Ashok Kumar and Another vs Nirmal Kumar and Another

Rajesh Bindal, J.—The tenants are before this court impugning the order dated 1.7.2013, whereby on an application filed by the respondents-landlords, Rs. 1,35,000/- per month (minus agreed rent) were fixed as mesne profits during the pendency of appeal against the order of eviction. The petitioners herein are the tenants in SCF No. 19, Sector 19-D, Chandigarh since 1986 at a monthly rent of Rs. 2,700/-. The respondents-landlords filed eviction petition on various grounds. Provisional rent was assessed vide order dated 8.1.2013, which was to be tendered on 7.2.2013. The same having not been tendered, eviction of the petitioners was ordered from the shop in dispute vide order dated 14.2.2012. The order was challenged by the petitioners in appeal. During pendency of the appeal, the respondents-landlords filed application for fixing mesne profits. The same was disposed of vide impugned order dated 1.7.2013. It is the aforesaid order, which is impugned before this court.

Learned counsel for the petitioners submitted that in view of the laid down in Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd., ; Surinder Singh Vs. Dr. Davinder Mohan, ; Sadhu Ram Vs. Parminder Singh, ; Sinder Pal @ Surinder Kumar and another Vs. Sat Pal and another, M/s. Bird Travels (P) Ltd. v. Smt. Amarjit Kaur and others, 2012 (1) RCR (Civil) 822; orders dated 28.11.2011 and 28.1.2013 passed by Hon''ble the Supreme Court in Special Leave to Appeal (Civil) No. 31444/2011--J & K Bank Ltd. v. Amrit Pal Singh; order dated 11.5.2012 passed by Hon''ble the Supreme Court in SLP (Civil) No. 3299 of 2012--M/s. Bird Travels Pvt. Ltd. v. Amarjit Kaur and others; and order dated 22.4.2013 passed by this court in Civil Revision No. 1704 of 2013--Simrat Bajwa v. Shri Balbir Singh Chinna, mesne profits are not to be fixed strictly in terms of the current rent. The amount fixed has to be reasonable. The effort should not be to make right of appeal to be illusory. In the case in hand, the petitioners were paying rent of Rs. 2,700/- per month, which has been enhanced to Rs. 1,35,000/- per month. For the purpose, the learned court below has placed reliance upon the lease deed pertaining to SCF No. 39, Sector 19-D, Chandigarh. In fact, it was let out for commercial purpose. In the case in hand, it is only the ground floor which was let out and being used for commercial purpose. Other two floors are, in fact, lying vacant. While referring to the photographs of first and second floors, it is claimed that the same are being used only for miscellaneous use of the servants or for their rest. Part of that is even dilapidated.

On the other hand, learned counsel for the respondents-landlords submitted that the respondents had produced three lease deeds on record. SCO No. 8, Sector 19-C, Chandigarh was let out at a monthly rent of Rs. 2,75,000/- w.e.f. 2.10.2010 with an increase of 15% after three years. Vide another lease deed dated 29.3.2011, ground and first floor of SCF No. 39, Sector 19-D, Chandigarh was let out at a monthly rent of Rs. 1,35,000/- with annual increase of 7%. The aforesaid property in question was also SCF and only ground and first floors were let out and not the second floor. Vide lease agreement dated 4.12.2011, a part of second floor of SCO No. 27, Sector 19-D, Chandigarh was let out at a monthly rent of Rs. 33,000/-, which was increased to Rs. 34,650/- per month from December, 2012 to November, 2013.

While referring to the aforesaid documents and judgment of Hon''ble the Supreme Court in The State of Maharashtra and Another Vs. Super Max International Pvt. Ltd. and Others, , learned counsel for the respondents submitted that with effect from the passing of the 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 and earn rent, had the premises been vacated.

Heard learned counsel for the parties and perused the paper book.

As is evident, rent of SCO No. 8, Sector 19-C, Chandigarh, which was let out w.e.f. 2.10.2010 was fixed at Rs. 2,75,000/- per month with increase of 15% after every three years. The learned court below has not considered the same to be relevant. Rightly so, as it was a commercial building in its entirety. It has merely relied upon the lease deed dated 29.3.2011, whereby ground and first floors of SCF No. 39, Sector 19-D, Chandigarh were let out at a monthly rent of Rs. 1,35,000/- w.e.f. 1.4.2011. The rent applicable w.e.f. 1.4.2013 to 31.3.2014 was Rs. 1,54,560/- per month. In the present case, the entire premises consisting of ground, first and second floors are in occupation of the tenants. The portion rented out in SCF No. 39, Sector 19-D, Chandigarh was merely ground and first floors. A portion of second floor of SCO No. 27, Sector 19-D, Chandigarh was let out vide lease agreement dated 4.12.2011 at monthly rent of Rs. 33,000/-, which was increased to Rs. 34,560/- per month. The court below in the present case has fixed the mesne profits @ Rs. 1,35,000/- per month. To state that that was not the rent which could be fetched for the property in dispute is totally misconceived as the SCO in the area was let out at a monthly rent of Rs. 2,75,000/- way back in August, 2010 with 15% increase after every three years, whereas ground and first floors of SCF were let out at Rs. 1,54,560/- per month. Hon''ble the Supreme Court in M/s. Super Max International Pvt. Ltd. and others'' case (supra) has opined that with effect from the date of passing of the order 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 in case vacated by the tenant. In view of my aforesaid discussion, I do not find any merit in the present petition. Accordingly, the same is dismissed.