A consent decree which provides for the continuance of the possession of the tenant on certain terms upto a particular date and also provides for the continuation of the tenant's possession after that date if he complies with certain conditions, continues the tenancy of the tenant from the date of the consent decree itself.

Headnote:
CONSENT DECREE - Interpretation - Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 - Whether consent terms filed in a suit instituted under the Act create a new tenancy or continue the old tenancy - Principles governing the grant of relief against forfeiture - Applicability of the principles to the facts of the case.
Fact of the Case:

The petitioner filed a suit for possession of certain premises tenanted by the respondent on the ground of arrears of rent. A consent decree was passed incorporating the terms of a compromise between the parties. The decree provided that the respondent was to give possession of the premises to the petitioner by a specified date, but if he paid certain amounts by that date, the petitioner would not obtain possession. The respondent failed to make the payment, and the petitioner filed an application for execution of the decree. The executing court directed the issue of a warrant of possession, but the appeal court set aside the order and remanded the case for a fresh hearing. The petitioner challenged the order of the appeal court.
Finding of the Court:

The court held that the consent decree continued the tenancy of the respondent. The court noted that the decree provided for the continuance of the respondent's possession of the premises up to a particular date and also provided for the continuation of the respondent's possession after that date if he complied with certain conditions. The court held that this showed that the parties intended to continue the tenancy, and that the time given to the respondent to make the payment was not merely a concession.
Issues: 1. Whether the consent terms filed in a suit instituted under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 create a new tenancy or continue the old tenancy? 2. The principles governing the grant of relief against forfeiture. 3. Applicability of the principles to the facts of the case.
Ratio Decidendi: 1. Whether a consent decree creates a new tenancy or continues the old tenancy depends on the language of the consent decree itself. 2. Where the relationship of landlord and tenant is continued between the parties by a compromise decree, the judgment debtor, who is a tenant, would be entitled to relief against forfeiture resulting from his failure to pay the rent on the stipulated date. 3. Where the consent decree provides for the continuance of the possession of the tenant on certain terms upto a particular date and also provides for the continuation of the tenant's possession after that date if he complies with certain conditions, then such a decree provides for the continuance of the possession of the tenant from the date of the consent decree itself. In such a case, it cannot be said that the plaintiff's allowing the defendant to continue up to and beyond that specified date is by way of concession.
Final Decision: The court discharged the rule issued in the petition with no order as to costs. The judgment and order passed by the learned Assistant Judge of Ahmednagar in Civil Appeal No. 29 of 1976 were confirmed.

JUDGMENT - R.A. JAHAGIRDAR, J.:---This petition raises an important question of law regarding the interpretation of consent terms filed in a suit instituted under the provisions of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, (hereinafter referred to as the "Bombay Rent Act"). The law relating to the nature of the consent terms is fairly well-settled as I will show little later in this judgment. Nevertheless, some variations do arise form time to time and this petition provides one of such variations which has to be dealt with in the light of the well-settled law.

2. The petitioner filed a suit, being Regular Suit No. 419 of 1968, against the respondent for possession of certain premises which were tenanted by the respondent. The ground urged in support of the prayer for possession was, among others, that the respondent had committed default in the payment of arrears of rent, thus meriting a decree for eviction under section 12(3) of the Bombay Rent Act.

3. On 8th July, 1970 a decree in terms of the compromise signed by the parties was passed. It is necessary to refer to the relevant terms of the compromise on which the decree was passed in the said suit. Clause (1) of the consent terms states as follows :---

"The possession of the suit premises is to be given by the defendant to the plaintiff up to 10th of October, 1970. If the defendant does not give possession, then the plaintiff to take possession by execution on the basis of this decree."

4. Clause (2) only provides for the payment of what has been described as the mesne profits of the suit premises and the rent of a godown at the rate of Rs. 9/- and also for the payment of the eletricity and water charges by the defendant to the plaintiff. This amount was to be paid by the defendant to the plaintiff up to 10th of October, 1970. If such payment was not made, then the plaintiff was at liberty to recover the said amount on the basis of "this decree".

5. The third and the fourth clauses are important and they may be reproduced.

"(3) The defendant is given concession that if he pays the entire amount mentioned in Clause (2) and further mesne profits, eletricity charges, water charges, etc. up to 10-10-1970, there will be no execution of the decree by the plaintiff.

(4) The standard rent of the suit premises is Rs. 30/- per month and the standard rent of the store room is Rs. 9/- per month and it should be fixed accordingly. This is agreeable to the plaintiff and the defendant. Apart from this amount the defendant is to pay the eletricity charges as per the bill and water charges at Rs. 3/- per month."

6. It has been mentioned that up to 10th October, 1970 as per the consent terms, the defendant was required to pay a sum of Rs. 3353.58. However, the defendant deposited on 9th October, 1970 only a sum of Rs. 2040/-. The defendant has taken a contention that he was misted in depositing a smaller amount on account of a representation made by the plaintiff. It is not, however, necessary to decide the correctness of this contention.

7. Since according to the plaintiff, the defendant has failed to deposit the amount as per the consent terms which had been incorporated into the decree, he was entitled not only to recover the amount which was due but also to recover the possession of the suit premises. Accordingly, he filed Regular Darkhast No. 304 of 1970 on 2nd November, 1970. Rejecting the contention of the defendant that he was entitled to the relief against forfeiture, the Executing Court by its judgment and order dated 28th January, 1976 directed the issue of warrant of possession under Order 21, Rule 35 of the Code of Civil Procedure. The appeal preferred by the defendant, namely, Civil Appeal No. 29 of 1976, was allowed by the Assistant Judge of Ahmednagar, by his judgment and order dated 18th July, 1977. The plaintiff thereafter preferred a petition under Article 227 of the Constitution, being Special Civil Application No. 157 of 1978, which was heard an

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Judicial Analysis

1985 Supreme(Bom) 18

IN THE HIGH COURT OF BOMBAYR.A. Jahagirdar, J.Prithvichand Ramchand Sablok.... Petitioner.VersusS.Y. Shinde.... Respondent.Writ Petition Nos. 1755 of 1983, decided on 16-1-1985.Advocates appeared :M.A. Rane, for petitioner.N.B. Shah, for respondent.

Judicial Analysis

IN THE HIGH COURT OF BOMBAY
R.A. Jahagirdar, J.
Prithvichand Ramchand Sablok.... Petitioner.
Versus
S.Y. Shinde.... Respondent.
Writ Petition Nos. 1755 of 1983, decided on 16-1-1985.
Advocates appeared :
M.A. Rane, for petitioner.
N.B. Shah, for respondent.