SUNITA RANI & ORS. v.

SRI CHAND & ORS. (Civil Appeal No. 6140-6141 of 2009)

SEPTEMBER 7, 2009 [S.H. KAPADIA AND AFTAB ALAM, JJ.]

[2009] 14 (ADDL.) S.C.R. 295

The following Order of the Court was delivered by

O R D E R

Application  for  deletion  of  the  name of  Respondent  No.4  is  

allowed.

Leave granted

1.  The  respondents  (Landlord)  instituted  proceedings  for  

eviction of the appellants (Tenant) from three different premises let  

out  to  them at  different  times.  One  of  the  proceedings  was  in  

respect of a go-down let out to the appellants at the monthly rental  

of  Rs.50/-.  The other was in regard to a shop with the monthly  

rental  of  Rs.35/- and the third was for a kothari  on the monthly  

rental of Rs.15/-.  

2.  The  Prescribed  Authority/Munsif,  Deoband,  Saharanpur,  

consolidated the three proceedings and by a common judgment  

and  order  dated  8  November,  1983  dismissed  all  the  three  

eviction/release petitions filed by the respondents.  

3.  Against  the order passed by the Prescribed Authority the  

respondents  preferred  appeals  before  the  Additional  Judge,  

Saharanpur. The appellate authority allowed the appeal relating to  

the go-down and ordered its release/ eviction of the appellants by

judgment and order dated 30 May, 1989. By the same judgment,  

however,  it  rejected  the  respondents’  appeals  in  regard  to  the  

other two premises, namely, the shop and the kothari.

4. The respondents filed two writ petitions before the Allahabad  

High  Court  challenging  the  orders  rejecting  his  eviction/release  

petitions in respect of the shop and the kothari. The appellants too  

approached the High Court in a writ petition against the judgment  

of the appellate authority in so far as it allowed release of the go-

down in favour of the respondents. The High Court, like the two  

courts  below,  heard  all  the  three  writ  petitions  together  and  

disposed  them of  by  a  common  judgment  and  order  dated  19  

August, 2008. The High Court held that the judgment and order  

passed  by the  lower  appellate  court  was  eminently  just  and  in  

accordance  with  law.  It  therefore,  dismissed  all  the  three  writ  

petitions.  

5. But the High Court did not stop there. It felt that the existing  

rent of the shop and the kothari (in regard to which the landlord’s  

eviction/release petitions were finally rejected) was very low and  

was liable to be increased.  It,  accordingly, passed the following  

order:

“The  existing  rent  of  Rs.50/-  per  month  for  two  

accommodations, kothari and shop left in the occupation of the  

tenant, is extremely inadequate. Accordingly, it is directed that  

w.e.f.  August  2008  onwards  tenants  shall  pay  rent  for  the  

portion left in their occupation, i.e. kothari and shop at the total  

rate of Rs.500/- per month”

6. Aggrieved by the order of the High Court increasing the rent  

of the shop and the kothari from Rs.50/- pm to Rs.500/- pm, the  

appellants have come in appeal.

7.  In a recent  judgment dated 27 August,  2009 in C.A.  No.  

5835 of 2009 (State of Maharashtra and Anr. vs. M/s Super Max  

International Pvt.  Ltd.  & Ors) a three-Judge Bench of this Court  

examined  the  question  of  the  Court’s  authority  to  increase  the  

existing  rent  or  to  direct  the  tenant  to  pay/deposit  in  court  an  

amount in excess of the existing monthly rent. The Court upheld  

the court’s power and authority to make such a direction in cases  

where the tenant goes to the superior court in appeal or revision  

against a decree or order of eviction. But at the same time it made  

clear that in a case where the landlord goes to the superior court  

against an order rejecting his application for eviction/release, it is  

not  open  to  the  Court  to  direct  any  increase  in  the  monthly  

contractual/statutory  rent  of  the  premises.  In  this  regard  the  

decision in the  M/s Super Max International referred to an earlier  

decision of this court in Niyas Ahmed Khan vs. Mahmood Rahmat  

Ullah  Khan,  (2008)  7  SCC  539  and  made  the  following  

observations:

“7. In Niyas Ahmed Khan, the position was quite different. The  

landlord’s application for eviction of the tenant on grounds of  

personal  necessity  was  turned  down  by  the  prescribed  

authority. The order of the prescribed authority was confirmed  

by the appellate authority. The landlord challenged the orders  

passed by the two authorities under the Rent Control Act in a  

writ  petition filed before the Allahabad High Court  and while  

admitting the writ petition the Court gave an interim direction to

the tenant to pay rent at the rate of Rs.12,050/- per month (in  

place of the contractual monthly rent of Rs.150/-). The Court  

further directed that if the rent fixed by it was not paid for two  

consecutive  months  the  landlord  could  evict  the  tenant  by  

coercive  means  taking  the  aid  of  police.  In  appeal  by  the  

tenant,  this  Court  naturally  frowned  upon  the  interim  order  

passed by the High Court and in paragraph 10 of the decision  

observed as follows:

“10. To sum up, in writ petitions by landlords against rejection  

of eviction petitions, there is no scope for issue of any  

interim direction to the tenant to pay higher rent. But in  

writ  petitions  by  tenants  against  grant  of  eviction,  the  

High Court may, as a condition of stay, direct the tenant  

to  pay  higher  rent  during  the  pendency  of  the  writ  

petition. This again is subject to two limitations. First, the  

condition  should  be  reasonable.  Second,  there  should  

not  be  any  bar  in  the  respective  State  rent  control  

legislation in regard to such increases in rent. Be that as  

it may.” ”

8. In light of the decisions in Niyas Ahmed Khan and State of  

Maharashtra, the High Court judgment in so far as it enhanced the  

monthly  rent  of  the  shop  and  the  kothari  in  occupation  of  the  

appellants  from  Rs.50/-  pm  to  Rs.500/-  pm  is  clearly  

unsustainable.

9.  It  may be noted here  that  the  High Court  has sought  to  

justify its direction to the appellants to pay the monthly rent for the  

shop and the kothari at a rate ten times higher than the existing  

rent by pointing out that in the U.P. Rent Control Act there is no

provision  for  enhancement  of  rent  after  October,  1972  (except  

where the Landlord is the Government or a public charitable or  

public religious trust). It has also relied upon decisions of this Court  

in (i) M.V. Acharya vs. State of Maharashtra AIR 1998 SC 602, (ii)  

Satyawati Sharma vs. Union of India & Anr., (2008) 5 SCC 287  

and  (iii)  Shangrila  Food  Products  Ltd.  Vs.  Life  Insurance  

Corporation of India, AIR 1996 SC 2410. There is nothing in either  

M. V. Acharya or Satyawati Sharma to suggest that in the absence  

of  any  provision  in  the  Rent  Control  Act,  the  High  Court  can  

assume  the  authority  and  the  power  to  enhance  manifold  the  

contractual/statutory rent payable by the tenant in a writ petition  

filed by the landlord against an order rejecting his eviction/release  

application. Further, the reliance placed by the High Court on the  

decision  in  Shangrila  is  equally  misplaced.  The  decision  in  

Shangrila was rendered in a very different set of facts and under  

the  Public  Premises  (Eviction  of  Unauthorised  Occupants)  Act,  

1971 which has not only a different scheme but altogether different  

object  and purpose than the  Rent  Act.  But  in  Shangrila too,  in  

paragraph 8 of the decision it was observed as follows:  

“….It is thus plain and clear that  unless the occupant is first   

adjudged  as  an  unauthorized  occupant,  his  liability  to  pay  

damages  does  not  arise.  In  other  words,  if  he  is  an  unauthorized occupant, he may be required to pay rent but not  

damages…...”

(emphasis added)

10. Similarly, the absence of any provision for enhancement of  

rent  after  a  cut  off  date  in  the  Rent  Act  may  be  an  issue  for  

consideration in a different context (as in  M. V. Acharya) but in a

writ  petition  filed  by  the  landlord  against  an  order  rejecting  his  

eviction/release application that cannot be made a ground for the  

High Court to assume the authority to enhance the existing rent. It  

needs  to  be  realised  that  a  tenant  against  whom  the  

eviction/release application filed by the landlord has been rejected  

by the courts below enjoys all the protections afforded by the Rent  

Act, including the one against the enhancement of rent. That being  

the position, it is not open to the High Court, to summarily strip the  

tenant of the statutory protection and enhance the existing rent in a  

completely unguided and subjective manner.

11. For the reasons stated above we find the High Court order  

enhancing the rent  of  the shop and the kothari  from Rs.50/-  to  

Rs.500/- pm quite unsustainable.  To that extent,  the High Court  

order is set aside.

12. The appeals are allowed to the limited extent, but without  

any order as to costs.