Disposed¶15

Budhi Ram v. Kali Ram

Himachal Pradesh HC13 Jun 2024CMP.M/198/2024

Case brief

AI extract

What is this about?

Use and occupation charges; mesne profits; stay of eviction; unauthorized possession after eviction order; rent petition; partial eviction; shop with attached godown; Mall Road Shimla premises; rate fixation per square foot; CMP No. 11213 of 2023; Civil Revision No. 210 of 2022; Rent Controller Shimla order dated 04.01.2022; appellate dismissal 31.10.2022; compensation for delayed eviction; comparable rent orders - Champeshwar Lall Sood, Ramesh Jain, Jeevan Khanna, Amarjit Singh Bedi; Supreme Court precedents Achal Misra, Anderson Wright & Co., Atma Ram Properties.

What did the court decide?

CMP No. 11213 of 2023 disposed of: use and occupation charges awarded to the applicant/landlord at Rs. 600 per square foot from 31.10.2022 till the pendency of the proceedings before this Court; Civil Revision No. 210 of 2022 to be listed for hearing in due course.

Budhi Ram Vs Kali Ram — Himachal Pradesh HC (2024) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the tenant, whose possession over the demised premises is unauthorized after the eviction order (appeal dismissed, revision and stay pending), is liable to pay use and occupation charges/mesne profits to the landlord, and from which date. +2 more

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Court's answer

A person found to be in unauthorized possession after the eviction order is bound to compensate the owner by payment of mesne profits as per the judgments of the Hon'ble Supreme Court of India, and the tenant is liable to pay use and occupation charges (not confined to the contractual rent prevailing before the decree).

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Ratio / Principle

The question of partial eviction is to be considered while deciding the revision and is not relevant at the stage of the use-and-occupation application.

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Key takeaways

Both learned Courts below had noticed the plea of partial eviction and given their reasoning for rejecting it: the First Appellate Court found the godown to be inseparable accommodation subservient to Shop No. 78-B, and the Rent Controller similarly held (para 38) that the godown is attached to and subservient to the main shop.ratio¶10
Having regard to the increase in use and occupation charges for Mall Road premises from Rs. 200 to Rs. 500 per square feet within five years (2017-2022), use and occupation charges were awarded to the applicant/landlord at Rs. 600 per square foot from 31.10.2022, the date of ordering the eviction in favour of the landlord, until the pendency of the proceedings before this Court.ratio¶14

Detailed headnote1 paragraphs

Himachal Pradesh High Court (Rakesh Kainthla, J.) disposed of CMP No. 11213 of 2023 in Civil Revision No. 210 of 2022 (Raj Kanwar v. Dinesh Bindal & Ors.), directing the tenant to pay use and occupation charges at Rs. 600 per square foot from 31.10.2022 (the date on which the First Appellate Court dismissed the tenant's appeal against the Rent Controller's eviction order dated 04.01.2022) until the pendency of the revision. Relying on Achal Misra, Anderson Wright & Co. and the quoted decision in Atma Ram Properties, the Court held that a person in unauthorized possession after an eviction order must compensate the owner with mesne profits/use-and-occupation charges, unbound by the pre-decree contractual rent. The tenant's plea of partial eviction (attached basement godown) was held not relevant at this stage and deferred to the revision; both courts below had found the godown inseparable accommodation subservient to Shop No. 78-B, The Mall, Shimla. The rate was benchmarked against the Court's prior Mall Road orders (Rs. 200-500 per square foot, 2017-2022).

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Raj Kanwar Vs. Dinesh Bindal &Ors.

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Civil Revision No. 210 of 2022 Reserved on 21.05.2024

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13.06.2024 Present:

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Mr. Sumit Sood, Advocate, for the Petitioner.

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Mr Ajay Kochhar, Sr. Advocate with Mr Varun Chauhan, Advocate, for respondent No. 1.

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Respondents No. 2 to 6 already ex parte vide

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Order dated 06.04.2023/05.09.2023.

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CMP No. 11213 of 2023

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The applicant /respondent/landlord

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has filed the present application for seeking use and occupation charges. It has been asserted that the applicant filed a rent petition No. 22-2 of 2004, before the learned Trial Court, which was decided by the learned Rent Controller, Shimla vide order dated 04.01.2022. The eviction of the tenant was ordered on the grounds that the tenant had ceased to occupy the premises for a continuous period of twelve months without sufficient cause. The tenant challenged the judgment by filing an appeal, which was dismissed on 31.10.2022. The tenant has filed a Civil Revision, which is pending before this Court. He has also filed an

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application for seeking the stay of the order of eviction. The possession of the tenant over the demised premises is unauthorized and he is liable to pay use and occupation charges. The premises consist of one shop and a godown on the basement floor of building No. 78-B, The Mall, Shimla. The prevalent market rent of similar premises in the locality is around ₹2,00,000/- per month. The tenant is liable to pay the same as use and occupation charges w.e.f. 04.01.2022 till the decision of the Revision Petition. Hence, it was prayed that the present application be allowed by directing the tenant to pay the use and occupation charges at the rate of ₹ 2,00,000/- per month.

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The application is opposed by filing a reply taking preliminary objection regarding lack of maintainability and the landlord having not come to the Court with clean hands. The contents of the application were denied on merits. It was asserted that the landlord has sought partial eviction of the rented premises. He has not included the basement floor as per para-No. 8 of the eviction petition. The learned Courts below erred in ignoring this aspect. It was

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specifically denied that the use and occupation charges of the similar accommodation are ₹2,00,000/-. Hence, it was prayed that the present application be dismissed.

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I have heard Mr. Ajay Kochhar, learned Senior Advocate assisted by Mr. Varun Chauhan, learned counsel for the applicant/landlord and Mr. Sumit Sood, learned Counsel for the tenant/petitioner

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Mr. Ajay Kochhar, learned counsel for the applicant/landlord submitted that possession of the tenant/petitioner is unauthorized after passing of the eviction order and he is liable to pay the use and occupation charges. Hence, he prayed that the application be allowed and the use and occupation charges be awarded to the applicant/landlord.

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Mr. Sumit Sood, learned counsel for the respondent/tenant submitted thatthe learned Courts below erred in ordering the partial eviction of the tenant. The orders are not sustainable. The amount of ₹ 2,00,000/- is highly excessive. Therefore, he prayed that the present application be dismissed.

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I have given considerable thought to the submissions at Bar and have gone through the records carefully.

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It was laid down by the Hon'ble Supreme Court in Achal Misra Vs. Rama Shanker Singh and Others 2005 (5) SCC 531 that where the Courts order the stay of eviction, they should compensate the owner by directing the person in unauthorized possession to pay the mesne profits to the owner. This position was reiterated in Anderson Wright & Co. v. Amar Nath Roy, (2005) 6 SCC 489= 2005 SCC OnLine SC 803 , wherein it was observed:

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" 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 a 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 the decree of eviction, the tenant is liable to pay mesne profits or compensation for the 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

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rent which was prevalent prior to the date of decree.

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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.'s case (supra). Both the parties have filed affidavit and counter affidavit, placing on record material 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 @ ₹ 25/- per sq. ft. other than maintenance and municipal taxes. One Rumpa Ghosh entered as the tenant in the year 2002 is paying rent @ ₹ 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 @ ₹ 15/- per sq. ft. subject to final determination of the same by a competent forum."

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Therefore, a person found to be in

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unauthorized possession is bound to compensate the owner by the payment of mesne profits as per the judgments of the Hon'ble Supreme Court of India and the tenant is liable to pay use and occupation charges.

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9. It was submitted that the order passed by the learned Courts below are not sustainable, as they had ordered the partial eviction. This question is to be

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considered while deciding the revision and it is not relevant at this stage. However, it is significant to notice that the learned First Appellate Court noticed that Shop No. 78-B, The Mall Shimla, was the subject matter of the eviction and tenancy. The landlord admitted that a godown was attached to the shop, which had no separate address. The business was carried out in both parts. Thus, the godown was inseparable accommodation subservient to Shop No. 78-B and the plea of partial eviction was not sustainable.

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10. Similarly, the Rent Controller also held in para 38 of the judgment that a godown is also attached to the shop in question and subservient to the main shop and business activity was to be carried out from the shop and not from the godown. The landlord cannot be non-suited on the ground that he had not mentioned the godown. Thus, it is apparent that both the learned Courts below had noticed the plea of partial eviction and given their reasoning for rejecting the same.

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11. The property is located at Mall Road. This Court had held in Civil Revision No. 212 of 2016, titled Sh. Champeshwar Lall Sood and Anr. Vs. Sh. Gupartap Singh

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&Ors, decided on 06. 04.2017, that the fair rent of the premises situated at Middle Bazar, 30 feet away from Scandal Point was ₹250 square feet. Similarly , in Ramesh Jain Vs. Raj Kumar Mehara & another along with connected matter in Civil Revision No. 165 of 2018, decided on 02.01.2019, the Court had held that the rent of the shop located at the end of the Mall Road was ₹1,64,340/-. The Court found that the use and occupation charges of the shop located on Mall Road as ₹500/- per square feet in Jeevan Khanna Vs. Khem Chand &Ors, Latest HLJ 2022 (HP) (2) 1222.

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12. Reliance was placed upon the order of this Court in CMP No. 18766 of 2023 in Civil Revision No. 34 of 2023 decided on 20.03.2024, in which the use and occupation charges were awarded at the rate of ₹20,000/- per month for a Bhojnalya located on Mall Roadmeasuring 250 square feet.

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13. The Court awarded rent at the rate of ₹ 200 square feet in Amarjit Singh Bedivs. Sanjay Kuthiala , CMP Nos. 8489 of2017 decided on 28.12.2018 . The order of ₹250 per Square feet was passed in 2017. The order of ₹200 per Square feet was passed in the year 2018 in

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Chumpeshwar (supra), the order of ₹1,64,340/- was passed on 02.01.2019 in Ramesh Jain (supra) and the order of ₹500/- per square foot was passed in the year 2022 in Jeevan Khanna (supra).

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14. Considering that the Court had increased the use and occupation charges located on the Mall Road from ₹200/-per square feet to 500/- per square feet within 5 years it would be proper that the use and occupation charges be awarded to the applicant/landlord @ ₹ 600 per square feet from the date of ordering the eviction passed in favour of the landlord i.e. from 31.10.2022 till the pendency of the proceedings before this Court.

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15. The application stands disposed of. Cr. Revision No. 210 of 2022

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List the matter for hearing in due

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course.

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(Rakesh Kainthla) Judge

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June 13, 2024 (Ravinder)

Budhi Ram v. Kali Ram

Case brief

What is this about?

What did the court decide?

Budhi Ram v. Kali Ram

Case brief

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