Smt. Sobha Misra vs Guru Dayal Patsariya

Sanjay Misra, J.—Heard Sri Rama Goel Bansal, learned Counsel for the petitioner and Sri H.M. Srivastava, learned Counsel for the respondent. Since both the respondents are represented and the matter has been heard at length the writ petition is being decided finally today itself with the consent of the parties. This writ petition is directed against the order dated 21.12.2012 passed by the Judge, Small Causes Court, Jhansi, in J.S.C.C. No. 32 of 2012 as also the revisional order dated 16.5.2013 passed by the District Judge, Jhansi, in S.C.C. Revision No. 5 of 2013.

Learned Counsel for the petitioner has submitted that an earlier S.C.C. Suit No. 39 of 2010, Guru Dayal v. Smt. Sobha Mishra was decreed on 26.7.2010 on the basis of compromise paper No. 15-C. According to learned Counsel for the petitioner, the said compromise was obtained by the respondent-landlord from the petitioner under undue influence and misrepresentation since the petitioner was under the impression that under the said compromise the petitioner will have to pay monthly rent @ Rs. 3,000/- and the tenancy would continue. According to learned Counsel for the petitioner, the application u/s 47 of the C.P.C. filed by the petitioner has been rejected illegally by the Courts below. The Courts below ought to have considered the objection raised by the petitioner in application u/s 47 of the C.P.C. regarding obtaining of the compromise decree by exercising undue influence and misrepresentation. A further submission has been made that the petitioner has been made to suffer due to conduct of the respondent-landlord who has brought criminal proceedings from time to time against the petitioner which shows the mala fide of the respondent-landlord and he ought to have brought regular suit for dispossessing the petitioner which could not be done in execution proceedings in view of the terms of the compromise.

Sri H.M. Srivastava, learned Counsel for the respondent has submitted that when S.C.C. Suit was filed the petitioner entered into a compromise with the respondent wherein under the terms of compromise the rent was increased to Rs. 3000/- and a time of one and half year plus 6 months was given to the petitioner to vacate the premises failing which she was liable to pay a sum of Rs. 200 per day for use and occupation beyond that time. According to Sri Srivastava, a sum of Rs. 1,00,000/- was also paid by the respondent-landlord to the petitioner under the terms of the compromise. He states that when the time under the compromise expired and the petitioner did not vacate the premises in question the respondent-landlord had no other option but to execute the compromise decree and hence he filed Execution Case No. 12 of 2012 before the Executing Court. According to learned Counsel for the respondent, the compromise stipulated that in the event of violation of terms of compromise the respondent would be entitled to initiate proceedings for her dispossession. He states that when the compromise decree was available to the petitioner he has all legal rights to execute the compromise decree and to say that the respondent-landlord has to file a fresh proceedings for eviction of the petitioner would be incorrect and against the law.

Sri Srivastava has further submitted that the Executing Court has rightly rejected the application u/s 47, C.P.C. filed by the petitioner and the reasoning given therein does not suffer from any error in law. According to Sri Srivastava, if the petitioner alleged that the compromise was obtained by undue influence or misrepresentation she had all rights to get the compromise decree cancelled or recalled, however, he has chosen not to initiate proceedings for cancellation of the compromise decree or for recall of the same. According to Sri Srivastava, in proceedings u/s 47 of the C.P.C. the decree which is sought to be executed cannot be set aside by the Executing Court and therefore the impugned order does not suffer from any error in law. He also submits that at no point of time the physical execution of the compromise has been denied by the petitioner.

Having considered the submission of learned Counsel for the parties and perused the record, the impugned order passed by the Judge, Small Causes Court has been affirmed by the Revisional Court. The finding recorded by the Judge, Small Causes Court is quoted hereunder:

The aforesaid finding of the Judge, Small Causes Court while deciding the application u/s 47 of the C.P.C. does not appear to suffer from any error in law. The Executing Court was right in holding that if the petitioner had any grievance against the compromise decree being unlawful she should have approached the appropriate competent Court for setting aside the compromise decree which cannot be done in proceedings for execution of the compromise decree on an application u/s 47 of the C.P.C. The said finding and view of the Judge, Small Causes Court has been affirmed by the Revisional Court which is in accordance with law and does not suffer from any error.

The fact that the compromise decree dated 26.7.2010 has not been challenged by the petitioner before any competent Court is not denied by the petitioner. There is no material available on record of the writ petition to indicate that the compromise decree dated 26.7.2010 has been challenged in any competent forum by the petitioner.

Under such circumstances, the submission that the compromise decree was obtained by undue influence and misrepresentation is without any basis and the petitioner has failed to avail the legal rights available to her if that was her stand against the compromise decree. For the aforesaid reasons no error can be found in the impugned order dated 21.12.2012 passed by the Judge, Small Causes Court in Execution Case No. 12 of 2012 or in the revisional order dated 16.5.2013 passed in S.C.C. Revision No. 5 of 2013, (Smt. Sobha Mishra v. Guru Dayal Patasariya) by the District Judge, Jhansi.

At this stage, learned Counsel for the petitioner Miss Rama Goel Bansal has prayed that the petitioner be given some time to vacate the premises and hand over its possession to the respondent-landlord.

To such submission, Sri H.M. Srivastava has submitted that in case the petitioner can deposit the entire decretal amount as well as for use and occupation of six months from today within 15 days and gives undertaking before the Trial Court to vacate the premises by that time he would accept the submission of the petitioner on this count.

In view of the aforesaid submission, it is provided as follows:-

The petitioner shall vacate and hand over the possession of the premises in question to the respondent-landlord on or before 8.1.2014.

The petitioner shall deposit the entire decretal amount before the Court below within 15 days from today.

The petitioner shall also deposit the amount for use and occupation of the premises from today upto 8.1.2014 at the decretal rate within 15 days before the Court below.

The petitioner shall hand over the vacant possession of the premises in question to the respondent-landlord on or before 8.1.2014 and will not induct any third party in the premises in question.

To such effect the petitioner will give a written undertaking before the Court below within 15 days from today failing which the benefit of above conditions shall not be available to the petitioner and she will be liable to be evicted forthwith.

In the event of default in any of the above agreed conditions the respondent-landlord shall be entitled to get the premises vacated from the petitioner by applying for police force from the Executing Court.

The writ petition is disposed of as above. No order is passed as to costs.