The main legal point established in the judgment is that for deciding an application under Order 7 Rule 11 of the Code of Civil Procedure, only the contents of the plaint are relevant, and the defense available to the defendants cannot be the basis for deciding the application.

JUDGMENT :

Jyotsna Rewal Dua, J.

Notice. Mr. Ashok Sood, learned Senior counsel, on instruction received from Mr. Khem Raj Sharma, Advocate, learned Assisting Counsel, has put in appearance on behalf of the respondents.

2. With the consent of the parties, present petition is taken up for final hearing at this stage.

3. Petitioner was defendant in the learned Court below. Application moved by the defendant under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint, having been rejected by learned District Judge, Shimla in Civil Suit No.9-S/1 of 2018, instant petition has been preferred under Article 227 of the Constitution of India.

4. Factual position, relevant for adjudicating the present petition is:-

(a) An eviction petition moved by the plaintiff-landlord against the defendants-tenants was allowed in favour of the plaintiff-landlord by the learned Rent Controller, vide eviction order dated 02.09.2008, on the ground that premises are bona-fidely required by the plaintiff for reconstruction and re-building, which is not possible without vacation of the building as well as on ground of arrears of rent.

(b) Appeal preferred by the defendants against the eviction order was allowed by the learned Appellate Authority, vide judgment dated 17.1.2006, thereby, setting aside the eviction order passed by the learned Rent Controller.

(c) Plaintiff-trust-landlord, preferred Civil Revision No.49 of 2006, before this Court, which was allowed on 8.7.2013, subject to certain riders including re-induction of the defendants/tenants. Thus the eviction order passed by the learned Rent Controller was upheld and the order passed by the learned Appellate Authority was quashed and setaside.

(d) Special leave petition No.37472 of 2013, preferred by the plaintiffs was dismissed by the Hon'ble Apex Court on 13.1.2014. Thus, the eviction order passed by the learned Rent Controller as modified by this Court, attained finality.

(e) It is not in dispute that execution petition filed by plaintiff-trust for recovering the possession of the suit premises from the defendants is pending in the Court of learned Rent Controller, Shimla. Plaintiff instituted Civil Suit No.9-S/1 of 2018, against the defendants before the learned District Judge, Shimla, giving details of the above factual position and submitted therein that the defendants are still occupying the suit premises, even though their such occupation and possession over the suit premises has become completely illegal and un-authorized, after passing of the eviction order against them, as modified by this Court on 8.7.2013, which has attained finality, after dismissal of SLP No.37472 of 2013 on 13.1.2014, by the Hon'be Apex Court. Therefore, plaintiffs in this civil suit have set up a case that defendants are liable to pay for use and occupation of the suit premises on the alleged prevalent market rate of Rs.175 per square foot per month, as worked out by them to Rs.81,900/- per month for 468 sq.ft. of area. Though the claim was allegedly due to plaintiff w.e.f. 8.7.2013, however, it has been restricted to three years prior to filing of the suit. Accordingly, an amount of Rs.29,48,400/- has been claimed in the plaint as use and occupation charges from the defendants for three years, prior to filing of suit with pendent-lit & future interest @ 18% per annum. Additionally, decree for pendent-lit & future use & occupation charges by way of mense profits @ Rs.81,900/- per month from date of filing of suit till restoration of possession of suit premises, was also sought. Relief clause of the plaint is reproduced hereinafter:-

"(i) A decree for recovery of 29,48,400/- with pendent-lit and future interest @ 18% P.A. from the date of suit till its actual realization with costs of the suit be passed in favour of plaintiffs trust and against the defendants jointly and severally;

(ii) A decree for pendent-lit and future use and occupation charges by way of mense profits @ Rs.81,990/- per month from the date