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IN THE HIGH COURT OF BOMBAY
V.C. Daga, J.
Krishna Kashinath Patil .... Petitioner.
Versus
S. Mohandas Kamath.... Respondent.
Writ Petition No. 1813 of 1991, decided on 22-10-2001.
Advocates appeared :
M.S. Karnik, for petitioner.
N.V. Walawalkar with G.S. Keluskar, for respondent.
nullity - Landlord-Tenant Dispute - Bombay Rent Act - Section 13(1)(a), (g), (k) - The court found that the decree in execution was not a nullity as it was acted upon by the parties and there was an implied admission by the tenant of the ground for eviction. The court inferred that the decree was not a nullity and was capable of being executed.
Fact of the Case:
The petitioner, a landlord, filed a suit against the respondent-tenant under the Bombay Rent Act, seeking possession of the premises on various grounds. The parties entered into a compromise decree, allowing the tenant to remain in possession for 15 years and execute a registered lease deed. After the lease period expired, the landlord initiated execution proceedings to recover possession, which the tenant objected to, claiming a new tenancy was created.
Finding of the Court:
The court found that the compromise decree was acted upon by the parties, creating a new tenancy for 15 years. The court inferred that the decree was not a nullity and was capable of being executed. The court also found that the decree stood extinguished with the execution of the registered lease deed, and the landlord could not evict the tenant through execution of the compromise decree.
Issues: Whether the decree in execution is a nullity? Whether the consent decree resulted in a fresh contract of lease between the parties for a period of 15 years? If yes, whether with the execution of registered lease deed, the decree in question stood extinguished and lost its executability?
Ratio Decidendi: The court inferred that the decree was not a nullity and was capable of being executed, as it was acted upon by the parties and there was an implied admission by the tenant of the ground for eviction. The court also found that the compromise decree created a new tenancy for 15 years and stood extinguished with the execution of the registered lease deed.
Final Decision: The court dismissed the writ petition, upholding the findings of the lower courts and ruling in favor of the tenant.
FACTS
2. The facts giving rise to the present petition in nutshell are as under:-
The petitioner is a landlord of the plot of land situate at Agashi, Taluka Vasai, District Thane. There was a structure standing on the said piece of land, bearing house No. 185. The same has been in possession of the respondent as tenant on monthly rent of Rs. 15/-. The suit premises is governed by provisions of the Bombay Rent, Hotel and Lodging House Rates Control Act, 1947 ("Bombay Rent Act" for short).
3. The petitioner herein had filed Regular Civil Suit No. 2 of 1970, in the Court of Civil Judge, Junior Division, Vasai, against the respondent-tenant on the following grounds:
(1) that the premises was being used for the purpose other than for which it was leased i.e. storing charcoal, onions, potatoes and such other sundry articles;
(2) that the accommodation available with the petitioner was insufficient to meet the requirement of his 10 family members, had another house bearing No. 160 used or the residence was not sufficient to accommodate 10 members of his family. The petitioner's family at the relevant time being growing family with his two married sons, he was in need of the suit premises for his occupation; (3) that the suit premises had become dilapidated due to change of user and (4) that the respondent had unauthorisedly entered and occupied eastern verandah without written consent of the landlord and also removed tin sheets therefrom.
4. On being summoned, the respondent appeared but chose not to file any written statement to deny the plaint allegations. The parties to the suit entered into compromise. The decree came to be passed, based on compromise. The preamble of which reads as under:
Extract of Compromise
Preamble reads us under:
5. This suit coming on this day the date 15th January 1970, for final disposal before Shri V.B. Gunjotikar, Civil Judge, Junior Division, Vasai, in the presence of Shri A.G. Patil the Advocate for the plaintiff and Shri Rajani, Advocate for the defendant and in pursuance of the mutual pursis at Exhibit 16, it is decreed as follows:
Terms and Conditions of Compromise
6. (a) The rent of the suit premises is fixed at Rs. 100/- (rupees hundred) per month and the said rent be deemed as standard rent.
(b) The plaintiff to give to the defendant the suit premises in rent for the period of 15 (fifteen) years and a rent agreement in respect thereof be executed by the plaintiff in favour of the defendant. In the said rent agreement, the plaintiff shall give in writing the permission viz. that the defendants, for the purpose of hotel and residence may carry out 'pakka' or 'kacha construction in the suit premises and may construct well and W.C., if so required etc.
The defendant do pay to the plaintiff within 8 (eight) days from today a sum of Rs. 1000/- (rupees one thousand only) being the amount of cost of the suit and also to make good the damage caused to the structure and things together with other articles which were kept therein. If the defendant fails to pay the said damages then the plaintiff shall have right to recover the said amount by initiating darkhast/execution proceeding.
(c) The defendant shall vacate the premises taken on rent after 15 years i.e. on the date 31-12-1984 and shall give vacate possession thereof to the plaintiff.
Dissection of compromise.
7. The dissection of the aforesaid decree based on consent terms would show that the monthly rent of the suit premises was fixed at Rs. 100/- per month. The said rent was agreed to be treated as s
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