Jewellers Khanna Sons vs Naresh Mittal

Jaswant Singh, J.

CM No. 30775-CII of 2011

Application u/s 151 CPC seeking permission to place on record the photocopy as well as exemption from filing the certified copy of Annexure R-1. For the reasons stated in the application duly supported by the affidavit of one of the respondent, the application is allowed subject to all just excepts and Annexure R-1 is taken on record.

CM No. 30776-CH of 2011

Vide this order I shall dispose of an application under Order 20 Rule 12 CPC read with Section 151 of CPC, whereby prayer has been made by the respondents(landlords)/applicants to fix mesne profits at the prevalent market rate of rent for use and occupation of the demised premises from 19.02.2008 i.e. the date of eviction order passed by the learned Rent Controller, Chandigarh.

In brief, facts of the main case are that the petitioner (tenant) is in revision against the concurrent findings returned by both the courts below whereby eviction application filed by the respondents (landlords) on the ground of non payment of arrears of rent as well as personal necessity was allowed by the learned Rent Controller, Chandigarh and the findings thereof were affirmed by the learned Appellate Authority, Chandigarh vide order dated 24.09.2009.

This Court had, vide its order dated 27.11.2009 granted interim stay of dispossession while issuing notice of motion in the instant revision petition preferred by the petitioner (tenant) and thereafter the matter was admitted vide order dated 16.02.2011

Learned Counsel for the applicant(landlord)/respondent has argued that he demised petitions, which consists of half portion of Ground Floor of SCO No. 814, Chandigarh-Kalka Road, Manimajra, Chandigarh is measuring 1055 sq.ft. and the petitioner(tenant) is liable to pay the mesne profits from the date of passing of the evictor order by the learned Rent Controller i.e., 19.02.2008, in view of law settled by the Hon''ble Supreme Court in Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd., whereby it has been held that tenancy stands terminating with the passing of the decree of eviction and with effect from that date, the tenant is liable to pay mesne profits for compensation for use and occupation of the premises. Thus, it was argued that in view of the Atma Ram Properties(P) case (supra), the respondent(landlords)/applicants should not be deprived of the fruits of the decree merely because the petitioner(tenant) chose to invoke the jurisdiction of this Court and got stay on 27.11.2009. Learned Counsel for the applicants/respondents(landlords) has relied upon lease deed dated 16.10.2008 (Annexure R-1) pertaining to a SCO No. 830, Chandigarh-Kalka Road, Manimajra, Chandigarh which is in the same vicinity measuring approximately 2800 sq.ft. and has been let out at the rate of Rs. 3,25,000/- per month. Thus, relying upon the said lease deed, he has stated that the prevalent market rent is at least Rs. 116/- per square feet and consequently, the petitioner(tenant)/non applicant is liable to pay minimum rent of approximately Rs. 1,22,380/- per month.

On the other hand, learned Counsel for the non applicant/petitioner (tenant) has vehemently opposed the present application and has argued that the respondent(landlords) have not come to the court with clean hand and their present application for mesne profits is liable to be dismissed. He has submitted that in the present case, earlier the Appellate Authority, Chandigarh vide order dated 14.04.2008 had assessed mesne profits at the rate of Rs. 1,00,000/- per month w.e.f. 20.2.2008 during the pendency of the appeal before the learned Appellate Authority. However, petitioner(tenant) had preferred CR No. 2467 of 2008 challenging the said assessment of mesne profits, which was allowed by this Court vide its order dated 21.11.2008 and the matter was remanded back for fresh adjudication of mesne profits. Thereafter the learned Appellate Authority, Chandigarh assessed the mesne profits at the rate of Rs. 10,000/- per month while dismissing the appeal vide judgment dated 24.09.2000. However, the learned Appellate Authority had allowed the counter claim of the petitioner (tenant) and held that the rate of rent was Rs. 6000/- only and, therefore, the payment of mesne profits at the rate of Rs. 10,000/- per month shall be subject to adjustment of Rs. 6,000/- per month. Aggrieved against the same, landlords had filed two civil revisions i.e. CR No. 4014 of 2010 and CR No. 3924 of 2010 whereby they challenged the order of the Appellate Authority qua assessment of rent as well as mesne profits. This Court passed an order dated 25.10.2010 (Annexure A-10) whereby both the civil revisions were dismissed as withdrawn. Thus, by stating all these above facts learned Counsel for the petitioner(tenant)/non applicant has stated that these facts were concealed besides the landlord having accepted the findings of the learned Appellate Authority, Chandigarh qua determination of mesne profits at the rate of Rs. 10,000/- per month and, therefore, the present application for fresh determination of the mesne profits would not be maintainable. Still further as the respondents(landlords) have still not returned the decretal amount as passed by the learned Appellate Authority, whereby excess rent already stands paid. The present application is liable to be dismissed.

Furthermore, learned Counsel for the petitioner(tenant)/non applicant has further argued that no reliance can be placed on lease deed dated 16.10.2008 (Annexure R-1) because a perusal of the lease deed would show that the property that has been let out is ground floor as well as the basement of the SCO to a National bank and a huge list of amenities have been provided by the lessor to the lessee and, therefore, any comparison between the determination of mesne profits on the basis of lease deed Annexure R-1 and the property in dispute would lead to grave error in law.

After hearing learned Counsel for the parties and perusing the paper book, this Court is of the considered view that in the present case the objections that have been raised by the learned Counsel for the petitioner (tenant)/non applicant are not tenable as far as tire maintainability of the present application is concerned. As per Section 15(5) of the East Punjab Urban Rent Restriction Act, 1949, this Court can pass any order to do substantial justice amongst the parties and thus, revisional powers exercised by this Court u/s 15(5) of the Act are completely different from the powers that are exercised by the Appellate Authority under the Rent Act. No doubt the landlords had preferred a civil revision challenging the assessment of mesne profits and the same was withdrawn vide order dated 25.10.2010, however, the said withdrawal of the petition does not effect the merits of the present application for determination of mesne profits because after the eviction order is passed by the Appellate Authority, a fresh cause of action accrues to the respondents(landlords) regarding invoking the jurisdiction of this Court for fresh determination of mesne profits during the pendency of revision before this Court. It has been held time and again by the Hon''ble Supreme Court as well as this Court in numerous cases that as and when the eviction order is passed by Authorities under the Rent Act, the said tenant becomes an unauthorised occupant of the demised premises and, therefore, he is liable to pay use and occupation charges as determined by the superior authority under the Rent Act as per the prevalent market rate of rent.

As regards the plea of concealment of two revisions filed by the landlord against the order dated 24.09.2009, it is apparent that much before the filing of the present application, the aforesaid two revisions were ordered to be heard together along with the present revision filed by the tenant vide order dated 24.05.2010 passed by this Court. For ready reference order dated 24.05.2010 reads as under:--

"Learned Counsel for the petitioner submits that respondents have also filed civil revision against the impugned orders which is yet to be listed and it would be appropriate if both the revisions are heard together.

Adjourned to 02.07.2010.

List along with Civil Revision if any filed by the respondents arising out of the same orders of the Courts below".

It is not in dispute that the two aforesaid revisions filed by the landlord were however disposed of vide order dated 25.10.2010 being dismissed as withdrawn. It is thus evident that there is no occasion to entertain the plea of concealment by the landlord in the subsequent application filed for mesne profits. Argument thus stands rejected.

As regards the decision of this Court in CR No. 2467 of 2008 filed by the tenant and decided on 21.11.2008, it is not in dispute that the same relates to the assessment during the pendency of the appeal of the tenant before the learned Appellate Authority, Chandigarh and, therefore, was not strictly required to be mentioned by the landlord in the present application moved after the decision by the Appellate Authority.

Although, respondents(landlords)/applicants have sought mesne profits at the rate of Rs. 1,22,380/- per month w.e.f. 14.02.2008 i.e., the date of eviction order passed by the learned Rent Controller, this Court is of the view that since the Appellate Authority had assessed the mesne profits at the rate of Rs. 10,000/- per month during the pendency of the appeal and since the revision preferred by landlords/respondent/non applicants against the same has been dismissed as withdrawn vide order dated 25.10.2010, therefore mesne profits have to remain at the rate of Rs. 10,000/- per month till 24.09.2009 i.e. the date of the order when Appellate Authority dismissed the appeal of the petitioner(tenant). However, stay was granted by this Court vide its order dated 27.11.2009 and since then, the petitioner(tenant) is in occupation of the property in question, therefore, this Court is of the considered view that the petitioner (tenant) is liable to pay the mesne profits from the date of eviction order dated 24.09.2009 passed by the learned Appellate Authority, Chandigarh and not prior to that.

As far as the determination of mesne profits is concerned, there is only one lease deed dated 16.10.2008(R-1) as barometer to gauge the prevalent market rate of rent. There is no subsequent lease deed placed on record by either of the parties to determine the mesne profits. A perusal of the lease deed would show that SCO No. 830, Chandigarh-Kalka Highway, Manimajra, Chandigarh, which is, concededly in the vicinity of the demised premises has been let out by the owner to ING Vysya Bank Ltd., comprising ground floor and the basement of the building at the rate of Rs. 3,25,000/- per month for 2800 sq.ft. of approximate area, but there is a huge list of amenities that have to be provided by the lessor to the lessee and, therefore, a ditto comparison of the property i.e. SCO No. 830 as mentioned in the lease deed and the demised premises would not be a proper yardstick. However, taking judicial notice of the fact that there has been substantial increase in rate of rent and appreciation of property available in the area in dated 25.10.2010, therefore, mesne profits have to remain at the rate of the last 4/5 years and by imposing proportionate cut on rate of rent as per lease deed dated 16.10.2008(R-1), this Court feels that it would be in the interest of justice that rate of rent is fixed at the rate of Rs. 1,00,000/- per month for the demised premises which is a half portion of the ground floor on the main road of Chandigarh-Kalka Highway, which is admittedly a prime location in the area. The petitioner(tenant)/non applicant shall deposit the said amount with the Registry of this Court w.e.f. 24.09.2009 i.e. the date of order passed by the learned Appellate Authority, Chandigarh whereby appeal preferred by the petitioner(tenant) was dismissed and the said amount shall be paid within a period of 2 months from the date of passing of the order. Needless to say that this however, would be subject to the final decision of the case in hand and also subject to whatever adjustment that have to be made qua the rent that is already being paid by the petitioner(tenant) during the integrum i.e. from 24.09.2009 till date. It is also made clear that if the said amount is not deposited within two months from the date of passing of the order, the interim stay granted by this Court vide its order dated 27.11.2009 shall be deemed to be automatically vacated.

Accordingly, the present application is disposed of in above terms.