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Chhattisgarh High Court · body

2012 DIGILAW 103 (CHH)

KISHORCHAND BHOI v. LEELA SAHU

2012-04-04

N.K.AGARWAL

body2012
JUDGMENT 1. This is tenant's second appeal under Section 100 of CPC against the eviction decree passed by the 6th Civil Judge Class-I in Civil Suit No.82-A/2002 vide judgment and decree dated 13.12.2010 and affirmed by the 3rd Additional District Judge, Raipur (C.G.) in Civil Appeal No. 7-A/2011 vide judgment and decree dated 29.10.2011. 2. The instant appeal was admitted for hearing on 22.03.2012 on the following substantial question of law: "Whether both the courts below were justified in awarding compensation in lieu of rent @ 100/- per day from the date of filing of suit?" 3. The trial Court, vide judgment and decree dated 13.12.2010 granted decree of eviction, arrears of rent of Rs.5850/- and damages from the date of suit at the rate of Rs.100/- per day till recovery of possession in favour of the plaintiff. The first appellate Court vide impugned judgment and decree dated 29.10.2011 affirmed the above judgment and decree. 4. Shri Manoj Paranjpe, learned counsel appearing for the appellant, would submit: both the Courts below have wrongly held the plaintiff as in wrongful possession from the date of termination of contract/tenancy. By referring to Section 2 (i) of the Chhattisgarh Accommodation Control Act, 1961 (henceforth 'the Act of 1961'), it was further contended, the possession of the appellant would not become wrongful on such termination until and unless a decree for eviction is passed against him. The appeals preferred against the judgment and decree passed in the suit are in continuation of the suit, and therefore, a decree would be deemed to be passed on the date when this second appeal would be decided and before that, the plaintiff/landlord is not entitled for damages in lieu of rent. He would also submit: the agreed rate of rent, as can be inferred from the judgment, was Rs.400/- per month whereas damages at the rate of Rs.100/- per day has been allowed by the Court below and the same is not permissible under law. Reliance has been placed by the learned counsel upon a judgment of Supreme Court in the case of Smt. Chander Kali Bail and others Vs. Jagdish Singh Thakur and another AIR 1977 SC 2262. 5. Reliance has been placed by the learned counsel upon a judgment of Supreme Court in the case of Smt. Chander Kali Bail and others Vs. Jagdish Singh Thakur and another AIR 1977 SC 2262. 5. Per contra, Shri G.D. Vaswani, learned counsel appearing for the respondent, would submit: as per the language used in Section 2 (i) of the Act of 1961, the appellant became an unauthorized occupant of the suit premises on the date when the decree has been passed by the trial Court on 13.12.2010. It would not make any difference if the order of eviction has been put in issue in appeal or revision and is confirmed by the superior forum at a latter date and the date of eviction decree would not be postponed by reference to the doctrine of merger. For this, he placed reliance upon a judgment of the Supreme Court in the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. (2005) 1 SCC 705. 6. I have heard learned counsel for the parties perused the records of both the Courts below including judgment and decree impugned. 7. Section 2 (i) of the Act of 1961 reads as under : "2(i) "tenant" means a person by whom or in whose account or behalf the rent of any accommodation is, or, but for a contract express or implied, would be payable for any accommodation and includes any person occupying the accommodation as a sub-tenant and also, any person continuing in possession after the termination of his tenancy whether before or after the commencement of this Act: but shall not include any person against whom any order or decree for eviction has been made." 8. On a plain reading of the definition aforesaid, it is clear that a tenant even after the termination of his contractual tenancy does riot become an unauthorized occupant of the accommodation but remains a tenant, so long as eviction decree is passed against him. On a plain reading of the definition aforesaid, it is clear that a tenant even after the termination of his contractual tenancy does riot become an unauthorized occupant of the accommodation but remains a tenant, so long as eviction decree is passed against him. The Supreme Court in the case of Smt. Chander Kali Bail and others AIR 1977 SC 2262 (supra), in a case in which the suit for eviction was dismissed by the trial Court, on appeal by the plaintiff, the first appellate Court, by its judgment dated 11.08.1975 took a contrary view, held in favour of the plaintiff, and decreed the suit for eviction, arrears of rent and also for past and future damages @ Rs.l25/- per month- damages to be payable on and from 1-1-1973 until delivery of the vacant possession to the plaintiff and the High Court has affirmed the decree, has held: In absence of a decree of eviction the person in occupation of the accommodation continues to be a tenant and is not liable to pay any damages as his occupation is not unauthorised or wrongful even after the termination of the contractual tenancy and set aside the decree for damages granted for the period before the passing of the eviction decree on 11.08.1975. 9. In view of above, it is crystal clear that before passing of an eviction decree, the tenant's possession cannot be termed as unauthorized possession and till then no damages can be granted in lieu of rent. 10. The core question, therefore, arises for determination of this Court is what would be the relevant date of passing of eviction decree whether it is the date when the court of first instance has passed the eviction decree or the date when the above decree was affirmed by the last appellate Court, for the purpose of Section 2 (i) of the Act of 1961. 11. The Supreme Court had already answered this question in its judgment rendered in the case of Atma Ram Properties (P) Limited (2005) 1 SCC 705 (supra) wherein the Supreme Court in para 17 of its judgment has held as under : "17. In the Delhi Rent Control Act, 1958, the definition of a "tenant" is contained in clause (1) of Section 2. In the Delhi Rent Control Act, 1958, the definition of a "tenant" is contained in clause (1) of Section 2. Tenant includes "any person continuing in possession after the termination of his tenancy" [Section 2(1)(ii)] and does not include "any person against whom an order or decree for eviction has been made" [Section 2(1)(A)]. This definition is identical with the definition of tenant dealt with by this Court in Chander Kali Bai case AIR 1977 SC 2262. The respondent tenant herein having suffered an order for eviction on 19-3-2001, his tenancy would be deemed to have come to an end with effect from that date and he shall become an unauthorised occupant. It would not make any difference if the order of eviction has been put in issue in appeal or revision and is confirmed by the superior forum at a latter date. The date of termination of tenancy would not be postponed by reference to the doctrine of merger." 12. In the instant case, eviction decree has been passed by the trial Court on 13.12.2010. Therefore, in the light of dictum of Supreme Court in the aforesaid case, the tenant's possession would become wrongful from the date of decree and not from the date when his first appeal or second appeal is dismissed. 13. Further, it is not much in dispute that the house was let out by the plaintiff at a monthly rate of Rs.400/- whereas the amount of damages has been awarded at the rate of Rs.100/- per day, i.e. Rs.3000/- per month. The Supreme Court, in the case of Atma Ram Properties (P) Limited (2005) 1 SCC 705 (supra) has observed in para 20 of its judgment as under : "20. In the case at hand, it has to be borne in mind that the tenant has been paying Rs 371.90p. rent of the premises since 1944. The value of real estate and rent rates have skyrocketed since that day. The premises are situated in the prime commercial locality in the heart of Delhi, the capital city. It was pointed out to the High Court that adjoining premises belonging to the same landlord admeasuring 2000 sq ft have been recently let out on rent at the rate of Rs 3,50,000 per month. The premises are situated in the prime commercial locality in the heart of Delhi, the capital city. It was pointed out to the High Court that adjoining premises belonging to the same landlord admeasuring 2000 sq ft have been recently let out on rent at the rate of Rs 3,50,000 per month. The Rent Control Tribunal was right in putting the tenant on term of payment of Rs 15,000 per month as charges for use and occupation during the pendency of appeal. The Tribunal took extra care to see that the amount was retained in deposit with it until the appeal was decided so that the amount in deposit could be disbursed by the appellate court consistently with the opinion formed by it at the end of the appeal. No fault can be found with the approach adopted by the Tribunal. The High Court has interfered with the impugned order of the Tribunal on an erroneous assumption that any direction for payment by the tenant to the landlord of any amount at any rate above the contractual rate of rent could not have been made. We cannot countenance the view taken by the High Court. We may place on record that it has not been the case of the respondent tenant before us, nor was it in the High Court, that the amount of Rs 15,000 assessed by the Rent Control Tribunal was unreasonable or grossly on the higher side." 14. Applying the ratio of law laid down by the Supreme Court in Atma Ram Properties (P) Limited (2005) 1 SCC 705 (supra), it is not correct say that the damages cannot be awarded at the rate more than agreed rate of rent and the above submission made by Shri Paranjpe is devoid of merit. 15. Coming the question of quantum of damages in the facts and circumstances of the present case, the tenant has been paying rent at the rate of Rs.400/- per month since 1999. The suit house is situated in the city of Raipur, which is now capital of State of Chhattisgarh. The value of real estate and rent rates have skyrocketed since that day, therefore, both the Courts below have not committed any illegality in fixing the amount of damages as Rs.100/- per day and Rs.3000/- per month. 16. For the reasons mentioned herein above, the appeal is allowed in part. The value of real estate and rent rates have skyrocketed since that day, therefore, both the Courts below have not committed any illegality in fixing the amount of damages as Rs.100/- per day and Rs.3000/- per month. 16. For the reasons mentioned herein above, the appeal is allowed in part. The part of decree whereby the amount of damages fixed at Rs.100/- has been allowed from the date of institution of suit, is set aside and instead, the decree of damages at the rate of 100/- per day is granted from the date of passing of decree in the civil suit, i.e., 13.12.2010. The decree is modified only to the above extent. Rest of the part of judgment and decree shall remain intact. Substantial question of law formulated by this Court is answered accordingly. 17. Cost of the appeal shall be borne by the appellant. 18. A decree be drawn accordingly. Appeal Partly Allowed.