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2021 DIGILAW 1054 (JHR)

Krishna Jalan v. Hargovind Singh

2021-12-16

GAUTAM KUMAR CHOUDHARY

body2021
JUDGMENT : GAUTAM KUMAR CHOUDHARY, J. 1. The appellants are the defendants who have preferred the instant appeal against the judgment and decree passed in first appeal whereby and whereunder, the judgment decreed in favour of the plaintiff passed by the trial court has been affirmed. 2. An eviction suit was filed by the plaintiff with respect to the suit property as detailed in the plaint which happens to be the two godowns along with one shop room under Ranchi Municipal Corporation. 3. As per the Plaintiff’s case the defendant was a month to month tenant under the plaintiff’s vendor with respect to the suit property on a rent of Rs. 255/- per month. After the sale of the property by the vendor-Manmohan Kedia to the plaintiff-Hargovind Singh, the former immediately after sale on 25.05.2006 informed the defendant about it and requested him to attorn the plaintiff as his landlord and start payment of rent from May, 2006. The plaintiff also informed the defendant verbally about the purchase of the property by him but despite information the defendant did not pay the rent of the premises from May, 2006 and thereby incurred the liability of being evicted on the ground of default in payment of rent under Section 11(1)(d) of the Bihar Buildings (Lease, Rent and Eviction Control) Act, 1982 (hereinafter referred to as the Act, 1982). The second ground of eviction taken in the plaint is for personal necessity under Section 11(1)(c) read with Section 14 of the Act, 1982 as the premises was purchased for doing business. 4. The case of the defendant is that Manmohan Kedia, the vendor of the present plaintiff had got absolutely no title over the suit property and had absolutely no right to transfer it in favour of the plaintiff. The second plea is that said sale deed was forged and fabricated and the present suit is barred under Section 34 of the Specific Relief Act and that the suit for eviction was a counter blast to Title Suit No. 174 of 2007 and to another case he had filed before the Rent Controller being BBC Case No. 18 of 2007. It is further contended that the defendant had been inducted over the suit property on the basis of verbal contract with the great grandfather and grandfather of the plaintiff-vendor with a clear understanding that they will collect the rent as per their convenience. Other pleadings of the plaintiff regarding information about sale, default in payment of rent has been denied. On the point of attornment, the plea of defence is that they came to know about the transfer of the suit property on 22nd October, 2007 from the report of the Circle Officer, Town in B.B.C. Case No. 18 of 2007. It is also disputed that the rent was payable according to English calendar month on or before seventh of each subsequent month. As a matter of fact, the defendant had been inducted according to Hindi calendar month. After knowing about the sale of the suit property in 2007 he requested the plaintiff and both his sons to accept the rent but they declined and so he dispatched the amount on 7.11.2007 with respect to the rent dues for the period 13.5.06 to 24.11.07 by money order which was returned back. On the point of personal necessity, it has been pleaded that the plaintiff was sound businessman with several business establishment at Ranchi and, therefore, there was no personal necessity for the suit property to start his business. 5. On the basis of pleadings of the parties, the following main issues were framed by the trial court: Issue No. III - Is there any relationship of landlord and tenant between the plaintiff and the defendants? Issue No. IV - Whether the defendant had defaulted in payment of rent of the suit premises from May, 06 up-to date and is the defendant liable to be evicted on this ground? Issue No. V - Whether the plaintiff requires the suit premises reasonably and in good faith for doing business as claimed by him and is the defendant liable to be evicted on this ground? Issue No VI - Whether partial eviction will satisfy the need of the plaintiff? 6. On these issues the trial court on the basis of the evidence on record has recorded the finding of facts in favour of the plaintiff respondent that there was a landlord tenant relationship between both sides and since May, 2006 and the defendant had not paid rent for more than two months. 6. On these issues the trial court on the basis of the evidence on record has recorded the finding of facts in favour of the plaintiff respondent that there was a landlord tenant relationship between both sides and since May, 2006 and the defendant had not paid rent for more than two months. With regard to personal necessity and partial eviction also, the finding has been recorded in favour of the defendant against the respondent. 7. The learned first appellate court has affirmed the findings of the trial court on these material issues. 8. The instant appeal has been admitted to be heard on the following substantial question of law: Whether the decree of the learned lower appellate court is bad and unsustainable for non-consideration of the vital documents (Ext.N Series) filed on behalf of the appellant? 9. Ext.N/9 Series which have been exhibited on behalf of the defendant are money order receipts of Rs. 255/- sent to Hargovind Singh by the defendant Hiralal Bhagwati Prasad of rent. The learned trial court has discussed at length theses exhibits along with the acknowledgment and has recorded the finding in paragraph 25 of its judgment and held that despite the knowledge of purchase of suit property by the plaintiff and information regarding it, there was default in payment of rent for two consecutive months making the defendant liable for eviction under Section 11(1)(d) of the Act, 1982. Exhibits 4,4/a and 5,5/a are the copy of letters dated 26.5.2006 and 30.5.2006sent by the plaintiff to the defendant regarding the purchase of the suit-property. This exhibit along with the attending circumstance where the defendant was admittedly on litigating term with the vendor of the plaintiff in two different cases can be regarded as sufficient notices of attornment, and it does not appear to be plausible that he was blissfully unaware about the sale of the demised property. Against this background the N Series exhibited on behalf of the defendant is of no help to the defendant for having been dispatched much after the default. Learned court of first appeal also while discussing different exhibits as well as the other evidence on record came to concurrent finding that defendant was in arrear of rent for more than two months. Learned court of first appeal also while discussing different exhibits as well as the other evidence on record came to concurrent finding that defendant was in arrear of rent for more than two months. The Appellate Court has discussed in paragraph-7 of the Judgment that it was the consistent case of the plaintiff that after purchasing the suit premises due attornment was made to the defendants by the vendor of the plaintiff as well as by the plaintiff orally and by the notice sent under certificate of posting. In view of the fact these exhibits had been already considered and discussed at length by the trial court there was no such requirement to repeat the same. It is a cardinal principle of appreciation of evidence that the evidence is to be looked at its totality and after considering the entire evidence on record the learned court below has recorded a concurrent finding of fact regarding default in payment of rent by the appellant /defendant and personal necessity of the plaintiff. 10. It is settled principle of law in second appeal that when there is concurrent finding of fact the appellate court cannot enter into re-appreciation of evidence and unsettle a finding of fact unless and until they are perverse and not based on evidence. The appellant has utterly failed to make out a case that the finding of fact was perverse so as to warrant interference by this court. On the basis of the above discussion and reasons stated above, I do not find any infirmity in the judgment of the appellate court. I, therefore, find and answer the substantial question of law in favour of the plaintiff/ respondent. In the result, I do not find any merit in the instant appeal. 11. Before parting it will be necessary to consider the manner in which case has been procrastinated to continue in the commercial premises of a shop and two godowns on a monthly rent of Rs. 255/-. This is a classical example of unjust gain made by the defendant/appellant by which they have continued in the illegal possession of the suit property even after the passing of decree of eviction by procrastinating the matter in appeal by continuing in occupation of the suit property. It will be profitable to refer to some of the authorities of the Hon’ble Apex Court that has shed valuable light on this aspect. It will be profitable to refer to some of the authorities of the Hon’ble Apex Court that has shed valuable light on this aspect. Karnataka Rare Earth vs. Department of Mines and Geology, (2004) 2 SCC 783 : 2004 SCC Online SC 111 at Page 790: 10.......When on account of an act of the party, persuading the court to pass an order, which at the end is held as not sustainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the court and the act of such party, then the successful party finally held entitled to a relief, assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the court would not have been passed. The successful party can demand: (a) the delivery of benefit earned by the opposite party under the interim order of the court. (b) to make restitution for what it has lost. In Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 : Hon’ble Apex Court held that the tenancy terminates from the date of the decree passed by the lower forum. The Court held that: 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 and 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 forum. 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 and the decree of affirmation passed by the superior forum at any subsequent stage or date, would not, by reference to the doctrine of merger have the effect of postponing the date of termination of tenancy. 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 appellant tenant on terms. 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 appellant tenant on terms. The tenant having suffered an order for eviction must comply and 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 and is postponing the execution of the order for eviction. There is every justifica tion for the appellate court to put the appellant tenant on terms and 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 and Co. (I) Ltd. vs. Sahi Oretrans (P) Ltd. (1999) 2 SCC 325 this Court has held that once a decree for possession has been passed and 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. The Hon’ble Delhi High Court while dealing with precisely same issue held in Trilochan Singh vs. Daya Shankar, 2010 SCC Online Del. 4139 held: 40. To help redeem the situation, and also set an example for litigants and prevent them from abusing the process and taking advantage of laws, delays to benefit themselves and deprive another of the usufruct of his property, I propose to examine the matter further and pass orders. 49. Every party is expected to comply with the law and the contract that he has entered into and his failure to do so and his causing unnecessary litigation should mean a penalty and not a benefit for him. Our Courts are overloaded because it is widely believed that to force the other party to start litigation will in the end be beneficial for the wrong-doer. 50. To tackle Court delays, the motivation for raising disputes and delaying litigation must be removed. Our Courts are overloaded because it is widely believed that to force the other party to start litigation will in the end be beneficial for the wrong-doer. 50. To tackle Court delays, the motivation for raising disputes and delaying litigation must be removed. A party who makes a claim or raises a dispute before a Court must know that whenever the case is decided, and if it is decided against him, not only all benefits that he may have received in the meantime will have to be paid back, but all losses of the other party will also have to be compensated. Unless all losses and deprivations of the successful party have been fully compensated for, the Court fails in its task of doing justice. If Courts pass orders directing payment of realistic costs and compensation that sufficiently make up for the losses of the other, the motivation behind raising of disputes will be removed and the Courts will be freed of a lot of frivolous litigation. 52. Where a lessee whose lease has been determined, or a tenant who is no longer entitled to protection of rent control laws, fails in his obligation to deliver possession to the landlord, he and all those who are occupying the premises with him and if the tenant be dead or gone the legal heirs or others who are in possession incur the liability of mesne profits towards the landlord. Such liability arises by reason of their failure of comply with the law and deliver possession to the owner. 53. A person, cannot say that I am occupying but I am not liable for mesne profits. Each person would be liable. If a person who is impleaded as a respondent to the eviction petition or an appeal and is not interested really in the subject matter of the appeal, and may not even be in possession, on receiving notice from the Court, does not file an affidavit in the Court stating that he is not concerned with the premises, he runs the risk of the Court, when finally deciding the matter, also making him liable for any mesne profits. Roshan Lal Vegetable Products Pvt. Ltd. vs. Param International, 2011 SCC Online Del. 325 9. Roshan Lal Vegetable Products Pvt. Ltd. vs. Param International, 2011 SCC Online Del. 325 9. Both to do justice and to remove the factor of this difference as encouraging disputes and court delays, it is necessary that courts must assess mesne profits at a figure which closely resembles the rate at which the premises in question could have been let or the rate at which the lessee could have hired similar premises, i.e. prevalent market rate of rent. The Hon’ble Calcutta High Court applied the principle of restitution in C.O. No. 1627 of 2015 in its order dated 30.11.2015 wherein it was held that the appellate court shall not be guided by the factors that the parties at one point of time while creating the tenancy have agreed at the meagre amount of rent, at the time of putting the condition for passing the order of stay. It is dependent upon the various factors before the Appellate Court on the prevalent market rent in a nearby premises.......Appellate court is within its power and jurisdiction to direct the appellant to pay the occupational charges at the prevalent market rent but at the same time the court should not be totally fix the quantum which in other way operate harshly upon the appellant and the order appears to be punitive and in terrorem. 12. There is a long line of judicial precedents wherein the order of restitution has been passed to discourage unjust enrichment by using protracted litigation as tool in perpetuating the illegal possession. The object of passing such an order is to restore to the successful party of what it had lost and been deprived of. Restitution, simply stated, means restoring to the successful party (whether a plaintiff or defendant’s) what would have been his position, for him if the litigation had not been filed or the contest offered. In other words, it is compensating him for all losses and deprivations suffered after the commencement of the litigation and because of pendency of litigation. Party who makes a claim or a defence before a court of law must do so with responsibility. He should know that making a wrong claim or defence, particularly on facts will not yield any benefit but make him liable for the losses. 13. Party who makes a claim or a defence before a court of law must do so with responsibility. He should know that making a wrong claim or defence, particularly on facts will not yield any benefit but make him liable for the losses. 13. Delay in litigation is a problem which affects everybody, parties involved, the very many waiting in the queue for justice and it affects public confidence and trust in the justice delivery system. One of the reasons for the delay is that the party in the wrong, feels that with such delays the opposite side will get tired and settle for less, because of the continuing injury. Or he may even abandon his claim/defence altogether. Even if he does not succeed in the case the party in the wrong still has gain to make. 14. Keeping in view the judgments quoted above that there must be proper restitution which is necessary to do complete justice and remove incentives for obstructions and delays. In the exercise of inherent power, I deem it fit and proper to order restitution in the present case. 15. For the reasons recorded in the earlier part of the judgment the appeal is dismissed, but I direct an enquiry into the mesne profit for the period from the date of eviction order (5th March, 2012) till the delivery of possession. The mesne profit shall be the assessed market rent for every three years from the date of eviction order and will be determined by the competent authority as per law. For this purpose, the proceedings will continue and the case is remanded back to the trial Court or the successor Court for enquiry into the mesne profits in terms of this judgment. The amount so determined will be executable as a decree for recovery of money, along with the interest @ of 12% per annum from 5 March 2012 to 31 March 2017 and from 1.4.2017 at the rate of 9%. 16. In the result, the appeal is dismissed with cost, the enquiry for determination of mesne profit shall continue as stated above. 17. Let the lower court records be remitted back to the Court below. 18. Consequently, I.A. No. 3879 of 2013 stands disposed of.