Somani Marketing Pvt. Ltd. And ... vs Subhash C. Raswant
2000 Latest Caselaw 1215 Del

JUDGMENT

Devinder Gupta, J.

1. These applications have been filed by the plaintiffs/appellants after disposal of the appeal. By the first application (CM 472/2000) the appellants are seeking modification in the order passed on 20-5-1999 thereby to allow them time till 31-3-2001 to vacate the premises. By the second application (CM. 473/2000) the appellants are seeking leave to place on record some additional documents in support of the first application. In the third application (CM. 483/2000), the prayer is to stay the appellants dispossession till disposal of the first application.

2. The appellants had filed appeal (RFA (OS) 16 of 1999) against the order passed on 31-8-1998 in Suit No. 1814/98. By the said order learned Single Judge had rejected the appellants plaint wherein decree had been prayed by the appellants against the defendant/respondent for specific performance to register lease deed for the period from 1-8-1998 to 31 -7-2000 and to grant as decree for declaration that appellant No. 1 is entitled to continue as a tenant in the premises.

3. During pendency of the appeal an application (CM. 981/99) was moved jointly by the parties under Order 23 Rule 3 read with Section 151 of the Code of Civil Procedure praying for disposal of the appeal in the term of the settlement and also to take on record the undertaking of the appellant company given through Shri D.K. Jain, one of the Directors of the appellant Company. The appellants had undertaken to vacate the premises on or before 31-10-2000. There were other terms of settlement and the respondent's undertaking also. The compromise was recorded and the undertakings were accepted. Appeal accordingly was allowed. Consequently, the impugned order of the learned Single Judge was set aside. Plaint was ordered to be taken on record and in view of the settlement the suit was disposed of stating that terms of settlement as incorporated in C.M. 981/99 shall form part of the decree. Thus the decree incorporated the appellants unconditional undertaking to vacate the premises on or before 31-10-2000.

4. In CM. 472/2000 the appellants have narrated the circumstances due to which they say that it has not been possible for them to vacate the premises and thereby to honour their undertaking. As such prayer is made to extend the date for vacation on fresh undertakings of the appellants on whatever terms as may be considered fair and reasonable. The appellants have stated that they made bonafide and genuine efforts to find out an alternate premises for which an agreement was also arrived at but the alternate accommodation, which was to be occupied by the appellants had heavy seepage of water in various rooms, therefore, by mutual consent the said lease and hire agreement dated 15-6-2000 was terminated by agreement dated 21-8-2000. It is also stated that Mr. D.K. Jain, Director of the appellant Company, who had been looking after the estate and property of the Group of Companies was taken ill and it has not been possible to the appellants to search out another accommodation.

5. The applications have vehemently been opposed by the respondent contending that the appellants are bound to comply with the undertaking given to the Court. There is no question of granting extension of time. It was pointed out that the original lease, which had come to an end had provided for payment of double the amount of rent beyond the terms of lease; it also provided for forfeiture of the security amount. There was also a claim of the defendant against the appellants for mesne profits. All claims were given up by the respondent when terms were mutually settled and on one such mutually settled terms, the appeal was disposed of. Undertaking to vacate premises on or before 31 -10-2000 was given by the appellant and the same was accepted by the Court. There is there no scope now for the respondent even to agree for fresh terms. Without consent of the respondent, it will not be permissible for the Court to extend time to vacate the premises.

6. We have heard learned counsel for the parties.

7. Learned counsel for the appellant has placed reliance upon a decision of the Supreme Court in Smt. Periyakkal v. Smt. Dakshyani, . In that case in an appeal arising out of an application under Order 21 Rule 90 C.P.C., the parties entered into compromise and invited the Court to make an order in terms of the compromise, which the Court did. Time for deposit stipulated by the parties thus became the time allowed by the Court and this gave the Court jurisdiction to extend time. It was held that in appropriate cases under Section 148 C.P.C. time can be extended though of course time would not be extended ordinarily, nor for the mere asking. It would be extended in rare cases to prevent manifest injustice.

8. Learned counsel for the respondent on the other hand placed reliance upon a decision of learned Single Judge of this Court in Pioneer Engineering Co. v. D.H. Machine Tools, AIR 1986 Delhi 165. It was held therein that time fixed under a compromise decree for performance of obligation under the decree cannot be extended by the Court by invoking Section 148 C.P.C.

9. We have considered the submissions made at the bar and the two decisions. The question before learned Single Judge in Pioneer Engineering's case (AIR 1986 Delhi 165) (supra) was that whether the Court under Section 148 of the Code has jurisdiction to extend time fixed under a compromise decree for performance of obligation under the decree. Decision in Periyakkal's case (supra) was cited and learned Single Judge observed that it was inapplicable since in that case time was not fixed under a decree but was fixed during the course of execution proceedings holding that the time for deposit stipulated by the parties became the time allowed by the Court, which gave the Court jurisdiction to extend time in appropriate cases. Learned Single Judge relying upon earlier decisions held that Court has no Jurisdiction under Section 148 of the Code to extend time fixed by the parties under the terms of compromise decree.

10. In this case without joint into the question as to the applicability of the decision in Smt. Periyakkal's case (supra) that whether the Court will or will not have jurisdiction to entertain an application and pass orders thereon for extension of time and assuming that such power do exist in Court, we are of the view that this case would not fall within the criteria of rare case as laid down in Smt. Periyakkal's case (supra). It is not a rare case where manifest injustice would be caused to the appellants. Assuming the circumstances, as narrated in CM. 472/2000 to be correct, nothing prevented the appellants from searching and obtaining accommodation elsewhere and from taking adequate steps with necessary promptitude immediately 21-8-2000 on which date an agreement is stated to have arrived at terminating the lease and hire agreement for the premises at Sagar Apartments as an alternative accommodation. No case even on the alleged ailment of Shri D.K. Jain is made out since the appellants knew about the ailment, which was there even much prior to August, 2000. The appellants ought to have taken adequate steps for obtaining an alternate accommodation within a reasonable time, which was available with them till 30-11-2000.

11. Considering the facts and circumstances of the case we are of the view that neither it is a rare case nor a case of manifest injustice and hardly a ground is made out even to modify the order, as prayed for, assuming that there is jurisdiction to do so.

Dismissed.