Allowed

Lrs.of T.C.Parihar v. S.B.B.J.and Ors.

Rajasthan HC4 Feb 2015CMAP/42/2013

Case brief

AI extract

What is this about?

The court allowed a miscellaneous application to correct an apparent error in a prior judgment. The earlier order had incorrectly applied a fixed 15% rent increase over 15 years. The court held the agreement mandated a 15% increase for every five-year block. Consequently, the appellate order was amended, and the tenant bank was directed to pay an additional amount to the landlord.

What did the court decide?

Amened judgment to insert 'for block period of five years'; directed respondent bank to pay Rs.3,22,832/- within two months.

Lrs.of T.C.Parihar Vs S.B.B.J.and Ors. — Landlord and Tenant | Rajasthan HC (2015)

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S.B. Civil Misc. Application No.42/2013

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in S.B. Civil First Appeal No.109/2002 LR's of T.C. Parihar Vs. S.B.B.J.

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Order dated 04/02/2015

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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::: O R D E R :::

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S.B. Civil Misc. Application No.42/2013 in S.B. Civil First Appeal No.109/2002

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LR's of T.C. Parihar Vs. S.B.B.J.

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Date of Order: 04/02/2015 .

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P R E S E N T

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HON'BLE Dr. JUSTICE VINEET KOTHARI

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Appearance :

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Mr. Jitendra Chopra, for the applicants/appellants. Mr. Jagdish Vyas, for the respondent/defendant- Bank.

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The applicants/appellants (legal representatives of late Sh. T.C. Parihar) have filed the present misc. application under Sections 151 and 152 for seeking correction/clarification in the judgment and order dated 28.09.2012 passed by this Court disposing of the first appeal (SBCFA No.109/2002) filed by the appellants for fixation of standard rent of the suit premises let out to the defendant SBBJ, which was vacated and handed over to the landlord on 30.09.2011.

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The suit for standard rent was decided by this Court on 28.09.2012 while disposing of S.B.C.F.A. No.109/2002- LR's of T.C. Parihar Vs. SBBJ and it was directed while increasing the standard rent and the respondent was directed to pay the arrears of enhanced standard rent in the folloiwng manner in para 14 of the said judgment and decree dated 28.09.2012: -

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S.B. Civil Misc. Application No.42/2013

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in S.B. Civil First Appeal No.109/2002 LR's of T.C. Parihar Vs. S.B.B.J.

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Order dated 04/02/2015

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2/7

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“14. Consequently, the present appeal of the plaintiff-landlord is partly allowed and modifying the judgment and decree of the learned trial court dated 11.05.2002 , it is directed that the defendant- Bank shall pay monthly rent of Rs.8,000/- per month to the legal representatives of plaintiff-landlord, T.C. Parihar for the period 28.08.1990 , for the period of five years with 15% increase, viz. @ Rs.9,200/- from 28.08.1995 to till 30.09.2011 , when the vacant possession of the suit premises was handed over to the plaintiffs-landlord. The arrears of rent of different amount, computed on the aforesaid basis after adjusting of rent @ Rs.7000/- per month, already paid, is not paid by the defendant-SBBJ Bank within three months from today, the outstanding amount shall bear interest @ 9% per annum till the date of actual payment of such difference amount of standard rent.”

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The present application has been filed by the applicants/appellants, legal representatives of late Sh. T.C. Parihar, submitting that in para 14 of the judgment, quoted above, the increase of 15% increase in the mesne profit/rent was required to be given for every block of five years period whereas by inadvertent error it was directed to be given for the entire block of period of 15 years from 28.08.1995 till 30.09.2011 when the vacant possession of the suit premises was handed over the landlord, whereas such 15% increase should have been made for every block of five years because that was agreed between the parties, which has been quoted in the order dated 28.09.2012 itself passed by this Court.

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Mr. Jitendra Chopra, learned counsel for the appellants submitted that in terms of Clause 5 of the agreement, the 15 per cent increase of the standard rent from Rs.8,000/- to Rs.9,200/- could not

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in S.B. Civil First Appeal No.109/2002 LR's of T.C. Parihar Vs. S.B.B.J.

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3/7

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S.B. Civil Misc. Application No.42/2013

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Order dated 04/02/2015

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have been made for the entire period of 15 years from 28.08.1995 till 30.09.2011 and, therefore, there was a bonafide and apparent error in the said operative portion in para 14 of the judgment and that 15% increase per block of five years ought to have been given by this Court in the aforesaid judgment. He further submitted that if such difference amount is calculated giving increase of 15% in the mesne profit/rent for the entire period of 28.08.1995 till 30.09.2011 in the aforesaid corrected manner of giving increase of 15% in rent every 5 years, the following difference without any interest of Rs.3,22,832/would still be payable to the appellants/landlords. The calculation worked out in this respect which has been verified by both the sides counsel/s is given below: -

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Particulars Amount Rent as on 28.08.1990 @ Rs.8000/Rs.60,000.00 Difference Rs.1000/- because Rs.7000 have already paid 1000 x 12 x 5 (up to 28.08.1995) 15% increase on Rs.8000/- comes to Rs.9,200/Rs.1,32,000.00 as on 28.08.1995 Difference 2200 x 12 x 5 (up to 28.08.2000) 15% increase on Rs.9,200/- comes to Rs.10,580/Rs.2,14,800.00 as on 28.08.2000 Difference 3580 x 12 x 5 (up to 28.08.2005) 15% increase on Rs.10,580/- as on 28.05.2005 Rs.3,10,020.00 comes to Rs.12,167/5165 x 12 x 5 (up to 28.08.2010) 15% increase on Rs.12,167/- comes to Rs.90,896.00 Rs.13,992/- as on 28.08.2010 Difference 6992 x 13 months (up to 30.09.2011) G. Total Rs.8,07,716.00 Less: Amount already paid by the Bank on Rs.4,84,884.00 28.12.2012 Net Amount Rs.3,22,832.00

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S.B. Civil Misc. Application No.42/2013 in S.B. Civil First Appeal No.109/2002 LR's of T.C. Parihar Vs. S.B.B.J.

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Order dated 04/02/2015

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Mr. Jitendra Chopra, learned counsel for the appellants/applicants, therefore, submitted that the judgment and decree dated 28.09.2012 deserves to be modified and corrected and the difference amount of Rs.3,22,832/- still deserves to be paid by the respondent Bank to the appellants/landlord. He submits that payment already made on 28.12.2012 of Rs.4,84,884/- has been adjusted against the amount of mesne profit due to the landlord as given in the chart given above.

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On the other hand, Mr. Jagdish Vyas, learned counsel for the respondent- Bank submits that such increase cannot be given at this stage as it would amount to review of the judgment/order dated 28.09.2012 passed by this Court, which cannot be done as Section 152 of CPC, 1908 only permits arithmetical error/s, if any, to be corrected by such application and no review of such order/judgment can be sought on the grounds mentioned in the application. He drew the attention of the agreement/letter dated 18^th September, 1989, and submitted that such increase of 15% of rent was only for one period of extension for 5 years as the words used are “for the second period” mentioned in the Clause 5 of the agreement and not the entire period of 15 years as claimed by the applicants/appellants. He further submitted that the present misc. application deserves to be rejected since amount as per the judgment dated 28.09.2012 has admittedly been paid by the respondent Bank on 28.12.2012.

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I have heard the learned counsel for the parties at some length and considered rival contentions made by the learned counsel

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in S.B. Civil First Appeal No.109/2002 LR's of T.C. Parihar Vs. S.B.B.J.

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S.B. Civil Misc. Application No.42/2013

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Order dated 04/02/2015

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for the parties.

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Having heard learned counsel for the parties, this Court is of the opinion that there is an error apparent on face of the judgment and decree dated 28.09.2012 in para 14, quoted above, and same deserves to be corrected by this Court. It is not disputed on behalf of respondent Bank that there is no other agreement between the parties about the fixation of rent except Clause 5, which is also quoted herein below, and as communicated to the landlord vide letter dated 18.09.1989 (Exhibit-2) . The relevant Clause 5 of the agreement reads as under:

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“ You will execute a Lease Deed for a period of five years with one option of 3 (THREE) years in favour of Bank on the same terms and conditions except that the monthly rent will be increased by 15% for the second period.”

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It is true that 15% increase was envisaged only for the second period but such second period was obviously for every extension of lease for 5 years and the fact remains that lease in question actually survived and the tenant Bank enjoyed the suit property in question up to 30.09.2011 and admittedly such increase 15% was liable to be paid by the respondent Bank after every five years of the total period for which the lease survived and continued. There is no contrary stipulation in the agreement, which prohibits such 15% increase after every five years. The 15% increase on Rs.8,000/- fixed at Rs.9,200/- @ 15% increase was obviously meant only for a period of five years in terms of the agreement itself, which

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in S.B. Civil First Appeal No.109/2002 LR's of T.C. Parihar Vs. S.B.B.J.

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6/7

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S.B. Civil Misc. Application No.42/2013

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Order dated 04/02/2015

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is quoted in the order but in the operative portion of the order, the 15% of the increase for the entire period of 15 years from 28.08.1995 to 30.09.2011 was inadvertently typed.

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There is thus an apparent error on the face of the order of the Court, which deserves to be corrected in view of the agreement dated 18.09.1989, quoted in the the order. However, it is made clear that the landlord will not be entitled to any interest on such arrears now awarded under this order passed today on the misc. application filed by the applicants/landlord. The calculation worked out above of the difference amount with 15% increase after every five years for the aforesaid period of 15 years between 28.08.1995 to 30.09.2011, which has been verified jointly by both the counsels and there is no dispute about this calculation. Therefore, this Court does not find any substance in the arguments raised by the learned counsel for the respondent Bank about the scope of this application and whether such correction could not be made in the judgment and decree dated 28.09.2012 or not, which does not amount to review of the order as any legal ground but the factual calculation error which is required to be corrected in terms of agreement between the parties and the very intent and purport of the order passed by this Court.

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Resultantly, the present misc. application is allowed and in para 14 of the judgment and decree dated 28.09.2012, quoted above, after the words 15% increase, the words ' for block period of five years ' shall be deemed to have been inserted and the consequential increase of 15% after every five years will be deemed

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S.B. Civil Misc. Application No.42/2013

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in S.B. Civil First Appeal No.109/2002 LR's of T.C. Parihar Vs. S.B.B.J.

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Order dated 04/02/2015

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7/7

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to have been awarded in favour of applicants/landlord. Thus, the respondent Bank is directed to now further pay a sum of Rs.3,22,832/- (Rupees Three Lacs Twenty Two Thousand Eight Hundred and Thirty Two only) to the applicants, legal representatives of late Sh. T.C. Parihar (original plaintiff/landlord) within a period of two months from today either by Demand Draft or by Bankers Cheque. No costs. A copy of this order be sent to the concerned parties and the court below forthwith.

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(Dr. VINEET KOTHARI), J.

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DJ/19

Lrs.of T.C.Parihar v. S.B.B.J.and Ors.

Case brief

What is this about?

What did the court decide?

Lrs.of T.C.Parihar v. S.B.B.J.and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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