Delhi High Court
Shri. Trilochan Singh & Ors. vs Shri. Amarjit Singh & Ors. on 19 May, 2022
IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: May 19, 2022
+ RFA 100/2021, CM APPL. 6374/2021
SHRI. TRILOCHAN SINGH & ORS. ..... Appellants
Through: Mr.Rajesh Yadav, Sr. Adv. with
Mr.Vaibhav Sethi, Mr. Shubhankar
Sehgal, Ms. Priya Pathania &
Mr.Dhananjay Mehlawat, Advs.
versus
SHRI. AMARJIT SINGH & ORS. ..... Respondents
Through: Mr. Sidharth Aggarwal, Adv.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
JUDGMENT
V. KAMESWAR RAO, J
1. The challenge in this appeal is to a Judgment / Decree dated
January 25, 2020, passed by the Addl. District Judge-07, (South-East),
Saket Courts, New Delhi in Amarjit Singh and Anr. vs. Vinod
Bhatnagar and Ors., Civil Suit No. 208785/2016, whereby the Trial
Court has decreed the suit in favour of the respondent Nos.1 and
2/plaintiffs against all the defendants i.e., (appellants and respondent
No.3) for a sum of ₹18,00,000/- with simple interest @ 6% per annum
from the date of filing of the suit till realization along with the cost of
the suit.
2. The facts as noted from the record are that respondent No.3 /
Vinod Bhatnagar (defendant No.1 in the suit) had occupied a shop on
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the ground floor of the back portion of the property bearing No. HS-2,
Kailash Colony Market, New Delhi, and one miani / mezzanine in
property bearing No. HS-2/1, Kailash Colony Market, New Delhi at a
monthly rent of ₹350/- excluding all other charges.
3. Respondent No. 3 / Vinod Bhatnagar (defendant No.1 in the
suit) sublet the possession of the aforesaid tenanted portion to the
appellant No.1 / Trilochan Singh (defendant No.2 in the suit) and Sh.
Harbans Lal.
4. Two petitions under Section 14(1)(a) and under Section 14
(1)(b) of the Delhi Rent Control Act ('DRC', for short) were filed
against respondent No. 3, appellant No.1, and Sh. Harbans Lal.
5. An eviction order was passed on April 19, 2003, in favour of
the respondent Nos. 1 and 2 / plaintiffs and Sh. Surjit Singh and
against respondent No.3 / (defendant No.1 in the suit), appellant No.1 /
(defendant No.2 in the suit), and Sh. Harbans Lal. Thereafter, appeals
were filed by respondent No.3 / Vinod Bhatnagar (defendant No.1),
appellant No.1 / Trilochan Singh(defendant No.2), and Sh. Harbans
Lal, which were dismissed on November 22, 2006. Thereafter, they
preferred CM(M) Nos. 65/2007 and 70/2007 before this Court.
6. Sh. Harbans Lal died during the pendency of the proceedings
and the appellant Nos. 2 to 4 who were defendant Nos. 3 to 5 being the
only legal heirs of Sh. Harbans Lal were substituted in those
proceedings. Both the CM(M) Nos. 67/2007 and 70/2007 were
dismissed vide order dated January 03, 2012. Sh. Surjit Singh
relinquished his share in the property by virtue of relinquishment deed
/ release deed for consideration dated February 15, 2006, in favour of
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respondent Nos. 1 and 2 and he was left with no right / title or interest
in the suit property.
7. Respondent No. 3 / Vinod Bhatnagar (defendant No.1 in the
suit) and the appellants (defendant Nos.2 to 5 in the suit) failed to
vacate the suit property / premises after passing of the eviction order
dated April 19, 2003, and continued in possession.
8. It is the case of the respondent Nos. 1 and 2 / plaintiffs that
they being unauthorized occupants are liable to pay the damages for
use / occupation / mesne profits @ ₹50,000/- per month for three years
prior to the filing of the suit.
9. Written statement was filed by the appellants herein.
Defendant No. 1 (respondent No. 3 herein) did not file any written
statement. The case of the appellants (defendants in the suit) is that
respondent Nos. 1 and 2 / plaintiffs are guilty of suppression of
material facts. It is stated that the appellants had approached the
Supreme Court against the order / Judgment dated January 03, 2012,
passed by this Court and the Supreme Court vide order dated May 08,
2012, passed the following order:
"Delay in filing substitution application is condoned
and the application for substitution, to bring on record
the legal representatives of deceased petitioner No.2
Harbans Lal Aneja, is allowed. Permission to file SLP
by these legal representative is granted.
After having heard learned counsel for the petitioners
and after having gone through the impugned order and
the record, we find no ground to interfere with it and
the special leave petitions are dismissed.
However, looking to the facts and features of the case
we deem it fit and proper to grant one year's time to
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the petitioners to vacate the suit premises and hand
over its peaceful possession to the respondents -
decree holder, subject to their filling usual undertaking
in this court within four weeks from today."
10. According to the appellants (defendants in the suit), the Supreme
Court has granted one year's time to vacate the suit property / premises in
question till May 07, 2013, and cannot be said to be in illegal or unlawful
possession of the said premises/suit property in question. A plea was also
taken that the suit is ex facie barred by Section 47 of the Code of Civil
Procedure, 1908 (for short, 'CPC'), and a separate suit like the present one
is not maintainable.
11. A plea has also been taken by the appellants / defendant Nos. 2 to 5
that they are only liable to pay an amount of ₹250/- per month.
12. A replication to the written statement was filed by the respondent
Nos. 1 and 2/plaintiffs and it has been stated that the respondent Nos. 1 and
2/plaintiffs had no knowledge of granting of time by the Supreme Court to
the appellants and respondent No.3 to vacate the suit property / premises. It
is also stated that the order dated May 08, 2012, of the Supreme Court has
no effect upon the rights of respondent Nos. 1 and 2 / plaintiffs to claim the
damages for use and occupation from the appellants and respondent No.3
(defendants in the suit) on account of their unlawful and illegal possession
after passing of the order of eviction on April 19, 2003, at the prevalent
market rate / rent.
13. After hearing the parties and perusing the record, the Trial Court
framed the following issues:
"1. Whether the suit is barred under Section 47 CPC? OPD
2. Whether the plaintiffs are entitled to recovery of suit
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amount, as prayed for? OPP
3. Whether the Plaintiffs are entitled to interest, if so at
what rate and for which period? OPP
4. Relief."
14. Respondent Nos. 1 and 2 / plaintiffs had examined respondent No.1 /
plaintiff No.1 as PW-1, Sh. Ved Prakash was examined as PW-2 and one
Mrs. Kavita was examined as PW-3.
15. PW-2 and PW-3 were summoned in order to prove the prevailing
market rate / rent in the locality, wherein the suit property / premises in
question is located. PW-4 is Dheeraj Kumar, Junior Assistant from the
Office of the Sub-Registrar who brought the registered lease deed of the
suit properties/premises in the locality, where the suit property/premises in
question is situated. Appellant No.1(herein), who was defendant No.2 in the
suit examined himself as DW-1 in support of the case of the appellants
(defendant Nos. 2 to 5), and thereafter DE was closed.
16. With regard to the Issue No.1, before the Trial Court that whether the
suit is barred under Section 47 of the CPC, the onus to prove the issue was
on the appellants and respondent No.3 (defendants). No evidence was led
by the appellants and respondent No.3 (defendants) with respect to the said
issue. It was held by the Trial Court that the issue is not maintainable in
view of the fact that the eviction orders were passed in the eviction petition
under Section 14(1)(a) and 14(1)(b) of the DRC Act and there was no suit
pending for mesne profits. Section 47 of the CPC is applicable only when
the question has been raised and decided by the Court passing a decree.
Therefore, Section 47 of the CPC is no bar to the filing of the suit. The
issue was decided against the appellants and respondent No.3 (defendants in
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the suit).
17. With regard to the Issue No.2, before the Trial Court that whether the
respondent Nos.1 and 2 / plaintiffs are entitled to recover the suit amount,
the court has referred to the Judgment in the case of Chander Mohan
Chadha vs. Singer India Ltd., 2017 (166) DRJ 687, and Atma Ram
Properties (supra), as referred to by the appellants, respondent No.3 and
respondent Nos. 1 and 2 / plaintiffs. The Court was of the view that the
Judgment of the Supreme Court in the case of Atma Ram Properties
(supra) is squarely applicable to the case at hand. The Court referred to
paragraph 16 of the Judgment in the case of Atma Ram Properties (supra).
The Trial Court held that from the perusal of the said Judgment in the case
of Atma Ram Properties (supra) it is very clear that on the day on which
the eviction orders were passed by the Court of Rent Controller / ARC, the
possession of the tenants / sub-tenants became unauthorized, irrespective of
the fact whether the statutory remedies have been availed by the tenants.
18. In view of the proposition of law laid down in the case of Atma Ram
Properties (supra) it was held that the appellants and respondent No.3
(defendants in the suit) are liable to pay mesne profits. The Trial Court
noted the fact, that mesne profits have been claimed for three years
preceding the filing of the suit and on the basis of the evidence produced
and on the basis of the testimony of the witnesses being PW-2 / PW-3 /
PW-4 and also the fact that DW-1 admitted that the property bearing No.
HS-1, Kailash Colony, New Delhi is situated near the suit property /
premises in dispute, the use and occupation charges were awarded @
₹50,000/- per month as sought by the respondent Nos. 1 and 2 / plaintiffs.
The issue was decided in favour of respondent Nos.1 and 2 / plaintiffs and
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against the appellants and respondent No.3 (defendants in the suit).
19. On the aspect of interest, the Trial Court has granted @ 6% simple
interest per annum on the amount of ₹18,00,000/- (mesne profits for a
period of three years prior to the filing of the suit) from the date of filing of
the suit till realization.
20. Mr. Rajesh Yadav, learned Senior Counsel appearing for the
appellants (defendants in the suit) would contest the impugned Judgment /
Decree by the Trial Court stating that the same has been passed without
appreciating the facts and evidence on record and also the law laid down by
the Supreme Court. According to him, the appellants and respondent
No.3(defendants in the suit) had approached the Supreme Court against the
order / Judgment dated January 03, 2012, passed by this Court in CM (M)
Nos. 65/2007 and 70/2007 and the Supreme Court vide its order dated May
08, 2012, having granted the appellants and respondent No.3(defendants in
the suit) one year time to vacate the suit property / premises, and to hand
over its peaceful possession to the respondent Nos. 1 and 2 / plaintiffs, the
possession of the appellants and respondent No.3 (defendants in the suit)
was never unauthorized or illegal. In fact, he laid stress on the fact that the
Supreme Court had granted one year time to the appellants and respondent
No.3(defendants in the suit) considering the facts and features of the case.
He stated that the reliance placed by the Trial Court on the Judgment in the
case of Atma Ram Properties (supra) is completely erroneous inasmuch as
the Trial Court has read as if, the Supreme Court has held during the
pendency of the appeals and / or petitions under Article 226 / 227 of the
Constitution of India before the High Court and / or during the pendency of
the SLPs before the Supreme Court, the tenant automatically becomes
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unauthorized occupant and the landlord gets a right to prosecute the tenant
for mesne profits. That apart, it is his submission that Section 2 (12) of the
CPC defines the mesne profits as: "...which the person in the wrongful
possession of such property actually received or might with the ordinary
diligence have received threfrom,....".
21. But in this case, the appellants and respondent No.3(defendants in the
suit) were not in wrongful possession, in view of the order passed by the
Supreme Court. They are liable to pay ₹250/- per month and nothing more.
That apart, he states that if the respondent Nos. 1 and 2/plaintiffs had any
claim for mesne profits / user charges, they should have approached the
Supreme Court and sought directions with regard to the same. Having not
done that, respondent Nos. 1 and 2 / plaintiffs could not have filed a suit for
damages / mesne profits.
22. In comparison with the property as rented out by PW-3 was a corner
road facing plot with easy entry and the best possible location as compared
to the suit property/premises which fall between two shops and other plots
on the remaining two sides with no entry, or exit if not via the said two
shops. The location of the suit property / premises in question with no face
entry or exit and is situated between two shops can in no way have fetched
the same amount. That apart, the Trial Court has failed to appreciate that the
property bearing shop No. HS-1 measured 245 sq. ft. plot against the suit
property being 129 sq. ft. and as such ₹50,000/- could not have been
awarded by the Trial Court.
23. On the other hand, Mr. Siddharth Aggarwal, learned counsel
appearing for the respondent Nos. 1 and 2/plaintiffs contested the
submissions made by Mr. Yadav by stating that no fault can be found in the
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impugned Judgment / decree as the Trial Court has rightly relied upon the
Judgment of the Supreme Court in the case of Atma Ram Properties
(supra) and granted the relief in favour of respondent Nos.1 and 2 /
plaintiffs herein. According to him, the possession of the appellants and
respondent No.3(defendants in the suit) became unauthorized, wrong, and
illegal w.e.f. the passing of the order of eviction dated April 19, 2003. He
also stated that the respondent Nos.1 and 2 / plaintiffs had no knowledge
about the filing of the petition before the Supreme Court and filing of an
undertaking by way of an affidavit by the appellants and respondent No.3
(defendants in the suit) on the record of the Supreme Court. No copy of the
alleged undertaking was ever received by respondent Nos.1 and 2 /
plaintiffs.
24. The order dated May 08, 2012, has no effect upon the rights of
respondent Nos.1 and 2 / plaintiffs to claim damages for use and occupation
from the appellants and respondent No.3(defendants in the suit) on account
of their unlawful and illegal possession after the passing of the order of
eviction on April 19, 2003, at the prevalent market rate / rent. He also
stated that the Supreme Court has not permitted the appellants and
respondent No.3(defendants in the suit) to continue the use and occupy the
premises in reference till at least May 07, 2013, on payment of the normal
contractual rate of rent i.e., ₹250 per month. He also stated that the reliance
placed by Mr. Yadav on the Judgment of this Court in the case of Chander
Mohan Chadha (supra) is also misplaced inasmuch as in the said Judgment
the Co-ordinate Bench of this Court has followed the dicta of the Supreme
Court in the case of Atma Ram Properties (supra). He seeks dismissal of
the appeal.
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25. Further, on the case urged by Mr. Yadav that the Trial Court has
failed to appreciate that the property bearing shop No. HS-1 measured 245
sq. ft. plot as against the suit property being 129 sq. ft., could not have
fetched ₹50,000/- per month is concerned, he stated in the absence of any
evidence placed by the appellants and respondent No.3 (defendants in the
suit) in that regard that it would have fetched lesser amount, the order of the
Trial Court cannot be interfered with.
26. Having heard the learned counsel for the parties, the issue which
arises for consideration is in very narrow compass whether Trial Court was
justified in granting mesne profits in favour of the respondent Nos.1 and 2 /
plaintiffs for unauthorized occupation of the suit property after the order of
eviction dated April 19, 2003.
27. I must state here that on September 09, 2021, a statement was made
by the counsel for the appellants that they are not pursuing the appeal
against the respondent No.3. The said statement was taken on record.
Despite direction, no amended memo of parties is filed.
28. The submission of Mr. Yadav primarily was in view of the order
dated May 08, 2012, passed by the Supreme Court which is reproduced as
under, by which the Supreme Court has granted one year time to the
appellants and respondent No.3 (defendants in the suit) to vacate the suit
premises and handover its peaceful possession to respondent No.1 and 2 /
plaintiffs, the occupation of the suit property till the expiration of one year
was justified and they cannot be considered as unauthorized occupants.
The relevant part of the Supreme Court order dated May 08, 2012, is
reproduced as under:-
"xxxx xxxx xxxx
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After having heard learned counsel for the petitioners and after having
gone through the impugned order and the record, we find no ground to
interfere with it and the special leave petitions are dismissed.
However, looking to the facts and features of the case, we deem it fit
and proper to grant one year's time to the petitioners to vacate the suit
premises and handover its peaceful possession to the respondents-
decree holder, subject to their filing usual undertaking in this Court
within four weeks from today."
29. I am unable to agree with the submission of Mr. Yadav. The
Judgment of the Supreme Court in the case of Atma Ram Properties
(supra) is very clear wherein the Supreme Court in paragraphs 16, 17, and
19 has held as under:
"16. We are, therefore, of the opinion that the tenant having
suffered a decree or order for eviction may continue his fight
before the superior forum but, on the termination of the
proceedings and the decree or order of eviction first passed
having been maintained, the tenancy would stand terminated
with effect from the date of the decree passed by the lower
forum. In the case of premises governed by rent control
legislation, the decree of eviction on being affirmed, would be
determinative of the date of termination of tenancy and the
decree of affirmation passed by the superior forum at any
subsequent stage or date, would not, by reference to the
doctrine of merger have the effect of postponing the date of
termination of tenancy.
17. In the Delhi Rent Control Act 1958, the definition of 'a
tenant' is contained in Clause (I) of Section 2. Tenant includes
'any person continuing in possession after the termination of
his tenancy' and does not include 'any person against whom an
order or decree for eviction has been made'. This definition is
identical with the definition of tenant dealt with by this Court
in Chander Kali Bai & Ors. case (supra). The tenant-
respondent herein having suffered an order for eviction on
19.3.2001, his tenancy would be deemed to have come to an
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end with effect from that date and he shall become an
unauthorized occupant. It would not make any difference if the
order of eviction has been put in issue in appeal or revision
and is confirmed by the superior forum at a latter date. The
date of termination of tenancy would not be postponed by
reference to the doctrine of merger.
xxxx xxxx xxxx
19. To sum up, our conclusions are:-
(1) while passing an order of stay under Rule 5 of Order
41 of the Code of Civil Procedure, 1908, the appellate
Court does have jurisdiction to put the applicant on such
reasonable terms as would in its opinion reasonably
compensate the decree-holder for loss occasioned by
delay in execution of decree by the grant of stay order, in
the event of the appeal being dismissed and in so far as
those proceedings are concerned. Such terms, needless to
say, shall be reasonable;
(2) in case of premises governed by the provisions of the
Delhi Rent Control Act, 1958, in view of the definition of
tenant contained in Clause (I) of Section 2 of the Act, the
tenancy does not stand terminated merely by its
termination under the general law; it terminates with the
passing of the decree for eviction. With effect from that
date, 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 and earn rent if the tenant would
have vacated the premises. The landlord is not bound by
the contractual rate of rent effective for the period
preceding the date of the decree;
(3) the doctrine of merger does not have the 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 latter date."
(emphasis supplied)
30. It is very clear with the passing of the eviction order by the Rent
Controller / ARC, the possession of the tenant becomes unauthorized
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irrespective of the fact that the tenant has availed the statutory remedies or
not. Therefore, the conclusion of the Trial Court, that the appellants and
respondent No.3 (defendants in the suit) are liable to pay the mesne profits
is justified.
31. Mr. Yadav has relied upon the Judgment of this Court in the case of
Chander Mohan Chadha (supra). In that regard, the Trial Court while
addressing the said Judgment has rightly recorded the following paragraph
which reads as follows:
"xxxx xxxx xxxx
the right of the plaintiffs to mesne profits/damages for use and
occupation would accrue only after the eviction order under
the Delhi Rent Control Act was upheld by the last Court. If it
were to be held that the landlord would be entitled to mesne
profit even prior to the period the tenant is evicted from the
premises in accordance with the procedure prescribed under
the Rent Act, it would amount to defeating the provisions of the
Rent Act by, on the one hand protecting the tenant from
eviction till the RC is satisfied of a ground of eviction having
been made out and on the other hand penalising the tenant
with market rate.
xxxx xxxx xxxx"
32. The Trial Court has also noted that the conclusion of the Supreme
Court in the case of Atma Ram Properties (supra) that: "the appellate
Court even in rent control proceedings, as a condition for grant of stay of
the order of eviction, can direct the tenant to pay during the pendency of the
proceedings at the market rate but it prima facie appears that the same will
not be a civil suit maintainable". However, in the latter part of the
Judgment in paragraphs 64, 65, and 67 the Co-ordinate Bench of this Court
in the case of Chander Mohan Chadha (supra) has held as under:
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"64. However, I find that though I had in orders dated 8th
February, 2017 and 20th February, 2017 observed that Atma
Ram Properties (P) Ltd. supra was in the context of the powers
of the Appellate Court to impose conditions while granting
interim stay of order of eviction but on further consideration
thereof I find the Supreme Court to have nevertheless also
gone into the aspect of liability of a tenant protected under the
Rent Act for mesne profits and to have held (i) that under
Section 2(l)(ii) of the Delhi Rent Control Act, the tenancy
terminates with the passing of the order of eviction; (ii) that
with effect from that date, 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 and earn rent if the tenant would have
vacated the premises; (iii) that the landlord is not bound by the
contractual rate of rent effective for the period preceding the
date of decree; (iv) that the doctrine of merger does not have
the effect of postponing the date of termination of tenancy
merely because the order of eviction stands merged with the
order passed by the superior forum at a later date; (v) that it
would not make any difference if the order of eviction has been
put in issue in appeal and is confirmed by the Appellate Court
at a later date; (vi) that the date of termination of tenancy
would not be postponed to the date of order of the Appellate
Court.
65. Though the aforesaid dicta is of a two Judges Bench and
the dicta in Hasmat Rai supra was of a Bench of three Hon'ble
Judges but I may notice that though Hasmat Rai is not noticed
in Atma Ram Properties (P) Ltd. supra but Atma Ram
Properties (P) Ltd. is based on another earlier dicta in
Chander Kali Bai v. Jagdish Singh Thakur
MANU/SC/0366/1977 : (1977) 4 SCC 402. Moreover, the
observations in Hasmat Rai supra were not in the context of
award of mesne profits, while the observations in Atma Ram
Properties (P) Ltd. supra are directly in the context of mesne
profits. I am thus bound by Atma Ram Properties (P) Ltd.
supra.
67. Accordingly, I hold entitlement of the plaintiffs to mesne
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profits from the date next to the order of eviction i.e. w.e.f. 9th
April, 1996."
(emphasis supplied)
33. If that be so, this Court is of the view that the Trial Court is right in
stating that it is clarified in Chander Mohan Chadha (supra) that Atma
Ram Properties (supra) is applicable and the respondent Nos.1 and 2 /
plaintiffs are entitled to mesne profits. In fact, in the case of Chander
Mohan Chadha (supra), the observation of this Court "I am thus bound by
Atma Ram Properties (P) Ltd. supra." clearly depicts that the issue in
question is covered by the Judgment in the case of Atma Ram Properties
(supra). The plea of Mr. Yadav that the respondents 1 and 2 should have
approached the Supreme Court seeking direction for payment of user
charges is misplaced, in view of clear position of law. Even if the Supreme
Court has not passed order on user charges while granting time to vacate the
premises, it shall not preclude the respondents 1 and 2 to file a suit for
mesne profits.
34. Even on the issue of mesne profits, the submission of Mr. Yadav that
the Trial Court has failed to appreciate the property bearing shop No. HS-1
was a 245 sq. ft. plot as against the suit property being 129 sq. ft. and the
amount of ₹50,000/- could not have been awarded by the Trial Court is not
borne from the record, as no such plea was taken.
35. Even otherwise, I find the lease deed dated April 16, 2010, was
placed on record with regard to the property No.HS-1, Kailash Colony
Market, New Delhi on ground floor admeasuring 122.50 sq. ft. super area
each (totaling 45 sq. ft. super area) and further, no evidence has been placed
on record by the appellants and respondent No.3 (defendants in the suit)
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that a property of the size of the suit property shall fetch a lesser rent / user
charges.
36. Hence, the plea is rejected. In view of my above discussion, I do not
see any merit in the appeal, the same is dismissed.
CM No. 6374/2021 (for stay)
In view of the order passed in the appeal, the present application is
dismissed.
V. KAMESWAR RAO, J
MAY 19, 2022/jg
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