Judgment

OZA, J. :- This appeal arises out of the judgment passed by the High Court of M. P. in Civil Revn. No. 176 of 1986, D/- 11-9-1986.

2. This matter arises out of execution proceedings. This execution case was filed by the present appellant against the non-applicant judgment-debtor claiming relief of possession of property including the Cinema Theatre known as Gajanan Talkies bearing House No. 57(209) in Ward No. 12 (new Ward No. 11) Chalapula on Nazul plot No. 72, Sheet No. 53-D, Khamgaon Teh. Khamgaon Distt. Buldhana with furniture etc. Against an order passed in this execution in favour of the decree holder the present appellant, the respondent judgment-debtor filed a revision petition before the High Court of Bombay at Nagpur. The revision petition was rejected and against that order a special leave petition was filed before this Court by its order dated 4-3-86 in Civil Appeal No. 842 of 1986 set aside the order of the High Court and observed that the High Court shall dispose of the revision petition afresh after hearing parties and giving reasons in support of the conclusions. It appears that at the time of hearing, a request was made by the learned counsel for the judgment-debtor present respondent which was also supported by the counsel for the other side for the revision being sent to some other High Court than the High Court of Bombay at Nagpur and consequently the revision petition was sent to the High Court of M. P. where the learned Judge of the High Court disposed of this revision petition by the impugned judgment and after obtaining leave from this Court the present appeal is before us.

3. The facts giving rise to this appeal are that the petitioners appellants are the landlords and the respondent admittedly are the tenants of the suit premises which is a cinema house along with furniture, fittings and other things.

4. On Feb. 24, 1970 the appellants landlords filed an application under Sec. 13(3)(i), (ii), (iii) and (iv) of the Rent Control Order for permission to issue notice determining the respondents lease of the premises on the grounds of eviction mentioned in the application which were bona fide need, subletting, arrears of rent for more than three months and habitual default in payment of rent. This application was filed against the five respondents, three of whom are sub-tenants. On 9-3-1970, the respondent appeared and filed W. S. denying the allegations but it was not pleaded that there was a written consent for keeping sub-tenants which is essential under S. 13 Cl.(3)(iii) and therefore in substance Sec. 13(3)(iii) was, in effect, admitted.

5. The case was fixed for filing of documents and was adjourned to 16-3-70. On this date the appellant landlord filed 42 documents and the case was adjourned to 28-3-70. On this date an application was made by both the parties for recording of compromise. The respondent-tenant expressly admitted the claim of the appellant-landlord for permission for termination of tenancy and surrendering the tenancy rights undertook to vacate the premises on or before 31-3-1974. The learned Rent Controller on 31-3-70 passed an order saying that as there is no provision for recording of a compromise, the petition for compromise is treated as an application for filing of the proceedings. He therefore filed the proceedings observing that the matter has been compromised out of the court.

6. On 25-6-1970 there was a partition between the three landlords and the property in dispute fell to the share of Shri Vallabhdas Mohta.

7. On 18-2-1974 an agreement was arrived at between the parties for referring the matter to the arbitration wherein it was clearly mentioned that the tenancy in favour of the respondent tenant stands surrendered and the Arbitrator should decide how much further time should be granted to the respondent-tenant for vacating the premises and what should be the quantum of damages for use and occupation beyond 31-3-1974 which was the agreed date for delivery of possession