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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

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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

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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

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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

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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

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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.