Back
High Court Of Calcutta
A. N. Sen, Bimal Chandra Basak
BHAGIRATHMALL KANODIA - Appellant
Versus
RAMRICKLAL GIRDHARDAS - Respondent
Appeal 113 Of 1975
Decided On : 12/23/1976
CIVIL PROCEDURE CODE - Order 1, Rule 10 - Consent Decree - Alteration - Jurisdiction - Mansatas, not parties to the suit, added as party defendants - Decree passed in their favor - Whether valid.
Fact of the Case:
Plaintiffs filed a suit for possession of premises against defendants. Defendants filed a cross-suit for declaration of tenancy. Both suits were settled, and terms of settlement were filed. The settlement provided for the creation of a tenancy in favor of Mansatas, who were not parties to the suit. The trial court, on an application by Mansatas, added them as party defendants and passed a decree in their favor. Plaintiffs appealed.
Finding of the Court:
The trial court erred in passing the order adding Mansatas as party defendants and passing a decree in their favor. The consent decree was between the parties to the suit, and Mansatas were not parties. The trial court had no jurisdiction to change the nature and character of the consent decree without the consent of all parties.
Issues: 1. Whether the trial court had jurisdiction to add Mansatas as party defendants and pass a decree in their favor. 2. Whether the order of the trial court was appealable.
Ratio Decidendi: 1. The trial court had no jurisdiction to add Mansatas as party defendants and pass a decree in their favor because: a) The consent decree was between the parties to the suit, and Mansatas were not parties. b) The trial court could not change the nature and character of the consent decree without the consent of all parties. 2. The order of the trial court was appealable because it changed the nature of the consent decree.
Final Decision: The appeal was allowed. The order of the trial court was set aside. The application of the Mansatas was dismissed. The Mansatas were directed to pay the costs of the appeal.
( 1 ) THIS appeal arises out of the judgment and order passed by Ramendra Mohan Dutta. J. on the 20th of March 1975. The facts material for the purpose of this appeal may be briefly indicated.
( 2 ) A suit was filed by the appellants as plaintiffs who happened to be the Trustees of a Trust known as Rai Bahadur Bissessurlal Motilal Halwasiya Trust for recovery of possession of premises No. 150b, Lower Chitpur Road, Calcutta. The defendants to the said suit were (1) Ramricklal Girdhardas, (2) Narsinghdas Haldia and (3) Naaz Cinema. The defendants were carrying on business in the said premises under the name and style of Naaz Cinema. The defendants also filed a suit against the Trustees and in the said suit the defendants had asked for a declaration that the defendants continued to be the tenants under the plaintiffs in respect of the said premises. Both the said suits were settled and terms of settlement were filed. It is necessary to set out the terms of settlement which were filed in the suit. The said settlement between the parties to the suit reads as follows:--"it is declared that the defendant No. 2 was never the tenant on the premises in suit and a decree is made accordingly. The plaintiffs and the defendants Nos. 1 and 3 have settled the disputes in the suit on the following terms and conditions: terms of Settlement That from 1st July, 1968 the tenancy in respect of the suit premises will be in favour of Mrs. Laxmi V. Mansata, Hirendra V. Mansata. Suryakanta V. Mansata, Jitendra V. Mansata of No. 87-K, Park Street, Calcutta-16. But for the purpose of serving notice of any sort in respect of tenancy the same shall be deemed to have been served on all it served on any one of them. 2. That the tenancy shall be according to English Calendar month starting from the 1st day of the month and ending with the last day of the same month. 3. That on and from 1st July, 1968 the rent of the suit premises will be Rs. 2,000 (Rupees two thousand) only per month which shall be payable to the plaintiffs landlords of their succeeding month for which the rent shall be due. 4. That the rent of Rs. 2,000 per month, as aforesaid, is inclusive of occupiers' share of the Corporation taxes. 5. That the tenant shall pay from 1st July, 1968 a sum of Rs. 600 (Rupees six hundred) per month by way of hire charged for furnitures along with the rent as aforesaid and will continue to pay the same so long they do not surrender the tenancy or give vacant possession of the premises to the landlords. 6. That the tenants will use the Cinema House being the premises in suit for exhibition of Films and theatrical performance with liberty to make provisions for Canteen and Restaurants outside the auditorium for the facility of its audience only. 7. That the tenants paying rent regularly as per Clause 3 and hire charges as per clause No. 5 and using the premises as per Clause 6 will not be liable to be evicted by the plaintiff/landlords on any grounds whatsoever including the grounds of own use and occupation and/or buildings or re-buildings except as provided hereinafter. 8. That the tenants shall have the option to surrender the tenancy to the plaintiff/landlords or their successors in office by giving six calendar months' notice in writing in advance to them. 9. That the tenants shall carry out all the requisitions and requirements imposed by any competent authority for carrying on the said Cinema business at the suit premises and in no way the plaintiffs/ landlords shall toe liable for the breach of same by the tenants. 10. The tenants shall be entitled to make at their own costs any additions and alterations to their demised premises or any part thereof including constructional and structural changes and erect any kind of permanent structures and also to install air conditioning plants, machines and apparatus, as would be required from time to time only for the improvement of the Cinema business with prior approval in writing of the landlords
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
