Shani Lane, Zendigate, Ahmednagar. (Ori. Judgment Debtor) v. Puranamal Ravatmal Sakhala, Age
Case Details
1 / 21 wp4445-22+.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4445 OF 2022 WITH WRIT PETITION NO.4446 OF 2022 1. 1. Shaikh Mansur Ajij, Age : 53 years, Occ.: Business, … Petitioner. R/o.: House No.1560, Shani Lane, Zendigate, Ahmednagar. (Ori. Judgment Debtor) Versus Puranamal Ravatmal Sakhala, Age : 55 years, Occ.:Business, R/o.3058, Parshakhunt, Ahmednagar. 2. Ravi Subhash Sakhala, Age : 33 years, Occ: Business, R/o. 3058/59, Parshakhunt, Ahmednagar. 3. Avinash Subhash Sakhala, Age:31 years, Occ.: Business, R/o. 3058/59, Parshakhunt, Ahmednagar. … (Ori. Decree-holders) 4. Chandanmal Raghunath Sakhala Age: 65 years, Occ.: Business, R/o. In front of S.T. Stand, Shirur, Tal. Shirur, Dist.Pune. 5. Naresh Chandanmal Sakhala, Age:48 years, Occ.: Business, R/o.: In front of S.T. Stand, Shirur, Tal. Shirur, Dist.Pune. 6. Subhash Ravatmal Sakhala (Dead). 2 / 21 wp4445-22+.odt 7. Shantabai Ghewarchand Sakhala, Age : 57 years, Occ.: Household work, R/o. 3058/59, Parshakhunt, Ahmednagar. 8. Dilip Ghewarchand Sakhala, Age: 42 years, Occ: Business, R/o.: 3058, Parshakhunt, Ahmednagar. 9. Atul Ghewarchand Sakhala, Age: 40 years, Occ: Business, Respondent Nos.7 to 9 R/o.3058/59, Parshakhunt, Ahmednagar. 10. Kishor Devandas Narang, Age : 52 years, Occ: Business, R/o. C/o. Lovely Stores, 11, Mochi Lane, Ahmednagar. 11. Gangaram Devandas Narang, Age: 41 years, Occ.: Business, R/o. Mochi Lane, Ahmednagar. 12. Santosh Hiralal Goyal, Age: 44 years, Occ.: Business, R/o. Mochi Lane, Ahmednagar. 13. Satish Ranuji Dalvi, Age: 47 years, Occ.: Business, R/o.Mochi Lane, Ahmednagar. 14. Fakirchand Kesarimal Songagra, Age: 59 years, Occ: Business, R/o. Mochi Lane, Ahmednagar. 15. Jayshree Narayan Joshi, Age: 49 years, Occ: Household work, R/o.: H.No.2731, Mochi Lane, … Respondents. Ahmednagar. (Ori. Judgment debtors.) 3 / 21 wp4445-22+.odt Mr. Nikhil Santosh Jaju, Advocate for the Petitioner. Mr. S.S. Bora, Advocate for Respondent Nos.1 to 3. – – – – – – : SHARMILA U. DESHMUKH, J. CORAM Reserved on : Pronounced on : JANUARY 13, 2023. JANUARY 23, 2023. JUDGMENT : 1. Rule. With the consent of the parties, rule made returnable forthwith and heard finally. 2.
Legal Reasoning
These two writ petitions challenge orders arising out of
Decision
Regular Darkhast No.361 of 2023 and hence are being disposed of by the common judgment. 3. Writ Petition No.4445 of 2022 has been preferred challenging the order dated 22nd March, 2019 passed by the Executing Court, whereby the objections raised by the Petitioner to the executability of the decree on the ground of lack of jurisdiction has been rejected. 4. Writ Petition No.4446 of 2022 has been preferred against the order dated 7th March, 2022, whereby the application filed by the Respondents for issuance of possession warrant has been allowed. 5. The facts of the case are as under: 4 / 21 wp4445-22+.odt . RCS No.8 of 2004 came to be filed seeking partition and possession of the suit property by the Respondent Nos.1 to 3, initially, as against the Respondent Nos.4 to 15. During the pendency of suit, the Petitioner was impleaded as defendant no.7 to the said proceeding and subsequently, the other defendants came to be deleted and the suit proceeded with the Petitioner as sole Defendant. The Respondent Nos.1 to 3 and Petitioner herein, resolved their dispute and compromise terms were tendered which was made decree of the Court being compromise decree dated 27th November, 2009. As the Petitioner failed to comply with his obligation under the compromise decree, Regular Darkhast No.361 of 2013 came to be filed by the Respondent Nos.1 to 3 for execution, in which the objection raised as to the executability of the decree by the Petitioner under Section 47 read with Order XXI Rule 3 of the Code of Civil Procedure, 1908 (for short, “the Code”) came to be rejected by order dated 22nd March, 2019 and subsequently, the application of the Respondent Nos.1 to 3 for possession warrant came to be allowed by order dated 7th March, 2022. 6. Heard Mr.Nikhil Santosh Jaju, learned counsel appearing for the Petitioner and Mr. S.S. Bora, learned counsel appearing for Respondent Nos.1 to 3. 7. Mr. Jaju submits that in the execution proceedings, the Petitioner was sought to be evicted from the premises which was 5 / 21 wp4445-22+.odt occupied by him as a licensee and the compromise decree without any implied or expressed inclusion of any of the grounds under Section 16 of the Maharashtra Rent Control Act, 1999 (for short, “the Rent Act”) cannot be put into execution resulting in his eviction. He submits that irrespective of the compromise terms entered into between the Petitioner and the Respondent nos.1 to 3, no proceedings for eviction, by way of possession warrant in execution proceedings, can be taken out. He submits that the suit was filed for partition and separate possession in the Civil Court and the matters arising out of the tenancy would be the subject matter of the Special Court and hence, the Civil Court had no jurisdiction to entertain and try the tenancy matters. He would further submit that the decree is a preliminary decree and was sought to be put into execution before the final decree is obtained. Petitioner has placed reliance on the following decisions : (i) Abedali Khan s/o Rahematali Khan vs. Devidas s/o. Dhonduji Poghe, reported in 2012 (1) LJSOFT 65; (ii) Alagu Pharmacy and Ors. v. N. Magudeswari, reported in AIR Online 2018 SC 156; (iii) Raosaheb Bhikaji Tambe Vs. Namdeo Eknath Tambe & Anr., reported in 2000 (9) LJSOFT 90; (iv) Enventa Fischer Gmbh & Co., K.G. vs. Polygenta Technologies Ltd., reported in 2005 (4) LJSOFT 162. 8. Per contra, Mr. Bora submits that in the suit for partition and separate possession, the Petitioner came to be impleaded as defendant no.7, as the defendant no.2 had sold his 6 / 21 wp4445-22+.odt ¼th share to the defendant no.1 admeasuring 24.25 sqr. mtrs. of the western portion of the property. He would further submit that in the said proceedings, the Petitioner had himself filed an application for taking on record the compromise terms and is now seeking to resile from the compromise terms. He submits that the Petitioner has suppressed material facts in as much as during the execution of possession warrant, the Petitioner’s son has objected to the possession and filed obstructionists application claiming independent rights in the property. He would further submit that that the Petitioner has taken steps to assert his rights under the compromise decree by applying to the Revenue Authorities to mutate the petitioner’s name in respect of part of the property, which came to his share in the compromise terms, but has failed to comply with his obligation to hand over part of the property occupied as a licensee. In support of his contentions Mr. Bora has relied upon the following decisions: (i) Caetano Souza vs. Augusto Souza and Ors., reported in MANU/MH/1327/2016; (ii) Pawan Kumar Arya and Ors. vs. Ravi Kumar Arya and Ors., reported in MANU/SC/0253/2020; (iii) R.Rajanna vs. S.R. Venkataswamy, reported in MANU/ SC/1060/2014. I have considered the rival submissions of the parties. The submissions of the Petitioner can be broadly 9. 10. categorized as under: 7 / 21 wp4445-22+.odt (a) (b) (c) As the compromise decree does not reveal existence of any of the grounds contemplated under Section 16 of the Rent Act, possession warrant for eviction of the Petitioner from the premises which he occupied as a licensee cannot be permitted; Civil Court which was not a Special Court having jurisdiction to decide the matters of tenancy, the decree itself is a nullity; Compromise decree is a preliminary decree and before attaining finality, the same is sought to be put into execution. 11. For the reasons stated hereinafter I am not inclined to interfere with the impugned orders. 12. RCS No.8 of 2004 was instituted by the Respondent Nos.1 to 3, initially against the Respondent Nos.4 to 9 seeking partition and separate possession of ¼th share of the Petitioner in suit property being Municipal House No.2711 bearing City Survey No.2731, admeasuring 96.1 sqr. mtrs. It was the case of the Respondent Nos.1 to 3 that the said property was purchased jointly by the Respondent Nos.1 to 3, Respondent Nos.4, 6, and husband of Respondent No.7 by a registered sale deed dated 31st December, 1973 and as such, they were joint owners. It is further the case of Respondent Nos.1 to 3 in the suit that the Respondent No.4 herein, without consent and without partition, sold his undivided ¼th share to Respondent no.5 herein on 16th December, 1999 by a sale deed. In the said sale deed the property is described as “¼th share 8 / 21 wp4445-22+.odt of the western portion.”. Subsequently, the suit was amended, the other respondents including the Petitioner herein came to be added as defendants. 13. By the amended suit, the Respondent Nos.1 to 3 claimed that during the pendency of the suit, the Petitioner was gifted additional shares by the other co-owners, and as such, they became entitled to ¾th share in the property. It was also claimed that during the pendency of the suit, the Respondent No.5 herein, sold the share which he had purchased from the Respondent No.4 to Petitioner herein on 26th February, 2007. In the amended plaint, for the first time, the possession of the Petitioner as the licensee in respect of area on the ground floor admeasuring 8 X 19 feet and 1 X 4 feet was mentioned and it was stated that the said area was given under a leave and license agreement, which period has not yet expired. It was also claimed in the amended plaint that the defendant nos. 4 to 13 were in possession of part of the property as tenants and the Petitioner herein is attempting to take possession of the property which is in occupation of tenants by way of sale deed, and therefore, sought a relief that till the partition of the property and handing over the share of the Respondent Nos.1 to 3, the Petitioner should be restrained from taking over possession of part of the property occupied by the defendant Nos.8 to 13 as tenants. 14. In the suit what was sought by the Respondent Nos.1 to 9 / 21 wp4445-22+.odt 3, was partition and separate possession of their share of the suit property and for that purpose, the possession of the Petitioner as a subsequent transferee of part of the suit property, as also a licensee of part of the suit property has been put forth in the plaint. As there is a dispute, as far as the compromise deed are concerned, it is necessary to refer to the compromise terms, which are reproduced hereinafter. “ या कामी वादी व पततवादी नं- तडजोड सुलेनामा झाला तो येणेपमाणे- ७ शेख मनसुर अजीज यांचया दरमयान आपसात १. २. वादी व पततवादी नं. या हेतुने सदर दावयामधये आपसात तडजोड के ली ती खालीलपमाणे. ७ शेख मनसुर अजीज यांनी आपसात संबंध चांगले रहावेत घर नं. वादी नं. २७३१ चा मयु. मदनांक २८/०२/ ०२५ चौ.मी. प. ४ महससा महणजे २४. या मधये वादी नंबर २ व ३ यांचा सदरचा नकाशा या तडजोडीचा एक भाग ही वादी व प. ७ शेख मनसूर ४ महससा महणजे ७२. ४ महशयाची वादी नं. महणून पततवादी नं. ०२५ चौ.मी. आहे. २ व ३ व पततवादी नं. २ नरेश चंदनमल साखला यांचेकडू न खरेदी ७ शेख मनसूर अजीज यांचा दावा २७११ चे एकु ण केत ९६. १ २००७ चया ०७५ चौ. मी. आहे. ममळकत महणजे दावा ममळकत सस. स. नं. चौ. मी. रसजसटडर बकीसपतावरन अमवभक ३/ तसेच पततवादी शे मनसुर अजीज यांनी १/ २४. के लेली आहे. ममळकतीमधये १/ वादीना मानय व कबूल आहे. अजीज यांचया दरमयान आपसात सरस मनरस मानाने वाटप झाले असून तयाचा नकाशा या सोबत जोडला आहे. महणून वाचणयात यावा पततवादी नं. ममळकतीमधये पुवर भागात लायसेनसी असून दावा तळमजलयावरील ८ फु ट X पततवादी नं. ममळकतीचे वादी, असून दाणा २४.०२५, चौ. मी. ७ शेख मनसूर अजीज चया महशयास मदला आहे व पुवरकडील बाकी सवर ममळकत वादी नंबर २ व ३ यांचया महशयास मदली आहे. पततवादी नं. ७ शेख मनसूर अजीज यांनी तयांचया कबजात लायसेनसी महणून असलेलया पुवरकडील भागाचा ताबा ३१-१०- २०१३ अखेरपावेतो वादी नंबर २ व ३ यांना दावयाचा आहे. ” ताबा न मदलयास वादी नं. करन पततवादी शेख मनसूर अजीज कडू न ताबा मे. ७ शेख मनसूर अजीज ने २ व ३ यांनी या हुकू मनामयावरन दरखासत दाखल कोटारमाफर त घयावयाचा व १९ फु ट केत व १ फु ट X ७ शेख मनसूर अजीज चया ताबयात लायसेनसी माणून आहे.. ममळकतीपैकी पतशमेकडील भाग सोबतचया नकाशापमाणे पततवादी शेख मनसूर अजीज यांचया दरमयान सुलेनामा झाले ४ फु ट केताची ममळकत दावा ७ शेख मनसूर अजीज हा दावा तयापमाणे पततवादी नं. ममळकतीपैकी पुवरकडील पततवादी नं. 10 / 21 wp4445-22+.odt तसा तयांना अतधकार राहील. ७ शी. शेख मनसूर अजीज यांनी तयांचे ७ शेख मनसूर अजीज चया महशयास मदलेलया दावा ममळकतीपैकी पततवादी नं. पतशमेकडील तळमजलयावरील भागामधये पततवादी नं. ९ भाडेकरी नारंग यांचा असून नारंग यांचयाकडू न पततवादी शेख मनसूर अजीज यांनी आपसात ककवा मे. कोटारमाफर त ताबा घयावा. शी. नारंग यांचयाकडू न पतयक कबजा ममळालयानंतर पततवादी नं. ममळकत ०२५ चौ.मी. २४. दावयाचा आहे. पमहलया मजलयावर जाणेकरीता पाठीमागून बोळीतून दतकण बाजूने ७ यांना हरकत करणार नाही. लावणयास वादी यांची पततवादी नं. पततवादी नं. २ व ३ यांना पततवादी नं. महससयाची ठेऊन बाकी ममळकतीचा पतयक कबजा वादी नं. तसेच पततवादी नं. तसेच ७ यांनी भमवषयकाळी दतकण बाजूस सजना काढणयास पततवादी नं. ७ शेख मनसुर अजीज यांचया महससयात ७ हरकत करणार नाही. २ व ३ यांना सजना वादी व पततवादी शेख मनसूर अजीज यांनी आपसात वाटप मानय के लयामुळे सदर सुलेनामयाला फायनल तडकीचे हुकु मनामयाचे सवरप दावे. ममळकतीबाबत कोणताही वाद रामहलेला नाही तयामुळे सदर सुलेनामयास फायनल तडकीचे हुकु मनामयाचे सवरप दावे. कारण या पततवादी शेख मनसूर अजीज चया महशयास मदलेलया दावा ममळकतीपैकी पतशमेकडील पमहलया मजलयावरील भागाचा पतयक कबजा सदर भभत बांधुन पततवादी शेख मनसूर अजीज यांना १० ममळकतीमधये मदवसात ससटी सवहरची मोजणी करन देणयाचे ठरले आहे. मजलयाचा रामहलेला भाग वादी नंबर २ व ३ यांचया पतयक कबजात मदला आहे. तसेच पमहलया वादी नंबर २ व ३ व पततवादी शेख मनसूर अजीज यांना वाटपापमाणे मदलेलया तळमजलयावरील ममळकतीचया दरमयान दोन सवतंत भभती बांधावयाचया असून व पततवादीचे शेख मनसूर अजीज याने सवतः करावयाचा आहे. भभतीचे बांधकामाचा खचर पततवादी २ व ३ यांचया वादी नं. यांचेकडु न भाडे/ ककवा कोटारमाफर त ताबा घयावा. महशयास आलेलया भाडेकरी व लायसेनसी लायसेनस फी वादीने घयावयाचे आहे व तयाने आपसात २ व ३ व पततवादी नं. वरील वाटपापमाणे ससटी सवहर रेकॉडरला वादी नं. शेख मनसूर अजीज यांनी मोजणीसाठी अजर करावयाचा आहे व सदर ममळकतीचे सब तडवहीजन करन घयावयाचे आहे. सब तडवहीजन साठी होणारा खचर पततवादी शेख मनसूर अजीज यांनी करावयाचा आहे. ससटी सवहे मोजणीसाठी ७ व वादी यांचा पतशमेकडु न २४. रामहला नाही. या पुढील काळात ते शी. २५ चौ. मी. या ममळकतीवर कोणताही हक मनसुर अजीज शेख यांना कोणतयाही ४. ५. ६. ७. ८. ९. १०. 11 / 21 wp4445-22+.odt पकारचा हरकत अडथळा करणार नाही तसेच पोटमहससा करतेवेळी जेथे जेथे सहा लागतील तेथे तेथे सहा देतील. पततवादी शेख मनसूर अजीज यांचयावर राहणार नाही व तयांचा सवहर उतारा व पोट महससा करन घयावयाचा आहे. सदर ममळकती वरील बोजा ससटी सदर वाटपापमाणे जयाने तयाने आपआपलया १ ते ३ व पततवादी शेख मनसूर अजीज यांचे दरमयान येणेपमाणे वादी नं. आपसात वाटप झाले असून एकमेकांनी एकमेकांचया कबजास हरकत अडथळा करावयाचा नाही. नगरपाललका व इतर सरकारी कर भरावेत व ससटी सवहर रेकॉडरला व नगरपाललका रेकॉडरला योगय तया नोदी करन घयावयात. आपापलया मवलहेवाट लावावी. ममळकतीचा मजरनुरप उपभोग घयावा अथवा जयाने तयाने महशयाचया महशयाचे सुलेनामा झाला येणेपमाणे तडजोड / यावा, जयाने तयाने आपापला सोसावा.” मनयमापमाणे कोटर फी व ररफं ड वादीला तयापमाणे हुकु मनामा करणयात ममळावा. दावयाचा खचर ११. १२. 15. The Compromise terms record that the respondent Nos.1 to 3 are entitled to ¾th share admeasuring 72.75 sqr.mtrs. and the Petitioner is entitled to ¼th share admeasuring 24.25 sqr.mtrs. of the suit property, that the suit property be divided in this proportion between the Petitioner and the Respondent Nos.1 to 3 as per the map annexed, the eastern portion of the property on the ground floor admeasuring 8 feet x 19 feet and 1 feet x 4 feet was occupied by the Petitioner and by reason of this compromise, the Petitioner was entitled to ¼th share of the western portion of the suit property and the balance ¾th share was of the Respondent nos.1 to 3, and as such, the portion which is in occupation of the Petitioner as a licensee i.e. the eastern portion shall be handed over to the Respondent Nos.2 and 3 on 31st October, 2013, and in event the possession is not handed over the compromise decree can be put into execution. It was also recorded that the Petitioner was 12 / 21 wp4445-22+.odt entitled to initiate necessary proceedings as against the defendant no.9, named Narang for possession, who was occupying the western portion of the suit property and hence, after taking possession of the share of 24.25 sqr. mtrs. which was allotted to the Petitioner in the compromise deed, the balance portion to be handed over to the Respondent Nos.2 and 3. Clause (5) of the compromise deed records that these proceedings should be considered as a final decree proceeding as the Petitioner and the Respondent nos.1 to 3 have agreed to the partition. 16. There is no dispute as regards the execution of the compromise terms between the parties. In the background of the compromise terms, the submissions of the Petitioner are required to be considered. Learned Counsel for Petitioner has assailed the executability of the compromise decree as regards the eviction of the Petitioner from the portion occupied by him as licensee due to non existence of any of the grounds of eviction contemplated under Section 16 of the Rent Act. In the present case, the compromise decree has been passed in a suit for partition and separate possession. The Petitioner was occupying part of the suit property as licensee and at the same time due to purchase of ¼th undivided share of the property had become co-owner of the property, by reason of which he was impleaded in the suit for partition. The Compromise deed recognizes this fact and the parties have arrived at a settlement whereby it was agreed that ¼th share of the western portion of the suit property should be allotted to the Petitioner and 13 / 21 wp4445-22+.odt the balance ¾th share will be the share of the Respondent Nos.1 to 3. It is for the purpose of the partition and separate possession of ¼th share of the western portion of the property, the property occupied by the Petitioner albeit as a licensee and which now by reason of the compromise decree has been allotted to the share of the Respondent Nos.1 to 3 was called upon to be vacated and handed over. 17. RCS No 8 of 2004 proceedings were not instituted under the provisions of the Rent Act seeking eviction and the compromise terms was executed between the parties as co-owners of the suit property. There is another aspect of this matter which militates against the case of the Petitioner. In the affidavit-in- rejoinder the Petitioner has annexed the copy of leave and license agreement, which has been executed by the Petitioner with the Respondent Nos.1, 6, 7, 8 and the wife of Respondent No.9, and by virtue of this license agreement, a license was granted to the Petitioner to use and occupy the shop on the ground floor for a period of 60 months effective from 1st July, 2005 to 30th June, 2010. At this stage, it is necessary to resort to the provisions of the Rent Act and the definition of licensee contained in Section 7(5), and the definition of a tenant contained in Section 5(15), which is reproduced as under: 7(5) "Licensee", in respect of any premises or any part thereof, means the person who is in occupation of the premises or such part, as the case may be, under a 14 / 21 wp4445-22+.odt subsisting agreement for licence given for a licence fee or charge; and includes any person in such occupation of any premises or part thereof in a building vesting in or leased to a co-operative housing society registered or deemed to be registered under the Maharashtra Co- operative Societies Act, 1960; but does not include a paying guest, a member of a family residing together, a person in the service or employment of the licensor, or a person conducting a running business belonging to the licensor or a person having any accommodation for rendering or carrying on medical or para-medical services or activities in or near a nursing home, hospital, or sanatorium or a person having any accommodation in a hotel, lodging house, hostel, guest house, club, nursing home, hospital, sanatorium, dharmashala. home for widows, orphans or like premises, marriage or public hall or like premises, or in a place of amusement or entertainment or like institution, or in any premises belonging to or held by an employee or his spouse who on account of exigencies of service or provisions of residence attached to his or her post or office is temporarily not occupying the premises, provided that he or she charges licence fee or charge for such premises of the employee or spouse not exceeding the standard rent and permitted increase for such premises, and any additional sum for service supplied with such premises or a person having accommodation in any premises or part thereof for conducting a canteen, creche, dispensary or other services as amenities by any undertaking or institution; and the expressions "licence", "licensor" and "premises given on licence" shall be construed accordingly.” ……. ……. 5(15) "tenant" means any person by whom or on whose 15 / 21 wp4445-22+.odt account rent is payable for any premises and includes,- (a) such person,- (i) who is a tenant, or (ii) who is a deemed tenant, or (iii) who is a sub-tenant as permitted under a contract or by the permission or consent of the landlord, or (iv) who has derived title under a tenant, or (v) to whom interest in premises has been assigned or transferred as permitted, by virtue of, or under the provisions of, any of the repealed Acts; (b) a person who is deemed to be a tenant under section 25; (c) a person to whom interest in premises has been assigned or transferred as permitted under section 26; (d) in relation to any premises, when the tenant dies, whether the death occurred before or after the commencement of this Act, any member of the tenant's family, who,- (i) where they are let for residence, is residing, or (ii) where they are let for education, business, trade or storage, is using the premises for any such purpose, with the tenant at the time of his death, or, in the absence of such member, any heir of the deceased tenant, as may be decided, in the absence of agreement, by the court. Explanation- The provisions of this clause for transmission of tenancy shall not be restricted to the death of the original tenant, but shall apply even on the death of any subsequent tenant, who becomes tenant under these provisions on the death of the last preceding tenant.” 16 / 21 wp4445-22+.odt 18. Provisions of Section 16 of the Rent Act contained in Chapter IV of the Rent Act, contemplates the situations in which the landlord may recover the possession from the tenant. Chapter V of the Rent Act, deals with recovery of possession from the licensee on expiry of period of license. Considering the distinction as regards the recovery of possession from the tenant and licensee contained in the statute, the protection afforded to the tenant under Section 16 of Rent Act is not extended to the licensee, who is liable to be evicted on expiry of the license period. The submission of the learned counsel for Petitioner as regards the executability of the compromise decree on the ground of section 16 of the Rent Act, which protection is available to tenants is therefore legally unsustainable. 19. At this stage, it may be worthwhile to take note of the provisions of Order XXIII of the Code, which deals with the “withdrawal and the adjustment of the suit” and in particularly Order XXIII Rule 3, which reads as under: “3. Compromise of suit.- Where it is proved to the satisfaction of the court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court shall order such agreement, compromise or satisfaction to be recorded, and shall pass a decree in accordance therewith so far as it relates to the parties to the suit, whether or not the subject matter of the agreement, compromise or satisfaction is the same as 17 / 21 wp4445-22+.odt the subject matter of the suit: - Provided that where it is alleged by one party and denied by the other than an adjustment or satisfaction has been arrived at, the court shall decide the question; but no adjournment shall be granted for the purpose of deciding the question, unless the court, for reasons to be recorded, thinks fit to grant such adjournment. Explanation: An agreement or compromise which is void or avoidable under the Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the meaning of this rule.” 20. Order XXIII Rule 3 permits the compromise between the parties to travel beyond the subject matter of the suit and in facts of the present case, the compromise terms included the handing over of the licensed premises. 21. In the case of Abedali Khan (supra) relied upon by the Petitioner, the facts of that case were that the Petitioner therein was a tenant and the Respondent was the landlord and hence considering the protection which is afforded by Section 16 of the Rent Act, it was held that while submitting the terms of the compromise, it is mandatory that at least one of the grounds for eviction which is available in Section 16 of the Rent Act, ought to have been mentioned in the compromise pursis. In the case of Alagu Pharmacy and Ors. (Supra), in the facts of that case a compromise decree was entered into before the Rent Controller, District Coimbatore in a petition filed under the provisions of Tamil 18 / 21 wp4445-22+.odt Nadu Buildings (Lease and Rent Control) Act, 1960, wherein it was held that where protection under the Rent Act is available, no eviction can be ordered, unless grounds seeking eviction is made out even if parties had entered into compromise. 22. In the case of Caetano Souza (supra), relied upon by Shri Bora, this Court has held that while passing the consent decree, the Civil Court had not decided any tenancy claim or its surrender and it was difficult to accept that the decree be branded as nullity as being passed in breach of the provisions of the Act. 23. In the case of Raosaheb Bhikaji Tambe (supra), relied upon by the Petitioner, this Court in the facts of that case has observed that as per the compromise terms entered into between the parties, it was agreed that the land be measured and the boundaries of the land fixed through the District Inspector of Land Records and encroached area was to be asserted and if found encroached, the encroacher to hand over that area to the other party. This Court held that as the Court has to come to a definite conclusion whether there was encroachment on land of the plaintiff and if found so, particularly demarcating the encroached area the final decree could have been passed directing that the possession of the encroached area be given and if no encroachment found then final decree to be passed. 24. At this stage, it is necessary to refer sub-section (2) of Section 2 of the Code, which reads as under: 19 / 21 wp4445-22+.odt “(2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit, it may be partly preliminary and partly final;” 25. Sub-section (2) Section 2 of the Code makes it clear that decree is final when the adjudication completely disposes of the suit and it is preliminary when further proceedings had to be taken before the suit can be completely disposes of. In the present case, the terms of the compromise decree declares the shares of the parties as per the plan annexed and one of the compromise terms was that compromise is to be accepted as a final decree proceedings. In my view, considering the terms of the compromise declaring the share of the parties as per the plan, except for building the walls demarcating the shares, there was nothing further remaining to be done. 26. Another aspect which supports my view that no 20 / 21 wp4445-22+.odt interference is called for in exercise of writ jurisdiction is the conduct of the Petitioner. The Petitioner has suppressed the fact that his son has taken out obstructionist claiming to have an independent right in the property. This fact was brought to the notice of this Court by the learned counsel for the Respondent. Upon a query by this Court, the learned counsel for the Petitioner was unable to submit any explanation, apart from stating that he does not support the case of his son as an obstructionist. Obstructionist application of the petitioner’s son was filed on 25th March, 2022 and the present writ petition was filed on 4th April, 2022. The Petitioner at the time of filing of the petition was well aware that his son was claiming independent rights in the licensed premises and has suppressed this fact in the petition. Every attempt is being made to assert the rights flowing from the compromise decree but to obstruct the compliance of the obligation under the compromise decree. The powers of writ Court are to be exercised, if the Court is satisfied that the exercise of writ jurisdiction would further equity, good conscience and justice. 27. Learned counsel for the Petitioner has relied upon the judgment of this Court in the case of Enventa Fischer Gmbha & Co., K.G. (supra), which laid down that the conduct may be or may not be blame worthy and are apprehensible but ultimately if the Court does not jurisdiction and proceedings are not maintainable then it is wholly irrelevant. The reliance of the Petitioner on the said decision is misplaced, as the same arose in an arbitration 21 / 21 wp4445-22+.odt petition whereas in the present case, this Court has been called upon to exercise its writ jurisdiction under Article 227 of the Constitution of India. 28. 29. 30. For the reasons aforesaid, Writ petitions are dismissed. Rule stands discharged. At this stage, the learned counsel for the Petitioner sought a stay for a period of four weeks, which was vehemently opposed by the learned counsel for the Respondent Nos.1 to 3. The implementation of the orders dated 7th March, 2022 and 22nd March, 2019, are stayed for a period of four weeks from the date of uploading of this order. ( SHARMILA U. DESHMUKH, J. ) sa_mandwgad