Decided on June 16,1988

Mody Mansukhram Punjiram Appellant


SHAH,J. - (1.)BEING aggrieved and dissatisfied by the judgment and order dated 16th August, 1988 passed by the Extra Assistant Judge, Mehsana in Regular Civil Appeal No. 42 of 1988, the petitioner who is the heir of the deceased tenant has filed this revision application.
(2.)THIS proceeding arises out of the execution application filed by the opponent No. 1 original landlord for executing the decree dated 19th December, 1968 in Regular Civil Suit No. 226 of 1966. That decree is a consent decree wherein the tenant has agreed to hand over possession of the suit shop on or before 1.1.1983. He has also agreed to pay the mesne profits till 1.1.1983. It has been further decreed that up to 1.1.1983 the plaintiff-landlord was not entitled to construct first floor on the suit premises. On 1.1.1983 when the tenant failed to hand over possession of the suit shop, opponent No. 1 landlord had filed Regular Darkhast No. 3 of 1983 before the Civil Judge (J.D.) Vijapur for executing the decree. The execution application was dismissed by the Civil Judge (J.D.) Vijapur by his judgment and order dated 22.2.1984 by holding that the consent decree was inexecutable so, far as prayer for relief for possession of the property was concerned. Against that judgment and decree the petitioner preferred revision application before this Court. This Court directed that no revision application was maintainable but opponent No. 1 could file an appeal before the District Court. Thereafter, opponent No. 1 preferred the aforesaid appeal before the District Judge, Mehsana. The said appeal came up for hearing before the Extra Assistant Judge, Mehsana, who by his well reasoned judgment and order dated 16.8.1988 allowed the said appeal and set aside the judgment and order passed below Darkhast Petition Ex. 1. He had further directed the learned Judge to execute the decree in accordance with law.
At the time of hearing of this revision application the learned Advocate for the petitioner vehemently submitted as under :-

(1) That the consent decree is nullity because there is no specific finding given by the learned Judge while passing the decree that greater hardship would not be caused to the petitioner-tenant if the decree for eviction was passed; (2) That the decree was obtained by opponent No. 1 and his brother Gokaldas. Hence opponent No. 1 alone could not file execution application; (3) That the decree was inexecutable because it was barred by the period of limitation; and (4) That the executing Court ought to have considered the say of the petitioner that at present the landlord does not require the suit shop for his personal requirement.

(3.)THE contention that consent decree is nullity was considered by the learned Extra Assistant Judge and, in my view, he has rightly rejected it. For that purpose the learned Judge has considered the fact that in the suit filed by the present opponent No. 1, the tenant had filed written statement and thereafter, the Court had framed the necessary issues on 9.1.1967. Both the parties produced the documentary evidence in the suit. The deposition of the landlord Gokaldas Dahyabhai was recorded on 17.12.1968 and the evidence of his witness Chimanlal Talakchand was also recorded on 18.12.1968. Thereafter, on 19.12.1968 the deposition of the deceased tenant Mansukhram was also recorded. Subsequently both the parties filed compromise application Ex. 65 in that suit. As per the said compromise application the tenant was given time to vacate the premises till 1.1.1983. That means nearly 14 years' time was given for vacating the suit shop. In the plaint itself it is mentioned that prior to filing of the suit in 1966 Regular Civil Suit No. 1 of 1960 was filed by the landlord for recovering the possession on the ground of personal bonafide requirement. In that suit the District Court had arrived at the conclusion that the landlord's requirement was reasonable and bonafide one, but on the ground of greater hardship the suit was dismissed. It has been further stated in the plaint that thereafter in Mansa town number of vacant shops were available and that the landlord would himself see that the defendant gets one or other alternative shop on rent. On the basis of the averments in the plaint the evidence of the plaintiff and his witness was recorded and thereafter the tenant's evidence was recorded. Subsequently the Court has passed the consent decree. In this view of the matter, it cannot be said that the Court has not considered the legal requirement of Section 13(1)(g) and Section 13(2) before passing the decree under the Rent Act.

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