Vs. Ashish Kumar Das & Anr  Insc 572 (18 November 2003)
S.B. Sinha & Dr. Ar. Lakshmanan. S.B. Sinha, J.
Special Leave Petition (civil) 16511 of 2003
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.
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
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 :
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 :
the decree passed by the High 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.
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.
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.
relevant portion of the aforementioned order is as follows :
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.
fee paid is correct.
it is, Ordered That Misc. Case No.1/02 is allowed on contest without cost.
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 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 :
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.
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.
considered view, the said undertaking was given by the Dr s. before the Hon'ble Apex Court and not before this Court.
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.
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 :
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 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.
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.
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.
[(2002) 3 SCC 533], it is stated:
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)]).
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].
it was held:
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 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.
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." reported
in AIR 1965 SC 1887, it was held:
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." 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.
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.
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
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.
for the reasons aforementioned, are of the opinion that the impugned judgment
cannot be sustained. It is set aside accordingly.
appeal is allowed. No costs.