Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 803 (RAJ)

Pokhardas v. Govind Sharan

2012-04-02

PRASHANT KUMAR AGARWAL

body2012
Hon'ble AGARWAL, J.—Heard learned counsel for the parties. 2. The matter comes up for orders on Application No. 27730 filed by the plaintiff-respondents (landlord) under Order 41 Rule 5 read with Section 151 CPC for grant of mesne profits during pendency of the appeal. 3. It is an admitted fact that the suit shop is situated on main road of Kishanpole Bajar, Jaipur and it was let out to defendant-appellant (tenant) on 1.8.1976 @ Rs. 105/- per month. 4. The brief relevant facts for the disposal of this application are that the plaintiff-respondents filed a suit for eviction and recovery of arrears of rent against the defendant-appellant under the provisions of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (hereinafter referred to as "the Act") on the ground of default in payment of rent and material alteration which was registered as Regular Civil Suit No. 577/1980 and the same was dismissed by the trial Court vide judgment and decree dated 15.7.2008. Against that decree, the respondents filed Civil Regular Appeal No. 68/2009 and the same was allowed by the Appellate Court vide judgment and decree dated 7.5.2011 and the suit for eviction was decreed. Against the judgment and decree passed by the Appellate Court, the present second appeal was filed and the same was admitted on 22.7.2011 and interim stay order was also passed on the same date. In these circumstances, the present application has come to be filed for grant of mesne profits. It is an admitted fact that during pendency of suit, the plaintiff-respondent filed a petition for revision of rent under Section 6 of the Rajasthan Rent Control Act, 2001 (hereinafter referred to as the "New Act") and the same was allowed by the concerned Rent Tribunal vide order dated 9.12.2004 and the monthly rent of the suit shop was increased and revised to Rs. 292/- per month. 5. It was submitted by the learned counsel for the appellant that as the concerned Rent Tribunal has revised and increased the rent for the suit premises under the prevalent legal provisions, therefore, during the pendency of this appeal mesne profits exceeding the revised rent presently payable cannot be awarded. 292/- per month. 5. It was submitted by the learned counsel for the appellant that as the concerned Rent Tribunal has revised and increased the rent for the suit premises under the prevalent legal provisions, therefore, during the pendency of this appeal mesne profits exceeding the revised rent presently payable cannot be awarded. According to learned counsel for the appellant, if calculated on the basis of formula as provided in Section 6 of the New Act, the revised rent payable in the year 2011, when the decree for eviction has been passed by the First Appellate Court, comes to be Rs. 412/- per month and, therefore, even if the Court comes to a conclusion that mesne profits exceeding the contractual rent has to be awarded, even then the amount of mesne profits cannot exceed Rs. 412/- per month. It was further submitted that if a legal provision provides certain criteria for revision/determination of rent, then rent/mesne profits can be awarded only on the basis of that criteria and in such a situation DLC/market rate of the suit premises or rent of any other similarly situated rented premises is wholly irrelevant. Learned counsel for the appellant also submitted that inspite of the decree of eviction passed by the Appellate Court, the appellant continued to be a tenant within the meaning of the Act until in execution of the decree he was physically evicted from the suit premises. The tenancy did not come to an end on the passing of the decree, but would continue as long as the appellant was in actual physical possession of the suit premises and as a consequence of it he would enjoy all the protection under the Act. It was also submitted that the appellant-tenant shall not become an unlawful occupant until passing of decree by the highest Court because the decree would achieve finality only when proceedings have finally terminated and then the decree of First Appellate Court shall stand merged in the decree of the final Court, the date whereof only would be relevant for determining the nature of occupation of the tenant. In support of his submissions, learned counsel for the appellant has relied upon the cases of Nasruddin vs. Additional District Judge No. 2, Bhilwara reported in 2009(2) DNJ Raj., 744 = 2009(4) RLW 3612, Ajit Chopra vs. Sadhu Ram & Ors. In support of his submissions, learned counsel for the appellant has relied upon the cases of Nasruddin vs. Additional District Judge No. 2, Bhilwara reported in 2009(2) DNJ Raj., 744 = 2009(4) RLW 3612, Ajit Chopra vs. Sadhu Ram & Ors. reported in (2000) 1 SCC 114 = RLW 2000(1) SC 53 and Niyas Ahmad Khan vs. Mahmood Rahmat Ullah Khan & Anr. reported in (2008) 7 SCC 539 . 6. On the other hand, learned counsel for the plaintiff-respondents submitted that it is well settled that after passing of the order or decree of eviction against a tenant, his status as a tenant comes to an end and his possession on the tenanted premises becomes unauthorised from date of the order or decree of eviction. According to learned counsel for the respondents, as decree of eviction has been passed against the appellant on 7.5.2011 by the First Appellate Court, his status as tenant has come to an end from that date and he has become unauthorised occupant in the suit premises. It was further submitted that the application under Section 6 of the New Act for revision of rent was moved by the respondents during the pendency of suit when the appellant was occupying the suit premises as tenant and even if the rent was revised on the basis of formula provided in Section 6 of the New Act, it was applicable only for the period for which the status of appellant continued as tenant and as soon as the decree for eviction was passed, the order of revision shall cease to apply and this Court is not bound by that order and if found appropriate mesne profits exceeding the revised rent can also be granted. In support of his submissions learned counsel for the respondents relied upon the case of Smt. Prem Devi & Ors. vs. Gulab Chand reported in 2011 (3) WLC (Raj.), 532 = 2012(1) RLW 47. 7. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law. 8. vs. Gulab Chand reported in 2011 (3) WLC (Raj.), 532 = 2012(1) RLW 47. 7. I have considered the submissions made on behalf of the respective parties and also gone through the material made available for my perusal as well as the relevant legal provisions and the case law. 8. In view of the submissions made on behalf of the respective parties, it is to be decided first whether during pendency of this appeal mesne profits exceeding the revised rent as presently payable on the basis of formula provided in Section 6 of the New Act can be awarded or not. 9. Hon'ble Supreme Court in the case of M/s. Atma Ram Properties Pvt. Ltd. vs. M/s. Federal Properties (P) Ltd. reported in 2005(1) RCR 1 has held that: "In case of premises governed by the provisions of the Rent Control Act, the tenancy does not stand terminated merely by its termination under the general law, but terminates with the passing of the decree for eviction. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of decree." In this case Hon'ble Supreme Court has approved view expressed by Nagpur High Court in the case of Bhagwandas vs. Mst. Kakabai reported in AIR 1953 Nagpur 186 which is as follows: "That the rent control order, governing the relationship of landlord and tenant, has no relevance for determining the question of what should be the measure of damages which a successful landlord should get from the tenant for being kept out of the possession and enjoyment of the property. 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. 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. It 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." It is pertinent to note that Hon'ble Supreme Court in the case of M/s. Atma Ram Properties (supra) was dealing with Delhi Rent Control Act in which the definition of word "tenant" is almost similar to the definition given in the Act. 10. In the case of Niyas Ahmed Khan vs. Mahmood Rahmat Ullah Khan & Anr., reported in (2008) 7 SCC 539 , Hon'ble Supreme Court has held that: "In writ petitions filed by tenants, while granting stay of execution of the order of eviction pending disposal of writ petition, the High Court has the discretion to impose reasonable conditions to safeguard the interests of the landlord. But even in such cases the High Court cannot obviously impose conditions which are ex facie arbitrary and oppre-ssive thereby making the order of stay illusory. When a tenant files a writ petition challenging the order of eviction, the High Court may reject the writ petition if it finds no merit in the case of the tenant; or in some cases, the High Court may admit the writ petition but refuse to grant stay of execution, in which event, the tenant may be evicted, but can claim restoration of possession if he ultimately succeeds in the writ petition; or in some cases, the High Court finding the case fit for admission, may grant stay of eviction, with or without conditions, so that status quo is maintained till the matter is decided. Where the High Court chooses to impose any conditions in regard to stay, such conditions should not be unreasonable or oppressive or in terrorem". Hon'ble Supreme Court has further held that: "To sum up, in writ petitions by landlords against rejection of eviction petitions, there is no scope for issue of any interim direction to the tenant to pay higher rent. Hon'ble Supreme Court has further held that: "To sum up, in writ petitions by landlords against rejection of eviction petitions, there is no scope for issue of any interim direction to the tenant to pay higher rent. But in writ petitions by tenants against grant of eviction, the High Court may, as a condition of stay, direct the tenant to pay higher rent during the pendency of the writ petition. This again is subject to two limitations. First, the condition should be reasonable. Second, there should not be any bar in the respective State rent control legislation in regard to such increases in rent. Be that as it may." 11. A three Hon'ble Judges Bench of Hon'ble Supreme Court in the case of State of Maharashtra & Anr. vs. M/s. Super Max International Pvt. Ltd. & Ors. reported in AIR 2010 SC 722 = 2010(2) RLW 1263 (SC) by affirming the view expressed by the Court in the case of Atmaram Properties (supra) has held that: "In an appeal or revision preferred by a tenant against an order or decree of an eviction passed under the Rent Act it is open to the appellate or the revisional Court to stay the execution of the order or the decree on terms, including a direction to pay monthly rent at a rate higher than the contractual rent. Needless to say that in fixing the amount subject to payment of which the execution of the order/decree is stayed, the Court would exercise restraint and would not fix any excessive, fanciful or punitive amount." In this case Hon'ble Supreme Court was dealing with the provisions of Bombay Rent Act in which the definition of the word "tenant" is quite different from the definition of that word in Delhi Rent Control Act and Rajasthan Act, but even then it was held that while admitting the appeal or revision it is perfectly opon to the Court to decline to grant any stay or to grant stay subject to some reasonable condition. In case, stay is not granted or in case the order of stay remains inoperative for failure to satisfy the condition subject to which it is granted, the tenant will not have the protection of any of the provisions under the Rent Act and in all likelihood would be evicted before the matter is finally decided. 12. In case, stay is not granted or in case the order of stay remains inoperative for failure to satisfy the condition subject to which it is granted, the tenant will not have the protection of any of the provisions under the Rent Act and in all likelihood would be evicted before the matter is finally decided. 12. In the case of Ajit Chopra (supra), Hon'ble Supreme Court has held that: "The relationship between landlord and tenant continues throughout the proceedings before the Rent Controller, then during the pendency of the appeal and till the statutory revision under the Act is disposed of. It may be that in a given case the Rent Controller may pass an eviction order and in another case, the appellate authority may do so and in yet another case the revisional authority may pass the eviction order. It may also be that, in a particular case, there is a remand order at some stage and the authority to which the matter is remanded might come to a conclusion different from the one it arrived at before remand. Throughout the proceedings, the relationship as tenant continues till the eviction order is passed by the appellate or statutory revisional authority. The relationship does not go on oscillating during the pen-dency of the proceedings depending upon whether eviction is granted or not in between. In that view of the matter, the contention for the tenant that the relationship of landlord and tenant came to an end on 30.9.1957 when the landlord's appeal was allowed by the appellate authority and that there was no such relationship during the pendency of the tenant's statutory revision till 19.9.1958, must stand rejected." 13. The word "tenant" as defined in Clause (VII) of Section 3 of the Act includes in its purview such person also who is continuing in the possession of tenanted premises even after termination of his contractual tenancy but it does not include such a person whose tenancy has been terminated by a decree for eviction passed under the provisions of the Act even if he is continuing in possession after passing of such decree. Similar is the definition of the word "tenant" in Section 2(i) of the New Act. 14. Similar is the definition of the word "tenant" in Section 2(i) of the New Act. 14. From the perusal of prevalent legal position, it is very much clear that as soon as an order or decree for eviction is passed against a tenant even under the provisions of Rent Control Act the status of tenant as tenant comes to an end and from the date of order or decree of eviction, his occupation of tenanted premises becomes unauthorised. As in the present case decree of eviction has been passed against the appellant on 7.5.2011 by the First Appellate Court, his status as tenant has come to an end and his occupation in the suit property has become unauthorised and, therefore, even if during pendency of the suit on the application filed by the respondents themselves under Section 6 of the New Act, rent of the suit premises was revised, the same will not be applicable after passing of decree of eviction and this contention of learned counsel for the appellant is not tenable that the mesne profits to be awardable during pendency of this appeal cannot exceed the rate of revised rent payable on the date of decree. I am of the considered view that in the light of well settled legal position the revised rent was payable only during the period in which the status of appellant as tenant continued. Although, the view taken in the judgment of this High Court 7 relied upon by the learned counsel for the appellant supports his contention, but with respect it is clear that before coming to that conclusion the learned Coordinate Bench did not take into consideration the view expressed by Hon'ble Supreme Court in the case of Atmaram Properties (supra). I am of the view that in the light of definition of the word "tenant" as given in the Act and the new Act and the principle of law laid down by Hon'ble Supreme Court, the view expressed by the learned Single Bench of this Court, is not binding upon me. This fact is also relevant that a landlord applying for revision of rent under Section 6 of the New Act cannot be placed in a disadvantageous position in comparison to a landlord who does not apply for such a revision of rent. This fact is also relevant that a landlord applying for revision of rent under Section 6 of the New Act cannot be placed in a disadvantageous position in comparison to a landlord who does not apply for such a revision of rent. If the contention of learned counsel for the appellant is accepted, it would mean that a landlord not applying for such a revision of rent would be able to demand for grant of mesne profits at a rate higher than the contractual rent and even at a rate exceeding the possible revised rent under Section 6 of the New Act whereas a landlord in whose favour such a increase or revision has been made, would not be able to demand mesne profits exceeding revised rate of rent. I am of the view that such a situation can never be legally tenable. 15. Accordingly, it is held that in a case in which during pendency of the suit or appeal filed under the provisions of the Act, monthly rent has been revised under Section 6 of the New Act, the Appellate Court, while awarding mesne profits during pendency of the appeal filed against a decree of eviction, is not bound to confine the amount of mesne profits to the extent of revised rent only but if found appropriate, even an amount exceeding revised rent can be awarded. 16. Now, it is to be considered what would be a reasonable amount as mesne profits looking to the facts and circumstances of the present case. 17. In the present case, it is an admitted fact that the suit premises is a shop measuring 12' x 18' situated on main road of Kishanpole Bazar in the city of Jaipur and it was let out to the appellant on 1.8.1976 at the monthly rent of Rs. 105/-. It is also an admitted fact that the rent remained continuously static until it was revised by the concerned Rent Tribunal vide order dated 9.12.2004. It is also an admitted fact that Kishanpole Bazar is one of the oldest and main commercial center of Jaipur. It is also an admitted fact that commercial activities and business are being carried on in the suit shop. It is also an admitted fact that Kishanpole Bazar is one of the oldest and main commercial center of Jaipur. It is also an admitted fact that commercial activities and business are being carried on in the suit shop. Although, a copy of DLC rates prevalent w.e.f. 11.8.2011 has been produced on behalf of the respondents, but in absence of detailed particulars and valuation report of an authorised valuer, it cannot be made sole basis of determination of mesne profits awardable in the present case. The copy of lease deed dated 27.5.2010 produced by the respondents indicates that Shop No. 109 situated on the main road of Kishanpole Bazar was let out at the monthly rent of Rs. 17,000/- for the period effective from 1.5.2010 to 30.4.2013 i.e. for a period of three years but from the lease deed, it is not clear what are measurements of the shop. Similarly, from the perusal of copy of another lease deed produced by the respondents, it is clear that Shop No. 71 situated in the same market was let out on a monthly rent of Rs. 15,000/- w.e.f. 1.8.2010, but in this lease deed also measurement of the shop has not been given. Therefore, these lease deeds also cannot be made sole base to determine the mesne profits for the suit shop. So far as the material produced by the appellant is concerned, copy of rent receipt indicates that an amount of Rs. 8280/- was received as rent for the period from 1.4.2008 to 31.3.2009 i.e. for 12 months, but it is not clear where the rented premises is situated, whether it is residential or commercial, when it was let out and from which date the present rent is payable. Copy of another rent receipt dated 24.12.2010 indicates that Rs. 3400/- were paid as rent for a period of two months for a shop situated in Kishanpole Bazar, Jaipur, but it is not clear when that shop was let out and from which date monthly rent of Rs. 1700/- was fixed. Therefore, both these rent receipts are also not relevant and useful for the determination of mesne profits to be payable in the present case. 1700/- was fixed. Therefore, both these rent receipts are also not relevant and useful for the determination of mesne profits to be payable in the present case. The appellant has also produced copy of a rent note dated 15.10.2008 indicating that a shop situated in Shokiyo-ka-Rasta, Chaukari Topkhana Desh, Jaipur was let out on 30.6.2008 for a period of 11 months at a monthly rent of Rs. 2035/- and before that the rent was Rs. 800/- per month. This document is also not very much relevant by the reason that the shop so let out is situated in a internal market and measurement of the shop are also not indicated in it. As both the parties have failed to produce such piece of evidence which can be a sole basis of determination of a reasonable amount of mesne profits, this Court has no alternative other then to determine the same on the basis of overall facts and circumstances of the present case. The suit shop has a measurement of 12' x 18' and is situated in a main and oldest commercial center "Kishanpole Bazar" of city of Jaipur and it was let out on 1.8.1976 at a monthly rent of Rs. 105/- and the same remained static for a long period until it was revised to a meager amount of Rs. 292/- per month by the concerned Rent Tribunal by order dated 9.12.2004. It is also relevant to consider that since the commencement of the tenancy of suit shop monthly rent and price of immovable property has increased many folds. According to Hon'ble Supreme Court, the mesne profits has to be reasonable and it cannot be excessive, fanciful or punitive. Therefore, looking to the overall facts and circumstances of the case, I think it is fit and proper to determine/fix the mesne profits of the suit property @ Rs. 10,000/- with effect from the date of passing of the impugned judgment and decree of eviction i.e. dated 7.5.2011. 18. Consequently, the application filed by the plaintiff-respondents is partly allowed and it is ordered that defendant-appellant is liable to pay mesne profits @ Rs. 10,000/- per month w.e.f. May, 2011 till the final disposal of this appeal. All the arrears of mesne profits for the period of May, 2011 to April 2012 shall be deposited in the trial Court within a period of three months from today. 10,000/- per month w.e.f. May, 2011 till the final disposal of this appeal. All the arrears of mesne profits for the period of May, 2011 to April 2012 shall be deposited in the trial Court within a period of three months from today. It is also directed that from the month of May 2012 the mesne profits at the above said rate shall be deposited in the trial Court upto 10th of each succeeding month during pendency of this appeal. It is made clear that the amount of mesne profits so determined by this order is over and above and in addition to the contractual rent. It is further made clear that if in compliance of this order, the amount is deposited in the trial Court, the same will not be released/disbursed/paid to any of the parties and it will be deposited/invested by the trial Court in the fixed deposits in a nationalised bank from time to time for a reasonable period. It also made clear that the amount so deposited alongwith the interest accrued on it shall be paid to the party after final disposal of the appeal depending on the result of it. It is further made clear that the appellant shall continue to pay the contractual monthly rent in accordance with the stay order dated 22.7.2011. It is needless to say that if the appellant fails to comply this order within the time prescribed, the stay order dated 22.7.2011 stand automatically vacated without further reference to this Court and the impugned decree shall be liable to be executed immediately. Consequently, the Application No. 27730 dated stands disposed of in the above manner.