Rajasthan High Court - Jodhpur
Vijay Vyas vs Abhishek Goyal & Ors on 18 October, 2011
Equivalent citations: AIR 2012 (NOC) 138 (RAJ.)
Author: Gopal Krishan Vyas
Bench: Gopal Krishan Vyas
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
:ORDER:
S.B. Civil Writ Petition No.8133/2011.
(Vijay Vyas Vs. Abhishek Goyal & Others)
DATE OF ORDER : October 18th, 2011
PRESENT
HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS
Reportable
Mr. Surendra Surana for the petitioner.
Mr. J.R. Patel for the respondents.
BY THE COURT :
In this writ petition fifled under Articles 226 and 227 of the Constitution of India, the petitioner is challenging the validity of order dated 09.08.2011 passed by the Rent Appellate Tribunal, Jodhpur, by which, while passing stay order in the appeal filed by the petitioner against the judgment of the Rent Tribunal, Jodhpur, the Rent Appellate Tribunal, Jodhpur passed an order that during pendency of the appeal the execution of the judgment dated 01.04.2011 passed by the Rent Tribunal, Jodhpur shall remain stayed provided the petitioner-appellant deposits 3 times of the rent amount which is Rs.15,150/- per month as mesne profits with the respondents.
As per facts of the case, respondents No.1 and 2 filed 2 an application for eviction from shop against the petitioner before the Rent Tribunal, Jodhpur on the ground of personal bona fide necessity and that petition was allowed vide judgment dated 01.04.2011 by the Rent Tribunal, Jodhpur. An appeal was preferred by the petitioner before the Rent Appellate Tribunal, Jodhpur against the said judgment along with prayer of stay in which an interim order was passed on 09.08.2011 that execution of the judgment of the Rent Tribunal, Jodhpur dated 01.04.2011 shall remain stayed upon the condition that the petitioner shall pay 3 times of the rent amount as mesne profits to the respondents.
The petitioner is challenging the valdity of said order on the ground that the appellate Court has committed a serious error of law while passing such order to pay 3 times rent as mesne profits which is determined by the Rent Tribunal during pendency of the appeal. Learned counsel for the petitioner invited attention towards sub- section (10) of Section 19 of the Rent Control Act, 2001, in which, it is specifically provided that the Appellate Tribunal may in its discretion pass such interlocutory order during the pendency of the appeal as it may deem fit; meaning thereby, the Rent Appellate Tribunal although has discretion to pass such interlocutory order but, here, in this 3 case, the Rent Tribunal has erroneously passed an order of stay upon illegal condition to deposit 3 times rent as mesne profits.
Learned counsel for the petitioner submits that the Tribunal has misinterpreted Section 20 of the Rent Control Act, 2001, in which, there is jurisdiction left with the Rent Tribunal to pass such order in the execution proceedings of the orders. Further, it is submitted that the order impugned has been passed on the basis of provisions of Section 20(3) of the Act of 2001 which provides that if the tenant does not vacate the premises within three months from the date of issue of certificate he shall be liable from the date of issue of certificate to pay mesne profits at the rate of 2 times of the rent in case of residential premises and at the rate of 3 time in case of commercial premises. An order under sub-section (3) of Section 20 can be passed in execution proceedings but it is not mandatory for the Rent Appellate Tribunal to enforce such condition at the time of passing interlocutory order during the pendency of appeal as per sub-section (10) of Section 19 of the Rent Control Act, 2001.
Learned counsel for the petitioner further invited attention of this Court that the appellate Court can decide the appeal without delay but no such condition can be 4 imposed while taking shelter of sub-section (3) of Section 20 of the Act. It is also submitted that the judgment which is taken into consideration by the Rent Appellate Tribunal, reported in 2011 (3) RLW (Raj.) 2060 is not applicable in the facts of the present case, therefore, the order impugned dated 09.08.2011 passed by the Rent Appellate Tribunal which is contrary to the provisions of the Act may be quashed and order may be modified to the extent that the petitioner shall pay rent regularly as determined by the Rent Tribunal till disposal of the appeal.
In support of his contention, learned counsel for the petitioner invited my attention towards judgment dated 14.09.2009 rendered in S.B. Civil Writ Petition No.6548/2008 in the case of Parasmal Dhariwal Vs. LRs of Amardutt Vyas.
Per contra, learned counsel appearing on behalf of the respondents submits that no error has been committed by the Rent Appellate Tribunal in imposing the condition for payment of 3 times rent because in the shop in question the petitioner is pursuing commercial activity and as per Section 20(3) there is express provision which provides that if the tenant does not vacate the premises within three months from the date of issue of the certificate for recovery of possession he is liable to pay rent at the rate 5 of 3 times of the rent if the premises is let out for commercial purposes, therefore, there is no error in the order passed by the Rent Appellate Tribunal while following the judgment of this Court reported in 2011 (3) RLW 2060 (Raj.), Navin Sharma Vs. Ram Narayan & Others.
After hearing learned counsel for the parties, I have perused the provisions of the Rajasthan Rent Control Act, 2001.
Under Section 19(6) of the Act of 2001, there is provision that from every final order passed by the Rent Tribunal an appeal shall lie to the Rent Appellate Tribunal within the local limits of whose jurisdiction the premises is situated and such an appeal shall be filed within a period of 30 days from the date of passing of such final order. Sub- section (10) of Section 19 of the Act of 2001 gives discretion to the Rent Appellate Tribunal to pass interlocutory order during the pendency of the appeal which it may deem fit. Section 19 (10) of the Act runs as under :
"(10) The Appellate Rent Tribunal may in its discretion pass such interlocutory order, during the pendency of the appeal, as it may deem fit."
I have perused Section 20 of the Act of 2001, in which, there is power left with the Rent Tribunal for 6 execution of the orders passed by the Rent Tribunal. It is true that as per Section 20(3) there is provision for payment of mesne profits if the tenant does not vacate the premises within a period of three months from the date of issue of the certificate for recovery of possession. Section 20(4) provides that the Rent Tribunal shall conduct the execution proceedings in relation to final order or any other order passed under this Act in summary manner and dispose of the application for execution made under this section within forty five days from the date of service of notice on opposite party. Further, there is explanation provided under Section 20 which reads as under :
"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 challenge 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."
Upon perusal of Section 20 as a whole, it emerges that this power can be exercised by the Rent Tribunal in 7 execution proceedings. It is not mandatory under Section 19(10) for the appellate Court to pass interlocutory order upon such conditions as enumerated under Section 20(3) of the Act of 2001 because in the explanation the legislature has expressly provided that 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 challenge 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. Therefore, the order for payment of mesne profits at the rate of 3 times can be passed in execution proceedings if the premises is not vacated within three months after attaining finality of the order passed by the Rent Tribunal.
Here, in this case, admittedly the appeal is still pending and appellate Court without perusing Section 20 of the Act as a whole in right perspective passed impugned order for payment of 3 times of the rent as mesne profits; 8 but, in my opinion, Section 20 will not come into play during the pendency of appeal or at the time of passing the interlocutory order by the Tribunal. Section 20 will operate in the execution proceedings and, that, too, if the tenant does not vacate the premises within three months from the date of issue of the certificate for recovery of possession which attains finality after dismissal of the appeal by the Rent Appellate Tribunal.
I am in full agreement with the adjudication made by the co-ordinate Bench in the case of Parasmal Dhariwal Vs. LRs of Amardutt Vyas in S.B. Civil Writ Petition No.6548/2008, decided on 14.09.2009, in which following adjudication has been made by the co-ordinate Bench of this Court :
"9. As noticed above, Sub-section (10) of Section 19 of the Act empowers the Appellate Rent Tribunal in its discretion to pass such interlocutory order, during the pendency of the appeal which the facts and circumstances of the case require. Indisputably, the power conferred on the Appellate Rent Tribunal as aforesaid to grant the interim relief is not circumscribed by any conditions therefore, it is not precluded from staying the payment of mesne profit at the enhanced rate of rent in terms of Sub-section (3) of Section 20 during the pendency of the appeal. But then, the matter with regard to grant of stay pending appeal has to be decided by the Appellate Rent Tribunal exercising its discretion 9 reasonably, judicially and on the basis of settled principles governing the grant of interim relief.
10. As laid down by the Hon'ble Apex Court in the matter of "Siliguri Municipality vs. Amalendu Das", (1984) 2 SCC, 439, the main purpose of passing an interim order is to evolve a workable formula or an arrangement to the extent called for by the demands of situation keeping in mind the pros and cons of the matter and striking a balance between two conflicting interest.
11. In Dalpat Kumar vs. Prahlad Singh, (1992) 1 SCC, 719, the Hon'ble Supreme Court stated, "The Court while granting or refusing to grant injunction should exercise sound judicial discretion to find the amount of substantial mischief or injury which is likely to be caused to the parties, if the injunction is refused and compare it with that which is likely to be caused to the other side if the injunction is granted. If on weighing competing possibilities or probabilities of likelihood of injury and if the Court considers that pending the suit, the subject matter should be maintained in status quo, an injunction would be issued. Thus the Court has to exercise its sound judicial discretion in granting or refusing the relfief of ad interim injunction pending the suit".
12. Adverting to the facts of the present case, it is to be noticed that the rent which was being paid by the petitioner-tenant had already been enhanced prior to filing of the rent application from Rs.500/- to Rs.1208/-. From the perusal of the order impugned passed by the Rent appellate Tribunal, it is difficult to discern the reasons for 10 imposition of such an onerous condition of payment of mesne profit at enhanced rate of rent upon the tenant while granting the interim relief staying the dispossession of the tenant during the pendency of the appeal. Indisputably, the statutory provision takes care of the interest of the landlord in case the eviction order passed by the Rent Tribunal is maintained by the Appellate Rent Tribunal inasmuch as, he would stand adequately compensated by payment of mesne profit at the enhanced rate of rent in conformity with the provisions of Sub-section (3) of Section 20, after expiry of period of three months from the date the certificate for recovery of possession was initially issued by the Rent Tribunal. Therefore, there is absolutely no reason as to why such an onerous condition with regard to the payment of the mesne profit at the enhanced rate of rent by the tenant to the landlord should be insisted upon by the Rent Appellate Tribunal as a matter of course during the pendency of the appeal."
On the basis of the above discussion, it is held that the Appellate Rent Tribunal can exercise discretion while passing interlocutory order as per Section 19(10) of the Act of 2001 but the said discretion must be based upon reasonableness and till pendency of appeal if the Appellate Rent Tribunal deems fit that execution of the judgment of the Rent Tribunal deserves to be stayed, then, no unreasonable condition should be imposed. Further, order under Section 20(3) of the Act can be passed in execution proceedings of the order passed by the Rent Tribunal and 11 not by the Rent Appellate Tribunal, therefore, whatever provision is provided under Section 20 of the Act are to be applied during the execution proceedings because the Legislature has purposely provided Section 20 for execution of the orders passed by the Rent Tribunal, if the tenant does not vacate the premises within three months from the date of attaining finality of the judgment of the Rent Tribunal. Therefore, no appellate Rent Tribunal can apply sub-section (3) of Section 20 of the Act of 2001 while passing interlocutory order during the pendency of the appeal.
As a result, this writ petition is allowed. The order impugned dated 09.08.2011 passed by the Rent Appellate Tribunal is hereby modified to the extent that the petitioner is directed to pay mesne profits @ Rs.5050/- instead of Rs.15,150/- as ordered by the Rent Appellate Tribunal till disposal of the appeal and further the Rent Appellate Tribunal is directed to decide the appeal expeditiously.
A copy of this order may be circulated to all Rent Appellate Tribunals in the State.
(Gopal Krishan Vyas) J.
12Ojha, a.