Mustaq Malawat vs Jitendra Gidwani

This writ petition is filed by the petitioner being aggrieved with the order dated 01.02.2020 passed by the Rent Tribunal, Bikaner (hereinafter to be referred as 'the Rent Tribunal'), whereby it while considering two applications preferred on behalf of the respondent on 05.01.2019 and 21.09.2019 has ordered for issuance of certificate for recovery of possession of the premises in question.

Brief facts of the case are that the respondent-landlord filed a petition under Sections 9, 9(a), 9(b), 9(c), 9(d) and 9(k) of the Rajasthan Rent Control Act, 2001 (hereinafter to be referred as 'the Act of 2001') before the Rent Tribunal for eviction of the petitioner-tenant from the premises in question and for recovery of rent, which was allowed by the Rent Tribunal vide judgment dated 21.10.2013.

Being aggrieved with the same, the petitioner preferred an appeal before the Appellate Rent Tribunal, Bikaner (hereinafter to be referred as 'the Appellate Rent Tribunal'), however, the said appeal came to be dismissed by the Appellate Rent Tribunal vide judgment dated 06.09.2018.

Being aggrieved with the same petitioner has preferred S.B. Civil Writ Petition No.16790/2018 before this Court and this Court vide order dated 13.11.2018 while admitting the writ petition, stayed the execution of certificate for recovery of possession issued by the Rent Tribunal and affirmed by the Appellate Rent Tribunal, however, this Court has further ordered that the petitioner shall continue to pay the mesne profit to the respondent-landlord in terms of Sub-section (3) of Section 20 of the Act of 2001 subject to decision of the writ petition and further ordered that the arrears of mesne profit, if any, shall be deposited within a period of one month. The order dated 13.11.2018 passed in S.B. Civil Writ Petition No.16790/2018 is reproduced hereunder :-

"Heard.

Admit.

Send for record. Issue notice. Mr. S.S.

Ladrecha, learned counsel accepts notice on behalf of respondent No.3.

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."

It appears that the respondent thereafter filed an application before the Rent Tribunal complaining that the petitioner has failed to pay mesne profit as per the order dated 13.11.2018 passed by this Court in S.B. Civil Writ Petition No.16790/2018. He had also preferred an application before this Court in S.B. Civil Writ Petition No.16790/2018 with a prayer for vacating the interim order dated 13.11.2018 (quoted above) while contending that the petitioner has failed to deposit the mesne profit as directed by this Court. The application submitted by the respondents before this Court for vacating the order dated 13.11.2018 passed in S.B. Civil Writ Petition No.16790/2018 was disposed of on 09.09.2019 by passing the following order :-

"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.

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."

Pursuant to the above referred order, respondent filed an application before the Rent Tribunal on 21.09.2019 with a prayer for issuance of certificate of recovery of possession on the ground that the petitioner has failed to pay the mesne profit as per the order passed by this Court on 13.11.2018 in S.B. Civil Writ Petition No.16790/2018.

It appears that in the meantime, the petitioner had also preferred an 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, as directed by this Court on 13.11.2018, be condoned. This Court has disposed of the above referred application preferred on behalf of the petitioner on 24.09.2019 by passing the following order :-

"IA No.2/2019 :

The present application has been filed by the petitioner-applicant, seeking condonation of two days' delay in depositing the amount of arrears of mesne profit, as directed by this Court vide order dated 13.11.2018.

Learned counsel for the petitioner-applicant submitted that in terms of the interim order dated 13.11.2018, the petitioner-applicant was required to deposit the arrears of mesne profit within a period of one month i.e. by 12.12.2018. Though the petitioner deposited the amount of arrears of mesne profit in the bank account of the  respondent/landlord by way of a cheque well within time stipulated by the Court, however, due to some technical lapse on the part of the Bank concerned, the same could not be got credited in the bank account and the same was credited in his back account on 14.12.2018. Thus, it is prayed that two days' delay in depositing the amount of arrears of mesne profit be condoned and it may be treated as due compliance of the order dated 13.11.2018.

For the reasons mentioned in the application and considering the submissions made by learned counsel for the petitioner-applicant, two days' delay in depositing the amount of arrears of mesne profit is condoned and it is treated to be due compliance of the order dated 13.11.2018.

The application stands disposed of accordingly."

The Rent Tribunal while considering the applications preferred on behalf of the respondent on 05.01.2019 and 21.09.2019 has passed the impugned order, against which this writ petition is filed.

The Rent Tribunal, after taking into consideration the above referred three orders dated 13.11.2018, 09.09.2019 and 24.09.2019 respectively passed in S.B. Civil Writ Petition No.16790/2018, was of the view that the petitioner has failed to pay the mesne profit to the respondent in terms of the order dated 13.11.2018 passed in S.B. Civil Writ Petition No.16790/2018 and has ordered for issuance of certificate for recovery of possession.

Learned counsel for the petitioner has submitted that the learned Rent Tribunal has committed grave error in passing the impugned order dated 01.02.2020. It is argued that once this Court, vide order dated 24.09.2019, condoned the delay in depositing the amount of arrears of mesne profit and specifically observed that it is treated to be due compliance of the order dated 13.11.2018 then there was no occasion for the Rent Tribunal to hold that the petitioner has failed to comply with the direction passed by this Court vide order dated 13.11.2018 regarding mesne profits.

Learned counsel for the petitioner has further argued that the Rent Tribunal has grossly erred in not taking into consideration that the judgment and certificate dated 21.10.2013 passed by it has been merged in the judgment and certificate dated 06.09.2018 passed by the Appellate Rent Tribunal and as per the judgment of the Appellate Rent Tribunal dated 06.09.2018, the petitioner had to deposit arrears of mesne profit to the tune of Rs.72,000/- only, which he had already deposited, though with a delay of two days but the said delay was condoned by this Court vide order dated 24.09.2019 with the observations that the deposit of arrears of mesne profit on 14.12.2018 is treated as due compliance of the order dated 13.11.2018. Learned counsel for the petitioner has, therefore, submitted that in view of the above facts and circumstances of the case, the order impugned passed by the Rent Tribunal is liable to be set aside.

Per contra, learned counsel appearing for the respondent has argued that as per the order passed by this Court on 13.11.2018 in S.B. Civil Writ Petition No.16790/2018, the petitioner was required to deposit the arrears of mesne profit within a period of one month and is also required to continue to pay mesne profit to the respondent as per Sub-section (3) of Section 20 of the Act of 2001 but as the petitioner has failed to comply with both the  directions, the Rent Tribunal has not committed any illegality in passing the impugned order.

It is also submitted by the learned counsel for the respondent that it is not in dispute that the delay of two days in depositing amount of Rs.72,000/- as the arrears of mesne profit was condoned by this Court vide order dated 24.09.2019 but with the deposit of the said amount it cannot be said that all the arrears of mesne profit has been deposited by the petitioner in terms of the order dated 13.11.2018. Learned counsel for the respondent has further submitted that the contention of the petitioner to the effect that the judgment and certificate of recovery of possession issued by the Rent Tribunal on 21.10.2013 is merged in the judgment and certificate of recovery of possession dated 06.09.2018 of the Appellate Rent Tribunal is not tenable in the light of Sub-section (3) of Section 20 of the Act of 2001 and the Explanation attached to Section 20 of the Act of 2001.

Learned counsel fro the respondent has argued that the respondent in his application dated 21.09.2019 has provided specific details regarding the amount, which was required to be deposited by the petitioner in terms of the order dated 13.11.2018 passed by this Court in S.B. Civil Writ Petition No.16790/2018 and the actual amount deposited by the petitioner as mesne profit or arrears of mesne profit and as per the said details, it is clear that the petitioner has failed to deposit mesne profit as per Sub-section (3) of Section 20 of the Act of 2001 and the arrears of mesne profit within the stipulated time fixed by this Court. It is submitted that the petitioner has failed to counter those details before the Rent Tribunal and as such it is clear that compliance of the order dated 13.11.2018 passed by this Court in S.B. Civil Writ Petition No.16790/2018 has not been made by the petitioner and therefore, in terms of the order passed by this Court on 09.09.2019 in S.B. Civil Writ Petition No.16790/2018, the Rent Tribunal rightly passed the impugned order and has not committed any illegality in issuing the certificate of recovery of possession.

Learned counsel for the respondent has, therefore, prayed that the writ petition of the petitioner may be dismissed as the impugned order 01.02.2020 passed by Rent Tribunal is not liable to be interfered with.

Heard learned counsel for the parties and perused the material available on record.

It is not in dispute that the premises in question, let out to the petitioner, is being used for commercial purposes.

From the bare reading of the order dated 13.11.2018, it is clear that during the pendency of the writ petition, the petitioner is required to pay mesne profit to the respondent in terms of the provision of Sub-Section (3) of Section 20 of the Act of 2001 and arrears of the mesne profit, if any, were to be deposited by the petitioner within a period of one month. In the application filed by the respondent before the Rent Tribunal, it is specifically pleaded that the petitioner was required to deposit Rs.10,93,800/- as arrears of mesne profit to the respondent up to 13.12.2018 as per the directions given by this Court in the order dated 13.11.2018, however, he has only deposited Rs.4,80,000/- up to 31.08.2019. It is further specifically pleaded by the respondent in his application that so far as the payment of mesne profit as per Sub-section (3) of Section 20 of the Act of 2001 by the petitioner to him after passing of the order dated 13.11.2018 by this Court is concerned, the petitioner was required to pay amount of Rs.1,84,200/- up to filing of the application dated 21.09.2019 but against the said amount the petitioner has paid only Rs.90,000/-. It is to be noticed that the amount of Rs.72,000/- deposited by the petitioner with a delay of two days, which is condoned by this Court vide order dated 24.09.2019 passed in S.B. Civil Writ Petition No.16790/2018, has also been included by the respondent as deposits by the petitioner. The petitioner before the Rent Tribunal has failed to counter those specific details provided by the respondent in his application dated 21.09.2019 and has simply stated that he has deposited Rs.72,000/- as arrears of rent with a delay of two days and the said delay has been condoned by the High Court with the observation that the same be treated to be due compliance of the order dated 13.11.2018, hence, the application dated 21.09.2019 filed by the respondent be dismissed.

In this writ petition also the petitioner has failed to counter the contention of the respondent that the due amount of arrears of mesne profit has not been deposited by the petitioner and a full amount of the mesne profit, after passing of the order dated 13.11.2018 by this Court, has also not been deposited by the petitioner.

On the other hand learned counsel for the petitioner is contending that the petitioner is required to pay mesne profit as per Sub-section (3) of Section 20 of the Act of 2001 and the arrears of the mesne profit only from the date 06.09.2018, when the Appellate Rent Tribunal has passed the judgment and certificate of recovery of possession and not from the date the judgment and certificate of recovery passed by the Rent Tribunal initially on 21.10.2013 because the judgment dated 21.10.2013 merged in the judgment and certificate of the Appellate Rent Tribunal dated 06.09.2018.

On the premise of the above stand, petitioner is claiming that he has paid Rs.72,000/-, though with a delay which has been condoned by this Court, and that is the full compliance of the order passed by this Court on 13.11.2018 regarding the deposit of arrears of mesne profit or the payment of mesne profit as per Sub-section (3) of Section 20 of the Act of 2001 during the pendency of S.B. Civil Writ Petition No.16790/2018.

In the opinion of this Court, the above stand taken by the learned counsel for the petitioner is not in consonance with the provision of law.

Provisions of Sub-section (3) of Section 20 of the Act of 2001 and the Explanation attached to Section 20 reads as under :-

"20. Execution of the orders.-

(3) If the tenant does not vacate the premises within three months of the date of issue of certificate for recovery of the possession, he shall be liable, from the date of issue of certificate for recovery of possession to pay mesne profits at the rate of 2 times the rent in case of premises let out for residential purposes, at the rate of 3 time's the rent in case of premises let out for commercial purposes and at the rate of 3 times the rent in case certificate for recovery of immediate possession has been issued under Section 16.  Explanation.- Filing of an appeal or other proceeding against the order of 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 challenged 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."

Sub-section (3) of Section 20 of the Act of 2001 would reveal that if the tenant does not vacate the commercial premises within three months from the date of issue of certificate, he shall be liable to pay mesne profit at three times of rent. Further the Explanation attached to Section 20 of the Act of 2001 clearly provides that filing of an appeal and other proceedings by the tenant against the order of issue of certificate for recovery of possession will not save him from his liability to pay mesne profit unless specifically ordered otherwise by the Appellate Rent Tribunal or the Court before which such order is challenged.

This Court vide order dated 13.11.2018 while admitting S.B. Civil Writ Petition No.16790/2018 and staying the certificate for recovery of possession issued by the Rent Tribunal and affirmed by the Appellate Rent Tribunal has not passed any order otherwise or in variance of Sub-section (3) of Section 20 of the Act of 2001 but has specifically ordered that the petitioner shall continue to pay mesne profit to the respondent in terms of provision of Sub- section (3) of Section 20 of the Act of 2001 and also ordered that the arrears of mesne profit, if any, shall be deposited within a period of one month. The order passed by this Court on 13.11.2018 cannot be interpreted in this manner that the petitioner is required to continue to pay mesne profit to the respondent and the arrears of mesne profit only from the date of passing of the judgment and the certificate of recovery of possession by the Appellate Rent Tribunal i.e. on 06.09.2018. In the opinion of the Court, the petitioner is required to pay mesne profit and the arrears of the same from the date of judgment and certificate of recovery of possession passed by the Rent Tribunal i.e. on 21.10.2013, which admittedly has not been paid/deposited by the petitioner.

This Court while disposing of the application preferred on behalf of the respondent for vacating the interim order dated 13.11.2018 has specifically issued a direction to the Rent Tribunal on 09.09.2019 that if the petitioner has not deposited the amount of mesne profit in terms of the order dated 13.11.2018, the Rent Tribunal will be free to proceed with the execution of certificate of recovery of possession and when the petitioner has failed to demonstrate before the Rent Tribunal that he has deposited the amount of mesne profit in terms of the order dated 13.11.2018 then in the opinion of the Court the Rent Tribunal has not committed any illegality in passing the impugned order.

The contention of the petitioner to the effect that once this Court while passing the order dated 24.09.2019 has specifically ordered that the delay of two days in depositing amount of Rs.72,000/- as arrears of mesne profit is condoned and it is treated to be due compliance of the order dated 13.11.2018 then there was no occasion for the Rent Tribunal to hold that the petitioner has not complied with the directions given by this Court in the order dated 13.11.2018, cannot be accepted for the reason that even with the deposit of Rs.72,000/- the petitioner has failed to pay the arrears of mesne profit and the payment of mesne profit during the pendency of S.B. Civil Writ Petition No.16790/2018 because the contention of the respondent regarding default in the payment of arrears of mesne profit and the mesne profit during the pendency of the writ petition, as detailed out in the application dated 21.09.2019 filed before the Rent Tribunal, has not been countered or contradicted by the petitioner before the Rent Tribunal or before this Court by giving specific details regarding deposits of arrears of mesne profit or continue payment of mesne profit during the pendency of the writ petition from the date of issuance of certificate of recovery of possession by the Rent Tribunal vide judgment dated 21.10.2013.

In view of the above discussions, I don't find any merit in this writ petition and the same is, therefore, dismissed.

Stay petition also stands dismissed.