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Judgment
R.R. Yadav, J.—Plaintiff Smt. Bhoori Bai filed a suit for specific-performance and injunction in the Court of Munsif, Udaipur seeking a decree to the effect that the suit properly as describe in paragraph 4 of the plaint measuring 46 X 4 feet to be used as passage be delivered to her from defendant No. 1 and further she may be allowed to construct a passage on the said land from North to South upto 56 feet. It was also prayed by her that the defendant may be restrained from creating any obstruction in the construction of 46 X 4 feet passage''. The plaintiff claimed arrears of damages of Rs. 300/- from the defendant and further damages from 21.80 to the date of delivery of possession at the rate of Rs. 5/- per day.
Brief facts of the case as disclosed in the plaint are that in the city of Udaipur, there is a Market known as ''Bapu Bazar''. In the-said Market, there is a plot No. 7. In the South of the said plot, there is a shop, the boundaries of which are given in paragraph 1 of the plaint. Plot No. 7 was of the ownership and in possession of defendants No. 3, 4 and 5 namely; Mohan Lal, Gulab Chand and Rekhab Lal. It is also evident from the averments made in the plaint that the suit premises measuring 46 x 4 feet.was. let-out by defendant No. 3 to defendant No. 1 (Now heirs and'' legal representatives of. deceased defendant No. I are on record as appellants) and defendant No. 2. by rent-note dated 1.6.69 on monthly rent of Rs. 180/- per month. The Plaintiffs further case is that it was agreed upon between defendants. No. 1 and 2 that the premises measuring 46 X 4 feet which is a passage will be vacated by the tenant as and when the landlord of the shop needs" for the passage.
It is also averred in the plaint that the aforesaid passage measuring 46 X 4 feet along with plot measuring 455 Square feet at the back of plot No. 7 was purchased by the plaintiff by a registered sale-deed dated 17.1.73 for a sum of Rs. 5,000/-.
The suit was contested by the heirs and legal representatives of deceased-defendant No. 1 who have come up int Second Appeal before this Court. The defendant-appellants did not admit the boundaries of the land let-out to the defendants as described in paragraph 1 of the plaint. The defendants gave the different description in their written statement and denied the existence of the shop adjacent to the land in dispute and further existence of any passage as.a separate part.
It was pleaded in their written statement that shop was let-out by defendant No. 3 on monthly rent of Rs. 180-and relationship of the landlord and tenant continued in force between-the parties since 1.6:69. Later on, by subsequent agreement, the rent was enhanced from Rs. 180/- to 275/- per month It "is averred in. the written statement that in Clause 13 of the rent-note dated 1.6.69, it was agreed that adjacent to the rented out shop, there is a stair case and the same shall be removed and will be utilised as passage for going to the plot behind the shop and the defendants shall not object. The defendants also pleaded that the suit, was filed in collusion of defendant No. 3 as the plaintiff is none-else but the mother-in-law of defendant No. 3 Mohan Lal.
On the basis of the pleadings of the parties, learned trial court framed necessary issues and after analytical discussion of oral and documentary evidence on record, dismissed the suit filed by the plaintiff on 27.5.1986.
Aggrieved against the dismissal of the suit by the learned trial court on 27.5.86, the plaintiff-respondent No. 1 filed an appeal before the learned lower Appellate Court. Learned lower Appellate Court without meeting cogent and convincing reasons given by the learned trial Court, set aside the judgment and decree and allowed the appeal on 5.12.1987.
Aggrieved against the judgment and* decree passed by the learned lower Appellate Court on 5.12.87, the defendant-appellants have filed the instant second appeal before this Court.
It is shocking to note that on 6.7.90, on the joint request of the learned Counsel for the parties, the present second appeal was directed to be listed for final disposal at admission stage on 3.8.1990. I am constrained to observe that on some or other reasons, the instant second appeal could not be finally disposed off for such a long period i.e. for more than 6 years. Undue delay in final disposal of this appeal is to be viewed seriously.
Today when the case is called on for final disposal at admission stage, a request is being made by Mr. B.M. Bhojak holding brief of Mr. M.S. Singhvi to the effect that the plaintiff-respondent No.l has taken away the case-file from his office, therefore, he is not able to assist the Court. I am not satisfied with the request made by Mr. B.M. Bhojak, therefore, it is hereby refused.
I am of the view that the mandatory provisions envisaged under Sub-rule (2) of Rule 4 of Order 3, CPC clearly provides that every appointment of a counsel shall be filed in Court and shall for the purposes of Sub-rule (1) be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader as the case may be and filed in Court or until the client or the pleader dies or until all proceedings in the suit or appeal as the case may be, are ended so far as regard the client. As none of the conditions enumerated under Sub-rule (2) of Rule 4 of Order 3, CPC are satisfied in the case on hand, therefore, I think it just and proper in the interest of Justice to finally decide the case on merit and refuse to grant leave to the learned Counsel for the plaintiff-respondent to withdraw from the case. The plaintiff-respondent shall be deemed to be continued to be represented by her counsel even if she has taken away the relevant record from the office of her counsel. She had engaged her counsel and filed her ''Vakalatnama on 23.2.88. It is not disclosed by Shri Bhojak when she took away her case-file from the office of her counsel. If she did so, then, she ought to have engaged another counsel to do ''Pairvi'' in this appeal on her behalf and on her failure to engage another counsel, she cannot be allowed to adopt a ruse to take away the case-file from the office of her counsel and sits at her home simply to hoodwink the early disposal of this appeal which is pending consideration for final disposal at admission stage for such a long.
As regards respondents No. 2 to 6 are concerned, they have not preferred any appeal against the judgment and decree passed by the learned trial Court and they have submitted to the decree passed by the learned trial Court, therefore, their presence is not required for final decision of this appeal at admission stage.
Since it is a second appeal, therefore, before entering into its merit, the following substantial questions of law are formulated
Whether the learned lower appellate court was right in passing a decree for eviction in the garb of the suit for specific performance ignoring the mandatory prohibition contained under Clauses (a) to (1) of Sub-section (1) of Section 13 of Act No. 17 of 1950?
Whether ETHER in view of the mandatory provisions envisaged u/s 20 of the Specific Relief Act, the first appellate court has committed substantial error of law and procedure in exercising the discretion in passing the decree for specific performance?
Now, I propose to deal with the aforesaid substantial questions of law in seriatim.
Question No. 1
The learned lower appellate Court while passing the decree under appeal in favour of plaintiff respondent No. 1 has relied upon rent-note dated 1.6.69 Ex. 4 wherein it was agreed upon between the landlord and the tenant that as and when the passage would be required by the landlord, It shall be vacated by the tenant. Suffice it to say in this regard that before relying upon Clause 13 of the rent-note dated 1.6.69 (Ex. 4), the learned lower appellate Court was required to address itself on the mandatory provisions envisaged under Sub-section (1) of Section 13 of Act No. 17 of 1950 which clearly provides that notwithstanding anything contained in any law or contract, no Court shall pass any decree or make any order in favour of a landlord whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by Act No. 17 of l950 unless it is satisfied about any of the ground or grounds enumerated under Clauses (a) to (1) of Sub-section (1) of Section 13 of the said Act.
In my considered opinion, the learned lower Appellate Court has committed substantial error of law in decreeing the suit for eviction against the tenant-defendant-appellants ignoring the mandatory provisions envisaged under Clauses (a) to (1) of Sub-section (1) of Section 13 of Act No. 17 of 1950., It is well to remember that after enforcement of Act No. 17 of 1950, the learned lower appellate Court has no jurisdiction whatsoever to pass a decree of eviction unless and until any of the ground or grounds enumerated under Clauses (a) to (1) of Sub-section (1) of Section 13 of the said Act are satisfied. In the present case, the plaintiff-respondent No.l failed to establish any of the ground or grounds enumerated under Clauses (a) to (1), of Sub-section (1) of Section 13 of the said Act, therefore, the suit for eviction against the tenant-defendant-appellants is liable to be dismissed on this ground alone without any further ceremony.
Although the aforesaid ground is sufficient to set aside the judgment and decree under appeal passed by the learned lower appellate Court yet I think it just and proper to observe that decree of eviction passed by the learned lower Appellate Court is based on mis-construction of registered sale-deed dated 17.1.73 (Ex. 1) which was made basis of the suit by the plaintiff-respondent No. 1. A close scrutiny of the sale-deed dated 17.1.73 (Ex. 1) reveals that it was executed in favour of plaintiff-respondent No. 1-Smt. Bhoori Bai in respect of the disputed land measuring only 46 X 21/2 feet but it is amusing to note that the learned lower Appellate Court has passed a decree for the disputed passage of 46 X 4 feet. Learned trial Court has correctly addressed itself to the measurement given in the sale-deed dated 17.1.73 (Ex. 1) but without meeting the cogent and convincing reasons given by the learned trial Court, the learned lower Appellate Court has illegally decreed the suit in toto which is not sustainable in the eye of law.
It is true that the aforesaid discussion of substantial question No.l, is sufficient to set aside the judgment and decree under appeal passed by the learned lower appellate court but in abundant caution, I would like to hold that for the reasons stated in the preceding paragraphs, in the present case, it was not lawful for the learned lower Appellate Court to pass a decree for eviction on the basis of contract between the landlord and the tenant in shape of rent-note dated 1.6.69 (Ex. 4) after enforcement of Act No. 17 of 1950.
Question No 2
In the present case, the learned lower Appellate Court was under legal obligation to address itself to the mandatory provisions envisaged u/s 20 of the Specific Relief Act before passing the decree for specific performance in favour of the plaintiff-respondent.
A close scrutiny of Sub-section (1) of Section 20 of the Specific Relief Act, 1963 reveals that the jurisdiction to decree a suit for specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful to do so. Sub-section (2) of Section 20 of the said Act clearly enumerates in Clauses (a), (b) and (c) that in those circumstances, the Court should not exercise its discretion in passing the decree for specific performance without adverting into the additional facts, and circumstances of a particular case. In the present case, the contract of tenancy between the landlord and the tenant in shape of rent-note dated 1.6.69 (Ex. 4) is not enforceable after enforcement, of Act No. 17 of 1950 coupled with the recital in the sale-deed doted 17.1.73 (Ex. 1) giving measurement of only 46 X 2& frac12 feet whereas the suit for specific performance filed by plaintiff-respondent No.l was for 46 X 4 feet land in dispute claiming it to be passage on the basis of rent-note (Ex. 4). It goes without saying that the sale-deed dated 17.1.73 (Ex.l) was confined with 46 X 2| feet land only whereas plaintiff-respondent No.l Smt. Bhoori Bai filed a suit for specific performance with respect to 46 X 4 feet on the basis of sale-deed (Ex. 1) and rent-note (Ex. 4). The learned lower Appellate Court after setting aside the judgment and decree passed by the learned trial Court, decreed the suit in toto giving plaintiff-respondent No.l an unfair advantage over the defendant-appellants and enforced the rent-note (Ex. 4) which was not enforceable within the meaning of non-obstante Section 13 of Act No. 17 of 1950.
I am of the view that decree under appeal passed by the learned lower Appellate Court has been passed in utter dis-regard of the provisions contemplated under Clause (a) of Sub-section (2) of Section 20 of the Specific Reliefs Act, 1963 which is not sustainable.
Learned Counsel for the appellants invited my attention to the effect that after service of summons, plaintiff-respondent No.l has filed cross-objection under (c).41 Rule 22, CPC for enhancement of damages. In view of what have been discussed above, as the suit itself filed by plaintiff-respondent No.l Is liable to be dismissed, therefore, as a necessary corollary of the same, plaintiff-respondent No. 1 is not entitled to receive enhanced damages and the present cross-objection is liable to be dismissed.
As result of the aforesaid discussion, the instant second appeal is allowed with costs. The judgment and decree under appeal dated 5.12.1987 passed by the learned Additional District Judge, No. 2, Udaipur is set aside and judgment and decree dated 27.5.1986 passed by the learned trial Court is restored. The cross-objection filed by plaintiff-respondent No.l is also dismissed for the reasons stated above.