Full Text
HIGH COURT OF DELHI
Date of Order: 30.11.2023
46676/2022, CM APPL. 46006/2023 and CM APPL. 58962/2023
RAJESH KUMAR ..... Petitioner
Through: Mr. Manu Nayar, Adv. with Ms. Samvartika Pathak, Mr. Nitin Kumar, Ms. Rhea Rao and Mr. I. J. Sharma, Advs. along with Petitioner in-person.
Through: Mr. Vivek B. Saharya, Adv. with Respondent No.2 in-person.
TARA VITASTA GANJU, J.: (ORAL)
JUDGMENT
1. This is an Application filed on behalf of the Respondents/landlord seeking affixation of use and occupation charges.
2. Notice in this Application was issued on 10.11.2023 when this Court directed the parties to file their respective lease deeds/documents and photographs in support of their contentions qua use and occupation charges. Replies and Rejoinders were filed by the parties.
3. Learned Counsel for the Respondents/landlord has filed the brief note with respect to fixation of use and occupation charges. A copy of the same has been supplied to the learned Counsel for the Petitioner/tenant.
4. Learned Counsel for the Petitioner/tenant submits that he has filed the written submissions and judgments, however, the same are not on record. 4.[1] On steps being taken, let the same be brought on record.
5. Learned Counsel for the Respondent/landlord submits that the premises in issue is bearing Municipal No. 1013, Ward No. 3, Katra Ghee, Tilak Bazar, Phatak Hafiz Khan, New Delhi [hereinafter referred to as the “demised Premises”].
6. Learned Counsel for the Respondents/landlord submits that the entire demised Premises, i.e., ground floor, first floor and an open terrace, is in the occupation of the Petitioner/tenant. Learned Counsel for the Respondents/landlord further contends that the demised Premises is being used by the Petitioner/tenant for the purpose of clothes business on the ground floor and the first floor is used for residential purpose.
7. Learned Counsel for the Respondents/landlord seeks to rely upon two lease deeds dated 24.12.2020 which have been filed by him along with this Petition with respect to the adjoining premises bearing No. 1010, Katra Ghee, Gali Teliyan, Tilak Bazar, New Delhi with respect to first floor and the second floor at the rate of Rs. 70,000/- per month and with respect to ground floor at the rate of Rs. 41,000/- per month.
8. Relying on these lease deeds, learned Counsel for the Respondents/landlord further submits that the rental for the demised Premises should be at the rate of Rs. 75,000/- per month (approximately).
9. Learned Counsel for the Petitioner/tenant submits that the lease deeds relied upon by the Respondents/landlord are for Commercial purpose whereas the demised Premises is being used for the residential purposes only.
9.1. Upon a query put to the learned Counsel for the Petitioner/tenant, he submits, on instruction from the Petitioner/tenant who is present in person, that the Petitioner/tenant is using the demised Premises on the ground floor and the first floor, but the first floor is only partly built.
10. Learned Counsel for the Petitioner/tenant has raised objections to this Application which are set forth below:
(i) It is contended that this Court by its order dated 14.12.2020 had stayed the Eviction Order and did not deliberately fix the use and occupation charges. Since use and occupation charges were not fixed on 14.12.2020, today, this Court cannot fix the use and occupation charges on the ground of the principles of res judicata.
(ii) An Application has been filed by the Petitioner/tenant under Section
340 Cr.P.C., alleging the offence of section 209 of the Indian Penal Code for filing of affidavits is pending adjudication, hence, use and occupation charges cannot be fixed.
11. Learned Counsel for the Respondent/landlord in Rejoinder submits that the Court had on 14.12.2020 passed an order on the interim Application filed by the Petitioner/tenant. The said Application has since not been finally adjudicated and, hence, there was occasion for the Respondent/landlord to challenge this order. 11.[1] It is further contended that so far as concerns the objection about filing of an Application under Section 340 Cr.P.C. no notice has been issued in that Application as yet.
12. So far as concerns the other objections taken up by the Petitioner/tenant, this Court is of the opinion that the same do not come in the way of affixation of use and occupation charges of this Court today. The position of law is well settled that for the doctrine of res judicata to apply, an adjudication on the issue is requisite i.e., the specific question or issue in question is to have been conclusively decided at earlier stage of the same litigation. [see: Erach Boman Khavar v. Tukaram Shridhar Bhat, reported as (2013) 15 SCC 655]
13. The demised Premises is in the area of Tilak Bazar, Phatak Hafiz Khan, New Delhi admeasuring 160 sq. yards (as per the Petitioner/tenant) and 200 sq. yards (as per the landlords) which is completely in the occupation of the Petitioner/tenant. The demised Premises is more than 80 years old and in a market. 13.[1] The Eviction Petition in paragraph 8 [annexed on PDF page 65] does not specify the area of the demised Premises. However, admittedly, the Petitioner/tenant is in exclusive occupation of the entire building.
14. In these circumstances, without prejudice to the rights and contentions of the parties, and with the consent of the parties, the use and occupation charges shall be paid by the Petitioner/tenant to the Respondents/landlord in the following manner during the pendency of the Revision Petition:
(i) The use and occupation charges for the period from 06.01.2021 to
(ii) The use and occupation charges for the period from 01.04.2022 to
(iii) The use and occupation charges from 01.12.2023 onwards, shall be paid by the Petitioner/tenant at the rate of Rs. 27,500/- per month;
(iv) The payment of arrears of the use and occupation charges from
06.01.2021 to 30.11.2023 shall be paid by the Petitioner/tenant to the Respondents/landlord in four equal instalments, i.e., 31.12.2023, 15.02.2024, 30.03.2024 and 30.04.2024;
(v) The use and occupation charges from 01.12.2023 onwards, shall be paid by the Petitioner/tenant on or before 7th day of each calendar month;
15. All payments shall be made into the bank account of the Respondents/landlord. The details of the bank account shall be provided by the learned Counsel for the Respondents/landlord to the learned Counsel for the Petitioner/tenant on his email address within two days.
16. It is clarified that the use and occupation charges as affixed hereinabove are tentative and subject to the final outcome of the present petition.
17. Needless to state that in the event that there is any default in the payment of use and occupation charges on behalf of the Petitioner/tenant, interim protection as granted by a Coordinate Bench of this Court on 14.12.2020 shall automatically stand dissolved.
18. The Respondents/landlord is directed to file an Affidavit submitting that this is subject to restitution in the event that should the Petitioner/tenant succeed in its Revision Petition.
19. The Application is accordingly closed. RC.REV. 256/2020 & CM APPL. 32694/2020 [Application seeking interim relief]
20. List the matter on 27.05.2024.
TARA VITASTA GANJU, J NOVEMBER 30, 2023