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2023 DIGILAW 3186 (PNJ)

Maya Ram Bajaj v. Pankaj Dua

2023-11-16

ARCHANA PURI

body2023
JUDGMENT Archana Puri, J. CM- 20230-CII-2019 During the pendency of the revision petition, filed by the petitioner-tenant, to challenge the concurrent findings of the Courts below, vis-a-vis, eviction order, so passed vide judgment dated 25.01.2018, which stood affirmed, vide judgment dated 13.12.2018 passed by Appellate Authority, the applicant-landlord has filed the present application, thereby, seeking determination of mesne profits, for the use and occupation of the demised premises, while fixing the market rate of rent. 2. In the application, it is averred that the applicant-landlord had filed a petition under Section 13 of the East Punjab Urban Rent Restriction Act, thereby, seeking eviction of the tenant-Maya Ram Bajaj, who is petitioner in the revision petition, from the shop situated in the portion of property bearing No.13-B, Model Town, Jalandhar, adjoining Punjab and Sind Bank, Jalandhar, on the ground of personal necessity and the same was allowed vide order dated 25.01.2018 by learned Rent Controller. An appeal was filed by the tenant and the same was dismissed vide judgment dated 13.12.2018. Thereafter, the tenant had filed CR No.555-2019 before this Court and this Court was pleased to issue notice of motion and directed learned Executing Court to adjourn the case, beyond the date given by this Court and the interim relief, so granted, is continuing till date. 3. Further, it is averred in the application that tenant is in the possession of the shop measuring approximately 91 sq.ft. The admitted rate of rent was very meagre i.e. Rs. 142 per month and now the petitioner-tenant is liable to mesne profits at the existing market rate of rent, from the date of eviction order passed by learned Rent Controller i.e. 25.01.2018, because of the rents having tremendously increased in the said locality, with passage of time. He is enjoying the premises at a very meagre rent, whereby, the rent in the vicinity has already reached the mountainous level. 4. To substantiate the averments, in the application, reference has been made to M/s Atma Ram Properties (P) Ltd. v. Federal Motors Pvt. Ltd, 2005(1) RCR (Rent) Pg 1, Anderson Wright and Co. v. Amar Nath Roy, 2005(1) RCR (Rent) Pg 624, State of Maharashtra v. M/s Super Max International Pvt. Ltd., 2009(2) RCR (Rent) 246 and R.K.Bansal v. Jag Parvesh Sharma, 2012(2) RCR (Rent) Pg 203. 5. v. Amar Nath Roy, 2005(1) RCR (Rent) Pg 624, State of Maharashtra v. M/s Super Max International Pvt. Ltd., 2009(2) RCR (Rent) 246 and R.K.Bansal v. Jag Parvesh Sharma, 2012(2) RCR (Rent) Pg 203. 5. For the determination of the market rate of rent, the applicant-landlord has placed reliance upon the valuation report dated 10.09.2019 prepared by the qualified Architect/Engineer, who is an approved Government Valuer and the same has been prepared after considering the market value, size, shape, frontage, prevailing rate, location, commercial viability and also ascertaining the rent of the shops nearby the demised premises. Further, it is averred that the demised premises is situated in commercial hub of the city i.e. Model Town, Jalandhar, near Punjab and Sind Bank, Jalandhar, which is a very suitable location for doing any kind of business. Also further, it is stated in the application that as per the said valuation report, the area of the demised premises comes to be approx. 91 sq. ft. and the market rate of rent of demises premises is Rs. 150/- per sq. ft., so the total of the same comes around Rs. 13,650/-. 6. Also, reliance has been placed upon rent agreement of the similarly situated premises i.e. shop No.1, situated at 403-R, Model Town, near Punjab and Sind Bank, Jalandhar, at first floor, which is just opposite the demised premises and as per the same, the area of almost similar to the demised premises has been let out at Rs. 7,166/- per month and this premises is on the first floor. Relying upon the same, it is asserted that the market rate of rent of the demised premises, which is on the ground floor, would be double i.e. around Rs. 14,332/- per month. 7. Thus, it is averred that the petitioner-tenant is liable to pay the mesne profits, minimum at the rate of Rs. 15,000/- per month. 8. In reply, though, tenant, as such, has not disputed the tenancy, but however, preliminary objections have been taken, thereby, disputing the maintainability of the application in the present form and also that the application has been filed, only with the motive to create pressure upon the petitioner-tenant, to vacate the demised premises. It is submitted that till the decision of the main petition, the tenant continued to be authorised tenant and had been regularly paying the rent, as agreed between the parties. It is submitted that till the decision of the main petition, the tenant continued to be authorised tenant and had been regularly paying the rent, as agreed between the parties. Also further it is averred that the petitioner-tenant has also got the valuation of the rent. In fact, the prevalent rent in the locality, where the demised premises is situated, varies from Rs. 3000-5000/- per month. The valuation report, given by the valuer is Annexure P-9. Further, one of the rent agreement of the shop, situated opposite to the demised premises, is annexed as Annexure P-10. 9. As culled from the paperbook, it is evident that the applicant-landlord is the owner of the demised property situated at Model Town, adjoining Punjab and Sind Bank, Jalandhar. The said premises was purchased from the previous landlord-owner, in the year 1997 and thereafter, in the family settlement dated 10.11.2010, the property fell to the share of the applicant-landlord and consequently, the petitioner-tenant (in the revision petition) is tenant under the applicant-landlord, at a monthly rent of Rs. 1000/-. However, the applicant-landlord required the said shop for personal necessity and instituted the ejectment petition on 26.05.2011, which was allowed vide judgment dated 25.01.2018 by learned Rent Controller. Feeling aggrieved, the tenant had filed an appeal, which was also dismissed vide judgment dated 13.12.2018, while upholding the ejectment order. Furthermore, being dissatisfied with the concurrent findings of the Authorities below, tenant-Maya Ram Bajaj through LRs had filed the revision petition in hand. 10. During the pendency of the revision petition, the present application has been filed for seeking assessment of the mesne profits. 11. At the very outset, learned counsel for the applicant-landlord has submitted that the tenant is liable to pay mesne profits or compensation, for use and occupation of the premises, at the same rent, at which, the landlord would have been able to let out the premises and earn rent, if the tenant would have vacated the premises. It is further submitted that the landlord is not bound by the contractual rent, effective for the period, preceding the date of decree. It is further submitted that the landlord is not bound by the contractual rent, effective for the period, preceding the date of decree. In these circumstances, on the basis of the valuation report, which has been annexed as R-1 with the application as well as rent agreement of the shop in the vicinity, copy whereof is Annexure R-2, learned counsel has made a submission for assessment of the mesne profits, in the minimum @ Rs. 15,000/- per month. To so substantiate his submissions, learned counsel for the applicant-landlord has placed reliance upon various case law, as already noticed aforesaid. 12. On the contrary, learned counsel for the petitioner-tenant has submitted that for the assessment of mesne profits, sole submission, made by learned counsel for the applicant-landlord, ought not to be taken into consideration. In fact, it is submitted that besides the shop in question, for assessment of the mesne profit, the rent of shops existing in the vicinity of the demised premises, ought to be taken into consideration. In this regard, it is also submitted that qua the shop situated in the vicinity, which is opposite to the demised shop, lease deed was executed, copy whereof is Annexure P- 10 and as per the same, it was executed on 04.09.2019. The rent was Rs. 5,250/- per month. In the given circumstances, it is submitted that rent in the vicinity various from Rs. 3000-5000/- per month. Even, the valuation report, relied upon by the applicant-landlord, as such, cannot form the basis for determination of the mesne profits, as it is submitted that the same was got prepared by the applicant-landlord, for his own vested interest. 13. Further, it is submitted by learned counsel for the tenant that reasonableness is the basis for making an assessment of the mesne profits. The terms settled should be reasonable, which should not prevent the tenant from pursuing the appeal any further. In the given circumstances, it is submitted that the mesne profits be assessed somewhere between Rs. 3000- 5000/- per month. 14. It should be noted that in M/s Atma Ram Properties (P) Ltd. v. M/s. Federal Motors Pvt. Ltd., 2005(1) RCR (Civil) 212, in the case under consideration, in the aforesaid authority, the property in question was non-residential commercial premises, measuring about 1000 sq. feet and situated in Connaught Circle, New Delhi. The rent fixed was Rs. 14. It should be noted that in M/s Atma Ram Properties (P) Ltd. v. M/s. Federal Motors Pvt. Ltd., 2005(1) RCR (Civil) 212, in the case under consideration, in the aforesaid authority, the property in question was non-residential commercial premises, measuring about 1000 sq. feet and situated in Connaught Circle, New Delhi. The rent fixed was Rs. 371.90 per month, vis-a-vis, the tenancy, which commenced in the year 1944. However, the adjoining premises, belonging to the same landlord, having same measurement, was let out @ Rs. 3.5 lakh per month. Despite the same, the terms of payment of Rs. 15,000/- per month, as charges, for use and occupation, during the pendency of the appeal, as held by the Rent Controller, was not interfered with. 15. Further, reference is also made to the decision rendered in Angoori Devi and others v. Smt.Satya Bhama, 2016(5) RCR (Civil) 1043, where, the tenanted premises was situated in a posh area of city Narnaul and the contractual rent was @ Rs. 500/- per month and qua the same, mesne profits were fixed @ Rs. 6,000/- per month. At the same time, reference is also been made to the decision rendered in Haryana State Cooperative Apex Bank Ltd. v. Anil Syal, 2015(31) RCR (Civil) 509, wherein, there was modification made of the mesne profits, which was reduced from Rs. 3 lakh to Rs. 2 lakh per month, while considering that the Court has to exercise restraint and would not fix any excessive, fanciful or punitive amount, as mesne profit. 16. In State of Maharashtra and Anr. v. M/s Super Max International Pvt. Ltd. and ors., 2009 (2) RCR (Rent) 246, the tenant was occupying the premises in heart of city of Bombay since 1966 and was paying rent at the rate of Rs. 5,236/- per month. In pursuance of order of eviction of tenant, stay was granted by the Hon'ble High Court, subject to payment of enhanced rent of Rs. 5.40 lakh per month. This order was held valid by the Hon'ble Supreme Court. Even, in Anderson Wright and Co. 5,236/- per month. In pursuance of order of eviction of tenant, stay was granted by the Hon'ble High Court, subject to payment of enhanced rent of Rs. 5.40 lakh per month. This order was held valid by the Hon'ble Supreme Court. Even, in Anderson Wright and Co. v. Amar Nath Roy and others, 2005(1) RCR (Rent) 624, it was concluded by the Hon'ble Supreme Court that from the date of decree of eviction, 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 on being vacated by the tenant. Also therein, it was held that while determining the quantum of the amount, so receivable by the landlord, the landlord is not bound by the contractual rate of rent, which was prevalent prior to the date of decree. In R.K.Bansal v. Jag Parvesh Sharma, 2012(2) RCR (Rent) 203, it was held by the Hon'ble Supreme Court that it is bounden duty and obligation of the Court to ensure that the landlord gets rent which is akin to market rent. 17. The aforesaid case law do indicate that the Courts have to draw a balance between two competing claims, by fixing mesne profits, at a rate, between the contractual rent and the market rent. Of course, there cannot be any straight jacket formula, while fixing the amount of mesne profits. However, a lot depends upon the connecting circumstances like, condition of the premises, nature and age of the construction, maintenance of the same, commercial viability etc. At the same time, prime location of the demised premises also to be looked into. 18. Now, reverting to the case in hand, the fact remains that the eviction order had been passed against tenant-Maya Ram Bajaj, which had been further affirmed by Appellate Authority. It is well settled that mere preferring of an appeal or revision, does not operate, as stay on the eviction order. However, till the decision of the revision petition, the Courts are supposed to watch the interest of the landlord also, besides the tenant, who has knocked the door of the revisional Court. It is well settled that mere preferring of an appeal or revision, does not operate, as stay on the eviction order. However, till the decision of the revision petition, the Courts are supposed to watch the interest of the landlord also, besides the tenant, who has knocked the door of the revisional Court. But anyhow, the Courts are required to strike a balance between the two and fix the extent of mesne profits, which should not be exorbitant, to such an extent that the tenant is forced to quit his claim and be deprived of the fruits of his success, in the event of revision, being allowed. At the same time, the interest of the landlord is also to be watched, while considering the fact of order of eviction, having been so passed and affirmed by the Appellate Authority and he should also not carry a feeling of pittance and remorse of having approached the Court. 19. Thus, taking into consideration the aforesaid circumstances and more particularly, the location of the shop, in Model Town, adjoining Punjab and Sind Bank, in city like Jalandhar, which has other shops in the vicinity, the fixation of mesne profits, has to be taken into consideration, while considering the rent agreements, relied upon by the rival parties. 20. Undisputedly, the tenancy in question was in existence, at the time, when the suit property was purchased by the family of the applicant-landlord from the previous landlord in the year 1997. However, the applicant-landlord became the owner of the property, in pursuance of family settlement, which took place on 10.11.2010. Also, it is specific claim of the applicant-landlord that the rate of rent was Rs. 1000/- per month, as evident from the impugned judgments. 21. Considering the same and also considering the interregnum period, since the inception of ownership vis-a-vis, the applicant-landlord Pankaj Dua, the value of rupee has drastically lowered. Thus, taking into the consideration, the devalue of rupee, since the rights accrued to the applicant-landlord, qua the property in question and also considering the interregnum period, the mesne profits have to be assessed further. 22. The applicant-landlord has relied upon the valuation report, which is Annexure R-1. Thus, taking into the consideration, the devalue of rupee, since the rights accrued to the applicant-landlord, qua the property in question and also considering the interregnum period, the mesne profits have to be assessed further. 22. The applicant-landlord has relied upon the valuation report, which is Annexure R-1. Though, much resistance is shown for taking into consideration the valuation report, but however, suffice to make reference to the decision rendered by the Hon'ble Supreme Court in Mohammad Ahmad and another v. Atam Ram Chauhan and others, 2011(2) RCR (Civil) 972, which was further followed by this Court in Ashwani Chatley v. Gurwinder Singh, 2016(2) RCR (Rent) 319. 23. The Hon'ble Supreme Court, in paragraph No.21 of the Mohammad's case (supra), has laid down some guidelines and norms, which have been clarified to be illustrative and not exhaustive and one of the aspects, which can be made the basis for assessing the market value is the valuation report. Thus, in view of the same, the submission so made, at the behest of learned counsel for the tenant to discard the valuation report (Annexure R-1), is bereft of merits, more particularly, when the tenant himself has also relied upon Annexure P-9, which is also a valuation report. 24. Close perusal of valuation report, Annexure R-1, reveals that 'Court purpose' is mentioned to be the purpose of valuation and the date of making the valuation report is 12.11.2019. Further, it states the location of the demised premises to be portion of property No.13-B, adjoining Punjab and Sind Bank, Model Town, Jalandhar City. It specifically states about the nature of the property to be 'commercial shops' (it is assessment of two shops) and classification of locality is stated to be 'High Class Commercial Area'. It also stated about proximity to major land marks as 'All available'. 25. Also further, it has been specified that these are the commercial shops, which are single storeyed. The structure is load bearing and RCC having brick work with cement sand mortar. The valuation has been done by working out prevailing rates in the surrounding area and the concerned property is located in commercial hub of the city i.e. Model Town, adjoining Punjab and Sind Bank, Jalandhar. Considering all the aforesaid facts, the area of said premises was worked out to be Rs. 183 sq. ft., relating to both shops. The valuation has been done by working out prevailing rates in the surrounding area and the concerned property is located in commercial hub of the city i.e. Model Town, adjoining Punjab and Sind Bank, Jalandhar. Considering all the aforesaid facts, the area of said premises was worked out to be Rs. 183 sq. ft., relating to both shops. As such, qua the one shop, it is almost 91-92 sq. ft. as asserted by the applicant-landlord. 26. Taking into account all the aforesaid factors, the value was worked upon as Rs. 25,000/- per sq. ft. and total value of two shops was worked upon as Rs. 45,75,000/-. Taking into consideration the various facts, as detailed in column No.2 of the valuation report, it was stated that monthly rent of the shop can be adopted as Rs. 100-Rs. 150/- per sq. ft. for the covered area and it was worked upon for two shops as Rs. 27,450/-. 27. In the light of the same, the monthly rental value of two shops in question was assessed to be Rs. 27,450/-. In view of the said report, it is submitted by learned counsel for the applicant-landlord that since the valuation was for two shops, half of the same, can very well be taken, in modest estimate, as monthly rent. 28. Besides the aforesaid, reliance has also been placed upon Annexure R-2, which is a rent agreement, relating to shop No.1, situated at 403-R, Model Town, near Punjab and Sind Bank, Jalandhar, meaning thereby, it was in the vicinity of the shop in question. However, this rent agreement relates to the shop, existing on the first floor and rate of rent was settled at Rs. 7,166/- per month. This rent deed was executed on 01.05.2019. With regard to this rent agreement, it is submitted that since it was on the first floor, the rent was Rs. 7,166/-. But however, the premises in question is situated on the ground floor and its rent can very conveniently be taken to be almost double of this rent. 29. Proceeding further, it should be noted that even the tenant-petitioner has relied upon the valuation report Annexure P-9. It relates to the shop (Balaji), located at 13-B, Backside of Punjab and Sind Bank, Model Town, Jalandhar. It becomes evident that it is also in the vicinity of the shop in question, but on the backside. 29. Proceeding further, it should be noted that even the tenant-petitioner has relied upon the valuation report Annexure P-9. It relates to the shop (Balaji), located at 13-B, Backside of Punjab and Sind Bank, Model Town, Jalandhar. It becomes evident that it is also in the vicinity of the shop in question, but on the backside. The area of land mentioned is 80 sq. ft. and value of rent is stated to be Rs. 3000/- to Rs. 5,000/- and qua said shop, it is stated to be Rs. 4,500/- per month. 30. Reliance has also been placed upon Annexure P-10, which is also a rent deed of the shop situated in the Model Town, Jalandhar. The area of the said shop, as evident was 32 sq. ft. and the rent settled was Rs. 5,250/-. This deed was executed for a period of 11 months w.e.f 15.06.2019. However, it is pertinent to mention that this shop, besides having area of 32 sq. ft., was also mentioned to be without roof and on this account, the rent was Rs. 5,250/-, whereas, the shop in question, is of the area of 91 sq. ft. and having RCC roof. 31. Considering the valuation report and the rent agreement, so relied upon respectively by the rival parties, it becomes evident that the shop in question is located in a privileged area of Jalandhar City and that too in commercial hub. Very true, as so pointed by learned counsel for the tenant that the valuation report, has been got prepared by the applicant-landlord, at his own instance, but at the same time, it should also be noticed that the valuer has taken into consideration, various aspects, the detail of which, has been noticed aforesaid and made assessment of the property. Even, taking into consideration Annexures P-9 and P-10, it is pertinent to mention that the assessment of the rental value, as per Annexure P-9, related to the shop, which was situated on the backside and was of the area of 80 sq. ft. Likewise, Annexure P-10 related to the shop having area of 32 sq. ft. and that too without roof. Considering the same, in the light of the agreement, so relied upon by the applicant-landlord and also the valuation report, the assessment of the rent has to be made. It is version of the applicant-landlord that the assessment be made at the rate of Rs. ft. and that too without roof. Considering the same, in the light of the agreement, so relied upon by the applicant-landlord and also the valuation report, the assessment of the rent has to be made. It is version of the applicant-landlord that the assessment be made at the rate of Rs. 15,000/- per month. 32. But anyhow, considering the aforesaid documents and also making some moderation, while considering the duration of time, since when the ownership rights accrued to the applicant-landlord and the petitioner-tenant is enjoying the property at the meagre rent and also considering the devalue of rupee, this Court is of the opinion that Rs. 13,000/- per month as mesne profits, is appropriate one. 33. Accordingly, it is ordered that during the pendency of the revision petition, tenant-Maya Ram Bajaj (petitioner in the revision petition) shall be liable to pay an amount of Rs. 13,000/- per month, from the date of ejectment ordered by learned Rent Controller on 25.01.2018, till the decision of the revision petition. If any rent has been paid by the tenant-petitioner to the applicant-landlord, during this period, the same shall be adjusted and the outstanding amount shall be paid within a period of three months, from today onwards, failing which, the protection, vis-a-vis, continuation of proceedings before the Executing Court, as granted vide order dated 01.02.2019, shall automatically stand vacated and the applicant-landlord will be entitled to seek ejectment of tenant-petitioner, in due course. 34. In view of the aforesaid terms, the instant application stands allowed. CR-555-2019 (O&M) 35. Adjourned to 26.02.2024.