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2013 DIGILAW 5 (ORI)

Sunkuru Raghab Rao v. Krushna Singh Padhi

2013-01-04

S.PANDA

body2013
JUDGMENT SANJU PANDA, J.-The Petitioner has filed this Writ Petition challenging the Order Dated 16.11.2012 passed by the Learned Civil Judge (Senior Division), Bhubaneswar in C.S. No.1930 of 2011 directing the Petitioner to pay Rs.60,000/- per month as occupation charges with effect from 21.11.2011 & deposit the said amount before it through challan on 10th of each month. 2. From the record, it appears that this Court earlier in WP(C) No.8517 of 2012 disposed of on 19.10.2012 directed the Learned Civil Judge (Senior Division), Bhubaneswar to dispose of Civil Suit No.1930 of 2011 expeditiously as the matter is ready for hearing, preferably by end of June, 2013 & further directed that if the Opp. Parties file an appropriate application before the court below for payment of occupation charges by the Petitioner over the said property during pendency of the suit, the monthly amount to be paid at the market rate, shall be assessed by the court below & the Petitioner shall be directed to deposit the said amount before the court below which shall be disbursed in favour of the Opp. Parties. If such application is filed by 16.11.2012, the same shall be disposed of by 18.11.2012. The amount directed to be deposited as above shall be without prejudice to the rights & contentions of the respective parties in the suit. In pursuance of the said direction, the court below has passed the impugned order. 3. Learned Counsel for the Petitioner submitted that the court below has not assessed the occupation charges at the market rate in compliance of the aforesaid direction of this Court: rather it has fixed an imaginary amount which is much more than the claim advanced by the Opp. Parties. Therefore, the impugned order is liable to be interfered with. 4. Learned Counsel for the Opp. Parties supporting the impugned order submitted that the court below has taken into consideration the documents, i.e., copy of the agreements & one notarized agreement which reveals the occupation charges per month pertaining to plot at Kharavel Nagar at Rs.77,200/- & Rs.80,000/- per month in respect of part of the suit plot. Accordingly, the court below has rightly assessed the occupation charges at the market rate. Therefore, the impugned order need not be interfered with. Accordingly, the court below has rightly assessed the occupation charges at the market rate. Therefore, the impugned order need not be interfered with. In support of his contention, he has cited a decision of the Apex Court in the case of M/s. Atma Ram Properties (P) Ltd. v. M/s. Federal Motors Pvt. Ltd. reported in IT 2004 (10) SC 410. 5. From the rival submissions of the parties & after going through the impugned order & record, it appears that the Opp. Parties-Plaintiffs filed the suit for eviction & realization of arrear occupation charges of Rs. 72,000/- at the rate of Rs.6000/- per month since October, 2010 & pendent lite & future damages for illegal occupation at the rate of Rs.500/- per day. The Petitioner-Defendant filed his written statement taking a stand that he is a tenant over the suit premises on the strength of agreement which was executed on 15.2.1987 & after gradual enhancement of the rate, it reached at Rs.800/- per month since February, 2010 which is not in dispute. The Petitioner also filed Title Suit No.141 of 2011 before the Learned Civil Judge (Junior Division), Bhubaneswar praying for permanently injuncting the Opp. Parties from forcibly evicting the Petitioner without following due process of law. In the said suit, he has also obtained an interim order. Challenging the said interim order, one FAO 37 of 2012 was filed before the Learned District Judge, Khurda at Bhubaneswar. This Court, taking into consideration all those factual aspects, passed the direction in the earlier Writ Petition to assess the occupation charges at the market rate. However, the court below had taken into consideration the notarized agreement & another registered agreement pertaining to another area & on the same date fixed the amount without giving an opportunity to the parties to adduce material evidence to assess the occupation charges at the market rate. Further, even if the Plaintiffs prayer is to be accepted in toto, as made by them in the suit, the occupation charges comes to Rs.500/- per day for 30 days & accordingly it comes to Rs.15000/- per month. Therefore, the quantum fixed by the Trial Court is at the higher rate. 6. In the case of M/s. Atma Ram Properties (P) Ltd. (supra), the Apex Court has held as follows: "16. Therefore, the quantum fixed by the Trial Court is at the higher rate. 6. In the case of M/s. Atma Ram Properties (P) Ltd. (supra), the Apex Court has held as follows: "16. We are, therefore, of the opinion that the tenant having suffered a decree or order for eviction may continue his fight before the superior forum but, on the termination of the proceedings & the decree or order of eviction first passed having been maintained, the tenancy would stand terminated with effect from the date of the decree passed by the lower fourm. In the case of premises governed by rent control legislation, the decree of eviction on being affirmed, would be determinative of the date of termination of tenancy & the decree of affirmation passed by the superior forum at any subsequent stage or order, would not, by reference to the doctrine of merger have the effect of postponing the date of termination of tenancy. 17. In the Delhi Rent Control Act, 1958, the definition of 'a tenant' is contained in clause (I) of Section 2. Tenant includes 'any person continuing in possession after the termination of his tenancy' & does not include 'any person against whom an order or decree for eviction has been made. This definition is identical with the definition of tenant dealt with by this Court in Chander Kali Bai & Ors. Case (supra). The tenant-Respondent 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 & he shall become an unauthorized occupant It would not make any difference if the order of eviction has been put i ~ issue in appeal or revision & 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. 18. That apart, it is to be noted that the Appellate court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the tenant-Appellant on terms. The tenant having suffered an order for eviction must comply & vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the Appellate court. The tenant having suffered an order for eviction must comply & vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt with in exercise of equitable discretionary jurisdiction of the Appellate court. While ordering stay, the Appellate court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree & is postponing the execution of the order for eviction. There is every justification for the Appellate court to put the tenant-Appellant on terms & direct the Appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. & Anr., this Court has held that once a decree for possession has been passed & execution is delayed depriving the Judgment-creditor of the fruits of decree, it is necessary for the court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property." (emphasis supplied) 7. In view of the ratio decided by the Apex Court in the aforesaid case, this Court sets aside the impugned Order Dated 16.11.2012 passed by the Learned Civil Judge (Senior Division), Bhubaneswar in C.S. No.1930 of 2011 & remands the matter to the court below to assess the occupation charges afresh after giving opportunities to the parties to supply material documents & dispose of the suit as directed earlier. The Writ Petition is accordingly allowed. No costs.