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Judgment
The petitioner/original defendant Farookh Ahmad has filed this Civil Revision under Section 115 of the Code of Civil Procedure against an order dated 16.03.2011 passed by the First Additional District Judge, Tikamgarh in Civil Execution Case No.8A/10x10, whereby an application dated 10.03.2011 filed by the original defendant has been disposed of and the judgment-debtor has been ordered to pay a sum of Rs.39,080 to the decree-holder.
The relevant facts are that original plaintiff Suresh Chandra Jain filed a suit for a decree of declaration and perpetual injunction against the defendant Farookh Ahmad to declare the plaintiff as possession-holder in the capacity of the tenant over the suit premises and for perpetual injunction against the defendant to restrain him from interfering in possession and use of plaintiff over the tenant premises in any form and to prevent the defendant for dispossessing him unlawfully and causing damages in the tenanted premises. It was pleaded by plaintiff Suresh Chandra Jain that he had taken the relating plot on 04.03.2015 as tenant from the defendant on 15.04.2005 at the rate of monthly rent of Rs.4583/- and under the agreement, the defendant had to complete some construction work over the tenant premises to develop it as a marriage garden (Shahnai Garden). The plaintiff was to run the garden till 31.12.2010.
In the suit, compromise was filed by the parties with an agreement dated 20.4.2010. Under the written agreement, it was agreed that if Suresh Chandra Jain does not vacate the tenanted premises till 31.12.2010, then he would pay damages at the rate of Rs.3000/- per day to the landlord Farookh Ahmad. In the pending civil suit bearing Civil Suit No.8A/2010, judgment dated 20.04.2010 was passed by the First Additional District Judge, Tikamgarh on the basis of a compromise petition filed by the parties before it and a decree was also drawn up in accordance with the terms of the compromise and judgment. According to the terms of the compromise, plaintiff Suresh Chandra Jain was to deliver the vacate possession of the tenanted premises to defendant Farookh Ahmad till 31.12.2010. If plaintiff Suresh Chandra Jain commits any delay after above-mentioned date in vacating the tenanted premises, then plaintiff Suresh Chandra Jain would pay damages at the rate of Rs.3000/- per day till vacating the tenanted premises.
Defendant Farookh Ahmad sent a notice dated 3.1.2011 to Suresh Chandra Jain that he has not vacated the Shahnai Garden till 31.12.2010 and thus he is bound to pay damages at the rate of Rs. 3000/- per day from 01.01.2011. This notice was sent by registered post, which remained unserved, thus execution petition was filed by Farookh Ahmad before the Court of Additional District Judge, Tikamgarh under Order 21 Rule 11 of the C.P.C.
In execution proceedings, an application was also filed by defendant Farookh Ahmad on grounds that Suresh Chandra Jain is still in the city Tikamgarh and is avoiding the service of notice sent by registered post and has not delivered the vacant possession of the tenanted premises to him, thus according to the terms of the decree, he is entitled to get Rs.2,07,000/- from plaintiff Suresh Chandra Jain for a period from 01.01.2011 to 10.03.2011, in total for 69 days and plaintiff Suresh Chandra Jain is earning from the marriage garden by booking and arranging marriages and parties in the garden and has received an income of Rs.5,00,000/-, thus the defendant is also entitled to receive Rs.5,00,000/- as damages and above-mentioned Rs.2,07,000/- in terms of the decree.
Original plaintiff Suresh Chandra Jain filed reply dated 10.03.2011 in the executing Court alleging that under compromise agreement, it was agreed that before vacating the tenanted premises by him, defendant Farookh Ahmad had to pay to plaintiff Suresh Chandra Jain Rs.25,000/- on 15.12.2010 and Farookh Ahmad had also to pay the half expenditure on tube-well i.e. on payment by the landlord, the plaintiff had to vacate the land 15 days later, but Farookh Ahmad did not pay above-mentioned Rs.25,000/- and his share Rs.10,920/- in tube-well''s expenditure, in total Rs.35,920/- till date i.e. 10.03.2011, thus as the defendant Farookh Ahmad himself has not complied with the terms of the compromise and decree, thus plaintiff Suresh Chandra Jain is not liable to pay rent at the rate of Rs.3,000/- per day and if the sum Rs.35,920/- is being paid by defendant Farookh Ahmad to him, then within 15 days he would deliver vacant possession of the tenanted premises to defendant Farookh Ahmad. It appears that on 15.03.2011, defendant Farookh Ahmad signed on the notice regarding receiving the vacant possession of Shahnai Garden from plaintiff Suresh Chandra Jain on 15.03.2011.
The executing Court after referring to provision of Section 74 of the Indian Contract Act, observed in the impugned order that in terms of the decree, defendant Farookh Ahmad had to pay Rs.25,000/- to plaintiff Suresh Chandra Jain under the head of expenditure of temporary construction and defendant Farookh Ahmad had to pay the half expenditure incurred by the plaintiff in installing the tube- well, which was in total Rs.21,840/-. Thus, its half Rs.10,920/- was payable by defendant Farookh Ahmad to the plaintiff and under the provision of Section 74 of the Indian Contract Act, where a stipulated amount is to be paid in case of breach of contract, then only reasonable compensation not exceeding the amount so named would be payable. The Executing Court observed that as delay has been committed by plaintiff Suresh Chandra Jain in vacating the land of marriage garden, thus, the landlord/judgmen- debtor Farookh Ahmad is entitled to receive Rs.75,000/- as damages and as per terms of the compromise and decree, plaintiff Suresh Chandra Jain is entitled to receive Rs.35,920/- from Farookh Ahmad. Thus, after deducting this amount from the amount of damages, it was ordered that plaintiff Suresh Chandra Jain will pay Rs.39,080/- to the decree-holder.
Certified copies of the impugned order dated 16.03.2011, plaint, agreement dated 20.04.2010, copy of judgment dated 20.04.2010, copy of decree, copy of notice dated 03.01.2011 sent by Farookh Ahmad to Suresh Chadra Jain and copy of postal receipt, copy of annexed postal acknowledgment, certified copy of execution petition filed by Farookh Ahmad, certified copy of application dated 10.03.2011 filed by Farookh Ahmad and certified copy of its reply filed by plaintiff Suresh Chandra Jain dated 10.03.2011, certified copy of information regarding receiving of vacant possession of tenanted premises by Farookh Ahmad on 15.3.2011 have filed in this civil revision.
Learned counsel for the petitioner has vehemently contended that the learned executing Court i.e. Additional District Judge, Tikamgarh erred in not granting rent of the tenanted premises at the rate of Rs. 3000/- per day from 01.01.2011 to 15.03.2011, in total Rs. 2,22,000/-. It is further argued by him that according to well settled position of law, the executive Court can not go behind the decree as the terms of the compromise and decree are binding on the parties of the compromise and thus the executive Court was wrong in fixing the damages upto Rs.75,000/- only and adjusting Rs.35,920/-.
The provision of Section 74 of the Indian Contract Act is as follows:-
"Section 74. Compensation for breach of contract where penalty stipulated for:- When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled,whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for. Explanation- A stipulation for increased interest from the date of default may be a stipulation by way of penalty.
Exception- When any person enters into any bail-bond, recognizance or other instrument of the same nature or, under the provisions of any law, or under the orders of the Central Government or of any State Government, gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein. Explanation- A person who enters into a contract with Government does not necessarily thereby undertake any public duty, or promise to do an act in which the public are interested."
Learned counsel for the petitioner has given much emphasis on the terms of the agreement dated 20.04.2010. Though in agreement, it was recorded that if the tenanted premises were not vacated till 31.12.2010, then plaintiff Suresh Chandra Jain would pay to the landlord Farookh Ahmad damages at the rate of Rs.3000/- per day, but in the judgment and decree, it was recorded that if the plaintiff commits delay in delivering possession after the date i.e. 31.12.2010, then plaintiff will pay rent at the rate of Rs.3000/- per day. It is well settled that after passing of the eviction decree against the tenant, from the date of decree, his status can not be termed as of a tenant and the contractual rate of rent was only Rs.4583/- per month. It is also clear from the compromise that defendant Farookh Ahmad had to pay Rs.25,000/- regarding the expenditure incurred by the plaintiff Suresh Chandra Jain in temporary construction in the marriage garden and defendant Farookh Ahmad was also to pay half expenditure of installing tube well at the time of receiving of vacant possession of the suit premises. It is clear that in the execution petition and separate application, Farookh Ahmad had not expressed that he is willing to pay Rs.25,000/- and half of the expenditure incurred by the plaintiff in installing the tube-well. It is significant to mention here that in the copy of the notice dated 03.01.2011 sent by Farookh Ahmad to plaintiff Suresh Chandra Jain, it is not mentioned that Farookh Ahmad is willing to immediately pay the above-mentioned amount to plaintiff Suresh Chandra Jain. Thus, it was clear that only plaintiff could not be blamed for committing breach of the terms of compromise. It appears that the landlord was also not willing to pay above-mentioned amount payable under the decree by him to plaintiff Suresh Chandra Jain.
In the case of Bahadur Singh Vs.Smt. Gulab Devi and Ors. (ILR 1979 MP 658) it has been held by this Court that Section 74 of the Contract Act applies to compromise decree as well and if stipulation is found to be a penal clause, Court can relieve party against forfeiture and Court has discretionary jurisdiction to relieve the judgment-debtor of the penal clause. In light of above- mentioned citation, it is clear that the learned executing Court has not committed any error or irregularity in passing the impugned order.
In the result, this revision petition is dismissed as being devoid of merits. No order is to costs.