Patna High Court
Om Prakash Bhadani vs Rajeev S. Ahuja And Ors. on 24 March, 2000
Equivalent citations: 2000(48)BLJR1517, AIR 2002 PATNA 6, (2002) 1 CURLJ(CCR) 321 2000 BLJR 2 1517, 2000 BLJR 2 1517
Author: Prasun Kumar Deb
Bench: Prasun Kumar Deb
ORDER Prasun Kumar Deb, J.
1. Both the civil revision petitions have been heard together at the admission stage as they are inter-related and inter-connected.
2. The background of these two petitions are necessary to be reiterated in short. The predecessor of the opposite parties filed Money Suit No. 24 of 1995, before the Sub-Judge, 1st, Bokaro at Chas for realisation of rent from September. 1993 to October, 1995 at the rate of Rs. 1.150/- per month as well as at the rate of Rs. 400/- per month in respect of electricity charges and also service charges as mentioned in Schedule D of the plaint. In the claim portion, there was a prayer in the following manner :--
"For a decree for realisation of a sum of Rs. 57,189.46 paise as shown in Schedule hereunder with pendente lite rent and future interest."
The suit was contested and ultimately it was decreed. The implementing portion of the judgment is read as follows :--
"Therefore, it is ordered that the suit be and the same is decreed with some modification, on contest with cost and the plaintiff is entitled to get Rs. 1150/- per month by way of rent and Rs. 400/- per month by way of electricity charges and service charge as mentioned in the plaint but without Interest."
A decree was prepared to that effect and while the decree was put in execution being Execution Case No. 9 of 1997, the opposite parties decree-holders made a claim of Rs. 57,000/- and odd as they have included the rent payable from September, 1993 to December, 1997. Objection was raised by the judgment-debtor-petitioner under Section 47 of the Code of Civil Procedure to the effect that there was no scope of claim of rent and other charges beyond the period of decree being granted i.e. the period from November, 1995 to December, 1997. After hearing, the objection was turned down by the Executing Court and against that order, the petitioner came in Civil Revision No. 195 of 1998 (R). The said civil revision petition had been disposed of vide order dated 23-9-1998, a copy of which is annexed as Annexure 1 to Civil Revision No. 404 of 1999 (R), asking/directing the decree-holders opposite parties to move before the Court below under Section 152 of the Code of Civil Procedure for correction of the decree.
3. In compliance of that order, the opposite parties moved a petition under Section 152 of the Code of Civil Procedure for amendment/correction of the decree by inclusion of realisation of future rent beyond the period of October, 1995 etc. etc., vehement objections were raised on such prayer of amendment and after hearing the parties, the said petition under Section 152 of the Code of Civil Procedure was rejected vide order dated 27-3-1997 which has been impugned in Civil Revision No. 254 of 1999 (R), but while doing so, a further addendum has been made in the implementing portion of the judgment by inclusion of "till realisation." The decree-holder than also proceeded with the same execution case with the same claim which was made earlier and objections were raised by the petitioner but the said objection had been turned down by the Executing Court on 15-9-1999 which has been impugned in Civil Revision No. 404 of 1999 (R). The amendment made under Section 152 of the Code of Civil Procedure, as already mentioned above, had been misconceivably interpreted by the Executing Court' by Inclusion of some word which was never allowed by way of amendment, namely, "at the rate of rent, electricity and service charges, the amount which may be passed would be recoverable till realisation.
4. Mr. Rajgarhia, appearing for and on behalf of the petitioner fairly submitted that the Court below has misunderstood and misconceived the direction given by this Court in the earlier civil revision petition and as such made some errors and mistakes both in the order passed under Section 152 of the Code of Civil Procedure by the Executing Court on 15-9-1999.
5. The moot point of dispute is whether decree has been passed by the Court below in the abovementioned money suit for realisation of rent and other charges beyond the period for which the claim was made. On clear perusal of the plaint, it appears that claim was made for realisation of rent and other charges for three years which is normally done starting from September, 1993 to October, 1995, but while making prayer in the claim portion of the plaint, the words were added "rent pendente lite and future rent" and the Court-fee was paid in respect of the claim for three years; monthly rent. There was no scope in such sort of money suit for claiming future rent and from a perusal of the judgment, it appears that no where such claim of rent pendente lite and future rent were ever considered by the learned trial Judge and, practically, there was no scope for considering such claim also, and for that reason, the judgment became silent. Now taking silence of that prayer in the judgment itself and when the claim of the plaintiff was allowed, it was interpreted that the claim as a whole with rent pendente lite and future rent had also been decreed. Silence in the judgment may be construed in favour of the decree-holder plaintiff, if such claim was legally maintainable, but if such claim is not legally maintainable, silence in the judgment must be construe that the same has been rejected by the trial Judge.
6. Mr. N. K. Prasad, senior counsel, appearing for and on behalf of the opposite parties, very much pressed on this score that such claim was allowed when specifically not being rejected but when this Court asked as to whether such claim is maintainable in law or not. He kept mum and naturally he could not have any answer regarding the legality of such claim. In such sort of money suit for claiming of rent against the tenant, always suits are filed for three years of rent consequitively one after another because claim depends upon the position and circumstances which cannot be construed that the tenant is external tenant and by filing of a suit with limited Court-fee for realisation of rent for three years should be construed as granting relief for all time to come for the purpose of realisation of rent. Such argument from the side of the opposite parties is not only unwarranted but uncalled for also. The civil revision petition and the observation made by a Bench of this Court is also clear on this point. In that view of the matter, the decree granted in money suit can only be construed as a decree with three years rent with electricity charges and service charges as mentioned in Schedule D of the plaint, There is no scope of construing the service charges Inclusive of electric charges at the rate of Rs. 400/- per month. Paragraph 8 of the judgment is clear on this point. The implementing order should not be misconstrued in that respect. The inclusion by the original Court in the implementing order till realisation is only a superfluous one and the same is not required to be added and hence such adding is set aside and the decree prepared can be executed on proper calculation regarding rent for three years with electricity charges and service charges separately and such calculation must be made by the Executing Court.
7. In view of the observations and discussions made above and the observations made by a Bench of this Court in earlier Civil Revision No. 195 of 1998 (R), both the civil revision applications are disposed of in the light of the observations and directions made above. In the circumstances, no order as to costs.