IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 485 of 2000. Judgement reserved on: 5.8.2010. Date of decision: 27.9.2010. Durga Singh Thakur ….. Appellant. Vs. Sat Pal & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. G.D.Verma, Senior Advocate with Mr. B.C.Verma, Advocate. For the Respondents : None. Kuldip Singh, Judge. This appeal is directed against the judgement and decree dated 1.6.2000 passed by learned District Judge, Shimla in Civil Appeal No. 128-S/13 of 1998 modifying the judgement and decree dated 29.5.1998 passed by learned Sub Jude Ist Class, Court No. II, Shimla in case No. 217/1 of 95/90. 2. The appellant was plaintiff and he filed a suit for recovery of Rs. 5616/- on account of use and occupation charges against respondents Sat Pal, Parkash Chand, Ishwar Dass, Lal Singh and Sukh Dev on the grounds that property known as upper floor, Ram Singh House, Cart Road, Shimla is owned by appellant, Sukh Dev respondent was statutory tenant in the premises on payment of Whether the reporters of the local papers may be allowed to see the Judgment? yes …2… Rs.1400/- per month excluding taxes. Respondent Sukh Dev left Shimla in the year 1982 and sublet the premises to Sat Pal, Parkash Chand, Ishwar Dass and Lal Singh. The appellant had filed ejectment petition against respondent No. 6 Sukh Dev, which was allowed on the grounds of subletting and arrears of rent on 8.12.1996 for the period 1.4.1982 to 31.8.1985. The respondent Sukh Dev did not deposit the arrears of rent. The appellant had filed execution for recovery of possession, Sat Pal, Parkash Chand, Ishwar Dass and Lal Singh filed an application for stay of proceedings. They also filed civil suit and took the plea that they are tenants in their own capacity. It has been proved in the eviction order that Sat Pal, Parkash Chand, Ishwar Dass and Lal Singh are sub-tenants and have no right to retain the possession of the premises. It was alleged that Sat Pal, Parkash Chand, Ishwar Dass and Lal Singh had not paid any amount since 1982, they are in possession of the premises and are liable to pay use and occupation charges. In view of limitation, the appellant had restricted his claim from 1.6.1987 to 31.5.1990 at the rate of Rs.1600/- per annum alongwith 9% interest and taxes total Rs.5616/-. The appellant has prayed 18% per annum future interest from the date of filing of the suit till realization of the suit amount. 3. The suit was contested by Sat Pal, Parkash Chand, Ishwar Dass and Lal Singh, in which preliminary objections of maintainability, mis-joinder of parties, cause of action, jurisdiction, there is a relationship of landlord and tenant and therefore, only rent is payable, stay of suit under Section 10 CPC as similar question between the parties is involved in an earlier suit, which is in appeal …3… and pending, estoppel and better particulars of the premises have been taken. On merits, the claim of the appellant was denied. On 10.9.1991, name of Sukh Dev was deleted from the array of the parties by learned Sub Judge. The defendant No. 3 Ishwar Dass died on 15.10.1993 and his legal representatives respondents No. 3 and 4 were brought on record. The replication was filed. On the pleadings of the parties the following issues were framed:- 1. Whether the plaintiff is entitled to recover the suit amount as alleged? OPP. 2. Whether the suit is not maintainable, as alleged in preliminary objection No.1? OPD. 3. Whether the suit is bad for mis-joinder of parties and causes of action as alleged? OPD. 4. Whether the suit is liable to be stayed u/s 10 C.P.C. as alleged? OPD 5. Whether this court has no jurisdiction to try this suit as alleged? OPD. 6. Whether the plaintiff is estopped from filing this suit by his act and conduct as alleged? OPD. 7. Whether the plaint is bad for want of better particulars as alleged? OPD 8. Relief. The issue No. 1 was answered in affirmative, issues No. 2 to 7 in negative and the suit of appellant was decreed on 29.5.1998 for Rs.5616/- on account of use and occupation charges alongwith 12% interest per annum. It was also held that appellant is entitled to 12% interest per annum from the date of judgement till realization. In appeal, the learned District Judge on 1.6.2000 has held that appellant is entitled to the amount equivalent to rate of rent Rs.1402.50, total …4… amounting to Rs.4207.50 on account of principal and Rs.331/- on account of interest at the rate of 9% per annum and Rs.432/- on account of taxes. The learned District Judge has held that total amount payable comes to Rs.4970.50 and modified the decree of trial court and passed a decree for a sum of Rs.4970.50 alongwith interest at the rate of 12% per annum from the date of suit till the date of payment alongwith costs. It has also been held that liability of respondents Sat Pal and Parkash Chand to satisfy the decree will be to the extent of 1/3rd plus proportionate costs and interest. The remaining 2/3rd amount of the decree with proportionate costs and interest shall be payable by respondents No. 3, 4 and 5. The appellant has come in second appeal against judgement and decree dated 1.6.2000, which has been admitted on following substantial question of law:- Whether in view of the controversy between the parties that the respondents are either liable to pay the use and occupation charges or rent of the demised premises, the first appellate court was not (sic) in dismissing the suit of the appellant? 4. I have heard the learned counsel for the appellant and have also gone through the record, none appeared on behalf of the respondents. The learned counsel for the appellant has submitted that learned District Judge has erred in modifying the judgement and decree dated 29.5.1998 passed by the learned Sub Judge and prayed for acceptance of appeal. 5. The substantial question of law, referred above, is taken up for determination. The appellant had filed suit for use and …5… occupation charges. The learned Sub Judge had decreed the suit and awarded use and occupation charges at the rate of Rs.1600/- per annum. The case of the appellant in plaint is that premises was rented out to Sukh Dev at the rate of Rs.1400/- per month excluding taxes, who left the premises in the year 1982 and sublet the premises to Sat Pal, Parkash Chand, Ishwar Dass and Lal Singh. In these circumstances, the appellant had claimed use and occupation charges at the rate of Rs.1600/- per annum. But while appearing as PW 1 Durga Singh appellant has stated that Sukh Dev as tenant was paying Rs.1400/- per annum. The learned Sub Judge has not recorded a specific finding that in fact the rate of use and occupation charges of the premises is Rs.1600/- per annum. The learned District Judge has, however, awarded the amount to appellant almost at the rate on which the premises was rented out by the appellant to Sukh Dev. The difference of amount claimed and amount decreed by learned District Judge is very small, therefore, I do not think it proper to interfere with the impugned judgement and decree. I have decided RSA No. 127 of 1998 vide separate judgement of today. The rights of the parties shall be governed as per the judgement and decree in RSA No. 127 of 1998. Therefore, with these observations, the substantial question of law, referred above, is disposed of and appeal is accordingly dismissed with no order as to costs. September 27, 2010. ( Kuldip Singh ), (Hem) Judge.