Manmohan Singh v. Anju Gupta

1. This is an Application filed on behalf of the Petitioners seeking condonation of delay of 16 days in filing the Application for recall of order dated 14.12.2023.

2. Learned Counsel for the Respondents submits that he has no objection if the delay is condoned. 2.[1] Accordingly, the Application is allowed. CM APPL. 11111/2024 is taken up for hearing. CM APPL. 11111/2024[Seeking recall of order dated 14.12.2023]

3. This is an Application filed on behalf of the Petitioners seeking recall of order dated 14.12.2023. Learned Counsel for the Petitioners submits that the order has been passed based on the fact that the demised premises is at second floor and admeasuring of 700 sq. ft.

4. Learned Counsel for the Petitioners submits that the order recorded that the demised premises admeasures 700 sq. ft., however, as per him the demised premises admeasures 408.36 sq. ft. as per site plan.

5. Learned Counsel for the Respondents submits that the site plan sets out a measurement of only the covered area which is mentioned as 408.36 sq. ft. However, he submits that not only the covered area but the entire area which is an open terrace is being used by the Petitioners for the purposes of commercial activities. Thus, there is no infirmity in the order.

6. The order dated 14.12.2023 has affixed the user charges taking into account several factors including the area relying on the judgment of the Supreme Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd.: (2005) 1 SCC 705. 6.[1] It has been held in the Atma Ram case that this interim compensation is granted based on the discretion of Court in its judicial wisdom, to offset the detrimental effects of prolonged litigation on the landlord. The relevant extract reads as follows:

6.[2] Thus, the Appellate/Revisional Court while staying an eviction decree can direct payment of such compensation for continued use of the premises and the compensation would be at the same rate of rental at which the landlord would have been able to get if he had let out such premises after they were vacated by the tenant. The direction to pay mesne profits or use and occupation charges, will depend on the facts and circumstances of each case including the location of the property as well as its nature whether it is a commercial or residential area. 6.[3] The Supreme Court has upheld the law laid down in Atma Ram case, in a Judgment titled Martin and Harris Private Limited and Another v. Rajendra Mehta and Others: 2018 SCC OnLine 3783. 6.[4] Thus, the settled legal principle is that once a decree for eviction has been passed and such decree cannot be executed by the landlord in view of the fact that the Eviction Order is stayed, the tenant can be put to such terms which in the opinion of the Appellate Court would reasonably compensate the landlord for loss occasioned by a delay in execution of the decree for possession. The tenant is liable to pay mesne profits or compensation for use and occupation at reasonable rate as prevalent in the market.

7. Although, the Respondent/Landlord in the present case had submitted that the rental for similar premises should be approximately in the range of Rs.63,000/- per month, learned Counsel for the Petitioner/tenant submitted that rental should be less than Rs.2,000/- per month. Paragraph 3, 4, 5 and 6 of the order dated 14.12.2023 shows that it is only after analysis of the documents produced by both the parties that the Court has fixed interim user charges.

8. It is well settled that a party is not entitled to seek review of judgment/order merely for the purpose of re-hearing for a fresh decision on the same. The application for review is entertained only under the grounds mentioned in Order XLVII Rule 1 of the Code of Civil Procedure, 1908 including on account of a mistake or an error apparent on the face of the record may apply for a review of the said judgment. A review proceeding cannot be equated with an original hearing unless there is a glaring omission or similar grave error which leads to a miscarriage of justice, the power cannot be exercised. 8.[1] The Supreme Court in Kamlesh Verma v. Mayawati: (2013) 8 SCC 320 has held that the power of review is exercised when there is an error which is apparent on the face of the record and not an error which has to be fished out and searched for. It must be an error of inadvertence. The mere possibility of two views on the subject is not a ground for review.

9. As such the Petitioner/tenant has not highlighted any error apparent on the face of the record, to entitle a recall or review of the order dated 14.12.2023, except for a submission of the area of the subject premises set out above. The order dated 14.12.2023 taken into account several factor including the locality and the nature of use of the premises. The area of the premises is only one such factor. In addition, it is not disputed that the premises is being used for commercial purposes and the area has a high footfall. As such and as is set out in Paragraphs 3 to 6 of the order dated 14.12.2023, it is only after an analysis of the documents produced by the parties has the impugned order been passed.

10. In view of the aforegoing, there is no ground made out for recall of the said order. The Application is accordingly dismissed.

11. List before the Roster Bench on date already fixed, i.e., 23.09.2024.