C.R.No.1386 of 2002 (O&M) 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. C.R.No.1386 of 2002 (O&M) Date of decision:19.12.2011 M/s Bird Travels (P) Ltd .....Petitioner vs. Smt.Amarjit Kaur and others ....Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG. --- Present: Mr.P.S.Arora, Advocate, and Mr.Gautam Dutt, Advocate, for the petitioner. Mr.M.L.Sarin, Senior Advocate, with Ms.Hemani Sarin, Advocate, for the respondents. -- Rakesh Kumar Garg,J. This is tenants revision petition against the order dated 15.6.2001 of the Rent Controller Chandigarh ordering its eviction from the demised premises and the judgment dated 11.1.2002 of the Appellate Authority dismissing the appeal against the aforesaid order of eviction. Shorn of unnecessary details, the petitioner was ordered to be evicted from the demised premises (commercial area measuring 660 Sq.ft on ground floor of SCO No.55-56 Sector 17 Chandigarh) on the ground that the same is required by the respondent landlords for their personal use and occupation. The petitioner had challenged the aforesaid orders of eviction by way of instant revision petition. Noticing the contentions raised on behalf of the petitioner, this Court passed the following order on 8.3.2002:- “ Learned counsel for the petitioner cites a judgment of the Supreme Court in Shabir Ahmad Vs. Sham Lal and another JT 2002 (1) SC 646 and argued that the plea of personal C.R.No.1386 of 2002 (O&M) 2 necessity is available in respect of a property situated in Chandigarh only for residential building. The plea of personal necessity is not available in cases where it is a commercial building. Notice of motion. In the meantime, ejectment of the petitioner shall remain stayed. At this stage, Sh.Gurdev Singh, Advocate, accepts notice of motion and requests for some time to address the arguments. Adjourned to 6.5.2002. A copy of the order be given dasti”. Thereafter this appeal was admitted vide order dated 6.5.2002 which reads thus:- “ Learned counsel for the petitioner has brought to the notice of this court that in the proceedings pending before the Hon'ble Supreme Court in Civil Appeal No.2894 of 2001, one of the questions of law raised therein is identical to one of the questions raised in the present revision. Admitted. Dispossession stayed in the meantime. The Interim order staying dispossession of the petitioner-tenant is subject to the condition that all arrears of rent are tendered on or before 31.5.2002 and future rent is tendered in advance by the 7th day of every month. In case of a single default, the interim order shall stand vacated. The parties are at liberty to make an application for fixing the matter for hearing as and when the aforesaid civil appeal is decided by the Hon'ble Supreme Court”. Respondent landlord filed C.M.No.3166/CII of 2007 seeking listing of the case for final hearing on the ground that Civil Appeal No.2894/2001, as referred to in the order dated 6.5.2002 had been decided by the Supreme Court in favour of the landlords. The said civil miscellaneous application C.R.No.1386 of 2002 (O&M) 3 was allowed vide order dated 25.1.2008 and the revision petition was set down for final hearing. However, the final hearing of the case could not taken place. The respondent-landlords filed another C.M.No.14084/CII of 2010 for taking up of the case for hearing. The said application was also allowed vide order dated 26.5.2010 and the case was ordered to be listed for final hearing on 2.7.2010. Thereafter, on 24.9.2010 none appeared on behalf of the petitioner and the case was adjourned. On 15.12.2010 again none appeared for the petitioner and the revision petition was dismissed for non prosecution. The said order reads thus:- “Mr.M.L.Sarin,Senior Advocate, assisted by Ms.Hemani Sarin, Advocate, states that civil appeal No.2894, which was pending before the Hon'ble Apex Court has been decided in favour of the landlord saying, within the territory of Chandigarh eviction on the ground of personal necessity can be ordered pertaining to the commercial building also. He further states that only on this ground that identical question of law is pending before the Hon'ble Apex Court, notice of motion was issued and dispossession was stayed. None was present for the petitioner on 24.9.2010. Even today none is present to press the petition. Dismissed for non prosecution” The aforesaid said order was recalled on an application i.e. C.M.A.No.32382-CII of 2010, made by the petitioner vide order dated 10.1.2011 and the main case was ordered to be listed as per roster. The respondent landlord filed another C.M. No.13588/CII of 2011 seeking early hearing of the case. Thereafter respondent applicant filed C.R.No.1386 of 2002 (O&M) 4 an application for grant of mesne profits to the respondent landlord. Petitioner filed reply to the aforesaid application in Court on 12.12.2011 and the case was adjourned to 19.12.2011 for consideration on the question of mesne profits. Petitioner also moved C.M.A. No.30279/CII of 2011 which came up for hearing today i.e. on 19.12.2011 whereby it has sought to withdraw the instant revision petition. The only averment made in this application reads thus: “That the petitioner Company has decided not to prosecute the Civil Revision and to withdraw the same. In the circumstances the Revision petition is liable to be dismissed being not prosecuted and withdrawn”. Since the petitioner company does not want to prosecute the revision petition and has prayed for withdrawal of the same probably the said prayer cannot be opposed. However, it may be noticed at this stage that despite order of eviction passed on 15.6.2001 against which appeal filed by the petitioner was also dismissed on 11.1.2002. Petitioner has enjoyed the possession of the demised premises by virtue of the revision petition and the orders passed therein. It may be relevant at this stage that it could not be disputed that the instant revision petition is covered by a judgment of the Hon'ble Supreme Court in the case Rakesh Vij Vs. Dr. Raminder Pal Singh Sethi,JT, 2005 (12) SC 1, pronounced on September 30, 2005. Not only this, in view of the various judgments of the Hon'ble Supreme Court the respondent landlord is entitled to the mesne profits with effect from the date of order of eviction, for the use and occupation of the demised premises by the petitioner, on the basis of interim order passed by this Court in the C.R.No.1386 of 2002 (O&M) 5 instant revision petition. Though the rate of mesne profit per month payable by the petitioner tenant is disputed but it could not be denied before this Court that petitioner is liable to pay the mesne profit for a period of more than 10 years i.e. with effect from 16.6.2001 till date. It may also be observed at this stage that respondent has claimed mesne profits at the rate of Rs.4,95,000/- per month from the date of passing of the ejectment order by the Rent Controller till the time it continues to be in possession of the petitioner on the basis of prevalent market rent in the vicinity of the demised premises as depicted by the registered lease deeds produced on record as Annexures A1 and A2 with the application for grant of mesne profits. Though petitioner has filed its reply disputing its liability to pay, however, no document has been produced on record to controvert the alleged market rent, as prevalent in the area. However, at the time of hearing, learned counsel appearing on behalf of the petitioner has produced before this Court two lease deeds according to which the rate of rent for 700 sq.feet area of ground floor of SCO No.61-62 in Sector 17-C Chandigarh is shown to be Rs.48,000/- per month. Learned counsel appearing on behalf of the petitioner could not controvert the fact that the said lease deed pertains to a property which was already in possession of a tenant, who has agreed to enhance the rent and, thus, the said lease deed does not depict the correct picture of prevalent market value. On the other hand, lease deeds produced by the respondent landlord are admittedly of the building of similar nature which are in the vicinity of the demised premises. These lease deeds pertains to third persons and could not be disputed. C.R.No.1386 of 2002 (O&M) 6 In the case of Surinder Singh vs. Dr.Davinder Mohan, 2006 (4)R.C.R.(Civil) 781, this Court has observed that mesne profits or compensation for the use and occupation of the premises has to be assessed at the same rate at which landlord would have been able to let out the premises on being vacated by the tenant. In the case of Anderson Wright and Co. vs. Amar Nath Roy and others, 2005(1) R.C.R(Rent) 624, the Hon'ble Supreme Court observed that the Appellate Court can reasonably compensate the decree holder for loss occasioned by delay in execution of the decree by grant of stay, in the event of the appeal being dismissed, and the tenant is liable to pay mesne profits or compensation for use and occupation of the premises from the date of decree of eviction at the same rate at which the landlord would have been able to let out the premises on being vacated by the tenant, and while determining the quantum of amount so receivable by the landlord, the landlord is not bound by the contractual rate of rent which was prevalent prior to the date of decree. It may also be noticed that this Court in the case of Ranjit Singh Rana vs. Manpreet Phulka and others, 2011 (3) PLR 664, after relying upon the guidelines culled out by the Hon'ble Supreme Court in Mohammad Ahmad v. Atma Ram Chauhari and others, 2005 (1) RCR (Rent) 1, observed that no orror can be found in the order of the Appellate Authority assessing the mesne profits of demised premises on the basis of registered lease deeds produced by the landlord which could not be controverted by the tenants who had not led any evidence regarding prevalent market rent in the vicinity of the demised premises. In the case of M/s Atma Ram Properties (P)Ltd vs. M/s Federal Motors Pvt. Ltd, C.R.No.1386 of 2002 (O&M) 7 2005 (1) R.C.R.(Rent) 1, the Hon'ble Supreme Court has observed that tenancy stands terminated with passing of decree for eviction and the tenant was 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 with effect from the date. In the case of State of Maharashtra and another v. M/s Super Max International Pvt.Ltd. & others, 2009(5) All MR 1001, the Hon'ble Supreme Court has observed that it is perfectly open to the court to direct tenant to pay rent higher than contractual rent. However, the Court will not fix any excessive, fanciful or punitive amount. It thus, cannot be disputed that respondent landlord is entitled to the payment of mesne profits as assessed by this Court after passing of the eviction order till its possession is handed over to the respondent landlord. Thus, in view of the principles, as enunciated by this Court and the Hon'ble Supreme Court, the mesne profits of the demised premises are assessed at Rs.3 lacs payable with effect from 6.5.2002 i.e. the date on which this Court admitted the revision petition and had stayed the dispossession of the petitioner. The application filed by the respondent landlord is disposed of determining the mesne profits at Rs.3 lacs per month and further directing the respondents to pay the arrears of mesne profits within one month from today. In case of failure of non payment of the mesne profits the respondent landlord will be entitled to recover the same in accordance with C.R.No.1386 of 2002 (O&M) 8 law. However, keeping in view the prayer of the petitioner, application is allowed and the revision petition is dismissed as not pressed. Resultantly, the petitioner is directed to hand over the vacant possession of the demised premises to the respondent landlord forthwith. The respondent landlord is also entitled to the mesne profits as assessed above. (Rakesh Kumar Garg) Judge December 19, 2011 rk