- (1.) In this application under Article 227 of the Constitution of India challenge is thrown by the petitioner/decree holder/plaintiff to the judgment and order dated 3rd September, 2013 in Title Execution Case no.5 of 2012 passed by the Learned 4th Civil Court (Junior Division) at Alipore.
(2.) The short facts of the case are as follows:- a) That the petitioner as plaintiff filed a suit for declaration and injunction praying, inter alia, for a declaration that she is a tenant in respect of the suit premises and cannot be evicted without due process of law; b) The said suit being Title Suit no.2612 of 2009 culminated into a Compromise Decree between the parties. The parties also entered into Terms of Agreement which were made part of the Decree; c) Order no.9 dated 1st June, 2010 decreeing the suit on Compromise between the parties under Order 23 Rule 3 of the Code of Civil Procedure (for short CPC) reads, inter alia, as follows:- "It is ordered that the suit be decreed in terms of the petition of compromise in so far as they relate to the subject matter of the suit. The petition of compromise and the agreement in between the parties be made part of the decree. Parties to bear their own costs." d) The joint petition of compromise filed by the parties under Order 23 Rule 3 CPC at paragraph 6 thereof reads, inter alia, as follows:- "That the instrument for agreement, prepared by the parties unanimously containing essential and unavoidable terms and conditions for all the parties of the suit, has been filed hereto should be part and parcel of the compromise decree for proper adjudication of the matter and to avoid all complications and disputes in future between the parties and/or their heirs, successors etc." e) Paragraph 7 of the said Compromise petition reads as follows:- "That in pursuance with the petition for compromise and in compliance with the terms and conditions incorporated in the said Agreement the parties herein put their respective hands for implementation of the amicable settlement for development of the entire property including the suit property." f) At paragraphs 8 and 9 of the said Compromise petition the following is pleaded:- "8. That under such change circumstances it would be meaningless to proceed with the said suit for declaration and permanent injunction unnecessarily at the cost of wasting of the Learned Court's valuable time. 9. That the parties hereby undertake with averment that they would pay necessary Court fee abiding by the behest of the Ld. Court. In the above facts and circumstances, it is therefore prayed that Your Honour would graciously be pleased to pass compromise decree making the petition, Instrument of Agreement as part and parcel of the compromise decree for legalization of the amicable settlement for development of the suit property." g) The Instrument of Agreement dated 14th May, 2010 signed by all the parties namely, the petitioner/plaintiff, the opposite parties 1 to 6/owners of the suit property and opposite party nos.7 and 8 the developers of the suit property reads, inter alia, as follows:- "The owners hereby admit and acknowledge the Second Part herein as a bonafide monthly tenant under them in respect of a portion of premises no.57A, Nepal Bhattacharya First Lane (within P.S. Kalighat), Kolkata 700026 consisting of three rooms, one kitchen, one open verandah, one bath-cum-privy etc. at a monthly rental of Rs. 80 (Rupees eighty only) payable according to English calendar month and the owners are acknowledging the said monthly rent from the Second Part herein. And whereas the owners (Parties of the First Part) entered into an agreement for development of the premises no. 57A, Nepal Bhattacharya First Lane (within P.S. Kalighat), Kolkata 700026 with the Third part (the Developers) herein on 29th December, 2008 on the terms and conditions recorded therein. h) The said Instrument of Agreement, inter alia, also contains the following clauses:- "AND WHEREAS, the parties of the First Part/Owners and Third Part/Developer/Promoter approached to the Second Part herein to negotiate with them for development of the said premises with specific undertaking to rehabilitate to her in appropriate manner and an Agreement was executed by the Developer in One Part and Tenant in Other Part and Tenant in Other Part on 6th June 2008 for demolishing the existing Shiva Temple situated in and around the said premises, being premises No. 57A, Nepal Bhattacherjee 1st Lane, within Police Station, Kalighat, Kolkata 700026- which is contiguous to the portion of tenanted portion of the Second Part and the Second Part received a sum of Rs.45,000/- (Rupees Forty five thousand) only from the Developer/Promoter herein as Security Deposit. (page. 6.) AND WHEREAS, the said Owners and Developers have agreed to demolish the existing old dilapidated structures standing therein at 57A, Nepal Bhattacharjee 1st Lane, within Police Station Kalighat, Kolkata 700026 after obtaining sanctioned building plan and to construct a multi storeyed building on the said plot of land in accordance with sanctioned building plan duly approved by The Kolkata Municipal Corporation and it is absolutely necessary that the Tenant should vacate the said tenanted portion after duly approved the sanctioned Building plan to facilitate demolition of the existing structures and to construct of the said multi storeyed building- AND WHEREAS, the Tenant has agreed to vacate the said tenanted portion after obtaining sanctioned building plan on the clear and specific assurances and undertaking of the Owners and Developer herein that the Tenant would be given a permanent accommodation in the form of self-contained flat measuring about 800 Sq.ft (more or less) covered area, i.e. built up area more or less at first floor (northern side) at premises no.57A, Nepal Bhattacharjee 1st Lane, within Police Station, Kalighat, (page. 7) Kolkata 700026 in the new Building complex after re-development of the said premises purely on ownership basis without any consideration money, i.e. free of costs as per specification written hereinbelow. AND WHEREAS, before demolishing the existing old structures in the said tenanted portion, the Developer/Promoters shall, at their own costs and expenses, arrange alternative accommodation of the Tenant/Second Part to be used as temporary alternative residential accommodation at the rate of Rs.4,000/- (Rupees four thousand) only per month and the Developer/Third part till completion of the said multi storeyed building completed in all aspects and possession thereof have been delivered to the Tenant in a habitable and useable condition and the Tenant shall have no liabilities in this context and the entire alternative costs are to be paid by the Developer at the time of of these presents which is specifically mentioned and described in the Memo of Consideration written hereunder. (page 8) " i) The said Instrument of Agreement further provides as follows:- "4. The Owners and the Developers hereby jointly assure and undertake to hand over the exclusive possession of one (one) self-contained flat measuring about 800 Sq. ft. covered area i.e. built up area more or less at first floor (Northern side) of the proposed newly constructed multi storeyed building within 18 (eighteen) months from the date of the execution of these presents without any costs. (P-10) 5. The Owners and the Developers jointly undertake to hand over the said self-contained flat at first floor (northern side) measuring about 800 Sq.ft. covered area, i.e. built up area more or less with all fittings and fittings including impartible and undivided proportionate share in all common parts or portions in the said proposed multi storeyed building and the land underneath and appertaining into the said premises no.57A, Nepal Bhattacharjee 1st Lane, within Police Station Kalighat, Kolkata 700026 to the Tenant with proper possession letter and thereafter, the Developers and the Owners shall have the liberty to handover possession to the other flats/units/apartments to other intending purchasers. The Tenant shall have the right and authority to enforce this Agreement under the law through competent Court having territorial jurisdiction. The Owners and the Developers jointly further undertake to execute and register the proper Deed of Conveyance relating to absolute sale of the said flat to the Tenant without any consideration money simultaneously at the time of execution and registration of Deeds of Conveyance relating to the sale of other flats/units/apartments to other intending purchaser and/or purchasers. The (page.11) cost and expense for registration of the said flat shall be borne by the Tenant/Second/party herein and the Developer shall no way be liable for the said costs and expenses for registration. 6. The Owners and Developers hereby jointly undertake and agreed that one room, one bathroom, within tin shed (back side) of the building will be in possession under the Tenant as symbolic possession and that portion should not be demolished in any manner whatsoever till handed over possession of the said flat and also electric meter in the name of A.K.Chakraborty should not be disconnected, if, permitted by the C.E.S.C. 9. That, each term of this Agreement is the consideration for the other and failure to comply with the terms and conditions of this Agreement or any of it by either of the parties shall be a cause of action for the other parties to file a suit for enforcement of this Agreement and all the costs and damages for the same shall be borne " .
(3.) Upon signing of the above noted presents the petitioner alleges that the opposite parties being respectively, the owners and the developers of the suit premises, acted in breach of the reciprocal obligations agreed between the parties. The petitioner therefore was compelled to file an execution proceedings being Title Execution Case no.5 of 2012 before the Learned Trial Court praying for execution of the Compromise Decree. Alongwith the Execution Application the petitioner also filed an application for temporary injunction which was refused by the Learned Trial Court.;