CIVIL REVISION NO.2533 of 2006 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 08, 2008 Rishi Sudhakar .....Petitioner VERSUS Pran Nath and others ....Respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Akshay Bhan, Advocate, for the petitioner. Mr. Sham Lal Bhalla, Advocate, for the respondents. **** RANJIT SINGH, J. The petitioner has filed this revision against the order dated 31.1.2006 passed by Civil Judge (Senior Division), Ludhiana, declining his prayer for issuing warrant of possession as the respondents have not observed the condition agreed for retaining possession in terms of the agreed terms. The petitioner, who has an order of eviction in his favour, filed an application before the Court, pointing out non-observance of the conditions contained in order dated 15.2.2005 passed by this Court. CIVIL REVISION NO.2533 of 2006 :{ 2 }: The case has long and chequered history. Noticed in brief, the facts are that suit for possession filed by the petitioner was decreed on 28.4.2004. The appeal filed by the respondents against the same was dismissed on 6.10.2004. The Regular Second Appeal filed by the respondents, however, was disposed of by an agreed order on 15.2.2005, violation of which is now alleged. Background of the case is that one Pran Nath was a licensee for one room at a licence fee of Rs.55/- per month. This licence was revoked and suit for mandatory injunction filed and was decreed in favour of the petitioner on 15.2.1966. The respondents filed an appeal and during the pendency of the same, the parties compromised and as such, on 20.12.1968, the respondents were allowed to continue as licensees. The respondents again committed a breach and the licence was terminated on 21.5.1998. The respondents, thus, were liable to hand over the vacant possession and to pay the mesne profits. The petitioner filed a suit for possession and recovery of mesne profits at the rate of Rs.3000/- per month from the date of filing of the suit till recovery of possession. The suit filed in this regard was contested by the respondents. The trial Court decreed the suit and rejected the plea of the respondents in regard to tenancy and held them licensees. The respondents remained unsuccessful in appeal and filed a Regular Second Appeal before this Court. The parties then agreed that the decree of the Courts below be affirmed but the respondents herein (appellants in the R.S.A.), given five years time to vacate the premises subject to their filing an undertaking within stipulated time to pay the arrears of CIVIL REVISION NO.2533 of 2006 :{ 3 }: rent for use and occupation of charges w.e.f. 1.11.2004 @ Rs.1000/- per month and liability prior to this date to be as per the orders of the Courts below. The appeal filed by the respondents was accordingly dismissed and they were given time to vacate the premises on or before 15.2.2010. This was subject to filing of undertaking and payment of arrears of rent. In this background, the petitioner has filed application, contending that the respondents had not adhered to the conditions stipulated in order dated 15.2.2005 inasmuch as they have neither paid nor deposited any arrears of rent/use and occupation charges prior to 31.10.2004 nor after 1.11.2004 in terms of the orders passed by the High Court. Since they were allowed to retain possession on fulfillment of conditions as stipulated, which they have failed to comply, the petitioner prayed for vacation of the premises. He accordingly prayed for issuance of a warrant of possession. The respondents resisted the prayer made in the application. They plead that the petitioner has suppressed material facts and point out that the conditions imposed by the Court have been fully complied with. Reference is made to an order passed by learned Additional District Judge, Ludhiana, on 4.7.2004 to show that the arrears of rent w.e.f. 1.11.2004 to 31.3.2005 have been deposited on 19.4.2005. The Civil Judge (Senior Division) has held that the order has been complied with and as such, declined to issue warrant of possession. Mr.Akshey Bhan, appearing for the petitioner, would point out to the order dated 28.4.2004, through which the Trial Court has CIVIL REVISION NO.2533 of 2006 :{ 4 }: allowed the suit of the petitioner. It is seen that the decree for recovery of Rs.8,034/- is passed in favour of the petitioner-plaintiff and against the defendants. The defendant-respondents were also directed to pay the mesne profits @ Rs.3000/- per month from the date of filing of the suit till the delivery of the demised premises to the petitioner. From this the counsel would contend that the action of the respondents in depositing the arrears of rent from 1.11.2004 to 31.3.2005 would not be the deposit of mesne profits, which was a condition precedent for allowing the respondents to retain possession till 2010. The counsel would also refer to the judgment passed by the lower Appellate Court, in regard to Issues No.3 and 4 relating to entitlement of the petitioner to recover the arrears of licence fee as also the mesne profits. The lower Appellate Court has held as under:- “No argument was advanced by the learned counsel for the appellant/defendant No.1 with regard to the findings recorded by the learned trial court on Issues No.3 and 4, that the respondent/plaintiff is entitled to recover the arrears of the licence fee as also the mesne profits. When the licence in favour of the appellant/defendant No.1 had been terminated by serving a notice upon him, it was open to the respondent/plaintiff to claim the mesne profits after the date of the termination of the licence i.e. after 21.5.98. I, therefore, affirm the findings of the trial Court on Issues No.3 and 4.” The counsel for the respondents, however, has placed CIVIL REVISION NO.2533 of 2006 :{ 5 }: before me a copy of the order dated 23.6.2004 passed by Additional District Judge, Ludhiana, where operation of the impugned decree passed by the trial Court was stayed during the pendency of the appeal. The lower Appellate Court had stayed the operation of the impugned decree on the condition that the respondents shall deposit the arrears of licence fee of Rs.55/- upto date and also make payments of mesne profits @ Rs.3000/- as assessed by the learned Trial Court from the date of decree and further that they would furnish the security in regard to the mesne profits allowed by the Trial Court upto the date of the decree. Pursuant to this order, the respondents appear to have deposited the arrears of mesne profits from the date of decree to state that they have complied with the orders of the Courts below. This order was passed as an interim measure at the time of issuing notice of the appeal by the lower Appellate Court and would accordingly stand merged in the final order passed by the lower Appellate Court on 6.10.2004. The arrears of mesne profits, thus, required to be paid will be governed by the final order passed by the Appellate Court on 6.10.2004, the relevant portion of which has been reproduced above. Once the finding of the Trial Court in regard to the payment of mesne profits from the date of suit has been upheld, the respondents have to deposit the mesne profits from the date of suit and not from the date of decree. The date of suit, as can be noticed, is 21.7.1998 and accordingly the respondents have to pay arrears of mesne profits w.e.f. this date. This concededly has not been done. Accordingly, the petitioner, in my view, has certainly made out a case for issuance of a warrant of possession as the CIVIL REVISION NO.2533 of 2006 :{ 6 }: respondents have violated the conditions, for which they were allowed to retain possession till February 2010. I would, however, still deem it appropriate to grant one more opportunity to the respondents to deposit the mesne profits in terms of the order of the Trial Court as well as the lower Appellate Court within a period of three months from today. It is made clear that the respondents would deposit the mesne profits from 21.7.1998 till date and would continue to deposit the same till the date of vacation of the premises. In case the respondents fails to deposit the mesne profits, as now directed, the petitioner shall be entitled to the issuance of warrant of possession for getting the possession of the demises premises immediately. The revision petition is accordingly disposed of. May 08,2008 ( RANJIT SINGH ) khurmi JUDGE