HARSHADBHAI GORDHANDAS SHAH Vs. PRATIPBHAI RAVIPRASAD SANGHVI

JUDGEMENT

(1.) THE tenant, who had agreed before the Trial Court on 24.09.2003, that he will handover the vacant and peaceful possession of the suit premises to his landlord on 30.09.2012, and accordingly the consent decree was passed by the competent Court on 24.09.2003, is now questioning the legality of the said decree in the execution proceedings filed by the landlord in the year 2012. The tenant has already enjoyed that part of the decree dated 24.09.2003 that he will be allowed to continue in the suit property till 30.09.2012 but thereafter, when his turn came to discharge his obligation flowing from the said consent decree of the competent Court dated 24.09.2003, he refused to do so and under these circumstances, the landlord initiated execution proceedings, in which it is contended by the tenant that, the said decree was a nullity, which both the Courts below have refused to accept. It is this decision of the Appellate Court below, the legality of which is questioned by the tenant before this Court.

(2.) THE relevant facts, as emerging from record, in brief are as under.

(3.) ON the other hand, Mr.Gosai, learned advocate for the opponent ­ landlord has submitted that, the suit for eviction was filed on various grounds, including that the tenant was in arrears of rent, personal and bonafide requirement of the landlord, change of user, the suit premises, which was a residential property, was also being used as godown and for business purpose without permission of the landlord, which also created nuisance and annoyance, etc. Paras -1 and 2 of both these applications also refer to this. It is stated that since the tenant did not have any say in the matter on merits, it is the tenant who agreed for a consent decree, but he asked for long time of nine years to vacate the suit premises. The landlord, with a view to see that the generations to come do not suffer in the legal proceedings, agreed that, for nine long years, he would not disturb the tenant, and in these circumstances, consent purshis were filed in the Court, the parties remained present and it was recorded by the Court and based on that, decree came to be passed. Attention of this Court is also invited to the fact that it is the same family, which is on the first floor and the ground floor as tenant. Attention of the Court is also invited to Para 8 of the Civil Revision Application No.308 of 2013, wherein it is the say of the tenant himself that, on the first floor and also on the ground floor, the landlord and tenant are the same. Since the tenament numbers were different on the record of the Municipal Corporation pertaining to ground floor and first floor, two different suits were filed, wherein on behalf of the tenants only one person viz., Harshadbhai Shah had signed. One as tenant himself and second as power of attorney holder of his own family member. On merits, reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Pushpa Devi Bhagat versus Rajinder Singh reported in AIR 2006 SC 2628(1) to content that, it was not open to the tenant to challenge the consent decree, more particularly after having enjoyed that part of the decree which was in his favour. It is further submitted that till date, neither review is sought for of the said decree, nor it is challenged before any forum, and that it is for the first time, in these Revision Applications, prayer is made for declaration about the said consent decree being illegal. It is submitted that no interference be made by this Court and even the declaration as prayed for, be also not granted.