M/S CHHOTEY LAL JAIPAL MAL v. M/S MANI LAL & BROS

Delhi High Court · 31 Oct 2023 · 2023:DHC:8133

Tara Vitasta Ganju

RC.REV. 352/2019

2023:DHC:8133

property appeal_allowed Significant

AI Summary

The Delhi High Court held that a tenant holding over after an eviction order must pay use and occupation charges at market rent during pendency of proceedings, regardless of internal disputes among tenant partners.

Full Text

RC.REV. 352/2019
HIGH COURT OF DELHI
Date of Order: 31.10.2023

RC.REV. 352/2019 & CM Appl.26637/2019
M/S CHHOTEY LAL JAIPAL MAL ..... Petitioner
Through: Mr. Vijay Kumar Gupta and Mr. Mehul Gupta, Advs. along with
Petitioner in person.

VERSUS

M/S MANI LAL & BROS ..... Respondent
Through: Mr. Rajiv Garg and Mr. Vinod K.
Singh, Advs.

CORAM:

HON'BLE MS. JUSTICE TARA VITASTA GANJU [Physical Hearing/Hybrid Hearing (as per request)]
TARA VITASTA GANJU, J.: (ORAL)
CM Appl.49774/2023[Application seeking affixation of user and occupation charges]

JUDGMENT

1. Learned Counsel who appears on behalf of the Respondent/landlord points out to an inadvertent typographical error in paragraph 1 of the order dated 17.10.2023 wherein it is stated that the Application has been filed by the Petitioner/tenant instead of Respondent/landlord. 1.[1] Accordingly, paragraph 1 of the order dated 17.10.2023 is revised to be read as follows:

“1. This is an Application filed on behalf of the Respondent seeking payment of mesne profit by the Petitioner/tenant in terms of the market rent of the premises bearing property No. 3670, Ground Floor, Chawri Bazar, Delhi-110006 [hereinafter referred to as “demised premises”] in the sum of Rs. 1,00,000/- per month.”

2. Learned Counsel who appears on behalf of the Petitioner/tenant submits that he has not been able to comply with the order dated 25.09.2023 passed by this Court despite the directions given by this Court on that day and on 17.10.2023. 2.[1] Learned Counsel for the Petitioner/tenant further submits that the Petitioner has paid the rental for the premises i.e., property No. 3670, Ground Floor, Chawri Bazar, Delhi-110006 [hereinafter referred to as “demised premises”] at the rate of Rs.210/- per month into the bank account of the Respondent/landlord upto December, 2023. It is contended that this amount was the rental amount paid prior to the passing of the Eviction Order dated 22.04.2019 [hereinafter referred to as “Eviction Order”] and that Petitioner/tenant is not required to pay any user charges.

3. Learned Counsel for the Respondent/landlord on the other hand relies on an affidavit dated 27.10.2023 filed by the partner of the Respondent/landlord wherein the following documents have been filed:

(i) A judgment/order dated 22.10.2019 passed by a Coordinate Bench of this Court with respect to the premises i.e., property bearing Municipal NO. 17, Main Road, Chawri Bazar, Delhi-110006 wherein pursuant to a settlement, use and occupation charges were paid at the rate of Rs.50,000/per month from 01.09.2019 till 31.08.2023 and at the rate of Rs.1,00,000/per month from 01.09.2023 to 31.03.2024.

(ii) A rent agreement for the premises admeasuring 160 sq. ft. situated on the ground floor of the Raghushree Market, Ajmeri Gate, Delhi wherein a rental amount of Rs. 36,000/- per month is charged. 3.[1] Learned Counsel for the Respondent/landlord, relying on these documents, submits that given the location of the demised premises, use and occupation charges in the sum of Rs.1,00,000/- per month are payable by the Petitioner/tenant. 3.[2] Learned Counsel for the Respondent/landlord further submits that the demised premises admeasure 335 sq. ft. and is a shop situated on the ground floor in the Main Chawri Bazar Market, Delhi.

4. Learned Counsel for the Petitioner/tenant, on instructions from the Petitioner/tenant, who is physically present in the Court today, agrees with the contention on the size of the demised premises being 335 sq. ft. 4.[1] Learned Counsel for the Petitioner/tenant however submits that there is an inter-se dispute between the Petitioner/tenant and one Mr. Satya Sheel Gupta, a third party and that the demised premises are lying locked in view of the pendency of these proceedings. 4.[2] Learned Counsel for the Petitioner/tenant seeks to rely on documents filed in this regard on 13.09.2023 including on the memo of parties in the proceedings before the Coordinate Bench of this Court in RFA No. 53/2020, to show that the Respondent/landlord is a party to these proceedings.

5. These submissions were also made by learned Counsel for the Petitioner/tenant on 17.10.2023 and this Court had passed a detailed order with regard to these contentions which is set out below:

“4. Learned Counsel for the Respondent/landlord submits that dispute inter-se the Petitioner/tenant and any third party is not relevant for the purposes of the present Application. It is further submitted that since an Eviction Order has been passed against the Petitioner/tenant by the Court on 22.04.2019, he is liable to pay user and occupation charges in terms of the judgment in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd. reported as (2005) 1 SCC 705 and Martin & Harris (P) Ltd. v. Rajendra Mehta, (2022) 8 SCC 527 passed by the Hon'ble Supreme Court to submit that the landlord is required to be paid for the period in which he is deprived the use of his premises. The relevant extract of Martin & Harris case read as follows: “17. In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. [Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705], this Court held that the appellate court does have jurisdiction to put reasonable terms and

conditions as would in its opinion be reasonable to compensate the decree-holder for loss occasioned by delay in execution of the decree while granting the stay. The Court relying upon the provisions of the Delhi Rent Control Act, observed that on passing the decree for eviction by a competent court, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises in present and earn the profit if the tenant would have vacated the premises. The Court has explained that because of pendency of the appeal, which may be in continuation of suit, the doctrine of merger does not have effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a later date.” 4.[1] Learned Counsel for the Respondent / landlord further submits that the Petitioner/tenant has also obtained protection from this Court and reliance is placed on Order dated 14.10.2019 passed by the Co-ordinate Bench of this Court wherein it was directed that the Execution Petition shall not be filed till the next date of hearing. It is submitted that the said Order has thereafter continued. 4.[2] Learned Counsel for the Respondent / landlord also submits that in any event, by an Order dated 10.01.2020, the Trial Court had passed directions that the keys of the shop of the demised premises may be given to the plaintiffs in the said Order [the Petitioner herein] and the directions were passed to the Registrar of the Delhi High Court to release the keys to the Petitioner. Copy of the Order dated 10.01.2020 is annexed as PDF page 256 of the case file. 4.[3] Although, it is contended that the market rental is Rs. 1 lakh per month, learned Counsel for the Respondent/landlord submits that he did not deem it necessary to file any documents as the Petitioner has already admitted market rent for the premises is not more than Rs. 50,000/- per month as reproduced above.

5. At this Stage, learned Counsel for the parties seek and are granted two weeks’ time to comply with para 11 of the order dated 25.09.2023.” [Emphasis Supplied] 5.[1] On 25.09.2023 as well, the Petitioner/tenant had sought time to place on record lease deeds/documents/photographs on which they seek to rely upon for the affixation of use and occupation charges along with a short note. 5.[2] No such documents have been filed by the Petitioner/tenant till today.

6. The other brief facts which are necessary to be noted at this stage are as follows:

(i) The Petitioner/tenant is in occupation of the demised premises since sometime in the year 1950. On 30.01.2016, the Respondent/landlord filed a Petition for eviction of the Petitioner/tenant.

(ii) In its leave to defend, the Petitioner/tenant admitted being a tenant of the Respondent/landlord and to paying the rental for the demised premises in a regular manner. The defence raised in the leave to defend was that there is sufficient alternative accommodation available with the landlord.

(iii) By the Eviction Order, the leave to defend of the Petitioner/tenant was dismissed by the Trial Court holding that there is no dispute with regard to landlord/tenant relationship and that the claim of additional accommodation remained unsupported by any document filed by the Petitioner.

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(iv) Aggrieved by this Eviction Order, the Petitioner/tenant has filed the present Revision Petition. 6.[1] As noted in Order dated 17.10.2023, it seems that sometime during the course of tenancy, inter-se dispute arose between the partners of the Petitioner/tenant which led to one of the partners filing a civil suit against the other partners of the Petitioner/tenant. The suit was decreed on 27.08.2019 and against which an appeal was preferred. The appeal is pending before the Coordinate Bench of this Court as RFA 53/2020.

7. Learned Counsel for the Petitioner/tenant has contended that in view of the pendency of the proceedings in RFA 53/2020, the demised premises is lying locked and thus no use and occupation charges are required to be paid by the Petitioner/tenant to the Respondent/landlord.

8. The contentions of the Petitioner/tenant are misconceived. As recorded in the Order dated 17.10.2023. Despite, the pendency of inter-se disputes between the partners of the Petitioner/tenant firm, the fact that remains is that the Petitioner/tenant firm is in use and occupation of possession of the demised premises. 8.[1] Pursuant to the passing of the Eviction Order and upon a statement made by the counsel for the Respondent/landlord before this Court on 14.10.2019, no execution proceedings have been filed by the Respondent/landlord till today. As has been held in the judgments of the Supreme Court in the case of Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd.[1] and Martin & Harris (P) Ltd. v. Rajendra Mehta[2], once a decree of possession has been passed and the execution is delayed, it is necessary for the Court to pass appropriate orders/directions fixing reasonable mesne profit/use and occupation charges equivalent to market rent to be paid by the person who is holding over the property.

9. The demised premises is admittedly a shop admeasuring 335 sq ft. and is situated on the ground floor Main Road, Chawri Bazar, Delhi-110006. Keeping in mind the area and the location of the shop and the documents filed by the parties the rental needs to be fixed.

9.1. It is contended by the Respondent/landlord that the keys of the demised premises were handed over to the Petitioner/tenant in terms of order dated 10.01.2020 [annexed at pdf page 256 of the case file]. However, the Petitioner/tenant has submitted that the premises is lying locked. Thus, assuming the demised premises are lying locked, the rental needs to be discounted as such. 9.[2] The Respondent/landlord has contended that the market rental for the demised premises is approximately Rs. 1 lakh per month. However, the Petitioner/tenant has in paragraph 5 of its Reply to the present Application admitted that the rental for ‘like premises’ should not be more than Rs. 50,000/- per month, as follows: “5…It is denied that the adjacent shops like the suit premises, the prevailing market rent is Rs. 1 lac per month. It is submitted that the Respondent should be asked to file an affidavit in respect of the prevailing market rent by the Honble Court as the market rent where suit premises is located is not more than Rs. 50,000 p.m.….” [Emphasis supplied]

10. In these circumstances, without prejudice to the rights and contentions of the parties, the directions as set forth below are passed. 10.[1] The Petitioner/tenant shall pay to the Respondent/landlord use and occupation charges in the following manner during the pendency of the Revision Petition:

(i) The use and occupation charges for the period from 22.10.2019 to

(ii) The use and occupation charges for the period from 01.04.2020 to

(iii) The use and occupation charges for the period from 01.04.2022 to

(iv) The use and occupation charges from 01.11.2023 onwards, shall be paid by the Petitioner/tenant at the rate of Rs.60,000/- per month, on or before 7th day of each calendar month;

(v) The use and occupation charges as set forth in paragraphs 10.[1] (i), (ii) and (iii) shall be paid by the Petitioner/tenant to the Respondent/landlord in three equal instalments, i.e., on 15.12.2023, 15.02.2024 and 15.04.2024. 10.[2] All payments which have already been made by the Petitioner/tenant to the Respondent/landlord during the pendency of the Revision Petition shall be adjusted prior to making the payment as set forth in paragraphs 10.[1] (i), (ii) and (iii) above.

11. All payments shall be made into the bank account of the Respondent/landlord. The details of the bank account shall be provided by the learned Counsel for the Respondent/landlord to the learned Counsel for the Petitioner/tenant on his email address within three days.

12. Learned Counsel for the Petitioner/tenant submits that the Petitioner/tenant is not liable to make any payment with respect to the use and occupation charges.

13. It is clarified that the use and occupation charges as affixed hereinabove are tentative and subject to the final outcome of the present Petition.

14. Needless to add, if the directions as set forth above are not complied with by the Petitioner/tenant, the Respondent/landlord are automatically released from the statement made before this Court on 14.10.2019 and the Respondent/landlord will be at liberty to take appropriate steps as per law for recovery of possession and to recover use and occupation charges from the Petitioner/tenant.

15. The Application is accordingly closed. RC.REV. 352/2019 & CM Appl.26637/2019[Application for stay]

17. List the matter on the date already fixed i.e., 14.02.2024.

M/S CHHOTEY LAL JAIPAL MAL v. M/S MANI LAL & BROS

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JUDGMENT

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