Congress Committee (I) (Rural) ... vs S Brahmgyan Singh Majithia And Ors
2022 Latest Caselaw 7182 P&H

                       CR-522-2019 (O&M)                                        -1-

                       271

                                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                CHANDIGARH
                                                      -.-
                                                           CR-522-2019 (O&M)
                                                           Date of Decision : 19.07.2022


                       Congress Committee (I) (Rural) and Another                         ...Petitioners

                                                        versus

                       S. Brahmgyan Singh Majithia (since deceased)
                       through his LRs and Others                                      ...Respondents

                       CORAM :         HON'BLE MRS. JUSTICE ALKA SARIN

                       Present :       Mr. Rajesh Narang and Mr. Rajiv Malhotra, Advocates
                                       for the petitioners.

                                       Mr. Sahil Sharma, Advocate for LRs of respondent No.1.

                                       Mr. Brij Mohan Vinayak, Advocate for respondent No.2.


                       ALKA SARIN, J. (Oral)

CM-8543-CII-2022

This is an application for impleading the legal representatives

of respondent No.1 namely, S. Brahmgyan Singh Majithia, who is stated to

have died.

For the reasons stated in the application, the same is allowed

and the legal representatives of respondent No.1 namely, S. Brahmgyan

Singh Majithia, mentioned in para No.3 of the application are impleaded as a

party. Amended memo of parties is taken on record. Vakalatnama signed by

the LRs of respondent No.1 is already appended along with the application.

CR-522-2019

The challenge in the present civil revision petition under Article

227 of the Constitution of India is to the impugned order dated 27.08.2018 TRIPTI SAINI 2022.07.21 10:23 I attest to the accuracy and iauthenticity of this document CR-522-2019 (O&M) -2-

(Annexure P-4) whereby the application filed by the petitioner for stay of

judgement and decree dated 20.11.2017 has been allowed subject to

payment of Rs.90,000/- per month as mesne profits. The impugned order

disposes off two applications - one moved by the petitioners herein for

staying the operation of judgment and decree dated 20.11.2017 and the other

application moved by the respondents for fixing the mesne profits.

Learned counsel for the petitioners would contend that mesne

profit cannot be ordered once the same has not been prayed for in the plaint.

Learned counsel has referred to the provisions of Order 20 Rule 12 of the

Code of Civil Procedure, 1908 (hereinafter referred to as the 'CPC').

Further reliance has been placed upon the judgment of the Supreme Court in

the case of Ganapati Madhav Sawant (dead) Through his LRS Vs.

Dattur Madhav Sawant [2008(2) RCR (Civil) 175] and Union of India

and Others Vs. M/s Banwari Lal & Sons (P) Ltd. [2004(2) RCR (Civil)

580] to contend that a procedure has been prescribed under Order 20 Rule 12

CPC for the passing of a decree for possession and mesne profits. It is

further the contention that the procedure as laid down in Order 20 Rule 12

CPC has not been followed in the present case. It further argued that no

enquiry was made and an order fixing the mesne profit has been passed sans

the enquiry. Learned counsel would further contend that there is no

relationship of landlord and tenant in the present case and the case is based

on the premise that there existed a relationship of licensor and licensee.

Per contra, learned counsel for respondents have contended that

the mesne profits have been assessed by the Court while conditionally

staying the judgment and decree dated 20.11.2017. Learned counsel for the

respondents have relied upon the judgment of the Supreme Court passed in TRIPTI SAINI 2022.07.21 10:23 I attest to the accuracy and iauthenticity of this document CR-522-2019 (O&M) -3-

the case of State of Maharashtra & Anr. Vs. M/s Super Max

International Pvt. Ltd. & Ors. [2009(2) RCR (Rent) 246]; M/s Atma

Ram Properties (P) Ltd. Vs. M/s Federal Motors Pvt. Ltd. [2005 (1)

RCR (Civil) 212] and M/s Martin & Harris Private Limited & Anr. Vs.

Rajendra Mehta & Ors. [Civil Appeal Nos.4646-47 of 2022] to contend

that after the passing of a decree of eviction, the landlord would be entitled

to mesne profits or compensation for depriving him of the use of the

premises.

Heard.

In the present case vide judgment and decree dated 20.11.2017

the defendant-petitioners have been directed to vacate the suit property in

question and to deliver its vacant possession to the plaintiff-respondents

within a period of two months. In appeal preferred by the defendant-

petitioners, the lower Appellate Court stayed the operation of the judgement

and decree dated 20.11.2017 subject to payment of Rs.90,000/- per month as

mesne profits on the basis of the lease deeds produced by the plaintiff-

respondents and on the basis of the fact that the suit property measuring 4

kanal 18 marlas is situated at main Albert Road, near Railway Station,

Amritsar, which is a commercial area. The lower Appellate Court, relying

upon the judgment in the case of M/s Super Max International Pvt. Ltd.

(supra), directed that the stay would be conditional to the payment of

Rs.90,000/- per month as mesne profits. Aggrieved by the said order, the

present revision petition has been preferred by the defendant-petitioners.

The argument raised by the learned counsel for the defendant-

petitioners that no mesne profit could have been directed to be paid by the

Appellate Court as no prayer was made in the plaint qua the grant of mesne TRIPTI SAINI 2022.07.21 10:23 I attest to the accuracy and iauthenticity of this document CR-522-2019 (O&M) -4-

profits is wholly misplaced. The provisions of Order 20 Rule 12 CPC come

into play in case the suit is for grant of mesne profits. In the present case a

perusal of the plaint, which has been appended with the petition, clearly

reveals that no mesne profits were sought. The suit was for declaration,

permanent injunction and mandatory injunction. The provisions of Order 20

Rule 12 CPC reads as under :

12. Decree for possession and mesne profits - (1)

Where a suit is for the recovery of possession of

immovable property and for rent or mesne profits, the

court may pass a decree -

(a) for the possession of the property;

(b) for the rents which have accrued on the property

during the period prior to the institution of the suit or

direction an inquiry as to such rent;

(ba) for the mesne profits or directing an inquiry as to

such mesne profits;

(c) directing an inquiry as to rent or mesne profits

from the institution of the suit until--

(i) the delivery of possession to the decree holder,

(ii) the relinquishment of possession by the judgment

debtor with notice to the decree holder through the

court, or

(iii) the expiration of three years from the date of the

decree, whichever event first occurs.

(2) Where an inquiry is directed under clause (b) or

clause (c), a final decree in respect of the rent or mesne TRIPTI SAINI 2022.07.21 10:23 I attest to the accuracy and iauthenticity of this document CR-522-2019 (O&M) -5-

profits shall be passed in accordance with the result of

such inquiry."

A perusal of the above-reproduced rule clearly reveals that it is

only when a decree has to be passed for recovery of possession of

immovable property and for mesne profits then the procedure as laid down

in Order 20 Rule 12 CPC would have to be followed.

In the present case the Appellate Court in appeal, while staying

the judgement and decree directing the handing over of vacant possession of

the suit property, has assessed the mesne profits to be paid by the defendant-

petitioners for the use and occupation of the premises during the pendency

of the appeal.

The contention raised by the learned counsel for the defendant-

petitioners that the judgments relied upon by the plaintiff-respondents are

not applicable to the present case inasmuch as the present is not a case of

landlord and tenant but is of a licensor and licencee, also deserves to be

rejected. The defendant-petitioners were held to be in permissive possession.

Once the Trial Court had held that license stood revoked in the year 2013

and a decree was passed directing the defendant-petitioners to handover

vacant possession of the suit property, the Appellate Court, in view of the

judgments laid down by the Supreme Court in the case of Atma Ram

Properties (supra), M/s Super Max International Pvt. Ltd. (supra) and

M/s Martin & Harris Pvt. Ltd. (supra), was well within its jurisdiction to

fix the mesne profits for use and occupation of the suit property by the

defendant-petitioners. In the case of M/s Martin & Harris Pvt. Ltd.

(supra) the Supreme Court, while considering various judgments, held as

under :

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2022.07.21 10:23
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iauthenticity of this document
                        CR-522-2019 (O&M)                                  -6-

"10. Now, reverting on the issue of determination of the

amount of mesne profits @ Rs.2,50,000/- per month is

concerned, the guidance may be taken from the

judgment of Marshall Sons & Co. (I) .Ltd. and Another -

(1999) 2 SCC 325, in which this Court held that

once a decree for possession has been passed and the

execution is delayed depriving the decree holder to

reap the fruits, it is necessary for the

Appellate Court to pass appropriate orders fixing

reasonable mesne profits which may be equivalent to the

market rent required to be paid by a person who is

holding over the property. In the case of Atma Ram

Properties (P) Ltd. Vs. Federal Motors (P) Ltd. -

(2005) 1 SCC 705, this Court held that Appellate Court

does have jurisdiction to put reasonable terms and

conditions as would in its opinion reasonable to

compensate the decree holder for loss occasioned by

delay in execution of the decree while granting the stay.

The Court relying upon the provisions of the Delhi Rent

Control Act, observed that on passing the decree for

eviction by a competent Court, the tenant is liable to pay

mesne profit or compensation for use and occupation of

the premises at the same rate at which the landlord

would have able to let out the premises in present and

earn the profit if the tenant would have vacated the

premises. The Court has explained that because of TRIPTI SAINI 2022.07.21 10:23 I attest to the accuracy and iauthenticity of this document CR-522-2019 (O&M) -7-

pendency of the appeal, which may be in continuation of

suit, the doctrine of merger does not have 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 later date.

11. Thus, after passing the decree of eviction the

tenancy terminates and from the said date the landlord

is entitled for mesne profits or compensation depriving

him from the use of premises. The view taken in the

case of Atma Ram (supra) has been reaffirmed in the

case of State of Maharashtra Vs. Super Max

International Pvt. Ltd and Others - (2009) 9 SCC 772

by three Judges bench of this Court. Therefore, looking

to the fact that the decree of eviction passed by Trial

Court on 03.03.2016 has been confirmed in appeal;

against which second appeal is pending however, after

stay on being asked the direction to pay mesne profits or

compensation issued by the High Court is in consonance

to the law laid down by this Court, which is just

equitable and reasonable.

12. The basis of determination of the amount of mesne

profit, in our view, depends on the facts and

circumstances of each case considering place where the

property is situated i.e. village or city or metropolitan

city, location, nature of premises i.e. commercial or

residential are and the rate of rent precedent on which TRIPTI SAINI 2022.07.21 10:23 I attest to the accuracy and iauthenticity of this document CR-522-2019 (O&M) -8-

premises can be let out are the guiding factor in the

facts of individual case. In the case at hand, the High

Court in the impugned order observed that the tenanted

property is located on the main road of New Colony

near Panch Batti which is a commercial area in the

heart of Jaipur City. The said finding has been arrived

considering the voluminous documentary record

dispelling the plea taken by the Appellants. However,

the Court in the facts and circumstances found it

reasonable to determine Rs.2,50,000/- per month as

mesne profits As per the discussion made hereinabove

so far as the area of the tenanted premises and the

location of the property is concerned, the findings of

fact have been recorded by the High Court, in our

considered opinion, those findings are based on the

material brought on record which are neither perverse

nor illegal. The amount of mesne profit as fixed @

Rs.2,50,000/- is also just and proper looking at the span

of time i.e. 10 years from the date of fixing of the

standard rent and six year from the date of passing of

the decree of eviction. Therefore, the amount of mesne

profit has rightly been decided by the High Court while

passing the order impugned.

In view of the law laid down by the Supreme Court as well as

the fact that there is a decree against the defendant-petitioners to handover

the vacant possession of the suit property which decree has been TRIPTI SAINI 2022.07.21 10:23 I attest to the accuracy and iauthenticity of this document CR-522-2019 (O&M) -9-

conditionally stayed, the impugned order passed by the Appellate Court

fixing the mesne profits to be paid by the defendant-petitioners during the

pendency of the appeal cannot be faulted with. The impugned order does not

suffer from any error of law or jurisdiction.

In view of the above, the present revision petition is dismissed.

Pending applications, if any, also stand disposed off.

TRIPTI SAINI 2022.07.21 10:23 I attest to the accuracy and iauthenticity of this document