Gujarat High Court
Laxminarayan Khadayata 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. 21178 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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LAXMINARAYAN KHADAYATA VANIK TRUST & 2 other(s)
Versus
RUPESHBHAI TRIBHOVANBHAI SOLANKI
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1,2,3
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
CAV JUDGMENT
1. Challenge in this petition under Article 227 of the Constitution of
India is to the order dated 29.08.2018, passed below Exh.35 in
Execution Petition No.327 of 2014, by which the Executing Court,
in order to execute the decree of possession, issued possession
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warrant as prayed by the decree holder-respondent herein.
2. Facts and circumstances giving rise to file present petition are that,
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
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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 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
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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 14 th
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
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 vide Exh.10, the petitioner trust and its
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trustees have contended that:
(a) The decree is not executable as the consent terms of the decree
are not in consonance with the provision of Order 23 Rule 3 of
the CPC and it is mandatory for the trial Court to state in
expressed terms that it was satisfied that the compromise was
lawful one and in the present case, no such satisfaction recorded
or arrived at by the Court and on that ground, the decree is
unexecutable;
(b) The respondent-plaintiff himself not acted as per the terms and
conditions of the compromise;
(c) At the time of submitting compromise, there was no consent on
the part of the petitioners-defendants about drawing of the
decree;
(d) There is no clear term in the compromise that, if either of
parties denied or failed to comply with the terms and conditions
of the compromise, then, it can be executed by executing the
decree;
(e) The respondent-plaintiff has not acted as per the provisions of
Section 17 of the Gujarat Rents, Hotel & Lodging House Rates
Control Act, 1947 and therefore, the plaintiff would not be
extended the benefit of terms of compromise of the alleged
decree;
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(f) The respondent-plaintiff despite direction to take the physical
possession of two shops as per their original measurement ,
however, he failed to take over the possession and now he
cannot claim the possession;
7. In the execution petition, the respondent-plaintiff vide Exh.35,
prayed for issuance of possession warrant of the two shops. By filing
written objection at Exh.41, the said application was contested by
the petitioners. After hearing the parties and considering the position
of law, the trial Court by overruling the objection, issued a
possession warrant with respect to disputed shops. The trial Court
while allowing the prayer of possession warrant, observed that, the
compromise was legal and valid and judgment debtor has no right to
turn over from the facts of such compromise and it is not obligatory
on the part of the decree holder to comply the provisions of Section
17(B) of the Rent Act. The trial Court, further held that, the
executing court cannot go behind the decree. The trial Court by
overruling the objection, allowed the application Exh.35 and issued
possession warrant as prayed.
8. Being dissatisfied with the order of issuance of the possession
warrant by the Executing Court in Execution Petition no.327 of 2014
dated 29.08.2018, the petitioners-judgment debtors have challenged
the legality and correctness of the said order under Article 227 of the
Constitution of India exercising supervisory jurisdiction of this
Court.
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9. This Court has heard learned Senior Counsel Mr. Mehul Shah
assisted by Mr. S.P.Majmudar and Mr. Haresh Trivedi for the
respective parties.
10. Mr. Mehul Shah, learned senior counsel assailing the impugned
order, has raised the following contentions:
(i) The judgment impugned is contrary to the law and evidence
on record and the findings arrived at by non-consideration of
the relevant provision 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 provision of law.
(ii) The decree holder being a tenant, agreed to handover the
possession of the rented property for erection of new
building and decree in terms of section 13(1)(hh) was passed
and after completion of the construction, the landlord-
judgment debtor, within stipulated time of 18 months,
intimated the decree holder to take possession of new shops
as per consent terms. However, within a period of one month
as provided under Section 17(C) of the Gujarat Rents, Hotel
and Lodging House Rates Control Act, 1947, (hereinafter be
referred as "The Rent Act") failed to take the possession and
due to operation of the law after one month, the tenant's
right to occupy the said two shops would come to an end and
tenant thereafter, cannot claim the rights under the terms of
the compromise and therefore, the decree in its present form,
considering the provision of The Rent Act has become
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unexecutable and despite of this, the learned trial Court has
exceeded its jurisdiction while issuing possession warrant.
(iii) The petitioner-judgment debtor i.e. landlord filed their
objections in terms of Section 47 of the CPC at Exh.10
wherein it was contended that, the execution petition itself is
not maintainable, on the ground that, the plaintiff-decree
holder himself has not acted as per the consent terms and
now he cannot take advantage of the consent decree. That
plaintiff was not agreeable to the possession of newly
constructed shops as per the original measurement as he is
demanding more floor area which is against the terms and
conditions of the consent decree. That, the new construction
has been made according to the bylaws of the corporation
and the petitioner-landlord shown his willingness to restore
the possession of the tenant within stipulated time, but the
plaintiff-tenant refused to take possession raising the dispute
about the measurement of the shops and therefore, the decree
is not executable as per the terms and conditions of the
compromise.
(iv) The compromise decree governed by the provisions of The
Rent Act and therefore, decree cannot be executed in
violation of the Section 17(C) of The Rent Act as within
statutory period, the plaintiff-tenant failed to take possession
of the shops.
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(v) In the facts of the present case, the compromise decree
passed in a mechanical manner by the Court as the learned
trial Court while accepting the compromise, failed to record
its satisfaction that the compromise has indeed be reached by
the parties voluntarily and is genuine one. On this count, the
compromise decree is unenforceable.
(vi) That, various complicated issues of the facts are involved in
the present case. The landlord constructed new building as
per the approved plan and the measurement of the shops
mentioned in the plan is not agreeable to the tenant and he
demanded more floor area which is not part of the terms and
conditions of the compromise and therefore on this count to
resolve the issue, the evidence is required to be led and
therefore, the issue of warrant would defeat the valuable
right of the landlord to lead the evidence.
11. In the aforesaid contentions, learned senior counsel Mr. Mehul Shah
has submitted that, the learned trial Court has misread the provisions
of The Rent Act and did not consider the objections which have been
raised herein and straightway, issued the possession warrant. Thus
therefore, the findings recorded by the trial Court suffers from
jurisdictional error and are not sustainable in law and same deserves
to be set aside by this Court, exercising supervisory jurisdiction
under Article 227 of the Constitution of India.
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12. On the other hand, countering the submissions, Mr. Haresh Trivedi,
learned counsel appearing for the respondent-tenant, has submitted
that, the order impugned is just, proper and in accordance with law
and supported by sufficient reasons and does not suffer from any
jurisdictional error and thus, the interference of this Court is not
warranted.
13. Mr. Trivedi, learned counsel reiterating the contents of affidavit in
reply filed on behalf of respondent-tenant, has submitted that, the
suit is filed for permanent injunction and declaration and therefore,
when decree of eviction under Section 13(1)(hh) of The Rent Act
was not passed, the provision as referred i.e. Section 17(C) would
not be attracted. Learned trial Court was duty bound to accept the
compromise duly signed by the parties and as per the terms of the
compromise, it was agreed to handover newly constructed shops
each admeasuring 20.89 square meters and thus there is no
ambiguity and there is no demand of extra space as alleged by the
other side and therefore, the compromise decree passed is as much
as decree passed on adjudication and more particularly when
petitioners-landlords accepting the terms and conditions of the
compromise have obtained the possession of the rented shops and
acted upon the decree and taken advantage of it, now they will
estopped from objecting to the execution of the compromise decree
and they cannot be permitted to resile therefrom.
14. 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
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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.
15. 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?
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 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
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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
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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 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
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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 compromise
terms Exh. 9. The landlord - petitioner after obtaining the
possession and till the completion of the constructed building, never
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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
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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 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 :
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"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 be accepted. In the case of
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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
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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.
24. For the reasons recorded, this Court is of the considered view that
the power of superintendence conferred upon this Court by Article
227 of the Constitution of India, is to be exercised sparingly and in
appropriate cases in order to keep the subordinate courts within the
bounds of their authority and not for correcting the mere errors, as
the powers of the High Court under Article 227 of the Constitution
of India, being a plenary and unfettered, the court should be cautious
in its exercise and should not be exercised unless there has been (a)
unwarranted assumption of jurisdiction, not vested in court, (b) gross
abuse of jurisdiction, (c) an unjustifiable refusal to exercise
jurisdiction vested in court and (d) in case of flagrant abuse of the
elementary principles justice or manifest error of law, patent on the
face of the record or an outrageous miscarriage of justice.
25. In light of the settled principles and considering the peculiar facts
and circumstances of the present case, I am of the view that, there is
no material infirmity or irregularity in the order of the trial Court
and there is no failure on the part of the trial Court to exercise
jurisdiction, which requires interference by this Court in its
supervisory jurisdiction under Article 227 of the Constitution of
India. Accordingly, the petition fails and is dismiss with exemplary
cost of Rs.1,00,000/- to be paid by the petitioner to the tenant herein
as the tenant was deprived of his legitimate right to occupy the suit
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shops and since last 9 years, he having no any place to do his
business and the petitioner landlord under one or another pretext
trying to delay the execution proceedings, which is nothing but
misuse of the court process. The learned Executing Court shall
proceed expeditiously and dispose of the Execution Petition within 4
months from the receipt of this order. The learned Executing Court
shall act upon the down loaded copy of this order. Notice is
discharged. Interim relief, if any, stands vacated.
(ILESH J. VORA,J)
FURTHER ORDER :
At this stage, learned advocate Mr. S.P. Majmudar prays for
continuation of the interim order, so as to enable the parties to
challenge the order before the higher forum.
Considering the issue involved and reasons mentioned in the
order, the request is not acceded to.
(ILESH J. VORA,J)
Tausif Saiyed/ P.S. JOSHI
