Rajasthan High Court - Jodhpur
Sanjay Kumar Singh vs Harish Chand on 12 February, 2020
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 440/2017
Sanjay Kumar Singh
----Appellant
Versus
Harish Chand
----Respondent
For Appellant(s) : Mr. Narendra Thanvi
For Respondent(s) : Mr. Richin Surana
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order 12/02/2020
1. The matter comes up on an application No.01/19 claiming the following reliefs:
"Therefore, it is most respectfully prayed that the stay order dated 12.09.2017 may kindly be vacated. Further, respondent/defendant may be directed to pay mesne profit of the disputed premises to Rs.10000/- per month w.e.f. 01.04.2014 during the pendency of the present appeal."
2. The sum and substance of the dispute is that the respondent-plaintiff filed a civil suit for ejectment, recovery of rent arrears and damages against the present appellant/defendant/non-applicant stating inter-alia that cabin No.2, as mentioned in para No.1 of the plaint situated outside Polo ground over Nakki Lake Road in Mount Abu, in which, the appellant/defendant/non-applicant, being tenant, is in possession of the same. The said tenancy commenced from 01.02.2008 and the rent was fixed as Rs.6,500/- per month.
(Downloaded on 15/02/2020 at 08:26:40 PM)
(2 of 8) [CFA-440/2017] In an earlier civil suit, parties entered into a compromise on 16.02.2010 and it was agreed that a rent of Rs.6,500/- per month shall be paid by the appellant/tenant.
The present litigation has culminated into the impugned judgment and decree dated 15.07.2017 whereby the appellant/non- applicant before this Court has been directed to pay the due rent of March, 2013 @ Rs.6,500/- and then, mesne profits from 01.04.2013 @ Rs.10,000/- per month till eviction. The learned court below directed that the appellant-tenant shall be required to evict the shop in question within two months from the date of impugned judgment and decree.
3. The appellant/defendant/non-applicant challenged the aforementioned judgment and decree by filing this appeal, in which, an interim order was passed by this Hon'ble Court on 12.09.2017, which reads as follows:
"Heard.
Admit. Issue notice to the respondent. Rule is made returnable within a period of four weeks.
Meanwhile, the execution of judgment and decree dated 15.07.2017 passed by Additional District Judge No.2, Abu Road, District Sirohi in Civil Original Suit No.169/2015 (25/2013) shall remain stayed till the next date."
4. Learned counsel for the appellant/defendant/non- applicant submits that the aforequoted interim order was confirmed on 05.05.2018, as no one chose to appear for the respondent/plaintiff/applicant despite service of notice. The said order dated 05.05.2018 reads as follows:
"Nobody appears on behalf of respondent, despite service of the notice, the interim order dated 12.09.2017 passed by the Court is confirmed to last till disposal of the appeal."(Downloaded on 15/02/2020 at 08:26:40 PM)
(3 of 8) [CFA-440/2017] 5. Learned counsel for the appellant/defendant/non-
applicant further submits that issue No.3 regarding monthly mesne profits to be Rs.10,000/- as framed and decided by the learned trial court, is under challenge in the present appeal and sufficient grounds are there for challenging the same. Learned counsel for the appellant/defendant/non-applicant also, while assailing the present application, submits that since the conduct of the respondent/applicant was such that he did not choose to appear before the Court despite service, therefore, the Court has consciously decided the stay petition by confirming the stay, and thus, the present application deserves to be dismissed on this count alone.
6. Learned counsel for the appellant/defendant/non-
applicant has relied upon the precedent law laid down by the Hon'ble Apex Court in Saraswati Das & Ors. Vs. Pravat Kumar Sahoo & Anr. reported in 2002(2) Civil Court Cases 51 (Orissa), relevant portion whereof, reads as follows:
"7. The second contention of Mr. Mohanty, learned counsel for the petitioners, is that petitioner No. 1 being a destitute widow, entrusted the matter to her lower court Advocate who assured her to take appropriate steps in the Misc. Appeal, but failed to do so and thus, there was sufficient cause for non-appearance of respondents 1 to 3 when the appeal was called for hearing. Admittedly, respondent- petitioner No. 1 received the notice issued by this Court personally for self and on behalf of her minor children- respondents 2 and 3 as mother-guardian. After receiving the notice, it was incumbent upon a party to take such steps as deemed just and proper to appear before the court when the matter is taken up from hearing. Under no stretch of imagination, it can be argued that if a party, even after valid service of notice does not appear, the (Downloaded on 15/02/2020 at 08:26:40 PM) (4 of 8) [CFA-440/2017] courts should await till the litigant chooses to appear. According to me, the words "sufficient cause" cannot be stretched to that extent. It is the settled principle of law that "sufficient cause" has to be interpreted in the given facts and circumstances of each case and the courts have to adjudge on the touch stone of pragmatic parameter and it can never be an iron-tight jacket. Once it is found that the summons were duly served, it is for the litigant to appear in court and prosecute the lis. Failure to do so, would not construe as "sufficient cause". Such an interpretation will be unjust and would be a boon to unscrupulous litigants."
7. Learned counsel for the appellant/defendant/non- applicant further submits that once the stay petition has been finally disposed of, it was not open for the respondent/applicant to come before this Court with a general application seeking mesne profits in lieu of occupation of the cabin in question, only after disposal of the stay petition.
8. Learned counsel for the appellant/defendant/non- applicant has further relied upon the precedent law laid down by the Hon'ble Apex Court in M/s. Atma Ram Properties (P) Ltd. Vs. M/s. Federal Motors Pvt. Ltd. reported in 2005(1) Civil Court Cases 454 (S.C.), relevant portion whereof reads as under:
"19. To sum up, our conclusions are:-
(1) while passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate Court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and in so far as those proceedings are concerned. Such terms, needless to say, shall be reasonable;(Downloaded on 15/02/2020 at 08:26:40 PM)
(5 of 8) [CFA-440/2017] (2) in case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of 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 landlord would have been able to let out the 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;
(3) 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."
9. Learned counsel for the respondent/plaintiff/applicant however, submits that in the prayer, no doubt he has mentioned the vacation of the stay, but simultaneously he has sought mesne profits as well, more particularly, in the given circumstances, when the appellant/defendant/non-applicant is not prepared to evict the premises in question, and also this Hon'ble Court has granted stay protecting the appellant/tenant's possession.
10. Learned counsel for the respondent/defendant/non- applicant has also placed reliance on the aforementioned precedent law laid of M/s. Atma Ram (supra) as relied upon by learned counsel for the appellant/defendant/non-applicant, para 20 thereof, reads as under:
"20. In the case at hand, it has to be borne in mind that the tenant has been paying Rs.371.90p. rent of the premises since 1944. The value of real estate and rent rates have skyrocketed since that day. The premises are situated in the prime commercial locality in the heart of Delhi, the capital city. It was pointed out to the High Court that adjoining premises belonging to the same landlord admeasuring 2000 sq. ft. have been recently let out on (Downloaded on 15/02/2020 at 08:26:40 PM) (6 of 8) [CFA-440/2017] rent at the rate of Rs.3,50,000/- per month. The Rent Control Tribunal was right in putting the tenant on term of payment of Rs.15,000/- per month as charges for use and occupation during the pendency of appeal. The Tribunal took extra care to see that the amount was retained in deposit with it until the appeal was decided so that the amount in deposit could be disbursed by the appellate Court consistently with the opinion formed by it at the end of the appeal. No fault can be found with the approach adopted by the Tribunal. The High Court has interfered with the impugned order of the Tribunal on an erroneous assumption that any direction for payment by the tenant to the landlord of any amount at any rate above the contractual rate of rent could not have been made. We cannot countenance the view taken by the High Court. We may place on record that it has not been the case of the tenant- respondent before us, nor was it in the High Court, that the amount of Rs.15,000/- assessed by the Rent Control Tribunal was unreasonable or grossly on the higher side."
11. Learned counsel for the respondent/plaintiff/applicant has also relied upon the judgment rendered by this Hon'ble Court at Jaipur Bench in Prithvi Singh Vs. Pahap Singh reported in 2006(4) RLW 3143, the relevant portion of the said judgment reads as follows:
"7. In Atma Ram Properties (P) Ltd. (Supra), their Lordships of the Apex Court held that landlord-tenant litigation constitutes a large chunk of litigation pending in the courts and tribunals. The litigation goes on for unreasonable lengths of time and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can thereby afford to perpetuate the life of litigation and continue in occupation of the premises. It is thus evident that while passing order of stay under Rule 5 of Order 41 CPC, the appellants court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably (Downloaded on 15/02/2020 at 08:26:40 PM) (7 of 8) [CFA-440/2017] compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of appeal being dismissed and in so far as those proceedings are concerned. It must, therefore, be held that this Court is competent to impose reasonable terms to compensate the decree holder while passing an order under the provisions of Order 41 Rule 5 CPC.
8. The plaintiff respondent in support of contents of his application under Section 151 CPC to the effect that suit premises could have been let out at the rate of Rs. 20000/- per month has filed two documents. Ex. A/2 is the rent note executed by landlord Sushil Kumar in favour of M/s. Kaya Kulp Care of Kulsum Malik for the purposes of use of premises for non:residential purpose. Another document Ex. A/1 is the lease deed executed by Smt. Shanti Bisnoi in favour of Anil Malik which shows that tenanted premises viz., Flat No. G2 consists of built up area of 1188 Sq. feet and is a part of multi storied building Rompam Enclave.
11. The stay order dated 29.8.2005 passed by this Court stands modified accordingly. "
12. Learned counsel for the respondent/plaintiff/applicant also submits that due to unavoidable reasons, powers could not be exercised but that does not bring to an end the right of the respondent/applicant, who is the landlord, to seek mesne profits for the disputed premises in question, particularly, in light of the fact that the eviction is not being permitted.
13. After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent laws cited at the Bar, this Court finds that the application seeking vacation of stay, which could not be permitted because the stay order is already confirmed, but the present application is simultaneously seeking mesne profits, which could be granted by this Court, since the eviction was being protected by the aforequoted interim order. (Downloaded on 15/02/2020 at 08:26:40 PM)
(8 of 8) [CFA-440/2017]
14. This Court records its preliminary satisfaction that the amount arrived at by the learned court below, as mesne profits, is correct.
15. In view of the above, the present application is partly allowed. The appellant/non-applicant/tenant shall be required to pay the minimum rent @ Rs.6,500/- of March, 2013 and mesne profits @ Rs.10,000/- from 01.04.2013 onwards. In case, the appellant/non-applicant fails to pay the due rent, arrears of rent and mesne profits within a period of twelve weeks from today, the interim order dated 12.09.2017 passed by this Hon'ble Court shall stand vacated and the respondent/applicant/landlord shall be free to execute the impugned judgment and decree. The interim order confirmed on 05.05.2018 accordingly, stands modified.
16. After this application was partly allowed, learned counsel for the appellant/non-applicant submits that since the stage of Order 41 Rule 5 CPC has already passed and the stay order stood confirmed, therefore, the question of Order 41 Rule 5 sub rule 5 read with Order 41 Rule 1 sub rule 3 CPC will not apply. Upon such submissions, this Court holds that the conditions of Order 41 Rule 5 sub rule 5 and the conditions of Order 41 Rule 1 sub rule 3 CPC will continue to apply because it was an ex-parte order and while deciding the mesne profits, this much consideration has to be given to the respondent/landlord. In the basic relationship of landlord and tenant, if a tenant wants to oppose the eviction, then he has to bear the consequence thereof by making some compensation to the landlord.
(DR. PUSHPENDRA SINGH BHATI),J 205-Zeeshan/-
(Downloaded on 15/02/2020 at 08:26:40 PM) Powered by TCPDF (www.tcpdf.org)