Himachal Pradesh High Court
____________________________________________________________ vs Rt on 28 December, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CMP Nos. 4524/2017 & 2432/2018 .
in Civil Revision No. 116 of 2017 Reserved on : 17.12.2018 Date of decision : 28.12.2018 ____________________________________________________________ of Kamla Sharma .....Petitioner Versus rt Rajinder Sood alias Rajan ...Respondent Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No For the Petitioner : Mr. Neeraj Gupta, Advocate.
For the Respondent : Mr. R. L. Sood, Senior Advocate, with Mr. Arjun Lall, Advocate.
Tarlok Singh Chauhan, Judge This order shall dispose of the application filed by the tenant for staying the operation of the judgment passed by learned Appellate Authority dated 29.12.2016 whereby it upheld the order of eviction passed by learned Rent ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 2 Controller, Court No.3, Shimla on 29.6.2016 being CMP No. 4524 of 2017 and shall also dispose of the application filed .
by the landlord being CMP No. 2432 of 2018 for fixation of use and occupation charges against the tenant.
The parties shall be referred to as the landlord of and tenant.
2 The landlord filed an eviction petition against the tenant rt seeking her eviction from an accommodation comprising of three room, one kitchen, one bathroom and one toilet identified as Set No.1, Ground Floor, Anand Lodge, Jakhoo, Shimla171001.
3 The said eviction petition was partly allowed by learned Rent Controller firstly on the ground that the tenant was in arrears of rent to the extent of Rs.18,961.20 and secondly the demised premises were bonafidely required by the landlord for the purpose of rebuilding and reconstruction.
Whereas, the other ground that the building in question was more than 100 years old and is in dilapidated condition and it become unsafe and unfit for human habitation was rejected.
::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 34 The tenant aggrieved by the order of eviction passed by learned Rent Controller, filed an appeal before the .
learned Appellate Authority. However, the same came to be dismissed vide judgment dated 29.12.2016, constraining the tenant to file the instant revision petition.
of 5 At the outset, it needs to be observed that there can be no dispute that once a decree for eviction has been rt passed in that event the execution of decree for eviction can be stayed only if the tenant is put to such reasonable terms as would in the opinion of the Court, reasonably compensate the landlord for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed. There can be further no quarrel that with effect from the date of decree of eviction, the tenant is liable to pay mesne profits or compensation 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 on being vacated by the tenant.
6 It may also be observed that the courts after passing of an order of eviction can always put the occupant of the premises to terms including payment of mesne profit.
::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 4The very purpose of awarding mesne profit or use and occupation charges is to put 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 of to receive higher rent than the contractual rent.
7 This question has been considered in detail by rt this Court in Champeshwar Lall Sood and another vs. Gurpartap Singh and others, 2017 (2) RCR (Rent), 293, wherein the further question as to how the mesne profits and use and occupation charges are to be assessed, was also considered and it was observed as under:
"21. The fixation of mesne profits and use and occupation charges are to be assessed on the basis of the 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 ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 5 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."
8 In this factual background, it is therefore incumbent upon this Court to first decide the application of filed by the landlord for fixation of use and occupation charges against the tenant being CMP No. 2432 of 2018. It is rt averred that the tenanted premises comprise of three rooms, one kitchen, one bathroom and one toilet in the ground floor of Anand Lodge, Jakhoo, Shimla. It is further averred that the premises are situated in the central premium and prestigious residential area of Shimla and is within 10 minutes of walking distance from the famous Ridge Maidan/Mall Road, Shimla. It is situate opposite the famous Rothney Castle, which is a historic prestigious residential building. The official residence of the Deputy Commissioner, Shimla is at a distance of 200 yards from Anand Lodge. The minimum use and occupation charges in respect of the premises in question are the minimum sum of Rs.36,000/ per month and reliance is placed upon the decision of Coordinate ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 6 Bench of this Court in (I) Civil Revision No. 79 of 2017 titled Diwakar Dutt vs. EIH Associated Hotels Ltd, .
decided on 18.9.2017 and (ii) Civil Revision No. 165 of 2017, titled P.S. Bakshi (since deceased) through Neema Bakshi vs. EIH Associated Hotels Ltd., decided on of 01.03.2018. It is on the basis of these averments that the landlord has claimed use and occupation charges at the rate rt of 36,000/ per month from one day after the date of passing of the eviction order dated 30.6.2016 alongwith interest thereon at the minimum rate of 9% per annum , till the date of handing over of the vacant and peaceful possession of the tenanted premises to the landlord.
9 The tenant has contested the application by filing reply wherein preliminary objections have been taken that the landlord has not placed on record any material enabling this Court to arrive at a just conclusion with regard to the mesne profits as have been claimed by the landlord, therefore, the application cannot be maintained in absence of material in support of the claim which otherwise is highly inflated, exaggerated and untenable. It is averred that the ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 7 reliance placed upon the judgments rendered by this Court as quoted above are with respect to the premises which are .
situated in Cecil Hotel Estate Chaura Maidan, Shimla and the same have no bearing to the premises in question as the premises in Chaura maidan cannot be said to be in the near of vicinity/locality of the premises in question and thus cannot be made the basis for adjudicating the claim of use and rt occupation charges. It is also averred that the landlord is estopped from claiming use and occupation charges from 30.6.2016 since he failed to file an application qua the same relief before the learned Appellate Authority. On merits, the averments made in the preliminary objections have been elaborated and in addition thereto, it has been averred that the rent of similar accommodation in the area is much lower and in support of this contention, the tenant has annexed alongwith the reply a copy of the rent deed executed on 4.10.2017 between one Mr. N.K. Gupta and Mr. Sanjeev Rathour wherein the rent for two rooms set, kitchen, bathroom and gallery has been fixed at Rs.6500/ per month.
::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 810 I have heard learned counsel for the parties and gone through the pleadings in the application alongwith .
documents accompanying the same.
11 At the outset, it needs to be noticed that the provisions of the H.P. Urban Rent Control act, 1987 have of been struck down by a Division Bench of this Court in Chaman Lal Bali vs. State of H.P., 2016(3) Shim.L.C. rt 1593, wherein the Division Bench 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 and occupation charges and the tenant or sublettee or any other unauthorized occupants could conveniently squat over the premises for years and decades together by paying the contractual rent.
12 Negating the said contention, this Court after 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 for use and occupation charges of the premises at the same rate at which the landlord would have been able ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 9 to let out the premises and earn rent if the tenant would have vacated the premises.
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13 Answering the said question, It was held as under: "23. In Marshall Sons and Co.(I) Ltd. vs. Sahi of Oretrans (P) Ltd. and another (1999) 2 SCC 325, the Hon'ble Supreme Court after taking into consideration the invariable delay in Court proceedings rt 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:
"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 unending prolixity, at every stage providing a legal trap to the unwary. Because of the delay unscrupulous parties to ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 10 the proceedings take undue advantage and person who is 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, of 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 rt 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 appropriate to dispose of this matter with the following directions:
(1) That the suit in question be disposed of as expeditiously as possible, preferably within one year from today;::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 11
(2) The respondents are directed to pay the mesne profits/compensation at the rate of Rs.10/ per sq. ft.
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from 1984 till today and at the rate of Rs.20/ from today till the 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 instalments.
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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 rt 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 decreeholder 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.
(2) in case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 12 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 the same rate at which the landlord of 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 the contractual rate of rt 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 judgmentcreditor 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.
::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 1326. Similar reiteration of law is found in the judgment of Hon'ble Supreme Court in Anderson .
Wright and Co. vs. Amar Nath Roy and others AIR 2005 SC 2457, wherein it was held as under:
"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 of decree for eviction being stayed, the appellants can be put on such reasonable terms, as would in the opinion rt of the appellate 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 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 ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 14 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 of basis of primafacie market rate is existing at the time of admission of the appeal after eviction order, a benefit has been bestowed on the landlord that he rt 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 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. 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 judgemade 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 ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 15 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 of and for this purpose, have laid down that the tenant must pay a reasonable amount subject to the outcome of the appeal/revision.
rt
29. Even otherwise, the awarding of mesne profits does put a check on the diabolical plans of the tenant who has been ordered to be evicted to further delay the matter and squat on the premises by paying a nominal or meager rent.
14 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 including payment of mesne profit. The very purpose of awarding mesne profit or use and occupation charges is to put 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 ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 16 even the landlord is also compensated to receive higher rent than the contractual rent.
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15 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 of compensation for use and occupation charges of the premises at the same rate on which the landlord would have been able rt to let out the premises and earn rent if the tenant would have vacated the premises.
16 Likewise, in Marshals Sons and Co.(I) Ltd. vs. Sahi Oretrans (P) Ltd. (supra), it was categorically held that once a decree for possession has been passed and execution is delayed depriving the judgmentcreditor 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.
17 At the same time, it was also held that while fixing the amount, subject to payment of which the execution of the ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 17 order/decree is stayed, the Court would exercise restraint and would not fix any excessive, fanciful or punitive amount.
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18 What is 'reasonable' is difficult to define and this expression being a relative term is required to be considered visàvis, the fact situation obtaining in a particular case. A of three Hon'ble Judge Bench of Hon'ble Supreme Court in Rena Drego (Mrs) vs. Lalchand Soni and others (1998) 3 rt 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 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 ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 18 Kalavati, AIR 1973 Bombay 46, "that the word 'reasonable' 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 providing an angle which is conformable or agreeable to reasons, having regard to the facts of the particular controversy.
of [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 rt 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).
19 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: "[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'.
::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 19Stroud'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 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 of toy. (See: Municipal 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 rt 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 - 28/12/2018 22:34:16 :::HCHP 2020 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 of 'reasonable' would mean what is just, fair and equitable in contradiction to anything whimsical, capricious etc. The word rt 'reasonable' has in law prima facie meaning of reasonable in regard to those 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.
21 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 ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 21 in execution of the decree by grant of stay order. The rent has to 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 of dependent solely on the capacity to pay or actual earning of the tenant, who has suffered an order of eviction.
22rt The fixation of mesne profits and use and occupation charges are to be assessed on the basis of the 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.
23 Reverting back to the facts of the instant case, it would be noticed that the landlord has not placed on record any documentary evidence with regard to the rent prevailing in the vicinity, but then he is well within his right to place reliance on the decisions rendered by this Court which can ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 22 definitely be taken into consideration while fixing the mesne profits and use and occupation charges.
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24 As regards the tenant, he has placed on record a copy of socalled rent agreement executed on 4.10.2017 between one N.K. Gupta and Sanjiv Rathore, wherein the rent of for two rooms set including kitchen, bath room and gallery has been fixed @ Rs. 6500/ per month. However, a perusal rt of the socalled rent agreement would show that that the same is not even on stamp paper. Moreover, the language. in which the agreement is couched. makes it suspicious. The rent agreement claims to have been made on 4.10.2017. The opening part of the agreement reads thus: This rent deed is made at Shimla on this 4 th day of Oct. 2017 between She. N.K. Gupta aged about.........years, son of late Sh. Hans Raj Gupta, resident of Nav Bhawan, Jakhoo Shimla1, Tehsil and Distt. Shimla (HP) (hereinafter referred to as Landlord/First party) of the one part.
AND Sh. Sanjiv Rathore, aged about 34 years, son of Sh. Balbir Singh Rathore, resident of VPO Dhami, Tehsil and Distt. Shimla (HP) (hereinafter called as a Tenant/Second Party) on the other part.
::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 2325 Second paragraph of the rent agreement reads as under: .
Whereas under written lease granted by the landlord on 16th day of Oct.2017 shall obtain the possession of the property on First Floor, Nav Bhawan consisting of 2 Rooms Set including Kitchen, Bathroom and Galary on 16th day of Oct. 2017 for a period of Two years from of 16th day of Oct. 2017 to 15/10/2019 after settlement between the parties and a sum of Rs.6500/ (Rupees rt Six Thousand and Five Hundred only) as rent including 15th MC Taxes in advance every month term 1st to 5th of each month and Rs.6500/ (Rupees Six Thousand and Five Hundred only) as on vacating the aforesaid flat and no adjustment with rent is to be made in any cost.
26 Likewise, condition No. 8 of the rent agreement reads thus: That the flat/premises being occupied from 16 th day of Oct. 2017 should be kept neat and clean from inside and outside and maintain properly and as it is occupied right from the day of possession.
27 Normally, in a rent agreement, there is no need to specify the date of entry in the premises and in case the same was to come into operation only on 16.10.2017, then there was no need to have the agreement executed on 4.10.2017.
::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 24However, even if all this is ignored, it would be noticed that the rent agreement itself cannot be said to be representing .
the true rental of the area.
28 This Court cannot loose sight of the fact that the premises are situated at 10 minutes walking distance from of the famous Ridge Maidan/Mall Road Shimla and just opposite to Rothney Castle, which is a historic and rt prestigious building. The official residence of the Deputy Commissioner is at a distance of 200 yards from the premises in question. It is also not in dispute that the premises are approachable by road.
29 The landlord has relied upon judgment dated 18.9.2017 passed by this Court in Civil Revision No.79/2017, wherein admittedly use and occupation charges have been fixed @ Rs.6000/ per room, but that to my kind, cannot form the sole basis of fixing the fair rent and cannot be used as standard parameters for fixing fair rent in the present case for the reason that it was the landlord himself, who had sought eviction of the tenant on the ground that the premises in question are more than 100 years old and in a dilapidated condition and have become unsafe for human habitation.
::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 2530 No doubt, the eviction on this ground was refused, but then if the landlord himself feels that the .
premises in question are unfit for human habitation or in a dilapidated condition, obviously then he cannot expect the monthly rental of the premises in question to be Rs.6000/ of per room on the basis of judgment passed by this Court in C.R. No. 79/2017. At the same time, it cannot also be rt ignored that because of the strategic location of the premises in question, the rental thereof would be definitely comparable to those at the residential areas of Chaura Maidan. However, since the building is more than 100 years old as averred by the landlord,I feel that the ends of justice would be met if the fair rent of these premises is fixed @ Rs.4,000/ per month per room.
31 Accordingly, the operation and execution of the impugned order passed by the learned Rent Controller and judgment passed by the learned Appellate Authority shall remain stayed subject to the following terms:
(a) The tenant shall deposit use and occupation charges @ Rs. 4000/ per month per room i.e. Rs.12,000/ per month with effect from the date ::: Downloaded on - 28/12/2018 22:34:16 :::HCHP 26 of eviction order i.e. 29.6.2016 and the same shall be deposited by him before the learned .
Rent Controller.
(b) All arrears worked out on the aforesaid basis shall be deposited within 30 days, failing which the eviction order shall forthwith of become executable.
(c) All interim orders passed from time to time by rt this Court shall be deemed to have merged with this order.
32 It goes without saying that any observation touching the merits of the case is purely for the purpose of deciding the question(s) involved in these applications and shall not be construed as an expression of final opinion in the main matter or in any other proceedings.
Applications stand disposed of.
C.R. No. 116/2017List on 14.3.2017.
28.12.2018 (Tarlok Singh Chauhan)
(pankaj) Judge
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