Punjab-Haryana High Court
Anil Thukral vs Resham Singh on 1 November, 2022
CR No.4413 of 2022 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Sr. No.120 CR No.4413 of 2022 (O&M)
Reserved on 14.10.2022
Date of Decision: 01.11.2022
Anil Thukral .... Petitioner
Versus
Resham Singh and another ... Respondents
CORAM: HON'BLE MR. JUSTICE TRIBHUVAN DAHIYA
Present: Mr. Anil Chawla, Advocate
for the petitioner.
Mr. Prateek Sodhi, Advocate
for the caveator-respondent No.1.
***
TRIBHUVAN DAHIYA, J.
This revision petition has been filed under Article 227 of the
Constitution of India for setting aside the order dated 14.09.2022
(Annexure P-1) passed by lower appellate Court allowing the application to
stay operation of the impugned judgment and decree of the trial Court dated
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04.03.2022 (Annexure P-4), subject to the payment of mesne profits at the
rate of Rs.25,000/- per month.
2. The facts of the case in brief are, two suits filed by each of the
parties were decided by a consolidated judgment of the trial Court dated
04.03.2022 (Annexure P-4). The petitioner-Anil Thukral filed a suit for
declaration and permanent injunction against the respondents and one Neelu.
The respondents, Resham Singh and another, on the other hand, filed a suit
for declaration and permanent injunction against Anil Thukral (petitioner).
Both the suits were filed with respect to first floor of double storey house
bearing No.148, Anand Avenue, Amritsar. The petitioner's suit for
declaration that the alleged transfer deed dated 08.11.2011 executed by Baij
Nath in favour of Neelu/defendant no.1 with respect to the suit property, as
also the alleged sale deeds with respect the property dated 25.01.2013
executed by Neelu in favour of defendants no 2 and 3 (the respondents
herein) were illegal, was dismissed by trial Court, vide judgment dated
04.03.2022. Whereas the respondents' suit for possession of first floor of the
suit property was decreed. The judgment of the trial Court is under challenge
by the petitioner before lower appellate Court, whereupon the impugned
order dated 14.09.2022 (Annexure P-1) has been passed.
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3. The petitioner sought stay of the impugned judgment and
decree, whereas the respondents by filing another application sought
assessment of mesne profits with respect to the suit property, since the
petitioner's possession therein has been held to be unauthorized by the trial
Court.
4. The respondents filed the suit seeking four reliefs; (i)
possession of suit property, (ii) recovery of Rs.5 Lakh for use and
occupation of the suit property w.e.f. 25.01.2013 to 25.02.2015, (iii) suit for
mesne profits from the date of filing of the suit till delivery of possession of
first floor of the house in question, and (iv) restraining the defendants from
causing any damage in any manner to any part and portion of the suit
property. The prayer made in the suit is reproduced hereunder:
Suit for possession of first floor out of the double storey
kothi shown in red colour in the site plan bearing no. 148
Anand Avenue Amritsar constructed in an area
measuring 460 square yard comprised in old khasra
number 242 min now khasra no. 20164/333 min (New)
situated at Tung Bala Urban, Anand Avenue Tehsil and
District Amritsar which is owned by the plaintiff and is
in possession of the defendant without having any legal
right and suit for recovery of Rs.5,00,000/- (Rs. Five
lakhs) for use and occupation of the aforesaid property
w.e.f. 25.01.2013 till 25.02.2015 and also suit for mesne
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profit from the date of filing of the suit till the delivery of
possession of the first floor of the Kothi No. 148 Anand
Avenue, Amritsar with consequential relief of permanent
injunction restraining the defendant from causing any
damage in any manner to any part and portion of the
aforesaid Kothi illegally, forcibly and without any due
course of law. (Hereinafter "Main Suit").
5. The trial Court by the consolidated judgment dated 04.03.2022,
while decreeing the respondents' suit, granted the relief of possession of first
floor of the house in dispute by directing the petitioner to hand over vacant
possession within a period of two months from the date of the judgment.
Further, the respondents were also granted the relief of permanent injunction
restraining the petitioner from causing any damage to first floor of the
property in any manner. The respondents were also granted the relief of
recovery and the petitioner was directed to pay Rs.5 Lakh as usage and
occupation charges of the property in dispute to the respondents. However,
the fourth relief claimed by the respondents in the suit, i.e., grant of mesne
profits from the date of filing of the suit till the delivery of the possession of
first floor of the house in question, was not granted.
6. Learned counsel for the petitioner has contended that the lower
appellate Court has committed an error in passing the order dated
14.09.2022 by granting mesne profits to the respondents as the same stand
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declined in the impugned judgment by trial Court dated 04.03.2022.
Besides, there is no evidence on record to establish rent of property in
dispute. He has further argued that no enquiry under Order XX Rule 12 of
the Code of Civil Procedure was conducted to determine mesne profits,
which was a mandatory requirement.
7. Per contra, learned counsel for the caveator/respondent No.1
has argued that the impugned order is well reasoned. Once it has been held
that the petitioner has unauthorized possession of the suit property, he is
liable to pay the mesne profits. In support of his contentions, learned counsel
has placed reliance upon judgment of the Supreme Court rendered
in M/s Atma Ram Properties (P) Ltd. v. M/s Federal Motors Pvt. Ltd.
[2005 (1) RCR (Civil) 212].
8. Learned counsel for the parties have been heard.
9. A perusal of the paper book establishes that undisputedly, the
third prayer for grant of mesne profits from the date of filing of the suit till
the delivery of the possession, has not been granted to the respondents by the
trial Court vide its consolidated judgment dated 04.03.2022, which is the
subject matter of appeal before the lower appellate Court. It has also been
fairly disclosed by learned counsel for the caveator/respondent No.1 during
the course of arguments that an application on behalf of the respondents has
been filed before the trial Court for correction of the decree dated
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04.03.2022 in this regard and grant of mesne profits. Further, it has been
recorded in the impugned order itself that no record was produced before the
Court from which it can be ascertained that prevalent rate of rent of similar
property near the locality where the property in dispute is situated, was
Rs.1 Lakh per month as claimed by the respondents in their application for
grant of mesne profits filed before the lower appellate Court. Still, the Court
fixed mesne profits of the property at the rate of Rs.25,000/- per month.
10. It is, therefore, apparent that mesne profits have been fixed
firstly in the absence of any material on record to establish rent of the
property in dispute; secondly, it has been done despite the fact that mesne
profits of the property were not fixed or awarded by the trial Court. And the
respondents themselves have moved an application before trial Court for
correction of the decree and granting of mesne profits. Thirdly, there is no
provision for assessment of mesne profits in a suit for possession without an
enquiry in terms of the Order XX Rule 12 of CPC. The procedure laid down
has to be followed by the trial Court when a decree for possession and
mesne profits is to be granted. It is not in dispute that no such enquiry has
either been conducted by trial Court. In this situation, looking from any
angle, there is no justification for the lower appellate Court to fix the mesne
profits and direct the petitioner to pay the amount along with arrears.
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11. M/s Atma Ram Properties (P) Ltd. case (supra) has no
application to the facts of the instant case. In that case, the Supreme Court
by relying upon provisions of the Delhi Rent Control Act, has 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, had it been vacated by the tenant. It is because the pendency of
appeal does not have the effect of postponing the date of termination of
tenancy. In the instant case, there is no termination of tenancy. The suit
property was never rented out to the petitioner, nor had its rent been
assessed. Therefore, the concept of depriving the landlord of rent during
pendency of appeal does not apply. And the respondent cannot claim mesne
profits based upon the law laid down by the Supreme Court in the case.
12. Accordingly, the impugned order dated 14.09.2022 is set aside
to the extent it grants mesne profits at the rate of Rs.25,000/- per month for
the property in dispute. The petition stands allowed.
13. Both the respondents have common interest and they jointly
filed the suit in question. However, there is no representation on behalf of
respondent No.2, as the caveat has been filed only by respondent No.1,
therefore, the former is afforded an opportunity to seek recall of this order in
case he is aggrieved against the same, within fifteen days of the order having
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been conveyed to him. The lower appellate Court is directed to convey this
order to respondent No.2 Amit son of Tilak Raj.
14. The registry is directed to convey this order to the lower
appellate Court for compliance of the direction.
(TRIBHUVAN DAHIYA)
JUDGE
01.11.2022
Maninder
Whether speaking/reasoned : Yes
Whether reportable : Yes
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