IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NO.5885 OF 2008        (arising out of SLP(C)No.5359/2006)

DIWAKAR UPADHYAY    ... APPELLANT

VERSUS

P.N. KHANNA & ORS.  ... RESPONDENTS

O R D E R

Leave granted.

2. This  is  a tenant's  appeal.  The case  has a chequered history.  The first

respondent,  as  landlord,  filed  an  application  for  release  of  the  suit  premises

(residential  tenement)  in  the  year 1972.  The  Rent  Control  and  Eviction  Officer

however rejected the release application on 10.1.1973 and alloted the premises to the

appellant on 18.01.1973 without fixing any rent. Being aggrieved by the rejection of

the release application and the order of allotment, the first respondent filed  revision

petitions. The Additional District Judge, Bareilly allowed the revision and remanded

the matter to the Rent Control and Eviction Officer. By order dated 21.1.1975, the

Rent Control and Eviction Officer released the premises in favour of  first respondent

by ordering eviction of the appellant.  That order was challenged by the appellant in

revision which was dismissed by the District Judge, Bareilly on 23.07.1975 granting

six months time to the appellant to vacate the premises.

3.  At that stage the appellant filed O.S. No.67 of 1976  contending that the

second  respondent  (B.K.  Khanna) was the  landlord and therefore the release in

favour of  first respondent (P.N.  Khanna) was illegal, and he cannot therefore be

evicted  in  pursuance  of  the  release  order  in  favour of  first  respondent.  In  the

meanwhile, in pursuance of the order of the District Judge Form 'C' was served on

the appellant for vacating the premises. That was challenged by the appellant in a

writ petition (W.P.No.2065/1977)  which was dismissed  on 18.07.1978.  Thereafter,

Form 'D'  was  issued  on 23.11.1978.  That  could  not  be  executed in view of  the

temporary injunction granted in the aforesaid suit filed by the appellant. Ultimately

the  appellant's  suit  was  dismissed  on  07.01.1979  recording  a  finding  that  both

respondents (P.N. Khanna and B.K. Khanna) were the landlords and that there was

no infirmity in the release order in favour of one of them. The appellant challenged

the judgment and decree of the trial court by filing a appeal before the District Judge

and the appeal was dismissed on 18.02.1981. Thereafter, a second appeal was filed by

the appellant which was also dismissed on 19.02.1982.  

4. In this background, the landlords again filed an application for possession

and issuance of fresh Form 'D' on 28.05.1983. The appellant filed objections to the

said application that the release order only in favour of one of the landlords could not

be  enforced.  He  contended  that  as  per  the  decree  in  a  partition  suit

(O.S.No.305/1974)between first respondent and second respondent, a part of the suit

premises was allotted to second respondent. The Rent Control and Eviction Officer

by order dated 23.05.1984 upheld the objections and held that possession of the suit

premises  could  not  be  delivered to  first  respondent.  That was challenged by the

landlords in revision which was rejected by the District Judge on 14.12.1992  on the

ground of  maintainability.  The order  dated  23.5.1984  of  the  Rent  Control  and

Eviction  Officer and  the  order dated  14.12.1992  of  the  Revisional  Court   were

challenged in W.P.No.5585/1993 by  respondents 1 and 2. The impugned order dated

20.2.2006 was passed allowing the said writ petition of the landlords. The High Court

held that respondents  1  and 2 were co-owners and there was no illegality in the

release order.

5. The learned Single Judge after  referring to the history of the case  and the

attempts of the landlord to secure possession in pursuance of the order of release

granted as long back as 1975, set aside the orders dated 23.5.1984 and 14.12.1992.

The learned Single Judge also noted the conduct of  the appellant which virtually

amounted to abusing the judicial process to avoid delivery of possession. It is in this

background the learned Single Judge while directing delivery of possession, also held

that the appellant tenant should pay rent/damages for use and occupation at the rate

of  at  least  Rs.1,000/-  per month from 18.1.1973  (date  of  allotment in favour of

appellant)  till  20.2.2006  (date  of  the order of  the High Court).  The High Court

further directed that from the date of its order (20.2.2006) to date of actual delivery

of possession, the appellant shall pay Rs.100/- per day as damages.

6. This Court stayed recovery of damages by order dated 21.3.2006 but did

not  stay the order for delivery of  possession.  Learned  counsel for the appellant

informed us  that  the  appellant  has  vacated  and  delivered the  possession  of  the

premises to the landlord on 11.06.2006.

7. The learned counsel for the appellant was not able to make out any error in

the order of High Court directing appellant to deliver possession of the suit premises

to  first  respondent.  He therefore restricted  the  challenge only to  the  issue  as  to

whether the High Court was justified in directing payment of  damages for use of the

premises  at  the  rates  mentioned  therein.  The  respondents  though  served  have

remained unrepresented.

8. Section 16(9) of the Uttar Pradesh Buildings(Regulation of Letting Rent

and Eviction) Act,1972 provides that the District Magistrate while making an order of

allotment  under  sub-section  (1)(a)  may  also  direct  payment  of  one  month's

presumptive rent. It is not in dispute that when the premises was alloted no rent was

fixed.  The  narration of  the  facts  above will  demonstrate that  the  landlords  had

challenged the allotment in favour of the appellant and there was an order of release

in favour of the first respondent as long back on 21.1.1975 but the appellant had

prevented the landlord from obtaining possession for more than three decades by a

series of litigations. It is in these circumstances that the learned Single Judge thought

fit to direct payment of damages, instead of driving the landlords to one more round

of litigation to recover damages. As it is a just order we do not propose to go into the

question whether such an order for damages could have been made in a writ petition

arising from an application for possession filed before the Rent Control and Eviction

Officer, or interfere with the direction for payment of damages.  

9. But we feel that fixation of rate of damages fixed (at a uniform rate of

Rs.1,000/-  per  month  from 18.1.1973)  requires  modification.  The  appellant  has

produced documents to show that the rent paid by the previous tenant was Rs.23/-

per month and the landlord had sought fixation of rent in 1979 indicating Rs.150/-

per month was the prevailing rent.  The occupation of  the flat from 18.1.1973  to

21.7.1975 (that is date of expiry of six months from the date of release order dated

21.1.1975) was legal. Having regard to relevant circumstances like date of allotment,

size  and situation,  age and other circumstances  as  borne out  by  records  on the

peculiar circumstances of the case, we direct the appellant to pay the rent/damages as

follows :

(i) Rs.75/- per month from 18.1.1973 to 31.7.1975.    

(ii)Rs.150/- per month from 1.8.1975 to 31.12.1980;

(iii)Rs.250/- per month from 1.1.1981 to 31.12.1990;

(iv)Rs.400/- per month from 1.1.1991 to 31.12.2000; and  

(v)Rs.500/- per month from 1.1.2001  till date of    delivery.  

Any payments already made by the appellant towards rents/damages shall

be  adjusted against the amounts payable as above.  The appellant is  granted two

months time to pay the amount.

With the said modification this appeal is disposed of.  

............................J.          ( R.V. RAVEENDRAN  )

       ............................J.          ( LOKESHWAR SINGH PANTA )

NEW DELHI, SEPTEMBER 26, 2008.