PARKASHO DEVI Vs. SARDARI LAL

JUDGEMENT

(1.) A shop situate in Raghunath Bazar, Jammu, originally belonged to one, Faqir Chand. M/s Sardhari Lal, Chaman Lal and Fhazan Chand were the tenants of the shop under a valid lease. It appears that Faqir Chand, the landlord, filed a suit on 19 -7 -1962 for the ejectment of the tenants from the aforesaid shop in the Court of the Sub -Judge (A. D. M/ Jammu. After the Court had taken some proceedings in the suit the parties to the suit entered into a compromise on 4 -5 -1963 whereby the defendants -tenants acknowledged the existence of the personal necessity of the plaintiff -landlord and agreed to vacate the shop on the expiry of ten years from the date of the compromise. In the intervening period, it was stipulated in the compromise deed, that the defendants would pay Rs. 35/ - per month as rent but the payment of such a rent would not affect the decree to be passed on the basis of the compromise. It was further stipulated in the compromise deed that the defendant -tenants would keep on paying rent monthly till the expiry of the period of ten years and would abstain from subletting the whole or part of the shop in question to any person. A partnership in respect of the shop was also agreed to be prohibited. In case of default in the payment of the rent the plaintiff -landlord was given a right to evict the defendants -tenants even before the expiry of the period of ten years. On the expiry of the period of ten years in the event of the defendants -tenants failure to vacate the shop, the plaintiff -decree -holder was entitled to take out execution of the decree and evict the defendants -tenants.

(2.) AFTER the passing of the aforesaid compromise decree the shop in question was sold by Faqir Chand, the original landlord, in favour of Shrimati Parkasho Devi, the present appellant, before us by virtue of a sale deed dated 25 -3 -1968 registered on 2nd of April, 1968. Simultaneously with the sale of the shop in favour of the present appellant the decree for ejectment dated 19 -6 -1963 based on compromise dated 4 -5 -1963 was also transferred in favour of the appellant in this appeal by means of the same document of sale. Alleging that the respondents -judgment -debtors had committed default in the payment of rent and sublet a portion of the shop in violation of the terms stipulated in the compromise deed the appellant filed an application for execution of the aforesaid decree before the Sub -Judge (CJM) Jammu on 1 -4 -1969. Her right to execute the decree against the respondents -judgment -debtors according to her, was referable to the transfer of the shop in her favour alongwith the decree for ejectment passed in favour of the original landlord. This application for execution was resisted by the respondents in the executing Court on the ground that there has been no violation of any terms of the compromise decree and that the decree was a nullity as the same was passed in violation of the provisions of section 11 of the Houses and Shops Rent Control Act. It was further pleaded by the judgment -debtors that the appellant who was a transferee from the original decree -holder could not recover possession of the shop on the basis of the decree passed in favour of her predecessor -in -interest unless she established her own necessity vis -a -vis the respondents. The compromise deed, according to the respondents, was only a lease deed creating a fresh tenancy and was not, therefore, executable even when the command of the Court had been superadded to it. As the defence taken by the respondents raised questions of fact necessitating a trial, the parties were allowed opportunity to lead evidence on the issues involved and the executing Court after a consideration of the evidence and the circumstances of the case vide its order dated 31 -3 -1971 repelled all the pleas taken by the respondents, held the decree a valid one and ordered its execution by issuance of a warrant for recovery of possession. The executing Court did not give any categorical finding so far as the plea of the appellant regarding subletting of the shop by the respondents after the passing of the decree was concerned. The plea regarding default in the payment of rent for the period subsequent to the passing of the decree was, however, impliedly held to be proved even though no specific finding is available from the judgment of the executing Court. Before, however, the order of the executing Court could be implemented an appeal was taken by the respondents in this appeal to the Court of the Additional District Judge, Jammu. Before the Additional District Judge the question regarding the violation of the terms of the decree and the consequential right of the decree -holder to evict the tenants respondents before the expiry of the period of ten years was not adverted to. The Additional District Judge allowed the appeal and held that the decree passed on a compromise was a nullity being in violation of the express provisions of section 11 of the Houses and Shops Rent Control Act. The judgment of the Additional Judge, Jammu, was based on two judgments of the Supreme Court, reported as A. I. R. 1970 S. C. 838 and A. I. R. 1970 S. C. 794. A further appeal has thus been brought to this Court against the judgment of the Additional District Judge, Jammu, holding the decree a nullity and directing the dismissal of the execution proceedings. At the time of the admission of this appeal on 10 -3 -1972 the Honble Chief Justice directed that as the case involves a substantial point of law, the same may be heard by a Division Bench. It is under these circumstances that the present appeal has arisen and is being disposed of by a Division Bench of this Court.

(3.) THE appeal came up for hearing on 17 -5 -1972 before a Division Bench of this Court consisting of late Mr. Justice Bakhshi and one of us (Mian Jalal -ud -Din J.). After having heard the counsel for the parties the Division Bench vide its order dated 5 -6 -1972 remitted the case back to the Additional District Judge Jammu, with a direction that he would hear the parties on the remaining objections raised by the respondents in this case and record its findings thereon and submit the same to this Court within a period of two months. In obedience to this order the Additional District Judge, Jammu, submitted his findings vide his order dated 15 -7 -1972. After the parties filed their objections to the findings the matter came up for hearing before us on 30 -4 -1973 when we heard the counsel for the parties in part. The hearing was completed on 1 -5 -1973 and the Judgment was reserved.