NARENDRA KUMAR JAIN Vs. CHANCHALBEN BABUBHAI PANCHAL

JUDGEMENT

(1.) This revision application is filed by the person who had himself filed the suit as plaintiff in the City Civil \Court as early as in the year 1966, and compromised the suit, and as a result of the compromise got extensive benefit to himself. As the consideration for the benefit he allowed the decree for possession to be passed against himself. On the strength of this consideration he enjoyed the possession for a period exceeding even of 15 years and now he wants to come to the Court and state that the decree for possession which was passed by the Court at his own instance is not an executable decree and that the same is not worth even the paper it is typed on.

(2.) Attempts were made in the trial Court as well as in this Court for taking the Court almost astray by reciting a number of facts which really had no bearing upon the question with which the Court is concerned in these proceedings. I may have occasion to refer to some of them even though they are not relevant for the purpose of this petition principally because arguments were advanced on their basis which threatened, on occasions, to be leading into blind alleys and still, and less (sic).

(3.) The facts are as follows :- The premises which will be referred to hereinafter as "factory premises" or "suit premises" belong to one S. B. Sharma and respondent No. 1 is the tenant in respect of the suit premises in which she was carrying on some business and a factory. Mr. Suresh, the learned Counsel appearing for the petitioner. was not able to explain me as to how it was. but the fact remains that though respondent No. 1 has been exclusively the tenant in respect of the factory premises in favour of the present petitioner on 15-10-1963 for 11 months till 149-1964, not alone but jointly with her daughter respondent No. 2. Having regard to the narrow question involved in the present revision application, it is enough to state that it is an agreement of leave and licence and it is unnecessary to mention the various other terms of the said agreement. By an agreement dated 1-12-1964, the period was extended to 15th Aug. 1965. There were certain other modifications made in the relevant for the purpose of this petition. On 23-9-1965, respondent No. 1, gave a notice to the petitioner calling upon him to vacate the premises in terms of the previous agreement. But instead of complying with the notice. the petitioner filed suit No. 949 of 1966 in the City Civil Court, in substance, for a declaration that the petitioner was entitled to conduct the business uptill 31st Mar. 1970. He also asked for the requisite the injunction against the present respondents on the basis of the said declaration. In the said suit a consent decree dated 19-4-1966 came to be passed and by the consent decree the present petitioner was allowed to conduct the business till 31-3-1970 and he gave an undertaking to the Court to the effect that after the end of that period he would vacate the premises and would hand over possession of the same to the present respondent. ON 26-6-1970, a chamber summons was taken out by the present petitioner himself in the same suit that the defendant in the said suit, that is to say the plaintiff's licensors should be ordered to deposit in the Court a sum of Rs. 20,886/- or in the alternative that the defendant may be ordered to pay to the plaintiff a sum of Rs. 16,150/- and that the plaintiff might be granted liberty to remove the structures admeasuring about 22 ft. by 15 ft. constructed by the plaintiff in the open space of the defendants. The further prayer was that until the above relief was received by the plaintiff. the plaintiff might be relived from the undertaking given by the plaintiff to the Court relating to the handing over of the possession of the suit premises to the defendants. In other words, the chamber summons was taken out for direction from the Court that the defendants were not entitled to enforce the undertaking given by the plaintiff to the Court unless the defendants had themselves returned certain monies owed by the defendants to the plaintiff. A good deal of heated arguments were advanced across the bar on behalf of the petitioner. on the question as to whether this chamber summons forms part of the process of execution of the decree or not. To my mind the entire argument was meaningless one because really speaking nothing turned upon the question as to whether the Chamber summons was taken out in any execution proceedings or not. The question of execution of the consent decree dt. 19-4-1966 did not arise at all because in the consent decree there was no order passed by the Court directing the plaintiff to hand over possession to the defendant on any particular day. All that was done by the consent decree dt. 194-1966 was that the undertaking given by the plaintiff to the Court to hand over possession of the suit premises to the defendants on or before 31-3-1970 was recorded in the decree. But no decree was passed against the plaintiff by the Court as such directing the plaintiff to hand over possession of the suit premises to the defendants. There was therefore no question of execution of the said decree. The chamber summons taken out by the plaintiff himself could. therefore. not be a part of the execution proceedings at all. but nothing would turn upon that question. Whatever that may be, in the chamber summons the parties arrived at further compromise and by virtue of such compromise the plaintiff obtained further time from the defendants to remain on the suit premises and to conduct the business in the suit premises for a further period of 7 years. The consent order in this behalf was passed by the Court on the Chamber summons on 26-61970. But what is done by these consent terms is of great significance for ascertaining the exact nature of the order passed by the Court dt 26-6-1970 on the Chamber summons. By the consent terms one of the facilities that was given to the plaintiff was that he was allowed to remain in possession of the suit premises and to carry on his business for a further period of 7 years. This part of the agreement was recorded in the decree passed by the Court. Further the previous undertaking on the part of the plaintiff to hand over possession to the defendants at the end of the period was also recorded in the decree making it relatable to the further period of 7 years. But in addition to these conditions which were mere matters of record, the Court further passed its own order that after the stipulated period of seven years, the plaintiff should hand over peaceful possession of the factory premises, together with the articles and things separately mentioned, to the defendants after the expiry of the said period of seven years. In fact, a decree was passed by the Court on the said Chamber summons on 24th June 1970. That was a consent decree and evidently it was a consent decree passed in modification of the previous consent decree. The said consent decree. thus. did two things. Some of the stipulations between the parties were merely recorded in the decree but there were other stipulations which were not merely recorded by the order in terms of the agreement. but were made enforceable by the orders of the Court. The order for possession was one of such orders. In other words on 24-6-1970, the plaintiff got time for vacating the suit premises extended by a period of 7 years and for the purpose of getting this benefit the plaintiff allowed a decree for possession to be passed against himself by the Court. The previous consent decree dt. 19-4-1966 was thus modified by the consent of the parties and was replaced by a fresh consent decree dt. 26-6-1970. The previous consent decree could not be an executable decree as such. The new consent decree became executable as per the very wording of the decree.