SUMITRA DEVI AGARWALLA Vs. SULEKHA KUNDU

JUDGEMENT

(1.) This appeal is at the instance of the plaintiff and it is directed against the order dated October 1, 1975 of the learned Judge, 8th Bench, City Civil Court, Calcutta, dismissing the Plaintiff's application for recording a compromise in adjustment of the suit under Order 23, rule 3 of the Code of Civil Procedure.

(2.) The suit was instituted by the plaintiff for Specific Performance of a Contract of lease dated November 2, 1973, for Khas possession of the suit premises and for a permanent injunction restraining the defendants from letting out the suit premises to any person other than the plaintiff. The suit premises are the first floor of Premises no. 310, Rabindra Sarani, Calcutta. It is not disputed that the defendant no. 1, Sm. Sulekha Kundu is the owner of the said premises. The defendant no.2 Kestodas Kundu is the husband's elder brother of Sulekha Kundu. The Plaintiff's case is that on November 2, 1973, she entered into a contract of lease of the suit premises with the defendant on certain terms and conditions. Pursuant to the said agreement, the plaintiff advanced to the defendant no.2 as the agent of the defendant no.1, a total sum of Rs.16,000/- on diverse dates between November 7, 1973 and February 19, 1974 out of the sum of Rs.20,000/- agreed to be paid by the plaintiff under the contract, so as to enable the defendants to complete the renovation of the suit premises. It is alleged that the defendants failed and neglected to deliver possession of the suit Premises to the plaintiff even though the plaintiff offered to pay the balance sum of Rs.4,000/-. On the aforesaid allegations, the plaintiff has claimed a decree for specific performance of the contract of lease by letting out the suit premises to her at a monthly rental of Rs.400/-.

(3.) The plaintiff also filed an application for temporary injunction under Order 39, rules 1 and 2 of the Code of Civil Procedure praying for restraining the defendants from letting out or parting with the possession of the suit premises to any person other than the plaintiff till the disposal of the suit. Before the application for temporary injunction was disposed of, on January 14, 1975, the plaintiff filed the application under Order 23, rule 3 inter alia alleging therein that on October 13, 1974, due to the intervention of common friends the parties settled the disputes between them in the presence of their respective lawyers. The terms of settlement were recorded in writing in the form of a letter addressed by the defendant no.1 Sulekha Kundu to the plaintiff. The original and duplicate letters bearing the signatures of the defendant were detained by Shri Sunil Krishna Dutta, Advocate, representing the defendant in the matter. It is alleged that a true copy of the said letter was handed over to the plaintiff through her husband Krishna Kumar Agarwal (hereinafter referred to as Agarwal). A copy of the said letter incorporating the terms of settlement agreed to by the parties has been annexed to the application. It is alleged that the defendants deliberately and with an ulterior motive have backed out from the said terms and are not willing to perform their part of the agreement, though the plaintiff at all material times was and is still ready and willing to abide by the same. Accordingly, it has been prayed by the plaintiff that the terms and conditions referred to in the letter dated October 13, 1974 should be recorded and the suit should be decreed on the said terms.