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IN THE HIGH COURT OF BOMBAY
V.S. Kotwal, J.
Kolhapur Motor Transport Producers and Consumers Co-operative Society Ltd. .... Petitioner.
Versus
Ramchandra Mahipatrao Rane others .... Respondents.
Writ Petition No. 3244 of 1980, decided on 9/10-2-1989.
Advocates appeared :
Bhimrao N. Naik, for petitioner.
K.J. Abhyankar, for respondents.
This is reiterated by the fact that this is not a case where possession is sought for at the outset and the defendant being required to vacate and the plaintiff being titled to possession is a must. On the contrary, normally, the plaintiff was not entitled to possession. This is also Dot a case where a decree for possession was to be passed in any event except its execution was postponed, but on the contrary, this is a case where a decree for possession was not to be passed. It also becomes apparent that it contains a penal clause and the tenant will have to be relieved from forfeiture and the plaintiff would be entitled only to get the money claim under the compromise and not possession of the premises. In other words, by allowing the decree for possession to be passed, a smaller claim of money is being illegally transformed and expanded in a larger claim for possession which was never asked for, which was never intended to be so, and for which no ground has been made out and which was also never agreed by the tenant. A question was posed to learned counsel, in that behalf, as to whether if the defendant had not committed any default much less two defaults, could be have continued in the premises, and the answer had to be in the affirmative. It may also be argued with some justification that by inserting the clause in the compromise about the two defaults and getting possession contingent on that, it may mean that it is that feature and contingency that is being made as a cause of action and ground for eviction and Obviously both are not available or permissible in the Rent Control Act for getting possession by the landlord and therefore, by such a term the parties cannot be allowed to get the relief of possession which would fall outside the purview and scope of the Rent Act. This Courts opinion is, further comments are not necessary because this discussion makes it amply clear that no decree for possession could have been passed on the basis of such a compromise. There has not been and "could not be satisfaction of the Court as required under the law before passing the decree and the Court also does not appear to have applied its mind to the curse of the matter. All this therefore makes the decree for possession nullity and consequently in executable.
Order 23, Rule 3.
See Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, Section 12(3).
2. Before the petitioner Society could enter in its defence the parties arrived at a settlement on 18th April, 1978 under which the petitioner had agreed to pay the said dues, though instalments were allotted for Rs. 1,000/- per month whereas the last instalment was for Rs. 1,200/-. It is stipulated that in case of any two defaults in the payment of the said amounts, the plaintiffs would be entitled to recover the full amount out of the asserts and the estate of the society and a further stipulation was added that in that event the plaintiff would also be entitled to get the possession of the premises. It may be reiterated once again that the suit was admittedly not for possession but restricted it still to recovery the amount.
3. On the footing of this compromise which was accepted by the parties and which was also accepted by the Court, a decree in all those terms was recorded. The chapter ostensibly was closed but not in reality.
4. Since the petitioner Society committed two defaults, the plaintiffs levied execution of the said compromise decree. In the execution proceedings as objection was raised that the decree, in so far as it relates to the possession of the premises, is a nullity for several reasons and therefore was not executable. The prayer for dismissal of the Darkhast on that footing was negatived by the executing Court against which this petition is filed by the petitioner Society under Article 227 of the Constitution of India.
5. The facts relating to the factual structure are enough except the various terms of the compromise which would be reproduced at the proper point of time. Shri Bhimrao Naik, learned Counsel for the petitioner Society canvassing multi fold contentions, submitted that the decree relating to the question of possession is a nullity on various grounds such as, non-application of mind by the Court passing the decree, that, there was no satisfaction by the said Court about the validity of the compromise and also about the existence of a ground for eviction which could be permissible under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 ('the Rent Act'). He also submitted that such a decree should not have been passed even under the compromise in a suit in which no relief for possession even inferentially was asked for. As the other plank, he contended that the tenancy continued and it is not as it that by way of concession the plaintiffs were allowed to stay in the premises whereafter they were obliged to vacate the same. He also submitted that the terms of compromise are completely misconstrued. All these contentions are countered by Shri K.J. Abhyankar, the learned Councel for the respondents. According
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