Document Fragment View

Matching Fragments

35. There is another way to look at the matter. It is now very well settled that a contract must be read as a whole and not piece-meal to gather the intention of the parties thereto. It is needless to mention that the compromise in question is nothing but a contract to which the Court has put its imprimatur. If we read the clauses wherein the words like "surrender" and "induct" have been used upon divorcing the same from the rest of the document and in the vacuum of the attending fact that the subject premises, in respect whereof the respondent now claims a new tenancy to have been created, is in fact half-portion of the premises that was in his occupation when the suit had been instituted, then, we are afraid, we would be doing violence to the compromise. It would have the undesirable effect of rendering one of the clauses consensually incorporated by the parties to the agreement wholly unlawful and lending credence to an obnoxious intent to evade a decree of Court passed on compromise without objection. The simple meaning that the terms of the compromise convey is that the respondent was allowed to remain in occupation of half-portion of shop room no. 1A upon vacating the other half, for another ten years on certain terms as mentioned in the compromise agreement, that decree would become executable as regards the said other half after ten years provided the tenant complied with the terms and conditions mentioned in the compromise agreement and that if the respondent violated the terms of the compromise, the decree could be executed within the said span of ten years as well.

46. Now we come to the other ground urged by the respondent as regards jurisdiction of the Court to evict the tenant by executing the compromise decree. The jurisdiction of the Executing Court has been questioned by asserting that since the compromise agreement led to creation of a fresh tenancy under the said Act of 1997 therefore the respondent could be evicted only upon a suit being instituted in a Court having jurisdiction in terms of Section 12A of the said Act read with Schedule IV thereof. The argument was thus premised on the coming into existence of or creation of a fresh tenancy. We have already found hereinabove that the parties did not intend to create a fresh tenancy at all; rather the intent was to postpone the respondent's eviction for ten years. Mere use of the words "tenant", "rent", "surrender" and "induction" in the compromise agreement would not lead to creation of tenancy, if the actual intent of the parties was not so. It is not disputed before us that the Hon'ble First Court which passed the compromise decree had jurisdiction to try and decide the suit for eviction of the respondent as instituted by the appellant. The suit was therefore decreed by a Court having jurisdiction. The compromise decree is lawful. 11 (1992) 1 SCC 31 The Executing Court before which the case for execution of the compromise decree was launched had/has the jurisdiction to execute the decree. In view thereof we find no reason to countenance the argument as regards lack of jurisdiction, advanced on behalf of the respondent.

47. The aforesaid reasons also annul the finding of the Executing Court that the compromise agreement is in the teeth of the provisions of Section 28 of the Indian Contract Act, 1872. To wit, the term in the compromise agreement, which provides that the appellant would be entitled to take possession of the subject property upon evicting the respondent by executing the compromise decree, would have been hit by the provisions of Section 28 of the Indian Contract Act, 1872 if a fresh tenancy that could be governed by the West Bengal Premises Tenancy Act of 1997 had been created but since we have found that there was no intention of the parties to create any such tenancy and therefore no such tenancy was created by the compromise agreement, as such the question of the said term being barred under or hit by the provisions of Section 28 of the Indian Contract Act, 1872 as aforesaid does not and cannot arise at all.

50. Kalloo (Smt) & Ors. (supra) relied on by the appellant instructs that to ascertain as to whether a new tenancy has been created or not the intention of the parties should be gathered from the terms of the compromise. We have undertaken such exercise and found that the parties did not intend to create a new tenancy as alleged by the respondent.

51. Biswabani Pvt. Ltd. (supra) relied on by the respondent has turned on its own peculiar facts where there was no indication in the compromise decree that the tenant would be evicted by executing the compromise decree. On the contrary, in the said case the parties had entered into a fresh tenancy agreement for fifteen years that remained unregistered. It was in such a fact situation that the Hon'ble Supreme Court held that the parties intended to create a fresh tenancy. The said judgment does not aid the respondent at all.