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2003(8) Supreme 280
SUPREME COURT OF INDIA
(From Calcutta High Court)
V.N. Khare, CJI., S.B. Sinha and AR. Lakshmanan, JJ.
Rekha Mukherjee -Appellant
versus
Ashish Kumar Das & Anr. -Respondents
Civil Appeal No. 9131 of 2003
(Arising out of SLP (C) No. 16511 of 2003)
Decided on 18-11-2003
Counsel for the Parties :
For the Appellant : Santanu Mukherjee, Tarun Kanti Ghosh, Ms. Mridula Ray Bharadwaj, Advocates.
For the Respondents : D.P. Mukherjee, C.M. Ghosh and Ms. Nandini Mukherjee, Advocates.
Held : The said undertaking was given by the appellant despite the fact that this Court did not find any merit in the special leave petition filed by the respondents herein against the judgment and decree passed by the High Court of Calcutta in the said Second Appeal No. 425 of 1992. We cannot shut our eyes to the ground reality that even the courts including this Court allow sufficient time to the tenant to vacate the premises. In the instant case, an undertaking was given by the landlord to the effect that the decree shall not be executed till the judgment of the lis relating to the specific performance of agreement. The expression decision in the aforementioned situation, in our opinion, cannot be held to be a decision till it attains finality. Such an undertaking was given for a specific purpose meaning thereby determination of the lis by the court in the aforementioned Title Suit No. 49 of 1990 and not beyond thereto. For the purpose of interpretation of such an undertaking the golden rule of literal meaning shall be applied. Application of doctrine of merger or for that matter the principle that appeal is a continuation of the suit will have no application. An undertaking of this nature furthermore must be construed in favour of the person giving such undertaking. It should not be stretched too far. A party giving an undertaking is bound thereby but by reason thereof, the same cannot be given a meaning whereby the scope and extent thereof is enlarged. Had the intention of the parties been that decision in the suit would mean a final decision therein, which may include final determination of the dispute upto this Court, it could have been stated so specifically. In our opinion, in such an event, a strained meaning will have to be put which was not the intention of the appellant. If that was the intention of the appellant, the question of this Court s making observations to facilitate early disposal of the suit would lose all relevance. (Paras 14 to 17)
JUDGMENT
S.B. Sinha, J.-Leave granted.
2. Interpretation of a consent order passed by this Court falls for consideration in this appeal which arises out of a judgment and order dated 11.6.2003 passed by the High Court of Calcutta in CO No. 1147 of 2003.
3. The appellant herein is the landlord. The respondents were inducted as tenants. A suit for eviction was filed by the appellant against the father of the respondents in the court of 3rd Munsif, Alipore which was marked as Title Suit No. 105 of 1975. The said suit was transferred to 1st Munsif and renumbered as Title Suit No. 412 of 1977. The present respondents were substituted in place of the original defendant on his death. The respondents herein, however, claimed possession in respect of the suit premises purported to be in furtherance of part performance of contract in terms of an agreement for sale in relation whereto they filed a suit being Title Suit No. 49 of 1990 for specific performance thereof in the court of 9th Assistant District Judge, Alipore. The aforementioned Title Suit No. 412 of 1977 was decreed and for execution thereof the appellant filed an execution case before the 1st Munsif, Alipore which was marked as Title Execution Case No. 46 of 1991. In the meanwhile, the respondents preferred an appeal against the said judgment and decree passed in Title Suit No. 412 of 1977 which was allowed by the 8th Additional District Judge, Alipore on or about 24.02.1992 in Title Appeal No. 309 of 1991. A second appeal thereagainst was preferred by the appellant before the Calcutta High Court which was marked as Second Appeal No. 425 of 1992 and by a judgment and decree dated 18.12.1998 the second appeal was allowed as a result whereof the decree for eviction was restored.
4. The matter came up in appeal before this Court by way of Special leave petition. The said appeal was dismissed by an order dated 18.10.2000 wherein the following agreement between the parties was recorded :
"Mr. Bhaskar Gupta, learned senior counsel appearing for the appellants and Mr. Shantanu Mukherjee, learned counsel for the respondent agreed to the following order to be passed by this Court:
Firstly, the decree passed by the High Court is to be affirmed. Secondly, the respondent shall file an undertaking in this Court that she would not execute the decree passed in Suit No. 412 of 1977 till the decision of Title Suit No. 49/90.
In view of agreed statement by counsel for the parties, the decree of the High Court is affirmed in terms of the agreement between the parties without prejudice of rights and contentions of the parties in Suit No. 49/90. The respondent shall file an undertaking within a period of three weeks from today. The trial court may make an effort to decide the suit expeditiously, if possible, within a period of six months. Learned counsel for the parties have given assurance that they would not take unnecessary adjournment."
5. It is not in dispute that the aforementioned suit for specific performance being Title Suit No. 49 of 1990 was dismissed on or about 20.12.2001, whereafter the appellant filed an application on about 11.2.2002 before the Executing Court for proceedings with execution. An application filed by the respondents for review of the decree dismissing the said Title Suit No. 49 of 1990, however, was allowed by the 9th Senior Civil Judge by an order dated 15.07.2002 holding that necessary order regarding its reopening would be passed after hearing both sides on the question whether earnest money should be directed to be refunded. The relevant portion of the aforementioned order is as follows :
"Accordingly, I arrive at the conclusion that there has been an error of omission while passing the impugned order no. 179 dated 20.12.2001 of T.S. 49/90 by omitting to spell out whether earnest money should be refunded or forfeited. This is an error on the face of the record, which can be rectified by passing necessary order in this regard after hearing both sides. So review lies. Ther
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