ORIDINARY ORIGINAL CIVIL JURISDICTION v. Sri Gobin Chand Seal

Judgment

1. The instant appeal takes exception to a judgment and order dated May 03, 2024 passed in Execution Case No. 364 of 2021 whereby the aforesaid Execution Case has been dismissed upon holding the same to be not maintainable. FACTS:

2. Bereft of minute details, the essential facts leading to the present appeal are as follows:- a) The respondent (i.e. the defendant in the suit) was a tenant under the appellant (i.e. the plaintiff in the suit) in respect of a shop room bearing no. 1A admeasuring about 1014 sq.ft. together with a porch at premises no. 30, Ganesh Chandra Avenue, Police Station- Bowbazar, Kolkata-700013. b) The appellant herein instituted a suit being C.S. No. 922 of 1986 for eviction of the respondent from the said premises i.e. the said shop room bearing no. 1A. c) The said suit was ultimately decreed on compromise on June 23, 2014. In terms of the settlement arrived at between the appellant and the respondent as aforesaid, the aforesaid shop room was surrendered by the respondent to the appellant and the respondent took possession of the shop room no. 1A/1 admeasuring about 507 sq.ft. (being the fifty percent of the shop room no. 1A) together with a wooden mezzanine floor at the ground floor at premises no. 30, Ganesh Chandra Avenue, Police Station - Bowbazar, Kolkata-700013. d) In terms of the said compromise, the respondent-tenant was entitled to remain in occupation of the said shop room being shop room no. 1A/1 for a period of ten years and the appellant-landlord was precluded from terminating the tenancy prior to the expiry of the said period of ten years unless the terms and conditions stipulated in the settlement as also the grounds provided in the West Bengal Premises Tenancy Act, 1997 were violated by the respondent-tenant. e) Alleging that the respondent had defaulted in payment of the rent in terms of the compromise decree the appellant put the decree dated June 23, 2014 into execution by filing an execution case being E.C. No. 364 of 2021 before expiry of the said period of ten years. f) The said execution case was contested by the respondent inter alia on the ground that since the respondent had been inducted in shop room no. 1A/1 afresh upon the respondent surrendering his earlier tenancy in respect of shop room no. 1A, therefore, the same gave rise to a fresh cause of action and the respondent could not be evicted by the appellant without instituting a fresh suit for eviction. g) The respondent’s contention weighed with the Hon’ble Single Judge and the Hon’ble Single Judge was pleased to dismiss the execution case being E.C. No. 364 of 2021 by a judgment and order dated May 03,

2024. h) Being aggrieved by the said judgment and order dated May 03, 2024 the appellant has approached this Court by filing the present appeal. ARGUMENTS ON BEHALF OF THE APPELLANT:-

Mr. Banerjee, learned Advocate appearing for the appellant submitted that the Hon’ble Single Judge has failed to appreciate that the tenancy which formed the subject matter of the suit was in respect of the shop room no.1A (measuring 1014 sq.ft.) and that merely because in terms of the compromise, the respondent vacated a portion thereof (measuring 507 sq.ft.)

5. and the respondent was permitted to remain in occupation of the other portion thereof (measuring 507 sq.ft.), which was numbered as shop room no.1A/1, such permission to occupy shop room no.1A/1 could not be considered to be a case of fresh induction or a fresh tenancy. It was submitted that as the respondent had defaulted in payment of rent in terms of the compromise decree therefore the appellant was very well entitled to put the decree into execution. Mr. Banerjee further submitted that the respondent had used an affidavit- in-opposition against the appellant’s application for execution and in the said affidavit-in-opposition, no case had been made out that the respondent had been inducted as a fresh tenant or that a fresh tenancy or a new tenancy had been created by signing the terms of the settlement on the basis whereof the suit for eviction had been decreed. It was then submitted that the decree dated June 23, 2014, had been passed on compromise and since the same had neither been challenged by the respondent before any Court of law nor had the same been declared to be a nullity by any Court prior to execution being levied, the said decree is binding on the parties.

6. Mr. Banerjee relied on a judgment of the Hon’ble Supreme Court in the case of Nagindas Ramdas vs. Dalpatram Ichharam alias Brijram & Ors.1 for the proposition that if no objection as to the executability of the decree has been taken, on the ground of the same being a nullity, the Executing Court cannot go behind the decree. 1 (1974) 1 SCC 242

7. Another judgment of the Hon’ble Supreme Court in the case of Mumtaz Yarud Dowla Wakf vs. Badam Balakrishna Hotel Pvt. Ltd. & Ors.2 was relied on for the proposition that the onus lies heavily on the judgment- debtor to satisfy the Court that a decree is not executable and that when the exercise is likely to involve a factual adjudication it should be avoided by the Executing Court. The said judgment was also relied on for the proposition that no one should be allowed to approbate and then reprobate and that a person who had taken the benefit of an instrument could not be allowed to question the same.

8. Mr. Banerjee also placed reliance on a judgment of the Hon’ble Supreme Court in the case of Kalloo (Smt) & Ors. vs. Dhakadevi & Ors.3 for the proposition that the intention of the parties to the compromise must be looked into by the Executing Court. It was sought to be contended that the parties did not intend to create a fresh tenancy and that the intention was actually to postpone the execution of the decree for another period of ten years. ARGUMENTS ON BEHALF OF THE RESPONDENT:-

9. Mr. Kar, learned Advocate appearing for the respondent submitted that the Hon’ble Single Judge has rightly passed the order impugned. He took us through the judgment and order impugned and submitted that when it had been expressly recorded in the decree that in terms of the settlement arrived at between the parties, the respondent was surrendering the earlier tenancy in respect of shop room no. 1A and was being freshly inducted as a tenant 2 2023 SCC OnLine SC 1378 3 (1982) 1 SCC 633 in respect of shop room no. 1A/1, the respondent’s induction in the said shop room no. 1A/1 must be deemed to be a case of fresh tenancy.

10. It was then submitted that the decree passed by the Hon’ble First Court stood satisfied upon the induction of the respondent in shop room no.1A/1 as per the terms of settlement and that the said tenancy so created was to be governed by the provisions of the West Bengal Premises Tenancy Act,

1997. He invited our attention to paragraph 11 of the Affidavit affirmed and used by the appellant in support of the Tabular Statement filed by him seeking execution of the compromise decree and submitted that the statement made by the appellant in the said affidavit to the effect that the respondent had “not complied strictly with the provisions of West Bengal Premises Tenancy Act, 1997” made it clear that the appellant too believed that a new/fresh tenancy had ensued under the West Bengal Premises Tenancy Act, 1997.

11. It was further submitted that if it can be established before the Executing Court that the decree, execution whereof has been sought for, contains terms which are contrary to law the same would not be executed.

12. It was also submitted that as the rent payable by the respondent is Rs. 2000/-(Rupees Two Thousand) per month therefore even in that view of the matter, the tenancy squarely fell within the purview of the West Bengal Premises Tenancy Act, 1997.

13. Referring to clause 9 of the terms of the compromise agreement (which records that in default of handing over peaceful and vacant possession of the premises the plaintiff and/or his successor-in-interest would be entitled to seek recovery of vacant possession of the shop room by merely executing the decree without filing a fresh suit for eviction), it was submitted that such term was clearly unlawful inasmuch the same fell foul of the provisions of Section 12A of the West Bengal Premises Tenancy Act, 1997.

14. Mr. Kar contended that the settlement term which provided for eviction of the respondent by dint of mere execution of a decree without filing a fresh suit was in contravention of the law of the land inasmuch as in terms of Section 12A of the West Bengal premises Tenancy Act, 1997 only the Court as defined in Schedule IV of the said Act of 1997 has the jurisdiction to entertain a suit or proceeding for recovery of possession.

15. It was next submitted that the terms of settlement evinced that the parties intended to create a fresh tenancy and that being so the respondent could not be evicted without instituting a fresh suit. Mr. Kar submitted that since the said term of the decree was one in contravention of the statutory provision as aforesaid and the same was hit by the provisions of section 28 of the Indian Contract Act, 1872 therefore, the same was a nullity and the Executing Court rightly dismissed the execution case.

16. As regards the appellant’s contention in respect of non-payment of rent and subletting, it was submitted that actually there was no default whatsoever in payment of rent and that there was no subletting of the tenancy by the respondent. It was submitted that the respondent had been depositing rent before the rent controller upon the appellant’s refusal to accept rent. It was pointed out that under section 2(g) of the West Bengal Premises Tenancy Act, 1997, an agent of a tenant was permitted to deposit rent on behalf of the tenant before the rent controller.

17. Mr. Kar relied on a judgment of the Hon’ble Supreme Court in the case of Biswabani Pvt. Ltd. vs. Santosh Kumar Dutta & Ors.4 for the proposition that if a tenant of a premise covered by the Local Rent Restriction Act remained in possession and continued to be a tenant on the date of creation of fresh tenancy such tenant could not be evicted by execution of the decree on the basis whereof the fresh tenancy was created. It was submitted that in order to get the tenant evicted, a suit for eviction would be required to be filed.

18. Mr. Kar further relied on a Single Bench decision of the Bombay High Court in the case of Krishna Kashinath Patil vs. S. Mohandas Kamath5 for the proposition that when a compromise takes place in the course of execution of a decree for eviction the compromise may extinguish the decree and create a fresh lease or the compromise may provide a new mode for discharge of the decree. The said judgment has in fact relied on the case of Kalloo (Smt) & Ors. (supra).

19. The following judgments of the Hon’ble Supreme Court were relied on for the propositions that conferment of jurisdiction is a legislative function and that parties cannot confer jurisdiction on a Court by consent; that jurisdiction of a Court can be challenged at any stage; that if a Court lacked jurisdiction over the subject matter of the suit it could not take up the cause or the matter and that any order passed by a Court having no jurisdiction would be a nullity. 4 (1980) 1 SCC 185 5 2001 SCC OnLine Bom 930 i. Zuari Cement Limited vs. Regional Director, Employees’ State Insurance Corporation, Hyderabad & Ors.6 ii. Kanwar Singh Saini vs. High Court of Delhi7 iii. Harshad Chiman Lal Modi vs. DLF Universal Ltd. & Anr.8 ANALYSIS & DECISION:-

20. The principal question that has fallen for our consideration in the case at hand is whether the compromise or consent decree dated June 23, 2014 is executable or not insofar as the same provides that “at the expiry of ten years from the date of these terms of settlement, the defendant shall hand over peaceful vacant possession of the demise premises to the plaintiff and/or his successors in interest and or default thereof or in case of any other default by the defendant, the Plaintiff and/his successor in interest will be entitled to execute the decree to be drawn up herein and seek recovery of vacant possession without filing any fresh proceeding”.

21. The authorities that have been carried to Court by the parties clearly instruct us to be guided solely by the intention of the parties evinced by the settlement reached by them. Therefore, our endeavour should and would be to gather what the parties intended. Indeed if the parties intended that a fresh tenancy would be created which would be governed by the provisions of the West Bengal Premises Tenancy Act, 1997, then in such a case the respondent would not be liable to get evicted without following the course known to law. In such regard the question as to whether execution of a