PREVIN GOVIND SHARMA v. DINYAR JAL JAMSHEDJI AND ORS.

once the rival parties place on record the necessary material, it will fix the interim compensation to be paid pending the Civil Revision Application.

3. In the context of fixing the interim compensation, I may set out the facts briefly. Initially, before the City Civil Court, Mumbai, the landlords filed Suit No.162 of 1996 against the applicant-tenant for eviction. But the plaint was returned under Order VII Rule 10 to be presented before the proper court. The landlords, instead, instituted RAE Suit No.141/260 of 2008; the trial Court dismissed it on 16th September 2013. But the landlords succeed in Appeal No. 124 of 2013; the Appellate Bench of the Small Cause Court, Mumbai, allowed it on 6th October 2018. Aggrieved, the tenant filed this Civil Revision Application. And on 12th December 2018, she secured an interim stay.

4. The interim order, as I have noted, directs the tenant to pay Rs.25000/- per month as compensation until the Court fixes a reasonable amount as interim compensation. Based on the material either party placed on record, including the mesne profits reports prepared by the Government approved valuers, both the counsel have advanced their arguments.

Submissions:

Applicant's:

5. Shri Amrut Joshi, the learned counsel for the tenant- applicant, contends that the building was constructed in 1915 and is dilapidated. According to him, the area does not exceed 600 sq. ft. In this context, he submits that the landlords have admitted in their pleadings that the property is about 600 sq. ft., but it has later gone

3/15

back on its own admission. That is, the landlords now assert that the property measures over 1,000 sq. ft.

6. To support his contentions, Shri Joshi has also drawn my attention to the landlords' pleadings in the plaint to the effect that the leased property is 600 sq. ft, and that the initial rent was Rs.562/-. As per the pleadings, the rent was later raised to Rs.662/-. So it now stands at Rs.1200/- per month.

7. Shri Joshi argues that the landlords constituted a Charitable Trust, and that Trust is expected to lease out the property to the needy. It should not be swayed by profit motive. Besides, Shri Joshi elaborates on, what he calls, the well-established principles that weigh with the Court in its fixing the interim compensation. On that count, he has relied on these decisions: (i) Niaz Ahmad Khan v. Mahmood Rahmat Ullah Khan and anr.[¹], (ii) Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd.[²], (iii) Chanddrakant Dhanu v. Sharmila Kapur[³].

8. Further, Shri Joshi has drawn my attention to the mesne profits reports on record. According to him, the landlords' valuer prepared the report without inspecting the property. So the valuer has fixed the fair market rent for the suit property at Rs.71,500/- per month. And that amount, according to Shri Joshi, is exorbitant. On the other hand, he stresses that the fair market rent fixed by the tenant's valuer is about Rs.12,000/-. This amount must be the just interim compensation.

Respondents':

1 [1] (2008) 7 SCC 539

2 [2] (2005) 1 SCC 705

3 [3] 2009 (2) Mh.L.J. 243

4/15

9. Per contra, Shri Foroze Bharuka, the learned counsel for the landlords, has initially touched on the merits. He contends that though the applicant-tenant now claims the status of a tenant, she has actually trespassed on the suit property. To elaborate, Shri Bharuka submits that the applicant claims to be the adopted daughter of the original tenant, who died both intestate and issueless. At any rate, he submits that he will not take that issue further.

10. Then, Shri Bharuka has drawn my attention to the relative merits of the rival mesne profits reports. According to him, the tenant's valuer has treated the property as if it were vacant land and, then, went on to calculate the probable monthly rent. Shri Bharuka, again, stresses that the property is over 1000 sq. ft. Faced with the landlords' admission about the extent—that it is 600 sq. ft.,—Shri Bharuka submits that it is a verifiable fact. Even at the landlords' cost, this Court may have the area measured before it could fix the interim compensation. In that context, he submits that even an admission can be explained.

11. Shri Bharuka submits that the landlords' mesne profits report has considered all aspects and opined that Rs.71.500/- is the just

5/15

compensation. About the landlords' valuer not visiting the property, he submits that the applicant did not allow him to enter the property. Reply:

12. In reply, Shri Joshi, the learned counsel for the tenant, submits that it is the landlords' suit that has occasioned this CRA. The landlords' having sued the applicant showing her as a tenant, it does not lie in their mouth to call the applicant a trespasser.

13. Heard Srhir Amrut Joshi i/b. Shri Sanket Mungale for the applicant and Shri Foroze Bharuka for the respondents 1 to 8. Discussion:

(a) The Decree:

14. In September 2013 the trial Court dismissed the landlords' RAE & R Suit No. 141/260 of 2008. But in Appeal No.124 of 2013, the Appellate Bench of the Small Cause Court decreed the suit—that is, it reversed the trial Court's verdict. While allowing the appeal, it ordered:

"1. Appeal is allowed.

2. The judgment and decree passed in RAE & R Suit No.141/260 of 2008 on 16.09.2013 is set aside and the suit is decreed.

3. The defendants are hereby ordered to vacate the suit premises and deliver quiet and peaceful possession of it to the plaintiffs within three months from the date of this order.

6/15

4. A separate inquiry as to mesne profits be held as per the provisions of Order 20 Rule 12 of the Code of Civil Procedure and the plaintiffs are entitled to get mesne profits at the rate determined in such inquiry from the defendant no.3 from date of the suit till the date they get possession of the suit premises.

5. The defendant no.3 to pay the cost throughout to the plaintiffs.

6. A decree be drawn accordingly."

(italics supplied)

15. Aggrieved, the tenant filed the Civil Revision Application. This Court, through its order on 12^thDecember 2018, granted to the tenant ad-interim protection against eviction. It was on a few conditions. One of them is that the tenant should deposit in the Court

"compensation assessed on an ad-hoc basis at Rs.25,000/- per month from 1^stNovember 2018, on or before 5^thday of each succeeding month."

16. Besides that, the Court permitted both parties to place material before the Court to assist it in its determining the compensation amount as per the Supreme Court's ruling in Atma Ram Properties.

(b) Mesne Profits:

17. Lexically speaking, mesne (pronounced "meen") denotes the idea of occupying a middle position; it has two important senses in the law. We may consider the second sense. Mesne may signify "occurring or performed at a time intermediate between two dates" (as defined by the Oxford English Dictionary). Thus, mesne profits are the profits of

7/15

an estate received by a tenant in wrongful possession between two dates —that is, between the commencement of a lawsuit and its termination.

18. As Section 2(12) of the Code of Civil Procedure defines, mesne profits are those profits which a person in wrongful possession of the property actually received or might with ordinary diligence have received by using that property. Those profits carry interest but do not include profits made by a person in wrongful possession. Plainly put, the mesne profits are a penal compensation. Thus, the object of awarding a decree for mesne profits is to compensate the person kept out of possession and deprived of enjoying his property despite his entitlement to possession.[⁴]

19. A decree for mesne profits can be passed against a trespasser or against a person who has suffered a decree of restoring possession to the true owner. Order 20, Rule 12 governs this process. Here , that process has not begun. Instead, the parties want the interim compensation fixed under Order 41, Rule 5, as a precondition so the landlords' decree could be stayed. For that, they want the Court to follow the ratio of Atma Ram Properties. Let us examine that case.

(c) Atma Ram Properties:

20. In Atma Ram Properties, the respondent, first, suffered a decree of eviction. Then, he approached the Rent Control Tribunal, which stayed the eviction subject to his depositing in the court Rs.15,000/- per month as compensation, besides the contractual rent, which may be paid directly to the appellant. The compensation was ordered to be retained with the court; neither party could withdraw the

4 [4] C. K. Thakker's Code of Civil Procedure, Vol. 1, P.247 (E-book Reader)

8/15

amount until the appeal was finally decided. The respondent-tenant challenged it before the High Court. He contended that the Tribunal ought not to have required him to deposit more than the contractual rent. The High Court accepted that contention; it modified the stay order. So the appellant-landlord went to the Supreme Court.

21. In Atma Ram Properties, the Supreme Court observed that

"the litigation goes on for an unreasonable length of time and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can thereby afford to perpetuate the life of litigation and continue in occupation of the premises." It has quoted with approval the aphoristic observations of Chief Justice Chandrachud, who spoke for the Constitution Bench in Olga Tellis v. Bombay Municipal Corporation[⁵]: "[C]ommonsense which is a cluster of life's experiences is often more dependable than the rival facts presented by warring litigants".

22. Atma Ram Properties has observed that once the lease or tenancy stands determined, say, through a decree from a competent court, the tenant's right to continue to possess the leased property ends. And for his continued use and occupation of the property for any period thereafter, he must pay damages at the rate the landlord could have let out the premises if there had been no tenant or the tenant had vacated with the lease termination. Thus, Atma Ram Properties has summed up the principles of interim compensation:

(1) while passing an order of stay under Rule 5 of Order 41 of the Code of Civil Procedure, 1908, the appellate

5 [5] (1985) 3 SCC 545

9/15

Court does have jurisdiction to put the applicant on such reasonable terms as would in its opinion reasonably compensate the decree-holder for loss occasioned by delay in execution of decree by the grant of stay order, in the event of the appeal being dismissed and in so far as those proceedings are concerned. Such terms, needless to say, shall be reasonable;

(2) in case of premises governed by the provisions of the Delhi Rent Control Act, 1958, in view of the definition of tenant contained in clause (l) of Section 2 of the Act, the tenancy does not stand terminated merely by its termination under the general law; it terminates with the passing of the decree for eviction. With effect from that date, 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 and earn rent if the tenant would have vacated the premises. The landlord is not bound by the contractual rate of rent effective for the period preceding the date of the decree;

(3) the doctrine of merger does not have the 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. (italics supplied)

23. After setting out those principles, Atma Ram Properties has taken stock of the prevailing market condition in Delhi. It has judicially acknowledged that the value of the real estate and the rents have skyrocketed. It estimated the probable rent the leased property would fetch if let out to a third person—Rs.3,50,000/-per month—and then restored the Tribunal's conditional stay. That is, the respondent was

10/15

asked to pay Rs.15,000/- per month for his continued presence in the leased property pending the appeal.

24. I may note that Rs.3,50,000/- as the estimated rent and Rs.15,000/- as the conditional interim compensation may have no parity or congruity. But, to me, the Supreme Court has refused to interfere with the Tribunal's discretion and impose its view in an interlocutory matter.

(d) Niays Ahmad Khan:

25. In Niyas Ahmad Khan, the landlord sued the tenant for eviction. He set up the bona fide requirement as the ground of eviction. But both the primary authority and the appellate authority disbelieved the landlord's version and rejected the application. The landlord, then, approached the High Court, challenging the concurrent rejection. In the writ petition, he wanted the High Court to quash the impugned orders of the authorities under the rent control regime and to grant an order of eviction.

26. There was, indeed, no prayer for a direction that the tenant should pay the rent at an increased rate. Plainly put, the grievance in the writ petition was only about the authorities' refusal to grant an order of eviction.

27. In the above factual backdrop, Niyas Ahmad Khan has reckoned that the High Court has exceeded its jurisdiction. For it fixed an arbitrary figure as the conditional interim compensation to be paid

11/15

by the successful tenant to an unsuccessful landlord. And the landlord never sought that relief, though. It has felt there is no justification for directing payment of a higher rent either pending consideration of the writ petition or otherwise. It has also observed that when the statute specifically provides for fixation of rent and increase in rent, it is impermissible for the High Court to ignore those provisions and direct the tenant to pay an arbitrarily assessed rent. I am afraid Niyas Ahmad Khan does not affect this case. Here, the tenant suffered a decree of eviction; now he rendered himself an unauthorised occupant, if not an illegal one. His continuation as a tenant in the face of a decree is impermissible unless an appellate or revisional forum stays that decree. And that stay comes at a premium called interim compensation as recognized by Order 41, Rule 5 of CPC. Yet it has nothing to do with mesne profits under Order 20, Rule 12 of CPC, for they stand on a different footing.

(e) Chandrakant Dhanu:

28. In Chandrakant Dhanu, the petitioners-tenant suffered a decree of eviction. In the appeal, the Appellate Bench of the Court of Small Causes, fixing Rs.50,000/- as the monthly compensation for the tenant to pay as a precondition to have the decree stayed. Aggrieved, he filed a writ petition before this Court.

29. Chandrakant Dhanu, per a learned Single Judge, holds that

"there is no question of fixing any compensation without any basis. The burden is on the landlord to prove his claim of fair and reasonable

12/15

compensation by putting the material on record, including expert opinion report and other such instances etc." It permits the tenant, too, to show the contra material, if any.

(f) What is determined now?

30. I may put the issue in perspective. What this revisional Court now considering or determining are not mesne profits. It is only laying down the condition or conditions under Order 41, Rule 5 (3) (c) & (5) of CPC. Nothing more. Here, the contractual rate is Rs.1,200/-. The landlords' mesne profits report recommends Rs.71,500/- per month; the tenant's report, as expected, recommends Rs.12,846/-—a lower figure.

31. If this Court indulges in a threadbare analysis and judicially determines the relative merits of the rival mesne profits reports at an interlocutory stage—more so under Order 41, Rule 5 of CPC—that preempts the trial Court's legitimate adjudicatory powers under Order 20, Rule 12 of CPC. Here, what this Court intends, or requires, to do is to use the "commonsense which is a cluster of life's experiences" rather than depend on the rival facts presented by warring litigants."

(g) Pragmatic Pursuit:

32. Indeed, any adjudication, if it were, under Order 41, Rule 5 of CPC involves an element of ad hocism, a permissible level of guess work, and a dose of discretion. That provision is a step-in-aid in appeal proceedings; it tries to keep both the rivals in the litigation on an even keel. One has the reality of a decree; the other a possibility of its reversal. The decree, say in an eviction suit, alters the characters of

13/15

parties. The tenant is no longer a tenant; he is, at best, an occupant. And that occupation stands branded as unauthorised. The suspension of the decree does not obliterate the judicial findings; it only keeps its effect—its execution—at bay. So to have the legitimate judicial dictum put on hold in the name of stay, the appellant needs to submit himself to certain terms. The terms of, for example, paying monetary compensation. A stay is not for mere asking. Nor can the appellant paint himself a victim under Order 41, Rule 5 of CPC. That said, I must also acknowledge that the appellate courts will not lose sight of the distinction between what is ideal and what is practical; what is discretionary and what is arbitrary; what is a fair guess and what is a wild whim.

33. With judicial overload, docket explosion, and clogging adjudicatory avenues at every echelon, we cannot expect a mini-trial even under Order 41, Rule 5 of CPC, for fixing, say, an interim compensation. It is ideal. But with the litigious multitude knocking at the court's doors clamouring for speedy justice, it is an unaffordable legal luxury.

34. Here, in the revision, the appellant cannot insist on reappreciation of his case on merits. This Court can only examine the jurisdictional errors, if any, committed by the Appellate Bench.

14/15

no trappings of a judicial determination of mesne profits under Order 20, Rule 12 of CPC. The tenant will continue to pay Rs.25,000/- per month to have the decree stayed, and the eviction stalled. Between the two extremes of Rs.71,500/- per month and Rs.12,846/-, as projected by the landlords and tenant respectively, my altering the figure Rs.25,000/- can be nothing more than a cosmetic consideration. This interim arraignment does not prevent the landlords from invoking Order 20, Rule 12 of CPC. In that event, both the rival contenders can invite a reasoned order from the trial Court.

So I dispose of this Civil Revision Application confirming this Court's earlier Order, dt.12^thDecember 2018.

[DAMA SESHADRI NAIDU, J.]

15/15