Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6
CASE NO.:
Appeal (civil) 9131 of 2003
Special Leave Petition (civil) 16511 of 2003
PETITIONER:
Rekha Mukherjee
RESPONDENT:
Ashish Kumar Das & Anr.
DATE OF JUDGMENT: 18/11/2003
BENCH:
CJI, S.B. Sinha & Dr. AR. Lakshmanan.
JUDGMENT:
J U D G M E N T
S.B. Sinha, J.
Leave granted.
Interpretation of a consent order passed by this Court falls for
consideration in this appeal which arises out of a judgment and order
dated 11.6.2003 passed by the High Court of Calcutta in CO No.1147 of
2003.
The appellant herein is the landlord. The respondents were
inducted as tenants. A suit for eviction was filed by the appellant
against the father of the respondents in the court of 3rd Munsif,
Alipore which was marked as Title Suit No.105 of 1975. The said suit
was transferred to 1st Munsif and renumbered as Title Suit No.412 of
1977. The present respondents were substituted in place of the original
defendant on his death. The respondents herein, however, claimed
possession in respect of the suit premises purported to be in
furtherance of part performance of contract in terms of an agreement for
sale in relation whereto they filed a suit being Title Suit No.49 of
1990 for specific performance thereof in the court of 9th Assistant
District Judge, Alipore. The aforementioned Title Suit No.412 of 1977
was decreed and for execution thereof the appellant filed an execution
case before the 1st Munsif, Alipore which was marked as Title Execution
Case No.46 of 1991. In the meanwhile, the respondents preferred an
appeal against the said judgment and decree passed in Title Suit No.412
of 1977 which was allowed by the 8th Additional District Judge, Alipore
on or about 24.02.1992 in Title Appeal No.309 of 1991. A second appeal
thereagainst was preferred by the appellant before the Calcutta High
Court which was marked as Second appeal No.425 of 1992 and by a judgment
and decree dated 18.12.1998 the second appeal was allowed as a result
whereof the decree for eviction was restored.
The matter came up in appeal before this Court by way of Special
leave petition. The said appeal was dismissed by an order dated
18.10.2000 wherein the following agreement between the parties was
recorded :
"Mr. Bhaskar Gupta, learned senior counsel
appearing for the appellants and Mr. Shantanu
Mukherjee, learned counsel for the respondent
agreed to the following order to be passed by
this Court :
Firstly, the decree passed by the High
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
Court is to be affirmed. Secondly, the
respondent shall file an undertaking in this
Court that she would not execute the decree
passed in Suit No.412 of 1977 till the decision
of Title Suit No.49/90.
In view of agreed statement by counsel
for the parties, the decree of the High Court is
affirmed in terms of the agreement between the
parties without prejudice of rights and
contentions of the parties in Suit No.49/90.
The respondent shall file an undertaking within
a period of three weeks from today. The trial
court may make an effort to decide the suit
expeditiously, if possible, within a period of
six months. Learned counsel for the parties
have given assurance that they would not take
unnecessary adjournment."
It is not in dispute that the aforementioned suit for specific
performance being Title Suit No.49 of 1990 was dismissed on or about
20.12.2001, whereafter the appellant filed an application on about
11.2.2002 before the Executing Court for proceedings with execution. An
application filed by the respondents for review of the decree dismissing
the said Title Suit No.49 of 1990, however, was allowed by the 9th
Senior Civil Judge by an order dated 15.07.2002 holding that necessary
order regarding its reopening would be passed after hearing both sides
on the question whether earnest money should be directed to be refunded.
The relevant portion of the aforementioned order is as follows :
"Accordingly, I arrive at the conclusion
that there has been an error of omission while
passing the impugned order no.179 dated
20.12.2001 of T.S. 49/90 by omitting to spell
out whether earnest money should be refunded or
forfeited. This is an error on the face of the
record, which can be rectified by passing
necessary order in this regard after hearing
both sides. So review lies. Therefore, I hold
that the application under Order 47, rule 1 of
the C.P.C. is liable to be allowed.
Court fee paid is correct.
Hence, it is,
Ordered
That Misc. Case No.1/02 is allowed on
contest without cost.
Necessary order will be passed in
T.S.49/90 regarding reopening of Order No.179
dated 20.12.2001 of that suit in the light of
this judgment/order."
An application thereafter was filed for stay of the execution
proceedings by the respondents which was rejected. Correctness of the
said order was questioned before the High Court and by an order dated
7.4.2003, it directed the Executing Court to decide the application for
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
stay upon assigning sufficient reasons. The matter, however, stood
adjourned from time to time. On or about 6.5.2003, the Executing Court
passed the following order :
"It is the admitted position that the
decree holder filed an undertaking before the
Hon’ble Supreme Court to the effect that she
would not execute the decree passed in T.S.
412/77 till the decision of T.S. 49/90. It is
further admitted that T.S. 49/90 was dismissed
by Ld. Civil Judge (Sr. Division) 9th Court,
Alipore. The documents on record reveal that
the said suit was subsequently restored and has
presently been stayed by the Hon’ble High Court
vide F.M.A.T. 2387/02 with C.A. No.7352/02.
The d.hr. has urged that the undertaking before
the Hon’ble Supreme Court has lost its force and
is no longer effective as T.S.49/90 and as such,
there is no bar to proceed with the instant
case. The j.drs. on the other hand, have
contended that on restoration of T.S. 49/90, the
said undertaking has again revived and the
instant case cannot thus be proceeded with.
In my considered view, the said
undertaking was given by the D.rs. before the
Hon’ble Apex Court and not before this Court.
Therefore this court is not in a position to
determine whether the undertaking is still in
force or has ceased to exist. Determination
regarding this point should in my view, be
sought for from the Hon’ble Apex Court before
whom the undertaking was given. Unless this
point is clarified, the instant case cannot be
proceeded with by this court.
In the circumstances, I am inclined to
hold that the instant petn. for adjournment
should be allowed and the parties are given
liberty to take necessary steps in order to
clarify whether the undertaking given before the
Hon’ble Supreme Court is still operative or
not."
Aggrieved by and dissatisfied therewith an application under
Article 227 of the Constitution of India was filed by the appellant
herein. By reason of the impugned judgment, the High Court opined that
as Title Suit No.49 of 1990 has not yet been finally disposed of, the
undertaking given by the appellant herein before this Court still holds
good opining :
"...Admittedly, the Title Suit No.49 of 1990 has
not yet been finally disposed of. The
submission that it was dismissed and thereafter
consequent to an application for review, the
prayer for review has partly been allowed and
the suit has been reopened, is enough to show
that the Title Suit No.49 of 1990 is still
pending. Moreover the settled position of law
is that with the disposal of the suit by a
court of contempt (sic competent) jurisdiction,
what comes into being is res judicata and once
the decree is appealed against or a review is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
applied for it becomes res subjudice. If any
authority is needed reference can be made to the
case of S.P. Mishra vs. Balouji, reported in AIR
1970 SC 809 which was a case decided by the
Supreme Court. In this case in hand, position
is much better because the review has partly
been allowed and the suit has been reopened."
Mr. Santanu Mukherjee, learned counsel appearing on behalf of
the appellant, would argue that having regard to the fact that the
aforementioned Title Suit No.49 of 1990 was dismissed, the undertaking
given by the appellant lost is efficacy. According to the learned
counsel, an undertaking being in the nature of injunction, merges with
the final order and does not remain operative thereafter.
Mr. D.P. Mukherjee, learned counsel appearing on behalf of the
respondents, on the other hand, would submit that the execution
proceedings should remain stayed having regard to the unequivocal
undertaking given before this Court by the appellant in this behalf. Mr.
Mukherjee would contend that the respondents have preferred a regular
substantive appeal against the judgment and decree dated 20.12.2001
passed by the 9th Civil Judge, Senior Division in Title Suit No.49 of
1990 irrespective of the steps taken for review of the said order and in
that view of the matter the decision therein has not attained finality.
The short question which, thus, arises for consideration in this
appeal is as to whether the undertaking of the appellant survives. The
undertaking of the appellant was to the effect that she would not
execute the decree passed in the aforementioned suit till the decision
of Title Suit No.49 of 1990. The said statement must be read together
with the operative portion of the order which would clearly go to show
that the appellant had given the aforementioned undertaking that the
eviction decree would not be executed till the decision of the said suit
for specific performance of contract and not thereafter. This Court
having regard to the aforementioned undertaking made an observation that
the trial court should make an effort to decide the suit expeditiously
and preferably within a period of six months, in relation whereto the
counsel for the parties had given an assurance that they would not take
any unnecessary adjournments. It is now a well-settled principle of law
that a judgment should not be read as a statute.
In Padma Sundara Rao (Dead) and Others Vs. State of T.N. and
Others [(2002) 3 SCC 533], it is stated:
"...There is always peril in treating the words
of a speech or judgment as though they are words
in a legislative enactment, and it is to be
remembered that judicial utterances are made in
the setting of the facts of a particular case,
said Lord Morris in Herrington v. British
Railways Board ((1972) 2 WLR 537 : 1972 AC 877
(HL) [Sub nom British Railways Board v.
Herrington, (1972) 1 All ER 749 (HL)]).
Circumstantial flexibility, one additional or
different fact may make a world of difference
between conclusions in two cases."
[See also Haryana Financial Corporation and Another vs. Jagadamba
Oil Mills and Another [(2002) 3 SCC 496].
In General Electric Co. Vs. Renusagar Power Co. [(1987) 4 SCC
137], it was held:
"As often enough pointed out by us, words and
expressions used in a judgment are not to be
construed in the same manner as statutes or as
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
words and expressions defined in statutes. We do
not have any doubt that when the words
"adjudication of the merits of the controversy
in the suit" were used by this Court in State of
U.P. v. Janki Saran Kailash Chandra ((1974) 1
SCR 31 : (1973) 2 SCC 96 : AIR 1973 SC 2071),
the words were not used to take in every
adjudication which brought to an end the
proceeding before the court in whatever manner
but were meant to cover only such adjudication
as touched upon the real dispute between the
parties which gave rise to the action.
Objections to adjudication of the disputes
between the parties, on whatever ground are in
truth not aids to the progress of the suit but
hurdles to such progress. Adjudication of such
objections cannot be termed as adjudication of
the merits of the controversy in the suit. As we
said earlier, a broad view has to be taken of
the principles involved and narrow and technical
interpretation which tends to defeat the object
of the legislation must be avoided."
In Rajeswar Prasad Mishra Vs. the State of West Bengal and Another
reported in AIR 1965 SC 1887, it was held:
"Article 141 empowers the Supreme Court to
declare the law and enact it. Hence the
observation of the Supreme Court should not be
read as statutory enactments. It is also well
known that ratio of a decision is the reasons
assigned therein."
(See also M/s. Amar Nath Om Prakash and Others Vs. State of Punjab
and Others [1985 (1) SCC 345] and Hameed Joharan (Dead) and Others Vs.
Abdul Salam (Dead) By LRs. And Others [(2001) 7 SCC 573])
The said undertaking was given by the appellant despite the fact
that this Court did not find any merit in the special leave petition
filed by the respondents herein against the judgment and decree passi by
the High Court of Calcutta in the said Second Appeal No.425 of 1992.
We cannot shut our eyes to the ground reality that even the courts
including this Court allow sufficient time to the tenant to vacate the
premises. In the instant case, an undertaking was given by the landlord
to the effect that the decree shall not be executed till the judgment of
the lis relating to the specific performance of agreement. The
expression ’decision’ in the aforementioned situation, in our opinion,
cannot be held to be a decision till it attains finality. Such an
undertaking was given for a specific purpose meaning thereby
determination of the lis by the court in the aforementioned Title Suit
No.49 of 1990 and not beyond thereto. For the purpose of interpretation
of such an undertaking the golden rule of literal meaning shall be
applied. Application of doctrine of merger or for that matter the
principle that appeal is a continuation of the suit will have no
application.
An undertaking of this nature furthermore must be construed in
favour of the person giving such undertaking. It should not be
stretched too far. A party giving an undertaking is bound thereby but
by reason thereof, the same cannot be given a meaning whereby the scope
and extent thereof is enlarged
Had the intention of the parties been that ’decision in the suit’
would mean a ’final decision’ therein, which may include final
determination of the dispute upto this Court, it could have been stated
so specifically. In our opinion, in such an event, a strained meaning
will have to be put which was not the intention of the appellant. If
that was the intention of the appellant, the question of this Court’s
making observations to facilitate early disposal of the suit would lose
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
all relevance.
The Title Suit is pending decision only for a limited purpose,
namely, for refund of the earnest money. The substantive prayer of the
respondents for review of the judgment and decree passed by the trial
court, therefore, has not been accepted. The court has not granted a
decree for specific performance of the contract. The question of
eviction of the respondents in execution of the decree passed in Title
Suit No 412 of 1977 had only a direct relationship with the right of the
respondents to continue to possess the tenanted premises in furtherance
of their plea of part performance of the terms and conditions of the
agreement for sale. Such a right claimed by the respondents herein to
continue to possess the same on the basis of her independent right in
terms of Section 53 of the Transfer of Property Act had been negatived
by the court. The respondents cannot resist their eviction pursuant to
or in furtherance of the decree for eviction passed against them in
execution proceedings thereof.
We, for the reasons aforementioned, are of the opinion that the
impugned judgment cannot be sustained. It is set aside accordingly.
The appeal is allowed. No costs.