Gujarat High Court
Laxminarayan Khadayat Vanik ... vs Rupeshbhai Tribhovanbhai ... on 10 October, 2023
Bench: Ilesh J. Vora
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3685 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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LAXMINARAYAN KHADAYAT VANIK TRUST & 2 other(s)
Versus
RUPESHBHAI TRIBHOVANBHAI SOLANKI
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Appearance:
for the Petitioner(s) No. 2,3
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
MR HARESH J TRIVEDI(927) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ILESH J. VORA
Date : 10/10/2023
ORAL JUDGMENT
1. Challenge in this petition under Article 227 of the Constitution of
India is to the order dated 08.02.2018 passed below Exh.10 in
Execution Petition No.327 of 2014, by which the Executing Court
has rejected the objection of the maintainability of the execution
petition, filed by the petitioner judgement debtor.
2. Facts and circumstances giving rise to file present petition are that,
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the petitioner Laxminarayan Khadayat Vanik Trust, being a
community trust, possessed immovable property at City: Vadodara,
Gujarat. In the property admeasuring 6000 square feet, the trust
had constructed shops and offices on the said property. The
respondent Rupesh Solanki being a tenant was in possession of two
shops namely no.5 and 6 at the ground floor of the property and
since 2000, he was enjoying the tenancy rights in relation to the
two shops. The respondent-plaintiff filed Rent Suit No.6 of 2013
and sought a relief of permanent injunction and declaration joining
the petitioner-trust and its two trustees who are in management of
the trust. In the suit, it was apprehended by the plaintiff that, the
trust wants to sell the suit premises and to evict him from the
property, some unknown persons came to his shop and threatened
him to vacate the shops and handover the possession. Thus,
therefore, to protect the tenancy rights and the possession, the suit
restraining the petitioners-defendants from disturbing the peaceful
possession and enjoyment of tenancy rights, was being filed before
the Small Causes Court at Vadodara. After service of summons
upon the petitioners-defendants, a compromise arrived between the
parties and it was recorded in writing on 14.02.2013 duly signed by
both the parties. In the compromise at Exh.9, the following terms
were agreed by the parties:
(i) Since the landlords has been constructing new building by
demolishing the existing building, the tenant - plaintiff has handed
over vacant possession of two shops and till the restoration of
possession, the tenant shall have not to pay the rent and when
tenant put into possession of the newly constructed shop, he will
pay rent of Rs.3/- per sq.ft.;
(ii) Each shop i.e. shop nos. 5 and 6 having carpet area admeasuring
20.89 sq.mt, and landlords as per the measurement mentioned in
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the map, will have to hand over the possession of newly
constructed shops within 18 months failing which the landlords
shall pay to the tenant a sum of Rs.5001/- per month as
compensation till the date of handing over the possession;
(iii) The possession of newly constructed shops as agreed by the parties
to be given on the same place as per the map;
(iv) The parties agreed to increase the rent after ten years of the
possession @ 3%;
3. In the presence of the parties, the trial Court, had disposed of the
suit recording the compromise by passing the following order
below Exh.1:
Order below Exh.1 (Rent Suit No.6 of 2013):
"In view of the compromise agreement between the parties
produced at Exh.9, the party of the suit settled their dispute as per
terms and conditions of the said agreement. Hence, the present suit
is hereby disposed of as compromise under Order 23 Rule 3 of the
Code of Civil Procedure.
Decree be drawn accordingly to terms and conditions of
compromise agreement.
Signed and pronounced in the open court today on this 14th
February, 2013 at Vadodara."
4. The petitioners failed to handover the possession of reconstructed
shops to the respondent-plaintiff. The respondent-plaintiff vide
advocate notice dated 03.09.2014 called upon the petitioners to
handover the possession of two shops as per the settlement and
decree drawn by the trial Court and further claimed the
compensation. In the reply of the notice, the petitioners raised the
technical issue, stating inter alia that, as per the measurement, the
petitioners are ready to handover the possession of the shops, but
due to demand of more area, the petitioners could not handover the
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possession. In the reply, they directed the respondent-plaintiff to
take the possession of the shops failing which they will not be
liable for the same.
5. On 13.10.2014, the respondent plaintiff, being aggrieved with the
non-handing over the possession of newly constructed shop filed
Execution Petition (327 of 2014) for execution of the compromise
decree before the learned Additional Civil Judge, Small Causes
Court, at Vadodara.
6. The said Execution Petition was opposed by the petitioner landlord
by filing objection Exh.10, inter alia stating that ; (1) on the basis
of consent decree, the tenant judgement holder having no right to
file Execution Petition, as there was no any express terms either
mentioned in the compromise or granted by the Court that the
decree will be executed if there is a default by either of the parties;
(2) that the Executing Court having no jurisdiction to execute the
decree as decree is nullity, as at the time of accepting the
compromise, it was mandatory for the Court to state in express
terms that it was satisfied that compromise was lawful point and,
thus, in absence of any compliance as mandated under Order
XXIII, Rule 3, the decree has become unenforceable; (3) that the
opponent plaintiff himself has not acted as per the terms and
conditions of the compromise, as he was not agreeable with the
measurement of the newly constructed shops and despite due
intimation by the petitioner to him, to take possession, the tenant
failed to take possession in a stipulated time and now he cannot
claim the possession by way of execution of the decree.
7. In the aforesaid facts, learned Senior Counsel Mr. Mehul Shah,
appearing for and on behalf of the petitioner landlord raised the
following contentions:
a) The judgement impugned is contrary to the law and evidence on
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record and the findings arrived at by non-consideration of the
relevant provisions of law and the error which is apparent on the
face of the proceedings based on the clear ignorance and in utter
disregard of the provisions of law.
b) That the Executing Court failed to appreciate that in view of the
section 17 of the Rent Act, the right of the tenant by operation of
law has come to end and now he cannot claim the possession on
the basis of compromise decree.
c) That the learned Executing Court, overlooked the provision of the
Code of Civil Procedure, as Order XXIII, Rule 3 were not
complied in the facts of the present case.
d) The consent terms were unenforceable and contrary to law and
considering the various complicated issue of fact about
measurement of the shops, the Executing Court failed to appreciate
that the said issues arising between the parties, relating to the
execution, discharge or satisfaction of the decree, will require to be
determined by the parties and for which the evidence is required to
be led.
8. In view of the aforesaid contention, the learned Senior Counsel Mr.
Mehul Shah submitted that the findings of facts, overruling the
objection are found to be erroneous and dehors the factual aspect
and legal position of law and, thus, therefore, he submitted that the
findings suffers from jurisdictional error and are not sustainable in
law and the same deserves to be set aside by this Court exercising
supervisory jurisdiction under Article 227 of the Constitution of
India.
9. On the other hand, the learned counsel appearing for the judgement
holder, Mr.Haresh Trivedi, has submitted that on the order
impugned is just, proper and in accordance with law and supported
by sufficient reasons and does not suffer from anyjurisdictional
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error and thus, the interference of this Court is not warranted.
10. Mr. Trivedi, learned counsel, reiterating the contents of the
affidavit-in-reply filed on behalf of the tenant, has further
submitted that the suit No.6 of 2013 was filed on 29.01.2013, for
permanent injunction and declaration as the landlords were trying
to disturb the possession of the two shops. During the pendency of
the suit, the compromise arrived at between the parties and vide
Exh.9 the compromise duly signed by the parties were submitted
before the court and after recording the compromise, the learned
trial Court disposed of the suit and decree was drawn in terms of
compromise at Exh.9 and the same was part of the decree. Since
2014, to till date, the landlords petitioner resiling from their
admission and promise as mentioned in the compromise,
intentionally delaying the execution proceedings under one or other
pretext. Thus, therefore, the learned executing Court has rightly
held that the Executing Court cannot go behind the decree and
Court must take the decree according to its tenor and cannot
entertain any objection that the decree was incorrect in law or on
facts. That the tenant has never raised dispute about the
measurement and according to approved plan by the authority the
tenant is agreeable, however, raising technical issue of
measurement, the petitioner landlords after taking advantage of the
decree, failed to comply their obligation as per the consent decree.
11. In such circumstances, learned counsel Mr. Trivedi submitted that,
the plea of unexecutable of the decree and other technical issues as
raised hereinabove having been raised with a view to delay the
execution proceedings and therefore, where the order impugned
does not suffer infirmity so as to warrant interference in exercise of
jurisdiction of Article 227 of Constitution of India, the application
may not be entertained and deserves to be dismissed with costs.
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12. Having heard the learned counsel for the respective parties and on
perusal of the case records, the point for determination is as to
whether the impugned order calls for any interference under
supervisory jurisdiction of this Court?
13. In the facts of the present case, the facts of the compromise and
decree in terms of compromise passed by the Court are not in
dispute. The respondent plaintiff had prayed for issuance of
possession warrant vide Exh.35 and same was allowed by the
Executing Court. The order of issuance of the possession warrant
challenged by the petitioners by preferring Special Civil
Application no.14834 of 2018. In the said Civil Application the
identical issue of law as well as erroneous finding of facts on the
issue of measurement of the suit shops etc. were being raised and
after hearing the parties, this Court does not find any merits in the
petition and dismissed it with cost. In such circumstances,
paragraphs 16,17,18,19,20,21,22 and 23 are necessary and relevant
which reads thus:
"16. It is not in dispute that, the petitioners are the landlords and
respondent is the tenant. On 29.01.2013, the suit for injunction
and declaration was filed by the tenant to protect his tenancy
rights in relation to the two rented shops. On service of the
summons, the petitioners-landlords appeared before the trial
Court in the suit. On 14.02.2013 vide Exh.9, the parties
submitted a compromise pursis, inter alia, stating that, the
possession of two shops already been handed over to the
landlord and on construction of new building, the tenant will be
given two new shops at the same place as per the map. The
compromise Exh.9 was signed by the parties and their
advocates. Even on the compromise, the photographs of each
party was being affixed and same were identified by the
concerned advocates of the parties. Parties remained present
before the Court. The learned trial Court vide its order dated
14.02.2013, after taking into consideration the compromise at
Exh.9 observed that, the parties have settled their dispute as per
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terms and conditions of the agreement and hence, suit is
disposed of as compromised under Order 23 Rule 3 of the CPC
and finally, ordered that, the decree be drawn accordingly to the
terms and conditions of the compromise agreement. Thus, the
decree in terms of compromise Exh.9 was passed and the same
was part of the decree. After completion of construction as well
as stipulated period of 18 months, the landlord failed to restore
the possession. Notice was served on 03.09.2014 calling upon
the landlords to comply the terms and conditions of the decree.
Notice was replied on 09.10.2014. In the reply, it was stated that,
the landlord is ready and was always willing to part with the
possession, but, due to more demand of floor area which was not
part of the terms and conditions, they could not comply with the
decree. However, they are ready to part with the possession. On
13.10.2014, the petition for execution of the compromise decree
filed before the trial Court. On 20.01.2015, the landlord filed
objection at Exh.10 against the maintainability of the execution
petition. On 09.02.2018, the tenant sought possession warrant
vide application Exh.35 and same was opposed by the landlord.
The learned trial Court allowed the Exh.35 vide its order dated
29.08.2018 and issued a possession warrant.
17. In the aforesaid background facts, now let us examine the
issue raised by the petitioner.
18. The contention is raised that, the dispute is governed by the
provisions of The Rent Act and considering Section 17 of The
Rent Act, the execution petition is not maintainable. In support
of the said contention, learned senior counsel Mr. Mehul Shah
relied on the case of Laxman Dattatreya vs. Manohar Namdev
(AIR 1978 BOMBAY 22) and case of Pitambar Parsottam vs.
Ilaben Bhaichandbhai (1980 1 GLR 224) to contend that, after
notice served by the plaintiff-tenant, the landlord had given an
opportunity to take the possession of the newly constructed
shops and thereafter, within a period of one month as provided
under Section 17(C)(ii)(a) of The Rent Act, the tenant failed to
occupy the possession of the shops and therefore, the tenancy
was terminated by operation of law and now under the guise of
compromise decree, the benefit cannot be given to the
respondent-tenant.
19. In order to appreciate the contention, it is beneficial to refer
the relevant provisions of the Rent Act. The Section 13(1)(hh) of
The Rent Act provides that, the landlord shall be entitled to
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recover possession of any premises if the Court is satisfied that,
the premises reasonably and bonafide required by the landlord
for demolishing it and such demolition is to be made for the
purpose of erecting new building on the premises sought to be
demolished. Thus, it is clear that suit must be filed by the
landlord to recover the possession for the grounds mentioned in
the section 13(1)(hh) of The Rent Act. The scheme of the Act
further cast duty on the landlords to produce the certificate as
provided under sub-section 3(b) of Section 13 with an
undertaking. In such circumstances, the pre-condition as referred
would satisfy, then the Court may pass decree of eviction under
Section 13(1)(hh) of the Act. Section 17 lay down the procedure
for recovery of possession or occupation and right of re-entry,
where, a decree for eviction passed on the ground specified in
clause (g) or (i) of Sub-Section (1) of Section 13. Whereas,
Section 13(a) of the Rent Act, provides the procedure for
recovery of possession for demolishing the building. When the
decree for eviction passed by the Court in the ground specified
in Clause (hh) of sub,-section 1 of Section 13. Section 17-B
conferred right upon the tenant to gave notice to the landlord of
his intention to occupy the rented new building. Where as
Section 17(c) provides that on receipt of the notice from the
tenant under section 17(B), the landlord shall intimate the tenant
the date on which, the construction shall be completed and on
the date the tenant shall be entitled to occupy the premise and if
the tenant fails to occupy the premises within period of 1 month,
his right to occupy the said premises shall terminate.
20. In the aforesaid premise, the petitioner landlord contended
that, the decree after termination of the tenancy would become
unenforceable. This Court is of considered view that, the
contention about the applicability of the Section 17 (B) & (C)
cannot be accepted. The reasons are that, the suit was filed for
declaration and injunction to protect the possession. Due to
relationship of the tenant and landlord, the Regular Civil at
Vadodara refused to register the suit and after withdrawing it
and suit was filed before the Small Causes Court at Vadodara.
The suit was not filed under Section 13(1)(hh) of the Act, nor
any relief was being sought by the plaintiff tenant. The terms of
the compromise Exh. 9 submitted by the parties wherein also, no
relief for eviction being sought before the Court. The possession
of the rented shops before recording the compromise handed
over to the landlord so the court concerned has disposed of the
Civil Suit of injunction and declaration based on the
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compromise terms Exh. 9. The landlord - petitioner after
obtaining the possession and till the completion of the
constructed building, never challenged the correctness and
legality of the consent decree stating that, the tenant had not
acted under Section 17(B) of the Rent Act and decree was under
13(1)(hh) of the Act. Thus, therefore, when the suit was not filed
under Section 13(1)(hh) of the Act, the reliance placed on
Section 17(B) and 17(C) of the Rent Act are not attracted at all.
The compromise decree governed by Order 23 Rule 3 of the
CPC, though the relations of the parties were of tenant and
landlord. Thus, therefore, the plea about termination of tenancy
and unenforceable of the decree are misconceived and not
sustainable in law.
21. The next submission is that the plaintiff tenant has not acted
as per the consent terms as he was not agreeable to the
possession as per measurement and is demanding more area and
virtually come out with a new cause of action and therefore, the
issue requires determination by the executing court under
Section 47 of the CPC. This contention also not having any
merits. On perusal of the terms and condition of the compromise
and decree and the notice demanding restoration of the
possession dated 03.09.2014 and the facts mentioned in the
Execution Petition dated 13.10.2014, this Court does not find
any ambiguity or contradiction in measurement. The tenant has
on affidavit stated that as per the measurement shown in the
approved plan, he was ready to take possession, however,
reasons best known to the landlord, they failed to restore the
possession as agreed. Thus, the issue of measurement is being
raised with a view to delay the execution proceedings. The
reason is that the consent decree dated 14.02.2013 has not been
challenged before the court concerned and landlord after
obtaining the possession of the suit shops had acted upon the
decree and constructed new building. Thus, after taking
advantage of the decree, the landlord with a view to defeat the
right of the tenant, raised the issue of measurement which shows
the intention of the landlord that by any means, they do not part
with the possession of the shops.
22. The third submission is that, at relevant time, when decree
was drawn, the mandatory provisions of Order 23 Rule 3 of the
CPC were not complied. It is in this context, the issue raised is
that, the provisions cast on obligation on the court to be satisfied
that the suit has been adjusted by lawful agreement. In the facts
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of the present case, at the time of recording the compromise, the
learned Court while accepting the compromise, failed to express
in clear terms that the court was satisfied that the compromise
was lawful. In the facts of the present case after filing the suit by
the tenant, the compromise arrived at between the parties and
same was reduced into writing on 14.02.2013 and before Court
could passed an order for possession of two shops had been
handed over to the landlord by the tenant and same was reflected
in the condition no.1 of the compromise. The said compromise
was duly signed by the petitioner and its Trustees as well as the
tenant - respondents and advocates of the respective parties. In
order to avoid further litigation on the compromise purshis Exh.
9, the passport size photos of the tenant as well as two
authorized Trustees were being affixed. In such circumstances,
the learned trial Court has disposed of the suit on the same day
and passed an order below Exh.1 of the plaint, observing as
under :
"In view of the compromise agreement between the parties
produced at Exh. 9, the parties of the suit settled their dispute as
per terms and conditions of the said agreement and hence,
present suit is hereby disposed of, as compromise under Order
23 Rule 3 of the CPC and further ordered to draw a decree to the
terms and condition of compromise agreement."
In the aforesaid premise, in the presence of the parties, the
compromise which was signed by both the parties and observing
the same and taking cognizance of the compromise, the suit was
disposed of. It is settled position of law that, duty cast upon the
Court to satisfy itself with regard to the terms of the agreement
and the Court must be satisfied that the agreement is lawful
before passing the decree. In the facts of the present case, on
14.02.2013, the compromise decree was passed. After obtaining
the possession of the two shops, the old structure was
demolished by the landlords for the purpose of erecting new
building. The new commercial building constructed during 18
months as agreed by the parties. It needs to be noted that, during
the 18 months, the petitioner-landlord did not raise any objection
about the correctness and validity of the consent decree and after
taking advantage of the decree, they are raising the dispute about
the non-compliance of the provision, as referred above. In such
circumstances, when parties have acted upon the decree and
taking advantage of it, the plea at this stage about non-recording
of the satisfaction that as provided under Order 23 Rule 3 cannot
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be accepted. In the case of Ameteshver Anand Vs. Virendra
Mohan, 2006 (1) SCC 148, the Supreme Court on the issue of
recording the satisfaction under Order 23 Rule 3 has observed
that, it is not necessary for the Court to say in express terms that
it was satisfied that the compromise was lawful one, as there is
presumption that the court was so satisfied unless the contrary is
proved. In the facts of the present case, nothing brought on
record to establish that the decree was unlawful. At the cost of
repetition, this Court observed that, the decree passed was fully
accepted with all understanding and with a clear mind and
parties have acted upon the terms and conditions of the decree
and considering the reciprocal promises, as mentioned in the
compromise, the landlords herein failed to comply and/or
execute their promise in relation to the restoration of possession
of two shops. In such circumstances, the plea regarding non-
compliance of provision Order 23 Rule 3 is not acceptable.
23. The fourth submission canvassed by the petitioner is that
there was no any consent on the part of the landlord to draw a
decree in terms of compromise Exh.9 and therefore, the decree
has become un-enforceable. This court do not find any merits in
the contention as after passing of the decree dated 14.12.2013,
the old structure was demolished and new building was
constructed on the same place and thereafter, the landlord with
all understanding acted upon the terms of the compromise and
now without any legal stand, raised the question qua legality and
correctness of the decree. In such circumstances, this court is of
the considered view that as per the terms of the compromise, of
compromise, the respondent tenant is entitled to be placed on the
same position and for the execution of the decree, is only
remedy available to the tenant to get the possession back of two
shops as agreed by the parties."
14. In view of the aforesaid discussions, and findings in deciding the
Special Civil Application which arises out of execution
proceedings between the same parties, the submissions advanced
by learned Senior Counsel for and on behalf of the petitioners need
not require to be dealt with at length and accordingly relying on the
aforesaid reasons this Court does not find any merits on the
submissions about the unenforceability of the decree, non-
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compliance of Order 20, Rule 3 of the Code of Civil Procedure and
applicability of the provisions of the Rent Act and other issues.
15. So far as impugned order passed below Exh.10 is concerned,
learned Executing Court while rejecting the objection, observed
that the judgement debtor i.e. the petitioners have not challenged
the compromise decree dated 14.02.2013 and at this stage, the
correctness of decree cannot be challenged. In such circumstances,
this Court is of the considered view that the Executing Court has
rightly exercised its jurisdiction vested on it and learned Executing
Court while not entertaining the objection has rightly come to the
conclusion that the Executing Court cannot go behind the decree. It
is not in dispute that after obtaining the possession of suit shops,
the petitioners, submitted a compromise at Exh.9 and accepting the
terms thereof as well as decree passed by the Court, they derived
the benefit of the decrees and after constructing the new building in
place of old structure, they refuse to restore the possession. Thus,
the benefit of decree was extended to them and now they are
challenging the validity as well as jurisdiction of the Executing
Court, which cannot be permitted in the eye of law, more
particularly, when after passing the compromise decree, they sat
silent for about one year and nine months and when time comes for
compliance of the decree, they literally resiled from the conditions
of the decree. Thus, when decree was not challenged and
petitioners got benefit of the decree, now they are estopped from
challenging the correctness and validity of the decree. On factual
aspect there is no dispute of measurement of the shops.
16. For the reasons stated above, no reasons or grounds are made out
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for interference by this Court in its supervisory jurisdiction under
Article 227 of the Constitution of India. Accordingly, the petition
fails and is dismissed with exemplary cost of Rs.1,00,000/-(Rupees
One lakh only) to be paid to the respondent plaintiff as this Court is
convinced that by way of frivolous applications, the petitioners
have tried to delay the execution proceedings.
(ILESH J. VORA,J)
SUDHIR
