LAW OF TORTS

PROJECT

CASE ANALYSIS

Submitted to:
MR. S. MURTHY

Submitted by: Shantanu Naresh SAP ID: 500012215 B.B.A. , LL.B. (Hons.) 3rd Semester

Principal Faculty Law of Torts UPES, Dehradun

Facts:
The appellant is a private limited company. The respondent is a public limited company incorporated under the Indian Companies Act, 1956 and having its registered office at Vadodara. The appellant entered into an agreement dated 20.05.1993 under which the respondent as a tenant agreed to hand over vacant possession of the premises occupied by it as tenant situated on the ground floor of 943, Vibhag-C-Tika No.8/4 together with an open space of 511 sq. ft. in front of the said premises situated at Alankar Building to the appellant in exchange of new premises to be allotted by the appellant on ownership basis in the new building which was to be constructed by the appellant. The respondent herein apprehending that the appellant may commit breach of the said agreement preferred a Special Civil Suit No.604 of 1993 in the Court of Civil Judge, Senior Division at Vadodara and prayed for a decree of specific performance. In Special Civil Suit No.604 of 1993, consent terms duly signed by the respective parties were placed on record of the suit and the Civil Court based on the said consent terms proceeded to pass a consent decree. The consent terms are as under: 1.The defendant specifically agrees, declares and confirms that the said agreement dtd.20/5/93 annexed with the plaint registered with the office of the Sub-Registrar, Baroda vide serial no.8746, is valid, subsisting and binding agreement between the Plaintiff and defendant therein. 2. The Plaintiff above named shall vacate the present premises, within a week from the date of filing these consent terms, and will occupy the premises offered by the defendant and shall continue to pay monthly rental of Rs.1150.00. 3. The said agreement shall continue, only until such time when the defendant hands over the premises referred in para (7) of the Plaint, to the Plaintiff. The defendant have agreed and undertaken to this Hon'ble Court to hand over vacant possession of the premises on Ownership basis, maximum within a period of 18 (Eighteen) month, in terms of agreement dtd.20/5/93, subject to compensation Clause as spelled out hereafter.

4. The defendant shall pay Compensation at the rate of Rs.1000/- per day, in the event of their failure to hand over the newly built premises on Ownership basis, after executing necessary SaleDeed, within the period of 18 months. 5. In consideration of the Plaintiff agreeing to hand over vacant premises, and in consideration of their shifting of alternate accommodation as offered by the defendant and in consideration of payment of Rs.8,00,000/- (Rs. Eight Lacs Only) by the Plaintiff, the defendant, shall and hereby agree and undertake to this Hon'ble Court, to hand over vacant possession of the undermentioned premises on Ownership basis under the Due Conveyance Deed and duly completed in all respects with Occupation Certificate issued by the Baroda Municipal Corporation in the property known as Alankar Towers and more particularly situated on western front end facing the Sayajigunj Police station. a) 2700 sq. ft. Super Built-up area on elevated Ground Floor. b) 2100 sq. ft Super Built-up area on First Mezzanine Floor. c) 664 sq. ft. Super Built-up area on Second Mezzanine Floor. d) 2100 sq. ft. Super Built-up area on Third Mezzanine Floor. e) 528 sq. ft. Exclusively attached open terrace above the Ground Floor and f) Two Car parking

Space in the Basement g) Advertising rights between the canopy of the Elevated Ground Floor & First Floor 6. The defendant shall not transfer, offer or handover possession of any other premises in the said building " To any other purchaser" until & unless they have handed over the possession of the above stated vacant premises to the Plaintiff. The said premises approximately admeasures 8092 sq. ft. The said premises are shown in Red Ink in the drawing annexure 'a' to the suit agreement. 7. The defendant shall undertake to provide amenities and shall furnish the premises as detailed in Annexure 'B' to the suit Agreement. Both the Annexures 'A' and 'B' are also annexed to these consent terms and shall form part of this consent terms as far as details about premises & amenities is concerned. 8. The defendant shall provide for parking space for two cars, in the basement of the suit property, to the Plaintiff. 9. The defendant undertakes to provide for advertising rights between the canopy of elevated ground floor and first floor. 10. Requisite Court Fee Refund Certificate be issued in the name of the Plaintiff and/or Plaintiff's Advocate. Since the defendant has not delivered the possession of the premises as per the consent decree. The Plaintiff claims a compensation amount of Rs.934000/- for 934 days at the rate of Rs.1000/- per day." Record reveals that the appellant failed to comply with the consent decree drawn on the basis of consent terms which were placed on the record of the Special Civil Suit No.604 of 1993. In this background, the respondent preferred Special Darkhast No.46 of 1997 and prayed for the following relief(s): a) The defendant be ordered to execute a Conveyance Deed (Sale Deed) duly signed and completed in all respects alongwith the Occupation Certificate issued by the Baroda Municipal

Corporation, by accepting and admitting consideration of payment of Rs. Eight Lacs at that time, and convey all legal, clear and valid title and possession of the premises described in consent terms (5) read with annexure 'A' and 'B' to the Agreement dtd. 20/5/93 and b) If the defendant fails to execute the sale-deed as per law, in favor of the plaintiff as prayed in Clause(a), the Hon'ble Court may please appoint a Court Commissioner and he be authorized with all powers, to execute Sale-Deed in favor of plaintiff, at the cost of the plaintiff, and be ordered to take vacant possession of the premises from the defendant and be delivered to the plaintiff, by accepting sale consideration as agreed in Consent Terms. c) The plaintiff further prays, that the defendant have committed breach of terms of para (3) of the consent terms, by not delivering vacant possession of the premises as described in terms no.(5) of the consent terms within 18 months, therefore the defendant becomes liable to pay compensation to the plaintiff over and above the relief clause 11 (a) and 11 (b) at the rate of Rs.1000/- per day, till the execution of the sale-deed. The said period of 18 months have expired on 28/1/1995. Since 29/1/95 till the filing of this execution darkhast i.e. on 20 Aug 97, 934 days have passed, during which the defendant have not delivered possession and still continues to default in delivering possession, hence Rs.934000/- be ordered to be paid by the defendant to the plaintiff as Compensation as per the terms (4) of the Consent Terms at the rate of Rs.1000/- per day, and be further ordered to pay every month, from the date of this darkast the compensation at the same rate till the sale deed is executed. The Compensation be recovered by order of attachment of moveables of the defendant by issuing a Warrant under O.21.R.30. The detailed description of immoveable is mentioned in Annexure 'X' annexed with this application and in the alternative, the moveable property, as described in Annexure 'y' be attached and sold under the execution of a Decree. The plaintiff further prays for detention of Jugement Debtor in Civil prison, as they have intentionally committed breach of the terms of Compromise Decree with a malafide intention to enrich himself by not complying their obligation in time. d) The plaintiff further prays that a Decree for specific performance of a Contract be executed under O21 R.32 read with Rule 31 & 35 of C.P. Code. The plaintiff further prays that the defendant has given undertaking to the Hon'ble Court as per the terms of Compromise being terms no (3) & (5) and the defendant had undertaken to handover vacant possession of the

premises as described in terms no (5) of the consent terms and more particularly described in Annexure 'A' to the agreement dtd.20/5/93 on ownership basis within a period of 18 months and had further undertaken to handover and/or transfer the said premises by executing Sale-Deed duly executed in all respects. The said undertaking has not been fulfilled by the defendant, hence the defendant have committed Contempt of Court, and therefore also the defendant be ordered to be sent in Civil Jail, and their property being moveables & Immoveable be attached and a heavy fine be imposed." 4. It appears that the learned 10th Additional Senior Civil Judge, Vadodara decided to lead evidence oral as well as documentary in Special Darkhast No.46 of 1997 on the points which were framed for determination vide Exh:24. While deciding Exh:1 in Special Darkhast No.46 of 1997, the learned Civil Judge addressed itself on the following issues: "1. Whether the decree in Special Civil Suit No.604/93 is without jurisdiction. 2. Whether the JUDGMENT-DEBTOR. is estopped in law to raise contentions as alleged/objections under section 47 when the JUDGMENT-CREDITOR has changed his position by surrender of tenancy and delivery of tenanted premised to his detriment ? 3. Whether the Executing Court can go behind the decree to consider the pre-decree contentions ? 4. Whether the Executing Court has jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. 5. Whether the compromise decree creates an estoppel by judgment and operate as res judicata even if it is extended beyond subject matter of suit ? 6. Whether the decree is executable ? 7. What order" 5. The learned Single Judge proceeded to answer the points for determination as under:

"1. In negative 2. in affirmative 3. in negative 4. in affirmative 5. Partly affirmative 6. in affirmative 7. As per order" 6. The learned Civil Judge accordingly disallowed the objections which were raised by the appellant herein as a judgment debtor and passed an order to proceed further with the execution of Special Darkhast No.46 of 1997 in accordance with law and as prayed for by the respondent herein. 7. Aggrieved by the said order passed by the learned Civil Judge, Vadodara, the appellant herein preferred Special Civil Application No.14277 of 2010. The learned Single Judge refused to grant any relief and rejected the petition. At this stage, the appellant herein thought fit to prefer this appeal under Clause-15 of the Letters Patent . 8. We have heard learned advocate Mr.B.S. Patel appearing for the appellant and learned Senior Counsel Mr.S.I. Nanavati appearing with learned advocate Ms.Anuja Nanavati for the respondent. 9. Learned advocate Mr.Patel would submit that the Special Civil Suit No.604 of 1993 preferred by the respondent herein in the Court of Civil Judge, Senior Division, Vadodara was not maintainable and was barred under Section 28 of the Bombay Rent Act. 10. He would submit that if the suit was barred then the consent decree which was drawn in the said suit based upon the consent terms which were agreed upon between the parties i.e. the appellant and the respondent would also be a nullity.

11. He further submitted that the learned Single Judge has not taken into consideration the fact that the appellant is ready and wiling to restore the same portion on the same site to the respondent of newly constructed building. 12. He further submitted that the learned Single Judge ought to have decided the issue of jurisdiction. 13. He further submitted that the learned Single Judge has not decided as to whether the Court which passed the consent decree had the jurisdiction to entertain the suit or not. 14. He further submitted that the consent decree which was drawn in the Special Civil Suit No.604 of 1993 by the learned Civil Judge, Senior Division, Vadodara was in substance between a tenant and a landlord and in that event, jurisdiction of the learned Civil Court was barred and the parties could not have conferred jurisdiction by consent. 15. He lastly submitted that after institution of the execution proceedings, the respondent company preferred the suit before the Small Cause Court for protection of its possession which was given in pursuance of the same decree for declaration that the respondent is a tenant of the suit premises and this would amount to waiving the right accrued under the consent decree. 16. Per contra, learned Senior Counsel Mr.S.I. Nanavati appearing for the respondent submitted that the appeal itself is not maintainable under Clause-15 of the Letters Patent. 17. He submitted that the petition before the learned Single Judge was substantially a petition under Article 227 of the Constitution arising from an order passed by a Civil Court in execution proceedings. 18. He submitted that the learned Single Judge in exercise of its supervisory jurisdiction under Article 227 of the Constitution refused to grant any relief and rejected the petition. In this view of the matter, he would submit that the appeal is not maintainable. 19. He submitted that even if the Court holds that the appeal is maintainable, the same deserves to be dismissed as no error can be said to have been committed by the learned Single Judge much less any error of law warranting any interference at our hands in this appeal.

20. He further submitted that the contention as regards the jurisdiction of the Court which passed the consent decree is not tenable in law. He, therefore, prayed to dismiss the appeal. 21. Having heard learned counsels for the respective parties and having considered the rival contentions raised by both the sides, we would like to examine the matter on merits without going into the question as regards the maintainability of the appeal. 22. There is no dispute to the fact that the appellant and the respondent entered into a settlement by reducing the terms of settlement in writing. The terms of the settlement are now a part of the record of Special Civil Suit No.604 of 1993 in the form of a consent decree. It is this consent decree which the respondent wants to enforce for which he preferred Special Darkhast No.46 of 1997 wherein the appellant herein raised number of objections including the objection as regards the jurisdiction of the Court which passed the consent decree. The only valid objection which the appellant could have raised before the Executing Court and which has been raised in fact can be with regard to the jurisdiction. It is settled law that if the Court has no jurisdiction to entertain the suit then the consent decree, if any, would also be not binding to the parties, as the same would be without jurisdiction. However, the Executing Court has dealt with this issue quite elaborately and has answered the same against the appellant. It is well settled that the issue of jurisdiction must be determined on the basis of averments made in the plaint. It is a case of the respondent original plaintiff that the tenancy of the respondent was in respect of the building which he was occupying as a tenant. It is only upon the terms agreed upon that the respondent agreed to vacate the premises on the assurance given by the appellant to hand over vacant possession of the new premises on ownership basis. We may once again reproduce that part of the consent terms which is as under: "5. In consideration of the Plaintiff agreeing to hand over vacant premises, and in consideration of their shifting of alternate accommodation as offered by the defendant and in consideration of payment of Rs.8,00,000/- (Rs. Eight Lacs Only) by the Plaintiff, the defendant, shall and hereby agree and undertake to this Hon'ble Court, to hand over vacant possession of the undermentioned premises on Ownership basis under the Due Conveyance Deed and duly completed in all respects with Occupation Certificate issued by the Baroda Municipal Corporation in the property

known as Alankar Towers and more particularly situated on western front end facing the Sayajigunj Police station. a) 2700 sq. ft. Super Built-up area on elevated Ground Floor. b) 2100 sq. ft Super Built-up area on First Mezzanine Floor. c) 664 sq. ft. Super Built-up area on Second Mezzanine Floor. d) 2100 sq. ft. Super Built-up area on Third Mezzanine Floor. e) 528 sq. ft. Exclusively attached open terrace above the Ground Floor and f) Two Car parking Space in the Basement g) Advertising rights between the canopy of the Elevated Ground Floor & First Floor" 23. The respondent - original plaintiff is seeking to enforce its right to obtain the premises as per the terms of settlement and the consent decree. 24. It would be material at the outset to examine certain settled principles on the basis of which such a contention of nullity could be gone into by the Executing Court. The position of law is

quite well settled. The Executing Court has gone into the question of validity of a decree to examine whether the decree was a nullity in the true sense. In such a case, the distinction must always be kept in mind between objections which are of technical nature and which could be waived. It is only the objection as to the competence of the Court over the subject matter to try the suit or over the parties, which could not be waived and which would, therefore, render a decree a nullity in the true sense and such an objection alone could be raised before the Executing Court or even in the collateral proceedings. An objection of nullity in the context of a consent decree under Order-23 Rule-3 could be urged even before the Executing Court, if the Trial Court lacked inherent jurisdiction over the subject matter itself to entertain such a compromise, as the matter was one on which the Civil Court's jurisdiction was wholly excluded or because it was the Court of limited jurisdiction and it had no jurisdiction over the subject matter on which it sought to pass a consent decree or because the suit as instituted was inherently incompetent. It is only when the Court lacked such inherent competence over the subject matter or the parties that the decree would be nullity and the question could be urged even before the Executing Court. If, however, the Court did not lack such inherent competence or jurisdiction to record a compromise and the error which it had committed was one in incorporating the entire compromise in the operative decree or such an error which was merely an illegality, the error would be one in the exercise of jurisdiction. Such an objection would be one which could be waived and so if no appeal or revision or writ proceeding was filed, it would not be open to the Executing Court in any event to go into any such objection. 25. In the present case, the main thrust of the argument appears to be that in view of Section 28 of the Bombay Rent Act, the suit which was filed by the respondent in which settlement was arrived at and based on the consent terms the compromise decree which was passed by the Civil Court can be said to be without jurisdiction. It appears that the contention is that only the Rent Court under whom jurisdiction is vested could have passed the consent decree based on the terms of the settlement. Now how will the Court decide as to whether Section 28 of the Bombay Rent Act is applicable in the facts and circumstances of the case considering the nature of the dispute and the subject matter or the ordinary Civil Court had the jurisdiction to entertain the suit filed by the respondent herein was for specific performance of the agreement. It is evident that the

Executing Court will have to look into the terms of the settlement and also incorporate the terms for finding out whether the premises in question were covered by the Rent Act. 26. We are of the view that if the Executing Court is of the view that the issue requires examination of question raised and the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record then in that case, the Executing Court owes a duty to proceed further with the execution and give true effect to the consent decree drawn by the Court concerned, though in the present case, the Civil Judge has led oral as well as the documentary evidence and has come to the conclusion that the objection of jurisdiction raised by the appellant is not tenable in law. 27. In taking this view, we are fortified by the Division Bench ruling of this High Court in the case of Shah Rasiklal Chunilal v. Sindhi Shyamlal Mulchand reported in 1971 GLR 1012 wherein the Division Bench very succinctly explained the position of law as under: ".....In Vasudev Modi V/s. Rajabhai Abdul Rehman, AIR 1970 SC 1475 a decree for ejectment on a lessee was passed by the Court of Small Causes under the Rent Act without any objection to its jurisdiction. Even when the question of jurisdiction of that Court to entertain such a suit depended upon interpretation of the terms of the agreement of a lease and the user to which the land was put at the date of the grant of lease in view of the definition of the term premises under the Act it was held by their Lordships that these questions could not be permitted to be raised in an execution proceeding so as to displace jurisdiction of the Court which passed it. At page 1476 their Lordships pointed out that when a decree which is a nullity for instance where it is passed without bringing the legal representative on record of a parson who was dead at the date of the decree or against a ruling prince without a certificate or when the decree is made by a Court which has no inherent jurisdiction to make it objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record. Where however the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the question raised and decided at the trial or which could have been but have not been raised the executing Court would have no jurisdiction to entertain

the objection as to the validity of the decree even on the ground of absence of jurisdiction of such a Court of limited jurisdiction. It was therefore held by their Lordships that the High Court could not in execution interpret terms of the lease for finding out whether the premises in question were covered by the Rent Act. The executing Court could not go behind the decree between the parties or their representatives and could not entertain an objection that the decree was incorrect in law or in fact until it was set aside by an appropriate proceeding in appeal or revision. A decree even if it were erroneously passed must be held to be binding as between the parties. Therefore even in the case of Court of limited jurisdiction it is now well-settled that the objection as to nullity can be raised before the executing Court if such an objection appeared on the face of the record and did not require any further investigation into facts to determine that question". 28. It is settled position of law that the question of exclusive jurisdiction under Section 28(1) of the Bombay Rent Act does not depend upon the plea raised by the defendant but on the averments made in the plaint. It is also a settled law that mere form of relief claimed is not conclusive of the real disputes and that has to be gathered from the reading of the plaint as a whole. It is a nature of the dispute raised in the plaint that determines the question of jurisdiction and not in the defence. 29. It will be necessary to refer to the provision of Section 28(1) of the Bombay Rent Act. Section 28(1) of the Bombay Rent Act reads as under: "28. Jurisdiction of Courts. [(1) Not withstanding anything contained in any law and notwithstanding that by reason of the amount of the claim or for any other reason, the suit or proceeding would not, but for this provision, be within its jurisdiction,[(a) in the city of Ahmedabad, the Court of Small Causes of Ahmedabad,] [* * *] [(aa) in any areafor which a Court of Small Causes is established under Provincial Small Causes Court Act, 1887 (IX of 1887), such court and]

(b) elsewhere, the court of the Civil Judge (Junior Division) having jurisdiction in the area in which the premises are situate or, if there is no such Civil Judge, the Court of the Civil Judge (Senior Division) having ordinary jurisdiction. Shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of this part apply and to decide any application made under this Act and to deal with claim or question arising out of this Act or any of its provisions and [subject to the provisions of sub-section (2),] no other court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question." "Sub-section (1) can be divided into two parts - First part confers exclusive jurisdiction on specified Courts by non-obtante clause. Second part excludes jurisdiction of all other Courts than the one specified. The logical effect of this section is to deprive certain Courts of their original jurisdiction, which they possessed before the coming into operation of Rent Act. So far as specified Rent Courts, its original jurisdiction has been expanded in subject matter, value of the subject matter and in some matter even territorial. To clarify Small Cause Court can now deal with suit for possession of immovable property. The Rent Courts now are entitled to deal with for possession of immovable property. The Rent Courts now are entitled to deal with claim for unlimited amount. All incidental and ancillary questions to the main issue can also be dealt with by Rent Court. So, question whether a charge for arrears of rent on the property outside the jurisdiction of the Court in question can also be decided by the Court having jurisdiction." "The clause below sub-clause (b) of sub-section (1) of section 28 can conveniently be divided into 3 limbs. Firstly, suit for proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this part (part II) apply. Secondly, any application made under this Act. Thirdly, deal with any claim or question arising out of this Act or any of its provisions. I. The first requirement is that part II of the Act must apply to the premises in question, for which a suit, application or proceeding relates. The second requirement is that the dispute must be in

between a landlord and a tenant. This would include a determination of such relationship, namely, a landlord of the tenant and vice versa In other words the relationship may be admitted or disputed but still the Rent Court will have jurisdiction. Thirdly, the dispute must relate to the recovery or rent or possession or rent and possession both. II. The applications under the Act are also within the competence of Rent Courts. They are applications under order 9 rule 9 or order 9 rule 13 of C.P.C. arising out of suits mentioned above in I, applications under section 16(3), section 17(1), section 17A(1), section 17C(1), applications for fixation of standard rent and permitted increases under section 11, applications for restoration of essential supply under section 24(2), applications under section 13A. (Guj.), applications under section 23A(2) (Mah.) and execution applications and orders and decrees passed under this Act, etc. III. Any claim of question arising out of the Act or its provisions. Even if there is no relationship of landlord and tenant but a claim or question raises under the Act, e.g. an application or suit under section 18(3). The third limb "any claim or question arising out of this Act or any of its provisions" was sufficient, as in England by section 17(2) of 1920, Act, but Bom. Legislature out of abundant caution, made explicit what was implicit, by first two limbs. Thus, now third limb becomes residuary. There are certain suits which are not covered by the provisions of Rent Act and hence such suits can be entertained and tried by ordinary Civil Court, City Civil Court or High Court. To illustrate (i) a suit under section 9 (now section 6) of Specific Relief Act for possession of property from which the plff. was dispossessed without due course of law (ii) a suit purely based on contract for exchange of flats, after the premises are remodelled and the suit is for specific performance of such contract, (iii) a suit for damages based on contract or tort (iv) a suit where there is no such relationship of landlord and tenant and (v) a suit dehors the Rent Act. These illustrations will be dealt with each separately below." 30. Thus, for applicability of Section 28(1), following conditions must be satisfied before taking the view that the jurisdiction of regular Competent Civil Court like City Civil Court is ousted: "(i) It must be a suit or proceedings between a landlord and a tenant;

(ii) Such suit of proceedings must relate to the recovery of rent or possession of any premises to which any of the provisions of the Bombay Rent Act would apply." 31. Assuming for the moment that at the time of institution of the suit by the respondent against the appellant, the relationship between them was that of landlord and tenant, though the same has been seriously disputed that too other conditions or requirements to bring the case within the ambit of Section 28 are admittedly not fulfilled. The suit was not for recovery of the rent nor for possession of the premises to which the provision of the Bombay Rent Act would apply. 32. The real question to be determined in each case is whether the plaintiff who has come to the Court, in substance, wants his relief, whereby the claim between the parties, as landlord and tenant, as such, is required to be adjudicated. If the reply is in affirmative, Section 28 comes into play. But, if the plaintiff wants an adjudication of his rights under a contract, express or imply, and claims declaration or injunction or both or damages, which has nothing to do with its rights either as landlord or tenant, then ordinarily Civil Courts have jurisdiction. As it is evident from the nature of the suit which was instituted by the respondent as a plaintiff that the respondent wanted a specific performance of the agreement and as there was a settlement, the consent terms were reduced into writing and a consent decree was accordingly drawn. 33. Under the said consent terms and the consent decree which was drawn by the Civil Court, the appellant herein took advantage and got possession of the rented premises from the respondent and also constructed a new building as agreed upon within time-gap to execute the sale deed in favour of the respondent by accepting a sum of Rs.8 lakhs as per the terms and the consent decree. The appellant appears to have resiled from its undertaking and obligation as per the consent decree. 34. In our view, most important and essential ingredient for applicability of Section 28 of the Bombay Rent Act to the effect that the claim or question should have arisen under the Act is found missing. 35. It would also be appropriate to refer to ruling of the Supreme Court in the case of Topandas Vs. Gorakhram reported in AIR 1964 SC 1348, though the ratio of this ruling of the Supreme Court is not directly applicable to the facts of the present case, but still principle explained is that

the jurisdiction of the ordinary Civil Court is not lost simply because the defendant raises a plea of tenancy governed by the Rent Act. Supreme Court held as under: "Section 28, no doubt, gives exclusive jurisdiction to the Court of Small Causes to entertain and try a suit or proceeding between a landlord and a tenant relating to recovery of rent or possession of any premises to which any of the provisions of any premises to which any of the provisions of Part II apply; it also gives exclusive jurisdiction to decide any application under the Act and any claim or question arising out of the Act or any of its provisions - all this notwithstanding anything contained in any other law. But the section does not say or intend to say that the plea of the defendant will determine or change the forum. It proceeds on the basis that exclusive jurisdiction is conferred or certain courts to decide all questions or claims under the Act as to parties, between whom there is or was a relationship of landlord and tenant. It does not invest those Courts with exclusive power to try questions of title, such as questions as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If, therefore, the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under Section 28 depends, the defendant by his plea cannot force the plaintiff to go to a forum where on his averments he cannot go. (Emphasis supplied.)" 36. Thus, what can be deduced from the facts on record is that Special Civil Suit No.604 of 1993 preferred by the respondent in the Court of Civil Judge, Senior Division, Vadodara was for specific performance of the agreement dated 20.05.1993 between the appellant and the respondent cannot be said to file a suit by the tenant against the landlord for possession of premises which are let out to the tenant. Strictly speaking there was never a relationship of landlord and tenant between the appellant and the respondent herein. When the suit agreement is specifically enforced, the respondent herein as the original plaintiff decree holder would be able to acquire the allotted accommodation in the new building on ownership basis and not as a tenant. 37. In the present case, the property known and recognized as "Alankar Property" was owned by one Norman Villiam. Shri Norman Villiam executed a lease deed in favour of the appellant company on 11.03.1993. It appears that on the strength of this lease deed, the appellants were recovering rent from the tenants who were occupying the premises in Alankar Property. The

appellants herein offered to the respondent and area on ownership basis in the new building which was agreed upon by the appellant to be constructed. The appellants offered to the respondent as a time-gap arrangement, an alternative accommodation to the respondent to continue his business activity for which the respondent had to pay monthly rent of of Rs.1,150/per month. 38. It is undisputed that the appellants complied with the part of their obligation giving alternative premises temporarily as per term (2) of the consent terms. This arrangement was to continue only till the performance of agreement dated 20.05.1993. The appellant agreed and undertook to hand over the vacant possession after constructing the new premises more particularly described in consent terms no.5 of the decree on ownership basis within the maximum period of 18 months from the date of filing of the consent terms. 39. It is also undisputed position that the respondent was always ready and willing to pay to the appellant a sum of Rs.8 lakhs in consideration of conveyance under the term no.(5) of consent terms. 40. It is also undisputed that the appellant constructed new premises as stated in consent term no.5 except the portion (e) 528 sq. ft. exclusively attached open terrace and the same is ready for delivery to the respondent. 41. However, the appellant appears to have refused to fulfill its part of the undertaking and obligation as per the terms of the consent decree and therefore, the respondent had no other objection but to apply for the execution of the decree. It is also apparent from the relief as prayed for in the execution application that the respondent wants the conveyance deed executed in his favour by the appellant along with the Occupation Certificate issued by the Baroda Municipal Corporation by accepting and admitting consideration of payment of Rs.8 lakhs and convey all legal, clear and valid title and possession of the premises described in consent terms (5) and in the event, if the appellant fails to execute the sale deed then the Court Commissioner be appointed to execute the sale deed in favour of the respondent at the cost of the appellant and put the respondent in vacant and peaceful possession of the premises.

42. Thus, it can be seen that the original suit was for specific performance of the agreement and the respondent had to prefer such a suit because there was an apprehension on the part of the respondent that the appellant may commit breach of the agreement. 43. We have to our advantage and also to the advantage of the respondent a ruling of the Division Bench of the Bombay High Court in the case of RaghubirNarayan Lolikar and others Vs. G. A. Fernandes reported in AIR 1953 Bombay 76, the issue before the Division Bench of the Bombay High Court was as to whether the suit in question could be regarded as a suit for possession coming within the purview of Section 28 of the Bombay Rent Act and thereby, the High Court would have jurisdiction to try the suit for specific performance. The Bombay High Court answered as under: "S. 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, applies only to those suits between a landlord and a tenant where a landlord has become entitled to possession or recovery of the premises demised. Under the Transfer of Property Act a landlord becomes entitled to possession when there is a determination of tenancy. A tenancy can be determined in any of the modes laid down in S.111, T. P. Act and once the tenancy is determined, under S. 108 (q) the lessee is bound to put the lessor into possession of the property. It is, therefore only on the determination of the lease or the tenancy that the landlord becomes entitled to the possession of the property, and when he has so become entitled to possession, if he files a suit for a decree for possession, then S. 28 applies and such a suit can only be filed in the Small Cause Court. AIR 1951 Bom. 390, Refl. on." "The plaintiffs gave a notice to quite to the defendants who were his tenants in respect of various portions of the premises. The notice was followed by an ejectment suit in which an agreement was arrived at between the landlords and the tenants. Under the agreement the tenants were bound to give all reasonable facilities to the landlord for repairing and remodelling the premises and after they were remodelled they were to be given other premises in exchange for the premises in their occupation. After the remodelling was over the plaintiffs called upon the defendants to carry out the agreement but the defendants refused to exchange their premises. The plaintiffs thereupon brought a suit for specific performance with a prayer for mandatory injunction against the defendants to vacate the premises and to occupy those allotted to them under the agreement.

Held that (i) the prayer for mandatory injunction was misconceived as there could be no mandatory injunction upon the defendants to accept the premises which they had agreed to take in substitution of their own premises. What the plaintiff really meant by such prayer was to aver that they were ready and willing to perform their part of the agreement and which averment was necessary for maintaining the suit for specific performance. (ii) The suit could not be regarded as a suit for possession coming within the purview of S. 28 of the Act and therefore the High Court had jurisdiction to try the suit for specific performance even though the result of granting the specific performance may be that the plaintiff's obtained possession from his tenants. (iii) Sections 12 and 13 of the Act had also no application to such a suit as the landlord had not become entitled to possession under the provision of the Transfer of Property Act. Consequently, no question of depriving the defendants of their right to claim protection under Ss.12 and 13 would arise." 44. In this background, we fail to understand as to how Section 28 of the Bombay Rent Act would come into picture. 45. We could have observed many things about the conduct of the appellant but we have refrained ourselves from making any observations. We may only say that the appellant entered into an agreement with the respondent and obtained a consent decree in terms of the settlement. Having taken advantage of the terms of settlement, when time has come for the appellant to discharge his part of the obligation, it appears that the appellant is now resiling from the terms of the consent decree. 46. In our view, all the relevant aspects have been taken into consideration by the learned Single Judge and the learned Single Judge rightly refused to grant any relief and rejected the petition. 47. In this view of the matter, we hold that there is no merit in this appeal and the same deserves to be dismissed. The appeal is therefore accordingly dismissed. With no order as to costs.

Judgment:
This appeal arises from the judgment and order passed by the learned Single Judge dated 13.01.2011 in Special Civil Application No.14277 of 2010, whereby the learned Single Judge rejected the petition confirming the order dated 03.09.2010 passed by the 10th Additional Senior Civil Judge, Vadodara below Exh:1 in Special Darkhast No.46 of 1997.