SUJIT NARAYAN PRASAD,J. - (1.) With the consent of the parties, hearing of the matter has been done through video conferencing and there is no complaint whatsoever regarding audio and visual quality.
(2.) The instant petition is under Article 227 of the Constitution of India for quashing of the order dated 23.11.2012 passed by the learned Civil Judge (Junior Division), Chaibasa in Miscellaneous Case No. 07/2012 arising out of Execution Case No. 03/2012 by which a petition filed under Section 47 of the Code of Civil Procedure by the judgment debtor for dismissal of the execution case on the ground that the decree passed on compromised is non-executable, has been rejected.
(3.) The brief facts of the case as per the pleading made in the writ petition read hereunder as A suit for eviction has been filed on the ground of Section 11(c) and (d) of the Jharkhand Building (Lease, Rent & Eviction) Control Act, 2000 (hereinafter to be referred to as the Act, 2000) for seeking a decree of eviction against defendant, Jawahar Prasad Sao from the suit premises which is a house situated at Holding No. 1040, Chaibasa Town Khas Mahal Pplot No. 339 and 340 corresponding to New Survey Settlement Plot No. 333, 334 (a) (b) (c) under New Survey Khata No. 67 within Chaibasa Municipality Ward No. 7, Municial Holding No. 07/220 P.S. Chaibasa, District West Singhbhum. The plaintiff namely, Narayan Mishra, the respondent herein, has also claimed arrears of rent at the rate of Rs. 300/- per month from the month of November, 2006 to August, 2007 amounting to Rs. 2,700/- and the same has been mentioned in Schedule 'B' of the plaint. The case of plaintiff (the respondent herein) is that the defendant (the petitioner herein) is a monthly tenant who used to pay rent to Late Radha Govind Mishra and after his death Binod Basini Devi used to receive the monthly rent of Rs. 300/- per month. After the property was allotted to the plaintiff, Binod Basini Devi (mother of the plaintiff) issued a notice dated 09.11.2006 directing the defendant to pay rent of the suit premises to the plaintiff but defendant did not pay rent either to Binod Basini Devi or to plaintiff from the month of November, 2006 onwards. Therefore, he has become a defaulter and he has forfeited his right to remain as a tenant. The further case of the plaintiff is that the plaintiff required suit premises for his bona fide personal necessity as he was residing in a rented house and the defendant has already constructed his house and is living there but suit premises has been kept under lock and key without any reason. On service of notice, the defendant appeared and contested the suit by filing written statement where his preliminary point of objection was that suit is not maintainable in its present form, plaint is not in accordance with the provision of Order VI Rule 2(3) of the Code of Civil Procedure, plaint has not been signed and verified in accordance with law as also the suit has been undervalued and is barred by principle of estoppel, waiver and acquiescence. The main ground of the defendant is that the suit property was leased out jointly in the name of Radha Govind Mishra and Ram Lakhan Mishra in the year 1961. The defendant was inducted as a tenant by the grandfather of the plaintiff namely Raghunandan Mishra, who collected the rent from defendant during his life time. After his death, his son Radha Govind Mishra collected the rent from the defendant and after the death of Radha Goving Mishra, his widow namely, Smt. Binod Basini Devi is collecting monthly rent according to her convenience from the defendant and the present rate of rent was Rs.500/- per month which was being paid by the defendant to land lady Smt. Binod Basini Devi and Binod Basini Devi issued rent receipt in lieu of the rent received. The further case of the defendant is that the plaintiff got a letter issued to defendant purported to be issue by his mother Binod Basini Devi with a direction to the defendant to pay rent for the tenanted premises to the plaintiff but when defendant personally contacted with Binod Basini Devi to discuss about the aforesaid letter, she denied and expressed ignorance to have issued any such letter to the defendant. The trial court has framed altogether seven issues. The parties have laid oral and documentary evidence on their behalf. The decree has been passed against the plaintiff vide decree dated 28.08.2009 in Eviction Suit No.19/2007. The plaintiff/judgment debtor/the respondent herein has preferred an appeal before the appellate court being Eviction Appeal No. 10/2009 before the District Judge, Singhbhum West at Chaibasa. On appearance of the decree holder/tenant, a joint compromise petition was filed on behalf of both the parties informing the court that both the parties have settled their dispute and differences on the terms and conditions as referred therein with the agreement that the decree holder/petitioner herein shall quit and vacate and restore Khas possession of the suit property to the appellant on or before the expiry of two years from the date of compromise petition i.e., 23.04.2010. The parties have agreed that within the said period of two years, the landlord shall not execute the decree. It has further been agreed between the parties that monthly rent of the suit property shall be continued to be paid by the tenant to mother of the appellant/respondent herein namely Smt. Binod Basini Devi with the further agreement that the status of both the parties shall not be changed. After expiry of two years if the respondent/petitioner herein fails to restore Khas possession of the property to the appellant/respondent herein, the appellant will be entitled to execute the decree and to take possession of the suit property and rent if became due by the process of the court, for ready reference, the contents of the joint compromise petition is being referred hereunder as :- "1. That both the parties have settled their dispute and differences on the following terms and conditions :- (a) That the appellant is the land-lord and respondent is tenant with respect of the suit property. (b) That it is agreed between the parties that the respondent shall quit and vacate and restore khas possession of the suit property to the appellant on or before the expiry of two years from the date of this compromise petition i.e. 23.04.2010. (c) That within the said period of two years it is agreed between the parties that the appellant shall not execute the decree. (d) That it is further agreed between the parties that monthly rent of the suit property shall be continued to be paid by the respondent to mother of the appellant namely Smt. Vindhya Vashini Devi. It is, however, made clear that status of both the parties shall not be changed. (e) That unfortunately if mother of the appellant shall die during the said stipulated period of two years, monthly rent will be paid by the respondent to the appellant. (f) That after expiry of the two years if the respondent fails to restore khas possession of the suit property to the appellant, the appellant is entitled to execute the decree and take possession of the suit property and rent if become due realized the process of the court." The appellate court, on the basis of the aforesaid joint petition, has disposed of the Eviction Appeal in terms of the compromise vide order dated 23.04.2010 by making this compromise petition part of the decree and accordingly directed for preparation of the decree in terms of the compromise petition. Accordingly, decree in appeal was prepared on 23.04.2010. The tenant when not vacated the premises, as agreed in the joint compromise petition, execution case has been filed by the landlord being Execution Case No.03/2012 but the said execution case has been objected by the tenant by filing a petition under Section 47 of the Code of Civil Procedure stating inter alia therein that the decree under execution is not based on any of the ground for eviction of the tenant as per Section 11 of the Act, 2000, rather the decree is simply based on compromise hence such decree is not executable to evict a tenant in possession of building. Only those decrees are executable which are based on one or the other ground enumerated in Section 11 of the Act, 2000. Rejoinder to the aforesaid petition was filed by the judgment debtor/landlord stating inter alia therein that the decree has been passed in Eviction Suit No. 03/2012 by way of compromise and the same cannot be challenged on any ground since the decree holder (tenant) knew that the Eviction Suit No.19/2007 was filed against him for his eviction from the tenanted premises on the ground mentioned in the said suit. The executing court passed an order on 23.11.2012 by dismissing the petition filed under Section 47 of the Code of Civil Procedure on the ground that the tenant had to vacate the suit premises after two years from the date of compromise on 23.04.2010 and the prescribed period since has lapsed, as such, the tenant is bound to vacate the suit property as per the decree and since the decree of the appellate court is based on compromise, the same cannot be challenged before the lower court. The tenant has filed the instant petition under Article 227 of the Constitution of India reiterating the ground that the executing court has not appreciated the fact that in absence of the ground as stipulated under the provision of Section 11 of the Act, 2000, even if there is a compromise but in absence of the aforesaid ground the decree prepared on the basis of that compromise petition would be nullity in the eye of law and hence not executable. ;