Punjab-Haryana High Court
M/S Oberoi Timber Traders vs Narbir Singh Etc on 7 April, 2015
CM No. 10317-CII of 2009 in/and
CR No. 1258 of 2009 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CM No. 10317-CII of 2009 in/and
CR No. 1258 of 2009
M/s Oberoi Timber Traders Vs. Narbir Singh and another
****
1. Whether Reporters of the local papers may be allowed to
see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the digest?
Present: Mr. M.L. Sarin, Senior Advocate with
Ms. Himani Sarin, Advocate
for the petitioner.
Mr. Arun Jain, Senior Advocate with
Mr. Chetan Slathia, Advocate
for the respondents.
****
R.P. NAGRATH, J.
Civil Revision (CR) No. 1258 of 2009 under Section 15 (6) of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short to be referred to as the '1973 Act') against the order of eviction passed by the Rent Controller and affirmed by the Appellate Authority, filed at the instance of tenant, is pending in this Court. The revision was admitted on 06.03.2009 and stay against dispossession was granted.
2. Prayer in the instant application was made by the landlords for vacation of interim stay granted by this Court on 06.03.2009 or for directing the tenant to pay mesne profits for use and occupation of the tenanted premises. It was stated that both JITENDER KUMAR 2015.04.20 10:07 I attest to the accuracy and authenticity of this document Chandigarh CM No. 10317-CII of 2009 in/and CR No. 1258 of 2009 -2- the authorities below have concurrently found that the petitioner- tenant is liable to be ejected on the ground of personal necessity. The market rate of such like premises was not less than ` 45/- per sq. ft. The applicant-landlords relied upon four lease deeds of different properties in the same area (Annexure R-1 to Annexure R-4), for the years 2009, 2008 and 2006 etc., stating that the minimum lease amount as per these documents is ` 30/- per sq. ft. It was further averred that vide communication (Annexure R-5) even the Municipal Corporation, Faridabad has fixed the annual rental value of the premises for the purposes of house tax at ` 4,95,689/- (though, in the application the same was described as ` 5,50,765/-). According to this calculation, the annual rent of the premises which is comprising of an area 440 sq. yards is more than ` 40,000/- per month. The prayer was thus made for fixing the mesne profits according to the aforesaid documents.
3. In the reply dated 17.05.2009/13.07.2009, it was stated that the properties covered under the lease agreements relied upon by the applicants cannot be compared with the demised premisses. Those properties are stated to be falling within 30 meters of the national highway and instances relied upon by the applicant-landlords are within the 'Lal Dora' and situated on the main Mathura road. It was further contended that unregistered lease deeds cannot form the basis of determination. It was further stated that three lease deeds i.e. Annexures R-1, R-2 and R-4 are JITENDER KUMAR 2015.04.20 10:07 I attest to the accuracy and authenticity of this document Chandigarh CM No. 10317-CII of 2009 in/and CR No. 1258 of 2009 -3- relating to the property belonging to the same family. With regard to lease deed (Annexure R-3) dated 25.11.2006, it is stated that this relates to commercial building called Crown Plaza, which is fully air-conditioned shopping mall for which CLU was granted in the year 1999. The photographs showing the aforesaid shopping mall (Crown Plaza) is Annexure A-6. The petitioner-tenant has also relied upon Annexure A-7 which shows the condition of the disputed land and therefore, it was the contention of the petitioner- tenant that the location and potentiality of those properties are poles apart and there cannot be any such parity.
4. I have heard learned senior counsel for the applicant- landlords and learned senior counsel for the petitioner-tenant and carefully perused the paper-book and records.
5. Learned senior counsel for the petitioner-tenant, vehemently, opposed the prayer for mesne profits at this stage on the ground that the main revision was on the regular board of this Court and when the matter was listed on 19.11.2014, and rest of the miscellaneous applications were adjourned, the main revision was also to be listed for 17.12.2014. Learned senior counsel submitted that he was prepared with the arguments in the main case and therefore, the plea for interim relief may not be permissible.
6. In support of the above contention, the learned senior counsel relied upon observation of this Court in Rajinder Singh @ JITENDER KUMAR 2015.04.20 10:07 I attest to the accuracy and authenticity of this document Chandigarh CM No. 10317-CII of 2009 in/and CR No. 1258 of 2009 -4- Rajan vs. Sardari Lal and others, 2013 (1) RCR (Rent) 376 that principle of law laid down by Hon'ble Supreme Court in B.P. Achala Anand vs. Appi Reddy and another, 2005 (1) RCR (Rent) 286, providing for payment of sum determined by the Court which is fair and equitable under the market conditions, as provisional direction at the interlocutory stage and is not to be understood as a legal imperative in all cases even when the case has been finally disposed of. This Court further observed as under:-
"......With no uncertainty between the date of disposal of the case and when the Court disposes of the application for stay at the interlocutory stage, it would be possible to apply the Supreme Court dispensation. If the landlord, on filing the application for direction for payment of the higher amount as mesne profit, has not obtained consideration of the Court at the interlocutory stage itself, I find no reason to give any such direction now at the conclusion of hearing. It shall be always open to the landlord to secure what is legal and just if the rent which is being paid by the tenant is grossly low or less than what is payable as fair rent. I will not, therefore, find any reason to give a direction for payment of sum more than what is contracted between the parties so far. Any payment of fair rent shall be JITENDER KUMAR 2015.04.20 10:07 I attest to the accuracy and authenticity of this document Chandigarh CM No. 10317-CII of 2009 in/and CR No. 1258 of 2009 -5- only in the manner contemplated under the relevant provisions of the Act and the commencement of liability for such payment will also be dictated by the statutory terms in that regard."
7. The above observations of this Court would not be a complete bar to disposal of the instant application because in Rajinder Singh's case (supra) the eviction order was passed on account of non-payment of the rent by the tenant for a particular period. This Court observed that opportunity was supposed to be granted to the tenant for making payment of the outstanding amount as per principle laid down by Hon'ble Supreme Court in Rakesh Wadhawan and others vs. Jagdamba Industrial Corporation and others, 2002 (5) SCC 440. This Court ultimately held that the outstanding amount of arrears including the interest shall be paid by demand draft in the name of legal representatives of the landlords before 30.11.2012. It was further observed that if the amount is so paid then order of eviction shall stand set aside. If the amount is not paid in the manner as directed, the order of eviction shall be carried out to its logical end and the landlords will be at liberty to execute the same.
8. Present is a case where eviction was ordered by the authorities below on the ground of bonafide personal need of the applicant-landlords. It is also pertinent to mention that there is an application filed by the petitioner-tenant for bringing on record JITENDER KUMAR 2015.04.20 10:07 I attest to the accuracy and authenticity of this document Chandigarh CM No. 10317-CII of 2009 in/and CR No. 1258 of 2009 -6- additional facts by filing CM No. 18742-CII of 2009 under Order XLI Rule 27 and Section 151 of the Code of Civil Procedure (CPC) in the nature of eviction order passed in favour of the applicant- landlords against some other tenant. That matter also needs to be heard alongwith main case.
9. It was, however, submitted that the instant application was earlier heard by this Court on 08.12.2009 but the application was still to be disposed of. From the above circumstances, it is really not the fault of the applicant-landlords if his prayer for mesne profits has remained pending since the year 2009. The applicant- landlords are rather entitled to get adjudication on the instant application especially when a similar prayer of another tenant under the applicant has been decided upto the Hon'ble Supreme Court.
10. Hon'ble Supreme Court held in M/s Atma Ram Properties (P) Ltd. vs. M/s Federal Motors Pvt. Ltd., 2005 (1) RCR (Civil) 212 that in case of premises governed by the Rent Control Act, in view of the definition of the term '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 landlords would have been able to let out the JITENDER KUMAR 2015.04.20 10:07 I attest to the accuracy and authenticity of this document Chandigarh CM No. 10317-CII of 2009 in/and CR No. 1258 of 2009 -7- premises and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree. It was further held that 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.
11. In Atma Ram's case (supra), the premises was rented out to the tenant in 1944 @ ` 371.90 p. per month. Hon'ble Supreme Court held that the Rent Control Tribunal was right in putting the tenant on term of payment of ` 15,000/- per month as charges for use and occupation during the pendency of appeal.
12. Another judgment relied upon by senior counsel for the applicant-landlords is State of Maharashtra and another vs. M/s Super Max International Pvt. Ltd. and others, 2009 (2) RCR
246. That was a case in which the Government of Maharashtra was a tenant and in occupation of the demised premises on a monthly rent of ` 5236.58 p. besides water charges at the rate of ` 515.35 p. per month since 1966. In the revision filed against the eviction Bombay High Court stayed execution of the decree by order dated 14.10.2008 subject to the appellant i.e. Government of Maharashtra depositing an amount of ` 5,40,000/- every month commencing from the date of the decree passed by the trial court. That order was upheld by the Hon'ble Supreme Court. It was JITENDER KUMAR 2015.04.20 10:07 I attest to the accuracy and authenticity of this document Chandigarh CM No. 10317-CII of 2009 in/and CR No. 1258 of 2009 -8- observed as under:-
"44. With the perspective thus adjusted all the submissions made by Mr. Lalit on behalf of the appellant have a simple answer. The interim order of the High Court asking the appellant to deposit ` 5,40,000/- from the date of the decree as condition for stay of the execution of the decree of ejectment has to be seen as one single package. The appellant may or may not accept the order as a whole. But it is not open to it to accept the order in so far as it stays the execution of the decree and to question the condition attached to it. In an appeal or revision, stay of execution of the decree(s) passed by the court(s) below cannot be asked for as of right. While admitting the appeal or revision, it is perfectly open to the court, to decline to grant any stay or to grant stay subject to some reasonable condition. In case stay is not granted or in case the order of stay remains inoperative for failure to satisfy the condition subject to which it is granted, the tenant-in-revision will not have the protection of any of the provisions under the Rent Act relied upon by Mr. Lalit and in all JITENDER KUMAR 2015.04.20 10:07 I attest to the accuracy and authenticity of this document Chandigarh CM No. 10317-CII of 2009 in/and CR No. 1258 of 2009 -9- likelihood would be evicted before the revision is finally decided. In the event the revision is allowed later on, the tenant's remedy would be only by way of restitution."
13. Learned senior counsel for the petitioner-tenant, however, referred to the observations of Hon'ble Supreme Court in M/s Super Max International's case (supra) that in fixing the amount subject to payment of which the execution of the order/ decree is stayed, the Court would exercise restraint and would not fix any excessive, fanciful or punitive amount. There cannot be any quarrel with the proposition of law raised by learned senior counsel.
14. The applicant-landlords moved an application No. 24251-CII of 2014 for disposal of the application No. 13409-CII of 2010 for determining the mesne profits and to rely upon the order dated 15.09.2014 passed by Hon'ble Supreme Court, fixing the mesne profits of the adjoining rented land occupied by another tenant M/s R.K. Traders under the applicant-landlords. Hon'ble Supreme Court vide order dated 15.09.2014 (Annexure R-1) allowed the appeal of the landlords and determined the mesne profits @ ` 30,000/- per month instead of ` 10,000/- as mesne profits determined by this Court in the said case. In this application, it was stated categorically that the premises in question is similar and adjacent to the premises of M/s R.K. JITENDER KUMAR 2015.04.20 10:07 I attest to the accuracy and authenticity of this document Chandigarh CM No. 10317-CII of 2009 in/and CR No. 1258 of 2009 -10- Traders in which mesne profits @ ` 30,000/- was fixed by the Hon'ble Supreme Court. If that be the situation, I do not think that there is any need to look to the other lease deed for determining mesne profits.
15. It was contended by learned senior counsel for the petitioner-tenant that there is nothing on record for suggesting that the area of rented property in both the cases is equal. In the record of the Rent Controller, the site plan of the property for which eviction petition was filed, is attached and area of the property of M/s R.K. Traders is almost similar to the area of property of petitioner-tenant (M/s Oberoi Timber Traders). This property is also abutting Delhi-Mathura road as per site plan. Moreover, in reply to CM No. 24251-CII of 2014, the petitioner-tenant has not denied the allegation that the premises in question is similar to the adjacent premises of M/s R.K. Traders.
16. The basic challenge to the reliance on Annexure R-1, the order of Hon'ble Supreme Court was that the same was passed ex parte as the tenant did not contest the landlords' appeal for enhancement of mesne profits. The perusal of the order (Annexure R-1) would show that notice was served by Hon'ble Supreme Court to M/s R.K. Traders but M/s R.K. Traders did not appear to contest the application. The decision of Hon'ble Supreme Court on the application whether by contest or ex parte would have the same force. It was not shown that any review JITENDER KUMAR 2015.04.20 10:07 I attest to the accuracy and authenticity of this document Chandigarh CM No. 10317-CII of 2009 in/and CR No. 1258 of 2009 -11- application was filed before Hon'ble Supreme Court or that said order was subsequently modified. Hon'ble Supreme Court observed in the order (Annexure R-1) that notice was issued to the the respondent but despite service the respondent did not appear nor disputed the facts stated by the landlords.
17. Annexure A-13 is rent agreement between Pardeep Sood son of late O.P. Sood and Bharat Bhushan Sharma son of Lajpat Rai Sharma, tenants inducted in the premies situated at 18/1 Mathura Road, Faridabad @ ` 8000/- per month w.e.f. 01.06.2014. Annexure A-14 is also a rent agreement in favour of Rati Ram in respect of storage godown at 18/1, Mathura Road, Faridabad let out @ ` 6500/- per month. These documents relied upon by the tenant-petitioner cannot be of much significance because the area of the leased property is not mentioned in both these two documents.
18. The applicant-landlords have also tried to justify the claim for the higher mesne profits on the basis of determination of rent per square feet as per various lease deeds (Annexures R-1 to R-4).
19. The property in question is rented land which is located in Faridabad and was given on rent to the petitioner-tenant in the year 1974 @ ` 300/- per month. Faridabad is an industrial town which is highly commercial. With the passage of about 35 years upto the year 2009 when the Appellate Authority decided the JITENDER KUMAR 2015.04.20 10:07 I attest to the accuracy and authenticity of this document Chandigarh CM No. 10317-CII of 2009 in/and CR No. 1258 of 2009 -12- appeal, it can be assumed that there is huge increase in the rental value of commercial properties. The rented land in question was given to the petitioner for running timber business.
20. In view of the above discussion, I allow the instant application and determine the mesne profits @ ` 30,000/- per month to take effect from the date of filing the instant revision. The petitioner is granted three months time from receipt of certified copy of this order to deposit the entire amount with the Rent Controller, who will put the same in a fixed deposit in a nationalized bank to be paid to the party found entitled thereto at the conclusion of the matter. It is made clear that in case the amount is not deposited within three months from today, the stay operating in the instant revision would stand automatically vacated without any reference to this Court. For the future months, the petitioner would deposit the amount by 7th of each subsequent month. The Rent Controller is directed to deposit the said periodic payments in a recurring deposit.
CR No. 1258 of 2009
List as per roster.
April 07, 2015 ( R.P. NAGRATH )
jk JUDGE
JITENDER KUMAR
2015.04.20 10:07
I attest to the accuracy and
authenticity of this document
Chandigarh