Himachal Pradesh High Court
Sh. Champeshwar Lall Sood & Anr vs Sh. Gurpartap Singh & Ors on 6 April, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 212 of 2016 with .
Civil Revision No. 12 of 2017 Reserved on : 30.03.2017 Date of decision : 6th April, 2017 __________________________________________________________ Civil Revision No. 212 of 2016 of Sh. Champeshwar Lall Sood & Anr. ...Petitioners/Landlords Versus Sh. Gurpartap Singh & Ors.
rt .....Respondents.
Civil Revision No. 12 of 2017
Sh. Gurpartap Singh .....Petitioner
Versus
Sh. Champeshwar Lall Sood & Ors. ...Respondents
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? Yes.
For the Petitioner(s) : Mr. R. L. Sood, Senior Advocate, with Mr. Arjun Lall & Mr. Sanjeev Kumar, Advocates in CR No. 212 of 2016.
Mr. Kashmir Singh Thakur and Harjeet Singh, Advocates in CR No. 12 of 2017 For the Respondent(s) : Mr. Kashmir Singh Thakur and Harjeet Singh, Advocates, for respondents No. 1 and 7 in CR No. 212 of 2016.
Mr. R. L. Sood, Senior Advocate, with ::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 2 Mr. Arjun Lall & Mr. Sanjeev Kumar, Advocates for respondents No. 1 and 2 in CR No. 12 of 2017.
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Justice Tarlok Singh Chauhan, Judge Since both these review petitions are directed against the same order passed by the learned appellate of authority on 2.11.2016, they were taken up together for hearing and are being disposed of by way of a common judgment.
2. rt The parties for the sake of convenience and for no other purpose, lest it causes any prejudice to either of the parties, shall be referred to as the landlords and tenant(s).
3. The landlords are the owners of Shop No. 14, Middle Bazaar, Shimla, measuring 313 sq. ft. (hereinafter referred to as the premises in question) as also one floor above the same bearing Municipal No. 14/1, Middle Bazaar, Shimla. They in the year 2004, filed an eviction petition against the tenants on the ground that the tenants had sublet the premises in question to respondent No. 7 Shri Kanwar Ali without the written permission or consent of the landlords. This petition was allowed by the learned Rent Controller vide order dated 26.8.2016 passed in eviction petition No. 19-2 of 15/04.
::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 34. The order of eviction was assailed by the tenant/respondent No. 1 by filing an appeal before the .
appellate authority and the same was registered as Rent Petition No. 14-S/13(b) of 2016. The appeal was accompanied by an application for stay being miscellaneous application No. 58-S/6 of of 2016.
5. The landlords filed reply to the application claiming therein mesne profits on the basis of an agreement executed by rt Bata India Ltd. in their favour with respect of premises known as 14/1, Middle Bazaar, Shimla, which premises as observed above are situate just above the premises in question. Alongwith the agreement an affidavit of Harnam Singh, Manager of the Shimla Branch of Bata Shoe shop was also filed and it was averred that both these documents clearly establish that the premises 14/1, Middle Bazaar had been let out by the petitioner/landlord No. 2 to Bata India @ Rs. 295.56 paise per sq. ft. with a provision for an increase of rental. Based upon the aforesaid agreement and affidavit, It was averred that if it all the stay is to be granted in favour of the tenant/respondent No. 1, he should be ordered to pay the current use and occupation charges @ Rs. 313.54 paise per sq. ft.
::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 46. The learned appellate authority vide impugned order dated 2.11.2016 granted stay qua the operation and .
enforcement of the eviction order dated 26.8.2016 on the condition that the tenants would pay the use and occupation charges @ Rs.12,000/- per month to be paid from 1st September, of 2016 onwards.
7. It is against this order that both the parties have filed their respective revision petitions.
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8. The landlords would argue that once there was sufficient material placed before the appellate authority then it had no option other than to consider the same and thereafter determine the use and occupation charges which in this case have been proved to be @ Rs. 313.54 paise per sq. ft. It is further argued that as per the settled law the mesne profit or use and occupation charges have to be paid from the date of eviction i.e. 26.8.2016 and could not have ordered to be paid from a later date i.e. 1.9.2016 onwards.
9. On the other hand, the tenant has assailed the impugned order on the ground that he is only running a small tailoring shop and therefore, could not be compelled to pay use and occupation charges at an exorbitant rate of Rs.12,000/- per ::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 5 month more particularly when the adjoining shops in the vicinity had been rented out only on a meager rent of Rs. 2000/- to .
Rs.3000/- per month.
I have heard learned counsel for the parties and have gone through the material placed on record.
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10. Notably, the learned appellate authority in the impugned order has though made a reference to the judgment rendered by the Hon'ble Supreme Court in Atma Ram Properties rt (P) Ltd. vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 and judgment rendered by this High Court in case Padam Devi and another vs. Karam Chand and ors. 2010 (Supp) Him L.R. 2052 and another as also the judgment rendered by the Division Bench of this Court in Chaman Lal Bali vs. State of Himachal Pradesh (2016) 3 SLC 1593, and has further even come to the conclusion that the premises in question are situated in the heart of the city, however, while putting the tenants to terms regarding payment of use and occupation charges the ratio laid down in these judgments appears to have been totally ignored. This would be evidently clear from para 13 of the impugned order, which reads thus:-
"13. Relying upon the ratio of authorities cited supra vis-à-vis bearing in mind the attendant facts and circumstances of the case, whereby, there are arguable points involved in ::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 6 the appeal, which has been admitted for hearing vide separate order of even date today. According to the .
landlord, the similar premises has been rented out @ Rs.1,20,000/- per month which works out to Rs.295.56 paise per square meters. The copy of agreement has also been annexed. It is prayed that the use and occupation charges be determined @ Rs. 325/- per square metre. On the contrary, it is prayed that the appellant is paying the of monthly rent @ 25.16 paise. He is running a tailoring business. The tailoring business cannot be compared with the business owned by the company Bata India Limited. rt Moresoever, the valuation and maintainability of both the places i.e. Middle Bazaar and the Mall, cannot be equated at par as there is a lot of difference amongst both the places. In this case, Bata Company is situated on the Mall, whereas, the demised premises is situated in the Middle Bazaar. To my mind, it would be in the interest of justice that in case the applicant is hereby directed to pay use and occupation charges to the landlord @ Rs. 12,000/- from 01.09.2016. Prima facie the demised premises is situated in the heart of the city and in case the stay of execution and enforcement of eviction order dated 26.08.2016 is not stayed, the appellant-tenant will suffer irreparable loss and injury which cannot be compensated in terms of money. Balance of convenience also lies in his favour."
11. The Division Bench of this Court in Chaman Lal Bali (supra) was dealing with the question where the landlord had claimed that even after an ejectment order having been passed, there was no provision for claiming mesne profits or use ::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 7 and occupation charges and the tenant or sub-lette or any other unauthorized occupants could conveniently scot over the .
premises for years and decades together by paying the contractual rent.
12. Negating the said contention, this Court after of placing reliance upon on various judgments of the Hon'ble Supreme Court held that from the date of passing of eviction order, the tenant is liable to pay mesne profits or compensation rt for use and occupation charges of the premises at the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises.
Answering the said question, It was held as under:-
"23. In Marshall Sons and Co.(I) Ltd. vs. Sahi Oretrans (P) Ltd. and another (1999) 2 SCC 325, the Hon'ble Supreme Court after taking into consideration the invariable delay in Court proceedings held that reasonable mesne profit which may be equivalent to the market rent should be awarded to prevent parties in wrongful possession from taking undue advantage of lengthy delays in the main proceedings and thereafter in execution proceedings. It is apt to reproduce paras 4 and 6 of the judgment which read thus:::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 8
"4. From the narration of the facts, though it appears to us, prima facie, that a decree in favour of the appellant is .
not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and on occasion become highly technical accompanied by of unending prolixity, at every stage providing a legal trap to the unwary. Because of the delay unscrupulous parties to the proceedings take undue advantage and person who is rt in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also known fact that after obtaining a decree for possession of immovable property, its execution takes long time. In such a situation for protecting the interest of judgment creditor, it is necessary to pass appropriate orders so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, Court may appoint Receiver and direct the person who is holding over the property to act as an agent of the Receiver with a direction to deposit the royalty amount fixed by the Receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour decree is passed and to protect the property including further alienation.
6. Having considered the relevant submissions of the parties including the submissions with regard to market rent and without expressing any opinion on the merits of the contentions of the parties in the pending suit, we think it ::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 9 appropriate to dispose of this matter with the following directions:
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(1) That the suit in question be disposed of as expeditiously as possible, preferably within one year from today;
(2) The respondents are directed to pay the mesne profits/compensation at the rate of Rs.10/- per sq. ft. from 1984 till today and at the rate of Rs.20/- from today till the of disposal of the suit. While making this payment, the payments already made shall be adjusted. So far as the arrears are concerned, it be paid in 12 equal monthly rt instalments.
24. The principle of determining mesne profits after the eviction order has been passed and the right of landlord to receive higher rent than the contractual rent was established by the Hon'ble Supreme Court in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 wherein it was held as under:
"19. To sum up, our conclusions are:-
(1) while passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate Court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and in so far as those proceedings are concerned. Such terms, needless to say, shall be reasonable.::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 10
(2) in case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of .
tenant contained in clause (l) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the decree for eviction. With effect from that date, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at of the same rate at which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by rt the contractual rate of rent effective for the period preceding the date of the decree.
(3) the doctrine of merger does not have the effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a latter date."
25. Notably, even though there is no express provision in the Act for the grant of mesne profit, but then, as held by the Hon'ble Supreme Court in Marshall Sons and Co.(I) Ltd. vs. Sahi Oretrans (P) Ltd. and another (1999) 2 SCC 325 that once a decree for possession has been passed and execution is delayed depriving the judgment-creditor of the fruits of decree, it is necessary for the Court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property.
26. Similar reiteration of law is found in the judgment of Hon'ble Supreme Court in Anderson Wright and ::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 11 Co. vs. Amar Nath Roy and others AIR 2005 SC 2457, wherein it was held as under:
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"5. As held by this Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. , once a decree for eviction has been passed, in the event of execution of decree for eviction being stayed, the appellants can be put on such reasonable terms, as would in the opinion of the appellate of court reasonably compensate the decree holder for loss occasioned by delay in execution of the decree by the grant of stay in the event of the appeal being dismissed. It rt has also been held that with effect from the date of 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 on being vacated by the tenant. While determining the quantum of the amount so receivable by the landlord, the landlord is not bound by the contractual rate of rent which was prevalent prior to the date of decree."
27. In State of Maharashtra and another vs. M/s Super Max International Pvt. Ltd. and others AIR 2010 SC 722, the Hon'ble Supreme Court held that while admitting the appeal after ejectment order, it is perfectly open to the appellate or the revisional court to direct the tenant to pay rent higher than the contractual rent, but the Court would not fix any excessive, fanciful or punitive amount. Since the mesne profits are not assessed by the appellate authority on the basis of the evidence led as per the Act, by production of evidence, on fact on issue or relevant facts, but is merely an assessment on the basis of prima-facie market rate is ::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 12 existing at the time of admission of the appeal after eviction order, a benefit has been bestowed on the landlord that he .
would be reasonably compensated for loss occasioned by delay in execution of decree by grant of stay order. The mesne profit or compensation payable to the landlord is generally determined on the basis of the cogent material placed on record by the parties in the shape of the registered lease deeds of the locality indicating the of tentative amount of the rent which as the landlord would be entitled to in a case he had rented out the premises at the present market rate existing on the date of ejectment. rt However, there is no straight jacket formula.
28. It would be noticed that the entire subject matter of mesne profits in the event of a decree of eviction and appeal there against being filed, is a judge-made law chiseled out by the Hon'ble Supreme Court in its various pronouncements (some of which have been cited above), the entire premise of the aforesaid judgments is that once a decree of eviction is passed, the tenant becomes unlawful occupant (subject to his right in appeal/revision), therefore, any contract between the parties also comes to an end. It is for this reason that the Courts have carved out this new principle for ensuring that the tenant in unlawful possession does not further prejudice the landlord, who is otherwise entitled to get possession of his property and for this purpose, have laid down that the tenant must pay a reasonable amount subject to the outcome of the appeal/revision.
29. Even otherwise, the awarding of mesne profits does put a check on the diabolical plans of the tenant who ::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 13 has been ordered to be evicted to further delay the matter and squat on the premises by paying a nominal or meager .
rent.
13. It would be evidently clear from the aforesaid exposition of law that the courts after passing of an order of eviction can always put the occupant of the premises to terms of including payment of mesne profit. The very purpose of awarding mesne profit or use and occupation charges is to put rt a check on the diabolical plans of the tenant who has been ordered to be evicted and ensure that he does not squat on the premises by paying a meager rent. At the same time even the landlord is also compensated to receive higher rent than the contractual rent.
14. In Atma Ram Properties Pvt. Ltd. (supra), it has been clearly laid down that the tenant with the passing of the decree of eviction is liable to pay mesne profits or compensation for use and occupation charges of the premises at the same rate on which the landlord would have been able to let out the premises and earn rent if the tenant would have vacated the premises.
15. Likewise, in Marshals Sons and Co.(I) Ltd. vs. Sahi Oretrans (P) Ltd. (supra), it was categorically held that once a ::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 14 decree for possession has been passed and execution is delayed depriving the judgment-creditor of the fruits of decree, .
it is necessary for the Court to pass appropriate orders so that 'reasonable' mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property.
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16. At the same time, it was also held that while fixing the amount, subject to payment of which the execution of the rt order/decree is stayed, the Court would exercise restraint and would not fix any excessive, fanciful or punitive amount.
17. What is 'reasonable' is difficult to define and this expression being a relative term is required to be considered vis-
à-vis, the fact situation obtaining in a particular case. A three Hon'ble Judge Bench of Hon'ble Supreme Court in Rena Drego (Mrs) vs. Lalchand Soni and others (1998) 3 SCC 341, considered the expression 'reasonable' in the following terms:-
[9] It is difficult to give an exact definition of the word 'reasonable'. It is often said that "an attempt to give a specific meaning to the word 'reasonable' is trying to count what is not number and measure what is not space." The author of 'Words and Phrases" (Permanent Edition) has quoted from In re Nice and Schreiber, 123 F, 987, 999 to give a plausible meaning for the said word. He says "the ::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 15 expression 'reasonable' is a relative term, and the facts of the particular controversy must be considered before the .
question as to what constitutes reasonable can be determined." It is not meant to be expedient or convenient but certainly something more than that. While interpreting the word 'reasonable' in Section 13 of the Act, the Bombay High Court has suggested in Krishchand Moorjimal v. Bai Kalavati, AIR 1973 Bombay 46, "that the word 'reasonable' of cannot mean convenient or luxurious, though it may not necessarily exclude the idea of convenience and comfort." However, the expression reasonable can be taken as rt providing an angle which is conformable or agreeable to reasons, having regard to the facts of the particular controversy.
[10] In Municipal Corporation of Delhi v. Jagan Nath Ashok Kumar, (1987) 4 SCC 497 : (AIR 1987 SC 2316), this Court has stated that "the word 'reasonable' has in law prima facie meaning of reasonable in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know." This has been reiterated by Sabyasachi Mukherjee, J. (as his Lordship then was) in Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) P. Ltd., (1989) 1 SCC 532 : (AIR 1989 SC 973).
18. The expression reasonable again came up for consideration before the Hon'ble Supreme Court in Union of India vs. Shiv Shankar Kesari, (2007) 7 SCC 798. It was held as under:-
::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 16"[8] The word "reasonable" has in law the prima facie meaning of reasonable in regard to those circumstances of .
which the actor, called on to act reasonably, knows or ought to know. It is difficult to give an exact definition of the word 'reasonable'. Stroud's Judicial Dictionary, Fourth Edition, page 2258 states that it would be unreasonable to expect an exact definition of the word "reasonable'. Reason varies in its conclusions according to the idiosyncrasy of the of individual, and the times and circumstances in which he thinks. The reasoning which built up the old scholastic logic sounds now like the jingling of a child's toy. (See: Municipal rt Corporation of Delhi v. M/s Jagan Nath Ashok Kumar and another (1987) 4 SCC 497. and Gujarat Water Supplies and Sewerage Board v. Unique Erectors (Gujarat) Pvt. Ltd. and another [(1989) 1 SCC 532].
[9] It is often said "an attempt to give a specific meaning to the word 'reasonable' is trying to count what is not number and measure what is not space". The author of 'Words and Phrases' (Permanent Edition) has quoted from in re Nice & Schreiber 123 F. 987, 988 to give a plausible meaning for the said word. He says, "the expression 'reasonable' is a relative term, and the facts of the particular controversy must be considered before the question as to what constitutes reasonable can be determined". It is not meant to be expedient or convenient but certainly something more than that.
[10] The word 'reasonable' signifies "in accordance with reason". In the ultimate analysis it is a question of fact, whether a particular act is reasonable or not depends on the circumstances in a given situation. (See: Municipal Corporation of Greater Mumbai and another v. Kamla Mills Ltd. (2003) 6 SCC 315)."::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 17
19. Even otherwise the expression 'reasonable' would only mean "rational according to the dictates of reason and not .
excessive or immoderate". An act is said to be reasonable when it is conformable or agreeable to reason, having regard to the facts of the particular controversy. In other words 'reasonable' of would mean what is just, fair and equitable in contradiction to anything whimsical, capricious etc. The word 'reasonable' has in law prima facie meaning of reasonable in regard to those rt circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word 'reasonable'. The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks, as has been held by Hon'ble Supreme Court in Veerayee Ammal vs. Seeni Ammal (2002) 1 SCC 134.
20. Therefore, the term 'reasonable', as has been used by the Hon'ble Supreme Court and this Court is required to be interpreted in a manner so as to ensure that the landlord is reasonably compensated for the loss occurred by the delay in execution of the decree by grant of stay order. The rent has to ::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 18 be determined on case to case basis depending upon the cogent material placed on record by the parties and would .
therefore, normally be dependent upon the occupation, trade or business etc. of the tenant and would further not be dependent solely on the capacity to pay or actual earning of of the tenant, who has suffered an order of eviction.
21. The fixation of mesne profits and use and occupation charges are to be assessed on the basis of the rt evidence led by the parties as to the prima facie market value existing at the time of admission of the appeal after the eviction order, which has been exclusively bestowed on the landlord so that he would be able to reasonably compensate for loss caused by delay in execution of the decree by grant of stay order. The Court while doing so is not to be guided by the factors that the parties at one point of time while creating the tenancy had agreed at a meager amount of rent, it would depend upon the material produced before the Court which under no circumstances can be ignored even though thereafter the rent so fixed may work out to be multiple times to the one which was fixed at the time of creation of the tenancy.
::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 1922. Noticeably, even the tenant had not disputed the agreement entered between one of the landlord with Bata India .
Ltd., before the appellate authority wherein the rent fixed works out to Rs. 295.56 paise per sq. feet and with the increase contemplated in the agreement, the same on the date of of admission of the appeal was @ Rs. 325/- per sq. feet.
23. The agreement reveals that the rentals therein have been fixed for two premises i.e. 42, the Mall, Shimla and 14/1, rt Middle Bazaar, Shimla. From the photographs appended alongwith the petition filed by the landlord being Civil Revision Petition No. 212 of 2016, which have not even being disputed by the tenant, the premise No. 42 is admittedly located on the prime location i.e. Mall Road, Shimla, whereas the premise No. 14/1 is sandwiched between the premises let out to the tenant and premise No. 42 is approachable only through the narrow lane of about three feet. Therefore, obviously, the rental of these properties would be presumed to be worked out after taking into consideration the comparative advantage and disadvantages of both the premises.
24. So far as the premises which are in possession of the tenant are concerned, the same admittedly are situated on the ::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 20 main Middle Bazaar, at the heart of Shimla town which over the years have now been come to be reckoned as 'Middle Mall' .
and is one of the important hub of business activity and has great commercial potential though less than that of the premises located on the Mall Road.
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25. Therefore, the fixation of the monthly rental of Rs.12,000/- per month by the learned first appellate Court, even after concluding that the premises in question are in heart of the rt city is obviously erroneous because such rental is based upon the alleged earning of the tenant instead of the same being based upon the prima facie market rent that the landlord would have been able to let out on vacation by the tenant at the time of the admission of the appeal after eviction order. Moreover, once the Court has before it a lease deed of the premises which pertains to a part of the same building then it will not normally be wise, safe or prudent to rely upon any other document like rent deed of the so called adjoining premises in the vicinity to work out the prima facie market rent.
26. As observed earlier, the landlord has claimed an initial rent @ Rs. 295.56 paise which works out to be Rs. 295.56 paise x 313 sq. ft. = Rs.92,510.28 paise and has thereafter claimed ::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 21 increase in rent in terms of the agreement @ Rs. 313.54 paise per sq. ft, which works out to Rs.313.54 paise x 313 sq. ft. = Rs.
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98,138.02 paise. However, I am not inclined to accede to the request of the landlord at this stage as it cannot be ignored that the premises in question though located in the prime area of of Shimla are yet located in the Middle Bazaar which essentially may not have the same business potential vis-à-vis those premises, which are located on the main Mall Road. Therefore, rt taking into account all the cumulative facts and circumstances and further bearing in mind the exposition of law laid down by the Hon'ble Supreme Court in the judgments cited above, I am of the considered opinion that the rent of Rs.250/- per sq. ft.
would balance the competing interest i.e. Rs.250/- x 313 sq. ft. = Rs. 78,250/-. Accordingly, the petition filed by landlord is partly allowed whereas the petition filed by the tenant is dismissed.
Resultantly, the order of the appellate authority is modified to the extent that the operation and enforcement of the eviction order dated 26.8.2016 shall remain stayed subject to the following terms:
(a) The tenant shall deposit use and occupation charges @ Rs. 78,250/- per month w.e.f. the date of eviction i.e. ::: Downloaded on - 15/04/2017 22:07:29 :::HCHP 22 26.8.2016, and the same shall be deposited by him in the trial Court.
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(b) All arrears worked out on the aforesaid basis shall be deposited within 30 days, failing which the eviction order shall forthwith become executable.
(c) The landlord, for the present, shall not be entitled to claim any increase of rent on the basis of Clause 5 of of the agreement dated 1st February, 2013.
(d) All interim orders passed from time to time by this Court shall be deemed to have merged with this order.
rt
27. However, in the event of the eviction order being confirmed even by the learned Appellate Authority, the parties shall be at liberty to file a substantive petition for determining the mesne profits which needless to state shall be determined on the basis of the pleadings and evidence adduced and the order passed by this Court shall not come in the way of either of the parties.
28. It goes without saying that any observation touching the merits of the case is purely for the purpose of deciding the question involved in these revision petitions and shall not be construed as an expression of final opinion in the main matter or in any other proceedings.
April 6, 2017 (Tarlok Singh Chauhan)
(sanjeev) Judge
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