JUDGMENT
H. Suresh, J.
1 Both these writ petitions are disposed of by this common judgement.
2. Pune Municipal Servants Co-operative Bank Ltd., are the owners of a certain property situated at 768, Sadashiv Peth, Pune-30. (They are hereinafter referred to as the landlords of the said property). They filed a civil suit bearing No. 987 of 1964 against their tenant Shripati Jadhav, (since deceased) for possession of a tenement under section 13(1)(hh) of the Bombay Rent Act. In para 1 of the plaint the premises was described as the shop premises on the ground floor admeasuring about 9 ‘khans’. On December 21, 1964, they filed consent terms and a decree was passed in terms of the consent terms. The relevant clauses of the consent terms as translated are as follows:
“1) The defendant admits and agrees to the claim of the plaintiff. The defendant to give a vacant and actual possession of the land described in paragraph 1 of the plaint within two months from this day. If the same is not given the plaintiff do take the same from the Court in the matter of the decree passed in this matter.
2) The plaintiff is taking possession of the land given in paragraph 1 above from the defendant for the purpose of constructing a new building at the site of the property of the plaintiff in which defendant’s land is situated. The plaintiff has to construct the new building within the lawful period and the same is to be given on rent as a monthly tenant to the defendant in the said new building as per the law and the defendant has a right to take the said premises on rent. The condition of giving the premises on rent in the new building to the defendant again as above is the important condition of this premises.”
3. On November 21, 1986, the said tenant handed over possession of the premises to the landlords. The landlords thereafter pulled down the entire building including the said premises and in its place constructed a new multi-storied building on November 10, 1967, the said tenant issued a notice to the landlords purporting to be a notice under section 17(B) of the Bombay Rent Act claiming possession of the premises to be given to him. In this notice the measurements of the premises were not mentioned nor is there any claim of any specific area as such. On June 14, 1968, he filed Miscellaneous Application No. 272 of 1968, for possession of the premises to be given to him as per the consent terms. Here again, there is no mention of the measurements nor of any specific area as such. The only prayer made in the application was that he should be given possession of the premises equal to the premises which was previously occupied by him. He has also stated that the construction work was not complete and the landlords were delaying the construction work. This application was dismissed by the court of Small Causes on October 14, 1969, on the ground that the application was not maintainable and the notice issued by him earlier was also not legal and proper. He then filed an appeal against the said order being Civil Appeal No. 1056 of 1969 in the District Court at Pune. That appeal came to be dismissed on or about July 6, 1970, and the appeal Court held that the decree was merely a declaratory decree ad not an executory decree. He then preferred Special Civil Application No. 1819 of 1970 to this High Court. By an order dated July 17, 1975, the High Court held that the decree was executable and was not merely a declaratory decree. The High Court remanded the proceedings to the trial Court with a direction that the proceedings should be treated as execution proceedings and the trial Court should dispose of the same according to law. Apparently, the High Court did not treat the said application as an application purporting to be under the provisions of the Bombay Rent Act.
4. During the pendency of these proceedings the said tenant died and in his place his widow and another person who are presently respondent Nos. 1 and 2 were brought on record. They then pursued the matter. The application, which the deceased predecessor had made earlier, was then treated as Darkhast Application No. 1591 of 11975. Since, apparently there was no description of the area which the deceased was claiming under the consent terms, an application was made for appointment of a Commissioner for the purpose of identifying and/or locating the premises. This was opposed by the landlords but the opposition was overruled by the Court. The Court appointed a Commissioner who visited the site on October 5, 1976. One Mr. Kelkar who is the constituted attorney of respondent Nos. 1 and 2 and who has been pursuing this matter on behalf of the tenant and his legal representatives, represented to the Commissioner that the tenant was in possession of 765 sq. ft. and that at the same site in the new building there are three shops viz. Rajendra Cycle Mart, Bombay Tailors and a part of ABC Laundry and that there is also a main gate, a passage and a part of the stair case. The Commissioner incorporated these measurements in his report dated July 10, 1977. He also prepared a map on the basis of the representation made by Mr. Kelkar. In support of his contention Mr. Kelkar produced before the Commissioner a plan, signed by himself but which bears no date or any authentication. On the strength of the Commissioner’s report the Executing Court issued warrant of possession in respect of the area demarcated by the Commissioner. On October 20, 1978, the petitioner, in these two petitions obstructed. Thereupon, on October 26, 1978, respondent Nos. 1 and 2 filed Miscellaneous Applications Nos. 695 of 1978 and 696 of 1978 for removal of obstruction. Evidence was led in these proceedings and finally on July 15, 1980 the Court of Small Causes granted the said application. As against the same, the present petitioners filed Civil Appeals Nos. 346 of 1980 and 404 of 1980. The appeals were dismissed by the learned Judge by his order dated August 29, 1986. It is against these dismissals the present petitioners filed the present two writ petitions.
5. The petitioners In Petition No. 3186 of 1986, came to occupy their shop in the year 1970, obviously after the construction of the new building. Their shop admeasures 8′ x 15′. They carry on business in the name and style of M/s. Rajendra Cycle Mart.
6. The petitioners in Petition No. 3186 of 1986 came to be the tenants in respect of the adjoining shop premises admeasuring 200 sq. ft., as follows : Their case us that the landlords had let out the said shop to one Kotwal who had sold his business to one Motwani and the said Motwani in turn sold the said shop together with the goodwill of stock-in-trade to them. They carry on the business in the name and style of M/s. Bombay Tailors. It is an admitted position that respondent Nos. 1 and 2 have taken possession of an area of 180 sq. ft. being the said passage in the said demarcated portion together with the portion in front of the lift upto the stair case. They have put a partition in the passage. They have their shop, a hotel, at the said place and the same is being conducted by the said Kelkar. He was conducting the same business earlier, on a royalty of Rs. 150/- per month when the deceased tenant had the shop with him. So he has continued the business in the new building and he pays the same amount per month to respondent Nos. 1 and 2.
7. It was argued on an earlier occasion that the consent decree dated December 21, 1964 could be considered as a decree under section 13(1)(hh) of the Bombay Rent Act and that the requirement as provided under the said provision having not been complied with the decree could not have been executed at all. I think, I need not go into this question inasmuch as the High Court when it disposed of the said Special Civil Application No. 1819 of 1970, expressly held that the decree was executable under the consent terms. Therefore, the only limited question is whether this decree could be executed as against the petitioners and whether the petitioners are bound by the said decree.
8. It is and admitted position that the consent decree as also the original complaint filed by the landlords do not mention the measurements of the original tenement of the deceased tenant. The description of 9 ‘khans’ does not give any indication about the exact area, as the concept of ‘Khans’ differs from place to place, and the same does not communicate any specific area. Mr. Karlekar appearing for respondent Nos. 1 and 2 also concedes this. It is also an admitted position that till Kelkar pointed out to the Commissioner the are he claimed, nobody knew neither the area nor the location of the shop. The only basis for claiming the present area is the assertion of Mr. Kelkar that at this very place there was the erstwhile premises of the tenant and that the area was about 765 sq. ft. What is lost sight is of the fact that at this place there are two separate shops and a passage and a portion of the lift. The total area is about 750 sq. ft. Could this have been the area which was intended to be given to the tenant under the consent terms? If one goes through the evidence as recorded in the trial Court in the obstructionist proceedings we do not get a clear picture as to what was the original shop which the deceased tenant had and what was the shop the landlords intended to give him on construction of the building . In these circumstances, the only limited question is as to what could be the proper approach with regard to the execution of this decree which this Court held as executable. Could it be said that the tenant is entitled to the same premises, or an identical premises or could it be said that he is entitled to a premises comparable to the original shop premises?
9. Ordinarily, the answer should be found in the decree itself. What does the decree say? The original consent terms are in Marathi. What it says is that after construction of the new building at the place where the defendant’s premises was situated, the defendant shall be given the same in the new building on a monthly rental basis. It then says that defendant shall have the right to take on rental,”r’kh rh tkxk”, (the very same premises). What is the meaning of these words. Obviously, it could not be the same premises which the defendant (tenant) surrendered, for the simple reason that it was demolished and it ceased to exist. It must necessarily mean the premises or the tenement which is built in its place. Is there any such tenement or premises built in the place of the original tenement surrendered by the tenant? Obviously, the answer is in the negative. The parties have not bothered to indicate in any plan, showing the premises that would be built in the place of the original tenement. Even in the execution proceedings the parties and their Advocates did not even think of calling for the sanctioned plans for the construction of the new buildings in which, perhaps, there would have been some indication showing the shop premises to be constructed in the place of the erstwhile tenement of the tenant. In any event, the landlords could have been called upon to indicate on the plan the shop premises which they had agreed to construct in the place of the original tenement. Nothing of this kind was done. Instead, what was sought to be done by the Executing Court was improper, as I will presently point out, if not patently unfair to the present petitioners.
10. But, before I deal with the procedure adopted by the Executing Court, let us see whether there is any identical premises which the tenant could claim. As far as I can see, there is no such identical premises at all. In fact, if I have understood Mr. Karlekar rightly, he also did not say that the premises which is sought to be taken under warrant of possession can be said to be identical to the original premises. One does not know the length and the breadth of the earlier shop, excepting the fact that it was facing Kumthekar Road, towards the North. There is no other indication as to the exact location, the size, the measurements or any other relevant indication to say that the present premises sought to be recovered under warrant of possession could be identical.
11. Therefore, the only other question is whether it can be said that the present premises could be comparable to the original premises. It is here, the procedure adopted by the Executing Court becomes relevant. What the Executing Court did was, it appointed a commissioner. Obviously, the decree did not give a clear picture as to what was the premises which the tenant entitled to get. He did not indicate even in the application for execution as to what the premises he was entitled to get. He did not given the measurement. He did not give the area. He only thought he could execute the decree against some premises and take possession of the same . Since the High Court had held this decree is executable the Executing Court, perhaps, had no choice, but to somehow try to identify the premises, and for that purpose the commissioner was appointed. Mr. Karlekar relying on the case of Vinodkumar v. Madhubala, , submitted that the Executing Court could adopt the procedure prescribed by Order 26, Rule 13 of the Code of Civil Procedure. There is no dispute about this proposition. But the question is how did the Commissioner go bout in this matter. He did no investigation on his own. He should have summoned the plan of the original building, if any. He could have summoned the plans submitted by the landlords for construction of the new building. It is on record that in place of the original building the landlords have constructed two buildings and the third is under construction. Since, the landlords had agreed to give a tenement to the tenant, in all probability, there would have been some indication as to what promises they had reserved for the tenant. Instead of investigating and inquiring in this matter, the Commissioner asked the constituted attorney of the heirs and legal representatives of the deceased tenant to indicate the place where his earlier shop was situated. Here again, except the bare statement made by Mr. Kelkar there is no supporting evidence whatsoever. He obviously was an interested party. It is his statement that the area was 750 sq. ft. It is his statement that the shop was situated in this area. As I stated earlier that the decree was not in respect of the areas which was in possession of the tenant. The decree was for surrender of the erstwhile tenement and after demolition and construction of the new building, the decree was to give a shop or a premises or a tenement to the tenant. It could not be more than one shop. It could not be a shop which has no resemblance whatsoever to the erstwhile shop. It is this kind of procedure that was adopted by the Executing Court that led to this patent injustice to the petitioners.
12. Mr. Karlekar submitted that in obstructionist proceedings, the petitioners did not enter the witness box. I do not understand for what purpose they should have entered the witness-box. The question is what was the area of the original tenement, what was the measurement of the original tenement and what was the location of the original tenement, and what was intended to be constructed and given to the tenant. The present petitioners who became tenants after construction of the new building could never have given any evidence in this behalf. The Executing Court ought to have held a proper inquiry on those lines., which it did not Mr. Karlekar says that the decree was amended after the Commissioner’s report, and the Executing Court could not have gone behind the decree. But today, after the amendment of Order 21, Rule 101 of the Code of Civil Procedure, the very Court itself will have to decide all questions arising between the parties, including question of title, and a proper inquiry was called for. Having committed the initial blunder of not holding a proper inquiry, the Court cannot compound the same in a subsequent stage. The petitioners were not parties to the earlier proceedings. One cannot forget the fact that the decree was being sought to be amended on the basis of materials which never existed before passing the decree, and at the instance of an interested party.
13. Mr. Karlekar strongly rolled on the case “K. Srinivasa Rao v. K.M. Narasimbalah, (1989)I Supreme Court Cases 867. In this case what happened was that the tenant had a shop in the old building and the measurements had been clearly given. The measurements were 17′ x 9′. The shop was facing the main road. What was offered to the tenant, after construction of the new building, was a shop corresponding to the original tenement. But after the decree, the landlord filed an application to amend the decree by deleting the words ” corresponding portion”. This was rejected. After the reconstruction work was commenced, the tenant gave a notice of his intention to occupy. In the mean time the landlord got the plans of the proposed new building altered from time to time. He also filed an appeal challenging that the decree had been passed without jurisdiction. This appeal was allowed. Immediately, he inducted respondent No. 2 as a tenant in the shop reasonably corresponding to the shop occupied by the appellant. The appellant filed a revision application in the High Court, in which he made the landlord as also the said occupant respondent No. 2 as a party. The revision was allowed and the Court held that the rights of respondent No. 2 are subject to the rights of the original tenant. The matter was not carried any further. Thereafter the tenant made an application to the trial Court to permit him to occupy the said premises. The trial Court to permit him to occupy the said premises. The trial Court allowed the said application. But in revision, the High Court set aside the order, on the basis that the tenant was entitled to a tenement, and not any particular tenement. The landlord had offered another shop admeasuring 11’6″ x 8’6″ situated on the rear side of the building, whereas the shop claimed by the tenant admeasured 9′ x 16′ facing the Main Road, which shop was in fact the subject matter of the earlier revision. This order of the High Court was challenged in the Supreme Court. It is in this background, the Supreme Court observed :
“In the case before us the decree against the appellant was passed under the provisions of section 21(1)(j) of the Karnataka Rent Act. The appellant tenant gave notice of his intention to occupy the tenement in the new building as required under the provisions of section 27 of the said Act. This is the undisputed position. In view of this under the provision of section 28 of the said Act, the appellant became entitled to occupy a tenement in the new building. The only question before us is as to what is the nature of the tenement to which he is entitled. There is nothing specific in this connection in the language of sub-section (1) of section 28. However, a fair common sense reading of the provisions of sub section (1) of section 28 would show that a tenant against whom eviction decree has been passed under section 21(1)(j) and who has given notice as contemplated under section 27 of the Act would be entitled to a tenement in the new building which could be said to be reasonably comparable to or to reasonably correspond to the tenement in respect of which the decree was passed. It appears to us that the learned Judge of the High Court who delivered the impugned judgement has based it on the consideration of a question which really was not material, namely, whether the appellant was entitled to get an identical shop in the new building, whereas the real question was as to whether he was entitled to a comparable shop. On the facts of the present case, it can be seen that the original shop occupied by him admeasuring 17′ x 9′ and was facing the Belepet Main Road. The shop which respondent 1 has offered to the appellant was only admeasuring 11’6″ x 8’6″ and was not facing the Belepet Main Road but was on the rear of the new building. We fail to see how this shop can be considered as comparable to shop originally occupied by the appellant. Moreover, it is not as if comparable shops were not available. In fact, respondent 1 constructed several shops of 9′ x 16′ facing the Belepet Main Road, one of which he has given in a hurried manner, as set out earlier, to respondent 2, probably with a view to forestall the claim of the appellant. In these circumstances, we fair to see how the appellant could be compelled to accept the shop offered by respondent 1 which is in no way comparable. The provisions referred to earlier clearly suggest that, at the least, the appellant was entitled to a shop as reasonable corresponding to the original shop occupied by him as the circumstances would permit. It may be clarified here that it is not the appellant’s case that he is entitled to an identical shop but that he was entitled to a comparable shop.”
When respondent No. 2 sought to raise his objection on the ground that his tenancy should not be disturbed, the Supreme Court pointed out to him that the earlier decision in the revision petition was binding on him, as he had not appealed against the same. I cannot understand how this case would be of any help to Mr. Karlekar. It is not clear whether in the present case, the respondent Nos. 1 and 2 want to seek an identical premises or a comparable premises. If it is an identical premises, there is no such premises. If it is comparable premises there is no proper comparison and there is no satisfactory evidence in that behalf.
14. Mr. Karlekar submitted that the present petitioners are transferees during the pendency of execution proceedings and therefore their rights would be subject to the rights of this clients. This is on an erroneous assumption that there is any acceptable evidence to hold that his clients are entitled to these very premises. The decree is not for any area. The decree is in respect of a tenement which reasonably correspond to the earlier tenement. The present tenements which are two in number and a passage, leading to the staircase and the lift, cannot be said to be a comparable premises.
15. Mr. Karlekar submitted that since there are concurring judgments, ordinarily the High Court would not interfere under Article 227 of the Constitution of India. Mr. Karlekar is right, but it all depends upon the facts and circumstances of each case. In fact when the tenant came to the High Court in the earlier petition under Article 227, there were occurring judgments, both holding that the decree was not executable, but this Court in its jurisdiction under Article 227 held that both the Courts were wrong and the decree was executable. In the present case, if the Court comes to the conclusion that what was done was without any clear and reliable evidence, certainly under Article 227 the Court can interfere and see that justice is done to the parties.
16. In fact, as the matter appeared before me the landlords, (the Bank) offered to settle the matter with respondent Nos. 1 and 2. Reasonable offers were made, including an offer of an alternate accommodation and/or some compensation. But, respondent Nos 1 and 2, for the reasons best known to them, did not accept the offer. I am half inclined to think that it is the constituted attorney of respondent Nos. 1 and 2 who is commercially interest in the premises has come in the way of this settlement. They forget the fact that as far as the tenant and his heirs and legal representatives are concerned, this litigation has been going on for the last 25 years. Moreover, the petitioners themselves are petty traders, the petitioners in the first petition having an area of about 120 sq. ft. and the petitioners in the second petition having an area of about 200 sq.ft. while the respondent Nos. 1 and 2 have an area of about 180 sq.ft. When the landlords were willing to give a much larger area, there was no justification for the respondent Nos. 1 and 2 to reject the same.
I, therefore, pass the following order :
Rule is made absolute in both these petitions.
However, there will be no order as to costs.