KARNATAKA HIGH COURT
Aravind Kumar, J.
Vasanth Colour Laboratories Pvt. Ltd. —Petitioner
versus
Smt. Divya Devi —Respondent
Writ Petition No.46319 of 2015 (GM-CPC)
Decided on 22.1.2016

IMPORTANT POINT
A person who has enjoyed benefit of a compromise petition cannot contend that the intention of the parties to such compromise was something else or it was intended to create a new contract.

Headnote:Civil Procedure Code, 1908 — Order 23, Rule 3, r/ws 151, Section 47 — Compromise decree — Execution petition — A person who has obtained benefit of a compromise petition and has enjoyed the benefit flowing from such compromise, cannot contend that intention of the parties to such compromise was something else — Decree holder was the owner of the suit schedule property and it was taken on lease by the judgment debtor — On expiry of the lease period, decree-holder filed a suit against the judgment debtor for ejectment from the suit property — Judgment-debtor also filed a suit seeking specific performance of the contract contending that 7under the lease deed there was a specific lease for extension to be given for another 14 years after the expiry of stipulated period and same was not extended — During pendency of proceedings a compromise came to be entered into between the parties — Pursuant to this compromise, decree has been drawn terms of the compromise — It was recorded that the judgment debtor shall vacate and handover possession of the suit property to the decree holder on or before 30.4.2015 — Execution petition as judgment debtor not vacating the suit property as agreed to in the compromise — Order of issuance of delivery warrant — Sustainable — Writ petition dismissed with costs of Rs.10,000/-

       Held: Under identical circumstances, Hon”ble Apex Court in the case of Konchada Ramamurthy Subudhi, has held the intention of the parties in a compromise petition is a decisive test which will have to be adopted to ascertain as to whether parties intended to revive the tenancy or create new tenancy under compromise petition. It has been further held that in spite of the fact that word “rent” being used in the compromise petition would not be a ground to contend that it amounts to a fresh lease having been created. Hon”ble Apex Court therein was examining as to whether the compromise deed constitute creation of a lease or licence and held that when the decree holder has brought a suit for ejectment of the judgment debtor and a compromise being entered into in that suit, is important and it would be difficult to impute to such decree holder that he had intention to create a fresh tenancy while the fact that he brought the suit for ejectment itself shows that his intention was to eject the judgment debtor after having terminated the tenancy. Hence, contention raised by learned Advocate appearing for petitioner - judgment debtor in this regard stands rejected.

       A person who has obtained benefit of a compromise petition and has enjoyed the benefit flowing from such compromise, cannot be heard to contend that the intention of the parties to such compromise was something else or it was intended to create a new contract, particularly based on such compromise when undertaking has been given.

       Keeping the principles laid down by the Hon”ble Apex Court noticed herein above in mind, when the facts on hand are examined, the contents of the compromise petition - Annexure-R3 would clearly indicate that judgment debtor has agreed to quit, vacate and deliver actual vacant physical possession of the schedule property to the decree holder free from all encumbrances and the tenancy claims on or before 30.04.2015 without claiming any further extension of time. Thus, judgment debtor has clearly undertaken that he would not claim any fresh tenancy and pursuant to said compromise entered into, he has filed the affidavit of undertaking to vacate and has now attempted to wriggle out of such undertaking, that too, without withdrawing the undertaking. Hence, these facts would clearly indicate the intention of the judgment debtor is to drag on the proceedings and hang on to the suit schedule property, with an attitude “come what may”.

       As noticed herein above, petitioner has adopted dilatory tactics to postpone the handing over vacant possession of the suit schedule property to decree holder despite giving an undertaking. The normal rule is costs should follow the cause. Petitioner is a private Limited Company carrying on business in the suit schedule property from long number of years and respondent - decree holder having filed a suit for ejectment way back in the year 1981 and hoping to secure possession of suit schedule property at the earliest, has entered into compromise with the writ petitioner - judgment debtor on 23.04.2011, whereunder the respondent-decree holder has agreed to grant time to the petitioner - judgment debtor till 30.04.2015. Despite such undertaking being given, judgment debtor has not vacated the suit schedule property and has ventured to drag on the proceedings by filing frivolous applications and postponing delivery of possession of suit schedule property to respondent - decree holder. As such, this Court is of the considered view that writ petitioner would be liable to pay exemplary costs to the respondent - decree holder. (Paras 19, 23, 24, 26)

       Result: Writ Petition Dismissed.