Delhi District Court
4 vs Jasoti 2003 (105) Dlt on 29 February, 2020
1
IN THE COURT OF DR. SHIRISH AGGARWAL, ARC-1, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
Ex. No. 88/2019 (New No.1625/19)
Unique Case ID/CNR No.DLCT03-005386-2019
ORDER
1. By this order, it shall be decided if the decree holders are liable to pay ad valorem court fees on the amount claimed by them as mesne profits in their application dated 29.11.2019. The eviction petition filed by the decree holders under Section 14(1)(b) of the Delhi Rent Control Act was allowed by judgment dated 11.11.1999 and it was held that the judgment debtor no. 1 had indeed sub-let the tenanted premises to the judgment debtor no. 2. The judgment debtors were directed to vacate the built up structure existing at plot no. 2, Jhandewalan, Karol Bagh, New Delhi and handover its vacant possession to the decree holders. The eviction order was challenged and was set aside by the Hon'ble High Court of Delhi. However, the eviction order was restored by the Hon'ble Supreme Court by its order dated 23.09.2010. By order dated 07.11.2019, the Hon'ble Supreme Court held that the decree holders are entitled to claim mesne profits for the period starting on 11.11.1999. The following was held in this order:-
Ex. No.88/19 (New No.1625/19) Page 1 of 18 2
"In the present case, the eviction order was passed by this Court, rather restored of the trial Court on 23.09.2010. The eviction order was passed by the trial court on 11.11.1999. Thus, the right to claim mesne profits would arise from that date i.e. 11.11.1999.
Ld. Counsel for the appellants did endeavor to impress upon us that we should determine some ad hoc amount to be paid. We are, however, of the view that though the appellants may have waited for quite some time, it would be appropriate if this exercise is undertaken by the Executing Court albeit in a time bound manner.
We, thus, direct the trial Court to carry out this exercise in a maximum period of four months from the date of communication of this order and needless to say both the parties will fully cooperate and assist the Court in order to arrive at a conclusion and would not seek adjournments."
2. After passing of the aforementioned order dated 07.11.2019, the decree holders filed the application dated 29.11.2019 claiming mesne profits. During the course of arguments, Ld. Counsels for the decree holders and both the judgment debtors have unanimously submitted that by order dated 29.11.2019, the Hon'ble Supreme Court has directed this Court to give a finding on mesne profits to be paid to the decree holders and not just some ad hoc amount.
3. While considering the application dated 29.11.2019 of the decree holders for mesne profits, an issue arose on whether the decree holders have paid the correct amount of court fees on this application. It was contended on Ex. No.88/19 (New No.1625/19) Page 2 of 18 3 behalf of the judgment debtors that before the proceedings on the application for mesne profits commence, the decree holders are required to pay ad valorem court fees on the amount of mesne profits claimed by them. It was argued on behalf of the judgment debtors that the decree holders be directed to immediately pay the ad valorem court fees so that the matter can be proceeded with expeditiously.
4. On behalf of the decree holders, it was initially argued that the decree holders are willing to pay ad valorem court fees on the amount that the decree holders are found entitled to as mesne profits, which will be paid after the Court determines the amount. However, later, the decree holders took a contrary stand and it was submitted on their behalf that they are not entitled to pay ad valorem court fees. It was contended that they are only liable to pay court fees of Rs.13/-. Reference was made to Clause 23, Schedule II of the Court Fees Act, 1870, as is applicable to Delhi.
5. Written submissions on the issue of payment of court fees have been filed by the parties. The following are the arguments raised by the parties in support of their respective contentions:-
Ex. No.88/19 (New No.1625/19) Page 3 of 18 4
Arguments of the decree holders:
6. It is contended by the decree holders that the execution petition is in the nature of an interlocutory application in the eviction petition under the Rent Control Act. It is, therefore, submitted that the eviction petition is still continuing for the purpose of enquiry into the mesne profits.
7. It is stated that it is the duty of the court to place the decree holders in the same position as they would have been if possession of the property had been delivered to them on 11.11.1999. It is submitted that to do this is part of the court's inherent jurisdiction. It is stated that it is not that this Court has no jurisdiction to award mesne profits to the decree holders if the Hon'ble Supreme Court had not specifically directed it to do so. It is averred that the jurisdiction to make restitution is inherent in every Court and should be exercised whenever justice of the case so demands. Reference has been made to the decisions in the cases of Amar Singh Vs. Jasoti 2003 (105) DLT 499 and Trilochan Singh Vs. Daya Shanker 2010 (174) DLT 266.
8. It is stated that mesne profits can relate to three periods which are as follows:-
(i) Past - Prior to initiation of litigation i.e. prior to filing of eviction petition Ex. No.88/19 (New No.1625/19) Page 4 of 18 5 on 05.02.1986.
(ii) Pendente Lite - From date of filing of litigation till eviction order i.e. from 05.02.1986 till 11.11.1999.
(iii) Future - For the period subsequent to the date of eviction order till delivery of possession i.e. from 11.11.1999 till 27.12.2019.
9. It is submitted that the past mesne profits have not been claimed by the decree holders nor is there any direction for paying it. It is contended that there is also no direction for payment of pendente lite mesne profits. It is submitted that the decree holders are only claiming future mesne profits and on future mesne profits, ad valorem court fees is not payable in advance since the amount is uncertain and not determinable.
10. It is stated that in an ejectment suit, there can be past mese profits, pendente lite and future mesne profits, but in an eviction petition under the Delhi Rent Control Act, there is no past and there is no pendente lite. It is submitted that there is only future mesne profits.
11. It is stated that the decree holders are liable to pay court fees of Rs.13/- only as has been provided in Clause 23, Schedule II of the Court Fees Act, 1870, as is applicable to Delhi. It is submitted that there is no other Ex. No.88/19 (New No.1625/19) Page 5 of 18 6 statutory provision for payment of court fees in proceedings before the Controller under the Delhi Rent Control Act. It is averred that the judgment debtor no.2 has failed to point out any statutory provision which requires advance payment of ad valorem court fees before the Rent Controller. It is stated that a Civil Court calls for payment of court fees only after enquiry is complete and before warrants for recovery are issued.
12. It is stated in the 'revised' written submissions of the decree holders that the question of what court fees is payable be left open to be determined at a later stage after the enquiry is completed.
13. The decree holders have also placed reliance on the decisions in the cases of Gopalakrishna Pilai Vs. Meenakshi Ayal AIR 1967 SC 155, Shivaji Vs. Deoji AIR 1974 MP 123, M.K. Mamik Vs. Welham Girls High School 2015(129) Rev. Dec 421, Prakash Narayan Vs. Deo Radha Krishna Mandir W.P. No. 13419/2017 decided by the Hon'ble High Court of Madhya Pradesh on 27.06.2018, Baparowthu Nookamba vs. Baparowthu Durgamba 1995 (3) ALT 908, Qutubbuddin Syed Shah Vs. Hindustan Petroleum Corporation Ltd. 1986 (1) MadLj 196, Karnataka Rare Earth Vs. The Senior Geologist 2004 (2) SCC 783, Ramrameshwari Devi Vs. Nirmala Devi 2011 (8) SCC 249, Indian Ex. No.88/19 (New No.1625/19) Page 6 of 18 7 Council for Enviro-Legal Action Vs. Union of India 2011 (8) SCC 161, Maria Margarida Vs. Erasmo Jack de Sequeria 2012 (5) SCC 370, Trilochan Singh Vs. Daya Shankar 2010 (174) DLT 266 and Roshan Lal Vegetable Products (P) Ltd. Vs. Param International CS (OS) No.59 of 2006 decided by Hon'ble High Court of Delhi on 20.01.2011.
Arguments of the judgment debtors:
14. It is contended by the judgment debtors that no claim can be adjudicated without payment of court fees, unless it has been otherwise provided for in Court Fees Act or in any other enactment. It is stated that the claim for mesne profits is a money suit and falls within the provisions of Order 7 Rule 2 of Code of Civil Procedure and court fees is required to be paid under Section 7(i) of the Court Fees Act. It is stated that the claimant is required to approximately state the amount claimed on mesne profits and pay ad valorem court fees on it. It is averred that in such a situation, the claimant knows the date of commencement and date of filing of the claim and such claim are ascertainable. Therefore, the claimant is required to pay court fees on this ascertained amount. However, this period has been referred to as pre-suit period by the decree holders. In the case of post filing, mesne profits are not ascertainable in as much as the date of adjudication and date of Ex. No.88/19 (New No.1625/19) Page 7 of 18 8 cessation of liability is not known and is uncertainable. Therefore, the courts treat the same as future mesne profits and require the claimant to pay court fees on a later date when the amount is determined. It is submitted that in the present case, the date of commencement of period and the date of filing are ascertainable as per the averment of the decree holders.
15. It is stated that the decree holders have made an exaggerated and speculative claim, without payment of court fees. It is contended that the court may award a lessor amount or may hold that nothing is payable, still, court fees is payable on the amount sought by the decree holders, which is an ascertained amount.
16. It is submitted on behalf of the judgment debtors that despite the Hon'ble Supreme Court fixing a deadline for the application for mesne profits to be decided, the decree holders first chose to address arguments thrice and file written arguments twice on the preliminary issue of court fees and then at the end contended in their "revised" note of submissions that the question of what court fees is payable be left open to be determined at a later stage after the enquiry is completed.
17. The judgment debtors have also drawn the attention of the Court to the Ex. No.88/19 (New No.1625/19) Page 8 of 18 9 prayer clause of the application of the decree holders in which a specific amount has been claimed. It is argued that since a specific amount has been claimed, the claim of the decree holders does not fall in the category of future mesne profits. Reliance has been placed on the decisions in the cases of R & D Enterprises (Exports) Vs. Air France AIR 1998 Delhi 193, Gopalakrishna Pillai & Ors. Vs. Meenakshi Ayal & Ors. AIR 1967 SC 155, Hindustan Petroleum Corporation Limited Vs. Mohan Jeet Singh 263(2019) DLT 192, Ranjeet Kaur & Ors. Vs. Punjab State Electricity Board (2007) 1 RCR (Civil) 686 and Naranjan Singh Vs. Kartar Singh & Ors. (2002) 2 RCT (Civil) 405 and Jampala Pakeerkiah & Ors. Vs. Katuru Venkateswararao & Ors. AIR 1960 AP
566.
18. Arguments have been heard and the record has been perused. At the outset, it is observed that the Courts of a Rent Controller have been established under the Delhi Rent Control Act and exercise only that jurisdiction and powers which are provided under the Delhi Rent Control Act. There is no provision in the Delhi Rent Control Act under which the relief of grant of mesne profits can be granted.
19. In the case of Iqbal Singh Narang Vs. Veeran Narang 2012 (2) SCC Ex. No.88/19 (New No.1625/19) Page 9 of 18 10 60, the Hon'ble Supreme Court held that in several cases before it, a consistent view has been taken that the Rent Controller, being a creature of statute, has to act within the four corners of the statute and could exercise only such powers as has been vested in him by the statute. It was observed that in the case of Prakash H. Jain Vs. Marie Fernandes (2003) 8 SCC 431, the Hon'ble Supreme Court had held that the Competent Authority under the Maharashtra Rent Control Act has been created for a definite purpose and its powers are strictly circumscribed by the very statutory provisions which conferred upon it powers. The Hon'ble Supreme Court held that the Rent Controller discharges quasi-judicial functions and is not a Court understood in a conventional sense. In this case of Prakash H. Jain Vs. Ms. Marie Fernandes, it was contended before the Hon'ble Supreme Court that the Competent Authority, being one which has all trappings of a Court, is a 'Court' in the eye of law and consequently possess inherent power to condone the delay as is available to any other Court under the Civil Procedure Code, all the more so when Sections 42 and 43 of the Act is indicative of the applicability of the provisions of the CPC. However, the Hon'ble Supreme Court did not accept this contention and held the following:-
Ex. No.88/19 (New No.1625/19) Page 10 of 18 11
"In Gurditta Mal Vs. Bal Swarup (AIR 1980 Delhi
216) a learned Single Judge of the said High Court chose to infer conferment of power under Rule 23 of the Delhi Rent Control Rules, 1959, though such power was not conferred under the statute, by relying upon Section 151 CPC which in our view could not have been, having regard to the very nature and content of power under Section 151 and its inapplicability to Authorities other than ordinary courts."
20. In the case of Nand Kishore & Anr. Vs. Vijay Kumar Gupta CM (M) No. 405/2007 decided by the Hon'ble High Court of Delhi on 16.02.2009, the following was held:-
"Even otherwise, it is settled law that Additional Rent Controller is not a Civil Court and cannot exercise inherent power or powers which are not conferred on it by the statute. Power of review is not an inherent power and can be exercised by an Additional Rent Controller or Additional Rent Control Tribunal only if it is provided in the Rent Control Act."
21. The Hon'ble Punjab & Haryana High Court in the case of Jagdish Parshad Vs. Mehar Chand And Anr. (1993) 103 PLR 66, held the following:-
"As the Rent Controller and the Appellate Authority are not Courts, therefore, the power to review exercised by Civil Court under the Code of Civil Procedure cannot be exercised by them. Learned Counsel for the petitioner fairly concedes that the Act contains no provision as to review."Ex. No.88/19 (New No.1625/19) Page 11 of 18 12
22. In view of the aforementioned decisions, this Court does not agree with the contention of the decree holders that this Court has inherent powers to determine mesne profits to be paid to the decree holders. In none of the judgments relied upon by the decree holders has it been specifically held that a Rent Controller has inherent powers to award mesne profits to the landlord. In the aforementioned cases of Trilochan Singh Vs. Daya Shanker and Amar Singh Vs. Jasoti relied upon by the decree holders, the Hon'ble High Court of Delhi had conferred jurisdiction upon the Rent Controller for enquiry and determination of mesne profits. There was no finding of the Court that the Rent Controller by itself has jurisdiction to carry out this exercise. There was also no finding that the landlord is not required to pay court fees on the amount of mesne profits claimed.
23. Although this Court ordinarily does not determine mesne profits and does not require payment of ad valorem court fees, since in this case, the Hon'ble Supreme Court has enjoined this Court to exercise powers akin to those of a Civil Court, without expressing any intention to waive the legal requirement of payment of court fees as would be payable by any other claimant who makes the said claim before the Civil Court, there is no reason for this Court to create an exception for the claimant. This Court is exercising Ex. No.88/19 (New No.1625/19) Page 12 of 18 13 powers of a Civil Court in the award of mesne profits as per directions of the Hon'ble Supreme Court.
24. The principles governing the award of mesne profits, that govern the proceedings of a Civil Court, will be applicable to these proceedings. There is nothing to indicate that the Hon'ble Supreme Court has exempted the claimant from paying court fees as would be applicable to any other claimant.
25. In the award of mesne profits, therefore, this Court is required to act as a Civil Court and give effect to the Court Fees Act. As a corollary, this Court would have to pass orders that are ancillary and incidental to the claim of mesne profits. This Court therefore agrees with the contention of the Ld. Counsel for the judgment debtors that the claimants/decree holders cannot escape the legal requirement of payment of court fees simply by soliciting orders from a Rent Controller rather than the ordinary Civil Court.
26. In the revised written submissions, the decree holders have stated that the question of what court fees is payable be left open to be determined at a later stage after the enquiry is completed. This argument raised by the claimants is aimed at wriggling out of the legal consequences of non-payment of court fees, which cannot be permitted. The matter of revenue Ex. No.88/19 (New No.1625/19) Page 13 of 18 14 and court fees is a statutory requirement and cannot be subverted and its obligations cannot be avoided by adopting a circuitous route. It is the duty of the Court to give effect to legal stipulation governing court fees even though the revenue department is not represented in the Court.
27. There is no gainsaying the fact that for future mesne profits, there is no need for the claimant to pay court fees. However, this Court is of the view that the amount quantified in the application for mesne profits is clearly not mesne profits for a future period. The amount specified in the application falls in the category of past mesne profits. The fallacy in the argument of the decree holders is that they are considering the eviction petition as the litigation in which the claim to mesne profits has been made. It must be noted that there was no claim for mesne profits made in the eviction petition. Also, even in the order dated 23.09.2010, by which the eviction petition was finally decided by the Hon'ble Supreme Court, there was no direction for payment of mesne profits. Infact, even before the Hon'ble High Court on 13.07.2017, no claim was made for recovery of mesne profits. The decree holders had only sought a deposit in Court a sum of Rs.40 crores as security. It was when the order of the Hon'ble High Court dated 13.07.2017 was challenged, the Hon'ble Supreme Court directed determination of mesne profits to be paid to the Ex. No.88/19 (New No.1625/19) Page 14 of 18 15 decree holders.
28. The request of the decree holders made in their "revised" note of submissions that the question of what court fees is payable be left open to be determined at a later stage after the enquiry is completed can obviously not be acceded to because as per the own judgments of the decree holders, court fees on an amount already determined and claimed as mesne profits is to be paid at the time of making the claim.
29. It is not in the eviction petition, but in the application dated 29.11.2019 that the decree holders for the first time made a claim for recovery of mesne profits. It is the case of the decree holders that when this application was filed, they had an existing legal right to the amount sought in the application. As per the judgments relied upon by the decree holders themselves, future mesne profits are those which are uncertainable at the time when a claim for mesne profits is made. Future mesne profits are those over which the claimant neither has any cause of action nor any existing legal right at the time when the claim is made. Therefore, it cannot be said that the amount specified in the application dated 29.11.2019 is a claim for future mesne profits. Ex. No.88/19 (New No.1625/19) Page 15 of 18 16
30. It should be noted here that on the day of filing of application of mesne profits, the decree holders had not received possession of the entire property. It was later i.e. on 27.12.2019, that possession of the entire property was delivered to the decree holders. It is the mesne profits for the period from date of filing of the application till the date on which possession was delivered to the decree holders, would fall in the category of future mesne profits, which was not determinable on the date of filing of the application. It is on this uncertainable amount on which the decree holders could not have and need not have paid court fees at the time of making their claim.
31. The decree holders have also relied upon clause no. 23 of Schedule II of the Court Fees Act as applicable to Delhi and have contended that they are only required to pay court fees of Rs.13/- for their application for mesne profits. Clause 23 prescribes that court fees of Rs.13 is payable on an application for relief under the Delhi Rent Control Act. However, as has already been held hereinabove, the application of the decree holders for mesne profits has not been filed under the provisions of Delhi Rent Control Act. Even in the application, the decree holders have themselves not stated that it has been filed under the Delhi Rent Control Act or under any of its specific provisions. It is clear from paragraph no. 1 of the application that the Ex. No.88/19 (New No.1625/19) Page 16 of 18 17 application has been preferred in pursuance of the order dated 07.11.2019 passed by the Hon'ble Supreme Court. Therefore, clause 23 of Schedule II of the Court Fees Act has no applicability. It does not even appeal to logic and reason that court fees for recovery of a particular amount under the Delhi Rent Control Act will be only Rs.13/-, but will be ad valorem court fees in other cases of an ordinary civil suit. There is no rationale for putting a landlord under the Delhi Rent Control Act on a different and better footing than a landlord of a tenant who is not protected by the Delhi Rent Control Act. Even an indigent is required to pay court fees, even though at later stage (Order XXXIII Rules 10 and 11 of Code of Civil Procedure). There is no reason for calling upon a landlord under the Delhi Rent Control Act to pay a court fees of mere Rs.13/-, whereas any other landlord is required to pay a huge amount as ad valorem court fees.
32. It would be preposterous to hold that this Court has inherent jurisdiction to grant relief not mentioned in the Delhi Rent Control Act, but for payment of court fees, the Court cannot look beyond the provision of law relating to the Delhi Rent Control Act in the legislation for payment of court fees. If this Court has inherent jurisdiction to grant relief which is not provided under the Delhi Rent Control Act, it also has inherent jurisdiction to direct payment of court Ex. No.88/19 (New No.1625/19) Page 17 of 18 18 fees which is prescribed for litigation which is beyond the Delhi Rent Control Act. Therefore, if this Court has inherent jurisdiction to award mesne profits, it also has the jurisdiction to direct the decree holders to pay ad valorem court fees.
33. In view of the aforementioned facts and circumstances, it is held that the decree holders are required to pay ad valorem court fees on the amount claimed by them as mesne profits in application dated 29.11.2019.
Digitally
signed by
Shirish
Shirish Aggarwal
Aggarwal Date: SHIRISH AGGARWAL
2020.02.29
17:24:02
+0530
ARC-I, Central District,
Tis Hazari Courts, Delhi
29.02.2020
Ex. No.88/19 (New No.1625/19) Page 18 of 18