HIGH COURT OF HIMACHAL PRADESH AT SHIMLA LPA No. : 9 of 2005 and Cross Objections No.: 8 of 2006 Decided on: 28.7.2008. Vijaya Shakti Gupta ……… Appellant. Versus Rakesh Khanna ………Respondent. Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No For the appellant: Mr.K.D. Sood, Advocate. For the respondent: Mr.Anup Rattan, Advocate. Per V.K. Ahuja, J.: This is an LPA filed by the appellant under Clause 10 of Letters Patent of the Lahore High Court as applicable to the Himachal Pradesh High Court read with Section 10 of the Delhi High Court as applicable to the Himachal Pradesh High Court against the order passed by the learned Single Judge, dated 25.5.2005. By this impugned order, the learned Single Judge had partly allowed the application filed under Order 38 Rule 1 and under Order 39 Rules 1 and 2, read with Section 151 CPC and the respondent was directed to either deposit in cash or furnish continuing bank guarantee till the disposal of the suit to the extent of 50% of the agreed rent in the Registry of this Court by or before 31st August, 2005 inclusive of the amount due upto this date. This order shall also dispose of the cross objections filed by the respondent/defendant against the order passed by the learned Single Judge praying that the said order may be set aside. ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. The appellant alleged that he had filed a suit for possession and for damages against the respondent since the property was leased out to the respondent vide two written agreements, dated 28.4.1999 and 17.6.2000 and the third lease was oral and was for the residential portion, which was leased out at the rate of Rs.5,000/- per month w.e.f. July 1, 2000. It was alleged that the first agreement, dated 28.4.1999, had come to an end and the rent fixed was Rs.6.95 lacs payable in 12 periodical instalments. Similarly, in the second lease agreement, dated 17.6.2000, the rent fixed was at the rate of Rs.3.60 lacs payable in six periodical instalments. Thus, it was alleged that the defendant was in arrears of rent qua these premises and a sum of Rs.10,56,437.50P. was due and payable on account of rent when the suit was filed. The defendant admitted himself to be the tenant of the property but he contested the suit on various grounds. Alongwith the plaint, an application under Order 38 Rule 1 and Order 39 Rules 1 and 2 read with Section 151 CPC was filed by the plaintiff/appellant for a direction to the defendant to furnish a security for the past mesne profit in the court every month during the pendency of the suit and order for attachment before the judgment be passed as against the respondent. The said application was contested by the respondent and accordingly the same was allowed in the terms mentioned above. An appeal was preferred by the appellant and during the pendency of the appeal, an order was passed by this Court that the respondent is directed to pay to the appellant occupation charges at the rate of Rs.34,000/- per month by remitting the amount in the bank account, which amount was fixed provisionally subject to the result of the present appeal. We have heard the learned counsel for the parties and have gone through the record of the case. The contentions put forth by the learned counsel for the appellant were that the respondent is in arrears of rent and to secure the payment of the balance amount of rent due, the respondent should be directed to furnish bank guarantee to the extent of arrears of rent so that in the event of the suit being decreed as against the respondent, the appellant is able to recover the amount from the respondent. On the other hand, the learned counsel for the respondent submitted that the appellant has already taken possession of the residential house, which has been agreed to be sold to one Shri Lalit Kumar Chopra for which a suit for specific performance has also been filed and the possession has also been alleged to have been delivered to said Shri Lalit Kumar Chopra by the plaintiff. To substantiate his plea, the learned counsel for the respondent had sought to place reliance upon a receipt allegedly executed by said Lalit Kumar Chopra. This plea has been duly considered by the learned Single Judge, who made a reference to the compromise decree passed in a suit filed by the respondent as against the appellant for permanent and mandatory injunction restraining her from causing interference in the possession of the present respondent with respect to the property called as Whispering Winds Resorts and New Whispering Hotel. There is no substance in this plea raised by the learned counsel for the respondent that the possession has been taken over of the residential portion of the property by the appellant and, therefore, the respondent is not liable to pay the rent in respect of that portion. That plea shall be finally considered by the learned Single Judge while deciding the case and for the present there is nothing on the record to show that the possession has been forcibly taken from the respondent by the present appellant and, therefore, they are not entitled to the payment of the rent during the pendency of the suit in respect of residential premises. To substantiate his arguments, the learned counsel for the respondent has relied upon the following decisions. The first decision relied upon is in Raman Tech. & Process Engg. Co. and another v. Solanki Traders, (2008) 2 Supreme Court Cases 302, in which also an application under Order 38 Rule 5 was filed and the defendant was asked upon to furnish a security. A reference was made to these provisions by their Lordships and it was observed that the particulars of the claim in the plaint were not specified, therefore, no relief could be granted. The decision in V.G. Quenim and another v. Bandekar Brothers (P) Ltd., (2002) 10 Supreme Court Cases 513, shows that a temporary injunction against the alienation of property and order directing furnishing of security to avoid attachment of property before judgment was passed. It was held that the High Court erred in dismissing the appeal of defendant-appellants. Order directing furnishing of security under Order 38 Rule 5 was held liable to be set aside whereas injunction was affirmed. The decision in Vareed Jacob v. Sosamma Geevarghese and others, (2004) 6 Supreme Court Cases 378, shows that it was observed that the power of court to grant specified interlocutory reliefs, such as attachment before judgment or temporary injunction, varies depending on the circumstances falling under the prescribed rules. The observations made by their Lordships are keeping in view the facts of those cases. In the present case, the fact that the respondent is in possession of the properties in question have not been disputed specifically and the copies of the lease deeds have also been placed on record and keeping in view the agreed rent as per the lease deeds and the facts that the respondent is in possession of the disputed property, the learned Single Judge had passed the order calling upon the respondent to deposit 50% of the agreed rent. This Court, vide its interim order dated 30.6.2006, had assessed the rent after looking into the report of the Commissioner and had fixed the rent at Rs.34,000/- per month, which amount, keeping in view the property and the agreed rent, cannot be said to be excessive in any manner. The latest decisions of the Apex Court will rather show that their Lordships have gone to this extent that in appropriate cases, the market rent prevalent on the day should be made payable by a party in possession of the suit property. A strange argument was also raised by the learned counsel for the respondent that the appellant is proposing to shift to some other place outside Himachal Pradesh i.e. Jammu & Kashmir and, therefore, the interim order should not be affirmed. Since the respondent is in possession of the suit property and not the appellant and even if the appellant shifts to some other place, it does not affect the possession of the respondent over the suit property and it also does not affect his liability to pay the rent as agreed to, till it is finally determined by the learned Single Judge trying the case. Therefore, the interim order passed by the learned Single Judge and amended by this Court has to be observed during the trial of the case and the respondent shall continue to deposit Rs.34,000/- per month as rent subject to adjustment at the time of final decision. The respondent is also liable to furnish due security for the balance amount at this rate by furnishing bank security for suit amount to the satisfaction of the Registrar (Inspection) of this Court, if not already furnished, within one month from today. The order passed by the learned Single Judge stands modified as per the interim order referred to above, dated 30.6.2006, and as such the appeal is partly allowed to this extent. With these observations, the appeal filed by the appellant and the cross objections filed by the respondent stand disposed of. In view of the final disposal of the main appeal, all the pending miscellaneous applications shall also stand disposed of. (Deepak Gupta), Judge. July 28, 2008. (V.K. Ahuja), (TILAK) Judge.