- (1.) P. L. Bawa (defendant) has challenged judgment & decree dated 23. 2. 99 in civil suit No. 249/95 passed by the Additional District Judge No. 7, Jaipur City for his eviction.
(2.) FACTS complexed by the parties are epitomised thus. Admittedly, Bhawani Singh & P. L. Bawa were both fellow colleagues in the military service and having good friendship, so P. L. Bawa (defendant-appellant) was appointed by Bhawani Singh as his Principal Private Secretary on 6. 11. 85 followed by further assignments as Financial Controller-cum-Chief Administrator of the Jaipur Palace Hotels Ltd. , Managing Trustee-cum-Secretary of Shri Shiella Mata Trust & Sawai Jaipur Relief Trust. Accordingly, both of them had admittedly their relationship as employer and employee and the defendant was put in use & occupation of Kothi No. 16, Civil Lines, Jaipur (suit premises) by way of allotment. However, the defendant was terminated from services of Bhawani Singh on 14. 6. 90 directing him to hand over vacant possession of the suit premises to Dr. A. S. Paul, Financial & Legal Affairs Controller of the plaintiff, and his office was allegedly sealed during his leave in between 3. 6. 90 to 13. 6. 90 so he (PL Bawa) instituted a suit No. 196/90 seeking mandatory injunction on 19. 6. 90 wherein an agreement (Ex. 3) undisputably was entered into between both of them out of Court on 27. 6. 90 on the terms and conditions amongst others-pursuant thereto the defendant withdrew his Suit No. 196/90 but did not hand over plaintiff's Kothi No. 16 (suit premises) Civil Lines, Jaipur by vacating it. Thus, such an act of not vacating the suit premises constrained the plaintiff to file present suit through Dr. A. S. Paul his Power of Attorney against the defendant with the prayer to grant decree for eviction being entitled under Sec. 13 (1) (g) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (for short `the Act') & mesne profits for use & occupation of suit premises @ Rs. 2000/- per month w. e. f. 27. 8. 90. In written statement, the defendant denied the factum of his services being terminated on 14. 6. 90, but in additional pleas it was his case that he was employed on 6. 11. 85 at a salary of Rs. 3000/- per month plus other allowances including residential accommodation, and further holding charge of various companies/trusts. It was further contended that since during his leave his office was sealed on 7. 6. 90, he had filed a suit for permanent injunction but on 27. 6. 90 an agreement was executed between them. According to the defendant a sum of Rs. 3,41,462/- were outstanding against the plaintiff and until such an amount could have been paid, the present suit could not be filed inasmuch as he was continuing in service and further the plaintiff ought to have filed suit either for possession by paying proper court fees or for compliance of the agreement (Ex. 3) and not for eviction and thus this suit was premature. As against the pleadings of the parties on record, nine issues were framed. In support of the pleadings, the plaintiff examined Dr. As Paul (Power of Attorney Holder) as PW1, besides Narayan Singh (PW2) whereas the defendant appeared as DW1 alongwith other two witnesses. Upon hearing arguments of both the parties trial Court by its judgment dated 23. 2. 99 decreed the suit for eviction and grant of mesne profits for use & occupation of 6. 7. 91 till vacation payment of Rs. 2000/- w. e. f. 6. 7. 91 till vacation provided proper court fees is paid within 15 days and two months' time was granted to the defendant for vacation of the suit premises. Hence, this first appeal. First contention raised by the defendant is that since services of Dr. A. S. Paul Power of Attorney Holder of the plaintiff who has signed the plaint and appeared in the witness box, have been terminated by revocation deed dated 28. 11. 96, neither the suit could have proceeded with effect from 18. 11. 96 but also his evidence ought out have been read or admissible in evidence in support of the plaintiff's suit, as Dr. A. S. Paul was not competent witness and thus the suit ought to have been dismissed. As regards construction of deed viz. agreement (Ex. 3), Shri J. K. Singhi on behalf of the defendant cited decisions in (i) State vs. Motiram (1); (ii) Prem Agnani vs. Sub-Registrar Bangalore (2), (iii) Provash Chandra Dalui vs. Biswanath Banerjee Contrarily while citing decisions in (i) Kailash Devi vs. Matadeen Agarwal (4), (2) Uttam Singh Dugal vs. Union Bank of India (5), (3) Ram Kubai vs. Hajarimal Dhokal Chandak (6), (4) Govind Bhai vs. New Sharrock Mills (7), (5) M/s Ramavtar Kailash Chand vs. Suraj Bai (8), Shri R. C. Sharma appearing for the plaintiff respondent contended that power of attorney holder is a competent witness and merely because the plaintiff did not get himself examined in evidence, adverse inference has not to be drawn, inasmuch as it is not essential that landlord must enter witness box to support his case and further that in the fact of admissions as to initial appointment, institution as well as withdrawal of his suit by virtue of execution of an agreement dated 27. 6. 90 (Ann. 3) between him and the plaintiff, it is impossible for party making such admission to succeed and thereby the decree cannot be challenged on the ground that the agreement (Ex. 3) was not made in the course of pleadings of the parties or otherwise in any suit.
(3.) HERE I must have a resume of cited decisions in order to decide the issue at hand. In State vs. Motiram (supra), this court held as under :- " It is an elementary rule of construction that when a single transaction is carried into effect by several instruments, the whole are treated as one instrument. Another rule of construction applicable to all written instruments is that the instrument must be construed as a whole in order to ascertain the true meaning of its several clauses and the words of each clause must be so interpreted as to bring them into harmony with the other clauses of the instrument if that interpretation does no violence to the meaning of which they are naturally susceptible. The best construction of the deeds is to make one part of the deed expound the other and so to make all the parts agree. " In Prem Agnani vs. Sub Registrar (supra) a three Judge Special Bench of Karnataka High Court observed that it is a cardinal rule of construction that the instrument has to be considered as a whole and the intention of the parties has to be ascertained by the terms thereof and not by extraneous circumstances or evidence. Similarly in Provash Chandra vs. Bishwanath Banerjee (supra), the Apex Court while interpreting construction of a lease deed, observed that the whole context must be considered to ascertain the intention of the parties and it is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected. Thus, in construing a contract the Court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. And, in the construction of a written instrument it is legitimate in order to ascertain true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject matter to which it was designed and intended they should apply. In the instant case, an agreement deed (Ex. 3) dated 27. 6. 90. Construction whereof is required to be made to ascertain the intention of the parties as to the dispute on which fate of the suit hinges, is quoted as under:- " We, His Highness Lt. Col. Bhawani Singh, M. V. C. and Lt. Col. P. L. Bawa (S. M.) have agreed to settle the matter out of court on the following terms: (1) Lt. Col. P. L. Bawa will be paid all his dues towards unpaid salary and allowances, as payable to him. (2) Lt. Col. P. L. Bawa (S. M.) will be paid for two months salary and allowances of Principal Private Secretary, in lieu of the two month's notice as per the appointment letter. (3) Lt. Col. P. L. Bawa will hand over the charge of the following offices, which he is holding on behalf of H. H. Lt. Col. Bhawani Singh as under:- (a) Principal Private Secretary to Shri J. K. Chatterji, Private Secretary to his Highness. (b) Financial Controller and Chief Administrator of Jaipur Palace Hotel Ltd. , to Shri H. D. Chakarwarty. Accountant J. P. H. L. (c) Managing Trustee-cum-Secretary, Shri Shila Mata Trust to Shri G. R. Bhatt Trustee of the said Trust. (d) Sawai Jaipur Relief Trust to Shri J. K. Chatterjee, Private Secretary to H. H. (4) Lt. Col. P. L. Bawa (S. M.) will withdraw the suit filed in the District Court Jaipur City, Jaipur filed against Lt. Col. Sawai Bhawani Singh. (5) Lt. Col. P. L. Bawa, (S. M.) allowed to retain the house for a period of two months, as mentioned in the appointment letter. After two months he will hand over the possession to Lt. Col. Bhawani Singh. (6) The above terms and conditions will be binding on both the parties. Lt. Col. S. Bhawani Singh MVC Lt Col. P. L. Bawa (S. M.) Witness: 27. 6. 90" ;