Gujarat High Court
Pankajbhai Murabhai Dhoria vs Shantilal Vallabhdas Jogia-Decd & Ors on 11 February, 2014
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SA/171/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 171 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY
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1 Whether Reporters of Local Papers may be allowed to seeYES
the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law asNO
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO
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PANKAJBHAI MURABHAI DHORIA ....Appellant
Versus
SHANTILAL VALLABHDAS JOGIA-DECD & ORS. .....Respondents
===============================================================
Appearance:
MR S.P.MAJMUDAR, ADVOCATE for the Appellant
MR MEHUL S. SHAH, ADVOCATE for the Respondents
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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 11/02/2014
ORAL JUDGMENT
1. Challenge in this Second Appeal is made to the Page 1 of 22 C/SA/171/2013 JUDGMENT concurrent findings of both the Courts below, and is directed against the judgment and decree passed by the Appellate Court below i.e. the 2nd Additional District Judge, Jamnagar, at Khambhalia in Regular Civil Appeal No.81 of 2010, dated 20.07.2013, by which the common judgment and decree passed by the Trial Court i.e. the Principal Civil Judge, Dwarka, in Regular Civil Suit No.41 of 2003 and Regular Civil Suit No.61 of 2002, dated 04.08.2010, is confirmed. The Trial Court has, inter-alia, directed the present appellant to handover the peaceful and vacant possession of the suit premises to the owner - the present respondents.
2.1 The relevant facts, as emerging from record, are as under.
2.2 The present respondents are the legal heirs of one Shantilal Vallabhdas Jogia, who was the owner of the suit property, which is a self-contained residential premises in a compound, consisting of two rooms, kitchen, toilet, bathroom, varandah, borewell etc. The said property is situated at Gayatrinagar, Village-Arambhada, Taluka-Dwarka, District- Jamnagar.
2.3 The said owner had, by a written agreement dated 29.07.2002 (Exhibit-34), permitted the present appellant to use the said premises, for a period of eleven months with effect from 01.08.2002, against payment of Rs.800/- per month. The said agreement, inter alia contained conditions to the effect that, the said agreement was for eleven months only, and further that even before expiry of eleven months, the owner would be free to ask for possession of the said premises, Page 2 of 22 C/SA/171/2013 JUDGMENT by giving one month notice. It was categorically provided in the said agreement that, on expiry of the period of eleven months, the present appellant would handover peaceful vacant possession of the said premises, to its owner.
2.4 Pursuant to the above agreement, the present appellant had entered in the suit premises on 01.08.2002. There is no dispute with regard to the existence, contents or the binding force of the said document (Exhibit-34). There is no renewal of the said agreement either.
2.5 During the currency of those eleven months, the owner wanted back the possession of the said property, and in consonance with the stipulation of the said agreement, the owner issued notice to the appellant on 23.08.2002. As per the said notice, on expiry of one month from that day i.e. by 23.09.2002, possession was required to be handed over by the present appellant to the owner. However, in September 2002 itself, the present appellant moved the Civil Court by filing Regular Civil Suit No.61 of 2002 praying that, he be not evicted from the suit premises except in accordance with due process of law. On application Exh.5, protection was granted by the Trial Court. Suit remained pending.
2.6 Thus the owner of the property could not get back the possession of the suit premises, pursuant to the notice dated 23.08.2002, principally on the ground that, in September, 2002, the lease period of eleven months had not expired, and the present appellant had right to occupy the suit premises to its full term of eleven months. The said agreement outlived its life of eleven months on 30.06.2003.
Page 3 of 22C/SA/171/2013 JUDGMENT 2.7 In above circumstances, the Regular Civil Suit No.61 of
2002 filed by the present appellant, in effect, got decreed without any adjudication, because of its very pendency till 30.06.2003. The appellant occupier should have handed over the possession of the suit premises atleast on 01.07.2003, which he did not do. The appellant had not even paid for last three months, of total eleven months.
2.8 In these circumstances, the owner- the present respondent moved the Civil Court by instituting Regular Civil Suit No.41 of 2003 for getting possession of the suit premises. Since the appellant had not even paid for last three months, out of total eleven months, the owner also claimed the said amount in the suit. It is also claimed that, he be compensated by mesne profit until the present appellant hands over peaceful and vacant possession of the suit premises.
2.9 Both the suits were tried together. As noted above, there was nothing left to be tried after 30.06.2003, so far Regular Civil Suit No.61 of 2002 was concerned. Therefore, the Trial Court referred to the owner i.e. the plaintiff of Regular Civil Suit No.41 of 2003 as the plaintiff and the present appellant as the defendant, though he was plaintiff of Regular Civil Suit No.61 of 2002.
2.10 In above factual background, the legal heirs of the owner, even after succeeding before both the Courts below, are still struggling to get back the possession of their own property. The irony is that, the suit premises which was leased for eleven months, is with the appellant, even after more than Page 4 of 22 C/SA/171/2013 JUDGMENT eleven years and he has not paid even a rupee to the owner of the property during this period. It is in this factual background, that the present Second Appeal is being considered by this Court.
3. Heard Mr.Shakti S. Jadeja for Mr.S.P.Majmudar, learned advocate for the appellant and Mr.Mehul S. Shah, learned advocate for the respondents.
4.1 Learned advocate for the appellant has submitted that, two substantial questions of law arise for consideration of this Court. Firstly, the suit filed by the owner, in the Civil Court was not maintainable and that he ought to have moved the Special Court under the Rent Control Act.
4.2 The second question of law, as perceived by the appellant is that, the procedure contemplated in Order XX, Rule 5 of the Code of Civil Procedure is not followed by the Trial Court. It is submitted that on these two questions of law, this appeal be entertained.
5.1 On the other hand, learned advocate for the respondents
- owner of the property has submitted that, so far the maintainability of the suit on the ground of not moving the Rent Court is concerned, it is misconceived, since the Rent Control Act is not applicable in the facts of this case, in view of Section 4(1A)(b) of The Bombay Rents, Hotel and Lodging House Rates Control (Gujarat Amendment) Act, 2001. With regard to the second contention pertaining to non-observance of the procedure by the Trial Court as contemplated under Order XX, Rule 5 of the Code, it is submitted that, the issues Page 5 of 22 C/SA/171/2013 JUDGMENT were framed, and the decision on each issue is separately recorded by the Trial Court, and since the issues were interwoven, the discussion was made together, which in no way can be termed as any procedural laps. It is submitted that, no question of law arises for consideration of this Court, and this Second Appeal be dismissed.
5.2 It is additionally submitted by learned advocate for the respondent that, since the present appellant had, even before the Appellate Court below filed only one appeal, though he had lost in both the Civil Suits, his appeal was not maintainable and even this Appeal would thus, be not maintainable. In support of this submission, learned advocate for the respondent owner has relied on the decision of the Division Bench of this Court in the case of Darayas Bamanshah Medhora versus Nariman Bamansha Medhora reported in 2002(1) GLR 474.
5.3 Learned advocate for the respondent owner has submitted that, the appellant is not residing in the suit premises and he is not handing over the possession either, and the present litigation is used by him only as an arm-twisting tactic, so that one day, the owner gets tired and he can get huge amount from the owner.
5.4 Learned advocate for the respondent has further submitted that, since the peaceful and vacant possession of the suit premises is not handed over by the present appellant to the owner- present respondents, the respondent is also entitled for appropriate compensation for all these years. It is submitted that, in this very suit, the present respondent, who is original plaintiff, has already prayed for mesne profit until Page 6 of 22 C/SA/171/2013 JUDGMENT the defendant- the present appellant gives back the peaceful and vacant possession of the suit premises. It is further submitted that even cost be imposed.
6. Learned advocate for the appellant, in rejoinder has submitted that, in the present Appeal, the appellant cannot be directed to make any payment to the respondent and therefore, even if this Appeal is not entertained, the present appellant cannot further be directed to make payment to the respondent- the owner - the original plaintiff. It is submitted that, no cost be awarded. It is submitted that, submissions recorded in this para are his alternative submissions, and they are without prejudice to his contention that this appeal deserves consideration by this Court.
7.1 Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds that, so far the first question of law, as put forward on behalf of the appellant, that the owner of the property was before the wrong forum and therefore the suit was not maintainable, is not only not well founded, but it is frivolous, for more than one reasons. Firstly, Sec.4(1A)(b), as amended by the Bombay Rents, Hotel and Lodging House Rates Control (Gujarat Amendment) Act, 2001, reads as under.
"Sec.4(1A) : This Act shall not apply to -
(a) xxx xxx xxx
(b) - any existing premise which is self-occupied by the owner or vacant on or after the commencement of the Page 7 of 22 C/SA/171/2013 JUDGMENT amending Act, and is let after such commencement [for a period of ten years from the date of the commencement of the amending Act.] [the bracketed portion above is deleted by the Amendment Act, 2011.] 7.2 It is not in dispute that the agreement in question Exh.34 is dated 29.07.2002 and it was effective for eleven months from 01.08.2002. In view of above, the Rent Control Act did not have any applicability and therefore, it can not be said that the owner was before a wrong forum.
7.3 There is an additional factor against the appellant in this regard. The Trial Court has adjudicated both the suits together. Though not well-founded, but it is atleast the assertion of the appellant that he was a tenant. If he was right, atleast he should have approached the Rent Court, which he has not. Even he had also approached the Civil Court. The owner of the property had also approached the same Court, where the present appellant had gone. Under these circumstances, to contend that the owner of the property had moved the wrong forum, and that, it is a substantial question of law, is not only ill-founded, but frivolous submission made by an unauthorised occupant of the suit premises for more than eleven years, who had no authority to occupy it for more than eleven months, even if the right of the owner of getting back the possession even prior to eleven months is not gone into. This contention is therefore rejected as a frivolous contention. Be it noted that, the suit property is situated within the territorial jurisdiction of the Civil Court, Dwarka, this contention was not pressed into service before the Trial Court and rightly so, since that would Page 8 of 22 C/SA/171/2013 JUDGMENT not have changed the complexion of the matter.
8.1 Coming to the next contention, with regard to non- observance of the procedure by the Trial Court as contemplated under Order XX, Rule 5 of the Code, this Court finds that, as many as fourteen issues were framed by the Trial Court, including three issues as pressed for by the defendant - the present appellant, which are quoted here below, and the decision on each issue is separately recorded by it.
1. Whether the plaintiff proves that, he is the owner of the suit property ?
[In affirmative]
2. Whether the plaintiff proves that, he has let the suit premises on a monthly rent of Rs.800/- to the defendant ?
[In affirmative]
3. Whether the plaintiff proves that suit property was let to the defendant under the rent agreement ? [In affirmative]
4. Whether the notice issued by the plaintiff is proper and legal ?
[In affirmative]
5. Whether the amount of Rs.9733=35 ps., of the plaintiff towards rent and mesne profit falls due from the defendant ?
[In affirmative]
Page 9 of 22
C/SA/171/2013 JUDGMENT
6. Whether the plaintiff proves that he has let the suit property on rent with fan, furniture and fittings ? [In negative]
7. Whether the suit of the plaintiff is barred by the principle of estopple ?
[In negative]
8. Whether the defendant proves that the plaintiff has applied force to vacate the house ?
[In negative]
9. Whether the defendant proves that the plaintiff has taken Rs.15,000/- as advance from the defendant ? Further, whether the plaintiff has taken rent of one month in advance ?
[In negative] 10A. Whether the defendant proves that he is a tenant ?
[In negative] 10B. Whether the defendant proves that the plaintiff has tried to get the possession without following any process of law ?
[In negative] 10C. Whether the defendant is entitled to get relief which he has not prayed for ?
[In negative]
Page 10 of 22
C/SA/171/2013 JUDGMENT
11. Whether the plaintiff is entitled to get relief as prayed for ?
[In affirmative]
12. What order and decree ?
[As per final order] 8.2 Order XX, Rule 5 of the Code of Civil Procedure, 1908 reads as under.
"O.XX R.5 - Court to state its decision on each issue : In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issue is sufficient for the decision of the suit."
8.3 On conjoint reading of the above quoted issues, decision recorded on each issue by the Trial Court and the language of Order XX, Rule 5 of the Code, it is held that, there was due compliance of procedural aspects by the Trial Court. Since the issues were interwoven, the discussion was made together, which in no way can be termed as any procedural lapse. For this reason, the contention that there was breach of the provision as contained in Order XX, Rule 5 of the Code is rejected.
9. In view of above, this Court finds that, none of the two questions of law, as put forward on behalf of the appellant, exists in the facts of this case. Therefore it is held that, no question of law, muchless any substantial question of law Page 11 of 22 C/SA/171/2013 JUDGMENT arises for consideration before this Court, which may be required to be gone into in exercise of powers under Section 100 of the Code of Civil Procedure, 1908. This Second Appeal is therefore required to be dismissed.
10. Though this appeal is required to be dismissed for the reasons recorded above, there are two more issues which are required to be gone into. Firstly, as to whether any order can be passed in favour of the respondent - owner with regard to mesne profit, as claimed by him and secondly, as to whether, in the facts of this case, cost is required to be imposed on the appellant. These two aspects in my view are interwoven and the following observations of Hon'ble the Supreme Court of India are required to be kept in view while considering these aspects.
11. Hon'ble the Supreme Court of India, in the case of MARIA MARGARIDA SEQUEIRA FERNANDES Versus ERASMO JACK DE SEQUEIRA reported in AIR 2012 SC 1727 = (2012) 5 SCC 370, has observed and held as under.
"62. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another such as in a mortgage or lease. A licensee holds possession on behalf of the owner.
64. There is a presumption that possession of a person, other than the owner, if at all it is to be called possession, is permissive on behalf of the title-holder. Further, possession of the past is one thing, and the right to remain or continue in future is another thing. It is the latter which is usually more in controversy than the Page 12 of 22 C/SA/171/2013 JUDGMENT former, and it is the latter which has seen much abuse and misuse before the Courts.
67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.
70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
(a) who is or are the owner or owners of the property;
(b) title of the property; (c) who is in possession of the title documents; (d) identity of the claimant or claimants to possession; (e) the date of entry into possession;
(f) how he came into possession - whether he purchased Page 13 of 22 C/SA/171/2013 JUDGMENT the property or inherited or got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
(h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed;
(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and
(k) basis of his claim that not to deliver possession but continue in possession.
101. Principles of law which emerge in this case are crystallized as under :-
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour."
12. Keeping above observations and mandate of the Apex Court in view, in the facts of this case the status of present appellant is nothing beyond a trespasser. He had stepped into the suit premises pursuant to the agreement Exh.34 dated Page 14 of 22 C/SA/171/2013 JUDGMENT 29.07.2002, with effect from 01.08.2002, for a period of eleven months. The owner had right to get back his property even before expiry of eleven months, which he had unsuccessfully asserted. The owner of the property can not be verse off than this, and the occupier of the property can not be better placed than this. The present appellant standing as plaintiff in Regular Civil Suit No.61 of 2002 had even lost on this point, that he had right to be in the suit premises even till 30.06.2003. It is recorded that, there is no appeal against the judgment and decree of the Trial Court wherein the present appellant had lost as plaintiff, wherein he was resisting his possession over the suit property by contending that he be not evicted except in accordance with due process of law. Though technically he had lost in that suit, in effect, that suit had already stood decreed in his favour because of its pendency on 30.06.2003, because, leave aside his eviction in accordance with law, he was not evicted at all for the entire period during which he could have legally occupied that property. The point for concern therefore would be, that once the present appellant had lost as plaintiff in Regular Civil Suit No.61 of 2002, wherein he was asserting his right to be in the suit premises till 30.06.2003, and the same has attained finality, whether the original owner can be required to file any other proceedings at all, to get back the possession of the same suit property. This issue is also answered by the Apex Court in the case of Maria Fernandes (supra). The relevant paragraphs read as under.
"81. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity Page 15 of 22 C/SA/171/2013 JUDGMENT for the defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court.
82. The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial, 2006 (88) DRJ 545 : (AIR 2007 (NOC) 169) held as under:
"28. The expressions 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed 'forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing - ejectment from settled possession can only be had by recourse to a court of law. Clearly, 'due process of law' or 'due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for Page 16 of 22 C/SA/171/2013 JUDGMENT enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event, it is an action before the court and the court adjudicates upon it. If that is done then, the 'bare minimum' requirement of 'due process' or 'due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the 'recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law."
83. We approve the findings of the High Court of Delhi on this issue in the aforesaid case."
13. Keeping in view the above principle of law, in the facts of this case, the picture which has emerged is that the present appellant had approached the Civil Court for protection of his right against dispossession till 30.06.2003. (Regular Civil Suit No.61 of 2002). He has lost in it. That has attained finality.
Page 17 of 22C/SA/171/2013 JUDGMENT Additionally, the present respondent - the owner of the property had also, subsequently, moved the Civil Court for enforcement of his right to eject the present appellant, who was in unlawful possession of the suit premises. He (the owner
- the plaintiff of Regular Civil Suit No.41 of 2003) has succeeded before both the Courts below. Thus, the present appellant has lost as plaintiff in his own suit, so also as defendant in the suit of the property owner. Still, even after eleven years, the possession of the property is with the present appellant and not with its owner. The appellant has not paid any amount to its owner for all these years. Under these circumstances, the owner can not be denied his due from the present appellant. In this regard, the following observations of Hon'ble the Supreme Court of India are relevant from the decision in the case of Maria Fernandes (supra), which read as under.
"84. False claims and defences are really serious problems with real estate litigation, pre-dominantly because of ever escalating prices of the real estate. Litigation pertaining to valuable real estate properties is dragged on by unscrupulous litigants in the hope that the other party will tire out and ultimately would settle with them by paying a huge amount. This happens because of the enormous delay in adjudication of cases in our Courts. If pragmatic approach is adopted, then this problem can be minimized to a large extent.
85. This Court in a recent judgment in Ramrameshwari Devi and others (AIR 2011 SC (Civ) 1776 : 2011 AIR SCW 4000) (supra) aptly observed at page 266 that unless wrongdoers are denied profit from frivolous litigation, it Page 18 of 22 C/SA/171/2013 JUDGMENT would be difficult to prevent it. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that Court's otherwise scarce time is consumed or more appropriately, wasted in a large number of uncalled for cases. In this very judgment, the Court provided that this problem can be solved or at least be minimized if exemplary cost is imposed for instituting frivolous litigation. The Court observed at pages 267-268 that imposition of actual, realistic or proper costs and/or ordering prosecution in appropriate cases would go a long way in controlling the tendency of introducing false pleadings and forged and fabricated documents by the litigants. Imposition of heavy costs would also control unnecessary adjournments by the parties. In appropriate cases, the Courts may consider ordering prosecution otherwise it may not be possible to maintain purity and sanctity of judicial proceedings.
90. Experience has shown that all kinds of pleadings are introduced and even false and fabricated documents are filed in civil cases because there is an inherent profit in continuation of possession. In a large number of cases, honest litigants suffer and dishonest litigants get undue benefit by grant or refusal of an injunction because the Courts do not critically examine pleadings and documents on record. In case while granting or refusing injunction, the Court properly considers pleadings and documents and takes the pragmatic view and grants appropriate mesne profit, then the inherent interest to continue frivolous litigation by unscrupulous litigants would be reduced to a large extent.
Page 19 of 22C/SA/171/2013 JUDGMENT
91. The Court while granting injunction should broadly take into consideration the prevailing market rentals in the locality for similar premises. Based on that, the Court should fix ad hoc amount which the person continuing in possession must pay and on such payment, the plaintiff may withdraw after furnishing an undertaking and also making it clear that should the Court pass any order for reimbursement, it will be a charge upon the property.
92. The Court can also direct payment of a particular amount and for a differential, direct furnishing of a security by the person who wishes to continue in possession. If such amount, as may be fixed by the Court, is not paid as security, the Court may remove the person and appoint a receiver of the property or strike out the claim or defence. This is a very important exercise for balancing equities. Courts must carry out this exercise with extreme care and caution while keeping pragmatic realities in mind and make a proper order of granting mesne profit. This is the requirement of equity and justice."
14. Keeping the above principle of law in view, in the present case the owner of the property is required to be compensated by awarding mesne profit. This has to be realistic and in tune with the present market rent. However, there is no material with this Court based on which the present market rent can be ascertained. Therefore, the amount which the present appellant had agreed before eleven years is accepted as it is, as the base and it is ordered that, the present appellant shall pay Rs.800/- per month till the possession of the suit premises is handed over to its owner. It is recorded that he has not paid this amount for three months even prior to 30.06.2003. Thus, Page 20 of 22 C/SA/171/2013 JUDGMENT for those three months and further for the period from 01.07.2003, he shall pay Rs.800/- per month to the respondents - owner till 28.02.2014. This amount shall be paid by the appellant to the respondents within a period of three months from today.
15. Ordering mesne profit as above, would not take care of the cost which is required to be imposed against the appellant for instituting and continuing such a frivolous litigation for over a decade, which has resulted in depriving the owner of the property from enjoying it, for a period over a decade, at the hands of a person, whose status is neither of a tenant nor even a lessee, and viewing from any angle, was nothing else than a trespasser. Keeping in view the above quoted observations of Hon'ble the Supreme Court of India in the case of Maria Fernandes (supra), coupled with its mandate in the case of Salem Advocate Bar Association versus Union of India reported in (2005) 6 SCC 344, cost is required to be imposed on the appellant. For this reason, and considering the totality of the facts, the appellant is ordered to pay Rs.50,000/- (Rupees Fifty Thousand) to the respondents, as cost, which shall be paid within a period of three months from today.
16. In the result, the following order is passed.
(A) This Second Appeal is dismissed.
(B) The Appellant is directed to handover the peaceful and vacant possession of the suit premises to its owners - the respondents, within a period of one month from today.
Page 21 of 22C/SA/171/2013 JUDGMENT (C) The respondents are held to be entitled to receive
Rs.800/- per month, as mesne profit from the appellant, as was agreed by the appellant, pursuant to the agreement dated 29.07.2002, Exh.34. Since the appellant has not paid that amount for three months even prior to 30.06.2003, he is directed to make payment for those three months, and he is further directed to make payment of Rs.800/- per month, for the period from 01.07.2003 to 28.02.2014. This amount shall be paid by the appellant to the respondents, within a period of three months from today.
(D) The appellant is directed to pay Rs.50,000/- (Rupees Fifty Thousand) as cost to the respondents. This amount shall be paid within a period of three months from today.
(PARESH UPADHYAY, J.) mhdave/20 Page 22 of 22