IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 8256-8257 OF 2018
(Arising out of Special Leave Petition (Civil) Nos.24615-24616 of 2017)
M/s Alagu Pharmacy & Ors. ……Appellants
N. Magudeswari ..…. Respondent
Uday Umesh Lalit, J.
2. This interest is destined opposite a final visualisation and sequence antiquated 29.03.2016 in Civil Revision Petition (NPD) No.586 of 2016 as good as opposite a sequence antiquated 02.12.2016 in Review Petition No.89 of 2016 in pronounced Signature Not Verified Digitally sealed by ANITA MALHOTRA Date: 2018.08.14 17:46:47 IST Reason:
Civil Revision Petition (NPD) No.586 of 2016 inspected by a High Court of Judicature during Madras, Bench during Madurai.
3. The appellants 2 to 4 are doing business in a name and character of M/s Alagu Pharmacy i.e. a appellant No.1. The appellants explain to be tenants in a fit skill owned by a respondent herein given 1998. On or about 22.02.2012 a franchise agreement was entered into, that according to a appellants was sealed by a respondent, extending/renewing a duration of lease. On 13.11.2013 and 07.12.2013 a respondent had released authorised notices job on a appellants to empty a fit skill alleging inter alia that a franchise agreement antiquated 22.02.2012 was not sealed by a respondent and was a fake document, to that respond was given by a appellants on 17.01.2014. On 17.01.2014 itself a censure (Exh.P-10) was lodged by a respondent alleging elect of forgery. According to a appellants, on 20.01.2014 a respondent alongwith her father and some henchmen attempted to exude a appellants that try was successfully resisted by a appellants. In a circumstances, O.S. No.135 of 2014 was filed by a appellants on 21.01.2014 seeking service of permanent explain opposite a respondent from interfering with their pacific possession and delight of a fit skill save and usually by due routine of law. After conference a appellants, an ad halt explain was postulated by a District Munsif, Coimbatore.
4. It appears that on 29.01.2014 a concede (Exh.P-11) was entered into between a appellants and a respondent. It is a box of a appellants that they were summoned to a military hire in tie with a censure lodged by a respondent (Exh.P-10) and underneath a vigour employed by a police, pronounced Exh. P-11 was entered into. Soon afterward an Eviction Petition i.e. R.C.O.P. No.29 of 2014 was filed by a respondent before a Principal Rent Controller-cum-District Munsif, Coimbatore for eviction of a appellants. It is a box of a appellant that they were again asked to seem before a military on 27.03.2014 and underneath a vigour exerted by a military a concede help was entered into underneath that a appellants concluded to empty a fit property. Said concede help was presented before a Court on 28.03.2014 and following sequence was inspected by a Rent Controller and Principal District Munsif, Coimbatore:
“Petition antiquated 08.02.2014 filed underneath Section 10(2)(ii)(a), 10(3)(c) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 and a postulant filed this petition opposite a respondents to empty a premises and to broach a empty possession of a petition mentioned skill some-more entirely described hereunder in a report and cost of this petition.
This petition entrance on this day for conference before me in a participation of Thiru. M. Sanjaiyan, Advocate for postulant and of Thiru. Somasundaram, Advocate for respondent. Both parties filed concede memo and both parties benefaction and this day this Court doth sequence proceed as follows:
1. That a respondents be and are hereby postulated time upto 31.10.2015 to empty a petition mentioned skill and to handover a empty possession of a same to a petitioner/landlord and
2. That a respondents are hereby destined to compensate a benefaction monthly franchise of Rs.19080/- pm to a petitioner/landlord compartment a date of smoothness of possession of a skill (i.e. upto 31.10.2015) by proceed of cheque; and
3. That in box of default to do so by a respondents, a petitioners are entitled to take suitable movement by justice of law opposite a respondents.
4. The concede petition do form partial of this final order, and
5. That there be no sequence as to cost.”
5. On 07.10.2015, a minute was sent by a respondent job on a appellants to empty a premises by 31.10.2015 in terms of a aforesaid concede decree. On 07.12.2015, an interest being R.C.A. (CFR) No.31591 of 2015 was filed by a appellants before a Principal Subordinate Judge, Coimbatore opposite a aforesaid concede approach antiquated 28.03.2014. Along with pronounced interest IA No.465 of 2015 was also elite seeking condonation of check of 604 days in filing pronounced appeal.
6. The respondent carrying contested a matter, pronounced IA No.465 of 2015 was taken adult for care by a appellate court. It was submitted on interest of a appellants that they were pressurized into signing a concede help and pronounced concede was brought about since of vigour exerted by a police. Reliance was placed on censure Exh.P-10 by a respondent and concede minute Exh.P-11 antiquated 29.01.2014. On a other hand, it was submitted on interest of a respondent that there were countless occasions for a appellants to lift a protest that a concede in doubt was brought about by duress and nonetheless no such conflict was ever raised. It was, therefore, submitted that a check of 604 days in preferring a interest ought not to be condoned.
7. The appellate justice by a Order antiquated 19.01.2016 supposed pronounced IA No.465 of 2015 and condoned a check theme to remuneration of Rs.2000/- by a appellants to a respondent. It was celebrated by a appellate justice as under:
“8. The categorical row of a respondent is concede done before a conference justice with giveaway will and now a respondent is attempted to drag on a matter and preventing a respondent from enjoying a fruit source of a concede decree. On a side of respondent Ex.R1 and R4 marked. Ex.R1 concede memo; R2 request for already perceived a approved duplicate of satisfactory and final order; R3 minute from a respondent to a petitioner; R4 postal acknowledgement. On examination of respondent side papers to oppose a contribution of Ex.P-10 and Ex.P-11 no papers have been filed. The landlord-tenant attribute is admitted. The allegations done by a respondent opposite a petitioners is franchise help antiquated 22.02.2012 is fake one and censure has been given to a military per a fake papers and a petitioners themselves come to a agreement they are commence to empty a petition mentioned property, there is no military hazard or censure or duress by a military or by a respondent. In sequence to cruise a papers filed by a petitioners Ex.P-10 is a military complaint, prepared by a respondent Magudeswari opposite a 2nd petitioner/appellant. In a censure a allegations done opposite a 2nd postulant is that there is life hazard to a respondents and a franchise help has been combined by a 2nd postulant by forging a signature of a respondent and requesting a military to take scold authorised movement opposite a 2nd petitioner. Once a created censure filed before a military mentioning a name of a accused, if a military finds it is loyal for that military have to register FIR opposite a indicted and ensue with a examination as per law. But on perusing of Exh.P-11 concede minute antiquated 29.01.2014 between a respondent and a 2nd postulant addressing to a examiner of police, City Crime Branch. In check a RCOP has been filed and memo of concede filed, concede approach has been passed. As settled above a avocation of a military is usually to register a box opposite a indicted and ensue opposite a indicted for a corruption committed for a crime, they are not entitled to make any concede opposite a crime unless and until it is supposing by law and serve before when concede arrived during court, a prior concede has been arrived during military station. From Ex.P-11 itself there arises guess possibly a postulant has put into any force or any hazard to make a concede before a court. Hence from a above discussions there is a military force with courtesy to record a concede per RCOP 29/14 and formerly concede minute has been arrived before a police. Hence there is a guess arises postulant contingency be put into any hazard or duress during a time of filing a concede memo in RCOP and now a postulant filed a petition to acquit a check of 604 days. Hence from a above discussions it is transparent a petitioners have explained a check of 604 days in filing a interest and a reason submitted by a petitioners is excusable one.”
8. The aforesaid sequence was challenged by a respondent by preferring Civil Revision Petition before a High Court of Judicature during Madras that Revision Petition was authorised by a High Court vide a orders antiquated 29.03.2016. It was celebrated by a High Court as under:
“5. There are dual courses open to a tenants. One is that a tenants would have settled before a Court that accessible a concede that a concede was out of constraint or duress on a partial of a military during enquiry of a censure elite by a landlady. In that case, a Court that accessible a concede would have dealt with that issue. That is not a box here. When that is not a case, it is distant fetched for a appellate justice to come to a end that a tenants competence have been put into duress or force before entering into a compromise. It is equally illusive that in sequence to get a closure of complaint, a tenants would have opted to enter into a concede and thereafter, a tenants are put onward an explain of invalidity of compromise. Even if a tenants had some problem in expressing themselves before a conference court, a interest would have been filed immediately after a concede decree, if there had been any vitiating factors while entering into a compromise. But, a interest had not been filed in time. Therefore, a control of a tenants would usually prove a procrastinating proceed in traffic with their case.”
9. The appellants elite a examination petition that was deserted by a High Court on 02.12.2016. This interest hurdles a exactness of both a orders inspected by a High Court. We listened Mr. Ratnakar Dash, schooled Senior Advocate for a appellants and Mr. S. Thananjayan, schooled Advocate appearing for a respondent.
10. The sequence inspected by a appellate justice shows that concede Exh.P-11 was brought about on 29.01.2014 that is even before a eviction petition was filed by a respondent. Further, pronounced concede Exh.P-11 was addressed to a Inspector of Police, City Crime Branch. The appellate justice had serve celebrated that censure Exh.P-10 and concede Exh.P- 11 were not doubtful by a respondent and no request in come-back was filed. The censure (Exh.P-10) deduction on a drift that a franchise help antiquated 22.02.2012 was a fake request and there was no attribute of landlord-tenant between a parties. Yet an eviction petition was filed, seeking eviction of a appellants underneath a endangered Rent Act. There is an fundamental counterbalance in a mount adopted by a Respondent. In a circumstances, a avowal done by a appellants that vigour was exerted by a military and they were compelled to enter into concede is prima facie acceptable. In Ajad Singh v. Chatra and Others1, concede accessible in Police Station inter alia was not found to be excusable by this Court and a matter was remanded. It was observed, “…..the appellate justice ought to have taken note of a fact that a pronounced concede was accessible in a Police Station and during a pendency of a suit.” It is loyal that there was a check of 604 days in filing a appeal, yet in cases where there is reasonable doubt that military might have forced a celebration to enter into compromise, a routine of Court ought to import in foster of a celebration who alleges to be plant of such pressure. It might be impending to note that a sequence inspected by a High Court does not even understanding with this aspect nor was any acquiescence done that a comment done by a appellate justice was in any proceed improper or imperfect.
11. Further, eviction petition was filed seeking eviction of a appellants underneath Section 10(2)(ii)(a), 10(3)(c) of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Said Sections are as under:
(2005) 2 SCC 567 (para 8) “10(2) A landlord who seeks to exude his reside shall request to a Controller for a instruction in that behalf. If a Controller, after giving a reside a reasonable event of display means opposite a application, is satisfied-
(ii) that a reside has after a 23rd Oct 1945 but a created agree of a landlord-
(a) eliminated his right underneath a franchise or lease a whole building or any apportionment thereof, if a franchise does not consult on him any right to do so, or …..
(c) A landlord who is occupying usually a partial of a building, possibly residential or non-residential, may, notwithstanding anything contained in proviso (a), request to a Controller for an sequence directing any reside occupying a whole or any apportionment of a remaining partial of a building to put a landlord in possession thereof, if he requires additional accommodation for residential functions or for functions of a business that he is carrying on, as a box might be.”
12. The eviction in terms of a aforesaid supplies can be systematic usually if a endangered Rent Controller or Court is confident that a belligerent seeking eviction is done out. It has been hold by this Court that unless and until belligerent seeking eviction in terms of a endangered agreement is not done out, no eviction of a reside can be ordered, even if a parties had entered into a compromise. For example, in K.K. Chari v. R.M. Seshadri2 this Court deliberate a progressing decisions in 3 cases as under:-
“20. There are 3 decisions of this Court that need to be considered. In Bahadur Singh v. Muni Subrat Dass3 a approach for eviction inspected on a basement of a concede between a parties, was held, by this Court, to be a zip as contravening Section 13(1) of a Delhi and Ajmer Rent Control Act, 1952. The contribution therein were as follows:
“The reside and a son of a landlord referred a disputes between them to arbitration. The landlord was not a celebration to this agreement. The arbitrators inspected an endowment whereunder a reside was to give empty possession of a premises in foster of a landlord within a sold time. This endowment was done a approach of court. The landlord, who was conjunction a celebration to a endowment nor to a proceedings, that resulted in a endowment being done a approach of court, practical for eviction of a reside on a basement of a award. The reside resisted execution by lifting several objections underneath Section 47 of a Code of Civil Procedure. One of a objections was that a approach for eviction formed on a endowment was a zip as being opposite to a Delhi and Ajmer Rent Control Act, 1952. This Court hold that a approach directing a reside to broach possession of a premises to a landlord was a nullity, as it was inspected in transgression of Section 13(1) of a germane statute. After quoting a sub-section, this Court serve hold that a approach for eviction inspected according to an award, in a move to that a landlord was not a celebration and but a justice gratifying itself that a orthodox belligerent of eviction existed, was a zip and can't be enforced (1973) 1 SCC 761 (1969) 2 SCR 432 in execution. It will be seen from this preference that a approach was hold to be a zip since a landlord was not a celebration thereto, and also since a justice had not confident itself that a belligerent for eviction, as compulsory by a statute, existed. This preference is positively an management for a tender that a justice grouping eviction has to prove itself that a orthodox belligerent of eviction has been done out by a landlord. How accurately that compensation is to be voiced by a justice or collected from a materials, has not been laid down in this decision, as this justice was not faced with such a problem.”
21. In Kaushalya Devi v. Shri K.L. Bansal4 a doubt again rose underneath a same Delhi government per a outcome of a approach inspected for eviction on compromise. The plaintiff therein filed a fit for eviction of a reside on dual grounds—
(a) a premises were compulsory for their possess use; and
(b)the reside had committed default in remuneration of rent.
22. The reside filed a created matter denying both these allegations. He doubtful a explain of a landlord per his requiring a premises for his possess use bona fide and also a fact of his being in arrears. When a pleadings of a landlord and a reside were in this state, both parties filed a concede memo in and by that they concluded to a flitting of a approach of eviction opposite a tenant. Representations to a same outcome were also done by a warn for both parties. The justice inspected a following order:
“In perspective of a matter of a parties’ warn and a created compromise, a approach is inspected in foster of a plaintiff opposite a defendant.” The reside did not empty a premises within a time mentioned as per a concede memo. On a other hand, (1969) 1 SCC 59 he filed an focus underneath Section 47 of a Civil Procedure Code pleading that a approach is blank as being in transgression of Section 13 of a Delhi statute. The High Court hold that a approach was a nullity, as a sequence was inspected usually on a basement of a concede but indicating that any of a orthodox drift mentioned in Section 13 existed. Following a preference in Bahadur Singh this Court inspected a sequence of a High Court. Here again, it will be seen that a demeanour in that a court’s compensation is to be voiced or collected has not been dealt with.
23. A identical doubt came adult again before this Court in Ferozi Lal Jain v. Man Mal5. The landlord filed an focus for eviction of a reside on a belligerent that he had lease a premises but receiving his agree in writing. Subletting, but a agree of a landlord in writing, was one of a grounds, underneath Section 13(1) of a Delhi government entitling a landlord to ask for eviction. The reside denied a explain that he had lease a premises. Both a landlord and a reside entered into a concede and a court, after recording a same, inspected a following order:
“As per compromise, approach for ejectment and for Rs 165 with proportional costs is inspected in foster of a plaintiff and opposite a defendant. The parties shall be firm by a terms of a compromise. The terms of a concede be incorporated in a decree- sheet….”
24. As a reside did not obey possession of a properties within a time mentioned in a concede memo, a landlord levied execution. It was resisted by a reside on several drift one of that was that a approach for eviction was a nullity, being in transgression of Section 13 of a Delhi Statute. This row was supposed by a execution court, as good as by a High Court. This Court, after a anxiety to a (1970) 3 SCC 181 supplies of Section 13, hold that a approach for liberation of possession can be inspected usually if a justice endangered is confident that one or other of a drift mentioned in a territory is established. This Court, serve observed:
“From a contribution mentioned earlier, it is seen that during no stage, a Court was called on to request a mind to a doubt possibly a purported subletting is loyal or not. Order done by it does not uncover that it was confident that a subletting complained of has taken place, nor is there any other element on record to uncover that it was so satisfied. It is transparent from a record that a justice had proceeded usually on a basement of a concede arrived during between a parties. That being so there can be frequency any doubt that a justice was not efficient to pass a impugned decree. Hence a approach underneath execution contingency be hold to be a nullity.”
13. In Nagindas Ramdas v. Dalpatram Ichharam alias Brijram and Others6 it was stated:-
“17. It will so be seen that a Delhi Rent Act and a Madras Rent Act specifically dissuade a Rent Court or a Tribunal from flitting a approach or sequence of eviction on a belligerent that is not any of a drift mentioned in a germane Sections of those statutes. Nevertheless, such a prohibitory charge to a Rent Court that it shall not transport over a orthodox drift mentioned in Sections 12 and 13, and to a parties that they shall not agreement out of those orthodox grounds, is fundamental in a open process built into a government (Bombay Rent Act).
(1974) 1 SCC 242
18. In Rasiklal Chunilal case, a Division Bench of a Gujarat High Court has taken a perspective that in annoy of a fact that there is no demonstrate sustenance in a Bombay Rent Act prohibiting constrictive out, such a breach would have to be review by import consistently with a open process underlying this gratification measure. If we might contend so with respect, this is a scold proceed to a problem.
19. Construing a supplies of Sections 12, 13 and 28 of a Bombay Rent Act in a light of a open process that permeates a whole intrigue and structure of a Act, there is no shun from a end that a Rent Court underneath this Act is not efficient to pass a approach for possession possibly in invitum or with a agree of a parties on a belligerent that is de hors a Act or ultra vires a Act. The existence of one of a orthodox drift mentioned in Sections 12 and 13 is a sine qua non to a practice of office by a Rent Court underneath these provisions. Even parties can't by their agree consult such office on a Rent Court to do something which, according to a legislative mandate, it could not do. ….
22. The small fact that Order 23 Rule 3, of a Code of Civil Procedure is germane to a record in a fit underneath a Bombay Rent Act, does not mislay that iron on a Rent Court or commission it to make a approach for eviction de hors a statute. Even underneath that sustenance of a Code, a Court, before grouping that a concede be recorded, is compulsory to prove itself about a lawfulness of a agreement. Such lawfulness or differently of a agreement is to be judged, also on a belligerent possibly a terms of a concede are unchanging with a supplies of a Rent Act.
27. From a epitome of a cases cited during a bar, a element that emerges is, that if during a time of a flitting of a decree, there was some element before a Court, on a basement of which, a Court could be prima facie satisfied, about a existence of a orthodox belligerent for eviction, it will be reputed that a Court was so confident and a approach for eviction yet apparently inspected on a basement of a compromise, would be valid. Such element might take a figure possibly of justification accessible or constructed in a case, or, it might partly or unconditionally be in a figure of an demonstrate or pragmatic acknowledgment done in a concede agreement, itself. Admissions, if loyal and clear, are by distant a best explanation of a contribution admitted. Admissions in pleadings or legal admissions, accessible underneath Section 58 of a Evidence Act, done by a parties or their agents during or before a conference of a case, mount on a aloft balance than evidentiary admissions. The former category of admissions are entirely contracting on a celebration that creates them and consecrate a waiver of proof. They by themselves can be done a substructure of a rights of a parties. On a other hand, evidentiary admissions that are receivable during a conference as evidence, are by themselves, not conclusive. They can be shown to be wrong.”
14. The common thread that runs by a aforesaid pronouncements of this Court is – in cases where insurance underneath a Rent Act is available, no eviction can be systematic unless belligerent seeking eviction is done out, even if parties had entered into a compromise. Moreover, a invalidity on that count can even be lifted in execution. In a benefaction case, a sequence antiquated 28.03.2014 did not remotely note that any sold belligerent underneath a Rent Act was done out.
15. In a circumstances, in a deliberate view, a sequence inspected by a appellate justice was positively scold and did not call for any division on partial of a High Court. We, therefore, concede a benefaction appeals and revive a sequence antiquated 19.01.2016 inspected by a appellate justice in IA No.465 of 2015. The interest shall now be listened on merits and likely of in suitability with law. Since there was check of some-more than 600 days on partial of a appellants, we proceed that a appellants shall compensate costs of Rs.50,000/- to a respondent that shall be over and above that already imposed by a appellant justice and shall be done over within 6 weeks from this Judgment. The appeals mount authorised in a aforesaid terms.
(Abhay Manohar Sapre)
(Uday Umesh Lalit)
New Delhi, Aug 14, 2018