S.N.Choudhary vs Shashi Shrimal
2022 Latest Caselaw 146 MP

              THE HIGH COURT OF MADHYA PRADESH
                                     1

                             FA No.838/2007
             (S.N.CHOUDHARY AND ANOTHER Vs SHASHI SHRIMAL)



Jabalpur, Dated : 04/01/2022
      Mrs. Shobha Menon, learned Senior counsel with Shri Rahul
Choubey, learned counsel for the appellant.

      Shri Siddharth Radhelal Gupta, learned counsel for the respondent.

Heard on I.A.No.4663/2021, an application under Order 41 Rule 5 of C.P.C. for appropriate directions filed on behalf of the respondent/defendant as well as I.A.No.9149/2021, an application for passing appropriate orders: deferment of I.A.No.4663/2021 till pronouncement of judgment by Hon'ble Apex Court in SLP (C) No.13834/2021 filed on behalf of the appellants.

The respondent/defendant instituted a regular civil suit for eviction under Section 12 (1) (a), (c) and (e) of the M.P. Accommodation Control Act, 1961. The trial Court vide its judgment dated 31.10.2007 decreed the suit in favour of the respondent. While doing so, the trial Court specifically recorded a finding that the contractual rent of the premises in question is Rs.4,300/-. Being aggrieved by the aforesaid judgment and decree, appellant/tenant filed the present appeal. This Court vide order dated 09.11.2007 was pleased to stay the decree regarding delivery of possession and vide order dated 12.03.2008, the appeal was admitted for final hearing. During pendency of the present appeal, I.A.No.4663/2021 has been filed claiming mesne profit on the basis of alleged prevailing market rate of the property in question. The same is being claimed from the year 2007-08 to 2020-21 under Order 41 Rule 5 of C.P.C.

Learned counsel for the respondent/plaintiff submitted that the decree of eviction stands in favour of the respondent. The appellant is no more a tenant, therefore, apart from paying the agreed rental amount, he is also liable to pay the 'mesne profit' at the applicable market rates to the answering respondent. It is also submitted that the property in question today is a prime property admeasuring total of 4954 sq. ft. plot area 2162 sq. ft. builtup area situated in the prime locality i.e. house THE HIGH COURT OF MADHYA PRADESH

FA No.838/2007 (S.N.CHOUDHARY AND ANOTHER Vs SHASHI SHRIMAL)

bearing No.E-5/63 Arera Colony, Bhopal. The answering respondents have been fighting for more than 20 years now and she has crossed the age of 65 years and her husband is above 80 years. Both of them are suffering from multiple serious ailment and undergoing regular medical treatment for the same. At this late stage of their life, the respondents have no alternative residential accommodation in Bhopal, therefore, they cannot be denied the benefit of self owned accommodation due to prolonged pendency of the present proceedings. The bonafide need of the answering respondent has been duly established before the lower Court. In such as situation, the 'mesne profit' cannot be denied to the respondents.

To buttress the aforesaid submissions, learned counsel for the respondents referred the Apex Court's Judgment in the case of Anderson Wright and Co. Vs. Amar nath Roy and Ors. (2005) 6 SCC 489 para 5, 6 and 7 are reproduced as under:-

"5. As held by this Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. [(2005) 1 SCC 705] , once a decree for eviction has been passed, in the event of execution of decree for eviction being stayed, the appellants can be put on such reasonable terms, as would in the opinion of the appellate court reasonably compensate the decree-holder for loss occasioned by delay in execution of the decree by the grant of stay in the event of the appeal being dismissed. It has also been held that with effect from the date of decree of eviction, 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 on being vacated by the tenant. While determining the quantum of the amount so receivable by the landlord, the landlord is not bound by the contractual rate of rent which was prevalent prior to the date of decree.

6. The learned counsel for the appellants submitted that the appellants cannot be held liable to pay anything more than the standard rent of the premises, in spite of the decree for eviction having been passed as the same is sub judice. This submission needs a summary dismissal in view of the judgment of this Court in Atma Ram Properties (P) Ltd. Case [(2005) 1 SCC 705]. Both the parties have filed affidavit and counter-affidavit, placing on record material THE HIGH COURT OF MADHYA PRADESH

FA No.838/2007 (S.N.CHOUDHARY AND ANOTHER Vs SHASHI SHRIMAL)

giving the Court an idea of the rate of rent generally prevalent in the locality where the suit property is situated. Canara Bank on the first floor of this building is paying rent @ Rs 25 per sq ft other than maintenance and municipal taxes. One Rumpa Ghosh entered as the tenant in the year 2002 is paying rent @ Rs 32 per sq ft. Taking an overall view of the material made available by the parties, we think that the appellants should, from the date of the decree of the eviction, pay mesne profits/compensation for use and occupation @ Rs 15 per sq ft subject to final determination of the same by a competent forum.

7. The application is disposed of in terms of the following directions:

(1) With effect from 12-3-2004, the date of the decree passed by the High Court, the appellants shall be liable to pay, or deposit for payment, to the respondent landlords, an amount calculated @ Rs 15 per sq ft for an area of 5678 sq ft, the area which according to the appellants is in their possession.

(2) The first such deposit shall be made on or before 30-6- 2005 consisting of the amount calculated up to that date. The appellants may adjust, by way of deduction, the amount, if any, paid by them to the respondents for this period.

(3) With effect from 1-7-2005 the appellants shall continue to pay or deposit for payment to the respondent landlords, an amount calculated at the same rate month by month and by the 15th day of that month.

(4) The respondents are permitted to move an application under Order 20 Rule 12 of the Code of Civil Procedure or to pursue such remedy as may be available to them under the law for determination and recovery of the mesne profits which they would be entitled to recover from the appellants for the period between the date of institution of suit till the date of recovery of possession in the event of the appeal being dismissed.

(5) The respondents shall file an undertaking on affidavit, making a statement that the amount recovered by the respondents in terms of this order shall be refunded or remain available for adjustment in terms of any directions which this Court may make at the end. If any amount becomes liable to be refunded consistently with the decision of this Court in the appeal, the respondents shall refund the same, within the time appointed by the Court for the purpose and the amount shall remain a charge on the suit property.

(6) Non-compliance with any of the terms stated in paras (1) to (4) above shall result in the order of stay passed by this THE HIGH COURT OF MADHYA PRADESH

FA No.838/2007 (S.N.CHOUDHARY AND ANOTHER Vs SHASHI SHRIMAL)

Court being vacated and the respondents shall be free to execute the decree and recover possession from the appellants. Similarly, non-compliance by the respondents with condition (5) stated hereinabove would disentitle them to receive the amount and the amount liable to be paid by the appellants shall be deposited in the Court and invested in fixed deposit from time to time."

He further relied on the judgment of the Co-ordinate Bench of this Court in the case of Gurunanak Timber Mart Vs. Anil Kumar Gulatee and Ors. (2012) SCC Online MP 3773 the operative portion is reproduced below as under:-

"12. In other words, liability of the tenant to pay mesne profits arises only upon the passing of the decree for eviction against him. The view taken in Chander Kali's case was followed in Atma Ram Properties' case. Relevant observations may be reproduced as under--

"17. In the Delhi Rent Control Act, 1958, the definition of a "tenant" is contained in clause (1) of Section 2. Tenant includes "any person continuing in possession after the termination of his tenancy" [Section 2(1)(ii)] and does not include "any person against whom an order or decree for eviction has been made"[Section 2(1)(A)]. This definition is identical with the definition of tenant dealt with by this Court in Chander Kali's case. The respondent tenant herein having suffered an order for eviction on 19-3-2001, his tenancy would be deemed to have come to an end with effect from that date and he shall become an unauthorised 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.

18. That apart, it is to be noted that the appellate court while exercising jurisdiction under Order 41 Rule 5 of the Code did have power to put the appellant tenant on terms. The tenant having suffered an order for eviction must comply and vacate the premises. His right of appeal is statutory but his prayer for grant of stay is dealt With in exercise of equitable discretionary jurisdiction of the appellate court. While ordering stay the appellate court has to be alive to the fact that it is depriving the successful landlord of the fruits of the decree and is postponing the execution of the order for eviction. There is every justification for the appellate court to put the appellant tenant on terms and direct the appellant to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. In Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. this Court has held that once a decree for possession has been passed and execution is delayed depriving the judgment-creditor of the THE HIGH COURT OF MADHYA PRADESH

FA No.838/2007 (S.N.CHOUDHARY AND ANOTHER Vs SHASHI SHRIMAL)

fruits of decree, it is necessary for the court to pass appropriate orders so that reasonable mesne profits which may be equivalent to the market rent is paid by a verson who is holding over the property."

Learned counsel for the respondent submitted that from the above pronunciation of law, it is clear that the answering respondent/plaintiff are entitled for payment of "mesne profit" from the date of passing of the eviction decree. Learned counsel further stated that minimum monthly rental value, which needs to be awarded to the respondent is Rs.60,000/- per months for the current year 2021. Learned counsel also demonstrated the market value of such property by quoting certain examples of nearby properties. Learned counsel also claimed interest @ 8%.

Per contra, learned Senior Counsel Mrs. Shobha Menon vehemently opposed the application and submitted that the substantial questions of law involved in the present case is the subject matter of SLP (C) No.13834/2021, which is pending before the Apex Court. She further submitted that the aforesaid SLP has been finally heard by the Apex Court on 22.09.2021 and the same is reserved for its final orders and directed that till the disposal of appeal orders challenged therein shall not be executed, therefore, judicial propriety demands, that application filed by the respondents in the present appeal i.e. I.A.No.4663/2021, be deferred till the pronouncement of final judgment by the Apex Court in SLP (C) No.13834/2021.

She further submitted that the judgment relied upon by the learned counsel for the respondents in the case of Anderson Wright and Co. (supra) and Gurunanak Timber Mart (supra) are not applicable to the facts and circumstances of the present case inasmuch as in the aforesaid cases, the matter related prior to substitution of Sub-section 1 and 2 of Section 13 of the M. P. Accommodation Control Act, 1961 by M.P. Amendment Act 2007 of 1983, which came into effect from 16.08.1983.

THE HIGH COURT OF MADHYA PRADESH

FA No.838/2007 (S.N.CHOUDHARY AND ANOTHER Vs SHASHI SHRIMAL)

The present Act came into force in the entire of State of Madhya Pradesh on 30.12.1961. The Act initially contained the following provisions in sub-sections (1) and (2) of Section 13, which remained in force upto 15- 8-1983:-

"(1) On a suit or proceeding being instituted by the landlord on any of the grounds referred to in Section 12, the tenant shall, within one month of the service of the writ of summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court or pay to the landlord an amount calculated at the rate at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made; and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.

(2) If in any suit or proceeding referred to in sub- section (1), there is any dispute as to the amount of rent payable by the tenant, the Court shall fix a reasonable provisional rent in relation to the accommodation to be deposited or paid in accordance with the provisions of sub- section (1) till the decision of the suit or appeal."

So far as the present law i.e. Section 13 of the Act as amended by the Act of 1983 reads as under:-

"13. When tenant can get benefit of protection against eviction. - [(1) On a suit or any other proceeding being instituted by a landlord on any of the grounds referred to in Section 12 or in any appeal or any other proceeding by a tenant against any decree or order for his eviction, the tenant shall, within one month of the service of writ of summons or notice of appeal or of any other proceeding, or within one month of institution of appeal or any other proceeding by the tenant, as the case may be, or within such further time as the Court may on an application made to it allow in this behalf, deposit in the Court or pay to the landlord, an amount THE HIGH COURT OF MADHYA PRADESH

FA No.838/2007 (S.N.CHOUDHARY AND ANOTHER Vs SHASHI SHRIMAL)

calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made ; and shall thereafter continue to deposit or pay, month by month by the 15th of each succeeding month a sum equivalent to the rent at that rate till the decision of the suit, appeal or proceeding, as the case may be.

(2) If in any suit or proceeding referred to in sub- Section (1), there is any dispute as to the amount of rent payable by the tenant, the Court shall, on a plea made either by landlord or tenant in that behalf which shall be taken at the earliest opportunity during such suit or proceeding, fix a reasonable provisional rent, in relation to the accommodation, to be deposited or paid in accordance with the provisions of sub-Section (1) and no Court shall, save for reasons to be recorded in writing, entertain any plea on this account at any subsequent stage]. ........."

The substantial questions of law, which have been raised in the SLP for consideration are as follows:-

"(a)Whether the Hon'ble High Court has committed a manifest error of law in failing to appreciate the statutory mandate contained in Section 13(1) of the M.P. Accommodation Act, 1961 and losing sight of the judgment of this Hon'ble Court in the matter of Jamnalal Vs. Radheshyam, 2000 (4) SCC 380, while passing impugned interim orders?

(b) Whether in the light of substituted Section 13 (1) of '1961 Act', which mandates tenant, to deposit rent, even during the pendency of appeal and its disposal thereof, could status of petitioner be termed as 'trespasser', so as to attract the levying of mesne profits/occupation charges?"

THE HIGH COURT OF MADHYA PRADESH

FA No.838/2007 (S.N.CHOUDHARY AND ANOTHER Vs SHASHI SHRIMAL)

(c) Whether, in absence of any analogous provision like Section 13 (1) of M.P. Accommodation Control Act, 1961 either in the Delhi or Bombay Rent Acts, which were the subject matter of this Hon'ble Court in Atmaram Properties Vs Federal Motors, 2005 (1) SCC 705 and State of Maharashtra & Ors. V Supermax International Private Limited & Ors., (2009) 9 SCC 772, could the impugned interim order, passed on the basis of said judgments, be sustainable in law?

(d) Whether in the teeth of statutory provision contained in Section 13(1) of the M.P. Accommodation Control Act, 1961, which is an special Act and complete code in itself, could the Ld. Single Judge exercise its powers under Order 41 Rule 5 of CPC, incongruent to said statutory mandate?"

On perusal of the records of the case, it is seen that in the present case as well identical issues are involved. It is also not in dispute that the SLP has been heard finally and reserved for judgment by the Hon'ble Apex Court, therefore, this Court is of the opinion that the hearing on I.A.No.4663/2021 should be deferred till the outcome of SLP (C) No.13834/2021.

Accordingly, I.A.No.9149/2021 stands allowed. The hearing on I.A.No.4663/2021 is deferred, which shall be considered at the time of final hearing or after the outcome of the SLP.

C.c. as per rules.

(S.A.Dharmadhikari) JUDGE vinay*

VINAY KUMAR BURMAN 2022.01.05 11:15:53 +05'30'