IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Regular Second Appeal No.93 of 1999 Judgment Reserved on: 14.03.2011. Date of decision: 20.04.2011 Charan Dass … …Appellant Versus Neeraj Kumar & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Appellant: Mr.K.D. Sood, Advocate. For the Respondents: Mr.Bhupender Gupta, Senior Advocate with Mr.Janesh Gupta, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the plaintiff against the judgment of the two Courts below dismissing his suit for permanent mandatory injunction, for possession and recovery of Rs.2,000/-. 2. The facts of the case are telling. The undisputed facts may be considered before adverting to the points requiring determination in this appeal. 3. A consent order Ex.P-6 was passed by the learned Rent Controller, Chamba, District Chamba, in Rent Application No.8 of 1977 on 5.9.1979 in a petition which was instituted by the respondent-landlord against 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 the petitioner, appellant herein. The suit for eviction had been instituted for the demised premises (which are now again the subject matter of this appeal) on various grounds. The order was passed on the statements on oath, Exs.P-4 and P-5, made by both the parties to the Rent Petition. 4. The landlord Shri Bhagti Parshad instituted a Civil Revision against this order in this Court, which was registered as Civil Revision No.168 of 1979 and was dismissed on 7th December, 1984. The parties in the revision accepted that a sum of Rs.12,500/- as the amount settled in the compromise has been deposited in the Chamba Treasury on 6th September, 1979 i.e. the very next day of the compromise. The point of challenge the order in the revision was based on the sole ground that the learned Rent Controller could only pass an order in accordance with the provisions of the Himachal Pradesh Urban Rent Control Act, 1971 ordering eviction or dismissing the petition. The order of the Rent Controller accepting the compromise declaring Shri Charan Dass, appellant herein, as the owner was beyond the jurisdiction of the learned Rent Controller. Dealing with both these aspects this Court held:- “I feel that there is substance in the contention of the learned counsel for the respondent. It is an apparent fact that this intentment behind the enactment of the Act is to safeguard the interest of the tenants. Now in the instant case it 3 was the landlord/revisionist who sought the eviction of the tenant on certain grounds open to him under the Act and if during the course of the proceedings he voluntarily entered into a compromise with the tenant whereby he transferred his proprietary rights in respect of the premises on certain terms and conditions and if those terms and conditions are accepted by the parties and the order is passed in terms of the compromise, I do not think that such an order is vitiated by any illegality. I also feel that this revision petition is not maintainable, on the facts of the present case. The revisionist had made an offer to the respondent that in case he paid a particular amount within the stipulated period, the petition shall be deemed to have been dismissed and the ownership of the premises would vest in the respondent. Admittedly this condition has been fulfilled by the respondent and the result is that by virtue of this order the eviction petition of the revisionist stood dismissed. Now in these circumstances if the revisionist wanted to challenge this order which has resulted in the dismissal of his petition, he should have filed an appeal against this order to the appellate authority which course was open to him in accordance with the provisions of Section 21(I)(b) of the Act. This Court has also held in State of Himachal Pradesh Versus Smt.Ruldi (I.L.R.Him.Series, 1979, 29) that an order of this nature is final in character which is subject to appeal under the provisions of clause (b) of sub-section (i) of Sec.21 of the said Act and if such an order has 4 not been challenged in appeal, the revision against it is not maintainable. In view of the above, I find no merit in the revision petition and the same is dismissed with no order as to costs. December 7, 1984 Sd/- R.S. Thakur,J.” 5. Not satisfied, the respondent preferred a Special Leave Petition before the Supreme Court which petition was also dismissed. In other words, the legality of the order passed by the Rent Controller was no longer in doubt. There was no question of having this order reopened on any ground once it had attained finality. 6. The appellant preferred an Execution Petition before the Rent Controller which was allowed for the reasons that the respondent had failed to fulfill the terms of the compromise. Thereafter, Civil Revision No.169 of 1989 was filed in this Court challenging the execution of the order. The Court again reiterated the same facts as noticed in the earlier Civil Revision No.168 of 1979, but after hearing learned counsel for the parties, the Court noted that counsel for the appellant herein rightly conceded that the remedy was not by way of execution proceedings. This order was passed on 10th January, 1990. One more observation has been made by the Court which is that the premises had collapsed. 5 7. It is after that the appellant herein instituted the suit out of which this appeal arises. The learned trial Court, settled ten issues. On the question, “as to whether the appellant herein had become owner of the premises, the learned Court held that the order did not in any manner confer any proprietary rights on the plaintiff, in order to arrive at this conclusion the learned trial Court held that the statement of the defendant as recorded by the learned Rent Controller did not in any manner state about passing the ownership on to the plaintiff. The Court then proceeds that the order passed in CR No.169 of 1989 substantiated this finding. The Court holds that it was conceded on behalf of the appellant herein, before this Court that execution was not the correct remedy. The Court concludes that the appellant herein was required to institute a suit for specific performance to the contract, if any, and then relying upon the decision in Gurpreet Singh vs. Chatur Bhuj Goel; AIR 1988 SC 400 held that the compromise is illegal and the suit was dismissed. The Court also holds that the case put up by the plaintiff that the house has been un-authorizedly pulled down was not correct. 8. In appeal, the learned appellate Court again adjudicated on the compromise of 5.9.1979. On the judgment of the Rent Controller and the two statements Exs.P-4 and P-5, the learned appellate Court holds that 6 the order passed by this Court on 7.12.1984 in CR No.168 of 1979 while putting at rest the controversy, as to whether the compromise was vitiated by any illegality, did not lead to the conclusion that the High Court held that the compromise dated 5.9.1979 was valid. The learned Judge observes that the order of the High Court simply means that the Rent Controller had jurisdiction to decide the rent petition on the basis of the compromise which had been arrived at between the parties. According to the learned Court, the compromise had to be determined in terms of the provisions applicable thereto and for this the learned Court, turned to the provisions of Order 23 Rule 3 of the Code of Civil Procedure and a decision in Gurpreet Singh’s case supra, dismissed the appeal. 9. What I find strange from the reasoning of the judgment of the two Courts below is that they re- appreciate the legality of the order passed by the Rent Controller and interpreted by this Court in two judgments one of them having been affirmed by the Supreme Court and then ascribing their own meaning to it. This exercise is not permissible in law. The validity of the order had already been adjudicated by the Court and it was none of the business of the trial Court and the appellate Court to have turned to another interpretation more especially when a Superior Court had affirmed the order. This appeal stands admitted on five substantial questions of law as formulated:- 7 “1. Whether in view of the statements of the parties Exts.P4 and P5 the compromise Ext.P6, the order dated 5.9.1979 passed by the Rent Controller which has been up-held by the High Court and the Supreme Court and deposit of Rs.12,500/- by the appellant on 6.9.1979, the plaintiff had become owner of the building and the material and it was open to the defendant to have demolished the same of which the plaintiff was earlier tenant? 2. Whether in the facts and circumstances of the case when the plaintiff was in possession of the property and had in pursuance to the lawful compromise which has been up-held by the Hon’ble Apex Court, the defendant could demolish the house and set up a title in himself and the plaintiff could succeed in the suit for possession and recovery of damages? 3. Whether in the facts and circumstances of the case, the plaintiff had proved that he had suffered a loss of rupees 22000/- which suit of the plaintiff has been wrongly dismissed? 4. Whether the mere circumstance that the sale had not been registered in pursuance to the compromise which had been acted upon, the plaintiff had not acquired any title and the defendant could dis-possess the plaintiff from the suit property? 5. Whether the documentary evidence Exts.P4, P5 and P6 and the statements of the plaintiff’s witnesses had been 8 misconstrued and wrong inferences drawn from the facts proved on the record which has vitiated the findings? 10. Questions No.1, 2 and 5: All these questions being interlinked are taken up together for discussion. Adverting to Question No.5, there can be no doubt that Exs.P-4, P-5 and P-6, which are the compromise arrived at between the parties and the statements on oath recorded by learned trial Court that the eviction petition would have been deemed to be dismissed in case the amount of Rs.12,500/- was not deposited within a period of ten days from 5.9.1979 and in case it was so deposited in time it would constitute the cost of the premises undoubtedly vests ownership rights in the plaintiff- appellant herein. This has been set at rest by the judgment in CR No.168 of 1979, as noticed above, and affirmed by the Supreme Court. Both the Courts below had no jurisdiction to reinterpret these orders. It was not open to the two Courts below to have reached any other conclusion by their own reasoning superseding the established and concluded findings of the Rent Controller affirmed by this Court and further affirmed by the Supreme Court. 11. Learned counsel appearing for the respondent submits that when Civil Revision No.169 of 1989 was withdrawn by the petitioner herein, he had conceded to 9 the effect that no ownership rights have been confirmed on the petitioner. I cannot persuade myself to accept this interpretation of the judgment by any stretch of imagination as there is no such finding. A contention noted in a judgment urged on behalf of the respondent does not constitute finding. All that the judgment states is that the execution proceedings are not maintainable as a remedy is otherwise. To ascribe any other meaning to a concluded compromise would be to put the clock back by a period of more than 30 years and to put premium on the manipulation of the judicial system. 12. On the question, as to whether the ratio of Gurpreet Singh’s, case supra has been complied with, there is no doubt in my mind that it stand diluted by the judgment of the Supreme Court in Jineshwardas (D) by LRs and others vs. Smt.Jagrani and another, AIR 2003 SC 4596, holding:- 7. We have carefully considered the submissions of the learned counsel appearing on either side. Though, in Gurpreet Singh's case (supra) this Court explained the object and purport of Rule 3 of Order 23 CPC, by laying emphasis on the words, "in writing and signed by parties", to be necessitated in order to prevent false and frivolous pleas that a suit had been adjusted wholly or in part by any lawful agreement or compromise with a view to protract or delay the proceedings in the suit itself. It was also observed therein that as per Rule 3 of Order 23 CPC, when a claim in the suit has been 10 adjusted wholly or in part by any lawful agreement or compromise, such compromise, must be in writing and signed by the parties and there must be complete agreement between them and that to constitute an adjustment the agreement or compromise must itself be capable of being embodied in a decree. The fact that the parties entered into a compromise during the hearing of the suit or appeal was considered not to be sufficient, to do away with the requirement of the said rule and that courts were expected to insist upon the parties to reduce the terms into writing. In Byram Pestonji Gariwala v. Union Bank of India & Others [(1992) 1 SCC 31), this Court while adverting to the very amendment in 1976 to Rule 3 Order 23 CPC, noticed also the effect necessarily to be given to Rule 1 of Order 3, CPC, as well and on an extensive review of the case law on the subject of the right of the counsel engaged to act on behalf of the client observed as follows : "37. We may, however, hasten to add that it will be prudent for counsel not act on implied authority except when warranted by the exigency of circumstances demanding immediate adjustment of suit by agreement or compromise and the signature of the party cannot be obtained without undue delay. In these days of easier and quicker communication, such contingency may seldom arise. A wise and careful counsel will no doubt arm himself in advance with the necessary authority expressed in writing to meet all such contingencies in order that neither his authority nor integrity is ever doubted. This essential precaution 11 will safeguard the personal reputation of counsel as well as uphold the prestige and dignity of the legal profession. 38. Considering the traditionally recognized role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorized agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in court by elimination of uncertainties and enlargement of the scope of compromise. 39. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non-resident persons. It has always been universally understood that a party can always act by his duty authorized representative. If a power-of- attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel possessed of the requisite authorization by vakalatnama, act on behalf of his client. Not to 12 recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated. 40. Accordingly, we are of the view that the words `in writing and signed by the parties', inserted by the C.P.C. (Amendment) Act, 176, must necessarily mean, to borrow the language of Order III Rule 1 CPC. "any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf. Provided that any such appearance shall, if the court so directs, be made by the party in person." (Emphasis supplied) 8. We are in respectful agreement with the above statement of law. Consequently it is not permissible for the appellant, to contend to the contrary. That apart we are also of the view that a judgment or decree passed as result of consensus arrived at 13 before court, cannot always be said to be one passed on compromise or settlement and adjustment. It may, at times, be also a judgment on admission, as in this case.” 13. Learned counsel for the respondents, urged that in second appeal this is not open to this Court to reopen findings of fact. This proposition is well settled in D.R. Rathna Murthy vs. Ramappa, (2011)1 SCC 158, the Supreme Court held:- “9. Undoubtedly, the High Court can interfere with the findings of fact even in the second appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading of the evidence on record or where the core issue is not decided. There is no absolute bar on the re-appreciation of evidence in those proceedings, however, such a course is permissible in exceptional circumstances. (Vide Rajappa Hanamantha Ranoji v. Mahadev Channabasappa, (2000)6 SCC 120, Hafazat Hussain v. Abdul Majeed, (2001)7 SCC 189 and Bharatha Matha v. R.Vijaya Renganathan, (2010)11 SCC 483). 14. What I find is that it is the application of provisions of law on settled facts which require adjudication. The objection is, therefore, overruled. The perversity of the conclusion reached is so glaring when one considers that the trial Courts are sitting in judgment over the concluded findings by this Court as also the Supreme Court. 14 15. But, nonetheless what is evident from the record is that when the respondents have approached this Court firstly against the order in compromise challenging the jurisdiction of the Rent Controller who has passed the order which was ultimately upheld by this Court and the Supreme Court. During this period, they obtained stay and the second time when they came up against execution again they had applied for staying of the order. The effect of these orders was to prevent the appellant herein from effectively exercising his control over the property and if the building has collapsed, that could not be attributed to the fault of the appellant who during the pendency of the interim order passed by this Court could not exercise any of his rights therein. 16. In Karnataka Rare Earth and Another vs. Seniior Geologist, Department of Mines and Geology and Another, (2004)2 SCC 783, the Court holds:- 10. In South Eastern Coalfields Ltd. (supra), this Court dealt with the effect on the rights of the parties who have acted bona fide, protected by interim orders of the Court and incurred rights and obligations while the interim orders stood vacated or reversed at the end. The Court referred to the doctrine of actus curiae neminem gravabit and held taht the doctrine was not confined in its application only to such acts of the Court which were erroneous the doctrine is applicable to all such acts as to which it 15 can be held that the Court would not have so acted had it been correctly apprised of the facts and the law. It is the principle of restitution which is attracted. When on account of an act of the party, persuading the Court to pass an order, which at the end is held as not sustainable, has resulted in one party arising advantage which is would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the Court would not have been passed. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the Court, or (b) to make restitution for what it has lost.” 17. Therefore, in these circumstances, it cannot be held that the appellant herein was not in bonafide need of the premises and that the relief claimed for by him would not be available to him. Once the original order of compromise was held to be enforceable, they would be entitled to restitution of the property. 18. I, therefore, hold that the compromise was final and it was not open the Courts below to place a different meaning on it. I hold that the appellant- plaintiff had become the owner of the suit premises. I must also note that as the suit was filed on the basis 16 that the appellant herein was the tenant of the suit premises, this could obviously imply his possession as either actual or symbolic, otherwise the question of determination of tenancy would not arise. All these questions are decided in favour of the appellant, save and except that there is no ample evidence on the record to establish as to who demolished the premises. 19. Question No.3: I do not find any evidence with respect to the quantum of damages having been proved on the record. This question is, therefore, decided against the appellant. 20. Question No.4: Right from the beginning, after the compromise order had been passed, what I find from the record is that the respondent has been litigating. Two revisions have been preferred in this Court, one was dismissed and the findings were affirmed by the Supreme Court. I have reproduced the findings of the learned Court in extenso. There should be no doubt that the compromise was honoured and the appellant has become owner of the demised premises. So far as the second revision is concerned, it only rules that execution was not the right remedy against the respondent herein and as such the petition was withdrawn. I, therefore, hold that the appellant having become the owner, if he has been dispossessed by the respondents, which is a case 17 set up, then he is entitled to a decree for possession. No case of abandonment has been pleaded or proved. 21. Question No.3: The evidence on this question is not conclusive. It has been noticed by this Court that the premises have collapsed. This question is, therefore, decided against the appellant. 22. Before parting with this appeal, I must notice that the respondent has been clinging on to the litigation with tenacity being in and out of the Court for the last more than 33 years. This is not the manner in which a compromise is to be honoured. What prompted the respondent to do so is not established on the record and I refrain from further observation. This appeal is accordingly allowed. The judgment of the two Courts below is quashed and set aside. A decree in terms of the prayer made by the appellant is passed in favour of the plaintiff and against the