# Km. Anshu Jain & Ors v. Suresh Prakash Garg & Ors

- **Citation:** (2021) 3 ILRA 586
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-10
- **Case number:** Writ-A (Rent Control) No. 71464 of 2010
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-anshu-jain-ors-v-suresh-prakash-garg-ors-46924
- **Pages:** 9

## Headnote

Law
-
UP
Urban
Building
(Regulation of Letting, Rent and Eviction)
Act, 1972 - S. 21 (1) (a) - Eviction suit -
Release of shop - Compromise-deed - Its
execution between parties not disputed -
Overriding
effect
of
statute
over
compromise-deed - Doctrine of Estoppel -
Applicability - Where protection under the
Rent Act is available, no eviction can be
ordered unless ground seeking eviction is
made out, even if parties had entered into
a compromise - However, a party cannot
be permitted blow hot - blow cold, where
he knowingly accepts the benefit of a
contract, or conveyance, or of an order, he
is estopped from denying the validity of,
or the binding effect of such contract, or
conveyance, or order upon himself. This
3 All. Km. Anshu Jain & Ors. Vs. Suresh Prakash Garg & Ors.
587
rule is applied to ensure equity - Held,
Compromise was continuously acted upon
by the parties. Thus, now the legal heirs
cannot come forward and say that they
are
the
statutory
tenant
and
this
compromise was nullity as they were not a
party or that it is contrary to law. (Para 11
and 14)

B. Civil law - Permanent injunction by Civil
Court - Proceeding under the special
enactment of UP Act of 1972 - Overriding
effect - Held, decree of civil court granting
permanent injunction cannot override the
proceedings under the provisions of UP Act
13 of 1972 between the landlord and tenant
- Even if the decree of the Original Suit was
not challenged any further, the same would
be of no consequence. (Para 15)

Writ Petition dismissed. (E-1)

Cases relied on :-

## Text

586 INDIAN LAW REPORTS ALLAHABAD SERIES
space for it, the need cannot be said to be
mala fide. In the present case, there are four
doctors in the family of landlord and if the
need is being shown for establishing the
hospital/nursing home or for expansion of
professions, the same cannot be said to be
mala fide in nature. Insofar as the
comparative hardship is concerned, it is not
in dispute that the tenant-petitioner has
never made any effort to search out any
shop during the pendency of litigation and
that the landlord offered him a shop which
he denied to accept the same, therefore, the
issue of comparative hardship has also been
correctly decided in favour of the landlord.
Therefore, I am not inclined to interfere in
the impugned orders.

16. Present petition is devoid of merit
and is accordingly dismissed.

17. However, having considered the
facts and circumstances of the case, subject to
filing of an undertaking by the petitionertenant before the Court below, it is provided
that:

(1) The tenant-petitioner shall
handover the peaceful possession of the
shops in question to the landlord-respondent
on or before 30.6.2021.

(2) The tenant-petitioner shall file
the undertaking before the Court below to the
said effect within four weeks from the date of
receipt of self-verified copy of this order;

(3) In the undertaking the tenantpetitioner shall also state that he will not
create any interest in favour of the third party
in the premises in dispute;

(4) Subject to filing of the said
undertaking, the tenant-petitioner shall not be
evicted from the premises in question till the
aforesaid period;

(5) It is made clear that in case of
default of any of the conditions mentioned
herein-above, the protection granted by this
Court shall stand vacated automatically.

(6) In case the shop is not vacated
as per the undertaking given by the tenant, he
shall also be liable for contempt.

18. There shall be no order as to costs.
----------
(2021)03ILR A586
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.03.2021

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.

Writ-A (Rent Control) No. 71464 of 2010
Connected with
Writ-A (Rent Control) No. 52191 of 2011

Km. Anshu Jain & Ors. ...Petitioners
Versus
Suresh Prakash Garg & Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Nagendra Kumar Srivastava

Counsel for the Respondents:
Sri Sanjai Srivastava, Sri Ajit Kumar, Sri Vivek
Srivastava

A.
Civil
Law
-
UP
Urban
Building
(Regulation of Letting, Rent and Eviction)
Act, 1972 - S. 21 (1) (a) - Eviction suit -
Release of shop - Compromise-deed - Its
execution between parties not disputed -
Overriding
effect
of
statute
over
compromise-deed - Doctrine of Estoppel -
Applicability - Where protection under the
Rent Act is available, no eviction can be
ordered unless ground seeking eviction is
made out, even if parties had entered into
a compromise - However, a party cannot
be permitted blow hot - blow cold, where
he knowingly accepts the benefit of a
contract, or conveyance, or of an order, he
is estopped from denying the validity of,
or the binding effect of such contract, or
conveyance, or order upon himself. This
3 All. Km. Anshu Jain & Ors. Vs. Suresh Prakash Garg & Ors.
587
rule is applied to ensure equity - Held,
Compromise was continuously acted upon
by the parties. Thus, now the legal heirs
cannot come forward and say that they
are
the
statutory
tenant
and
this
compromise was nullity as they were not a
party or that it is contrary to law. (Para 11
and 14)

B. Civil law - Permanent injunction by Civil
Court - Proceeding under the special
enactment of UP Act of 1972 - Overriding
effect - Held, decree of civil court granting
permanent injunction cannot override the
proceedings under the provisions of UP Act
13 of 1972 between the landlord and tenant
- Even if the decree of the Original Suit was
not challenged any further, the same would
be of no consequence. (Para 15)

Writ Petition dismissed. (E-1)

Cases relied on :-

1. Ratan Lal Vs A.D.J., Bulandshahar & ors.
1979 (5) ALR 509

2. Firozi Lal Jain Vs Man Mal (1970) 3 SCC 181

3. Barkat Ali & anr. Vs Badri Narain (D) by Lrs.
(2008) 4 SCC 615

4. Pancham Vs Ram Gen & ors. 2009 (3) ARC
593

5. Jagdish Lal Sah Vs A.D.J., Nainital & ors.
2006 (1) JCLR 276 (Uttaranchal)

6. Gian Devi Anand Vs Jeevan Kumar & ors.
1985 (2) SCC 683

7. Gauri Shanker: Suresh Gupta: Rajat Roy Vs
U.O.I.:
Rajdevsingh:
Sobha
Singh
Private
Ltd.1994 (6) SCC 349

8. Nai Bahu Vs Lal Ramnarayan 1978 (1) SCC 58

9. Srimathi Kaushalaya Devi Vs K.L. Bansal 1969
(1) SCC 59

10. Saroja Vs Chinnusamy (Dead) by LRs. & anr.
2007 (8) SCC 329
11. Smt. Kishan Pyare Vs Rent Control and
Eviction
Authority-cum-Prescribed
Authority,
Bulandshahar 2005 (1) JCLR 748

12. Ramchandra Dagdu Sonavane (D) by Lrs. &
ors. Vs Vithu Hira Mahar (Dead) by Lrs. & ors.
2009 (10) SCC 273

13. Sajjadanashin Sayed Md.B.E.E. (D) By Lrs.
Vs Musa Dadabhai Ummer 2000 (2) JT 352

14. Aanaimuthu Thevar (Dead) by Lrs. Vs
Alagammal 2005 (6) JT 333

15. Sulochanaamma Vs Narayanan Nair 1994
(2) SCC 14

16. M/s Alagu Pharmacy & ors. Vs N.
Magudeswari 2018 (8) SCC 311

17. Rakesh Shukla Vs District Magistrate / Sub
Divisional Magistrate & anr. 2002 ALL. L.J. 2388

18. Saudan Singh Yadav Vs Asstt. Regional
Transport Officer (ADM) Mainpuri 1994 (23) ALJ
299

19. Shree Krishna Jotish Pathshala Kanya Inter
College, Bisalpur, Pilibhit & anr. Vs District
Inspector of Schools, Pilibhit & ors. 1988
UPLBEC 739

20. Deepa Bhargava & anr. Vs Mahesh Bhargava
& ors. 2009 (75) ALR 317

21. Sova Ray Vs Gostha Gopal Dey 1988 AIR
(SC) 981

22.
Suleman
Noormohamed
Vs
Umarbhai
Janubhai 1978 AIR (SC) 952

23.
Mehar
Jahan
Vs
J.S.C.C./Prescribed
Authority, Meerut 1998(2) ARC 587

24. St. of W.B. Vs Hemant Kumar Bhattacharjee
1966 AIR(SC) 1061

25. Raghunath & ors. Vs Ram Khelawan & ors.
1968 RD 344

26. Chandrika Misir Vs Bhaiya Lal 1973 AIR(SC)
2391
588 INDIAN LAW REPORTS ALLAHABAD SERIES
27. Jaggan Vs Dular & ors. 1966 ALJ 1966

28. Mathura Prasad Bajoo Jaiswal Vs Dossibai
N.B. Jeejeebhoyf 1971 AIR (SC) 2355

29. P. Nirathilingam Vs Annaya Nadar & ors. AIR
2002 SC 42

30.
Annamreddi
Bodayya
Vs
Lokanarapu
Ramaswamy 1984 AIR (SC) 1726

31. K.Vs George Vs Secretary to Government,
Water and Power Department, Trivendrum 1990
AIR (SC) 53

32. ITC Limited Vs Debts Recovery Appellate
Tribunal 1998 AIR(SC) 634

33. Jagdish Chander Ghatterjee Vs Kishan 1972
(2) SCC 461.

34. Rajasthan St. Industrial Development and
Investment Corporation & anr. Vs Diamond &
Gem Development Corporation Limited & anr.
2013 (5) SCC 470.

35. Raghunath Prasad Pande Vs St. of Karn. &
ors.2018 (5) SCC 594

(Delivered by Hon'ble Vivek Kumar Birla, J.)

1. Heard Sri Nagendra Kumar
Srivastava,
learned
counsel
for
the
petitioners-tenants and Sri Mohit Kumar
along with Sri Mohit Kumar Shukla,
learned
counsel
appearing
for
the
respondents-landlords.

2. Leading petition has been filed
challenging the impugned orders dated
1.11.1994 and 16.11.2010 passed by the
Prescribed Authority/Judge Small Causes
Courts, Bulandshahar.

3. The petitioners herein are the
tenants of the shop no. 58, Chowk Bazar,
Bulandshahar. Initially the said shop was in
the tenancy of grandfather of petitioners
late Jugmandar Das Jain. After his death, as
per family settlement between the legal
heirs of late Jugmandar Das Jain, the shop
in question was given to Sri Raj Bahadur
Jain by means of inheritance from his
father.
Thereafter,
the
respondentslandlords initiated the proceedings under
Section 21(1)A of the Act No. 13 of 1972
against Sri Raj Bahadur Jain. In the release
application, it was stated that the shop in
question is required to fulfill the need of his
family and the need of the landlord is bona
fide and genuine. Thereafter, father of the
petitioner late Raj Bahadur Jain filed his
written statement in the release application
stating therein that the need of the landlord
is not bona fide and genuine. On 1.11.1994
one alleged compromise application was
filed before the prescribed authority, on the
basis whereof the prescribed authority
passed
the
impugned
order
dated
1.11.1994, against which the tenantspetitioners filed a suit being Original Suit
No. 380 of 2004, which was decreed vide
judgement and order dated 25.10.2008
wherein it was recorded that after the death
of father of the petitioners Raj Bahadur Jain
the tenancy right has been inherited by the
petitioners and they are the tenants of the
shop in question. No appeal against the said
judgement was filed by the respondentslandlords.
Thereafter,
the
respondentlandlord Surendra Kumar Jain filed an
application dated 18.11.2004 under Section
23 of the Act No. 13 of 1972 for execution
of the order dated 1.11.1994, against which
petitioners-tenants filed their objection on
16.3.2005.
The
prescribed
authority
allowed the application 4A filed under
Section 23 of the Act No. 13 of 1972 vide
impugned judgement and order dated
16.11.2010. Hence the present petition.

4. Submission of learned counsel for
the tenants-petitioners is that the orders
impugned herein are illegal, perverse and
3 All. Km. Anshu Jain & Ors. Vs. Suresh Prakash Garg & Ors.
589
suffer from manifest error of law. It is next
submitted that in view of provisions of
Section 21(1)A of Act No. 13 of 1972 for
release of the shop in question, prescribed
authority ought to record its findings in
respect of the bona fide need and
comparative
hardship.
It
is
further
submitted that the court below in its
judgement 25.10.2008 passed in original
suit no. 380 of 2004 recorded a finding that
after the death of Raj Bahadur Jain the
tenancy right devolved to his legal heirs. It
is further submitted that application filed
by the respondent-landlord under Section
23 of the Act No. 13 of 1972 was not
maintainable as all the legal heirs of Raj
Bahadur Jain was not impleaded. He lastly
submits that the respondent-landlord has
already got the other shop and the same
was let out to another person and as such,
the need of the respondent-landlord is not
at all bona fide.

5. Learned counsel for the petitioners
has placed reliance on the judgements of
Ratan Lal vs. Additional District Judge,
Bulandshahar and others 1979 (5) ALR
509, Firozi Lal Jain vs. Man Mal 1970
(3) SCC 181, Barkat Ali & Another vs.
Badri Narain (D) by Lrs. 2008 (4) SCC
615, Pancham vs. Ram Gen and others
2009 (3) ARC 593, Jagdish Lal Sah vs.
Additional District Judge, Nainital &
Ors. 2006 (1) JCLR 276 (Uttaranchal),
Gian Devi Anand vs. Jeevan Kumar &
Ors.
1985
(2)
SCC
683,
Gauri
Shanker:Suresh Gupta:Rajat Roy vs.
Union
of
India:Rajdevsingh:
Sobha
Singh Private Limited 1994 (6) SCC 349,
Nai Bahu vs. Lal Ramnarayan 1978 (1)
SCC 58, Srimathi Kaushalaya Devi vs.
K.L. Bansal 1969 (1) SCC 59, Saroja vs.
Chinnusamy (Dead) by LRs. and Anr.
2007 (8) SCC 329, Smt. Kishan Pyare vs.
Rent Control and Eviction Authoritycum-Prescribed
Authority,
Bulandshahar 2005 (1) JCLR 748,
Ramchandra Dagdu Sonavane (D) by
Lrs. & Ors. vs. Vithu Hira Mahar
(Dead) by Lrs. & ors. 2009 (10) SCC 273,
Sajjadanashin Sayed Md.B.E.E. (D) By
Lrs. vs. Musa Dadabhai Ummer 2000 (2)
JT 352, Aanaimuthu Thevar (Dead) by
Lrs. vs. Alagammal 2005 (6) JT 333,
Sulochanaamma vs. Narayanan Nair
1994 (2) SCC 14 and M/s Alagu
Pharmacy & others vs. N. Magudeswari
2018 (8) SCC 311.

6. Per contra, learned counsel for the
landlord submitted that the property was
required for personal use of landlord and
family of the landlord being Surendra
Prakash Garg. Consequently, an appeal
under Section 21(1)(a) of the Act was filed
before the prescribed authority and that
since the tenant Raj Bahadur Jain could not
defend against the personal need of the
landlord and admittedly entered into a
compromise and since the tenant was old
person, therefore, taking a sympathetic
view of the matter a settlement was arrived
at between the landlord and the tenant and
compromise to this effect was entered into
and filed on 1.11.1994 in the aforesaid PA
Case No. 27 of 1992. According to this, the
release application was allowed in part and
out of the total area of shop being 7.9 ft x
23 ft a shop having 5.6 ft x 12 ft was
repaired / constructed and was left in
possession of the tenant on the condition
that he will remain in possession till his
lifetime and thereafter there will be no
succession of any right devolving tenancy
on legal heirs. The tenant was barred from
giving possession of the shop. It was
decided that he shall continue to pay rent @
Rs. 18/- per month, which was the earlier
rent of the entire accommodation, which
will not be changed during his lifetime. It
590 INDIAN LAW REPORTS ALLAHABAD SERIES
was further provided that the legal heirs
shall handed over possession of the shop
after death of the original tenant, Raj
Bahadur Jain and it was left open that if
they failed to do so, the process of recovery
of possession of the shop may be initiated
as admittedly, compromise was entered
into between the landlord and tenant.
Although, petitioners herein claimed that
they were not aware of such compromise
and that they were only aware of this fact
that the part of the shop in possession of
Raj Bahadur Jain, their predecessor, was
handed over to the landlord. It is submitted
that this fact itself is sufficient to indicate
that the petitioners were aware of this fact
that the release application has been
compromised on the basis of a compromise
and the compromise was admittedly acted
upon and the original tenant had, in fact,
taken benefit of the same by avoiding the
possession of the release application as
well as by remaining in possession of a part
of the shop. Submission is that the original
tenant had, in fact, admitted the bonafide
need of the landlord and agreed to release
the shop in part and it is only on that basis
the compromise was entered into and
undisputedly, is a part of the order of the
judgment of the prescribed authority.
Submission, therefore, is that now the
petitioners herein cannot go back on the
compromise entered into by the original
tenant
on
technical
ground
as
the
compromise was acted upon and they have
enjoyed fruits of the compromise for such
long years from 1994 to 2014 till the filing
of the present litigation for obtaining
possession of the shop under tenancy when
the petitioners failed to vacate the same. He
further submitted that the Original Suit No.
380 of 2014 filed by the petitioners herein
for permanent injunction against the
landlord was not maintainable and in any
case, has no effect on the proceedings
before the prescribed authority, moreso,
when
the
landlord
adopted
proper
procedure of law for taking back the
possession. It is submitted that the said suit
was barred under Section 41 (h) of the
Specific
Relief
Act
and
was
not
maintainable. He further submitted that in
any
case,
the
tenancy
right
stood
extinguished in view of the compromise of
the year 2004 and that the status of Raj
Bahadur Jain was that of a licensee
thereafter till his death, which stood
terminated on his death. Submission,
therefore, is that the petitioners did not
have any right to acquire any tenancy right
in place of Raj Bahadur Jain and the
present process is nothing but an abuse of
process of law as the compromise was
acted upon and the petitioners have enjoyed
the fruits of the compromise, which was
never disputed by Raj Bahadur Jain and he
enjoyed the possession in pursuance of part
release only till his death and even the rent
was never enhanced.

7. Learned counsel for the landlord
has placed reliance on judgments of in the
cases of Rakesh Shukla vs. District
Magistrate / Sub Divisional Magistrate
and another 2002 ALL. L.J. 2388,
Saudan Singh Yadav vs. Asstt. Regional
Transport Officer (ADM) Mainpuri
1994 (23) ALJ 299, Shree Krishna
Jotish Pathshala Kanya Inter College,
Bisalpur, Pilibhit and another vs.
District Inspector of Schools, Pilibhit
and others 1988 UPLBEC 739, Deepa
Bhargava and another vs. Mahesh
Bhargava and others 2009 (75) ALR
317, Sova Ray vs. Gostha Gopal Dey
1988
AIR
(SC)
981,
Suleman
Noormohamed vs. Umarbhai Janubhai
1978 AIR (SC) 952, Mehar Jahan vs.
J.S.C.C./Prescribed Authority, Meerut
1998(2) ARC 587, State of West Bengal
3 All. Km. Anshu Jain & Ors. Vs. Suresh Prakash Garg & Ors.
591
vs. Hemant Kumar Bhattacharjee 1966
AIR(SC) 1061, Raghunath and others
vs. Ram Khelawan and others 1968 RD
344, Chandrika Misir vs. Bhaiya Lal
1973 AIR(SC) 2391, Jaggan vs. Dular
and others 1966 ALJ 1966, Mathura
Prasad Bajoo Jaiswal vs. Dossibai N.B.
Jeejeebhoyf 1971 AIR (SC) 2355, P.
Nirathilingam vs. Annaya Nadar and
others AIR 2002 SC 42, Annamreddi
Bodayya vs. Lokanarapu Ramaswamy
1984 AIR (SC) 1726, K.V. George vs.
Secretary to Government, Water and
Power Department, Trivendrum 1990
AIR (SC) 53, ITC Limited vs. Debts
Recovery
Appellate
Tribunal
1998
AIR(SC) 634 and Jagdish Chander
Ghatterjee vs. Kishan 1972 (2) SCC 461.

8. I have considered the submissions
and have perused the record.

9. On perusal of record I find that the
crux of the argument of learned counsel for
the petitioners is that if the compromise
decree is contrary to statutory provisions,
the same is a nullity and cannot be
executed. Placing reliance on judgment
already
referred
above
crux
of
the
submission
is
that
since
prescribed
authority had not satisfied itself and that the
bonafide need and comparative hardship
had not examined any relevant material to
find out whether the statutory provisions
ground
of
eviction
are
proved,
the
compromise decree, purely on that basis,
was a nullity. In the present case, from
perusal of record it is clear that the original
tenant Raj Bahadur Jain was in possession
of a shop measuring 7.9 ft x 23 ft and in the
release application filed on the ground of
personal need of the family, he agreed to
remain in possession of the shop 5.6 ft wide
x 12 ft. deep only, which was to be handed
over to him by the landlord after the order
of
the
court
within
15
days.
The
compromise further reflects that the old
rent @ Rs. 18/- per month was to continue.
One cannot be oblivious of the fact that this
release application was filed in the year
1992 and even on that point of time Raj
Bahadur Jain was old tenant on a meagre
rent (old rent) of Rs. 18/- per month, which
was not to be increased till he was to
remain in possession. The tenant Raj
Bahadur Jain clearly stated that he has only
daughters and no son, he, therefore, agreed
in his wisdom that he will remain in
possession of the shop till his lifetime and
thereafter, the tenancy shall not devolve on
his legal heirs. This fact was specifically
mentioned in paragraph 3 of the terms of
the compromise and there was a clear
understanding that neither his daughters nor
their husbands shall claim any tenancy over
the shop left in possession of Raj Bahadur
Jain and shall hand over the possession to
the landlord and if they failed to do so, the
landlord will be at liberty to take
possession through court. Paragraph 4 of
the terms clearly indicates that the expenses
for repair of the shop (after making the
shop smaller to be left in occupation of the
tenant) was to be borne by the landlord.
This compromise is not in dispute and is an
admitted document. It is also not in dispute
that this compromise was acted upon and
the
release
application
was
decided
accordingly. For ready reference terms of
the compromise are quoted as under:-

न्यायालय श्रीमान न्स्क्स्थत अविकारी प्रथम
अिर वसविल जज बुलन्दशर्र।

िाद संख्या 27सन् 1992

सुरेन्द्र प्रकाश गगह बनाम राज बर्ादुर जैन

समझौता ित्र

श्रीमान जी,

उिरोक्त िाद मे र्म फरीकेन मे वनम्न शतो
के आिार िर बार्मी फैसला र्ो गया र्ेः-
592 INDIAN LAW REPORTS ALLAHABAD SERIES

1- यर् वक वनजाई ि दुकान इस समय 7
फीट 9 इंज चौडाई में ि 23 फीट गर्राई में र्ै
वजसमें से 5 फीट 6 इंच चार्ी ि 12 फीट गर्री
तैयार दुकान मावलक जायदाद आदेश के बाद 15
वदन में मरित कराकर वििक्षी वकरायेदार को
देगा तथा वििक्षी वकरायेदार अविक शेर् आराजी
उत्तर को िूिह को मावलक जायदाद को छोडेगा
वजसमें कोई ऐतराज नर्ीं र्ै।

2- यर् वक भविष्य में िुराना वकराया 18-00
मार्िार र्ी वलया जािेगा और भविष्य में वकराया
नर्ी बढेगा।

3- यर् वक वििक्षी भविष्य में वकसी अन्य
व्यन्स्क्क्त को दुकान में नर्ी वबठायेगा तथा यवद
दौरान वकरायेदारी वकसी भी कारणो से वििक्षी श्री
राज बर्ादुर जैन की मृत्य र्ो जाती र्ै तो उस
सूरत में श्री राज बर्ादुर जैन की ओर से कोई
उत्तराविकारी वकरायेदारी का नर्ी र्ोगा। श्री राज
बर्ादुर जैन के िुत्र न र्ोने के कारण से श्री राज
बर्ादुर की िुवत्रयों ि उनके िवतयों को कोई र्क
र्कूक वकरायेदारी मे नर्ीं िहंचेगे ओर दुकान मे
से सामान वनकालकर स्वामी जायदाद को श्री राज
बर्ादुर के िाररसान ि जानशीन सौि देगें अन्यथा
सक्षम अदालत से दखल ले वलया जािेगा।

4- खचाह मरित दुकान मावलक जायदाद
करेगा।

5- खचाह मुकदमा फरीकेन बवजिे फरीकेन
र्ोगा।

अतः उक्त फैसले के शतो के बाजार िर
मुकदमा वनवणहत फरमाया जािे।

बुलन्दशर्र

वदनांक/ वििक्षी प्राथी

राज बर्ादुर जैन सुरेन्द्र प्रकाश गगह

(राज बर्ादुर जैन) सुरेन्द्र प्रकाश गगह

वकरायेदार मावलक जायदाद

आज यर् तफसीमानामा 32ए िक्षकारो
द्वारा वदया गया र्ै। सुरेन्द्र प्रकाश गगह को श्री
अवनल जोसी ने शनाख्त वकया र्े तथा राज
बर्ादुर को श्री राकेश िमाह द्वारा ने शनाख्त
वकया िेश र्ोकर आदेश हुआ वक तस्दीक र्ो।

स्वीकार वकया जाता र्ै।

र्० अस्पष्ट्

1-11-94

एर्ी. वस. जज

1-11-94

सुरेन्द्र प्रकाश गगह राज बर्ादुर जैन

र्० अिठनीय

1-11-94

10. As per compromise, after carving
out the shop at the expense of the landlord
to be left in possession of the tenant Raj
Bahadur Jain he was to be put in possession
and he, admittedly, continued to remain in
possession of the shop for about ten years
till his death at the same old rent @ Rs.
18/- per month. It is, therefore, clear that
the
compromise
was
actively
and
effectively acted upon and was respected
by both the landlord and the tenant Raj
Bahadur Jain. The petitioners herein being
daughters of the tenant were obviously
beneficiary, may be indirectly, of such
compromise as the tenant Raj Bahadur Jain
continued in peaceful possession of the said
shop till his death as the proceeding of the
release application did not proceed further
on the basis of such compromise. From the
record it is further reflected that even after
death of Raj Bahadur Jain no challenge to
this
compromise
was
raised
for
considerably long time, as per landlord, for
about 16 years.

11. There is no quarrel with the law
that in cases where protection under a Rent
Act is available, no eviction can be ordered
unless ground seeking eviction is made out,
even if parties had entered into a
compromise and that the invalidity on that
count can even be raised in execution.
However, whether petitioners can take
shelter of such law in the facts and
circumstances of the case? I am of the view
3 All. Km. Anshu Jain & Ors. Vs. Suresh Prakash Garg & Ors.
593
that the law is also settled that a party
cannot be permitted blow hot - blow cold,
where he knowingly accepts the benefit of
a contract, or conveyance, or of an order,
he is estopped from denying the validity of,
or the binding effect of such contract, or
conveyance, or order upon himself. This
rule is applied to ensure equity. A reference
may be made in this regard to a judgment
of Hon'ble Supreme Court in the case of
Rajasthan State Industrial Development
and
Investment
Corporation
and
another
vs.
Diamond
&
Gem
Development Corporation Limited and
another 2013 (5) SCC 470.

12. The net effect of judgment
rendered in the case of Raghunath
Prasad Pande vs. State of Karnataka
and others 2018 (5) SCC 594 is that
once the compromise decree has been
acted upon, a party cannot be permitted to
go back from the same and the same is
not liable to be set aside.

13. In the present case, it is very
much clear that release application was
filed on the ground of bonafide need. It is
a case where the property was released in
part and therefore, it is clear that the old
tenant had entered into compromise (1)
that probably he was not in a position to
defend the release application and (2) that
he was to remain in possession over the
part of the property on the front side for
old rent of Rs. 18/- per month throughout
his lifetime. It is also reflected that the
smaller shop was carved out, out of the
bigger shop and was again handed over to
the tenant Raj Bahadur Jain to remain in
his possession till his lifetime. It is also
clear that he was the sole tenant and had
every right to enter into compromise
about his tenancy rights. Not only the
existence
of
compromise
but
the
execution thereof is still not in dispute
and
that
arrangement
under
the
compromise continued for about 10 years
till the death of the tenant Raj Bahadur
Jain and they enjoyed the benefits arising
out of such compromise.

14. In such view of the matter, at
present, clearly it is not a case where the
original tenant is coming forward with a
case that some fraud was played upon
him and the compromise is contrary to
statutory provisions. On the other hand,
he remained in possession over the
agreed part of the accommodation on old
rent @ Rs. 18/- per month, which did not
increase for about ten years during his
lifetime. In other words, the compromise
was continuously acted upon by the
parties. Thus, now the legal heirs cannot
come forward and say that they are the
statutory tenant and this compromise was
nullity as they were not a party or that it
is contrary to law.

15. Insofar as the injunction suit is
concerned, decree of civil court granting
permanent injunction cannot override the
proceedings under the provisions of UP Act
13 of 1972 between the landlord and
tenant. Therefore, even if the decree of the
Original Suit No. 380 of 2014 was not
challenged any further, the same would be
of no consequence. The petitioners herein
have remained in possession all throughout
and have been successfully delayed the
delivery of possession, which they were
supposed to deliver under the compromise
entered into by the predecessor, the original
tenant immediately after his death.

16. I have also gone through the
judgments relied on by the learned counsel
for the parties. Their facts appears to be
distinguishable in nature although, as
594 INDIAN LAW REPORTS ALLAHABAD SERIES
already noticed, there is no quarrel with the
settled law as noted in the preceding
paragraphs of this judgment.

17. In the opinion of the court the
compromise was validly entered into between
the landlord and the sole tenant, who enjoyed
the fruits or the benefits of the same. The
issue of decree to be a nullity is being raised
by the legal heirs by simply seeking relief,
bye-passing the benefits enjoyed by their
predecessor, the original tenant and therefore
by them also through him. The terms of the
compromise
further
indicate
that
the
compromise was, in fact, executed at the cost
of the landlord carving out a new shop out of
a larger shop and handing over the same to
the original tenant and by incurring loss
towards rent as well as, the rent of the tenant
was continued to be Rs. 18/- per month
during lifetime of the original tenant Raj
Bahadur Jain.

18. In such view of the matter, I do not
find any good ground to interfere in the
orders impugned herein in exercise of powers
under Article 226 of the Constition of India.

19. Present petition is devoid of merits
and is accordingly dismissed.

20. However, having considered the
facts and circumstances of the case, subject to
filing of an undertaking by the petitionertenant before the Court below, it is provided
that:

(1) The tenant-petitioner shall handover
the peaceful possession of the premises in
question to the landlord-opposite party on or
before 31.8.2021;

(2) The tenant-petitioner shall file the
undertaking before the Court below to the
said effect within two weeks from the date of
passing of this order;

(3) The tenant-petitioner shall pay
damages @ Rs. 2,000/- per month by 07th
day of every succeeding month and
continue to deposit the same in the Court
below till 31.8.2021 or till the date he
vacates the premises, whichever is earlier
and the landlord is at liberty to withdraw
the said amount;

(4) In the undertaking the tenantpetitioner shall also state that he will not
create any interest in favour of the third
party in the premises in dispute;

(5) Subject to filing of the said
undertaking, the tenant-petitioner shall not
be evicted from the premises in question
till the aforesaid period;

(6) It is made clear that in case of
default of any of the conditions mentioned
herein-above, the protection granted by
this
Court
shall
stand
vacated
automatically.

(7) In case the premises is not vacated
as per the undertaking given by the
petitioner, he shall also be liable for
contempt.

21. There shall be no order as to costs.
----------
(2021)03ILR A594
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.01.2021

BEFORE

THE HON'BLE MUNISHWAR NATH
BHANDARI, J.
THE HON'BLE ROHIT RANJAN AGARWAL, J.

Writ-C No. 58 of 2021

M/S Elegant Infracon Pvt. Ltd., Varanasi
 ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner: