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2020 DIGILAW 720 (RAJ)

Mustaq Malawat v. Jitendra Gidwani

2020-12-05

RAMESHWAR VYAS, SANGEET LODHA

body2020
JUDGMENT 1. This intra-court appeal is directed against the order dated 25.8.2020 passed by the learned Single Judge of this Court, whereby, the writ petition preferred by the appellant assailing the legality of the order dated 1.2.2020 passed by the Rent Tribunal, Bikaner, has been dismissed. 2. The facts relevant are that a petition preferred by the respondent-landlord seeking eviction of the appellant-tenant from a commercial premises and recovery of rent was allowed by the Rent Tribunal, Bikaner vide judgment dated 21.10.13. Aggrieved thereby, an appeal preferred by the appellant before the Appellate Rent Tribunal, Bikaner was dismissed vide order dated 6.9.18. Assailing the legality of the order dated 21.10.13 passed by the Rent Tribunal, Bikaner and order dated 6.9.18 passed by the Appellate Rent Tribunal, the appellant preferred a writ petition being S.B.Civil Writ Petition No. 16790/2018 before this Court. Learned Single Judge vide order dated 13.11.18, while admitting the petition passed an interim order in favour of the appellant in the following terms: "In the meanwhile, the execution of certificate for recovery of possession issued by the Rent Tribunal, Bikaner in Rent Case No.13/2006 pursuant to order dated 21.10.2013 affirmed by the Appellate Rent Tribunal, Bikaner, vide order dated 06.09.2018 passed in Appeal No.180/2013 (C.I.S. No.393/2014) shall remain stayed. However, the petitioner shall continue to pay mesne profit to the respondent/landlord in terms of provision of sub-Section (3) of Section 20 of the Rent Control Act, 2001, subject to the decision of this writ petition. The arrears of the mesne profit, if any, shall be deposited within a period of one month." 3. The respondent preferred an application (IA No. 1/19) in the aforesaid writ petition for vacating the interim order dated 13.11.18 contending that the appellant herein has failed to deposit the mesne profit as directed by this Court. The application was disposed of by the learned Single Judge vide order dated 9.9.19 in the following terms: "The matter comes up on an application (IA No. 1/19) preferred on behalf of respondent No.3 for vacating the interim order dated 13.11.2018. Vide order dated 13.11.2018, the execution of certificate for recovery of possession issued by the Rent Tribunal, Bikaner was stayed by this Court, subject to the condition that the petitioner continues to pay mesne profit to the respondent/landlord in terms of provisions of Sub-Section (3) of Section 20 of the Rent Control Act, 2001. Vide order dated 13.11.2018, the execution of certificate for recovery of possession issued by the Rent Tribunal, Bikaner was stayed by this Court, subject to the condition that the petitioner continues to pay mesne profit to the respondent/landlord in terms of provisions of Sub-Section (3) of Section 20 of the Rent Control Act, 2001. Learned counsel appearing for the respondent No.3 submits that the petitioner has failed to deposit the mesne profit, as directed by this Court. However, learned counsel appearing for the petitioner submits that entire amount due has already been deposited. In this view of the matter, the Rent Tribunal, Bikaner is directed to look into the matter. If the petitioner has not deposited the amount of mesne profit in terms of order dated 13.11.2018 passed by this Court, the Tribunal shall be free to proceed with execution of certificate of recovery of possession. The application stands disposed of. The record of the case be sent back to Rent Tribunal, Bikaner forthwith." 4. Later, the appellant filed yet another application (IA No.2/2019) in S.B.Civil Writ Petition No.16790/2018 with a prayer that two days' delay in depositing the amount of arrears of mesne profit may be condoned, which was allowed by the learned Single Judge vide order dated 24.9.19 and the delay in depositing the amount was condoned. 5. The respondent preferred two applications dated 5.1.19 and 21.9.19 before the Rent Tribunal and while giving the details of the amount of mesne profit due and the amount actually deposited by the appellant contended that the appellant has failed to deposit the mesne profit in terms of the order dated 13.11.18 passed by the learned Single Judge of this Court in S.B.Civil Writ Petition No. 16790/2018 and therefore, for execution of the certificate for recovery of possession, warrant of possession deserves to be issued. The respondent claimed that in terms of the order dated 13.11.18 passed by this Court, the appellant was required to deposit a sum of Rs. 10,93,800/- against which, he has deposited only Rs.4,80,000/-. That apart, as against the amount of mesne profits payable for the period from 14.11.18 till the date of filing of the application as aforesaid, an amount of Rs.1,84,200/- was due, against which, only Rs. 90,000/- was deposited. 6. 10,93,800/- against which, he has deposited only Rs.4,80,000/-. That apart, as against the amount of mesne profits payable for the period from 14.11.18 till the date of filing of the application as aforesaid, an amount of Rs.1,84,200/- was due, against which, only Rs. 90,000/- was deposited. 6. After due consideration, the applications were allowed by the Rent Tribunal, Bikaner vide order dated 1.2.2020 and the warrant of possession was directed to be issued. Aggrieved thereby, the appellant preferred the writ petition before this Court which stands dismissed by the learned Single by the order impugned. Hence this appeal. 7. Learned counsel appearing for the appellant contended that the order dated 21.10.13 passed by the Rent Tribunal stands merged in order of the Appellate Rent Tribunal dated 6.9.18, whereby the Appellate Rent Tribunal granted two months' time to the appellant to vacate the disputed premises and thus, the appellant was required to deposit the mesne profit in terms of the order passed by the Appellate Rent Tribunal and not in terms of the order passed by the Rent Tribunal, Bikaner. Learned counsel submitted that vide order dated 24.9.19 passed by the learned Single Judge in Writ Petition No. 16790/2018, the delay of two days' in depositing the arrears of mesne profit was condoned and it was specifically ordered that the amount deposited shall be treated to be due compliance of order dated 13.11.18 and thus, ignoring the order passed by the learned Single Judge of this Court, the Rent Tribunal has seriously erred in holding that the order dated 13.11.18 has not been complied with. 8. On the other hand, counsel appearing for the respondent while drawing the attention of the Court to the details of the amount of mesne profit due and the amount actually deposited by the appellant, contended that the appellant having failed to discharge his obligation in terms of the order dated 13.11.18, the Rent Tribunal has committed no error in directing to issue warrant of possession. 9. We have considered the submissions of the learned counsel appearing for the parties and perused the material on record. 10. 9. We have considered the submissions of the learned counsel appearing for the parties and perused the material on record. 10. Indisputably, in terms of the order dated 13.11.18 passed by the learned Single Jude in S.B.Civil Writ Petition No. 16790/2018, the appellant was required to deposit the entire dues of mesne profit within a period of one month and continue to pay mesne profit to the respondent in terms of provisions of sub-section (3) of Section 20 of the Act of 2001, subject to decision of the writ petition. 11. As per provisions of sub-section (3) of Section 20, if the tenant does not vacate the premises within three months of the date of issuance of certificate for recovery of possession, he shall be liable, from the date of the issue of the certificate for recovery of possession to pay mesne profit at the rate of two times the rent in case of premises let out for residential purposes, at the rate of three times the rent in case the premises let out for commercial purposes and at the rate of three times the rent in case of certificate for recovery of immediate possession has been issued under Section 16. 12. The premises let out to the appellant being the premises let out for commercial purposes, in terms of sub-section (3) of Section 20, the appellant was required to deposit the mesne profit at the rate of three times the rent payable. Admittedly, the rent of the premises was Rs. 6000/- per month and therefore, the appellant was required to deposit the mesne profit at the rate of Rs. 18,000/- per month. 13. The pendency of the appeal and subsequent issue of the certificate for recovery of possession pursuant to the order passed by the Appellate Rent Tribunal, does not absolve the tenant from payment of mesne profit in terms of provisions of sub-section (3) of Section 20 of the Act of 2001 pursuant to the order passed by the Rent Tribunal. 13. The pendency of the appeal and subsequent issue of the certificate for recovery of possession pursuant to the order passed by the Appellate Rent Tribunal, does not absolve the tenant from payment of mesne profit in terms of provisions of sub-section (3) of Section 20 of the Act of 2001 pursuant to the order passed by the Rent Tribunal. The explanation attached to Section 20 of the Act of 2001 makes it abundantly clear that filing of an appeal or other proceedings against the order of the issue of certificate for recovery of possession or immediate possession will not save the tenant from his liability to pay mesne profits, at the rates specified under sub-section (3), unless specifically ordered otherwise by the Appellate Rent Tribunal or the Court before which such an order is under challenge and if the order of issue of recovery certificate is finally maintained, the tenant shall be liable to pay mesne profits at the rates specified under sub-section (3) from the date on which the recovery certificate was initially issued. 14. It is not the case of the appellant that the Appellate Rent Tribunal has absolved him from the liability of payment of mesne profits from the date of issuance of certificate for recovery of possession by the Rent Tribunal and therefore, the appellant was under an obligation to deposit the mesne profits from the date of certificate of recovery of possession issued by the Rent Tribunal. Merely because, two months' time was granted by the Appellate Rent Tribunal to the appellant to handover the vacant possession of the shop, the statutory liability to pay the mesne profits shall not stand obliterated. 15. It is not disputed that the appellant has not deposited the mesne profits calculated in terms of the provisions of sub-section (3) of Section 20 of the Act of 2001 taking into consideration the date of issue of certificate for recovery of possession by the Rent Tribunal. 16. In this view of the matter, the order impugned passed by the learned Single Judge declining to interfere with the order passed by the Rent Tribunal does not warrant any interference by us in exercise of intra-court appeal jurisdiction. 17. The special appeal is, therefore, dismissed. No order as to costs.