KONCHADA RAMAMURTHY SUBUDHI & ANR. versus GOPINATH NAIK

Citation: [1968] 2 S.C.R. 559 · Decided: 07-12-1967 · Supreme Court of India · Bench: S.M. SIKRI · Disposal: Appeal(s) allowed

Cited by 3 judgment(s) · cites 3 · see the full citation network in Lexace

Judgment (excerpt)

55 9 
A 
KONCHADA RAMAMURTIIY SUBUDIIl & ANR. 
B 
c 
D 
E 
F 
G 
v. 
GOPINAm NAIK 
December 7, 1967 
[S. M. SIKRI, J. M. SHELAT AND K. S. HEGDE, JJ.] 
Lease or Licence--Tes.t for determining. 
The appellant filed a suit for 
eviction of the respondent from the 
appellant's house. The suit was dismissed by the trial court. In appeal, 
a compromise was entered into between the parties and a 
decree was 
passed in terms of the compromise. 
The compromise provided for the 
respondent's continuation of possession of the house for five years. but 
it enabled the appellant to execute the decree by evicting the respondent 
if the responclent failed to pay rent for any three consecutive months. 
When the appellant sought to evict the respondent, the latter claimed pro-
tection from eviction as a tenant under the Orissa House-Rent Control 
Act, 1958. 
On the question whether the con1promise decree created a lease or a 
licenct, 
HELD : The facts that the appellant had filed a suit for eviction of 
the respondent and the compromise decree enabled him to execute the 
decree by evicting the respondent, show, that the intention of the parties, 
which is the decisive test, \Vns not to enter into the relationship of a land~ 
lord and tenant, in spite of the fact the word 'rent' was used in the com-
promise. 
Therefore, the respondent was not entitled to any protection 
against eviction. [562 C; 563 A-Cl 
Associated Hotels of lndJa v. R. N. Kapur, 
[1960] 1 S.C.R. 
368, 
State of Punjab ''- British India Corporation, [1964] 2 S.C.R. 114 and 
M. N. Cluhwala v. Fida Hussain Saheb, [1964] 6 S.C.R. 642, follower!. 
Issac v. Hotel De Paris, (1960] 1 All E.R. 348, applied. 
Sumatibai Waman Kirlikar v. A. B. Shirgaonkar, A.l.R. 1949 
Born. 
402, approved. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 372 of 
1965. 
Appeal by special leave from the judgment and order dated 
September 23, 1963 of the Orissa High Court in Miscellaneous 
Appeal No. 59 of 1961. 
B. Parthasarathy and M. S. K. Sastri for M/s. J.B. Dadachan;i 
and Co .. for the appellants. 
· 
K. R. Chaudhuri for respondent No. I. 
H 
The Judgment of the Court was delivered by 
Sikri, J, 
This appeal by special leave is dir~cted against the 
judgment of the High Court of Orissa allowing the appeal and 
560 
SUPREME COURT REPORTS 
[1968] 2 S.C.R. 
/ 
setting aside the judgment of the District Judge Ganjam-Boudh, 
Bcrhampur, who had affirmed the order passed by the Munsif, 
Bcrhampur, dismissing M.J .C. No. 220; 60 of Gopinath Naik, 
respondent before us, hereinafter referred to as the Judgment. 
Debtor. 
The facts in this case are tlot in dispute. 
One Konchada 
R:11namurti Subudhi, deceased, now represented by his legal repre-
scnratives and appellants before us-hereinafter r~krred to as 
the Decree Holder-and Bhagirathi Naiko, now represented by 
Gopinath Naik, Judgment Debtor, filed a compromise petition 
under 0. XXlll, r. 3 of the Code of Civil Procedure in the Court 
'Jf Subordinate Judge, Bcrhampur, in 'T.A. No. 13 of 1955. 
In 
terms of this compromise petition a decree was passeu 
The 
Decree Holder filed an application for execution of the decree 
and the Judgment Debtor filed the application (M.J.C. No. 220/ 
60) under s. 47, C.P.C., in the Court of Munsif, Berhampur, 
obj~,ting to the execution of the decree. 
The Munsif dismissed 
this :.pp,lication of the Judgment Debtor and the District Judge 
affirmed the order. 
The High Court, however, on appeal, set 
aside the order of the District Judge. 
The only poin.t raised before us is whether ihe compromise 
decree created a lease or a licence. 
It is common ground that if 
a lease was created the Judgment Debtor would be entitled to 
protection against being ejected by virtue of the provisions of 
Orissa House-Rent Control Act (Orissa Act XXXI of 1958)--
hereinafter referred to as the Act, 
The terms of the compromise were as follows : 
"i. Respectable people have settled the subject 
matter of this appeal and the suit and so both parties 
agreed to compromise as follows :-
(a) That the defendant-respondent should vacate 
the suit house on or before 1-7-60 (five years) failing 
which the appellant-plaintiff will be entitled to execute 
this decree and recover possession of the suit house 
through court after the date fixed above. 
(b) That in respect of all arrears of rent claimed 
in the suit and the rent due during the pcndency of the 
suit and of this appeal. as calculated up to 30-6-55, the 
defendant has paid to the

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