B.K. Khosla vs Central Board Of Trustees ...
2001 Latest Caselaw 1446 Del

JUDGMENT

Mahmood Ali Khan, J.

1. ADMIT.

2. On the request of the parties, the arguments were heard for final disposal.

3. The short question that arises in all these civil revision petitions is whether the petitioner is entitled to receive mense profits from the respondent for occupation of the suit premises for the period from 1.1.1997 to 31.7.1997 @ Rs. 9.75 per sq. ft. per month or @ Rs. 15/- per sq. ft. per month. All these revision petitions may be conveniently disposed of by a common order.

4. The facts are simple. The respondent took on rent different flats situated in 4-District Centres, Vishwadeep Building, Janakpuri, New Delhi-110058 from the petitioner on monthly rent payable @ Rs. 9.75 per sq. ft. per month. By service of notice under Section 106 of the Transfer of Property Act the tenancy of the respondent in respect of these tenaments was terminated w.e.f. 31.12.1996. Thereafter civil suits for possession and recovery of mense profits for use and occupation of the premises @ Rs. 25/- per sq. ft. per month for the period from 1.1.1997 to 31.7.1997 and also for recovery of mense profits at the rate of Rs. 25/- sq. ft. per month from the date of the filing of the suits to the date of vacation of the premises by the respondent were filed. It is not necessary to give detail of the claim made in each case, as it varied from case to case depending upon the area of the premises let out, for deciding the question raised in all these revisions petitions. The suits were contested by the respondent. The parties adduced the evidence on the issues framed. Finally the court decreed the suit in terms of the claim made by the petitioner. The respondent pursued it in first appeal.

5. The appeal was decided by a Division Bench of this court by a common order dated 19.1.2000. During the hearing the respondent decided to hand over the vacant possession of the suit premises to the petitioner. The court, therefore, considered only the claim of the petitioner for payment of mense profits. The Division Bench with consent of the parties decided that the mense profits for the period from 1.8.1997 to the date of the delivery of the possession would be payable @ Rs. 15/- sq. ft. per month.

6. The possession of the premises has since been delivered by the respondent to the petitioner. The arrears of mense profits @ Rs. 15/- per sq. ft. per month have been paid by the respondent for the period from 1.8.1997 to the date of delivery of the possession. There is no dispute about it. However, the mense profits for the period from 1.1.1997 to 31.7.1997 have been calculated @ Rs. 9.75 per sq. ft. per month. The petitioner prayed the executing court for directing to respondent to pay the amount of mense profits @ Rs. 25/- per sq. ft. per month. The executing court dis-allowed his claim and has held that it is payable @ Rs. 9.75 per sq. ft. per month.

7. The petitioner is aggrieved by the order dated 22.2.2001 and has assailed it in these revision petitions.

8. The argument of the counsel for the petitioner is that the Division Bench in RFAs has not reversed the judgment and the decree of the trial court so far as it had directed the respondent to pay mense profits @ Rs. 25/- per sq. ft. per month in respect of all these premises for the period from 1.1.1997 to 31.7.1997 and, therefore, the trial court has committed grave error in not allowing this claim. Conversely, the argument of the counsel for the respondent is that in accordance with the judgment in RFAs the mense profits were payable @ Rs. 15/- per sq. ft. per month from 1.8.1997 to the date of the delivery of the possession only and for the period preceding 1.8.1997 they were payable only at the agreed rate f rent @ Rs. 9.75 per sq. ft. per month.

9. It is settled law that the executing court cannot go beyond the decree and re-open the suit for enquiring into questions which were decided in the suit or in the appeal. The judgment and decree of the trial court stood merged with the decree and the judgment passed by the Division Bench of this court in the RFA. The Additional District Judge while executing the decree has to execute it as it has been passed by the Division Bench of this court. The counsel for the petitioner, however, has submitted that the Division Bench while deciding the appeal inadvertently noted the date of the termination of the tenancy in these premises as 1.8.1997 in place of 31.12.1996 and this is the reason for creeping an error in the judgment by which the mense profits were directed to be paid @ Rs. 15/- per sq. ft. per month only from the date 1.8.1997 to the date of the delivery of the possession of the premises by the respondent/tenant. He has submitted that in the second paragraph of the judgment of the Division Bench dated 19.1.2000 it has been inadvertently noted that the trial court has granted mense profits @ Rs. 9.75 per sq. ft. per month for the period from 1.1.1997 to 31.7.1997 which is factually not correct as the trial court had awarded the mense profits for this period @ Rs. 25/- per sq. ft. per month as claimed by the petitioner. He further stated that it has also not been correctly noted in the judgment of the Division Bench that the date of the termination of the tenancy in these premises is 1.8.1997. The tenancy was terminated w.e.f. 31.12.1996. He contended that the Division Bench has only reduced the mense profits awarded by the trial court form Rs. 25/- per sq. ft. per month to Rs. 15/- per sq. ft. per month. He, therefore, argued that the executing court committed error in not accepting his claim for payment of mense profits for the period form 1.1.1997 to 31.7.1997 @ Rs. 15/- per sq. ft. per month.

10. Whether there is factual mistake in the order of the Division Bench or not but the fact remains that the executing court cannot enquire into the claim of the petitioner by re-opening the decree passed by the Division Bench of this court and decide that the rate of mense profits which is recoverable for the period from 1.1.1997 to 31.7.1997 is @ Rs. 15/- per sq. ft. per month.

11. A perusal of the order of the Division Bench dated 19.1.2000 shows that after the respondent decided to handover the vacant possession of the suit property to the petitioner only question that survived for decision was regarding the rate of mense profits. The submission of the counsel for the respondent was that the prevalent rent of commercial premises in the locality was not more than Rs. 13/- per sq. ft. per month and that the trial court could not have allowed the pendente lite mense profits beyond that rate. The court held that the award of pendente lite mense profits from the date of the termination of the tenancy to the date of the decree @ Rs. 25/- per sq. ft. per month was unsustainable in law. The relevant portion of the order in the RFA is extracted below:-

"Copy of the certificate (Exhibit PW 1/18) has been proved by the plaintiff/respondent in his statement stating that this was a certificate issued by the Assessor and Collector, M.C.D. in which residential and commercial proposed rental data had been compiled with respect to various properties in different localities. Irrespective of the fact that there was no effective examination of this witness on this aspect, this document could not have been made the basis of determination of the mense profits in the absence of evidence as regards the rates of rent, which could be realised of similar or equivalent accommodation. The basis of award of pendente lite mense profits from the date of termination of tenancy to the date of decree @ Rs. 25/- per sq. ft. per month is unsustainable in law. On behalf of the appellant, no evidence was adduced on this aspect though the appellant examined one witness. Instead of remanding the case for proper determination of the amount of mense profits for the period from the date of termination, i.e. 1.8.1997 till the date of delivery of possession, considering the facts and circumstances of the case and the submissions made at the Bar, we consider that award of mense profits @ Rs. 15/- per sq. ft. per month would meet the ends of justice. This rate of Rs. 15/- per sq. ft. per month has been fixed with consent of the parties.

In view of the above, the appeals are partly allowed to the extent aforementioned. Judgment and decree passed by the trial court in each case shall stand modified. Instead of the decree passed by the trial court with respect to mense profits for the period from 1.8.1997 to 30.6.1999 and from 1.7.1999 to the date of delivery of possession, it is held that the plaintiff/respondent will be entitled to mense profits @ Rs. 15/- per sq. ft. per month from 1.8.1997 till the date of delivery of possession."

12. There is no ambiguity in the order. If the petitioner felt that some error or accidental slip had crept in the order, the proper remedy for him was to file an application before this Court under Section 152 of the CPC, or to take recourse to review application or an appeal, as available under law. He cannot claim an amount which is not recoverable in terms of the judgment in RFA during the execution proceedings. In fact, it has been fairly conceded by the counsel for the petitioner that an application was filed by the petitioner for review of the order passed in the RFA in this court and the same has been dismissed.

13. Keeping all the facts in view and the order of the Division Bench in the RFAs, I do not find any merit in the contention of the petitioner. There is no error of jurisdiction or material irregularity in the exercise of the jurisdiction by the trial court in passing the impugned order. The order cannot be interfered with. All the revision petitions are dismissed. However, the parties are left to bear their own costs in the facts and circumstances of the case.