Decree – Consent decree – Review of – Suit for possession and mesne profits filed by respondent against petitioner – Petitioner disputed the area in its possession – Trial court held that this issue had been settled by High Court in an earlier litigation between the parties and thus, the same cannot be re-opened – Mesne profits granted – Cross-appeals for reduction/enhancement thereof – High Court passed consent decree – Petitioner filed review contending that terms of the consent decree were recorded incorrectly – Dismissed – In challenge to the judgment in cross appeals and the review petition, held: Question of area of possession was settled by the High Court in the earlier litigation, decreeing the respondent’s suit for possession for the entire suit property – Petitioner’s challenge to the said judgment before Supreme Court was dismissed – Thus, this view attained finality – High Court correct in upholding the terms of the consent decree directing petitioner to hand over possession of the entire suit property to the respondent – However, the consent decree erroneously recorded a 10% increase in mesne profits every year, instead of every alternate year – This is an error apparent on the face of the record – Rectified – Mesne profits to be treated as increasing by 10% every alternate year, from 2009 till the date of handover of possession – Consent decree modified to this extent – Suit – Code of Civil Procedure, 1908 – Or.XII, r.6. Decree – Consent decree – Law of – Discussed.
Disposing of the petitions, the Court
HELD: 1.1 Consent decrees are intended to create estoppels by judgment against the parties, thereby putting an end to further litigation between the parties. This Court has held that it would be slow to unilaterally interfere in, modify, substitute or modulate the terms of a consent decree, unless it is done with the revised consent of all the parties thereto. However, this formulation is far from absolute and does not apply as a blanket rule in all cases. The first impugned judgment of the High Court dated 14.2.2019 recorded the terms of the compromise that the Petitioner had agreed to; and that the same Court has subsequently upheld the validity of that consent decree in the second impugned judgment dated 25.07.2019. Thus, this Court would be cautious in exercising its inherent power to interfere in this consent decree, except where there is any exceptional or glaring error apparent on the face of the record. [Paras 1820][874-D-H; 875-A-B]
Byram Pestonji Gariwala v. Union Bank of India & ors. (1992) 1 SCC 31 : [1991] 1 Suppl. SCR 187 – relied on.
Gupta Steel Industries v. Jolly Steel Industries Pvt. Ltd. & anr. (1996) 11 SCC 678 : [1996] 6 Suppl. SCR 669; Suvaran Rajaram Bandekar & ors. v. Narayan R.
Bandekar & ors., (1996) 10 SCC 255 : [1996] 5 Suppl. SCR 439 – referred to.
1.2 On the question of area of possession:
The 2006 Agreement, which is the relevant agreement for the present purposes, pertains to the entire suit property, and does not delimit the licensed area to a 2,200 sq. ft. portion. Thus, the 2006 Agreement effective from 1.04.2006 to 30.09.2008, licensed the total area of 5,472 sq. ft. to Petitioner. Hence, the material on record discloses that the Petitioner is presently in illegal possession of the entire suit property admeasuring 5,472 sq. ft. Further, this question has already been settled by the High Court judgment dated 12.11.2014 in the earlier litigation between the parties, decreeing the Respondent’s suit for possession for the entire area of 5,472 sq. ft (and not only the 2,200 sq. ft. portion claimed to be possessed by the Petitioner). In that order, the High Court had taken note of an admitted document on the record wherein the Petitioner was stated to be in possession of the entire suit property. The Petitioner’s challenge to this judgment dated 12.11.2014 before the Supreme Court has been dismissed in SLP(C) No. 7531/2015, and R.P.(C) No. 1494/2015 in SLP(C) No. 7531/2015, by orders dated 16.03.2015 and 15.07.2015 respectively. Thus, this view has attained finality, and the Petitioner’s efforts to re-agitate this question in the present proceedings is a waste of this Court’s time and an abuse of the process of law. Thus, the High Court was correct in upholding the terms of the consent decree directing Petitioner to hand over possession of the entire suit property of 5,472 sq. ft. to the Respondent, and there is see no reason to interfere with this part of the consent decree. [Paras 21, 22 and 24][875-D-G; 876-C-D]
1.3 On the question of mesne profits:
The Single Judge, in noting that “this figure of mesne profits of Rs.1 lakh will be increased by 10% after every 12 months, i.e from 1.10.2009, 1.10.2011 etc etc” (emphasis supplied), has confused not only himself, but also the parties to the litigation. There is an inconsistency in so far there is a gap of every alternate year, i.e. from 2009 to 2011, in the example used by the Single Judge even though the decree notes an increase of 10% in mesne profits after every 12 months. The said inconsistency in the underlined extract of the consent decree is an error apparent on the face of the record. Hence this is a fit case to exercise inherent the jurisdiction to correct the terms of the consent decree, to bring it in conformity with the intended compromise. Even the judgment dated 23.09.2017 and the final decree dated 15.11.2017 passed by the Trial Court also awards a 10% increase only on each alternative year, i.e. 01.04.2011, 01.04.2013, 01.04.2015 and so on. Further, the original terms of the license agreement between the parties also incorporated a 10% increase in license fee once every 30 months/2.5 years. Thus, the Single Judge’s order dated 14.02.2019 has given rise to a lot of confusion. Given this background, and looking at the preponderance of probabilities, benefit of doubt is given to the Petitioner. Therefore, it is held that the intention of the compromise between the parties was that there should be a 10% increase in mesne profits every alternate year. The recording of a 10% increase after every 12 months in the consent decree was an inadvertent error, which is now rectified. To this limited extent, the second impugned judgment dated 25.07.2019 is overturned, and the consent decree recorded by the Single Judge’s judgment dated 14.02.2019 stands modified. [Paras 27-29][876-F-H; 877-A-D]
1.4 The Petitioner made repeated and persistent efforts to re-agitate the question of delivery of possession to the Respondent, in an attempt to circumvent complying with the view taken by the High Court in the judgment dated 12.11.2014, which has now attained finality. Despite the clear direction in that judgment to vacate possession in favour of the Respondent, pending any adjudication on the separate proceedings for possession and specific enforcement initiated by Mr. ‘G’ (to whom, as per the petitioner’s contention, the respondent had agree to sell the suit property), the Petitioner handed over possession to Mr. ‘G’ in July, 2015. Possession has to this date not been handed over to the Respondent, who has been dragged to the court time and again due to the Petitioner’s conduct. This is an instance of blatant disregard for the Court’s orders, and an abuse of judicial process. Petitioner to take steps for handing over possession of the suit property measuring 5,472 sq. ft. to the Respondent within eight weeks from today, without fail. Further, the Registry is directed to expeditiously release the arrears of mesne profits, if any, already deposited by the Petitioner before this Court to the Respondent. The Petitioner is further directed to pay to the Respondent all arrears as directed in order dated 14.2.2019, with the limited modification that the mesne profits are to be treated as increasing by 10% every alternate year, from 2009 till the date of handover of possession. The Petitioner is additionally directed to pay costs of Rs. 1 lakh to the Respondent as stated in the impugned order dated 25.7.2019. [Paras 30-32][877-E-H; 878-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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