LexPRITHVICHAND RAM CHAND SABLOK versus S.Y. SHINDE
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- - PRITHVICHAND RAM CHAND SABLOK A v. S.Y.SHINDE MAY, 131993 B [A.M. AHMADI ANDS. MOHANJJ.] Bombay Rents, Hotel and Lodging House Rates Control Act, 1947-Section 12( 3 )-Terms of compromise before court including non-exec lit ion of decree for possession where entire arrears paid by specified date-Character of the com- promise terms whether penal ora concession-Held, where defendant benefits for c complying Wilh a requirement, and does noT Stiffer for failing TO abide by if, it is not penal-Civil Procedure Code, order XX/ Rule 35. Bomba)' Rents, Hotel and Lodging House Rates Control Act, 1947-Section 12(3) (b)-Transferof Property Act, 1882-Section 114-Held, Section 12(3) (b) is a special provision and cases governed by the Bombay Act must be resolved in D accordance with Section 12(3) of The Act and noT under section 114 of Transfer of Property Act. The appellant-landlord filed an eviction suit for possession of the demised premises mainly on the ground of arrears ofrent under Section 12(3) of the Bombay rent Act, 1947. E The suit was settled between the parties. By the terms of the compro- mise, possession would be given by the tenant to the landlord by 10 October 1970, or the landlord ma~· recover possession by execution based on this decree; but, if the tenant paid the entire arrears in full by 10October1970, the F landlord would not execute the decree for possession. The tenant failing to pay the entire arrears as stipulated the landlord- decree holder ·med execution proceedings. The executing Court issued a warrant for possession but the Appellate Court set aside the order and G dismissed the pra)•er for eviction. The High Court remanded the matter to the Appellate Court to determine the character of the compromise terms. That court again allowed the appeal and dismissed the execution proceedings altogether. On appeal, the High Court agreed with the Appellate Court. It found H 729 730 SUPREME COURT REPORTS [1993] 3 S.C.R. A that clause permitting eviction was penal in nature and therefore, not enforceable. B c D E The questions before this court were: did the parties to the compromise intend to create or continue the relationship oflandlord and tenant; whether the compromise terms in the consent decree were penal in nature or merely gave a concession; and whether Section 114 Transfer of Property Act could be invoked while executing a decree for possession, notwithstanding Section 12(3) of the Bombay Act. Allowing the appeal, this Court, HELD : It is well-settled that a decree passed on the basis of a compro- mise by and between the parties is essentially a contract between the parties which derives sanctity by the court superadding its seal to the contract. But all the same the consent terms retain all the elements of a contract to which the court's imprimatur is aflb:ed to give it the sanctity of an executable court order. The court will not add its seal to the compromise terms unless the terms. are consistent with the relevant law. (735-H) If the law vests exclusive jurisdiction in the court to adjudicate on any matter, the court will not add its seal to the consent terms unless it has applied its mind .to the question. In such a case it is the independent satisfaction of the court which changes the character of the document from a mere contract to a court's adjudication which will estop the tenant from contending otherwise in any F subsequent proceedings and operate as res judicata. (736-B) G The character of the consent ·decree will depend on the nature of the dispute resoh·ed and the part played by the court while superadding its.seal to it. (736-C) (2) If a defendant is required to suffer the consequence of his failure to abide b~· terms stipulated, such consequence would be penal in nature. But if the defendant gets some benefit by complying with a requirement, such as clause can never be penal in character. (739-B) H (3) Admittedly the tenant had failed to pay or tender in court the -- _ .... - PRJTHVJCHAND 1·. SHINDE 731 standard rent and permitted increases due to the landlord. (736-E) The clause in the consent terms whereby, upon payment of the entire rent etc. due from the tenant, b~· a stipulated date was clearly to secure his dues i.e. arrears of rent etc. This is in the nature of a concession. Where a landlord gran~ a concession and agrees that if the entire arrears is cleared by a stipulated date, he will not insi
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