CRA/180219/1995 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL REVISION APPLICATION No. 1802 of 1995 HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= HINDUSTAN EARTH MOVERS PVT. LTD. - Applicant(s) Versus GUJARAT TRACTORS CORP. LTD. - Opponent(s) ========================================================= Appearance : MR BHARAT JANI for Applicant(s) : 1, MR NK MAJMUDAR for Opponent(s) : 1, MR SM SHAH with MS ARCHANA AMIN for MK VAKHARIA for Opponent(s) : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 21/10/2008 ORAL JUDGMENT 1.0 This revision application is directed against the judgement and CRA/180219/1995 2/16 JUDGMENT order dated 25th August 1995 passed by learned Extra Assistant Judge, Vadodara in Regular Civil Appeal No.84 of 1991 whereby the appellate court has dismissed the appeal and confirmed the order passed by learned 2nd Additional judge, Small Cause Court, Vadodara in Execution Petition No.258 of 1981 on 13th August 1991. 2.0 The petitioner is a private limited company. The petitioner had hired certain open land and superstructures from their landlord- Hindustan Tractors Limited, Vadodara. Certain disputes arose between the parties and therefore the Hindustan Tractors Limited (hereinafter referred to as the Landlord) filed Special Civil Suit No.88 of 1975 in the court of Civil Judge (S.D.), Vadodara for recovery of possession under the provisions of the Bombay Rent Act. Thereafter, in view of establishment of Small Causes Court, the aforesaid suit was transferred to Small Causes Court, Vadodara, which was numbered as Rent Suit No.542/77. The prayer in the said suit was only for possession and not for arrears of rent. Therefore another suit being Rent Suit No.543/77 came to be filed by the Landlord against the petitioner in the Small Causes Court, Vadodara. Ultimately, both the suits were separately compromised and consent decrees were drawn between the parties. 2.1 By way of compromise, some part of the rented premises was handed over to the landlord and new rent was fixed at Rs.4845/-. Since different sizes of the premises remained with the tenant, even the original premises had undergone a change. Therefore entirely a new agreement of lease, fixing different rent for different premises than the original one had come into existence between the parties by way of the aforesaid consent terms which were reduced in writing. Later on the Landlord filed execution proceedings being execution Petition CRA/180219/1995 3/16 JUDGMENT No.258/81 against the petitioner for recovery of possession on the ground that the petitioner-tenant had not paid three installments regularly and therefore they were entitled to recover possession by execution of the decree. Execution Petition No.257/81 was filed in respect of the consent terms regarding the suit for arrears of rent. Both the aforesaid suits were heard together by learned 2nd Additional Judge, Small Causes Court, Vadodara and by judgement and orders dated 13th August 1991 issued warrant for possession against the petitioner. The Court has also passed order regarding attachment of the property by executing one and half amount surety of the property. 2.2 Feeling aggrieved by the aforesaid judgement and order dated 13tgh August 1991 the petitioner filed Regular Civil Appeal No.81 of 1991 in the District Court, Vadodra. The learned Extra Assistant Judge, Vadodara, dismissed the said appeal by judgment and order dated 25th August 1995 against which the present revision has been filed. 3.0 Learned Advocate for the petitioner submitted that in view of the provisions of section 47 of CPC, the question about executability and/or that the decree is inexecutable is required to be considered by the Executing Court. 3.1 According to him this was not considered by the executing Court. Learned Advocate submitted that so far as arrears of rent is concerned, it was a separate suit altogether being Rent suit No.543/77. Therefore, so far as possession suit was concerned, there was no demand of rent, there was no question of passing a decree for arrears of rent and therefore there was no question of executing the decree for possession so far as arrears of rent is concerned. Learned Advocate further CRA/180219/1995 4/16 JUDGMENT submitted that so far as Rent Suit No.542/77 is concerned, it was only on the ground of bona fide requirement, nuisance and annoyance and therefore so far as compromise regarding arrears of rent is concerned, it was merely an adjustment between the parties. 3.2 Apart from that certain portion of the land was already parted by the judgement-debtor. He has further submitted that when the rent is newly fixed, it was clearly a new lease and therefore all the proceedings of section 12(2) of the Rent Act, etc. were required to be followed. 4.0 Learned Advocate for the petitioner has relied upon the following decisions: 4.1 In the case of Kiran Singh and others Vs. Chaman Paswan and others, reported in AIR 1954 SC 340 it has been observed that it is a fundamental principle that a decree passed by a court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the Court to pass any decree cannot be cured even by the consent of parties. 4.2 In the case of Urban Improvement Trust Vs. Gokul Narain and another, reported in AIR 1996 SC 1819 It is held as under: The question then is, whether the objections can be raised in execution? This controversy is no longer res integra. In Sushil Kumar Mehta V. Gobin d Ram Bohra (Dead) through CRA/180219/1995 5/16 JUDGMENT his LRs (1990)1 SCC 193, a three Judge Bench of this Court was to consider whether the nullity of a decree can be raised in execution. Under the Haryana Urban (Control of Rent and Eviction) Act, 1973 the building was governed by the provisions of the said Act. The Civil Court granted decree of eviction. When objection was raised in execution the executing Court rejected the same. On appeal, this Curt had held that a decree passed by a Court without jurisdiction over the subject matter or on any other ground which goes to the root of its exercise of jurisdiction or inherent jurisdiction, is a nullity. A decree passed by such a Court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the Court to pass a decree which cannot be cured by consent or waiver of the party. 4.3 In the case of Chandrika Misir and another Vs. Bhaiyalal reported in AIR 1973 SC 2391, it has been held that, “Where the Court is inherently lacking in jurisdiction the plea as to jurisdiction may be raised at any stage, even if it was not raised in trial court. Such a plea can be raised even in the execution proceedings on the ground that the decree is a nullity. 4.4 In the case of Sarwan Kumar & Another Vs. Madan Lal Aggarwal, reported in (2003)4 SCC 147 has been held that, “Decree passed by civil court lacking inherent jurisdiction to entertain the suit in view of specific bar contained in special Act governing the case, held, would be CRA/180219/1995 6/16 JUDGMENT a nullity and therefore, objection regarding invalidity of such a decree can be raised at any later stage including the stage of execution of the decree or any other collateral proceedings. 4.5 In the case of Smt. Kaushalya Devi & Others Vs. K.L. Bansal, reported in AIR 1970 SC 838, it has been held that, “Decree passed by Court in ejectment suit in terms of compromise, without satisfying itself if the grounds for eviction existed – Decree is in contravention of Section 13 and a nullity and cannot be executed. 4.6 In view of the aforesaid judgements it was contended that even in Execution Application, executability of the decree whether passed by the Court even at invitum or compromise, can be raised in Execution Application for the first time. That consent of the party would not confer the jurisdiction on the Court which it did not have nor can waiver give the jurisdiction to the court and it would not affect the inexecutability of the decree. 4.7 Learned Advocate for the petitioner submitted that the property in question belonged to the Government and therefore it is a public premises within the meaning of definition and therefore an execlusive jurisdiction has been given to the officer appointed under section 3 and the jurisdiction of the Civil Court is barred. 4.8 Learned Advocate submitted that since the Government has dominion over the property a mere entrustment of the property to any other authority, does not cease to belong to the State and in the case of Naresh Kumar Vs. VIth Additional District Judge, Varanasi & Ors reported in 1995 (Suppl.) SC 579, it has been held that only the officer CRA/180219/1995 7/16 JUDGMENT appointed under the Act will have a jurisdiction. 4.9 Learned Advocate for the petitioner pointed out that this Court has taken a view with respect to the provisions of section 16 of the Gujarat Public Premises (Eviction of Unauthorised Occupants) Act that the bar would apply. 4.10 He further submitted tat in the case of Nameklal Narandas Vs. Gajaraben, widow of Chunilal Maneklal reported in 16 GLR page 11, it has been held that “A consent decree would be a forbidden decree as being founded solely on the consent of the parties if it is inconsistent with the mandatory terms of the Rent Act or the Rent Court ignores any of the mandatory fetters before passing the eviction decree. In case of a ground of bona fide personal requirement, Rent Court even in invitum can never pass its eviction decree merely on being satisfied that the landlord had proved his bonafide and reasonable personal requirement of the suit premises. It would have to go into the next question as to the ground of comparative hardship as required mandatory in terms of section 13(2). It was held therein that the decree was nullity as is violative of mandatory… and therefore ultra vires the Rent Act. 4.11 Learned Advocate further submitted that the decree provided for a default clause is a penalty. This contention has been raised before the lower courts. 4.12 In view of the aforesaid submissions, learned Advocate submitted that the Execution Application was not maintainable. 5.0 Mr. S.M. Shah Learned Advocate for the respondent submitted CRA/180219/1995 8/16 JUDGMENT that there was compromise in both the suits and he has relied upon the consent terms which are as under: [a] The parties have worked out the total amount or rent arrears including mense profits and interest payable by HEPL i.e. Petitioner to GTCL i.e. Respondent upto 31st October 1979 comes to Rs.6,43,502/- and the said amount of arrears of rent will be paid by petitioner to the respondent regularly by installments as per he schedule of payment attached to the consent decree (Exh.35) and marked as Schedule-B. [b] The parties have also calculated the amount of interest payable by the petitioner herein to the respondent on the above said amount of Rs.6,43,502 for the period from 1/11/79 to 31/10/84 which is the date of payment of last installment. The amount of Rs.2,48,718/- by way of interest will be paid by the petitioner to the respondent on or before the respective dates mentioned in the schedule attached with the consent decree and marked as Schedule 'B' showing the installments of payments. [c] HEPL i..e petitioner herein also undertakes to pay regularly the monthly rent of Rs.4845 for the remaining portion of the areas coloured in green in schedule 'A' along with the installments of arrears of rent and interest on the respective dates. [d] The parties have prepared a schedule of payment of CRA/180219/1995 9/16 JUDGMENT the amount under sub-clause (a), (b) and [c] of Clause2 which is marked as Schedule 'B' which is a part of consent decree at Exh.35. HEPL agrees that in case of HEPL commits default in paying any 3 installments on due dates the GRCL will be entitled to get back immediate possession of the premises as per Schedule 'A' even before the due dates and will also be entitled to recover whole of the amount payable under sub-clauses (a), (b) and [c] by way of execution of decree through Court and HEPL will be solely liable for all the costs and consequences thereof. HEPL agrees not to raise any objection to either hand over the possession or payment of the balance amount due in case of default. The above right of GTCL to recover the entire amount and get back immediate possession of remaining premises by way of execution of decree shall however be exercised after a grace period of 3 months. 5.1 Learned Advocate submitted that the petitioner failed to pay 3 regular installments, the respondent filed two separate execution applications. 5.2 He submitted that a consent decree was drawn on the basis of the consent terms arrived at between the parties and it is only when the petitioner failed to obey the consent decree the Execution Petition was filed. According to him as per the settled proposition of law the Executing Court has merely to execute the decree as one of the conditions of the consent terms was to take over the immediate possession by way of execution. Therefore he submitted that it can be said that the Executing Court has while acting as per the jurisdiction CRA/180219/1995 10/16 JUDGMENT vested upon it under section 47 CPC, passed an order executing the decree. 6.0 As a result of hearing certain aspects are not in dispute. In the year 1968 there was an agreement between the parties and 2,32,750 square feet of land was let out to the petitioner company for a monthly rent of Rs.6895/- . During the period from 1973 to 1975 the petitioner company failed to make payment of rent and therefore notice dated 22.7.1974 came to be issued under the provisions of Bombay Rent Act. However, even after the issuance of notice the petitioner company did not make payment of amount of arrears of rent and ultimately the respondent company filed Special Civil Suit No.88 of 1975 before Small Causes Court, Vadodara for getting possession of the property, which was renumbered as Rent Suit No.542 of 1977. 6.1 Subsequently Special Civil Suit No.87/1975 came to be filed for recovering the amount of arrears of rent from 1.1.1973 to 31.3.1975 along with interest and damages thereon which was thereafter renumbered as Rent Suit No.543 of 1977. Ultimately there was a compromise between the parties and a consent decree was drawn on 21.12.1979 on the basis of the terms agreed upon by both the parties. The consent terms clearly stipulates the amount of payment and the mode of payment. Clauses [c] and [d] of the compromise decree are relevant which read as under: [c] HEPL i.e petitioner herein also undertakes to pay regularly the monthly rent of Rs.4845 for the remaining portion of the areas coloured in green in Schedule ‘A’ along with the installments of arrears of rent and interest on the respective dates. CRA/180219/1995 11/16 JUDGMENT [d] The parties have prepared a schedule of payment of the amount under sub-clause (a), (b) and [c] of Clause 2 which is marked as Schedule ‘B’ which is a part of consent decree at Exh.34. HEPL agrees that in case of HEPL commits default in paying any 3 installments on due dates the GRCL will be entitled to get back immediate possession of the premises as per Schedule ‘A’ even before the due dates and will also be entitled to recover whole of the amount payable under sub-clause (a), (b) and [c] by way of execution of decree through Court and HEPL will be solely liable for all the costs and consequences thereof. HEPL agrees not to raise any objection to either hand over the possession or payment of the balance amount due in case of default. The above right of GTCL to recover the entire amount and get back immediate possession of remaining premises by way of execution of decree shall however be exercised after a grace period of 3 months.” 6.2 Thus, the petitioner had undertaken to pay the arrears and regularl monthly rent and in case of default the respondent was entitled to get back immediate possession of the premises and to recover whole of the amount payable under sub-clauses (a), (b) and (c) by way of execution of the decree. 6.3 There is no doubt that there is a decree drawn in pursuance of the compromise and it is stipulated that in case of breach of conditions, the respondent can file execution proceedings. 7.0 Under the aforesaid circumstances the respondent filed two separate execution applications being E.P. No.257/81 and 258/81. Both the execution applications were heard together and a consolidated order was passed on 13.8.1991 to issue possession warrant against the petitioner. 7.1 In any case this is a revision under the provisions of section 29(2) of the Bombay Rent Act. Therefore the jurisdiction of this Court is very CRA/180219/1995 12/16 JUDGMENT limited. It is well settled law that while considering the revision the revisional court would not reapprise evidence and come to a different conclusion. It would only see that the lower Court has kept itself within proper bounds and applied correct principles of law to the facts before it and has not committed any irregularity or relied on evidence not on record or which could not be looked into according to law. The revisional Court would see that the lower Court's approach is not manifestly perverse or manifestly erroneous or that its approach is such that no man on earth with reason would arrive at. If correct principles are applied and all points necessary in the evidence is considered by the lower Court, the revisional Court would not interfere, even if other view is possible . On the facts of the case I am of the view that the Executing Court has discussed in detail all the contentions and has passed the order dated 13th August 1991 which was confirmed by the Appellate Court vide order dated 25th August 1995. It is also useful to produce the last para of the appellate judgement as under: 9. In that case, there was only a suit for recovery of arrears of rent and therefore, no question of vacant possession and in that suit, there was some clause or a penalty clause. Therefore, the facts of that case reported in 12 GLR, 492, Vol.12, cited by Mr.Majmudar is not helpful to the facts of the present case. As in the present case, there are two suits, one for recovery of arrears of rent and second for possession of the whole leased plot. So in both suits, compromise decree passed. So in view of the arrears and others, the J.D. has been given time to continue the possession, that concession given in consent decree cannot be said a Novatio or say it is beyond the period but we should not forget it that the original predecessor in title- Pashabhai and present J.D. are relatives and subsequently, Gujarat Tractors has given concession, it does not mean that they had intention to lease the property. In these circumstances, the arguments advanced by Ld. Advocate Mr. Majmudar not convincing to me and there is no any CRA/180219/1995 13/16 JUDGMENT penal clause as argued by Mr.Majmudar. I do not think that rest of the judgement cited by Mr. Majmudar, learned Advocate, required to be discussed in this appeal. Under the circumstances the appeal of the J.D. is hereby dismissed.” Therefore there are concurrent findings of both the courts below and unless any jurisdictional error is pointed out, this court cannot interfere with the said findings. 8.0 There is also no dispute that a consent decree was drawn on the basis of the consent terms arrived at between the parties and it is only when the petitioner failed to comply with the terms of the consent decree the Execution petition was filed. As per the settled law, the Executing Court has merely to execute the decree as one of the conditions of the consent terms. 9.0 Learned Advocate for the petitioner has raised a contention with regard to jurisdiction. However, the point of jurisdiction was not raised before the first court. It is well settled principle that the point of jurisdiction is required to be raised at the first opportunity. It will not be proper to the party to raise such a contention after having acted upon and enjoyed the benefits of such decree. Therefore such a contention is not permissible at this stage. 10.0 In the present case, the Executing Court has merely acted as per section 47 of Civil Procedure Code which cannot in any manner said to be against the provisions of law. In the present case there was nothing to be adjudicated by the court and there is nothing to show that the terms of the compromise was illegal or arbitrary. Therefore there was no impediment in the way of the court to proceed with the execution of CRA/180219/1995 14/16 JUDGMENT the decree. Even otherwise, as per the ratio laid down in the case of Prithvichand Ramchand Sablok V. S.Y. Shinde, reported in AIR 1993 SC 1929 the Executing Court cannot go beyond the decree in question. 11.0 It is required to be noted that the decree in question is a consent decree by recording a compromise between the parties and in that event if any part of the compromise is not satisfied by the terms of the decree, then the party has a remedy under Order 43, Rule 1A(2) of CPC. In the present case the petitioner has accepted the decree and has not availed of the remedy available to it in case of dissatisfaction about the terms of the compromise decree. Therefore now it would not lie in the mouth of the petitioner to state that the petitioner is not in agreement with the terms of the compromise. 12.0 A contention has been raised on behalf of the petitioner that the new lease created by consent decree cannot be considered. In this connection it is relevant to note the decision in the case of State of M.P. Vs. Mangilal Sharma, reported in AIR 1998 SC 743 wherein it is held that the executing court is bound by the terms of the decree in question. Therefore the above contention of the petitioner cannot be accepted as it would amount to adding or altering the decree and also going behind the decree which is not permissible under the law. Apart from that in the consent decree the rate of rent for the premises for which time to hand over vacant possession is given to the petitioner. 13.0 It is required to be noted that before the trial court the parties have agreed to enter into a compromise pursis on the basis of which the decree was drawn and the compromise decree was taken to the executing court. It is well settled principle of law that the Executing Court cannot go behind the decree and even if the same is to be tried as a CRA/180219/1995 15/16 JUDGMENT suit, it is well settled that the contention which were