Himachal Pradesh High Court
Prem Lal vs Soma Devi on 13 December, 2019
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Civil Revision No. 25 of 2015 .
Reserved on: 09.12.2019
Date of decision: 13.12.2019
Prem Lal. ...Petitioner.
Versus
Soma Devi. ...Respondent.
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes.
For the Petitioner: Mr.R.S. Chandel, Advocate.
For the Respondent: Mr.Bhupinder Singh Kanwar, Advocate.
Vivek Singh Thakur, Judge
This Revision Petition has been preferred under Section 24 (5) of the H.P. Urban Rent Control Act, 1987 (herein after referred to as the Act in short) against the order dated 18.1.2014 passed by learned District Judge, Shimla, exercising the powers of Appellate Authority under the Act (herein after referred to as the Appellate Authority) in Rent Appeal No. RBT No. 52-S/14 of 2013, titled a Prem Lal Vs. Anant Ram, whereby order of eviction dated 26-3 of 2010, passed by Rent Controller, Shimla in Rent Petition No. 33/1 of 2008, titled Anant Ram Vs. Prem Lal, has been upheld with slight modification by removing the condition of production of construction plan for eviction and inserting option of re-entry to respondent/tenant, as per provisions of Section 14(3)(c) of the Act.
2. Petitioner herein is tenant and respondent is landlady and hereinafter they have been referred as tenant and landlord/landlady respectively.
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3. Originally landlord Anant Ram had filed a petition for eviction of Prem Lal tenant and after his death, during pendency of petition, his wife Soma Devi is pursuing the eviction proceedings. Landlord/landlady is .
seeking eviction of tenant from the demised premises rented to him, being used for non-residential purposes, on the ground that the said premises is bonafide required by landlord for the purpose of building/rebuilding/making substantial addition and alterations, particularly in the ground floor for the purpose of parking of his own vehicle and such addition/alteration cannot be carried out in the premises without vacation of the said premises by the tenant, with further plea that landlord being a senior citizen is in dire need/necessity of the premises for parking of his vehicle, particularly on account of recent policy of Government necessitating for parking in each house and also for incidents of car theft parked outside the house.
4. Rent Petition has been opposed by tenant by stating in the reply that it is not maintainable and as it has been filed only to harass the tenant to compel him to increase the rent and initially premises was rented out on 28.3.2005, at the rate of `1100/- per month and since December, 2016 on request of landlord, rent was increased by the tenant to `1400/- per month and bonafide requirement of premises, under the occupation of tenant, for the purpose of building/rebuilding, making substantial additions and alterations, particularly in the ground floor of the premises for the purpose of parking has been denied and it is further case of the tenant that such building/rebuilding/additions/alterations can be carried out in the premises in question without vacating the same by the tenant. It has also been contended on behalf of tenant that there are three other tenants in the ground floor, i.e. the same floor, but no eviction petition has been filed against other tenants and that one shop is in occupation of landlord, as tenant thereof is not living therein since last two years, therefore, tenant has reason to believe that the petition for his ejectment is not bonafide and ::: Downloaded on - 19/12/2019 20:25:16 :::HCHP 3 .
further that landlord owns a vehicle since 1996-97 and parks it in the vicinity of the building, and now that eviction petition has been filed for blackmailing the tenant to increase the rent.
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5. After considering the pleadings, evidence lead by the parties and arguments addressed by respective counsel, Rent Controller had allowed the petition, ordering the eviction of the tenant on the ground that suit premises, consisting of two rooms set in the ground floor, shown in rough sketch map Ex. AW-1/A in Surya Niwas, Cemetery Road, Sanjauli, Shimla for bonafide requirement of landlady for the purpose of making addition and alteration to convert it as a parking space to park her vehicle and tenant was directed to handover the vacant possession of the premises to the landlady within 60 days from passing of the order, but with condition that before execution of ejectment order, landlady had to produce permission from Municipal Corporation, Shimla for converting suit premises in to parking.
6. Tenant had assailed the order passed by Rent Controller before Appellate Authority. Appellate Authority, after considering the material on record and arguments advanced on behalf of parties, has upheld the order of eviction, but with slight modification by excluding precondition of production of construction plan/permission from the Municipal Corporation, Shimla, to convert the suit premises into parking, before execution of eviction order and by inserting the option of re-entry to the tenant as per provision of Section 14(3)(c) of the Act and it has also been ordered that tenant will hand over the premises to landlord within a period of three months and thereafter landlord/landlady shall commence construction of Garage within a period of six months and will complete entire construction within further period of one year after obtaining statutory permission from the Commissioner, Municipal Corporation, Shimla.
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7. Learned counsel for the petitioner/tenant has contended that landlord had filed eviction petition on 4.7.2008 for ejecting the tenant from non-residential premises on the ground of bonafide requirement and final .
order therein has been passed on 26.3.2010, whereas at that time under Section 14(3)(d) of the Act, eviction on the basis of bonafide requirement was permissible from residential building only and the said provision has been extended to non-residential building vide amendment in the Act by H.P. Urban Rent Control Amendment Act, 2009, which received and assent of President of India on 12th February, 2012 and was notified vide Notification No. LLR-D (6)-32/2009-Leg. Dated 16th March, 2012 and published in H.P. Rajpatra on dated 16th March, 2012 at pages 6653 to 6660 and thus not only filing of the petition, but decision therein is prior to the date of enforcement of amendment into the Act and thus petition itself was not maintainable and resultantly impugned ejectment order passed on the ground of bonafide requirement with respect to non-residential building is not sustainable and liable to be set aside on this sole ground.
8. It is further contended by learned counsel for the tenant that there are four tenants in the ground floor including present tenant, whereas petition has been preferred only against one tenant, despite enhancement of rent by him and in absence of production of registration certificate of vehicle and permission from Municipal Corporation for making alteration/addition, Rent Controller as well as Appellate Authority have committed mistake by passing eviction order. It is also contended that landlord had expired during pendency of the petition, but instead of all legal heirs, only his wife has been brought on record and therefore, for want of necessary parties, petition is liable to be rejected and it is also contended that decree has been passed for eviction of tenant from two rooms set, whereas the premises occupied by him is one room set. Lastly, it is contended that tenant/petitioner is earning his livelihood from the premises in question and on ejectment he will be on ::: Downloaded on - 19/12/2019 20:25:16 :::HCHP 5 .
road and it would be difficult for him to maintain his family including his two small kids.
9. During pendency of present petition, an application under .
Section 26 Rule 9 C.P.C, has also been filed on behalf of tenant, praying for appointment of Local Commissioner to verify the facts on the spot, as it is claimed by him that two rooms, vacated by another tenant, have already been converted into car parking, against the requirement of landlord of one room to convert into parking and therefore, requirement of landlord/landlady to convert the premises occupied by tenant into parking does not survive and therefore, impugned orders deserve to be modified after ascertaining the factual position on the spot, through Local Commissioner.
10. Controverting the arguments canvassed on behalf of tenant, learned counsel for the landlady has submitted that ground for ejectment mentioned in the petition does not attract provision of Section 14(3)(d) of the Act, but the provisions of Section 14(3)(c) of the Act, wherein irrespective of nature of use of building, landlord has a right to evict the tenant for bonafide requirement for the purpose of building or rebuilding or making therein any substantial addition or alteration, where such a building or re-building or alteration cannot be carried out without the building or rented land being vacated. Renting out four sets to different tenants in ground floor, has been admitted by landlady, however, it is submitted that premises in question is the best suited for parking and is required to be converted into parking for their vehicles and landlord is the best person to decide which of the premises is to be converted into parking. It is contended that factum of ownership of vehicle by landlord has come on record and has been admitted by tenant, therefore, absence of registration certificate on record is of no consequence and further that so far as permission for converting the premises in question into parking, is concerned, despite the fact that area falls under jurisdiction of Municipal Corporation, Shimla, no permission is ::: Downloaded on - 19/12/2019 20:25:16 :::HCHP 6 .
required for change in internal structure and parking can be created by removing the walls of premises in question. It is argued that in view of Section 2(d) of the Act, there is no illegality in substitution of wife of landlord .
in his place after his death.
11. It is also contended on behalf of landlady that tenant is occupying two rooms set accommodation and using it for residential as well as non-residential purposes and earlier tenant was working as tailor but now he has changed his occupation as vegetable seller and further that mention of one room or two rooms set in ejectment order, does not make any difference, as the identity of the premises in question is not in dispute.
12. In response to application for appointment of Local Commissioner, it is contended on behalf of landlady that petition for ejectment to convert the premises as parking was filed in the year 2008 and thereafter more than 11 years have elapsed and family of landlady has also increased and vehicles owned by the family have also multiplied and now the area converted into parking during pendency of eviction petition is also insufficient to park the vehicles owned by the family of landlady and therefore, there is still bonafide requirement for making alterations in the premises in question to convert it into parking and therefore, prayer for rejection of petition as well as application filed by tenant has been made.
13. I have gone through pleadings and evidence led by parties and have also considered arguments advanced by learned counsel for the parties.
14. Section 5 of General Clauses Act deals with coming into operation of enactments, which reads as under:-
"5. Coming into operation enactments.--(1) Where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent,--::: Downloaded on - 19/12/2019 20:25:16 :::HCHP 7
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(a) in the case of a Central Act made before the commencement of the Constitution, of the Governor-
General, and .
(b) in the case of an Act of Parliament, of the President. (3) Unless the contrary is expressed, a [Central Act] or Regulation shall be construed as coming in to operation immediately on the expiration of the day preceding its commencement."
15. For provisions of Section 5 of the General Clauses Act, amendment with respect to Section 14(3)(d) of the Act, enabling landlord to file eviction petition with respect to non-residential building for bonafide requirement under this provision, has come into force on 26.2.2012 and therefore, at the time of filing of eviction petition as well as decision therein by Rent Controller, landlord was not entitled to maintain the eviction petition under this provision with respect to non-residential premises. However, claim of the landlord is that eviction petition has been preferred under Section 14(3)(c) of the Act for bonafide requirement to alter/re-building the premises in question for using it as parking and not under Section 14(3)(d) of the Act.
16. Section 14(3)(c) of the Act reads as under:-
"(c) in the case of any building or rented land, if he requires it to carry out any building work at the instance of the Government or local authority or any Improvement Trust under some improvement or development scheme or if it has become unsafe or unfit for human habitation or is required bona fide by him for carrying out repairs which cannot be carried out without the building or rented land being vacated or that the building or rented land is required bona-fide by him for the purpose of building or re-building or making thereto any substantial additions or alterations and that such building or rebuilding or addition or alteration cannot be carried out without the building or rented land being vacated.
Provided that the tenant evicted under this clause shall have right to reentry on new terms of tenancy, on the basis of mutual agreement between the landlord or tenant, to the premises in ::: Downloaded on - 19/12/2019 20:25:16 :::HCHP 8 .
the re-built building equivalent in area to the original premises for which he was tenant.
Provided further that in case of non residential premises, the landlord shall not compel the tenant for a change of business .
under the new terms of tenancy."
17. Undoubtedly, Section 14(3)(c) of the Act entitles landlord to seek ejectment of tenant, if building is required bona fide by him/her for purpose of making thereto any substantial addition or alteration, which cannot be carried out without the building being vacated. There is a proviso to this Section providing right to re-entry to the tenant evicted under this clause, to the premises, in the rebuilt building equivalent area to the original premises for which he was tenant. However, so far as condition in the proviso providing reentry on new terms of tenancy, on the basis of mutual agreement between landlord and tenant is concerned, it has been struck down and declared unconstitutional by Division Bench of this Court in case Chaman Lal Bali and others Vs. State of Himachal Pradesh and others reported in 2016 (3) Shim. L. C. 1593.
18. It has come in pleadings as well as in evidence, on record that there is no parking space in the building of landlord and landlord has also placed on record clippings of news papers with respect to news published therein regarding theft of vehicles parked in open on the side of road in the vicinity of the building in question. In reply to the rent petition, tenant himself has stated that landlord is owner of a vehicle since 1996-97 and is parking it in the vicinity of the building and in his examination-in-chief also, he has stated that landlord owns a car since 1996 and not only this but in application filed for appointment of Local Commissioner also, there is admission that family of landlord/landlady is owning vehicle. It is also not in dispute that at present, anyone, who intends to buy and register a car/vehicle with Registration and Licensing Authority in Shimla City, has to produce proof of availability of parking in his house. It is compulsory to ::: Downloaded on - 19/12/2019 20:25:16 :::HCHP 9 .
have parking before registration of vehicle in Shimla City. Otherwise also vehicles parked on the road side create traffic jam problem and time to time such vehicle are picked up and impounded by traffic police. Therefore, .
provision of parking space in building is a compulsion and is necessarily warranted facility. For these reasons requirement of alteration in a building to create parking space can be termed as a bonafide requirement under clause (c) of Section 14(3) of the Act. Thus eviction petition in present case under Section 14(3)(c) of the Act is maintainable.
19. Provisions of Section 14(3)(d) of the Act is not attracted in present case, wherein a right has been conferred upon the landlord to evict tenant if he requires the premises for use it as an office or consulting room by his son or daughter, who intends to start practice as a lawyer, an architect, a dentist, an engineer, a veterinary surgeon or a medical practitioner, including a practitioner of Ayurvedic Unani or Homeopathic System of Medicine or for the residence of his son or daughter who is married and not occupying any other building for such use. Eviction petition in present case has not been filed on such ground. Therefore, date of enactment of amendment in this clause is of no consequence in present case.
20. Section 14(3)(c) of the Act provides causes for getting any building or rented land vacated for different purposes, such as (i) if landlord requires it to carry out any building work at the instance of Government or any local authority or any Improvement Trust under some improvement or development scheme; (ii) if it has become unsafe or unfit for human habitation; (iii) it is required bonafidely by landlord for carrying repairs, which cannot be carried out without the building or rented land being vacated; or
(iv) that the building or rented land is required bonafide by landlord for the purpose of building or re-building or making thereto any substantial additions ::: Downloaded on - 19/12/2019 20:25:16 :::HCHP 10 .
or alterations and that such building or rebuilding or additions or alterations cannot be carried out without the building or rented land being vacated.
21. In present case, being compelled on account of policy of .
Government to have parking space as a pre-condition for registration of new vehicle in Shimla City, it is covered under the purpose narrated in ground (i) and further even if it is considered that there is no specific scheme available on record, then also it is covered under cause (iv), referred supra, which provides that the building required bonafide by landlord for the purpose of building or re-building or making thereto any substantial addition or alteration, can be got vacated, if such building or re-building or addition or alteration cannot be carried out without building or rented land being vacated and for such ground, the landlord is not required to show and prove that building is in dilapidated condition or that it is unfit and unsafe for human habitation or that the work is required to be carried out at the instance of Government or local authority or any Improvement Trust under some improvement or development scheme. This High Court in Krishan Kumar Vs. Jagjit Kaur, reported in Latest HLJ 2010 (HP) 220 has held that in such a situation the landlord is not required to show the condition of building and prove that it has become dilapidated, unfit and unsafe for human habitation and the landlord has to only show that his requirement is bonafide and that such building or re-building or addition or alteration cannot be carried out without building has been vacated (also see Inder Pal Thakur Vs. Hukam Chand and another, 1997(3) Sim. L. C. 358 and Gulzari Lal Jaggi Vs. Smt. Kamlesh Kumari and others, Civil Revision No. 338/98, decided on 24.4.1999). In present case there is sufficient material on record to show that landlord/landlady and/or their family owns vehicles and there is no appropriate place/parking available with him/her to park these vehicles.
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22. After death of landlord Anant Ram, his wife has been substituted as landlord/landlady in his place. Section 2(d) of the Act defines that "landlord" means any person for the time being entitled to receive rent in .
respect of any building or rented land whether on his own account or on behalf, or for the benefit, of any other person, or as a trustee, guardian, receiver, executor or administrator for any other person, and includes a tenant who sublets any building or rented land in the manner hereinafter authorized, a specified landlord, and every person from time to time deriving title under a landlord. Wife being a Class-1 legal heir is definitely a person who is entitled to receive rent in respect of building earlier owned by her husband. She is entitled to pursue the eviction petition after death of her husband either singly or jointly with other persons claiming status of landlord, unless her status is disputed by someone else, including any other persons claiming himself to be landlord or by the tenant. In present case wife of landlord was substituted in his place after his death during pendency of petition before the Rent Controller and such substitution or her status as landlady was never disputed by tenant, rather her status stands admitted by him as in reply to the application filed for substitution of deceased landlord, it was contended that she was not only legal heir of deceased landlord, which means that she was admitted to be one of legal heirs of landlord. But it is also a fact that no other person has come forward to claim himself to be legal heir of deceased landlord in addition to his wife and tenant has also not brought on record any other material so as to establish that she is not only person who is entitled to be substituted in place of landlord. Therefore, on this issue also plea of tenant is not sustainable.
23. This High Court in Jagat Ram Chauhan Vs. Smt. Avinash Partap and another reported in Latest HLJ 2014 (HP) 420, after considering various pronouncements of the Apex Court, has held that landlord is the best judge of his residential requirement and the suitability of ::: Downloaded on - 19/12/2019 20:25:16 :::HCHP 12 .
the alternative premises has to be determined on the basis of convenience of the landlord and the members of his family and also considering totality of circumstances, law does not demand that the landlord be prevented from .
living in comfort in his own house and be forced to live in inadequate premises in order that tenant's occupancy of tenanted premises be protected and it further held that the landlord can chose either or any of two or more tenanted premises and the choice of landlord is not to be questioned by tenant once the landlord proves his bona fides to the objective to the satisfaction of the Court on facts and the choice of accommodation which would satisfy his requirement should be left to landlord's subjective choice and the Court cannot impose its own choice upon him. It is further held that the terms "his own occupation" for his "own use" and "for occupation of himself" are not be assigned a narrow meaning and these phrases include requirements of members of family of landlord and those dependent upon him and also that in such eventuality building permission is not condition precedent when the landlord is seeking eviction of the tenant in order to make any repairs, which cannot be carried out without the eviction of tenant. I am also in agreement with judgment of Punjab and Haryana High Court pronounced in Vijay Kumar Vs. Rajeev Kumar Murria reported in 2012(1) Civil Court Cases 428 (P&H), wherein it is held that landlord is the best judge of his need and tenant cannot dictate terms with regard to suitability of the accommodation.
24. The Apex Court in Hari Dass Sharma Vs. Vikas Sood and Others reported in (2013) 5 SCC 243 has held that availability of building plan, duly sanctioned by local authorities, is not an ingredient of Section 14(3)(c) of the Act and therefore, it cannot be a condition precedent to the entitlement of the landlord for eviction of tenant, but depending upon the facts and circumstances of each case, the Court may look into the ::: Downloaded on - 19/12/2019 20:25:16 :::HCHP 13 .
availability of sanction plan duly sanctioned by the local Authorities for the purpose of determining the bona fides of the landlord.
25. The Apex Court, in its recent judgment in case D. Sasi Kumar .
Vs. Soundrarajan reported in (2019) 9 SCC 282, wherein overruling the conclusion of the High Court that bonafide occupation as sought should be not only on the date of the petition but it should continue to be there on the date of final adjudication of rights, has held that when it cannot be lost sight that the very judicial process consumes a long period and because of the delay in the process if the benefit is declined it would only encourage the tenants to protract the litigation so as to defeat the right and further that if as on the date of filing petition the requirement subsists and it is proved, the same would be sufficient irrespective of the time lapse in the judicial process coming to an end. Referring its previous pronouncement in Gaya Prasad Vs. Pradeep Srivastava (2001) 2 SCC 604, it is reiterated by the Apex Court that landlord should not be penalized for the slowness of the legal system and the crucial date for deciding the bona fide requirement of landlord is the date of application for eviction.
26. In the facts and circumstances of the present case, coupled with the ratio of law laid down in the judgments referred supra, plea of tenant that there are other three tenants on the ground floor, but no eviction petitions have been filed against them and one shop is in occupation of landlord and that landlord is not having any permission or plan sanctioned from the Municipal Corporation for making additions and alterations and that on vacation of another premises, the same has already been converted into car parking by the landlord, are not sustainable. Wife of landlord, after death of her husband, can seek eviction, not only for her necessity, but for necessity of her other family members.
27. Non-production of Registration Certificate of vehicle is also of no consequence, as in the reply filed by the tenant himself, he has admitted ::: Downloaded on - 19/12/2019 20:25:16 :::HCHP 14 .
that the landlord is owner in possession of vehicle, which was being parked by him on the road side and further in application filed under Order 26 Rule 9 C.P.C. also he has admitted that family of landlord owns and possesses .
vehicles.
28. So far as mention of two rooms set, instead of one room set, in the decree of eviction passed by Courts below is concerned, the same is of no consequence, as tenant as well as landlord was having the identification and knowledge of the premises in respect of which eviction petition has been preferred by the landlord.
r The identify of premises never remains in dispute, therefore, such ministerial mistake is also of no help for the tenant.
29. In present case, bona fide requirement as claimed by landlord stands established. Once the landlord has established his bonafide requirement in terms of Section 14(3)(c) of the Act, the tenant has no right to stall the eviction process on the ground that he his earning his livelihood from the premises in question and that on eviction, it would be difficult for him to maintain his family and to earn his livelihood.
30. Though tenant has taken a ground that eviction petition has been filed only to pressurize him to increase the rent, but nothing material has been brought on record to substantiate the said plea, rather it has come on record in the pleadings as well as deposition of tenant that landlord owns a vehicle, which was being parked by him in open. No concrete material, except bald statement of tenant, has been placed on record to establish that building, re-building, additions or alterations, proposed to be carried out in the premises is possible without the same being vacated by the tenant.
31. Appellate Authority in terms of proviso to Section 14(3)(c) of the Act has granted right to re-entry to tenant, however, appellate Authority has failed to take notice that substantial additions and alterations proposed to be carried out in the premises will change the user of the premises, sought to be vacated by the landlord and it will be no more available for ::: Downloaded on - 19/12/2019 20:25:16 :::HCHP 15 .
using by the family of tenant for residence or his business, as after alterations it shall be a parking space of the landlord. Therefore, I find that right to re-entry granted to the tenant is not possible after substantial .
additions proposed to be made in the building. It is also relevant to notice that under clause (c) of Section 14(3) of the Act, a landlord has been provided a right for eviction for 'building' or 'rebuilding' or making thereto 'any substantial additions' or 'alterations'. These are four different situations. An act of 'building' generally will be on vacant land, rebuilding will be after demolishing the building already in existence and substantive additions and alterations can certainly never be said to be 'rebuilding' but it will be change(s) in existing building or addition thereto according to necessity and suitability. In proviso right to re-entry has been conferred upon tenant to the premises in rebuilt building. This right will be available in case of re-building only but not in case of 'building' 'additions' or 'alterations' which changes the entire scenario on the spot. 'Building' activity will be upon vacant land vacated by tenant and after raising building thereon there is no question of providing area to tenant in it equivalent to area of land in his possession prior to building as there will be no such land available for re- entry and in fact it would not be re-entry but entry in newly constructed building. Similarly 'substantial additions and/or alterations' will also change the premises according to bonafide requirement for which eviction is ordered and in such eventuality it may not be possible to allow re-entry as this clause provide eviction for substantive addition or alteration but not for addition and alteration simplicitor and that is why legislature has provided re-entry only in case of rebuilt building. The proviso granting right to re-entry will not be applicable in present case, rather it is applicable in those cases where re- building is carried out in such a manner that user of the premises after re- building remains the same and it can be used for the same purpose. However, in present case, the premises is required bonafide altogether for a ::: Downloaded on - 19/12/2019 20:25:16 :::HCHP 16 .
different purposes and after substantiate additions/alterations in the same for the said purpose, it would not be available for the purpose for which it was being used earlier. Therefore, right to re-entry granted by Appellate .
Authority is patently wrong, illegal and contrary to statutory provisions and thus is not sustainable and accordingly, it is quashed and set aside.
32. It is made clear that in case landlord/landlady does not convert the premises in question into parking and/or and continues to use it as it is being used at present, then definitely the tenant would have right to re-entry in the same and further even if after addition/alteration of the building, the premises in question is not converted into parking and is kept or used for letting out residence or non-residence/commercial as it is being used at present, the tenant will have right to re-entry as referred supra to the premises so available after additions or alterations in the building. If landlord fails to make alterations so as to convert the premises in question to parking space within reasonable period, extendable up to one year, the tenant shall have right of re-entry in the premises vacated by him. 33 The Apex Court in M/s Atma Ram Properties (P) Ltd. Vs. M/s Feederal Motors Pvt. Ltd., reported in 2005(1) Civil Court Cases 454 (SC), has observed that the Court can reasonably compensate the decree holder for loss of accommodation by delay in execution of decree by grant of stay in the eviction of appellant/petitioner, in the event of appeal being dismissed, the tenant is liable to pay mesne profit or compensation for use and accommodation of the premises from the date of decree of eviction at the same rate at which the landlord would have been able to let out the premises on being vacated by tenant and while determining the quantum of such amount, the landlord is not bound by contractual rate of rent, which was being prevalent prior to the date of decree.
34. In present case, during pendency of present petition, landlord has filed an application for granting use and occupation charges at the rate ::: Downloaded on - 19/12/2019 20:25:16 :::HCHP 17 .
of `10,000/- per month for occupying the premises in question by the petitioner/tenant. In this application, it is stated that tenant has not paid arrears of rent from last many years, that too at the rate of `1400/- per .
month. This application was filed on 6th July, 2015 and in it, it is not made clear that since when tenant is in arrears of rent. Landlady has also placed on record certain documents/orders of the Court to substantiate her claim for `10,000/- per month.
35. In reply to this application, it is claimed by tenant that he is paying rent of `1400/- per month regularly, which is already higher to the rent prevalent in the area, regularly and he has placed on record certain receipts of sending money orders to landlord/landlady and he has also placed on record an affidavit of one shopkeeper, claiming that rate of rent in vicinity is `1,000/- per month.
36. Aforesaid rival contentions of the parties require consideration and dispute qua quantum of mesne profit between them deserves to be determined and resolved by leading proper evidence to substantiate their respective claims. Therefore, in this revision petition, for want of evidence, without determining quantum of mesne profit, tenant is directed to pay use and occupation charges @ `1400/- per month till 28.02.2020 or date of vacation of premises as, in any case, the tenant is liable to pay at least `1400/- per month for occupying the premises in question. Therefore, he is directed to pay the same on or before 31.01.2020 and to clear the arrears before vacating the premises and in case tenant fails to vacate the premises on or before 28.02.2020, and/or also to pay use and occupation charges as directed hereinbefore, then the tenant shall be liable to pay use and occupation charges @ `7000/- w.e.f. 01.04.2015 till date of vacation of premises and landlord/landlady shall have right to initiate proceedings for its recovery in accordance with law.
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37. Petitioner/tenant is directed to vacate the premises on or before 28.02.2020, failing which landlord/landlady shall be at liberty to adopt appropriate course, available under law, for getting the premises vacated.
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Petition is disposed of in aforesaid terms alongwith pending application(s), if any.
(Vivek Singh Thakur),
December 13, 2019 Judge.
(Keshav)
r to
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