S.U. Khan, J. - (1.) THIS is landlord's writ petition. Landlord filed suit for ejectment against the tenant, which was decreed through compromise. The suit was numbered as Suit No. 879 of 1974 on the file of J.S.S.G., Varanasi. The copy of compromise is annexed as Annexure 1 to the writ petition according to which Rs. 1000/ - has been paid by the tenant to the landlord outside the Court and remaining arrears of rent were to be paid by defendant No. 1 (respondent No. 2 of the instant writ petition) within a year failing which plaintiff was entitled to recover the amount and to eject defendant No. 1 from the property in dispute in execution. Later on respondent No. 2 did not pay the balance of arrears of rent in terms of the compromise hence execution application for ejectment and recovery of arrears of rent was filed by the landlord. In the said application respondent No. 2 raised objection under section 47 CPC. It was dismissed on 22.10.1981 by J.S.C.C., Varanasi. (The execution case was registered as case No. 43 of 1983). Against the said order respondent No. 2 filed revision being Civil Revision No. 524 of 1981. The revision was allowed by IInd Additional District Judge, Varanasi, through judgment and order dated 4.3.1982 against which this writ petition by landlord is directed. The Lower Revisional Court placing reliance upon the following authorities held that provision of ejectment on failure to pay arrears of rent in the compromise was penal and could not be enforced in view of section 74 of Contract Act. : AIR 1964 Alld 37, : AIR 1969 Alld. 296 (F.B.), 1969 ALJ 279.
(2.) IN the second authority (supra) it has been held that a compromise in suit in nothing but a contract and it shall confirm to the requirements of the Contract Act. In the third authority it has been held that provisions of section 74 of the Contract Act are implied in a compromise decree. However, second and third authorities do not deal with a compromise like the compromise in the instant case. In the first authority the facts of the case were somewhat similar with the facts of the instant case. In the compromise decree it was provided that "the suit is decreed for Rs. 987.5 but dismissed regarding the relief for ejectment and the parties are to bear their own cost, in case the defendant does not pay the aforesaid amount by July 27, 1980 the suit will be, considered to have been decreed for ejectment also and the plaintiff will be entitled to execute the decree for ejectment and arrears of rent". While interpreting the said decree the Court held that the provision of ejectment in default of payment was penal in nature hit by section 74 of the Contract Act and therefore not executable. Learned Counsel for the petitioner has cited, 1985 ALJ 108, which is a Division Bench authority. In the said authority after discussing several authorities including : AIR 1964 Alld. 37, it has been held that a decree for ejectment on the failure to pay the arrears of rent could very well be passed. In the said authority the previous judgment reported in : AIR 1964 Alld. 37 has been distinguished on facts. In my opinion the facts of the instant case are very much similar to the facts of the case of, 1985 ALJ 108 than to the facts of the case of : AIR 1964 Alld 37.
(3.) SECTION 20(2)(a) of U.P. Act No. 13 of 1972 itself provides for ejectment in case of default. Section 20(4) gives one more opportunity to tenant to save his ejectment by depositing the amount on the first date of hearing. By the compromise entered into in between the parties in the instant case, one more opportunity was provided to the tenant to pay arrears of rent within a year, which was not availed, by the tenant. Tenant cannot say that the provision of ejectment in case of default was penal and not enforceable. If the tenancy is not governed by Rent Control Act then tenant can be ejected after termination of tenancy even without any default. If section 114 of T.P. Act is applicable the tenant is entitled to avoid the decree for ejectment by depositing entire arrears of rent etc. on the first date of hearing but not beyond that. When remedy of ejectment on the ground of default in payment of rent is provided for under different provisions of different Acts then it cannot be said to be penal. Giving opportunity to the tenant to save his ejectment on payment of arrears of rent by a particular date is a concession and not penalty. If in the suit giving rise to the instant writ petition no compromise had been entered into then tenant would have been ordered to be ejected through decree on the ground of default. If any such provision was applicable to the tenancy in question which granted concession to the tenant to save his ejectment by depositing the entire arrears of rent etc. on the first date of hearing then tenant would have been liable to ejectment on his failure to deposit the arrears on or before the date of first hearing of the suit. Through compromise the date by which tenant was entitled to deposit arrears of rent in order to avoid decree for ejectment was extended. Grant of time to pay arrears of rent was therefore a concession and not penalty. Tenant cannot be permitted to overstretch the said concession and convert the same into absolute immunity from ejectment even on utter failure to pay rent. If such an interpretation is adopted then section 74 of the Contract Act will come in direct conflict with sections 114 and 114A of T.P. Act and section 20(2)(a) and section 20(a) of UP. Act No. 13 of 1972. Supreme Court in : AIR 1987 SC 1257 has held that "if on a proper construction of a contract it is found that the real agreement between the parties was to the effect that the whole amount was on the date of the bond a debt due but the creditor for the convenience of the debtor allowed it to be paid by installments intimating that if default should be made in the payment of any installments he would withdraw the concession then the stipulation as to the whole amount of the balance becoming payable would not be penal." (Para 5).;