Smt. Padma Devi and Another vs Karam Chand Sood and Others

Kuldip Singh, J.—This petition has been filed for reviewing judgment dated 2.3.2010 passed in CMPMO No. 23 of 2010. The facts, in brief, are that Rent Controller, Shimla in Rent Application No. 82/2 of 1999 passed ejectment order. In the appeal against the ejectment order dated 12.1.2009 the Petitioners filed an application for stay of execution of order dated 12.1.2009 which was allowed by the Appellate Authority (II), Shimla on 31.12.2009 subject to deposit of rent due by the Petitioners in the Court in one month and to further deposit contractual rent every month. The Petitioners were also directed that they shall deposit a sum of Rs. 10,000/- per month w.e.f. 1.2.2009 as use and occupation charges. The landlords shall not be entitled to withdraw use and occupation charges, however, they shall be entitled to withdraw the same only if the appeal of the tenants fails and the landlords succeed.

The order dated 31.12.2009 was assailed by the Petitioners in CMPMO No. 23 of 2010 which was dismissed on 2.3.2010 by this Court. The judgment dated 2.3.2010 is sought to be reviewed by filing the present petition on the ground that there is error apparent on the face of the record. The points urged at the time of hearing of the petition escaped the attention of this Court while deciding the case and those have not been determined.

In the building 12/13 Lakkar Bazar, Shimla there are about 9 tenants and Respondents have filed eviction petitions almost against all tenants. The Respondents after the eviction order of tenants Surinder Setia and Madan Lal filed a suit for recovery of use and occupation charges on account of mesne profits at the rate of Rs. 35,000/- per month. The trial Court dismissed the Civil Suit No. 14/1 of 2008 on 19.2.2010. This Court in the judgment dated 2.3.2010 has not properly applied the ratio of the case reported in (2005) 1 SCC 705. The valuation report relied by the landlords is one sided. The opportunity to rebut the same was never afforded to the tenants. The other points raised in CMPMO No. 23 of 2010 have not been decided. On these grounds, the Petitioners prayed for reviewing the judgment dated 2.3.2010 passed in CMPMO No. 23 of 2010.

I have heard the learned Counsel for the parties and have also perused the record of CMPMO No. 23 of 2010. The learned Counsel for the Petitioners has reiterated the grounds taken in the review petition. The learned Counsel appearing on behalf of Respondents No. 1 to 4 has submitted that there is No. error apparent on the face of the record. He has drawn the attention of the Court to paragraph 5 of the judgment dated 2.3.2010 wherein it has been held that Petitioners have not assailed the order fixing the use and occupation charges at the rate of Rs. 10,000/- per month on the ground that there is No. such market rate of rent as fixed by the Appellate Authority in the area where the premises in question is situated. The Petitioners have assailed use and occupation charges at the rate of Rs. 10,000/-per month on the ground that as against their income of Rs. 8,000/- per month from the shop they cannot pay use and occupation charges at the rate of Rs. 10,000/- per month. It has been submitted that in CMPMO No. 23 of 2010 the order dated 31.12.2009 of the appellate authority was assailed on the ground that the use and occupation charges fixed at the rate of Rs. 10,000/- by the appellate authority are on the higher side which Petitioners cannot pay.

In CMPMO No. 23 of 2010 there is No. ground that rent of the similar building in the locality is not Rs. 10,000/- per month. The plea has been taken that as against income of Rs. 8,000/- per month, it is not possible for the Petitioners to deposit Rs. 10,000/- per month in the Court as directed by the Appellate Authority. In other words, the Petitioners did not dispute that the market rent of the similar building in the locality is not Rs. 10,000/- per month.

The Petitioners have taken other grounds in CMPMO No. 23 of 2010 such as order dated 31.12.2009 is wrong, illegal. The Rent Controller and the Appellate Authority have committed irregularity of procedure. The Appellate Authority has passed the order in favour of the Respondents in the appeal of the Petitioners. The precedents of the High Court and Supreme Court have been ignored. The order dated 31.12.2009 suffers from material irregularity and illegality which is based upon surmises and conjectures.

It has not been pointed out at the time of hearing of the present petition what specific other points raised in the petition have not been considered by this Court in the judgment dated 2.3.2010. In the judgment dated 2.3.2010 this Court has considered Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd., Pabbathi Venkataramaiah Chetty Vs. Pabbathi N. Rathnamaiah Chetty and Others, Pradeep Kumar Vs. Hajari Lal, and The State of Maharashtra and Another Vs. Super Max International Pvt. Ltd. and Others,

It has been submitted on behalf of the Petitioners that in view of principle laid down in ''State of Maharashtra'' (supra) by the Supreme Court the rate of use and occupation charges cannot be more than Rs. 3,000/- per month of the premises in question. The order dated 31.12.2009 fixing use and occupation charges was not interfered by this Court primarily on the ground that the Petitioners did not dispute that the rate of rent of similar building in the locality is not Rs. 10,000/- per month. In these circumstances, once this rate was not disputed by the Petitioners, it cannot be said that there is error apparent on the face of the record in the judgment dated 2.3.2010 in CMPMO No. 23 of 2010. There is No. merit in the petition.

In view of the above discussion, the petition fails and is accordingly dismissed with No. order as to costs.