Tasneem Ahmed vs Mrs. Hem Kumari Gupta
1998 Latest Caselaw 190 Del

JUDGMENT

Usha Mehra, J.

1. Tasneem Ahmad has sought review of the compromise order passed against him on 25th February,1997.

2. In order to appreciate the contention raised in this review petition it would be appropriate to recapitulate the facts. The applicant was a tenant of respondent Mrs.Hem Kumari Gupta, respondent herein, in respect of premises bearing No.J-104, New Delhi South Extension, Part-I, New Delhi. Premises consisted of one bed room, glazed varandah, one room covered with asbestos sheets, one kitchen, one bath and one terrace in front, on a monthly rent of Rs.1,500/-, excluding electricity and water charges. The landlady/ owner of the premises filed an eviction petition under Section 14(1)(e) of Delhi Rent Control Act (in short the Act) on the ground of her bonafide requirements. The learned Additional Rent Controller vide order dated 3rd August,1996 accepted her petition thereby declaring that her need was bonafide. Accordingly passed the order of eviction against the present applicant with further direction that he should vacate the premises within six months of that order. Against the order of the Additional Rent Controller, this applicant filed a Civil Revision which was listed as C.R.No.111/97. Notice was issued on 28th January,1997 and in response to the same the counsel for the respondent appeared on 24th February,1997. The counsel for this applicant made a statement on that date in the Court to the following effect:-

"Counsel for the petitioner states that if some time is granted, petitioner will vacate the premises. Counsel for respondent seeks time to obtain instructions."

3. Accordingly the case was adjourned to 25th February,1997 on which date Mr.Tasneem Ahmad, applicant/petitioner appeared and made a statement to the following effect:

Statement of Mr.Tasneem Ahmad petitioner on S.A. I do not want to contest the petition on merits. I accept the respondent to be the landlord/owner of the premises in question. Nor I deny her bonafide requirement of the premises in question. I may be given six months time to make alternative arrangement. I undertake that I will vacate and handover vacant peaceful possession of the premises in question on or before 31st August,1997 to the respondent or her legal heir, as the case may be. I further undertake that I will pay damages for use and occupation of the premises in question month by month on or before 10th of each English calender month. I also undertake to pay the charges for electricity and water consumed by me during this period. I had paid four months advance rent at the time of inception of this tenancy. That rent may be adjusted towards damages for use and occupation of my premises. I have been depositing rent in Court on the basis of order passed under Section 15(1) of Delhi Rent Control Act in another petition.

4. On behalf of respondent landlady her son Rakesh Kumar Gupta appeared and made the following statement:-

Statement of Mr.Rakesh Kumar Gupta, Respondent on S.A.

I am the lawful attorney of the respondent, landlord/owner of the premises in question. As per her instructions and the attorney given in my favour, I am competent to enter into an agreement with the petitioner herein. The undertaking given by the petitioner to vacate the premises on or before 31st August,1997 may be accepted. I undertake that the decree will not be executed and will be kept in abeyance till 31st August,1997. The other petition filed against the petitioner for eviction on the ground of non-payment of rent, I will withdraw. I admit that at the time of inception of tenancy petitioner had made payment of four months advance rent which will be adjusted towards damages for the use and occupation of the premises in question.

5. On the basis of statement of the petitioner/ applicant and of the attorney of the respondent/landlady this Court vide order dated 25th February,1997 accepted the undertaking given by the petitioner and disposed of the revision petition with direction to the petitioner to handover vacant and peaceful possession of the premises in question to the landlady or her legal representative on or before 31st August,1997 and further that the present applicant would be bound by the undertaking given by him to this court. Because of the undertaking given by the petitioner that he would vacate the premises by 31st August,1997 the respondent landlady was directed not to execute the decree.

6. That pursuance to the passing of the consent order on 25th February,1997, this applicant was to handover vacant peaceful possession of the premises in question on 31st August,1997. However, instead of vacating the premises he choose to file this application on 20th August,1997 objecting to his vacating the premises, inter alia, on the ground that the landlady has entered into a lease agreement regarding the demised premises with one Shri Tapan Chaudhary. That she has re-let the premises in question to one Tapan Chaudhary with effect from 1st September,1997. Therefore, the landlady's need was not bonafide. She has got the premises vacated by committing fraud and on false grounds. Her ulterior motive was to gain financial and commercial benefits. Applicant's wife is ailing, therefore, he could not shift nor move at that stage still he consented to vacate keeping in view the bonafide need of the respondent. But now since the respondent is relating the premises, therefore, seeks review of the consent order.

7. Written submissions have been filed by the applicant through his counsel Mr.Munish Tyagi. Oral arguments of Mr.N.S.Safaya counsel for the respondent were heard. At the out set it must be mentioned that a consent decree which was passed after the parties entered into an agreement and pursuance to which undertaking was given by the applicant cannot be set aside in review. For that the applicant has to show that his consent was obtained by fraud on the date his consent was obtained. Admittedly, in this case as per applicant's own showing on the day he gave the undertaking i.e. on 25th February,1997 the decree of eviction on the ground of bonafide requirement already existed against him. Moreover, on the very date the respondent put in appearance i.e. 24.2.1997 the applicant expressed his desire not to continue with his petition provided six months time was granted to him to vacate. Accordingly, case was adjourned to 25th February,1997 on which date he admitted before this court that need of the respondent was bonafide. And that he was not challenging the order of the learned Additional Rent Controller on merits. The alleged events which he now alleges in his application were not in existence, therefore, there was no question of respondent committing any fraud or in any way misrepresented the facts to this applicant. It is settled principle that when there is no mistake effecting the decision of the Court, the Court has no jurisdiction in review to set aside a compromise decree when the compromise would by the ordinary law of contracts, be binding on the party seeking review. At the time of giving his consent this applicant knew about the need of the respondent landlady. He admitted that her need was bonafide. In this undertaking given to this Court he admitted this fact. Even prior to giving the undertaking he made it clear on 24th February,1997 that he was only interested in time. He in his statement made it clear that he was not to contest the case on merits and thus accepted the judgment and decree passed by the learned Additional Rent Controller against him. He only wanted time to make alternative arrangement. In such an eventuality this Court cannot exercise its jurisdiction and set aside consent order in a review petition on the basis of alleged subsequent events which facts have been denied by the respondent. To support the view that this Court cannot set aside a compromise order in review reference can be made to the decision of this Court in the case of Y.Rajeshwari Vs. Bombay Tyres International Ltd. reported in 39 (1989) DLT 542. Similarly, Madras High Court in the case of Kotaghiri Venkata Subbamma Rao Vs. Vellanki Venkatarama Rao [(1900) 24 madras 1] relied by this Court in the case of Y.Rajeshwari (Supra) observed that Order 47 Rule 1 CPC does not authorise the review of a decree which was right when it was made, on the ground of happening of some subsequent events. It was further observed that any other sufficient reason mentioned in the Rule 1 of Order 47 CPC would be of the kind analogous to the other grounds of review that are specified in the Rule. The Karnataka High Court in the case of G.S.Gupta Vs. Bashir Ahmad & Ors.

also held that happening of subsequent event is not a ground for review of a consent decree under Order 47 Rule 1 of CPC. A consent decree, to my mind, in review cannot be set aside on the ground of subsequent events, particularly if it was right when made. After having conceded that need of the respondent was bonafide and that he was not interested to contest the judgment and decree of the Additional Rent Controller on merits, which tantamount to accepting the decree of the ARC, now it does not lie in the mouth of the applicant to say that in review the said decree be set aside. By this review he wants to flout the undertaking given to this Court which under law cannot be permitted.

8. Contention of Mr.Munish Tyagi that the respondent has re-let the demise premises to one Tapan Chakravarti, and therefore, he should not be compelled to adhere to the undertaking given to this Court, to my mind, this argument is without substance. In such an eventuality the applicant is not without remedy. Section 19 of the Delhi Rent Control Act makes it clear that where a landlord who had recovered possession under Section 14(1)(e) of the Act and re-lets either whole or any part of the same within three years from the date of obtaining such possession the Rent Controller has power to put that tenant in possession of the premises. Therefore, apprehension of the applicant that respondent has already re-let the premises and he would be without remedy are unfounded. This apprehension of the applicant is without substance and contrary to the provisions of Section 19 of the Act. Legislature in its wisdom has incorporated this provision against unscrupulous landlords. Section 19 of the Act imposes a condition on the landlord not to relet the premises within three years after having obtained the possession on the ground of bonafide requirement. Legislature was not oblivious of such eventualities and, therefore, to protect the tenants incorporated Section 19 on the Statute book. Those landlords who for financial gains obtain eviction under the garb of bonafide requirements and thereafter re-let can be penalised. For that purpose reference can be made to Section 48 of the Act which provides punishment to a landlord who contravenes the provisions of Sub-Sections (1) & (2) of Section 19. The punishment can run for a period of six months or with fine or with both. Therefore, it is not that the applicant is without remedy.

For the reasons stated above, I find no merit in the review application. The same is accordingly dismissed with costs of Rs.5,000/-.

9. Before parting I must state that undertaking was given by this applicant on 25th February,1997. Full one year has passed he has as yet not vacated the premises. Since there is a flagrant disregard of the undertaking given by him to this Court, therefore, this Court take a serious view of the same and direct the applicant to handover possession of the demised premises forthwith failing which the respondent will get it vacated with the help of police. S.H.O., Police Station of the concerned area i.e. South Extension, Part-I, New Delhi will provide police help to the respondent to get the premises vacated from the applicant/petitioner without any further loss of time.