Ulhas Sanvordekar vs Tilak Raj Bhalla
2001 Latest Caselaw 822 Bom

JUDGMENT

V.K. Barde, J.

1. Heard learned Counsel for the petitioner. The respondent/plaintiff herein filed the Special Civil Suit No. 25/93/A in 1993. Therein the plaintiff had pleaded that there was an agreement between the plaintiff and the petitioner/defendant and the defendant was given authority to manage the bar and restaurant on certain conditions. One of the conditions was that the petitioner was to pay a particular amount every month to the respondent and there was also a condition that in case he fails to pay the amount for three consecutive months, then the agreement would be terminated. The petitioner herein committed default in payment of the monthly amount and the suit was filed. After hearing, the learned Civil Judge, Senior Division, Panaji, by its judgment and order dated 19th January, 1999, decreed the suit of the respondent, held that the petitioner had no right, title or interest in the suit premises and the agreement dated 1st April, 1983 has come to an end due to violation of the conditions of the agreement. Besides this declaration, the petitioner was also directed to pay certain amounts towards arrears of agreed monthly payment and mesne profits of the period prior to the filing of the suit with interest, etc.

2. As the entire claim of the respondent was not granted by the trial Court, the respondent filed Civil Appeal No. 48/99 in this Court against the judgment and decree dated 19th January, 1999. The petitioner filed First Appeal No. 76/2000 on 26th April, 1999. Initially stay was granted to execution of the decree, but that stay was thereafter vacated by the Appellate Court. So the execution proceedings before the Executing Court are filed.

3. In the execution application, the respondent/decree-holder demanded possession of the premises and then the petitioner/judgment debtor raised the dispute.

4. It is the contention of the judgment-debtor that there was no prayer for granting possession of the premises and subsequently in decree there was no direction for handing over vacant possession of the premises. In such circumstances, the decree-holder has no right to claim possession of the premises. On hearing of the application of the judgment-debtor to that effect, the learned Civil Judge, Senior Division, Panaji, by the order dated 9th May, 2001, held that the decree holder was entitled to claim possession of the premises.

5. The judgment-debtor thereafter filed a review application with respect to the order passed on 9th May, 2001 and the review application also came to be rejected on 18th September, 2001, by the Civil Judge, Senior Division, Panaji. Hence the present revision application.

6. So far as the contention of the petitioner that no specific relief regarding possession of the premises was claimed by the respondent, it has to be noted that in the plaint, copy of which is produced on record, it is not indicative that the relief of possession was claimed specifically. The judgment which is also produced on record also does not indicate that specifically in the final order relief of possession was granted. However, the fact remains that there was the issue as to whether the respondent was entitled for vacant possession of the suit premises and the issue was answered in the affirmative by the learned Judge.

7. The learned Counsel for the petitioner has argued that it may be that the issue was there and the issue was answered in the affirmative, eventhough there was no relief to claim possession of the premises. It naturally transpires that as and when the respondent/decree-holder makes a claim for possession, that will be granted, but definitely not in execution proceedings which are based on a decree as per the final order given in the suit. Mere statement is there in the judgment that the respondent would be entitled to possession of the premises. That statement does not give any right to the respondent to claim possession.

8. He has further argued that the respondent/plaintiff was very well aware of this defect in the plaint and consequently defect in the final order passed in the judgment and, therefore, in the appeal filed by the respondent he has filed an application for amendment of the plaint seeking the relief of possession. The appeal filed by the respondent is yet pending and in such circumstances it is very clear that the respondent cannot claim possession of the premises.

9. It is also the argument of the learned Counsel for the petitioner that the decree as it is to be executed by the Executing Court. The Executing Court cannot go beyond the decree. When there is no direction to hand over possession the Executing Court cannot give possession of the premises.

10. All these points are considered by the learned Civil Judge when he first passed the order in May, 2001 and when the learned Civil Judge again passed the order on 18th September, 2001. For this Court to interfere in the order passed by the learned Civil Judge, it has to be seen whether there is any error prima facie on record or whether the order is perverse or without jurisdiction.

11. The whole approach in this matter is based on whether the agreement between the petitioner and the respondent was an agreement of lease or it was an agreement for managing the restaurant and bar. The learned Civil Judge has held that it was not an agreement of lease, but it was an agreement for management of the restaurant and bar and on that premises the learned Civil Judge has held that the petitioner/defendant has no right, title or interest in the suit premises, because the agreement had come to an end. Being as it is, it was an agreement for management of the restaurant and bar and if it has come to an end then, definitely, the petitioner has no right to continue in the premises. At this stage, the petitioner cannot take the stand that he is a tenant because that contention of the petitioner is not accepted by the trial Court and the appeal is yet pending. So as the matter stands today, the petitioner's right is limited to the right of management of the restaurant and bar,

11-A. It has to be noted that the agreement was dated 1st April, 1983 for the first period of four years and an option was given to the petitioner for renewal of the agreement for a further period by giving notice of two months in advance prior to the date of expiry of the period of agreement. Similarly, option was given to the respondent to terminate the agreement by the end of the first period of the agreement by giving a notice three months in advance. The judgment of the trial Court indicates that the respondent had given such a notice. However, it appears that even after the expiry of the period of four years, the petitioner continued in possession of the premises. It is contended that by oral agreement, the period was extended either for one year or two years. I need not go into that controversy, but the fact remains that the agreement which was existing between the petitioner and the respondent was terminated by the respondent by giving notice as per the terms and conditions of the agreement. In such circumstances, whether there was breach of the terms and conditions on the part of the petitioner/defendant would not be much material for the consideration of the present matter.

12. All the right which has accrued to the petitioner is on the basis of the agreement and the Court has declared that the agreement has come to an end and the petitioner has no right, title or interest in the suit premises. The petitioner cannot make out that he is entitled to retain possession of the premises on any other agreement, or any other ground. So when the agreement is terminated and there is no contractual relationship between the petitioner and the respondent then, naturally, the petitioner has to vacate the premises.

13. There may not be specific directions in the decree that the petitioner should hand over vacant possession of the premises, but the very source of the right of the petitioner to retain the premises is lost. The petitioner cannot retain the premises and he cannot resist the prayer for possession. In such circumstances, I do not find that there is anything wrong on the part of the learned Civil Judge, Senior Division when he directed the petitioner to hand over possession of the premises in the execution proceedings. When there is no legal right to retain the possession, the petitioner has to vacate the premises. Looking to the matter from this angle, there remains nothing as to whether there is any application for amendment of the plaint for seeking the specific relief of possession, or whether the Execution Court is going beyond jurisdiction by directing the petitioner/defendant to hand over vacant possession of the premises. As it is, the petitioner at present has no legal right to retain possession of the premises.

14. Hence, I find no substance in this Revision Application.

Revision Application is dismissed in limine.