TMI Blog1993 (5) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire amount mentioned in clause (2) above, i.e., the amount involved in the suit, future mesne profits, electricity charges, water charges, the rent of the godown, expenses of the suit by 10th October, 1970, the plaintiff will not execute the decree for possession. Under clauses (2) and (4) of the compromise terms the rent in respect of the suit premises was to be calculated on the basis of standard rent of ₹ 30 per month, the rent of the store room (godown) was to be calculated at the standard rent of ₹ 9 per month and electricity and water charges at ₹ 3 per month and so calculated. the entire arrears had to be paid on or before 10th October, 1970 to avail of the concession given in clause (3) of the compromise terms. The Trial Court passed a decree in terms of the compromise. The arrears so calculated worked out to ₹ 3353. 58p. as on 10th October, 1970. The tenant, however, paid a sum of ₹ 2040only on 9th February, 1970 and, therefore, did not comply with the terms regarding payment of entire arrears on or before 10th October, 1970. Thereupon, the decree holder filed execution proceedings on 2nd November, 1970. The tenant raised object ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed date. (4) Where the consent decree provides for the continuance of the possession of the tenant up to a particular date beyond which he has no right to remain in possession at all and on which date the landlord is entitled to execute the decree for possession, the time given from the date of the decree till the other date is by way of concession and in such a case, there is no creation of new tenancy or continuation of the existing tenancy.' (5) If the consent decree provides possession for the continuation of' the of the tenant on certain terms up to a particular date and also provides for the continuation of the tenant's possession after the date if lie complies with certain conditions, then such a decree provides for the continuance of the possession of the tenant from the date of the consent decree itself. In such a case, it cannot be said that the plaintiffs allowing the defendant to continue up to and beyond that specified date is by way of concession. The High Court, therefore, concluded that the refusal by the Appellate Court to exact the tenant on the basis of the consent decree was correct in law and hence it was not required to interfere with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or tenders in court the standard rent and permitted increases then due and thereafter continues to pay or tender in court regularly such rent and permitted increases till the suit is finally decided and also pays costs of the suit as directed by the court. Clause (a) sets out the circumstances in which the tenant forfeits the protection of the statute and entitles and landlord to evict him. If the case does not fall within the scope of clause (a) the question to be considered is whether eviction should be ordered under clause (b). This is clear from the opening words, in any other case, If, however, the tenant satisfies the conditions of the said clause, the law protects him from eviction as is clear from the words, no decree of eviction shall be passed in any such suit . The suit in the present case was filed under section 12(3) of the Act but before the court could adjudicate whether clause (a) or clause (b) was attracted the parties arrived at a settlement, the relevant terms hereof have been extracted hereinbefore. It is well-settled that a decree passed on the basis of a cc, promise by and between the parties is essentially a contract between the names which derives sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms the tenant further agreed to pay to the landlord by 10th October, 1970 the entire amount due including legal fees and expenses from the date of the suit till delivery of possession. Clause (3) of the consent terms carries the crucial term that the tenant is given a concession, and that concession is that if he pays the entire amount mentioned in clause (2) by 10th October, 1970, the landlord will not execute the decree for possession. That has given rise to the question whether clause (1) of the consent decree is in the nature of a penalty for non-payment of the outstanding dues upto 10th October, 1970 or clause (3) of the consent decree is merely a concession given to the tenant if he complies with the terms or requirements of that provision. Now as pointed out earlier the ejectment suit was filed on the allegation that the tenant had neglected to pay the rent and other charges in respect of the demised premises. The suit was, therefore, founded on the right to evict conferred by section 12(3) of the Act. We will assume that it was a case to which clause (b) to that sub-section was attracted. It is evident from the terms of the compromise that even on the date of the comprom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the terms are ambiguous and capable of more than one meaning that evidence aliunde can be permitted to gather the intention of the parties. In our view, the terms forming the basis of the consent decree in the instant case are clear and unambiguous and do not call for extrinsic material to gather the intention of the parties. Two questions, therefore, arise for consideration, namely, (i) did the parties to the compromise intend to create or continue the relationship of landlord and tenant? and, (ii) is the Clause providing for eviction penal in character? Now. as pointed out earlier by clauses (1) and (2) of the compromise terms, the tenant is required to deliver vacant possession of the demised premises to.-,ether with arrears of rent etc. by 10th October, 1970. It is further provided that if the tenant fails to deliver possession and defaults in paying the arrears due from him by 10th October, 1970, the landlord will be entitled to recover both possession and arrears of rent, etc., by executing the decree. Thus by the first two clauses of the consent terms, the landlord secured a decree for possession as well as arrears of rent, etc.-, giving a grace period to the tenant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rement by the stipulated date such a clause granting benefit can never be treated as penal in character. Applying this test to the decree in question, it is obvious that by the first two clauses of the consent terms a decree for possession of the demised premises as well as arrears of rent, etc. is passed and the tenant. is given a grace period upto 10th October, 1970 to comply with the same failing which the landlord is given the right to put the decree to execution and obtain possession of the premises and recover the arrears of rent, etc. through court. By clause (3) of the consent terms, however, the tenant is granted a concession that if he pays the entire rent etc. due from him by 10th October, 1970, the landlord will not put the decree to execution for recovery of possession. This stipulation is clearly to secure his dues i.e. arrears of rent, etc. Depending on the situation in which a landlord is placed, he may grant the concession to the tenant to ensure that the huge amount of arrears is not lost. If he grants such a concession and agrees that if the entire arrears is cleared by a. stipulated date he will not insist on possession that will not render the clause penal in n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of application of section 12(3) (b) of the Act because that clause precludes the passing of the decree if the tenant satisfies the requirements of that provision. It must be remembered that after the enactment of the Act the landlord's right to reenter on expiry of the lease is curtailed by the provisions of the Act which has made special provisions granting protection from eviction if the tenant abides by his obligations under the Act. Under the Act a tenant is allowed to continue in possession notwithstanding the termination of the contractual tenancy if he abides by the provisions of the Act. If he fails to abide by the requirement of section 12(3) of the Act, he must take the consequences flowing therefrom. There is no question of granting him double protection. That is what this Court clarified in Pradesh Kumar Bajpai v. Binod Behari Sharkar, [1980] 3 SCR 93. That was a case arising under the provisions of the U.P. (Temporary) Control of Rent and Eviction Act, 1947. The question which was seriously debated at the Bar before this Court was whether in addition to the safeguards provided to the tenant under the said Act, the tenant was also entitled to the benefit of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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