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1969 Supreme(Bom) 8
IN THE HIGH COURT OF BOMBAY
G.N.Vaidya, J.
Appellants: Manekshaw Rustomji Mehta and Ors.
Vs.
Respondent: A.N. Jijina and Anr.
Civil Revn. Appln. No. 869 of 1967 Decided On: 13.02.1969
Counsels:
For Appellant/Petitioner/Plaintiff: C.P. Patel, Adv.
For Respondents/Defendant: A.G. Katki, Adv.
The court has no jurisdiction to vary a consent decree without the consent of the parties concerned unless there is a power conferred on the Court in the consent decree itself enabling the Court to vary it.
Headnote:
PRESIDENCY SMALL CAUSE COURTS ACT, 1882 - SECTION 30 - SECTION 43 - JURISDICTION - STAY OF EXECUTION - CONSENT DECREE - VARIATION - DELAY IN PAYMENT - CONDONATION - POWER OF COURT - SUMMARY PROCEEDINGS - DISTINCTION FROM SUITS - ORDER FOR POSSESSION - DISCRETION OF COURT.
Fact of the Case:
The petitioners filed an ejectment application under Chapter VII of the Presidency Small Cause Courts Act, 1882, against the opponents, who were licensees in respect of a room in a building in Bombay. The parties arrived at a compromise and filed consent terms, which were incorporated into an order of the court. The consent terms provided that the defendants would vacate the premises by December 31, 1966, pay half court costs and professional costs, and pay arrears of compensation and costs totaling Rs. 1300.37 by December 30, 1966. The order further stated that if the defendants paid the amount on time, the warrant of possession would be stayed permanently; otherwise, the warrant would issue without notice. The defendants paid Rs. 500 on December 17, 1966, and requested an extension of time to pay the balance, but the petitioners refused. The defendants then applied to the court for a stay of execution of the warrant of possession and for an extension of time to pay the balance. The court granted the application and condoned the delay in payment.
Finding of the Court:
The court held that the learned Judge of the Court of Small Causes erred in exercising his powers under Section 30 in the present proceedings under Chapter VII. The court further held that the order passed by the Judge condoning the delay in depositing the amount under the consent decree was an order passed without jurisdiction inasmuch as the order amounted to variation of the consent terms filed in Court and no Court has jurisdiction to vary the consent terms without the consent of the parties.
Issues: 1. Whether the learned Judge of the Court of Small Causes erred in exercising his powers under Section 30 in the present proceedings under Chapter VII? 2. Whether the order passed by the Judge condoning the delay in depositing the amount under the consent decree was an order passed without jurisdiction?
Ratio Decidendi: 1. Section 30 of the Presidency Small Cause Courts Act, 1882, applies only to suits and not to the summary proceedings under Chapter VII. Proceedings under Chapter VII are not suits and the orders passed under Section 43 are not decrees. 2. A consent decree cannot be varied by the Court without the consent of the parties concerned unless there is a power conferred on the Court in the consent decree itself enabling the Court to vary it.
Final Decision: The revision application is allowed and the order passed by the Judge on January 31, 1967 is set aside and the case is remitted to the Court of Small Causes for disposal in accordance with law in the light of the observations made hereinabove.
1. This revision application is filed by the petitioners, who are described in the application as plaintiffs, against an order passed on January 31, 1967 by the Judge in the Court of Small Causes at Bombay permanently staying the execution of the warrant of possession ordered to be issued in an ejectment application filed by the pre-decessor-in-title of the petitioners, one Mrs. Mehroo M. Mehta against the opponents.
2. The ejectment application was filed on November 4, 1963 alleging that the opponents were licensees in respect of one of the rooms in Block No. C on the second floor of Mistry Buildings, Balaram Street, Grant Road Bombay No. 7. It was stated in the application that Mrs. Mehroo Mehta was the daughter of Mr. and Mrs. B. M. Maoji who lived in the said block and that the deceased Maoji had given the room in question to the opponents under an agreement of leave and licence. The said Maoji died on November 8, 1959 and the license was terminated by a letter addressed by an advocate on behalf of Mrs. Mehroo M. Mehta on July 27, 1963. The said application was resisted by the opponents on several grounds and the matter was adjourned from time to time till a compromise was arrived at between the parties.
3. The parties filed the consent terms on August 23, 1966 and on that very day, an order was passed in terms of the said compromise directing the defendants to vacate the application premises by December 31, 1966, pay half court costs and Rs. 21.25 professional costs, subject to conditions in Cls. 2 and 3 of the consent terms which were as under :--
"(2) Agreed that arrears including compensation upto 31-12-1966 and costs of the application herein and the suit arrears upto 31-12-1966 in respect of the premises in application come to Rupees 1300.37. The defendants agree and undertake to pay in Court the said amount by 30th December 1966. The time is of the essence.
(3) On the defendants paying the said amount of arrears of compensation and costs, etc. on the due date, provided in Clause. 2 hereinabove, without delay and/or default, the warrant of possession to be stayed permanently. In default of payment thereof in time and as provided in Clause (2) herein, warrant of possession herein to issue against the defendants without notice and during vacation."
In pursuance of this order, a formal order described as Judgment for recovery of tenement in what is considered as the usual form under Section 43 of the Presidency Small Cause Courts Act, 1882 was issued on October 26, 1966, the material portion of which was as follows :--
"..... and it is ordered that the said defendant do quit and deliver up possession of the said (premises) by 31-12-1966, subject to conditions in clause Nos. 2 and 3 of consent terms to the said plaintiff, and that a Warrant do issue after the 31st day of December 1966 to enforce this adjudication and to direct the Bailiff of the said Court to give possession of the said premises to the said plaintiff within ten days from the date of such warrant....."
4. Before the petitioners applied for warrant of possession, which is admittedly not at all issued even now, on January 6, 1967 opponent No. 1 applied to the Court for stay of execution of the warrant of possession and for extension of the time for payment. In that application which was numbered as Miscellaneous Notice No. 112 of 1967, he stated that he is employed as a jobber in Shriram Mills Ltd. and he had applied to his office for a loan against his provident fund for satisfying the petitioners claim for arrears of compensation as settled in the consent terms. This loan was sanctioned by his office, but as under the rules it required the sanction of the State Government, in spite of his best efforts, he was unable to secure the loan as the sanction of the State Government was still awaited. In these circumstances, opponent No. 1 borrowed a sum of Rs. 500/- and paid it to the Advocate for the petitioners who accepted it unconditionally on December 17
