asking. It would be granted in rare cases to prevent manifest injustice. True, the Court would not rewrite a contract between the parties but the Court would relieve against a forfeiture clause. And, where the contract of the parties has merged in the order of the Court, the Court's freedom to act to further the ends of justice would surely not stand curtailed. Nothing said in Httkamchand's case militates against this view.
12. From the aforesaid observations made by the Supreme Court read with the conduct of judgment-creditor in permitting the Executing Court to call upon the tenant to pay up the entire arrears of rent beyond the stipulated date would evei impliedly suggest that the judgment-creditor was agreeable to enlargement of time for deposit of the balance amount of mesne profit. Once such deposit was required to be made within the time enlarged by the Executing Court, the penalty clause contained in the consent decree would automatically stand forfeited and tenant ii entitled to claim relief against forfeiture. There was, therefore, no justification oi the part of the Executing Court in issuing warrant for possession under Order 21 Rule 35 of the Code of Civil Procedure.
13. In view of the aforesaid settled legal position emerging from the aforesaid two (decisions of the Apex Court, I see no reason as to why the landlady can be permitted to execute the consent decree for non-payment of balance amount o rent. In fact, by not objecting to enlargement of time for deposit of the balanci amount of rent by each tenant in each case, the landlady has agreed or evei impliedly agreed to enlargement of time for deposit of the balance amount of ren beyond the stipulated period in the consent decree. I, therefore, do not find am substance in the submission of Mr. B.S. Patel, learned Counsel appearing for th( landlady that this Court should not interfere when the consent terms are no complied with by a tenant. I, therefore, reject such submission.
14. In view of the aforesaid, all the three Civil Revision Applications are allowed. The judgment and order of the Executing Court in Darkhast Nos. 20 of 1993, 22 of 1993 and 21 of 1993 dated 27-1-1994 is hereby quashed and set aside. Rule is made absolute accordingly. There shall be no order as to costs.