Kesuram Laddharam Lakhani And ... vs Gowardhandas Surajmal Mor
2004 Latest Caselaw 731 Bom

JUDGMENT

Anoop V. Mohta, J.

1. This is a Second Appeal filed by the original defendants, appellants herein, against the original plaintiff, respondent herein, and thereby challenged the judgment and decree dtd. 30th March, 1991 passed in Regular Civil Appeal No. 104 of 1989, whereby the appellant for the first time ordered to pay Rs. 10,980/- towards the use and occupation charges of the suit tenament for the period since 1st August, 1987 to 31st January, 1989, after deducting the earlier amount as decreed by the Court below in Regular Civil Suit No. 35/89 between the parties.

2. The Second Appeal in question was admitted on 18-9-1991 on the following question of law.

"Whether in the absence of valid termination of the tenancy, the claim for damages could be made on the basis of the alleged agreement dated 1st of July, 1982?.

3. The undisputed position on the record shows that the respondent is the owner of the house situated at Main road at Yavatmal. Pursuance to terms and conditions between the parties dtd. 1st July, 1982 and lastly, by 31st July, 1987, the tenament was leased out, as alleged, only for a period of five years, at the agreed rate of Rs. 370/- per month. It was agreed therein that the appellant should pay, if he failed to handover the possession of the block after 1-8-1987, occupation charges at the rate of Rs. 20/- per day in the form of damages. The right to initiate eviction proceedings was reserved.

4. The appellant is in possession of the same premises. In view of this, the present suit No. 35/89 was filed for the recovery of the damages at the rate of Rs. 20/- per day from 1st August, 1987 to 31st January, 1989. The suit was contested by the appellant. After considering the material, as well as, evidence led by the parties, the learned trial judge partly decreed the suit to the extent that the appellant to pay the amount of Rs. 6,078/- to the respondent towards the arrears of rent from 1st August, 1987 till 31st January, 1989. As the appellant himself conceded to make the payment of the said rent at the rate of Rs. 370/- per month, accordingly, suit was disposed of with basic findings that respondent was not entitled to claim Rs. 20/- per day, as claimed. The appeal was preferred by the appellant. The appellate Court, after considering the rival contentions raised by the parties, held that original plaintiff i.e. respondent was entitled to recover use and occupation charges at the rate of Rs. 20/- per day and accordingly it was ordered by the impugned judgment.

5. Appellant, therefore, preferred the second appeal in question which was admitted on the question of law, as referred to above.

6. Therefore, the question of law need to be determined in this background. The premises in question is governed by the provisions of rent control order and such premises is protected for all the purposes by the said rent control order, the landlord, respondent herein, without filing the eviction proceedings and/or without initiating any eviction proceedings and/or filing application for enhancement of rent or for fair and reasonable rent, before the competent authority, is not entitled to recover the enhanced rent or use and occupation charges towards damages, at the rate of Rs. 20/- per day even after expiry of the said agreement of lease.

7. Admittedly, the said lease agreement was not registered. However, in view of the settled possession and/or permissible possession by the applicant, apart from regular payment of rent towards the use of said premises as a tenant, itself sufficient to create relationship of landlord and tenant for the purpose of said rent control order. The bar of Section 49 and/or Section 17 of the Registration Act cannot affect or lake away the legal rights created in favour of such occupant/tenant like applicant. A lease agreement (Ex.21) even though not registered, still can be looked for the purpose of determination of the relationship of landlord and tenant, and also of agreed rate of rent. Such lease agreement has evidential value for the purpose of deciding relationship of landlord and tenant, as well as, agreed rent between the parties. The present suit was filed by the respondent/landlord only for recovery of use and occupation changes at the rule of Rs. 20/- per day after expiry of lease agreement (Exh.22) dtd. 31st July, 1987. In the present case there is no dispute about the existence of the said lease agreement between the parties. There cannot be any dispute that the landlord cannot enhance the rate unilaterally. The "use and occupation" of such premises can be claimed after terminating the tenancy by following the due procedure of law. The claim of "damages" without obtaining and/or terminating the tenancy under rent control order, is impermissible.

8. As per record, initially the appellants/original defendants had executed the rent note (Exh.21) on 31-7-1977. This document was a lease document for a period of five years with same term of payment of Rs. 20/- per day, after termination and/or after expiry of said period. After expiry of the said period i.e. 1st August, 1977, the landlord, respondent herein, never demanded the rent at the rate of Rs. 20/- per day. The rate of the rent was increased from Rs. 236/- to Rs. 370/- as per second rent note (Exh.22). The terms and conditions were incorporated while executing the lease deed dtd. 31st September, 1987 and it was again agreed, as alleged, that defendant would make payment of Rs. 20/- per day, after expiry of said lease period i.e. from 1st August, 1987.

9. As the protection under rent laws/Rent Act is available to the appellant for all the purposes, in my view also such suit before Civil Court for recovery of use and occupation charges is, impermissible. Unless there is an agreement between the parties i.e. between landlord and tenant, the rate of rent cannot be unilaterally decided by the landlord. The provisions of claiming fair and "Standard rent" or "Permitted increase" or "reasonable rent" and its procedure are also available under the rent Laws, therefore, unless the tenancy is duly terminated the possession of the appellant cannot be said to be unauthorised and/or illegal. Therefore, the suit for use and occupation charges towards such damages, in this background is not within the framework of laws. The appellate Court, therefore, according to me, wrong in ordering to pay use and occupation charges at the rate of Rs. 20/- per day, as claimed towards charges.

10. The trial Court, therefore, right in awarding the amount of Rs. 6078/towards the rent, as conceded and agreed by the original defendants, appellants herein. However, the order of appellate Court of awarding the damages at the rate of Rs. 20/- per day towards use and occupation charges from 1st August, 1987 to 31-1-1989 is impermissible and therefore cannot be sustained.

11. In view of this, I am of the view that in the absence of any valid termination of the tenancy, the suit for such damages is not permissible on the basis of lease agreement between the parties in the Civil Court, as special remedy under the special Act is available for the same.

12. Therefore, the second appeal is allowed and judgment and decree, in Regular Civil Appeal No. 104/89 dtd. 30-3-1991 is quashed and set aside and judgment and decree in Regular Civil Suit No. 35/89 is maintained.

The second appeal is disposed of accordingly with no order as to costs.