Delhi High Court
Rajesh Kumar vs Jagesh & Ors. on 30 November, 2023
$~11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: 30.11.2023
+ RC.REV. 256/2020 & CM APPL. 32694/2020, CM APPL.
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.
versus
JAGESH & ORS. ..... Respondents
Through: Mr. Vivek B. Saharya, Adv. with
Respondent No.2 in-person.
CORAM:
HON'BLE MS. JUSTICE TARA VITASTA GANJU
[Physical Hearing/Hybrid Hearing (as per request)]
TARA VITASTA GANJU, J.: (ORAL)
CM APPL. 58962/2023 [Application for affixation of use and occupation
charges]
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
31.03.2022 shall be paid by the Petitioner/tenant at the rate of Rs. 20,000/-
per month;
(ii) The use and occupation charges for the period from 01.04.2022 to
30.11.2023 shall be paid by the Petitioner/tenant at the rate of Rs. 25,000/-
per month;
(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.
21. Parties shall act based on the digitally signed copy of the order.
TARA VITASTA GANJU, J
NOVEMBER 30, 2023/SA
