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2013 DIGILAW 613 (PNJ)

Bird Travels (P) Ltd. v. Amarjit Kaur

2013-05-09

JASWANT SINGH

body2013
Jaswant Singh, J. The judgment debtor/petitioner is in revision under Article 227 of the Constitution assailing the orders dated 23.7.2013 (P2) passed by the Executing Court/Rent Controller, Chandigarh whereby its application objecting to the continuance of the execution proceedings has been dismissed. In brief the facts are that the respondents/landlords filed an eviction petition against the petitioner/tenant-JD seeking its eviction from demised premises comprising a portion of the ground floor of SCO 55-56, Sector 17, Chandigarh on the ground of personal necessity. The same was allowed by the learned Rent Controller, Chandigarh vide judgment dated 15.6.2001 and the tenant/petitioner was ordered to be evicted. The appeal filed by the tenant/petitioner was also dismissed on 11.1.2002 by the learned Appellate Authority, Chandigarh. Dissatisfied against the same, tenant filed Civil Revision No.1386/2002 before this Court and the same was admitted vide order dated 6.5.2002. Finally the said revision was disposed of by this Court vide order dated 19.12.2011 as not pressed, however, keeping in view that the tenant had enjoyed the occupation of the demised premises for almost ten years, this Court vide same judgment ordered the tenant to pay mesne profits @ Rs.3 lacs w.e.f. 6.5.2002 i.e. the date on which this Court admitted the revision petition and stayed dispossession of the petitioner. Aggrieved against the rate of mesne profits determined by this Court, the tenant approached Hon'ble the Supreme Court and the same was disposed of vide order dated 11.5.2012 by partly allowing the appeal and setting aside the order dated 19.12.2011 passed by this Court to the extent of determination of mesne profits. Hon'ble the Supreme Court, to decide the question of mesne profits to be paid by the tenant in terms of the order dated 19.12.2011 passed by this Court, directed the parties to appear before the Rent Controller, Chandigarh for determination of the mesne profits, since it was observed that some evidence was required to be adduced and considered. In terms of the order dated 11.5.2012 the parties, as directed, appeared on 11.6.2012 before the learned Rent Controller, Chandigarh-cum-Executing Court in the execution proceedings already pending before the said forum. In terms of the order dated 11.5.2012 the parties, as directed, appeared on 11.6.2012 before the learned Rent Controller, Chandigarh-cum-Executing Court in the execution proceedings already pending before the said forum. Subsequently, it is conveyed that on 8.10.2012 two applications were moved by the tenant/JD for dismissing the execution and also for making a reference to the High Court in view of the assertions that after the passing of the eviction decree by the Rent Controller, which is a Tribunal, it had no jurisdiction to assess the mesne profits. It was further stated that even the Executing Court was not competent to assess the mesne profits as the jurisdiction of the same would only vest with the Civil court. The applications were contested. The learned Executing Court-cum-Rent Controller, Chandigarh vide impugned order dated 23.7.2013 (P2) dismissed both the applications. It was held that no reference to the High Court was maintainable in view of the categoric direction by Hon'ble the Supreme Court vide order dated 11.5.2012 (P3) directing the learned Rent Controller to determine the quantum of mesne profits payable by the JD/tenant to the landlord for the use and occupation of the demised premises from 6.5.2002 to 11.2.2012 by holding an inquiry by giving opportunity to both sides to lead their evidence. As regards the other application asserting that the Executing Court had no jurisdiction, it was held that in view of the provisions of Section 47 of the Code of Civil Procedure, the question between the parties to the “lis” had to be determined by the same court. It was further held that although the vacant possession of the demised premises had been handed over, however, the decree could not be construed to be satisfied since the question of payment of arrears of mesne profits in terms of the order passed by the High Court and Hon'ble the Supreme Court still remains to be decided and payment made. Learned counsel for the petitioner/tenant in the present revision has only assailed the findings regarding dismissal of the application whereby it has been held that the Executing Court-cum-Rent Controller, Chandigarh has the jurisdiction to proceed to assess the mesne profits in terms of the directions passed by Hon'ble the Supreme Court. Learned counsel for the petitioner/tenant in the present revision has only assailed the findings regarding dismissal of the application whereby it has been held that the Executing Court-cum-Rent Controller, Chandigarh has the jurisdiction to proceed to assess the mesne profits in terms of the directions passed by Hon'ble the Supreme Court. It is argued that the Executing Court is only required to execute the decree and is not competent to assess the mesne profits, which at the best were to be determined by the learned Rent Controller in terms of the directions passed by the Hon'ble Supreme Court. After hearing counsel for the petitioner, this Court is of the view that the arguments being raised are frivolous and untenable. It is not disputed that the eviction order/decree passed by the learned Rent Controller was finally disposed of vide order dated 19.12.2011 whereby the revision was dismissed as not pressed and the eviction order accepted by the tenants. The same was however, conditional inasmuch as tenant was required to pay mesne profits @ Rs.3 lacs payable w.e.f. 6.5.2002. It is not in dispute that as regards the question of payment of mesne profits only, Hon'ble the Supreme Court vide order dated 11.5.2012 set aside the said rate with the observation that such a determination requires certain inquiry and thus relegated the parties to appear before the Rent Controller, Chandigarh for determination of the same and payment accordingly. It is also not in dispute that both parties appeared before the Executing Court-cum-Rent Controller where the execution proceedings were already pending. Merely because the nomenclature would be Rent Controller or the Executing Court would not take away the jurisdiction of the Court where the parties are required to lead their respective evidence in support of determination of rate of mesne profits to be paid. It is also not disputed that the said rate also forms part of the eviction decree modified by this Court, therefore, I find no ground warranting interference with the view taken by the learned Rent Controller vide impugned order dated 23.7.2013(P2). Accordingly, the present revision petition is dismissed with costs of Rs.20,000/- to be deposited with the District Legal Service Authority, Chandigarh within one month from today.