IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA Nos.311 and 312 of 2007. Judgment Reserved on: 10.09.2009. Date of decision: 06.10.2009. 1. RSA No.311 of 2007. Jugal Kishore Sharma …Appellant Versus Ved Prakash Sharma …Respondent 2. RSA No.312 of 2007. Jugal Kishore Sharma …Appellant Versus Ved Prakash Sharma …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. RSA No.506 of 2004. For the Appellants: Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. For the Respondents: Mr.Ajay Kumar with Ms.Shilpa Sood, Advocates. RSA Nos.311 and 312 of 2007. For the Appellants: Mr.Bhupender Gupta, Senior Advocate with Mr.Neeraj Gupta, Advocate. For the Respondents: Mr.R.K. Gautam, Senior Advocate with Ms.Archana Dutt, Advocate. Dev Darshan Sud,J. Both these appeals are being disposed of by a common judgment as they call for determination of 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 common question of law. The identity of the parties in both these appeals is the same. RSA No.311 of 2007. The suit out of which this appeal arises was instituted by Shri Ved Prakash, respondent herein. He claimed a decree for Rs.1,08,000/- for mesne profits for the use and occupation of the suit premises situated in Khasra No.619, Mauza Sirinagar, Tehsil Kandaghat, District Solan, consisting of two rooms measuring 12’-6” x 6’-6” and 12’-6” x 10’-9” being used by the appellant-defendant as commercial premises where he is running a Café. It was pleaded that the plaintiff had earlier instituted a suit for eviction against the defendant terminating his tenancy in the suit premises which suit had been decreed. Despite the orders of ejectment, the appellant continued to occupy the suit premises and he was liable to pay a sum of Rs.3000/- per month w.e.f. 1.7.1996. The suit was for recovery of mesne profits for three years starting from 1.7.1996. It was instituted on 1.11.1999 and decided on 25.11.2006. On the settled issues the learned trial Court partly decreed the suit of the plaintiff- respondent. Be it stated that the plaintiff, at the relevant point of time, was eighty years of age and had become hard of hearing which necessitated his son to appear as a witness for or on his behalf as his 3 power of attorney and being familiar with the facts of the case. The suit premises were rented out to the appellant-defendant on a monthly rent of Rs.175/- which was lateron increased to Rs.350/- per month. Ex.P-2 is the affidavit of Rameshwar Dass who had stated on oath that he had let out one shop measuring 6’x 9’ on rent to one Kuldeep Kumar Sood, Tailor, on a monthly rent of Rs.1500/- per month. These premises are not situated on the National Highway. The plaintiff-respondent also examined Shri Rajeev Sharma, Gram Panchayat Vikas Adhikari as PW-3, who has stated in his evidence that some shops were rented out by Gram Panchayat, Sirinagar after 1996 which are situated on National Highway No.22. The rate of rent of those shops was Rs.2500/- per month. The shops are situated in the first floor which is adjoining and abutting the National Highway. The plaintiff (PW-1) in his affidavit stated in clear and unequivocal terms that the shop let out to the appellant-defendant was situated on the National Highway. In his evidence, filed on affidavit vide Ex.D-1, the appellant-defendant has taken a stand that the suit has been filed against him only for the purpose of harassing him and not for vindication of any legal right. There is nothing in his evidence so far as the market rent of the suit premises or other 4 similar accommodation or to counter the evidence led by the respondent-landlord. I find from the judgment passed by the learned trial Court in this case that the defendant has not produced any other evidence despite repeated opportunities having been granted. In-fact he prayed for time before the learned trial Court. On the conspectus of the entire material/evidence on record the learned trial Court assessed the market value of the suit premises at Rs.2000/- per month. The suit was accordingly decreed alongwith interest. Appeal preferred by the defendant-appellant to the Court of learned District Judge was dismissed. The findings of the learned trial Court were affirmed and the appeal dismissed but the judgment imposing cost of Rs.2500/- was set aside. The present appeal was admitted on substantial questions of law No.1 and 2 as filed with the appeal, namely:- “1. Whether both the courts below have committed grave error of law and jurisdiction in rejecting the application of Shri Rajinder Kumar Sharma one of the partners of M/s Anupam Coffee house Kandaghat, the partnership concern to be impleaded as party to the suit when it was specific defence taken by the defendant- appellant that it is the partnership concern which is the tenant in the demised premises? 5 2. Whether both the Courts below have acted with material illegality and irregularity in not considering that suit against defendant-appellant was not maintainable without determining the tenancy of the partnership firm as per the provisions of Transfer of Property Act?” RSA No.312 of 2007. Brief facts in this case need not be reiterated as this again is a suit for recovery of Rs.1,05,000/- as mesne profits which has been filed for the subsequent period and decreed for a sum of Rs.70,000/-. In appeal, the findings of the trial Court have been affirmed. On the two substantial questions of law which are identical in both the cases, on the evidence on record, I cannot persuade myself to hold that the Courts below have committed any illegality in the appreciation of evidence. It is only the evidence of the plaintiff which proves the mesne profits. When considered in its totality that has been considered in its proper perspective for the purposes of award of mesne profits. The defendant has simply stated that the suit has been filed/instituted by the plaintiff only for the purpose of harassing him and not for any other reason. 6 On the first question, all that I need say is that both the Courts below have correctly determined the question of fact on the assessment of mesne profits payable by the appellant-defendant. The question of fact having been finally determined, I find no perversity in the appreciation of evidence and the conclusion arrived at by the Courts below. These findings cannot be re-agitated in appeal. The second question raised by the learned counsel that the tenancy has not been properly determined, need not detain this Court any further. It is undisputed before me that Civil Suit No.53/1 of 1996, titled: Ved Parkash Sharma vs. Jugal Kishore Sharma, was instituted by the respondent-plaintiff for recovery of possession of the suit premises invoking the provisions of Section 106 of the Transfer of Property Act. This suit was decreed on 20.6.1998 and appeal preferred against this judgment and decree was dismissed by the learned District Judge in Civil Appeal No.45-S/13 of 1998, on 8.12.1998. Thereafter, CMP(M) No.2 of 2000, was filed by the appellant in this Court in an appeal challenging the legality of this judgment and decree. The application was for consideration of delay in instituting the appeal. The facts noted by this Court in the application seeking condonation of delay may be noticed:- 7 “The petitioner, who was defendant in Civil Suit No.53/1 of 1996, before the learned Sub Judge Ist Class, Kandaghat, suffered a decree for possession by way of ejectment from the suit premises comprising of a shop of two rooms situate in Kandaghat bazaar, on 20.6.1998. The judgment and decree, as passed by the learned trial court, was assailed by the petitioner before the learned District Judge, Solan, by filing C.A. No.45-S/13 of 1998. Such appeal was dismissed by the learned District Judge. The petitioner thereafter approached this Court by way of a revision petition which was filed under section 24(5) of the Himachal Pradesh Urban Rent Control Act, 1987. such revision petition, which was filed on 27.3.1999, against the judgment and decree dated 8.12.1998 of the learned District Judge, Solan, was dismissed by the learned single Judge of this court, on 8.10.1999, as having been withdrawn since the same was not maintainable under section 24(5) of the H.P. Urban Rent Control Act, 1987. While dismissing the revision petition, as withdrawn, permission was given to the petitioner to file a Second Appeal against the impugned judgment and decree. Thereafter, the petitioner filed a Regular Second Appeal against the judgment and decree dated 8.12.1998 of the learned District Judge, Solan, before this court on 15.10.1999, that 8 is, after a delay of 9 months and 3 days. The present petition has been made under section 5 of the Limitation Act, 1963, seeking the condonation of the delay of such 9 months and 3 days in preferring the appeal, against the judgment and decree of the learned District Judge, Solan. While seeking the condonation of the delay of such 9 months and 3 days in preferring the appeal, against the judgment and decree of the learned District Judge, Solan. While seeking the condonation of the delay, it has been averred in para 3 of the petition, as under:- “That the present applicant/appellant initially file a Civil Revision No.266/99 under bonafide mistake instead of RSA before this Hon’ble Court was please to order that the civil Revision is not maintainable and this Hon’ble Court has given liberty to the appellant/applicant to file a Regular Second Appeal. The copy of the order is also annexed herewith this Regular Second Appeal on page No.35 and 36.” Thus, a bare perusal of the pleadings contained in the abovesaid para shows that the petitioner has sought the condonation of delay merely on the ground that under a bonafide mistake he had filed a Civil Revision 9 Petition instead of a Regular Second Appeal against the judgment and decree dated 8.12.1998 of the learned District Judge, solan. It is not a case of the revision petition having been filed by the petitioner on the basis of the wrong legal advice rendered to him. The learned counsel for the petitioner, while placing reliance on the ration by the apex court in Collector, Land Acquisition, Anantnag and another v. Mst.Katiji and others (AIR 1987 SC 1353), has contended that in dealing with the matters for the condonation of the delay, the courts should adopt a liberal approach and a pedantic approach is not required to be taken. It h as further been contended that the petitioner was not in any way benefited by the delay in coming to the court. In P.K.Ramachandran v. State of Kerala and another ((1997)7 SCC 556), it has been held by the apex court that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. This view was again reiterated in Laxchhman Das Arora vs. Ganeshi Lal and others ((1999)8 SCC 532). Following the above ratio, a Division Bench of this Court in Prem Chand vs. Ruip Chand and others (CMP(M) 10 No.482 of 1999 decided on 26.4.2000) has held:- “Be it stated that law of limitation may harshly affect a party to the case but it has to be applied with all its rigour as provided by the statute. The Court may in exercise of powers under Section 5 of the Limitation Act condone the delay in filing application/appeal if sufficient cause therefore is shown. However, the Courts have no powers to condone the delay and thereby extend the period of limitation on equitable grounds nor can the delay be condoned in a casual manner, otherwise the very purpose of law of limitation will be defeated.” Therefore, on the facts and in the circumstances of the case, this court is not satisfied that there is any explanation much less reasonable and sufficient one for the condonation of the delay of 9 months and 3 days in filing the Second Appeal. Resultantly, the present petition is dismissed.” Thereafter no further proceedings have been taken by the respondent. Needless to say that in the suit preferred by the respondents it was held that the termination of the tenancy of the appellant-defendant 11 was in accordance law. The question as raised now does not arise now for determination as it finally stands determined. It may also be noticed that the appellant has preferred an appeal against the judgment passed by the learned executing Court in Objection Petition under Order 21 Rule 97 of the Code of Civil Procedure which was registered as RSA Nos.206 and 207 of 2007, titled: M/s.Anupam Coffee House and Another vs. Ved Prakash and Another. This appeal was disposed of in terms of the judgment passed by this Court in RSA No.506 of 2004, titled: Sunit Kumar vs. Laxmi Chand, incorporating the provisions of the Himachal Pradesh Urban Rent Control Act, 1987. I will advert to the judgment subsequently. What is significant to notice is that in the suit for possession, which was instituted by the respondent, three issues had been framed. One of the settled issues is; whether the tenancy of the appellant had been validly terminated, the second is; whether the plaintiff was entitled for possession of the demised premises and third; whether the plaintiff was entitled to mesne profits. On the first issue which was on the valid termination of the tenancy, the learned trial Court held that the tenancy had been validly terminated in accordance with law and this finding which was challenged before the appellate Court was up held. In this view of the matter, the question raised does not survive for determination. 12 Learned Senior counsel appearing for the appellant submits that in view of the fact that the provisions of the Himachal Pradesh Urban Rent Control Act, 1987, (hereinafter referred to as the `Act’), have been made applicable to the area where the suit premises are situated, the decree for mesne profits cannot be executed at all. He submits that such execution, if permitted, would defeat the very object of the Act which cannot be permitted in law. Adverting to RSA No.506 of 2004, titled: Sunit Kumar vs. Laxmi Chand, on the questions formulated for its decision, a Division Bench of this Court held:- “To sum up we hold that the Civil Court has the jurisdiction to entertain a suit even in respect of an area where the Rent Act is applicable. We also hold that in case the area was not within the purview of the Rent Act and during the course of legal proceedings area where the disputed premises are situate is brought within the ambit of the Rent Act then also the proceedings can continue and taken to their logical conclusion but the decree of eviction will not be executable. We also hold that the decree passed by a Civil Court shall be executable in respect of other matters except in regard to eviction of a tenant. Therefore, if the Civil Court passes a decree for payment of rent/mesne profits/damages and also a decree for possession, it is only the 13 decree for possession which is unexecutable but the decree for payment of rent/mesne profits/damages is executable in accordance with law. The Rent Act only gives protection from eviction and not on other counts.” This is a complete answer to the submissions made by the appellant-defendant herein to urge that even where the specific provisions of the Rent Act were applicable no decree for mesne profits can either be passed or executed. The submissions made by the learned Senior Counsel appearing for the petitioner is, therefore, rejected as being without any merit whatsoever. The Division Bench in the appeal as preferred, clearly ruled that Section 14 of the Act only grants protection to the tenant from eviction and does not bar the jurisdiction of the Civil Court. While deciding RSA No.504 of 2004, titled: Sunit Kumar vs. Laxmi Chand, this Court had noticed that the H.P. Urban Rent Control Act was made applicable to the town of Kandaghat by Notification dated 11.11.1998 when it was declared as an Urban Area under Section 2(k) of the Act. On 30th May, 2003 this Notification was rescinded and was again re- promulgated on 5th May, 2008. The relevant dates in RSA No.311 of 2007 are that the suit was instituted on 1.11.1999 and decreed on 25.11.2006. First appeal was instituted on 23.12.2006 and dismissed on 4.5.2007. In RSA No.312 of 2007 the suit was instituted on 14 17.9.2002 and decreed on 25.11.2006. First appeal was instituted on 10.1.2007 and decided on 4.5.2007. These dates have been noticed and show that either the suit was instituted or decree was passed by the trial Court/First appellate Court when the Rent Act was in force and at one point was either applicable or not applicable during the continuation of the action. In any event on the decision as rendered by this Court the dates would loose significance. Learned Senior Counsel appearing for the appellant has urged with vehemence that the suits out of which these appeals arise were not maintainable as there had been no valid termination of tenancy and that for all intents and purposes the appellant was a tenant who had the protection of the H.P. Urban Rent Control Act and in that view of the matter, nothing over and above the rent payable under the Act could be demanded or paid. So far as the determination of the tenancy is concerned, needless to say that the question already stands concluded and has attained finality in the previous litigation between the parties and cannot be raked-up again. So far as the second aspect of the matter is concerned, it already stands concluded by a Division Bench of this Court. Both these appeals are accordingly dismissed. There shall be no order as to costs. October 6, 2009. (Dev Darshan Sud) (aks) Judge