R.A. No.58-CII of 2009 (O&M) -1-
in C.R. No.5165 of 2002
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
R.A. No.58-CII of 2009 (O&M)
in C.R. No.5165 of 2002
Date of Decision: 13.07.2009
Ram Lal .....Applicant/Tenant
Versus
Pyare Lal ....Respondent/Landlord
Present: Mr. O.P. Goyal, Senior Advocate with
Mr. Varun Sharma, Advocate
for the petitioner.
Mr. Arun Jain, Senior Advocate with
Mr. Amit Jain, Advocate and
Mr. Chetan Slathia, Advocate
for the respondent.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the
judgment ? Yes
2. To be referred to the Reporters or not ? Yes
3. Whether the judgment should be reported in the Digest ?Yes
-.-
K. KANNAN J.(ORAL)
C.M. No.15042-CII of 2009
Application allowed.
Facts
of the case are taken on record.
R.A. No.58-CII of 2009 in C.R. No.5165 of 2002
1. The application seeks for a review of the order passed by me
on 28.04.2009. On that day, the revision petitioner was not present
either in person or through counsel and the order came to be passed in
the presence of learned counsel for the respondent. The review is
sought for on the ground that the judgment was delivered in the
absence of counsel and the order contains a prima facie error that
requires to be corrected.
R.A. No.58-CII of 2009 (O&M) -2-
in C.R. No.5165 of 2002
2. The intervention of this Court was sought in revision against
the order passed by the Rent Controller directing eviction while
disposing of an objection filed by the judgment debtor. Learned Senior
Counsel appearing on behalf of the applicant-tenant points out that the
order of eviction was passed on 23.01.1991 as per the terms of
compromise and the Court that passed an order on consent cannot
expand its terms or substitute its own terms to what was agreed to
between the parties. The terms are:
“Statement of Sh. Ram Lal s/o Sh. Budh Raj s/o Sh.
Piara Lal, aged 60 years, respondent on S.A.
I undertook to vacate the disputed shop admitting
the grounds of ejectment as correct. I shall vacate the
disputed shop on 30.11.1991. I shall only vacate the disputed
shop in case the applicant makes a payment of Rs.1,00,000/-
in five bi-monthly equal instalments of Rs.20,000/- each by
depositing in the Court falling due on 31.03.1991,
31.05.1991, 31.07.1991, 30.09.1991 and 29.11.1991. In case
the applicant makes the payment in lump-sum, then I shall
vacate the disputed shop within 15 days of the deposit of the
amount. In case I fail to vacate the disputed shop by the
stipulated time, then the applicant can withdraw the amount
deposited by him.”
“Statement of Sh. Piara Lal s/o Jai Ram Dass s/o
Sugru Ram, aged 53 years applicant on SA:
I have heard the above statement of the respondent
and admit the same as correct. The ejectment petition be
R.A. No.58-CII of 2009 (O&M) -3-
in C.R. No.5165 of 2002decided accordingly.”
3. The order passed by the Court ran thus:
“Respondent has made a statement admitting the grounds of
ejectment as correct undertaking to vacate the disputed shop
upto and for 31.11.1991, in case the applicant makes the
payment of Rs.1,00,000/- (Rs. One Lac) in 5 bi-monthly
installments of Rs.20,000/- each by depositing in the Court
on 31.03.1991, 31.05.1991, 31.07.1991, 30.09.1991 and
29.11.1991 respectively. In case the applicant makes the
payment in lumpsum, then the respondent shall vacate the
disputed shop within 15 days of the day of deposit failing
which the applicant can withdraw the amount deposited by
him. The above statement has been admitted as correct by
the applicant. Accordingly, the respondent is ordered to
vacate the disputed shop. File be consigned to the record
room.”
4. According to learned counsel, the tenant had no doubt agreed
to vacate the premises if the amount of Rs.1 lac was paid either in five
bi-monthly installments commencing from 31.03.1991 and ending with
28.11.1991 or in lump sum. The compromise provided that he would
vacate the premises within 15 days of deposit and if he refused to
vacate the premises, the landlord was only entitled to take back the
money which he had deposited. In other words, the construction which
was put in the compromise was to the effect that offer to evict itself
could be wholly dependent on his volition only whether he was
vacating or not. If he was not vacating in spite of deposit, the only
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in C.R. No.5165 of 2002
remedy that the landlord could have was to take back the money in
deposit.
5. It must be noticed that the compromise terms themselves are
not too happily worded and while the Court will not normally substitute
the terms of the compromise, it will at least make an inference to
understand the terms in the manner that will fit in with normal canons
of logic. It will be impermissible to assign some meaning to a
compromise that is either unworkable or that would reduce the terms of
compromise ad absurdum. It should be noticed here that the
compromise terms themselves do not read like a conditional one,
stipulating that the amount was to be paid before a particular date and if
that amount was not paid by that specified date, the landlord would not
be entitled to the order of eviction. A harmonious construction of the
terms and a logical inference to the words shall be only that the
landlord could not have obtained eviction without payment of Rs.1 lac.
It cannot be given a meaning that would make the deposit itself
meaningless if the tenant chose not to evict and leaving the option to
the landlord of merely withdrawing the money which he had deposited.
The imprimatur that the Court gave by accepting the terms did not
again treat the compromise terms as a conditional one. It did no more
than saying that “accordingly, the respondent is ordered to vacate the
disputed shop.” This expression “accordingly” must be understood as
an expression that the Court directed eviction and both the parties were
expected to perform the respective obligations namely of the landlord
by a deposit of Rs.1 lac and of the tenant, a duty to vacate.
6. The landlord put the decree in execution nearly 7 ½ years
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in C.R. No.5165 of 2002
later but without either complying with the terms of deposit or offering
to deposit. On the other hand, the landlord had stated that the condition
for deposit itself was against public policy. When objection was taken
by the tenant regarding the executability, the Executing Court passed an
order directing eviction and by a contemporaneous order directed Rs.1
lac to be paid within 15 days from the date of order. This amount was
also deposited as directed by the Court. It is this order which was
challenged in revision by the Judgment Debtor.
7. While passing an order on 28.04.2009, I had noticed an
absurd situation that the terms of the compromise could be put to if the
tenant were to say that if he chose not to vacate, the landlord himself
did not have a power to execute the decree. I had also noticed the fact
that the compromise terms did not contain any clause referring to the
deposit period as constituting the essence of contract between the
parties. To my mind, the compromise could be understood only as
containing mutual obligations in the manner referred to above namely
of the landlord’s right to obtain eviction on his liability to deposit Rs.1
lac and the tenant’s duty to vacate with a right to withdraw the money.
A compromise is invariably a climb down from the respective positions
of contesting parties and operates on an elementary principle of “give
and take”. It can never be “give and give” or “take and take”. If the
tenant was to contend that he would either withdraw the money or
choose not to withdraw and in which case the compromise term could
be rendered meaningless will be impressing the character of the
compromise to a meaningless gibberish. The order, therefore, passed
by the Executing Court directing the amount to be paid rejecting the
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in C.R. No.5165 of 2002
contention of the landlord that it was against the terms of public policy
and making it conditional for execution of the decree perfectly
accorded with logic, reason and law.
8. Learned Senior Counsel appearing for the applicant-tenant
relies on Gupta Steel Industries Vs. Jolly Steel Industries Pvt. Ltd.
and another (1996) 11 SCC 678 that a Court cannot interfere with or
modify the terms of compromise unless the parties agreed to the same.
By directing eviction with a concomitant liability of a landlord to
deposit Rs.1 lac is not according to me altering the terms of the
compromise which the law interdicts. On the other hand, it is an
attempt to bring the best meaning to the compromise. He also refers me
to a decision of the Calcutta High Court in Santosh Kumar Ghosh Vs.
Bholanath Ghosh and others 2001 AIHC 2492 that held where a
compromise decree is for recovery of possession of land on payment of
yearly installments and if the party failed to pay the installment within
the stipulated time, he would not be entitled to execution of decree
merely because he subsequently deposited the amount in Court. The
Calcutta High Court again was dealing with the situation where the
amounts were to be deposited and delivery was to be effected for
extents in proportion to the deposits. The Court found that if the
amount was not deposited within the time stipulated, the right itself
could be lost. I may not be able to go as far as how the Hon’ble
Calcutta High Court understood the law laid down by the Hon’ble
Supreme Court in Prithvi Chand Ram Chand Sarlok Vs. S.Y. Shind
AIR 1993 SC 1929. I have already stated that the decree itself did not
stipulate the period of deposit as of the essence of contract. I have
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in C.R. No.5165 of 2002
given expression to the meaning of the compromise as a right of a
decree-holder to obtain on payment of certain sums and the dates
mentioned was without a specification as to the consequence of non-
deposit. In K.C. Reddy Vs. Batcha Vasudeva Naidu 1999 AIHC 4540,
the Andhra Pradesh High Court through a Single Bench dealt with a
case of a money decree passed on a compromise and the defendant
agreeing to part with the suit sum in satisfaction of the suit claim. The
High Court dealt with the effect of non-payment of the amount within
the time specified and the refusal of the Court to extend the time in
such conditional decree. I have again pointed out above that if there
was a conditional decree with the time as to deposit being a pre-
condition, the Court’s power to extend the time is simply unavailable.
The power to enlarge the time, which is available under Section 148 of
the Civil Procedure Code is only to the period at the time of passing of
the decree. After the decree, the law itself lays down Order 20 Rule 11
(2) CPC that the Court will have no power to enlarge the time if the
parties did not concede for the same. We are not confronted with the
situation like what obtains in a conditional decree of payment within a
particular period. There is no other clause in the compromise terms as
to the effect of non-deposit within a particular time. It cannot,
therefore, be not understood as conditional for obtaining eviction
before any particular date. The decision of the Kerala High Court in
V.N. Sreedharan Vs. Bhaskaran AIR 1986 Kerala 49 was a decision
where the Kerala High Court was actually casting a duty on Court to
give effect to the terms of a compromise and it could never be taken to
give rise to a particular meaning that makes it inexecutable. Far from
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in C.R. No.5165 of 2002
supporting the contention of the learned Senior Counsel for the tenant,
the Kerala High Court was laying stress on the executability as being
one of the main incidences of decree whether it is a compromise decree
or not. By the interpretation that the learned Senior Counsel wants to
give to the terms of the compromise, he reinforces the inexecutability
of the decree as the governing criterion. Salkia Businessmen’s
Association and others Vs. Howrah Municipal Corporation and
others AIR 2001 SC 2970 was a case where the Hon’ble Supreme
Court held that the Court should strictly enforce the terms and viewing
breach of terms of compromise as matter of mere contract between
parties and disregarding it would have disastrous effect on rule of law.
The Executing Court directed Rs.1 lac to be deposited by the decree-
holder before he could obtain eviction, thereby enforcing the terms of
the contract and refusing to the decree-holder a scope to commit a
breach in the manner sought for by him by contending that the terms for
deposit was against public policy. This decision again re-enforces the
fundamental principle that the parties cannot stay away from the terms
of a compromise and make it wholly inexecutable unless the
inexecutability itself is to be a result of non-compliance of some of the
terms.
9. The lengthy discussion that I have undertaken would falsify
even the untenable condition that there is an error apparent on the face
of record that makes a judgment susceptible for review, which error
must be so patent as it would require no further forensic exercise for
finding whether a legal reasoning is appropriate or not. I have still
taken up this task only to quell an apprehension that the case came to
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in C.R. No.5165 of 2002
be decided by the default of appearance of the revision petitioner by a
lackadaisical approach. Nay, I have applied all the relevant points to
gain my attention and delivered a judgment on due consideration.
There is no scope for review and review application is dismissed.
(K. KANNAN)
JUDGE
July 13, 2009
Pankaj*