Akula Satyavathi Vs. P.N. Vasantha - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default.orderb. subhashan reddy, j.1. this revision petition is directed against the order of the court below dismissing the suit recording the compromise entered into by the plaintiff and the defendant.2. the plaintiff is the revision petitioner who has instituted the suit against the defendant (respondent herein) for recovery of possession and damages. while the written statement was filed, issues were settled and the suit was heading for trial, at that time, the parties invoked the intervention of p.w.2, a mediator, for settling the matter. ex.x-1 was executed by both the plaintiff and the defendant in that regard. pursuant to this, possession of the suit premises was handed over by the defendant to the plaintiff and also an amount of rs. 5,000/- was said to be paid as against claim the damages of rs. 60,000/- after ex.x-1 was acted upon and after taking delivery of possession, the revision petitioner addressed a letter (ex.a-1 signed by the plaintiff) to the district educational officer, kakinada stating specifically that the matter has been compromised and as such, she is not pressing the suit filed against the defendant in the court of the subordinate judge, pithapuram.3. thereafter, when the defendant has filed an application under order 23 rule 3 c.p.c. to record the said compromise and to dismiss the suit, the revision petitioner contested the same stating that inasmuch as both the parties did not enter into a compromise and signed and filed into the court, the court is not entitled to entertain the same. repelling the argument of the plaintiff, the court below has accepted that there was a compromise entered into by the parties and as such, recorded the compromise. however, the court below held that rule 3 of order 23 c.p.c. comprised of two parts and that only under the 1st part where the compromise entered into out of the court, the agreement or compromise need be in writing and signed by the parties, and under the 2nd limb of the said rule, no such requirement is necessary. but, this order of the court below is fallacious. even though mr. sarma, the learned counsel for the respondent-defendant seeks to justify the judgment of the court below on the strength of the judgment in manohar lal v. surjan singh, , the same is non est in view of the said decision being over-ruled by the latest decision of the supreme court in curpeer singh v. chatur bhuj goel, : [1988]2scr401 . as such, i disagree with the reasoning of the court below that under the 2nd limb of rule 3 of order 23 c.p.c, no written agreement, compromise or satisfaction is necessary. i hold that the entire rule 3 of order 23 c.p.c. has got to be read in composite manner and when it is read so, it leads to no doubt that for any compromise, agreement or satisfaction out of court, the matter should be in writing and no plea with regard to oral agreement or compromise or satisfaction can be entertained. there should certainly be a document evidencing the same and that is the mandate of order 23 rule 3 c.p.c. it has to be borne in mind that the words 'in writing and signed by the parties' have been added by the amending act 1976 to order 23 rule 3 c.p.c. and if rule 3 is dissected, the entire provision becomes otiose defeating the very object and intendment of the amending act which incorporated the provision having regard to the background of the vexatious litigation setting up oral compromises, agreements or satisfactions as the case may be.4. coming to the 2nd aspect as to whether really there is a compromise in this matter, the matter admits of no doubt and leaves no ambiguity. ex.x-1 is the agreement signed by both the plaintiff and the defendant submitting to the arbitration of p.w.2. the signature of the plaintiff is admitted by her husband appearing as r.w.i. pursuant to this agreement compromising the matter, the defendant has delivered the possession of the suit house to the plaintiff and this is admitted by the plaintiff. the plaintiff has written ex.a-1 letter to the district educational officer, kakinada confirming that compromise was entered into and was acted upon and that she was not pressing the suit. the signature on ex.a-1 is identified and admitted by the plaintiff's husband as r.w.i. in the circumstances; the irresistible conclusion is that a compromise was entered inter se the plaintiff and the defendant i.e., the petitioner and the respondent and as such, the court below did not commit any error in recording the same, even though the reasoning is legally incorrect which i have corrected by holding otherwise in so far as the scope and interpretation of order 23 rule 3 c.p.c.5. in the result, the revision petition fails and is dismissed accordingly. no costs.

Judgment:
ORDER

B. Subhashan Reddy, J.

1. This revision petition is directed against the order of the Court below dismissing the suit recording the compromise entered into by the plaintiff and the defendant.

2. The plaintiff is the revision petitioner who has instituted the suit against the defendant (respondent herein) for recovery of possession and damages. While the written statement was filed, issues were settled and the suit was heading for trial, at that time, the parties invoked the intervention of P.W.2, a mediator, for settling the matter. Ex.X-1 was executed by both the plaintiff and the defendant in that regard. Pursuant to this, possession of the suit premises was handed over by the defendant to the plaintiff and also an amount of Rs. 5,000/- was said to be paid as against claim the damages of Rs. 60,000/- After Ex.X-1 was acted upon and after taking delivery of possession, the revision petitioner addressed a letter (Ex.A-1 signed by the plaintiff) to the District Educational Officer, Kakinada stating specifically that the matter has been compromised and as such, she is not pressing the suit filed against the defendant in the Court of the Subordinate Judge, Pithapuram.

3. Thereafter, when the defendant has filed an application under Order 23 Rule 3 C.P.C. to record the said compromise and to dismiss the suit, the revision petitioner contested the same stating that inasmuch as both the parties did not enter into a compromise and signed and filed into the Court, the Court is not entitled to entertain the same. Repelling the argument of the plaintiff, the Court below has accepted that there was a compromise entered into by the parties and as such, recorded the compromise. However, the Court below held that Rule 3 of Order 23 C.P.C. comprised of two parts and that only under the 1st part where the compromise entered into out of the Court, the agreement or compromise need be in writing and signed by the parties, and under the 2nd limb of the said rule, no such requirement is necessary. But, this order of the Court below is fallacious. Even though Mr. Sarma, the learned Counsel for the respondent-defendant seeks to justify the judgment of the Court below on the strength of the judgment in Manohar Lal v. Surjan Singh, , the same is non est in view of the said decision being over-ruled by the latest decision of the Supreme Court in Curpeer Singh v. Chatur Bhuj Goel, : [1988]2SCR401 . As such, I disagree with the reasoning of the Court below that under the 2nd limb of Rule 3 of Order 23 C.P.C, no written agreement, compromise or satisfaction is necessary. I hold that the entire Rule 3 of Order 23 C.P.C. has got to be read in composite manner and when it is read so, it leads to no doubt that for any compromise, agreement or satisfaction out of Court, the matter should be in writing and no plea with regard to oral agreement or compromise or satisfaction can be entertained. There should certainly be a document evidencing the same and that is the mandate of Order 23 Rule 3 C.P.C. It has to be borne in mind that the words 'in writing and signed by the parties' have been added by the Amending Act 1976 to Order 23 Rule 3 C.P.C. and if Rule 3 is dissected, the entire provision becomes otiose defeating the very object and intendment of the Amending Act which incorporated the provision having regard to the background of the vexatious litigation setting up oral compromises, agreements or satisfactions as the case may be.

4. Coming to the 2nd aspect as to whether really there is a compromise in this matter, the matter admits of no doubt and leaves no ambiguity. Ex.X-1 is the agreement signed by both the plaintiff and the defendant submitting to the arbitration of P.W.2. The signature of the plaintiff is admitted by her husband appearing as R.W.I. Pursuant to this agreement compromising the matter, the defendant has delivered the possession of the suit house to the plaintiff and this is admitted by the plaintiff. The plaintiff has written Ex.A-1 letter to the District Educational Officer, Kakinada confirming that compromise was entered into and was acted upon and that she was not pressing the suit. The signature on Ex.A-1 is identified and admitted by the plaintiff's husband as R.W.I. In the circumstances; the irresistible conclusion is that a compromise was entered inter se the plaintiff and the defendant i.e., the petitioner and the respondent and as such, the Court below did not commit any error in recording the same, even though the reasoning is legally incorrect which I have corrected by holding otherwise in so far as the scope and interpretation of Order 23 Rule 3 C.P.C.

5. In the result, the revision petition fails and is dismissed accordingly. No costs.