Madhya Pradesh High Court
Pooja Collections vs Smt. Kamla Jain on 25 August, 2021
Equivalent citations: AIRONLINE 2021 MP 1834
Author: Anjuli Palo
Bench: Anjuli Palo
1 SA No.526/2014
HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT
JABALPUR
Second Appeal No.526/2014
(Pooja Collections Vs. Smt. Kamla Jain)
For the appellant : Mrs. Shobha Menon, Senior Counsel and
Mr. Rahul Choubey, Advocate.
For the respondent: Mr. Amit Sahani and Mr. Priyankush Jain,
Advocates.
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PRESENT
HON'BLE SMT. JUSTICE ANJULI PALO
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ORDER
(25/08/2021) Heard on I.A. No.2686/2021, an application for modification/recalling of interim order as well as on I.A. No.2687/2021, an application for condonation of delay.
2. The appellant has filed I.A. No.2686/2021 seeking modification/recalling of interim order dated 17.03.2020 along with an application for condonation of delay registered as I.A. No.2687/2021.
3. In the application seeking condonation of delay, the learned counsel for the appellant contended that after passing the impugned order dated 17.03.2020, the nationwide lock-down was imposed by the Govt. of India due to spread of COVID-19 pandemic. Therefore, the appellant could not travel from Bhopal to Jabalpur and this Court has reserved the orders on interlocutory application.
2 SA No.526/20144. In March, 2021, when the respondent has moved an application for execution of order dated 17.03.2020, then appellant was apprised of the fact. Thereafter, he contacted with his counsel, then the order was communicated to him for first time in March, 2021. Immediately thereafter, he applied for certified copy of the impugned order.
5. It is pertinent to mention here that during COVID-19 pandemic situation, all the Courts were not functioning since 23 rd March, 2020 to May, 2020 only. For condoning the delay, the Apex Court in suo motu Writ Petition (Civil) No.03/2020, vide order dated 27.03.2020 & 08.03.2021 has directed that the period from 15.03.2020 to 14.03.2021 shall stand excluded for computing the period of limitation. Thereafter, from June, 2020 to 9 th April, 2021 all the Courts started functioning.
6. Thus, this Court is of the opinion that this application for modification/recalling order dated 17.03.2020 is not time barred. Accordingly, I.A. No.2687/2021, an application for condonation of delay is allowed, delay in filing the application is condoned.
Heard on I.A. No.2686/2021, an application for modification/recalling interim order dated 17.03.2020.
7. By the aforesaid application, the appellant has prayed for recalling/modification of the order dated 17.03.2021. By the aforesaid order, while deciding I.A. No.2484/2015, taking into account law laid down in the cases of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705 and State of Maharashtra v. M/s Super Max International and Others, (2009) 9 SCC 772 this Court directed the appellant shall pay the rent of the 3 SA No.526/2014 suit shop at the rate of Rs.18,000/- per month to the respondent/landlord from the date of the decree passed by the lower appellate Court.
8. The main contentions raised by learned senior counsel are that in view of provision of Section 13 (1) of the M.P. Accommodation Control Act, 1961 (in short 'the 1961 Act') the appellant is liable to pay only the contractual rent during the pendency of the appeal and he is not liable to pay rent at prevailing market rate; the direction to pay higher rent is contrary to the law laid down in the cases of Jamnalal v. Radheshyam- 2000 (4) SCC 380, Niyas Ahmad Khan v. Mohamood Rahmat Ullah Khan and Another- (2008) 7 SCC 539 and State of Maharashtra and Another v. Super Max International Private Ltd. and Others, (2009) 9 SCC 772; As the respondent has not filed any cross appeal, he is not entitled to mesne profit; while passing the aforesaid interim order this Court has not considered objections of the appellant with regard to report of the Rent Controlling Authority; and that the prevalent market rent determined by this Court is grossly excessively.
9. On the other hand, learned counsel for the respondent has vehemently opposed the contentions raised by learned senior counsel for the appellant and submitted that the appellant has deliberately filed the application for modification belatedly. This Court has passed the well reasoned interim order by taking into account the law in the field. This Court has fixed very reasonable rate taking into account the prevalent market rate. Besides that, it is contended, a decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that different view could have been taken by the Court. Learned counsel for the 4 SA No.526/2014 respondent has placed reliance on the decisions in the cases of Gurbachan Singh v. Vimlabai, AIR 1993 MP 135; State of WB v. Kamal Sengupta, (2008) 8 SCC 612; Super Max International P. Ltd. (supra) Aribam Tuleshwar Sharma v. Aribam Pishak Sharma, (1979) 4 SCC 389; Smt. Mankunwar Bai v. Sunderlal Jain, AIR 1978 MP 165; and Atma Ram Properties P. Ltd. (supra).
10. Heard learned counsel for the parties at length. Before delineating on the application for review, it is thought apposite to refer certain decisions in the field. In the case of Gurbachansingh v. Vimlabai, AIR 1993 MP 135, it has been held that in the suit for eviction/ejectment decree, default in deposit of rent during pendency of appeal- Amended Section 13 coming into force before filing of the appeal. Section 13 applies to appeal pending though arising out of the suit filed prior to enforcement of amendment. The tenant is obliged to comply with the amended provision.
11. Section 13 (1) of the M.P. Accommodation Control Act applies to the suit for eviction based on any of the grounds enumerated in Clauses (a) to (p) of Section 12 (1) not just to clause
(a) which deals with arrears of rent. Thus, tenants facing eviction proceedings on the grounds other than arrears of rent would still be obliged to pay or deposit future rent under Section 13 (1). [See: Jamnalal and Others v. Radheshyam, (2000) 4 SCC 380 and Smt. Mankunwar Bai and Others v. Sunderlal Jain, AIR 1978 MP 165]
12. Learned senior counsel for the appellant has placed heavy reliance on the decision in the case of Niyas Ahmad Khan (supra) wherein in paragraph 7 it has been observed as follows:
5 SA No.526/2014"7. Even assuming that the High Court has power to increase the rent, we fail to understand how in the absence of any evidence -- either oral or documentary or by way of affidavit, the learned Single Judge could assess the rent as Rs.12,050 which is more than 48 times, the rent of Rs.250 earlier determined. The learned Single Judge did not consider any of the relevant circumstances like the market value of the building on the date of letting, prevailing rentals in the locality as on the date of letting, the size or situation or amenities, age of construction, latest assessment of the building or other circumstances. Further, when a premises consisting of several rooms, verandahs, kitchen, terrace, bathrooms, latrines, is let out as a single unit, the question of assessing the rent with reference to each room or portion of such premises separately does not arise. The learned Judge's observation that by taking a pragmatic approach he was assessing the rent at Rs.12,050, to say the least, is arbitrary and contrary to law.
13. Thereafter in paragraph 10 of the said decision, their Lordships of the Apex Court have held thus:
"10. To sum up, in writ petitions by landlord against rejection of eviction petitions, there is no scope for issue of any interim direction to the tenant to pay higher rent. But in writ petitions by tenants against grant of eviction, the High Court may, as a condition of stay, direct the tenant to pay higher rent during the pendency of the writ petition. This again is subject to two limitations. First, the condition should be reasonable. Second, there should not be any bar in the respective State rent control legislation in regard to such increase in rent. Be that as it may."6 SA No.526/2014
14. This Court while directing for payment of rent has taken into consideration that the property was rented for commercial purpose and the same is situated in prime location of New Market, Bhopal as well as the prevalent market rate of that area.
15. It is pertinent to mention here that the appellant has not challenged the impugned order before any appellate forum. Admittedly, the disputed shop is situated at famous commercial area of Bhopal like new market, which is centrally located area where the appellant has been running his business since long only at the rate of Rs.622/- monthly rent for commercial purpose. Looking to his financial capacity and his estimated earnings, rent of other shops situated at the same locality etc. this Court directed him to pay enhanced rent @ Rs.18,000/- per month even though, the appellant claimed Rs.45000/- per month @ Rs.300/- per sq. ft. as per rate of other adjoining shops.
16. It is important to mention here that application I.A. No.2484/2015 was pending since year 2015 and appeal has been filed by the appellant in the year 2014. The impugned order was passed after the lapse of five years on 17.03.2020. Although, the report of RCA was not discussed by this Court in the impugned order, which was received in last week of November, 2017, even though, the appellant himself has given negative response about the said report in his contention. He contended that the report shows in the year 2017 the existing rate of rent at new market was Rs.205.66 per square feet in higher side.
7 SA No.526/201417. The scope of review, as stated above, is very limited. This Court while passing the interim order dated 17.03.2020, has referred to the provisions of Section 13, law laid down in the cases of Bhagwandas Lakhsami v. Ms. Kokabai, 1951 Nag 186, Clifton Securities Ltd. v. Huntley, (1948) 2 All ER 283, Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705 Shabbar Hussain v. Ram Dayal, 2011 (1) MPLJ 366, Niyas Ahmad Khan (supra), Super Max International Private Ltd. (supra).
18. That apart, the scope of review has been dealt with in catena of decisions. It is well settled in law that in the guise of review, rehearing is not permissible. In order to seek review it has to be demonstrated that order suffers from error apparent on the face of record. The Court while deciding the application for review cannot sit on appeal over the order passed by it. An order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the Court/Tribunal on a point of fact or law. In any case, while exercising the power of review, the concerned Court/Tribunal cannot sit in appeal over its judgment/decision. It is apparently clear that all the grounds taken by the learned counsel for the appellant in detail are mentioned in the application with the intention to obtain the fresh findings of this Court.
19. The petitioner cannot be given liberty to readdress the Court on merits because it is not an appeal in disguise where the judgment is to be considered on merits. [See : J.R. Raghupathy Vs. State of A.P. (AIR 1988 SC 1681) S. Bagirathi Ammal v. Palani Roman Catholic Mission, (2009) 10 SCC 464 and State of West 8 SA No.526/2014 Bengal and Others v. Kamal Sengupta and Another, (2008) 8 SCC 612 ]
20. In view of the preceding analysis, there is no apparent error on the face of the record. Hence, in the considered opinion of this Court, no ground for review or modification of the order dated 17.03.2020 is made out.
21. At this juncture, it is apt to mention that the appellant has filed a document "Affidavit of Undertaking" wherein in paragraph 5 it has been stated as follows:
"5. Without prejudice to the submissions made in the review application and in alternatively in continuation of aforesaid appellant submits present undertaking to the following effect:
i. The appellant is willing and ready to argue the present appeal finally on any day, at the earliest, as deemed convenient by this Hon'ble Court, preferably on any "Thursday' and till then the order dated 17.03.2020 be not given effect to.
Or ii. Appellant be given 30 days time period for assailing order dated 17.03.2020, before the Hon'ble Apex Court and till then, order dated 17.03.2020 be not given effect to.
22. This case was heard and closed for delivery of orders on I.A. No.2686/2021 on 12.08.2021 whereas this document has been filed on 20.08.2021. The appellant has not paid anything in compliance of the interim order dated 17.03.2020. Suffice it to say, the appellant can always seek early disposal of the appeal by filing appropriate application or may approach appropriate higher forum in 9 SA No.526/2014 accordance with law, if so advised. At this stage, this Court is not inclined to accede such a prayer. Hence, the same is hereby rejected.
23. Accordingly, I.A. No.2686/2021 is hereby dismissed.
(Smt. Anjuli Palo)
RJ/ks JUDGE
Digitally signed by
KOUSHLENDRA SHARAN
SHUKLA
Date: 2021.08.25 05:51:59 -07'00'
10 SA No.526/2014