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2005 DIGILAW 189 (HP)

ROSHAN LAL v. KEDAR NATH

2005-06-08

M.R.VERMA

body2005
JUDGMENT M.R. Verma, J.—Since these three appeals raise common substantial question of law for determination and the facts therein are identical, therefore, are being disposed of by this common judgment. 2. RSA No. 300 of 2004 has been preferred by Roshan Lal against the judgment and decree dated 17.4.2004 passed by the learned District Judge, Shimla whereby a decree dated 6.7.2002 for Rs. 43,200/- i.e. arrears of rent w.e.f. 1.9.1999 to 31.12.2001 with future interest @ 9% passed by the learned Sub-Judge 1st Class (1) Rohru in favour of the appellant/ plaintiff (hereafter referred to as the plaintiff) and against the respondents/defendants (hereafter referred to as the defendants) has been set aside. 3. The material and relevant facts are that the plaintiff instituted a suit for recovery of Rs. 54,410/- against the defendants on account of arrears of rent with effect from 1.1.1999 to 31.12.2001 @ Rs. 1,200/- per month in respect of the accommodation owned by the plaintiff taken on rent by the defendants for running a Health Sub-Centre at Dali. The case of the plaintiff, as made out in the plaint, is that the defendants persuaded him to provide the premises in suit on rent basis to the Health Department @ Rs. 1,200/- per month for running Health Sub-Centre whereupon the plaintiff delivered the possession of the premises and Health Sub-Centre Dali was inaugurated and started in the premises on 1.1.1998. The defendants, however, failed to pay the rent despite demands and service of notice under Section 80 of the Code of Civil Procedure (hereafter referred to as the Code). Hence, the suit. 4. The defendants contested the suit on the preliminary objections regarding limitation, maintainability and estoppal. On merits, it has been admitted that the premises in question are in possession of the defendants and Health Sub-Centre, Dali is being run therein since 1.1.1998. It is, however, further averred in defence that the accommodation was provided free of any charges and was managed by the Pradhan of the Gram Panchayat as per the policy of the State that a Government Health Sub-Centre will be opened only if rent free accommodation was provided by the villagers. Therefore, the claim of the plaintiff has been denied. 5. The trial Court partly decreed the suit as aforesaid. Therefore, the claim of the plaintiff has been denied. 5. The trial Court partly decreed the suit as aforesaid. The defendants aggrieved by the judgment and decree of the trial Court preferred an appeal which was allowed by the District Judge and the judgment and decree passed by the trial Court were set aside. Hence, RSA No. 300 of 2004. 6. The material and relevant facts for the purpose of disposal of RSA No. 301 of 2004 are that plaintiff Attar Singh instituted the suit for recovery of Rs. 54,410/- on account of arrears of rent and interest. The case of the said plaintiff, as made out in the plaint, is that the defendants persuaded him to provide the premises in suit on rent basis to the Health Department 6 Rs. 1,200/- per month for running Health Sub-Centre in Kulgaon. Pursuant to the persuation by the representatives of the defendants he delivered the possession of the premises and Health Sub-Centre Kulgaon was inaugurated and started in the premises on 24.12.1997. However, ever since taking over of the possession of the premises the defendants failed to pay the rent despite demands and service of notice under Section 80 of the Code. Hence, the suit. 7. The defendants contested the suit on the preliminary objections regarding limitation, maintainability and estoppal. On merits, it has been admitted that the premises in question were taken over by the defendants from the plaintiff for running Health Sub-Centre which is being run therein since 24.12.1997. It is, however, claimed that this accommodation was provided free of any charges and was managed by the Vice-President of the Gram Panchayat as per the policy of the State that a Health Sub-Centre will be opened only if rent free accommodation was provided by the villagers, therefore, the claim of the plaintiff has been denied. 8. The trial Court partly decreed the suit. The defendants aggrieved by the judgment and decree of the trial Court preferred an appeal in the Court of the District Judge, Shimla, who allowed the appeal and set aside the judgment and decree of the trial Court. Hence, RSA No.301 of 2004 by the plaintiff. 9. The material and relevant facts for the purpose of disposal of RSA No. 302 of 2004 are that plaintiff Roshan Lal instituted a suit for recovery of Rs. Hence, RSA No.301 of 2004 by the plaintiff. 9. The material and relevant facts for the purpose of disposal of RSA No. 302 of 2004 are that plaintiff Roshan Lal instituted a suit for recovery of Rs. 66,960/- on account of rent w.e.f. 1.1.1999 to 28.2.2002 @ 1500/- per month and interest thereon. The case of the plaintiff, as made out in the plaint, is that on 6.12.1996 he was persuaded by the defendants to provide the premises in suit on rent basis to the Health Department @ Rs. 1,500/ - per month for running Health Sub-Centre in Masli. The plaintiff agreed and delivered the possession of the premises and Health Sub-Centre Masli was inaugurated and started in the premises on 6.12.1996. However, the defendants failed to pay the rent of the premises despite demands and service of notice under Section 80 of the Code. Hence, the suit. 10. The defendants contested the suit on the preliminary objections regarding limitation, maintainability and estoppal. On merits, it has been admitted that the premises in suit were taken over by the defendants from the plaintiff for running Health Sub-Centre which is being run therein since 6.12.1996. It is, however, claimed that this accommodation was provided free of any charges and was managed by the Pradhan of the Gram Panchayat as per the policy of the State that a Health Sub-Centre would be opened only if rent free accommodation was provided by the villagers, therefore, the claim of the plaintiff has been denied. 11. The trial Court partly decreed the suit. Aggrieved by the judgment and decree of the trial Court the defendants preferred an appeal in the Court of the District Judge, Shimla, who allowed the appeal and set aside the judgment and decree of the trial Court. Hence, RSA No. 302 of 2004 by the plaintiff. 12. It may be pointed out here that in the first appeal in each case the findings recorded by the trial Court on the issues the burden of proving which was on the defendants were not called in question and thus became final. Hence, RSA No. 302 of 2004 by the plaintiff. 12. It may be pointed out here that in the first appeal in each case the findings recorded by the trial Court on the issues the burden of proving which was on the defendants were not called in question and thus became final. The only contention raised before the lower Appellate Court in each of the appeals was that there was no valid agreement between the plaintiffs and the defendants, therefore, plaintiffs were not entitled to recover any rent from the defendants more so when the premises in suit were made available to the Health Department by the President / Vice-President of the concerned Gram Panchayat on rent free basis. The lower appellate Court found that under Article 299 of the Constitution of India all contracts made in exercise of the executive powers of the Union or the State must be expressed to be made by the President or the Governor of the State as the case may be. In the case in hand since there is no such agreement between the parties, therefore, in the absence of such valid agreement within the framework of Article 299 of the Constitution of India the plaintiffs were not entitled to recover any rent from the defendants. Therefore, these appeals were admitted on the following common substantial question of law:— Whether the lower Appellate Court has wrongly and illegally reversed the decree, passed by the trial Court and failed to appreciate that in case the amount was not recoverable from the respondents as arrears of rent, still in view of the admitted position it was recoverable as compensation for use and occupation?" 13. I have heard the learned Counsel for the plaintiffs and the learned Deputy Advocate General for the defendants and have also perused the records. 14. There is no dispute that there is no agreement between the parties in accordance with the provisions of Article 299 of the Constitution of India. It is also not in dispute that in each of the premises in suit Government Health Sub-Centres are being run by the defendants from the respective dates as claimed by the plaintiffs. 14. There is no dispute that there is no agreement between the parties in accordance with the provisions of Article 299 of the Constitution of India. It is also not in dispute that in each of the premises in suit Government Health Sub-Centres are being run by the defendants from the respective dates as claimed by the plaintiffs. It is also not disputed that in the absence of agreement under Article 299 of the Constitution of India the suit amount could not have been claimed by the plaintiffs as arrears of rent because relationship of landlord and tenant could not come into being in the absence of such an agreement. 15. Further there is no cogent and reliable evidence to prove the claim of the defendants that the premises in suit were given to them by the plaintiffs on rent free basis. It is not in dispute that eversince taking over the possession of the suit premises the defendants continued to run their Health Sub-Centres therein and thus are continuously in possession of the premises in the suits. It is also not in dispute that the rental value of the premises in suits is not what has been claimed by the plaintiffs. Thus, it is firmly and indisputably established and not under challenge in these appeals that the accommodation in each suit is in possession of the defendants and they are running Health Sub-Centres therein and the rental value of each of the premises is as claimed by the plaintiffs. Thus, the only question which survives for determination is whether the lower appellate Court instead of dismissing the claim of the plaintiffs ought to have modified the relief in terms of the facts admitted and proved on record. 16. In Ajodhya Singh v. Kaiwan Babu Nawab Khusro Begum (1924 Oudh 97), it was held as under :— ".....The second ground is that the lower Appellate Court was not justified in making out a case for the respondent which has not been set up on the pleadings. There is abundant authority, including the case in Sheo Karan Singh v. Parbhu Narain Singh (I), referred to above, for allowing a plaintiff, who fails to prove a lease, a decree on the basis of use and occupation where the defendants are proved to have held the land...” 17. There is abundant authority, including the case in Sheo Karan Singh v. Parbhu Narain Singh (I), referred to above, for allowing a plaintiff, who fails to prove a lease, a decree on the basis of use and occupation where the defendants are proved to have held the land...” 17. In (Rangaraju) Venkatachalamayya Pantulu v. Gedala Simhadri Naidu (A.I.R. 1926 Madras 1071), it has been held as under:— "Assuming that the suit had been framed as one for rent, which it really had not been, it was possible for the Court to pass, in the alternative, a decree for damages for use and occupation; Chengiah v. Raja of Kalahasli (2)." 18. In Jawahri Mai v. Jagan Nath and others (A.I.R. 1930 Lahore 915), it has been held as under:— "Coming now to the cross-objections which have been limited to the sum of Rs. 500, it seems to me that they must be accepted in part. It is clear that the defendants were served with notice to quit or to pay enhanced rent. There were then negotiations for a written lease, and in fact a lease was written. It was, however, not registered and therefore, could not be proved so as to affect the immovable property in question. In that lease the rent mentioned is Rs. 55 a month. I think it is correct that that figure cannot be looked at in order to establish what the rent fixed was but it seems to me that it may be looked at in order to establish what damages the plaintiffs are entitled to by way of rent. There is plenty of authority for the proposition that if rent is claimed and only damages by way of rent are permissible these can be allowed and decreed...." 19. In Phul Chand Bishan Dass and others v. Kalu Ram Lachhman Dass and others (A.I.R. 1971 Punjab & Haryana 21), it was held as under:— "6. In my view, this appeal must succeed. It is no doubt true that the suit as framed was based only on the relationship of landlord and tenant between the parties and that neither any prayer for the award of damages on account of use and occupation of the premises in dispute by respondent No. 1 was made in the plaint nor were any facts which would entitle the plaintiffs to such damages stated therein. However, during the course of evidence it was disclosed that on the 3rd of June, 1952, the plaintiffs had obtained an order of ejectment from a Controller under the East Punjab Urban Rent Restriction Act and that in execution of the same they had actually been delivered symbolical possession of the premises in dispute, so that the relationship of landlord and tenant between the parties terminated on the 3rd of June, 1952, where after respondent No. 1 became liable to pay to the mortgagees damages for use and occupation thereof. In this state of evidence it became the duty of the Court to grant the relief to which it found the plaintiffs entitled on the principle contained in Rule 7 of Order VII of the Code of Civil Procedure." 20. In view of the legal position, as set out hereinabove, once it is found that the a person is in use and occupation of the suit premises owned by the claimant who could not claim rent for want of a valid agreement, there should be no difficulty in passing decrees for damages for use and occupation. 21. By virtue of the provisions of Section 70 of the Contract Act which applies to the individuals as also to the Government, relief of damages for use arid occupation could be granted in favour of the plaintiff. 22. In State of West Bengal v. M/s. B.K. Mondal & Sons (A.I.R. 1962 Supreme Court 779), the Apex Court held as under:— ".....It is of course true that between the person claiming compensation and person against whom it is claimed some lawful relationship must subsist, for that is the implication of the use of the word "lawfully" in Section 70; but the said lawful relationship arises not because the party claiming compensation has done something for the party against whom the compensation is claimed but because what has been done by the former has been accepted and enjoyed by the latter. It is only when the latter accepts and enjoys what is done by the former that a lawful relationship arises between the two and it is the existence of the said lawful relationship which gives rise to the claim for compensation. ..." It was further held as under:— ".....Incidentally, the minor is excluded from the operation of Section 70 for the reason that his case has been specifically provided for by Section 68. ..." It was further held as under:— ".....Incidentally, the minor is excluded from the operation of Section 70 for the reason that his case has been specifically provided for by Section 68. What Section 70 prevents is unjust enrichment and it applies as much to individuals as to corporations and Government. Therefore, we do not think it would be possible to accept the very broad argument that the State Government is outside the purview of Section 70." It was further held:— "(20). It is well-known that in the functioning of the vast organization represented by a modern State Government officers have invariably to enter into a variety of contracts which are often of a petty nature. Sometimes they may have to act in emergency, and on many occasions, in the pursuit of the welfare policy of the State Government officers may have to enter into contract orally or through correspondence without strictly complying with the provisions of Section 175 (3) of the Act. If, in all these cases, what is done in pursuance of the contracts is for the benefit of the Government and for their use and enjoyment and is otherwise legitimate and proper Section 70 would step in and support a claim for compensation made by the contracting parties notwithstanding the fact that the contracts had not been made as required by Section 175 (3). If it was held that dealings by Government officers it would lead to extremely unreasonable consequences and may even hamper, if not wholly bring to a standstill the efficient working of the Government from day to day. We are referring to this aspect of the matter not with a view to detract from the binding character of the provisions of Section 175(3) of the Act but to point out that like ordinary citizens even the State Government is subject to the provisions of Section 70, and if it has accepted the things delivered to it or enjoyed the work done for it, such acceptance and enjoyment would afford a valid basis for claims of compensation against it. Claims based on a contract validly made under Section 175 (3) must, therefore, be distinguished from claims for compensation made under Section 70, and if that distinction is borne in mind there would be no difficulty in rejecting the argument that Section 70 treats as valid the contravention of Section 175(3) of the Act. Claims based on a contract validly made under Section 175 (3) must, therefore, be distinguished from claims for compensation made under Section 70, and if that distinction is borne in mind there would be no difficulty in rejecting the argument that Section 70 treats as valid the contravention of Section 175(3) of the Act. In a sense it may be said that Section 70 should be read as supplementing the provisions of Section 175 (3) of the Act." 23. In view of the aforesaid legal position, admitted and proved facts on record, the judgments and decrees impugned in these appeals dismissing the suits of the plaintiffs and not awarding damages to them instead of arrears of rent are unsustainable. 24. As a result, these appeals are allowed and the impugned judgments and decrees passed by the lower Appellate Court are set aside and the judgments and decrees passed by the trial Court in each case are restored subject to the modification that such decrees will be treated as decrees for damages for use and occupation. The defendants shall pay the costs of the plaintiffs throughout. Appeals disposed of.