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Uttarakhand High Court · body

2007 DIGILAW 91 (UTT)

MAYA DEVI v. BANK OF BARODA

2007-03-07

RAJESH TANDON

body2007
JUDGMENT 1. Heard Sri Piyush Garg, counsel for the revisionist and Sri Amit Bhatt, counsel for the respondents. 2. By the present revision filed under section 25 of the Provincial Small Cause Courts Act, 1887, the revisionist has prayed for setting aside the order dated 10th February, 2003 passed by the Judge Small Cause Court/Additional District Judge by which the eviction order has been passed, but no cost and mesne profits have been awarded at the market rate. 3. Briefly stated, the suit was filed by the plaintiff praying for the eviction of the defendant on the ground that Act No. 13 of 1972 is not applicable to the building in dispute as the rent of the premises is more than Rs. 2,000/- i.e. 10,032 per month. 4. According to the plaintiff, he has sent the notice on 13th February, 2001, which was duly served upon the defendants and the defendant/respondent neither vacated the premises nor paid the amount of damages claimed by the plaintiff-revisionist. 5. The Judge Small Causes Court has decreed the suit to the following effect: ßoknuh dk okn izfroknhx.k ds fo#) fMØh fd;k tkrk gSA izfroknhx.k dks vkns”k fn;k tkrk gS fd og bl vkns”k dh frfFk ls N% ekg ds vUnj fookfnr edku [kkyh djds mudk dCtk oknuh dks ns ns vU;Fkk okfnuh U;k;ky; ds tfj;s dCtk izkIr djus dh vf/kdkjh gSA dCtk nsus rd izfrokfnuh #ñ 10]032@& izfrekg dh nj ls gtkZ bLrseky oknuh dks vnk djsaxsA okn O;; i{kdkj viuk&viuk ogu djsaxsAÞ 6. No revision has been filed by the defendant/respondent against the said order. 7. Counsel for the respondents has submitted that he has complied with the order passed by the Judge Small Cause Court and has vacated the premises within the time allowed by the Judge Small Cause Court. 8. Counsel for the applicant has confined his arguments with regard to the payment of the cost as well as the mesne profits 13th March, 2000 i.e. after the service of the notice of the termination of tenancy and his stand was just the unauthorized occupant after the termination of tenancy. 9. There is no dispute that the defendant was paying rent at the rate of Rs. 10,032 and the Judge Small Cause Courts has directed to the defendant to hand-over the possession within a period of six months and the respondents have handed over the possession of the landlord. 10. 9. There is no dispute that the defendant was paying rent at the rate of Rs. 10,032 and the Judge Small Cause Courts has directed to the defendant to hand-over the possession within a period of six months and the respondents have handed over the possession of the landlord. 10. In the plaint, the plaintiff has claimed the mesne profit to the extent of Rs. 400 per day amounting to Rs. 1,34,000/-. However, since the decree has already been executed, the question remains only for the mesne profit at the rate of Rs. 400 per day and the cost of the suit. 11. So far as the mesne profit is concerned, the same has been paid at the rate of Rs. 10,032/- per month. However, the grievance of the plaintiff is that the judge Small Cause Courts has not considered that he is also entitled for the mesne profit at the market rate in accordance with the decisions of the Apex Court in Marshall Sons and Company (I) Ltd. Vs. Sahi Oretrans (P) Ltd. and another 1999 (2) SCC page 325, the Apex Court has observed that the landlord is entitled to recover the mesne profit/compensation at the market rate. Relevant paragraph of the aforesaid judgment is quoted below : “6. Having considered the relevant submissions of the parties including the submissions with regard to market rent. (2) The respondents are directed to pay the mesne profits/compensation at the rate of Rs. 10 per sq. ft. from 1984 till today and the rate of Rs. 20 from today till the disposal of the suit. While making this payment, the payments already made shall be adjusted. So far as the arrears are concerned, they be paid in 12 equal monthly instalments.” 12. Similar view has been taken in Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 after relying upon various judgments to the following effect : “13. In Shyam Charan v. Sheoji Bhai (1977) 4 SCC 393, this Court has upheld the principle that the tenant continuing in occupation of the tenancy premises after the termination of tenancy is an unauthorized and wrongful occupant and a decree for damages or mesne profits can be passed for the period of such occupation, till the date he delivers the vacant possession to the landlord...... After determination of the tenancy, the position of the tenant is akin to that of a trespasser and he cannot claim that the measure of damages awardable to the landlord should be kept tagged to the rate of rent payable under the provisions of the Rent Control Order. If the real value of the property is higher than the rent earned then the amount of compensation for continued use and occupation of the property by the tenant can be assessed at the higher value. 13. Relying upon the judgment of Atma Ram Properties (P) Ltd. V. Federal Motors (P) Ltd. JT 2004 (1) SC 410 : 2005 (1) SCC 705 : 2005 SCFBRC 99 in Achal Mishra Vs. Ram Shankar Singh reported in 2005 (1) ARC Page 887 it has been observed as under : “We make it clear that the respondents shall be liable to pay the rent equivalent to mesne profits with effect from the date with which they are found to have ceased to be entitled to retain possession of the premises as tenant for such period the landlord’s entitlement cannot be held pegged to the standard rent. Reference may be had to the law laid down by the Court in Atma Ram Properties (P) Ltd. V. Federal Motors (P) Ltd., JT 2004 (1) SC 410 : 2005 (10) SCC 705 : 2005 SCFBRE 99.” 14. Considering the aforesaid fact, the plaintiff will be entitled for the cost of the suit as well as the mesne profits at the rate of Rs. 400 per day after the termination of tenancy up to the date of handing over the possession. 15. Subject to the aforesaid modification regarding the payment of the cost as well as the mesne profit at the rate of 400 per day from after the termination of tenancy upto the date of handing over the possession, the judgment and decree passed by the Judge Small Cause Court is confirmed. 16. Revision, therefore, partly succeeds to the extent of payment of the cost as well as the mesne profit at the rate of Rs. 400 per day from after the termination of tenancy up to the date of handing over the possession of the premises in dispute. 17. Revision is allowed. No order as to costs.