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2006 DIGILAW 1430 (PNJ)

Rakesh Kumar Garg v. Ashok Kumar Garg

2006-03-31

SATISH KUMAR MITTAL

body2006
Judgment Satish Kumar Mittal, J. 1. The landlord has filed this petition under Article 227 of the Constitution of India for setting aside the order dated 7.2.2005, passed by the Appellate Court staying the execution of the impugned judgment and decree of the trial Court during the pendency of the first appeal subject to the conditions that the respondent-tenant shall deposit Rs. 1,00,000/- in the name of the Appellate court in an F.D.R. with an undertaking that in the event of the petitioner being found entitled thereto, he will be entitled to encash the F.D.R. and further to deposit Rs. 7,320/- per month on 10th of every month in the Court from 10.3.2005 till the disposal of the appeal. 2. The petitioner is the landlord of S.C.O. No. 290, Motor Market and Commercial Complex, Mani Majra, Chandigarh. He filed a suit for ejectment as well as suit for recovery of the arrears of rent and future damages after terminating the tenancy on 13.2.2001, before the Civil Judge (Jr. Division), Chandigarh. In the suit, the petitioner claimed the arrears of rent as follows: (a) that the rate of rent of the demised premises was initially Rs. 7,320/- per month, which was subsequently increased as per the terms of the lease as Rs. 9,516/-. He claimed the difference of enhancement of rent at the rate of Rs. 2,196/- i.e., Rs. 1,48,512/-, for the period from 1.7.1996 to 28.2.2002; (b) rent with effect from 1.3.2002 to 20.12.2002 at the rate of Rs. 9,516/- per month i.e., Rs. 91,980/-; (c) interest at the rate of 18% per month i.e., Rs. 59,560/-; (d) damages with effect from 21.12.2002 to 9.1.2003 at the rate of Rs. 1,000/- per day i.e., Rs. 20,000/-. 3. The trial Court decreed the suit while recording the following findings: After the close perusal of the judicial file and considering the arguments adduced by the learned Counsel for the parties, the dispute is regarding the rate of rent on the expiry of the lease deed on 30.6.1996. After the expiry of the said lease deed as per the claim of the plaintiff the rent was to be considered as Rs. 9,516/- and not Rs. 7,320/-. After the expiry of the said lease deed as per the claim of the plaintiff the rent was to be considered as Rs. 9,516/- and not Rs. 7,320/-. Although the present court being the civil Court has no jurisdiction to give any findings on the rate of rent as this authority only lies with the rent controller but perusal of the orders of the Appellate Court Ex.P2 wherein Mr. Tejwinder Singh, Appellate Authority decided on 30.7.2003 in rent appeal No. 20 dated 11.5.2001 regarding the counter claim having been allowed in favour of the defendant/tenant but later on dismissed by the Appellate Court. It has been clearly observed by the learned Appellate Authority after due consideration of law and evidence that since the lease deed was operative till 30.6.1996 thereafter the defendant was liable to pay rent @ 9,516/-. It has also been mentioned in para No. 18 that in one of the rent petitions the defendant had tendered the rent on 26.8.1997 @ Rs. 9,516/- for which he claimed the recovery of the excess amount considering the rate of rent to be Rs. 7,320/- per month which was declined determining the rate of rent to be Rs. 9,526/- p.m. It is also evident from the entire evidence adduced by the defendant that although it had been alleged by the defendant that some civil revision bearing No. CR-4202 had been filed in the year 2003 but in the absence of any documentary evidence i.e. copy of the revision or any orders of Hon ble High Court staying the findings of the learned Appellate Authority or setting aside the orders of the learned Appellate Authority passed vide judgment Ex.P2 dated 30.7.2003, this contention becomes unsustainable at this stage. More-so-over the pendency of any civil writ petition is not admitted by the plaintiff as is clear from his cross examination that till date no notice had been received by him regarding any civil revision or civil writ petition. In the absence of any cogent evidence to establish that the said civil writ petition/civil revision petition bearing No. 4202 is the outcome of the orders passed by the learned Appellate authority dated 30.7.2003 which is Ex.P2 it is not possible for the Court to consider this fact and to eradicate the findings of the learned Appellate Authority on the rate of rent. Since it has been held in Ex.P2 that in one of the rent petition the rent @ Rs. 9,516/- was tendered by the defendant till 28.2.1997 so the plaintiff is not entitled for any kind of recovery for the said period but since it is an admitted case that thereafter the entire rent had been paid by the defendant @ Rs. 7,320/- per month only so on the basis of the findings of the learned Appellate Authority and the admissions made by the defendant the plaintiff is entitled for the difference in the rent w.e.f. 1.3.2002 till 30.4.2003 considering the rate of rent to be Rs. 9,516/- as per the findings of the learned Appellate Authority mentioned in the judgment Ex.P2 dated 30.7.2003. As far as the mesne profits and damages are concerned in the absence of authentic and cogent evidence to establish this fact except for the photo copy of the lease deed of S.C.F. No. 309, Motor Market and Commercial Complex, Manimajra, U.T. Chandigarh which is not sufficient for the court to rely upon for assessing the mesne profits/damages this Court is of the considered opinion that the plaintiff is at least entitled for the rent as mesne profits and damages w.e.f. 30.4.2003 till handing over the vacant possession of the said premises by the defendant @ Rs. 9,516/-. Henceforth in view of the above discussion the said issue is decided in favour of the plaintiff. 4. The respondent-tenant filed an appeal against the aforesaid decree before the first Appellate Court. In the said appeal, which is still pending, the execution of the decree has been stayed subject to the condition imposed, as stated above. 5. Counsel for the petitioner contends that as per the decree of the trial Court, the respondent-tenant is liable to pay the difference of rent @ Rs. 2,196/- per month from 1.7.1996 to 28.2.2002. He is further liable to pay the difference of monthly rent @ Rs. 2,196/- from 1.3.2002 to 31.10.2004 as he has already paid the rent @ Rs. 7,320/- per month for the said period, and monthly rent @ Rs. 9,516/- with effect from November, 2004 till date. The learned Counsel submits that the first Appellate Court has ordered the difference of rent @ Rs. 2,196/- from 1.3.2002 to 31.10.2004 as he has already paid the rent @ Rs. 7,320/- per month for the said period, and monthly rent @ Rs. 9,516/- with effect from November, 2004 till date. The learned Counsel submits that the first Appellate Court has ordered the difference of rent @ Rs. 2,196/- for the period 1.3.2002 to 31.10.2004 and the monthly rent of November and December, 2004 and January, 2005 to be deposited in the fixed deposit, and it further directed that the tenant will deposit in Court the future rent @ Rs. 7,320/- by 10th of every month till the pendency of the appeal. The learned Counsel submitted that the order passed by the first Appellate Court to deposit Rs. 1,00,000/- in the F.D.R. is totally arbitrary and unreasonable. The said amount should have been paid to the petitioner subject to furnishing security for refund in case the tenant is found entitled for the same. He submitted that without payment of rent of the premises, the landlord cannot survive. The case of the petitioner is that once the trial Court has recorded a categorical finding that the rate of rent of the demised premises is Rs. 9,516/- w.e.f. 1.7.1996, therefore, the stay can be granted to the tenant subject to the condition that the landlord will furnish the security for refund in case the Appellate Court comes to the conclusion that excess amount of rent was paid. 6. On the other hand, learned Counsel for the respondent-tenant has submitted that against the order dated 23.1.2006 passed in Civil Revision No. 4202 of 2003, the respondent-tenant has filed S.L.P. before the Supreme Court as by the said order, the order of the Court below finding the rate of rent @ Rs. 9,516/- was upheld. The learned Counsel submits that as far as the payment of the difference of rent @ Rs. 2,196/- from 1.7.1996 to 28.2.2002 is concerned, the same has not been decreed by the trial Court, therefore, the tenant is not liable to pay the said amount. The learned Counsel further submits that against the interim order, this petition is not maintainable. 7. 2,196/- from 1.7.1996 to 28.2.2002 is concerned, the same has not been decreed by the trial Court, therefore, the tenant is not liable to pay the said amount. The learned Counsel further submits that against the interim order, this petition is not maintainable. 7. After hearing the arguments of the learned Counsel for the parties, I am of the opinion that the order dated 7.2.2005 passed by the first Appellate Court is unreasonable and harsh, therefore, this Court deems it fit to modify the said order in exercise of the superintending powers of this Court under Article 227 of the Constitution of India. In my opinion, the first Appellate court should not have directed the tenant to deposit the amount of arrears of rent in F.D.R. The said amount should have been released to the petitioner-landlord subject to furnishing the security that in case the payment of rent is found to be excess, the same shall be refunded or adjusted towards the rent. Similarly, the first Appellate Court should not have directed the respondent-tenant to deposit the monthly rent of the demised premises @ Rs. 7,320/- per month from 10th March, 2005 in the Court till the disposal of the appeal. Once the trial Court, on the basis of the previous judgment between the parties, found that the rate of rent of the demised premises is Rs. 9,516/- per month from 1.7.1996 onwards, the first Appellate Court should have directed the respondent-tenant to pay the monthly rent of the demised premises @ Rs. 9,516/- per month to the petitioner-landlord by 10th of each month from 10.3.2005 till the disposal of the appeal subject to the condition that in case the monthly rent is found to be less, then the same shall be refunded or adjusted in the future rent. In my opinion, the landlord cannot be denied the monthly rent during the pendency of the litigation. If the amount of rent is deposited in the F.D.R. or with the Court, then the landlord is deprived of the fruits of his property. Thus, in my opinion, the condition imposed by the first Appellate Court is unreasonable and hence the said impugned order is modified to the extent that the amount of Rs. If the amount of rent is deposited in the F.D.R. or with the Court, then the landlord is deprived of the fruits of his property. Thus, in my opinion, the condition imposed by the first Appellate Court is unreasonable and hence the said impugned order is modified to the extent that the amount of Rs. 1,00,000/- deposited by the respondent-tenant in the F.D.R. be immediately released to the petitioner-landlord with an undertaking that in case it is found that some excess amount of rent has been paid, he will refund the same or adjust the same in future rent; and similarly execution of the decree will remain stayed subject to the condition that the respondent-tenant will regularly pay the monthly rent @ Rs. 9,516/- to the petitioner-landlord on each and every month by way of demand draft to be sent to his address by registered post by 10th of every month till the disposal of the appeal. It is further made clear that if any amount of monthly rent has already been deposited with the Court for the period 1.3.2002 to 31.10.2004, the petitioner-landlord shall be entitled to withdraw the same from the Court. 8. Hence, this petition is allowed and the impugned order dated 7.2.2005 passed by the Additional District Judge, Chandigarh, is modified to the above extent.