SMT. PARVATIBAI SUBHANRAO NALAWADE v. '....

ANWARALI HASANALI MAKANI AND ORS. ETC. - "'

DECEMBER 20, 1991

[LALIT MOHAN SHARMA, J.S. VERMA AND S.C. AGRAWAL, JJ.]

Code of Civil Procedure, 1908:

Order 21, Rule 97-0bstruction to execution of consent decree for recovery of possession of premises by the tenant-Writ Petitions IJy Obstruc-

-~ c tionists-Maintainability of-Whether High Court justified in entertaining the Petitions and deciding merits of dispute against tenant.

Constitution of India, 1950:

D Articles 226 and 227-Dispute relating to immovable property governed by ordinary civil law-Whether High Court could exercise its special jurisdiction.

In terms of the consent decree passed by the trial court in the suit for eviction of the tenant-the' appellant's deceased father-from the portion of

E the building belonging to respondent No. 3 Bank, the tenant was to vacate the premises, and on demolition of the old building and construction of new building, the landlord was to give possession of an identical (equal) area as in the original premises to the tenant. The right of the tenant to an identical area was an essential condition. While the tenant complied with his part of the compromise by handing over the premises, the respondent ....

F Bank did not respect its undertaking by giving possession of an identical area to the tenant on completion of the building. Hence, the tenant made an application for restoration of possession, which was dismissed by the trial court as not maintainable. The matter ultimately went to the High Court which, though over-ruled the respondent's contention that the decree was not executable, held that the appropriate remedy for the tenant G was by way of execution of the consent decree, and remitted the matter for

,,.J.._ disposal, treating it as execution proceedings. However, respondents No.1 and 2 who had been inducted in the new building, resisted the delivery of

""]111111 possession. Consequently, the appellant filed an application under Order 21, Rule 97 of the Code of Civil Procedure, which was allowed by the sma II causes court. On rejection of their appeals by the District Judge, respon- H dents No. 1 and 2 and another person filed Writ Petitions before the High

SMT. PARVATIBAI v. A.H. MAKANI 559

CourL Though the High Court rejected various grounds raised by the A respondents it held that the tenements in possession or the respondents/ petitioners were not comparable to the premises in possession of the tenant in the old building and expressing its displeasure on the appellant's attitude in rejecting the offer made by the landiord concluded that the Writ Petitioners-respondents deserved sympathy. Hence the appeals, by special leave, by the tenant's legal heir.

Allowing the appeals and remitting the matter to the executing

i- Court, this Court,

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HELD: 1.1 The High Court was not justified either in entertaining the writ petitions or the respondents or in deciding the merits of the C dispute against the appellant. (562 A]

1.2 Instead or honouring the pledge given by it in the form or an "undertaking" to give an identical area in the new building to the tenant, in terms of the compromise reached, the respondent-Bank inducted the writ petitioners-respondents and did not make any offer to the tenant or D after his death to his heir until the matter reac.hed the High Court on the second occasion and the writ petitions were being argued after more than two decades. Therefore, there is no conceivable reason to condemn the appellant for her insistence for the benefits under the consent decree or tor any sympathy with the landlord-Bank or the Writ Petitioners before the E High Court who took advantage of the situation. (562 BC]

1.3 The right of the appellant under the consent decree cannot be defeated in view or the final determination by the High Court on the earlier occasion, and the respondent-Bank is liable for making its undertaking good as well as for any suitable compensation for the gross delay or F more than two decades since the completion of the new building. (5620]

1.4 As to the identification of the particular area in the new building to be allotted to the appellant, the matter is remitted to the executing court for reconsideration after permitting the parties to give any additional evidence they desire to offer without delaying the proceeding and to G execute the decree by identifying the premises and giving its possession to the appellant. [562E]

2. In cases relating to immovable properties which are governed by the ordinary civil law, the High Court should not exercise its special jurisdiction under the Constitution unless the circumstances are excep- H tional. (562 G]

A CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5061 & 5062 >.. of 1991. "'

From the Judgment and Order dated 20.6.1990 of the Bombay High Cowt in Writ Petition, Nos~ 3154 & 3867 of 1986.

B V.N.Ganpule and S.Ramachandran for the Appellants.

Ejaz Maqbool ru:id A.M.Khanwilkar for the Respondents.

The Judgment of the Court was delivered by

C SHARMA, J. Special leave is granted.

2. The appellant is the daughter and heir of Shripat Tukaram Jadhav, since deceased, who was in possession as a tenant of a portion of a building belonging to the respondent No. 3. The respondent filed a suit for eviction of Shripat on the ground that he needed the building for demolition and for D reconstruction of a new one, which was disposed of by a compromise between the parties. According to the consent decree the tenant had to vacate the premises, and the respondent-landlord undertook to complete the reconstruction of the new building within a reasonable period and "to give possession of an identical (equal) area as in the original premises to the defendant, on a E monthly rental and the defendant will have a-right to an identical area in the new building". The decree further stated thus:

''The right of the defendant to an identical area is an essential condition to this compromise." ·

F Accordingly the tenant vacated the premises in 1966 and the respondent No. 3 proceeded with the erection of the new building. However, the essential term of the compromise, entitling the tenant to the equivalent area therein was not respected by the respondent in spite of service of a notice served in this regard in November; 1967. Ultimately the tenant made an application for restoration of possession which was dismissed by the trial cowt on the ground G that the same was not maintainable. The tenant took the matter to the first appellate court and thereafter to the High Court in Civil Application No. 1819/ 70; and while it was pending he died, and his heirs were substituted.

3. It was seriously contended on behalf of the respondent that the decree was not executable which was over-rule by the High Cowt by its judgment H dated 17.7.1975. However, it was further held that the appropriate remedy of

SMT. PARVATIBAI v. A.H. MAKANl [SHARMA, J.] 56!.

the tenant was by way of .execution of the c.onsent decree, and the case was A "I accordingly remanded to the trial court with a direction that the.proceedings IL initiated by the tenant would be treated as execution proceeding. The matter, thus, once more came before the first court for the. purpose of execution of.the consent decree, in the proceeding which was renumbered as Execution Case No. 1591/75. ---, B 4 4: In the meantime, the respondent No. 3 inqucted the present respondents 1 and 2 in the new building who resisted the d_elivery of .possession, necessitating the appellant to file an application under Order .21 Rule 97_ of the \- Code of Civil Procedure. out of which the present appeal wises and which was • registered as miscellaneous application No. 696/78 .

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5. The application was opposed by the landlord judgmnt-debtor a~ \\'Cll ....

...., as the. obstructionists on the basis of a large number of frivolous grounds, including the plea that the decree being vague was n_ot executable. The small. causes court rejected the objections correctly, pointing out to the decision of the High Court in Civil Application No. J819/70 and h_olding that neither the D landlord nor his nominees were entitled to reagitate the quetions fif!ally setlle<l~,

~- . by the High Court in favour of the appellant.

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6. The obstructionists, ho"".ever, did not give up and carried the matter in - appeal before the District Judge, Pune, once n-iore raising several technical grounds against the maintainability of the proceeding which were rejected by E the District Judge. Two writ petitions; thereafter, were filed by the obstructionists and another person, all claiming to have-been inducted by the respondent No. 3 in the new building as tenants. The High Court dismissed all the grounds ....( raised in the writ petitions in view of the earlier findings of the High Court in Civil Application No. 1819/70, except one, namely, whether the decree could be executed by ejecting the writ petitioners from the areas in their possession: F

7. After referring to the report of the Commissioner, appointed by the executing court, and other materials the High Court observed that the available evidence on the record did not positively establish that the tenements in -y possession of the writ petitioners were comparable to the premises in posses-

.,.._. sion of the tenant in the old building. The Court also mentioned the offer made G, by the landlord respondent No. 3 which wac; not acceptable to the present appellant and expressc; d iLc; displeasure on her attitude, PrQceeding further, the ' - . learned Judge attempted to analyse the situation f()r finding out th~ compara- Live hardship to the parties and came to the conclusion that the writ petitioners deserved sympathy and there was no justification for the appellant to reject the. offer made by the respondent No. 3 Bank. On these considerations the rule. was H.' made absolte against the appellant by the impugned judgment.

8. We have .heard the learned counsel for the parties and have considered the relevant circumstances, and in our opinion the High Court was notjustificd ,.. either in entertaining the writ petitions or in deciding the merit.S of the dispute against the appellant In pursuance of a solemn compromise reached py the tenant(appellant's father) imd the landlord-respondent No. 3 the possession of the premises was handed over to the landlord in 1966 on the express stipula- B tions that on the construction of the new building the tenant would get an identical area therein. The fresh construction was completed in 1967 and instead of honouring the pledge given by it in the form of an "undertaking'' the

respondent~Bank inducted the writ petitioners therein and did not make any I offer to the tenant or after his death to his heir until the matter reached the High Court on the sond occasion and the writ petitions were being argued in 1990. c We do not, therefore, think that there is any conceivable reason to condemn the

~- appellant for her insistence for the benefits under the consent decree or for any ·-" sympathy with the landlord-Bank or the writ petitioners before the High Court who took advantage of the situations.

9. So far the merits of the matter are concerned, it must be clearly understood that the right of the appellant under the consent decree cannot be defeated in view of the final determination by the High Court on the earlier \'" occasion in Civil Application No. 1819/70 and the respondent-Bank must be held liable for making its undertakirig good as well as for any suitable _,. compensation.for the gross delay of more than two decades since 1967. !

10. As to the identification of the particular ar~ in Jhe new building to be allotted to the allant. the parties have l~ some evidence, but since we - have not examined the same, we cannot take .a final deci$ion on, merits .. The judg111ent of ¢e learned District Judge appears to be sketchy so far as. this r - ast is concerned, and we, in the circumstances, remit the matter. to the

F executing .court for reconsideration after permitting. the parties to give any additional evidence they desire to offer without delaying the proceeding and to

execut~ the ~Jecree by identifying the premises and giving its possession tO the appellant. Before closing this judgment we would like to emphasist'. thl!t in cases relating to irnmovable propertis whieh are governed by the ordinary civil law the High Court should.not exercise its SpC(; ial jurisdiction under the ; v-.....

G Constitution unless the circumstarices are <?xceptional. This aspect hasbee11 -~ discussed by this Court earlier on several occason.s

11. In the result the appeals/are allowed and the case is remitted to the executing court fo~ proceeding with the cai; e expeditiously as indicated earlier.

The cost of these appealsassessed at Rs. 5,000 shall be paid by the respondent- Bank to the appellant. ..

N.P.V.

Appeal allowed.