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High Court Of Delhi
SHYAM KISHORE - Appellant
Versus
ROOP SAREE KENDRA - Respondent
Suit 425 of 1999
Decided On : 03/11/2003
Held:
The word and appearing between the word property and for rent and mesne profits connotes disjunct iveiiess and not conjunctive ness as this rule of procedure is applicable only in those suits which seek decree for recovery of possession of immovable property along with decree for rent or for that purpose mesne profits in Order 20 Rule 12, CPC.
Otherwise it would mean that a landlord can not recover rent or mesne profits unless he seeks recovery of possession at the same time. Such a situation is not only preposterous but highly unimaginable.
Bare perusal of Section 19 of the Act shows that prior permission from the Competent Authority is a condition precedent to a suit for recovery of possession alone. No such permission is required for filing a suit for recovery of rent or mesne profits and thereforee an independent suit for either of the two is very much maintainable.
Thus, a situation that to recover arrears of rent or mesne profits landlord has to wait for the permission to file suit for recovery of possession that may take months or even years as is the case in hand would be not only highly fallacious but jeopardical and unimaginable also. Situation would be worst and ironical if the landlord does not succeed in obtaining permission to seek recovery of possession of immovable property as in that case he would have no remedy to recover the rent even. It was to avoid such a situation and the hardship that permission under Section 19 of the Slums Act was not made a condition precedent to a suit or proceedings for recovery of rent or mesne profits and was confined to proceedings for eviction. All this leads to inevitable conclusion that suit for recovery of rent or mesne profits is maintainable independently and need not be accompanied with a suit for recovery of possession as provision of Order 22 Rule 12 CPC govern the procedure for passing a decree in a suit for recovery of possession and rent or mesne profits.
According to Delhi Rent Control Act "tenant" includes a person whose tenancy is determined by way of notice under Section 106 of the Transfer of Property Act but it does not include a person against whom an order of eviction has been passed.
The definition of a tenant for the purposes of Delhi Rent Control Act is less wider than the definition of a tenant for the purposes of Slum Clearance Act. For the purpose of Delhi Rent Control Act the tenant does not include a person against whom decree of eviction has been passed whereas for the purpose of Slum Clearance Act tenant is inclusive of a person against whom ejectment decree has been passed. It is rightly so as the object of Slum Clearance Act was not to evict the tenant from the premises without the permission from the competent authority.
Suit for mesne profits or for that purposes for damages emanates from the wrongful possession of a tenant.
Unless and until the possession of a tenant is wrongful or unlawful the suit for mesne profits does not lie. Termination of a tenancy of a tenant by way of notice under Section 106 of the TP Act does not render the possession of a tenant either unlawful or wrongful for the purpose of the Slum Clearance Act as it affords additional protection to the tenant that unless and until the permission is obtained under Section 19 of the Act suit or petition for eviction would not lie.
Section 19 of the Slum Clearance Act itself is in the form of non-obstante clause i.e. notwithstanding anything contained in any other law for the time being in force no person shall except with the previous permission in writing of the competent authority institute any suit or proceeding for obtaining any time or order for the eviction of a tenant from the building or land in a slum area. It. was in view of this statutory protection that the Supreme Court as well as the Delhi High Court and other courts in cases after cases held that for the purpose of Section 19 of the Slum Clearance Act the definition of tenant would include even a person against whom an order of eviction has been passed.
Once a person carries the status of a tenant even after the eviction order is passed his possession can by no stretch of imagination be held to be unlawful or wrongful. Since the wrongful possession of the tenant of a property is the sine qua non for claim for mesne profits, the suit for mesne profits or for that purpose damages at the market rate and not at the agreed rent would be maintainable only if the possession of that tenant is held to be wrongful or unlawful. The fact that the permission under Section 19 is a condition precedent to the suit for possession or eviction does not mean that a landlord is entitled to file a suit for mesne profits because the permission under Section 19 of the Act is not a condition precedent for the suit for recovery of arrears of rent. One cannot be unmindful of the fact that prior permission is not necessary for recovery of rent only and rent does not include mesne profits. Remedy to recovery of mesne profits is available against those persons whose possession is wrongful or unlawful and possession of a premises by a tenant for the purposes of Section 19 of the Act cannot be termed as unlawful by incidence of termination of tenancy under Section 106 TP Act.
If a person cannot be evicted solely on the basis of the notice under Section 106 of the TP Act he cannot be sued for mesne profits also. A tenant will continue to be a tenant both for the purposes of eviction proceedings as well as recovery of rent. Had the possession of a tenant whose tenancy is terminated under Section 106 of the TP Act be deemed as wrongful or unlawful it was meaningless to extend the definition of tenant to a person for the purpose of Slum Clearance Act against whom even an order of eviction is passed.
The notice under Section 106 of the TP Act does not convert the possession of tenant in respect of premises situated in slum area into a wrongful or unlawful possession entitling the landlord to a claim for mesne profits. The reason for such a conclusion is simple and short. Wherever there is a statutory protection against dispossession by any operation of law the possession of a person even in spite of termination of his lease is deemed as a lawful possession and under the authority of law.
For the foregoing reasons, the issue is decided against the plaintiff and in favor of the defendant as suit for recovery of arrears of rent alone is maintainable and not a suit for recovery of mesne profits. As a consequence the suit is dismissed.
( 1 ) CONTROVERSY centres around two fold propositions of law viz.
(A) Whether suit by a landlord for damages or mesne profits without accompaniment of a suit for possession is barred by the provisions of Order 20 Rule 12 of the Code of Civil Procedure ?
(B) Whether suit for mesne profits is maintainable in respect of a tenant whose tenancy is governed by the provision of Section 19 of the Slum Areas (Improvement and Clearance Act, 1956) pursuant to notice under Section 106 of Transfer of Property Act determining the tenancy ?
( 2 ) 2. These propositions have arisen from the following preliminary issue set for determination: "whether the suit is maintainable in its present form in view of provisions of Section 19 of the Slum Areas (Improvement and Clearance Act, 1956?"
( 3 ) RELEVANT facts lie in short compass:-
"defendant No. 1 is partnership firm and defendants No. 2 to 8 are its partners. Defendant No. 2 took on rent from the plaintiffs the first floor consisting of a big hall and a open colonade in front of the second floor and terrace of premises No. 450, Katra Choban, Chandni Chowk, Delhi, initially at the rate of Rs. 2000/- per month which was subsequently increased to Rs. 3000/- and from 1. 1. 1995 the rent was increased to Rs. 6000/- per month. It is alleged that defendant No. 1 had illegally and without the consent and permission of the plaintiff covered the Verandah on the first floor and constructed the mezzanine in between the first floor and the second floor. On account of this illegal act, the plaintiffs did not want to keep the defendant as tenant and by notice dated 2. 2. 96 under Section 106 of the Transfer of Property Act terminated the tenancy of the premises calling upon them to vacate the premises and hand over the possession. On their failure to vacate the premises, the plaintiffs filed the instant suit claiming the damages/ mese profits @ Rs. 60,000/- per month.
( 4 ) ADMITTEDLY, the premises are situated in slum area as defined in Slum Area (Improvement and Clearance) Act, 1956 and as such the plaintiffs cannot institute the suit for possession without previous permission in writing of the Competent Authority appointed under the Act as contemplated under Section 19 of the Act. The petition for seeking the said permission was filed by the plaintiffs before the Competent Authority in 1996 itself but the same has not been granted till date and is pending decision.
( 5 ) SH. L. R. Gupta, the learned senior counsel for the defendant has firstly challenged the maintainability of the instant suit on the premise of provisions of Order 20 Rule 12 of Code of Civil Procedure as according to his interpretation the suit for mesne profits is not maintainable unless and until it is accompanied with a relief of recovery of possession of immovable property as under Order 20 Rule 12 CPC, a specific procedure has been laid down where a decree for possession for mesne profit is sought. In order to appreciate the contention of Mr. Gupta in the correct perspective, the reproduction of the provisions is needed:- order 20 Rule 12 CPC. Decree for possession and mesne profits.
12. 1)WHERE a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree. (a) for possession of the property: (b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent; (ba) for the mesne profits or direction an inquiry as to such mesne profits: (c) directing an inquiry as to rent or mesne profits from the institution of the suit until- (i)the delivery of possession of the decree-holder, (ii) the relinquishment of possession by the judgment debtor with notice to the decree- holder through the Court, or (iii) the expiration of three years from the date of the decree, whichever event first occurs. (2)Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the ren
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