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High Court Of Madhya Pradesh
P. V. Dixit, C. J. and K. L. Pandey, J.
SHYAMACHARAN RAGHUBAR PRASAD - Appellant
Versus
SHEOJEE BHAI JAIRAM CHATTRI - Respondents
First Appeal 40 Of 1962
Decided On : 02/26/1964
The High Court, in a revision petition, by a clear and unambiguous order, directed the lower Court to pass a decree for eviction of the defendant from the suit premises forthwith. Pursuant to that direction the lower Court passed a decree without giving notice to the parties. On contention that the decree was bad as it violated O. 20, R. 1.
Held: Though the lower Court should have given notice to the parties before proceeding to pass the decree in conformity with the High Court's order, the decree passed in non-compliance with O. 20, R. 1 did not become a nullity for that reason 19 MPLC 136 = AIR 1933 Nag. 12 relied on.
(2) Civil P.C., 1908 - Ss. 11 and 105 - interlocutory order - finality - interlocutory application rejected by trial Court but allowed by High Court in revision - special leave to appeal to Supreme Court refused - suit decreed - appeal against decree before High Court - order in revision held had became final and could not be challenged before High Court in appeal.
An interlocutory order is final as regards the Court making that order Section 105 only postpones the challenge to an interlocutory order till an appeal is preferred from the final decree. But the challenge must not be in the Court making the interlocutory order attacked, but in the appeal ultimately taken to the higher Court from the final decree. [Paras 13, 14
In a suit for eviction the plaintiff filed an interlocutory application under O. 12, R. 6 for judgment on defendant's admission. On its rejection, the High Court in revision allowed it and directed the lower Court to pass a decree in favour of the plaintiff. The defendant's petition for special leave to appeal to Supreme Court was rejected. A decree was passed by the lower Court as directed by the High Court. On appeal to the High Court against that decree.
Held: The order passed by the High Court in revision was final as regards that Court, and its correctness could not be challenged in appeal before the High Court. It could be challenged only before the Supreme Court in an appeal from the final decree. AIR 1960 SC 941, relied on; AIR 1940 Mad. 756 Dissented from. [Para 14
(3) Transfer of Property Act, 1882 - Ss. 105, 116 - tenant holding over after expiration of lease - suit for eviction - allegation by tenant that there was verbal extension of lease - burden of proof is on tenant to prove extension - particulars as to time and place of agreement not given by tenant in his written statement - witnesses said to be present at the time of agreement not examined - in their place other witnesses examined but their evidence found to be unsatisfactory unreliable and unworthy of any credit - defendant himself not appearing as witness burden of proof not discharged. [Para 20
(4) Transfer of Property Act, 1882 - Ss. 105, 116 - creation of fresh lease - Civil P.C. 1908 - O. 23, R. 3 & O. 40, R. 1 - settlement in eviction suit during pendency of appeal in interlocutory matter - did not create fresh lease but was interim arrangement during pendency of appeal.
In a suit for eviction the landlord made an application for appointment of a Receiver. On rejection of that application he filed an appeal and pending it a settlement was arrived at whereby the tenant agreed (i) to pay a certain sum to the landlord in cash, (ii) to give a solvent security for the due performance of the decree as might be passed, and (iii) to pay certain amount every month as rent for subsequent period.
Held: The settlement could not be said to have created a fresh tenancy or any leasehold right. The appeal was an appeal against an order of the trial Court refusing to appoint a Receiver. In that appeal there was no question of determining finally the rights of the parties involved in the suit. The settlement arrived at was nothing but an interim arrangement till the disposal of the appeal. There was no adjudication of the claims of parties. [Para 23
The mere use of the word "rent" in the term of the settlement could not be taken as indicating that a new relationship of landlord and tenant between the parties was brought into existence. AIR 1962 SC 554 and AIR 1949 FC 124, relied on. [Para 24
(5) Civil P.C., 1908 - O. 20. R. 12 - scope of.
Order 20 is not exhaustive of the list of preliminary decree. Therefore, in the suit for eviction and possession of the premises having cinema house, arrears of rent due and mesne profits, decree for possession can be passed, leaving the issues relating to the ownership of the fittings in the cinema house, rent and mesne profits to be determined at a later stage. [Para 26
( 1 ) THIS appeal arises out of a suit filed on 25th June 1960 by the respondent No. 1, Sheoji Bhai, against the appellant Shyamacharan and the respondent No. 2 yadav, claiming a decree for their eviction from a cinema-house known as Jairam theatres, situated in Raipur, and a decree for arrears of rent and damages. The additional District Judge of Raipur, who is trying the suit, has, in the circumstances stated below, given to the plaintiff a decree for the ejectment of the defendants. It is against this decree that this appeal has been filed.
( 2 ) THE plaintiff's case was that by a registered lease-deed the defendants had taken from him the cinema house on lease for a period of ten years from 20th May 1950 at a monthly rent of Rs. 1600/-; that on the expiry of the lease by efflux of time on the midnight of 19th May 1960 he served telegraphically a notice on the defendant Shyanzacharan for vacating the leased property and delivering vacant possession thereof to him; and that instead of vacating the cinema-house, the said shyamacharan sent a false reply alleging that according to an oral agreement between him and the plaintiff the lease had been extended for a further period of two years. The plaintiff averred that on the expiry of the lease on the midnight of 19th May 1960, the defendants were not entitled to remain in occupation of the cinema house, and claimed a decree for ejectment, for arrears of rent amounting to Rs. 16,353/- and for damages for the period after the expiry of the lease till the date of eviction.
( 3 ) THE appellant contested the suit pleading inter alia that the lease had not come to an end inasmuch as before the expiry of the period fixed by the registered lease-deed the plaintiff verbally agreed to extend the term of the lease by another two years and had further stipulated to execute a proper lease-deed for the extension of the term but that he had failed to do so. The other defendant' Yadav did not file any written-statement. He, however, made an application to the trial court pleading that by virtue of a partition made between Shyamacharan and him, the entire liability with regard to ejectment, payment of rent and damages was on shyamacharan alone.
( 4 ) ON the pleadings of the parties, the trial court framed the following issues:
"1. (a) Whether the plaintiff leased out the cinema as detailed in the map attached to the plaint to the defendant No. 1 for 10 years, commencing from 20th May 1950? (b) Whether the lease expired by efflux of time on 19-5-1960? or whether the lease expired on 22-5-1960? (c) Whether the lease was at Rs. 1600/- per month ? (d) Whether the lease was verbally extended for two years? 2. Whether the plaintiff is the owner of Electric fittings and Seats i. e. chairs etc. of the cinema as detailed in the map attached to the plaint? 3. Whether, since the plaintiff has not raised any of the grounds mentioned in Section 4 of the M. P. Accommodation Control Act, the suit is not maintainable? 4. (a) Whether proper court-fee has not been paid? (b) If so, what is its effect?
( 5 ) (A) Whether the plaintiff is entitled to ejectment? (b) Whether the plaintiff is entitled to Rs. 16353/- as arrears of rent? (c) Whether the plaintiff is entitled to Rs. 6000/-as damages from 19-560 to 19-6-60? (d) Whether the plaintiff is entitled to future damages at Rs. 6000/- per month?
( 6 ) RELIEF and costs?" the evidence in the suit was to have been recorded on 22nd November 1960. On this date, * the defendant-appellant Shyamacharan made an application under order 23 Rule 3 C. P. C, stating that; on the previous night a compromise had been arrived at between the parties according to which the lease was to continue for a further period of two years commencing from 22nd May 1960 and that formal lease-deed was to be executed and registered on 22nd November 1960. In this application the appellant stated the other terms of the alleged compromise and prayed that the compromise be recorded and a decre
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