Sunday, 5 August 2018

How to decide quantum of mesne profits or compensation for use and occupation of premises?

So far as the affidavit of the petitioner regarding the assessment of the quantum of mesne profits is concerned the instances given by the petitioner in the affidavit appear to be of no significance. It is not stated anywhere as to when these premises were leased out and as to when the rate of rent was fixed. But the law on the subject is that mesne profits or compensation for the use and occupation of the premises in dispute has to be assessed at the same rate at which the landlord would have been able to let out the premises on being vacated by the tenant. Therefore the instances which are old by decades of years will be of no help to arrive at this conclusion.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Misc. No. 15946-CII of 2005 in Civil Revision No. 3447 of 2001

Decided On: 24.05.2006

 Surinder Singh Vs. Dr. Davinder Mohan

Hon'ble Judges/Coram:
S.N. Aggarwal, J.

Citation: 2007(1) Civil court cases 009 P&H


1. This petitioner was inducted as a tenant in S.C.F. No. 49 Section 23C Chandigarh by the respondent. It was an area measuring 373.75 sq. ft. on the ground floor. Initially tenancy started in the year 1967 on the monthly rent of Rs. 200/-. But there was then ejectment proceedings and in June 1986 there started a new tenancy between the parties on the monthly rent of Rs. 1500/-.

2. Later on the ejectment petition was filed by the respondent on 30.10.1996. It was dismissed by the learned Rent Controller vide order dated 8.1.2001. The respondent filed an appeal. The said appeal was accepted by the learned Appellate Authority Chandigarh vide judgment dated 16.5.2001 and the petitioner was directed to hand over the vacant possession within a period of two months. The petitioner filed the revision petition in which notice of motion was issued on 11.7.2001. Dispossession of the petitioner was stayed subject to payment of arrears of rent if any and continuation of payment of future rent on the agreed rate of rent. Later on this petition was admitted by this Court vide order dated 2.5.2002.

3. During the pendency of this revision petition the respondent filed the present application for fixing the mesne profits. This application was opposed by the petitioner and this Court had passed a detailed order on 1.2.2006 by which the Court had held that the landlords (respondent) would be entitled to claim damages/compensation or in the other words mesne profits for the use and occupation of the premises for the period of stay that has been granted by this Court. However the case was adjourned for hearing on the quantum of amount payable as mesne profits for use and occupation of demised premises. They were also free to place on file any document in support of their respective versions for assessing the same.

4. The learned Counsel for the respondent-applicant submitted that he has filed Annexure A-2 alongwith the application which is a copy of registered lease deed. As per the said document two booths No. 20 and 21 situated in Sector 23-C Chandigarh were leased out for an amount of Rs. 21500/- per month on 15.2.2005 with annual increase by 5%. The area of both these booths together was 250 sq. ft. The certified copy of the said lease deed was also handed over in the Court at the time of arguments. Reliance was also placed on an order passed by this Court on 27.2.2006 in C.R. No. 3616 of 2004 mainly on the basis of this lease deed.

5. On the other hand learned Counsel for the petitioner placed an affidavit of the petitioner himself giving 12 instances in which the rate of rent for shop-cum-flats in Sector 23 Chandigarh varied from Rs. 325/- per month to Rs. 1000/- per month depending upon the date of execution of the lease deed.

6. The main submission of learned Counsel for the petitioner was that he had paid the rent to the respondent upto 31.5.2006 which receipt dated 9.5.2006 was issued by the respondent. Its copy was filed alongwith the affidavit of the petitioner. Hence it was submitted that since the respondent has accepted the arrears of rent upto 31.5.2006 therefore he is debarred from claiming mesne profits.

7. This submission was countered by the learned Counsel for the respondent on the plea that he had been accepting the' rent from the petitioner in pursuance of the order passed by this Court on 11.7.2001 by which the respondent was under the legal obligation to receive the rent from the petitioner. Otherwise the respondent would not have accepted the rent at least after the filing of the present misc. application by hirn on 10.8.2005. The acceptance of rent was not his voluntary action.

8. Learned Counsel for the respondent further drew the attention of this Court towards para 5 of the judgment of the Hon'ble Supreme Court reported as Anderson Wright and Co. v. Amar Nath Roy and Ors. (2005) 6 SCC 489 in which the Hon'ble Supreme Court was pleased to observe as under:

5. As held by this Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. 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.
9. It was submitted that after passing of the ejectment order against the petitioner and after the stay order was granted by this Court the respondent was entitled to mesne profits at the same rate on which he would have let out the premises had it been vacated as per the law laid down by the Hon'ble Supreme Court.

10. It was further submitted that this Court has already held vide order dated 1.2.2006 that the respondent would be entitled to mesne profits with effect from the date when the stay order was passed by this Court therefore that Chapter that the petitioner was already paid the rent cannot be reopened at this stage.

11. I find merit in the submission advanced before me by learned Counsel for the respondent. This Court has already held in the order dated 1.2.2006 that the respondent would be entitled to the mesne profits with effect from the date when the stay order was passed by this Court. Therefore merely because the petitioner had been making the payment of rent to the respondent is no consideration to deny him the mesne profits particularly when such an argument was raised and considered before passing the order dated 1.2.2006. However the payment of rent already made would be adjustable against the amount assessed as mesne profits.

12. So far as the affidavit of the petitioner regarding the assessment of the quantum of mesne profits is concerned the instances given by the petitioner in the affidavit appear to be of no significance. It is not stated anywhere as to when these premises were leased out and as to when the rate of rent was fixed. But the law on the subject is that mesne profits or compensation for the use and occupation of the premises in dispute has to be assessed at the same rate at which the landlord would have been able to let out the premises on being vacated by the tenant. Therefore the instances which are old by decades of years will be of no help to arrive at this conclusion.

13. On the other hand the learned Counsel for the respondent has relied upon the lease deed dated 15.2.2005 according to which the rate of rent for two booth the area of which collectively was 250 sq. ft. was Rs. 21500/- per month which comes to about Rs. 90/- per sq. ft. This document was also relied upon by this Court while passing the order dated 27.2.2006 in C.R. No. 3616 of 2004 and the mesne profits were awarded @ Rs. 5000/- per month for an area measuring 104 sq. ft. in S.C.F. No. 11 Sector 23 Chandigarh which comes to about Rs. 50/- per sq. ft. The order passed by this Court is a reliable criteria.

14. Calculated at this rate the amount of mesne profits comes to Rs. 18650/- per month which is rounded to Rs. 18000/- per month. Therefore the mesne profits or compensation for the use and occupation of the premises of S.C.F. No. 49 Sector 23-C Chandigarh is assessed to be Rs. 18000/- per month.

15. As per the order passed by this Court on 1.2.2006 the respondent would be entitled to the payment of mesne profits with effect from the date when the stay order was granted by this Court. It was granted on 11.7.2001. Therefore the respondent would be entitled to arrears of mesne profits with effect from 11.7.2001. Since the amount of mesne profits upto 31.8.2006 shall be payable upto 10.9.2006 by the petitioner to the respondent preferably by way of bank draft. The amount already paid by the petitioner as rent to the respondent shall be adjusted against the amount of mesne profits so calculated. The mesne profits for the subsequent months shall be paid on or before 10th of each subsequent month to start with the month of September 2006.

16. The amount so paid would be subject to the final decision in this case.




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