1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2413 OF 1997 Kantilal Haribhai Thakkar & Ors. .. Petitioners versus Dilipsingh @ Appasaheb Dattajirao Shelke (Jagtap) & Ors. .. Respondents Mr.Amit Borkar for Petitioners Mr.N.V.Walawalkar Sr. Advocate with Mr.S.A.Rajeshirke for 2nd and 3rd Respondents CORAM : A.S.OKA, J. DATE : 1st February 2010. JUDGMENT: . I have heard the submissions of the learned counsel appearing for the parties on the earlier date. By this writ petition under Article 227 of the Constitution of India the petitioners have taken an exception to the judgment and order dated 17th March 1997 passed by the executing Court by which application made by the petitioners for execution of a consent decree has been dismissed. 2. According to the petitioners , they are the legal representatives of late Haribhai Thakkar. According to the petitioners, the said Haribhai was in possession of building consisting of two stories situated on C.T.S. No.2122 in the city of Kolhapur and said Haribhai was the tenant in respect of the said building. The respondents who are the owners and landlords had filed a suit for possession of the said premises (hereinafter 2 referred to as the suit premises). The suit was filed for eviction under the provisions of the Bombay Rents, Hotel and Lodging Rates (Control) Act, 1947 (hereinafter referred to as “the said Act”). In the said suit, there was a settlement recorded and a consent decree was passed. In the consent decree various terms and conditions were incorporated. The first clause of the consent decree records that the predecessor of the petitioners had given up his grievances in the written statement. The predecessor of the petitioners accepted that the business of Gujarat Lodging and Boarding in the suit premises has been closed and he was accepting the case made out by the respondents for possession of the suit premises. The third clause in the consent decree records that as per the agreement between the parties, the suit premises excluding a portion abutting the road on the northern side admeasuring 10 ft X 20 ft has been handed over by the predecessor of the petitioners to the respondents including the 1st and 2nd floors. It specifically records that possession of premises on the 1st and 2nd floors above the said area of 10 ft X 20 ft was also handed over to the respondents. Clause 3 further provides that as per the map annexed to the consent terms walls shall be constructed by the respondents by demolishing certain walls and possession of the area of admeasuring 10 ft X 20 ft on the ground floor shall be handed over by the respondents to the predecessor of the petitioners within a period of three months from the date of the consent terms. It was provided that if the respondents failed to hand over area of 10 ft X 20 ft after carrying out construction within a period of three months, the predecessor of the petitioners will be entitled to seek possession of the premises on the 2nd floor of the suit premises and after the premises on the ground floor admeasuring 10 ft X 20 ft are 3 constructed, the predecessor of the petitioners will be under an obligation to return the possession of the premises on the 2nd floor. It was provided that within a period of three months from the date of the consent terms, the respondents will hand over possession of the tenement admeasuring 10 ft X 20 ft to the petitioner’s predecessor as a tenant . Clause 4 provides that for the purposes of converting the area of 10 ft X 20 ft into a gala, the respondents will have to demolish certain existing walls at their costs and will have to construct new walls. It also provided that the respondents will have to fix a rolling shutter to said gala and costs of the said rolling shutter shall be shared equally by the parties. The consent terms further provided that the predecessor of the petitioners will arrange for water and electricity supply to the said premises admeasuring 10 ft X 20 ft and will also construct a W.C if necessary in the said premises. Clause 7 of the consent terms provides that the tenement admeasuring 10 ft X 20 ft (hereinafter referred to as the new premises) shall be used by the predecessor of the petitioners for the purposes of business and the same shall not be assigned to any third party. It was provided that even if the predecessor of the petitioners takes a partner for carrying out business, the partner will not have any right of tenancy. Further clause in the consent term provided that monthly rent in respect of the new premises shall be Rs.275/- which is reasonable rent and the parties have arrived at the said figure after considering all the aspects. It was provided in the consent terms that the predecessor of the petitioners will not make any grievance about the said rent amount. It was provided that the 2nd defendant in the suit shall not be concerned with the new tenement and will not be entitled to claim any tenancy rights in respect of new tenement. 4 3. The predecessor of the petitioners filed an execution application for executing the said decree. Assistance of the Court was sought for the purpose of directing respondents to hand over possession of the new premises to the predecessor of the petitioners. It was contended that the said new premises was handed over to the respondents only for the purpose of carrying out repairs therein and tenancy of the premises continued to be with the predecessor of the petitioners. 4. An objection was raised to the said execution application by the respondents. It was contended that the tenancy of the predecessor of the petitioners in respect of the suit premises came to an end by virtue of consent decree and that a new agreement was entered into in respect of shop premises (new premises) which was incorporated in the consent terms. It was contended that new tenancy was created in respect of new premises with effect from 1st April 1982 and in fact standard rent in respect of new premises have been fixed under the consent decree. It was submitted that the compromise decree in so far it relates to agreement for handing over new premises was beyond the scope of the provisions of the said Act as the effect of the consent decree is that an agreement to create a fresh tenancy in respect of new premises was executed in favour of the predecessor of the petitioners. It was submitted that there is no decree for possession passed in respect of the new premises under the provisions of the said Act of 1947. Thus, in short it was contended that the decree was nullity in so far as possession of the new premises is concerned and in any case it was not enforceable. By the impugned order, the learned executing Court 5 observed that the terms of the compromise were inconsistent with the provisions of the said Act of 1947 and there was no provision in the said Act of 1947 by which the predecessor of the petitioners could have asked for possession of the new tenement as there was no decree under clauses h, hh, or hhh of section 13(1) of the said Act of 1947. The trial Court observed that the consent decree merely records an agreement between the parties for creating a new tenancy in respect of new premises and therefore the same cannot be enforced by filing an execution application. 5. The learned counsel appearing for the petitioners invited my attention to relevant clauses in the consent decree. He submitted that the tenancy rights of the predecessor of the petitioners in respect of tenement admeasuring 10 ft X 20 ft continued to exist and at highest there was a decree for possession in respect of rest of the premises. He submitted that the respondents had agreed to carry out necessary changes in the said area of 10 ft X 20 ft. However, there was no termination of the tenancy by the respondents as regards the said area. He submitted that as there was no termination of tenancy in respect of said area of 10 ft X 20 ft, a Court exercising jurisdiction under section 28 of the said Act of 1947 always had jurisdiction to pass a decree directing delivery of possession of the said premises admeasuring 10 ft X 20 ft to the tenant as the tenancy rights of the tenant continued to exist. He placed reliance on a decision of Division Bench in the case of Krishna Laxman Yadav & Ors. Vs. Narsinghrao Vithalrao Sonawane & Anr (AIR 1973 Bom 358) which in turn relied upon a decision of the Full Bench of this Court. He also 6 placed reliance on the decision of the Full Bench in the case of Dattatraya Krishna Jangam Vs. Jairam Ganesh Gore (AIR 1965 Bom 177). He submitted that a suit between the tenant and landlord relating to possession of the rented premises was maintainable in the Court which has passed a decree and therefore there is rightly a decree passed in respect of possession of the said area of 10 ft X 20 ft in respect of which tenancy of the petitioners subsists. He also placed reliance on a decision of the Apex Court in the case of Prithvichand Ramchand Sablok Vs. S.Y.Shinde [(1993) 3 Supreme Court Cases 271]. He relied upon decision of Division Bench of this Court in the case of Tejabai Tejshi Dedhia & Ors. Vs. Central Bank of India & Ors [2007(5) Maharashtra Law Journal 869]. Lastly, he relied upon another decision of the Apex Court in the case of T.K.Lathika Vs. Seth Karsandas Jamnadas [(1999) 6 Supreme Court Cases 632]. 6. The learned senior counsel appearing for the respondents submitted that on plain reading of the consent decree it records an agreement to let out premises admeasuring 10 ft X 20 ft and it is an agreement it is executory in nature. He placed reliance on decision of the Apex Court in the case of Tolaram Relumal Vs. State of Bombay (AIR 1954 Supreme Court 496). He submitted that the agreement is nothing but an agreement to create lease in future. He placed reliance on decision of this Court in the case of Chunnilal Radheshyam & Sons Vs. Amin Manilal & Co Pvt Ltd & Ors [1982(1) Bom.C.R.35]. He submitted that the decree was not executable and therefore the Court below was justified in dismissing the execution application. 7 7. I have carefully considered the submissions. The consent terms will have to be closely scrutinised. The suit for eviction was filed by the respondents against the predecessor of the petitioners relating to a building consisting of two stories which was used for running business of Gujarat Lodging and Boarding. The decree for possession was sought on the ground of default, bonafide requirement , subletting and non-user under the provisions of the Bombay Rents, Hotel and Lodging House (Rates) Control Act, 1947. The first clause of the consent terms records that the 1st defendant (predecessor of the petitioners) has given up all his contentions in the written statement. The second paragraph records that the business of Gujarat Lodging and Boarding was closed and the demand made by the plaintiffs for possession was proper. The first part of clause No.3 records that except an area of 10 ft X 20 ft on the ground floor abutting road on the northern side , the entire suit premises consisting of ground, 1st and 2nd floor has been handed over to the respondents . This part indicates that possession of area of 10 ft X 20 ft was not parted with by the predecessor of the petitioners but the further part of clause No.3 records that a plan has been annexed to the consent terms and the respondents agreed to remove existing walls and put up new walls as shown in the map. It further records that the construction shall be carried out by the respondents within a period of three months and possession thereof shall be handed over to the predecessor of the petitioner. It further records that if possession was not handed over within three months, the predecessor of the petitioners will have right to occupy a premises on the second floor and that he will have to vacate the premises on the second floor after obtaining possession of the premises on the ground floor. 8 8. Clause 4 of the consent terms reiterates that new premises having area of 10 ft X 20 ft was to remain with the predecessor of the petitioners as a tenant and the respondents have agreed to remove certain walls and to put up new walls. It records an agreement that a rolling shutter shall be fixed to the new premises and costs of the rolling shutter shall be shared by the parties. The rolling shutter was to be fixed by the respondents. Clause 7 records that the new premises are to be used by the predecessor of the petitioner for business purposes and the same shall not be assigned to any third party. It also records that if any partner is taken by the predecessors of the petitioners, the partner will not have any right in respect of new premises. Clause 7 is very important which records that after considering pros and cons and after deliberations the parties have agreed that the rent of the new premises admeasuring 10 ft X 20 ft shall be Rs.275/- which is a reasonable rent. The said clause further records that the rent shall be payable with effect from 1st April 1982. The decree was passed in terms of the consent terms on 5th February 1982. Paragraph 11 of the consent terms reiterates that agreed rent of Rs.250/- was the standard rent in respect of suit premises and the predecessor of the petitioners shall not be entitled to make any grievance about the same. Thus, by the consent terms , rent was fixed in respect of new premises. Moreover, certain terms and conditions of the tenancy such as user of the new premises and embargo on assignment have been incorporated in the consent terms. If clause 3 is read with clause 4 of the consent terms, it is apparent that even possession of the area of 10 ft X 20 ft was parted with by the predecessor of the petitioners as the said clauses record that the 9 respondents were under an obligation to demolish the existing walls and to construct certain walls as annexed to the map in the consent terms. The possession of such newly constructed new premises was to be handed over within three months. The consent terms further record that rent at the rate of RS.275/- per month will be payable from a future date i.e., 1st April 1982 . 9. Therefore, on the plain reading of the consent decree what is provided is that the predecessor of the petitioners gave up his defences in the written statement, accepted the grounds of eviction which included a grounds of non- user, arrears of rent etc and handed over possession of the entire premises. The consent terms record an agreement between the parties that the respondents will carve out an area of 10 ft X 20 ft by demolishing existing walls and by constructing new walls and the same shall be placed in possession of the predecessor of the petitioners at the monthly rent of Rs.275/- which was payable from 1st April 1982. Thus, on the date on which consent decree was passed, said premises admeasuring 10 ft X 20 ft was not ready and that possession thereof was to be handed over within three months. The consent terms record that the agreed rent shall be the standard rent in respect of new premises which shall be payable from a future date i.e 1st April 1982. 10. In the case of Tolaram (supra), the Apex Court had occasion to deal with section 14 of the said Act of 1947. In paragraph 6 the Apex Court has held thus: “6. Section 18(1) provides: “If any landlord either himself or through any person acting or purporting to act on his 10 behalf.... receives any fine, premium or other like sum or deposit or any consideration, other than the standard rent ... in respect of the grant, renewal or continuance of a lease of any premises ... such landlord or person shall be punished......” in the manner indicated by the section. Under the section the money must be received by the landlord in respect of the grant of lease. This section, refers to the `grant’, renewal or continuance of a lease”. `Prima facie’, it would not cover an executory agreement to grant a lease. The words “renewal or continuance of a lease” clearly suggest that there must be a renewal or continuance of a subsisting lease. In the context, grant of tenancy means the grant of new or initial tenancy; renewal of tenancy means the grant of tenancy after its termination; and continuance seems to contemplated continuance of a tenancy which is existing. Whether or not an executory agreement for grant of a lease comes within the ambit of the section by reason of the use of the words “in respect of” would be examined hereinafter. Before doing so it may be stated that an instrument is usually construed as a lease if it contains words of present demise. It is construed as an executory agreement, notwithstanding that it contains words of present demise, where certain things were to be done by the lessor before the lease is granted, such as the completion or repair or improvement of the premises, or by the lessee, such as the obtaining of sureties, (vide Halsbury’s Laws of England. Second Edition Vol.20 pp.37-39). On the facts of this case therefore the Full Bench very rightly held that the oral agreement made between the parties did not constitute a lease but it amounted to an agreement to grant a lease in future.” In the present case, certain steps were to be taken by the respondents-land lords before delivery of possession of the new premises. They were to demolish the existing walls and construct new walls. 11. The entire argument of the learned counsel appearing for the petitioners is that the tenancy in respect of new tenement admeasuring 10 ft X 20 ft was never determined and the predecessor of the petitioners continued to be in possession of the said area. Therefore, his contention is that the decree is a decree for possession in respect of a premises to which provisions of the said Act of 1947 are applicable in respect of which the predecessor of the petitioners was admittedly the tenant. Therefore, he placed reliance on the decision of Full Bench of this Court in the case 11 of Dattatraya Jangam (supra) and submitted that the suit being one between a tenant and a landlord relating to premises let out to the predecessor of the petitioners to which provisions of the said Act of 1947 were applicable, the Court dealing with a suit under section 28 was empowered to pass a decree for possession in respect of said new premises. The learned counsel has ignored the fact that the predecessor of the petitioners submitted to the decree for possession by accepting the grounds pleaded in the suit for eviction and as a result of a decree being passed under the said Act of 1947, the earlier tenancy of the predecessor of the petitioners stood determined and what has been incorporated in the consent terms is an agreement to let out the new premises in future after the said premises are made ready by the respondents. Even the terms and conditions of the new tenancy including the rent have been incorporated in the consent terms and that the rent is made payable from a future date. Therefore, the learned senior counsel appearing for the respondents is right when he submitted that the agreement incorporated as regards the said new premises in the consent terms was an executory agreement which is nothing but an agreement to create tenancy at a future date. A Court dealing with a suit under section 28 of the said Act of 1947 can entertain a suit between landlord and tenant relating to possession of a premises let out to which provisions of the said Act of 1947 are applicable. On the date on which decree was passed, the tenancy relating to the new premises admeasuring 10 ft X 20 ft was not in existence. It was to come into existence at a future date. Therefore a Court exercising limited jurisdiction under the said Act had no jurisdiction to pass a decree in respect of new premises in as much as on the date of decree there was no tenancy in respect of new premises in 12 existence. 12. Therefore, the trial Court was justified in taking view that the decree was not executable being beyond the scope of powers of the Court under section 28 of the said Act of 1947. 13. There is no merit in the petition. The petition is dismissed. Rule is discharged. It is made clear that only the adjudication made by this judgment and order is as regards executability of the decree. Remedies, if any, of the petitioners to enforce the agreement incorporated in the consent decree are expressly kept open. (A.S.OKA,J)