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CASE NO.: Appeal (civil)  3322 of 1998

PETITIONER: ACHAL MISHRA

RESPONDENT: RAMA SHANKAR SINGH AND OTHERS

DATE OF JUDGMENT: 01/05/2006

BENCH: S.B. SINHA, TARUN CHATTERJEE & P.K. BALASUBRAMANYAN

JUDGMENT: JUDGMENT

O R D E R  I.A. NO. 7 of 2005  IN  CIVIL APPEAL NO.3322 OF 1998   

P.K. BALASUBRAMANYAN, J.

1.              This application is filed by the respondents in the  above appeal praying for a clarification of the order dated  11.4.2005.   It is prayed that the order be clarified as regards  the amount to be paid towards arrears of rent after taking note  of the sums earlier paid by them.   This Court, in the  Judgment,  had directed Respondent no.1 to pay a sum of  Rs.3,50,000/- and Respondent no.2 to pay a sum of  Rs.3,00,000/- as a condition for enabling them to pursue their  writ petition in the High Court.  This was taking note of the  fact that for a period of 26 years or so, no rent had been  tendered or paid by these respondents towards the portions of  the building occupied by them on the basis of allotments by  the rent controller.  It is the case of the respondents in the  appeal, the petitioners herein, that during the pendency of the  appeal in this Court, they had made some payments and it  was just and necessary to permit the deduction of those sums  paid from the amounts ordered to be deposited.   Respondent  no.1 submits that he had paid a sum of Rs.1,75,032/- and  hence the balance amount payable by him is only  Rs.1,74,968/- and there may be such a clarification.    Respondent no.2 had paid a sum of Rs.1,45,860/- and the  said amount may be permitted to be deducted from the sum of  Rs.3,00,000/-, thus reducing the amount to be deposited by  him to Rs.1,54,140/-.   The prayer is that the direction in the  judgment may be clarified in the above manner.   

2.              It is seen that Respondent no.1 in the appeal,  petitioner no.1 had tendered the entire amount of  Rs.3,50,000/- as ordered by this Court and there was no  argument on his behalf for making the adjustment as sought  for by him.   Therefore, we need not consider the case of  petitioner no.1 in this application.    

3.              As far as Respondent no.2 in the appeal, petitioner  no.2 herein, is concerned, the direction was to deposit a sum  of Rs.3,00,000/-.   In the appeal the landlord had filed IA no.4  of 2004, for issue of directions by this Court to the tenants,  the petitioners herein, to pay the rent of the premises, accrued  during the pendency of the litigation.   The prayer in IA no. 5

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of 2005 was for the issue of a direction to the respondents in  the appeal, the petitioners herein, to vacate the premises.   This Court had issued a direction on 5.4.2004, directing the  occupants to pay the entire arrears of rent/damages within a  period of two months from the date of the order and to  continue to pay monthly rent/damages as and when it falls  due.   This Court also subsequently directed that whatever  amount is tendered by the occupants may be received by the  landlord without prejudice to her contentions.   It is the case  of Respondent no.2 in the appeal, that he had tendered a sum  of Rs.1,45,860/- on 5.7.2004and the sum had been received  by the landlord and this payment had not been specifically  taken note of in the Judgment though the fact that earlier the  said amount tendered by way of a cheque was returned, has  been noticed.   Counsel, therefore submits that if this Court  had noticed the subsequent acceptance by the landlord of this  amount as paid, in the order dated 5.7.04 the amount to be  deposited would not have been fixed at Rs.3,00,000/- but it  would have been less than the amount ordered to be  deposited.   On behalf of the landlord it is submitted that no  amount of rent had been paid for 26 years and it was in that  context that this Court had directed Respondent no.2 in the  appeal to deposit a sum of Rs.3,00,000/- and it was not as if  this Court was not conscious of the fact that he had tendered  a sum of Rs.1,45,860 on 5.7.2004.  It is submitted that  considering the importance of the locality, the nature of the  building  and the nature of the dispute, the order for deposit of  Rs.3,00,000/- was just and there is no occasion for making a  modification as claimed. 4.              In the Judgment,  while dealing with IA nos.4 and 5  of 2004 vis-‘-vis respondent no.2 in the appeal, this Court in  paragraph 17 stated: "On 5.7.2004, respondent No.2-Raj Singh filed an  affidavit-in-response stating that on 2.6.2004 he  tendered a crossed cheque of Rs.1,45,860/- as rent  for 26 years calculated  on the basis of the annual  value as stated in the assessment list of 1976, of  the first floor of the premises in question which is  Rs.5,100/-, water tax Rs.408/- and drainage tax  Rs.102/- making a total of Rs.5,610/- per annum.    However, the cheque was received back by  respondent No.1 as addressee-landlord was not  available at the address give by him."

Then it was noticed in paragraphs 19 and 20 thus: "According to the landlord, the property is a  valuable property situated in a prime locality of  Lucknow city.   The landlord has got the property  valued through Snow Fountain Consultants,  Architects and Valuers.  The valuation report dated  17.7.2004 has been filed in the court according to  which the total rent of the property would come to  Rs.28,496/- per month.

This litigation is more than 25 years old.   To allow  the tenants to contest the case without payment of  arrears and occupation charges falling due month  by month would be travesty of justice.   There are  two proceedings pending between the parties: one is  the present proceedings and the other is a suit for  recovery of rent filed by the landlord against  tenants."

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5.              In the context of these, this Court issued the  following directions regarding Respondent no.2, petitioner no.2  herein: "Within a period of two months from today  respondent No.2- Raj Singh, in occupation of the  first floor, shall tender an amount of Rs.3,00,000/-  by way of demand draft drawn on a schedule bank  in the name of the landlord and hand over the same  to the counsel for the landlord.   With effect from  1.5.2005, month by month, on or before the 15th  day of that month, Raj Singh-respondent No.2 shall  pay an amount of Rs.1,000/- per month, plus the  amount of water tax and drainage tax through bank  draft drawn in the name of the landlord and  tendered either to the landlord or to her counsel.

This amount shall be treated as a provisional  payment but a condition precedent to their  entitlement to contest the present proceedings.    The amount so paid shall be liable to be adjusted  consistently with the decree that may be passed by  the competent Court for the recovery of the rent.

Any respondent who does not comply with the  above-said order, shall not be entitled to contest in  the proceedings and shall not be entitled to be  heard."

This Court also noticed the decision in Atma Ram Properties  (P) Ltd. vs. Federal Motors (P) Ltd.  (2005 (1) SCC 705) and  clarified that the occupants would be liable to pay the rent  equivalent to mesne profits with effect from the date from  which they are found to have ceased to be entitled to retain  possession of the premises as tenants and for such period the  landlord’s entitlement cannot be pegged down to the standard  rent.   The claim of Petitioner no.2 in this application has to be  considered in the context of what has been stated in the  Judgment.

6.              It is true that there is no specific mention in the  Judgment of the fact, or the noticing of the fact, that on  5.7.2004, a sum of Rs.1,45,860/- was tendered and received  without prejudice, by the landlord, as directed by this Court in  IA nos.4 and 5 of 2004.   The same was the position as can be  seen from this petition, as regards Respondent no.1 in the  appeal.  But still, considering the aspects noticed in the  Judgment and the circumstances obtaining, respondent no.1  in the appeal, tendered the entire amount of Rs.3,50,000/-  without prejudice to his contentions in the pending writ  petition or in the matter of rent/damages for use and  occupation payable by him.   Though this conduct on the part  of respondent no.1 in the appeal is not binding on respondent  no.2 in the appeal, or can affect his rights, or influence the  decision in the present application by respondent no.2, this  conduct, does show, that under the circumstances the  direction made by this Court was not unduly harsh or unjust.

7.              A substantial building in an important part of the  town was being held by respondent no.2 in the appeal,  petitioner no.2 herein, all these years as a tenant without  paying or tendering the rent that was payable.  The landlord,  of course, has a case that the order of allotment to petitioner  no.2 which was made as a special allotment, itself stood  cancelled on his transfer to another town as a judicial officer

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and on his occupying another accommodation in that town.   In the Judgment it has been noticed that the building would  have fetched a substantial rent considering its nature and  location.   The fact that no rent had been tendered for a period  of 26 years had also been noticed.   The further fact that the  landlord was not pegged down to the standard rent which  itself remained to be fixed, was also noticed.   As indicated, the  only peg on which petitioner no.2 seeks to hang his case, is  the fact that in the order, the tendering and acceptance of the  sum on 5.7.2004 has not been specifically noticed.   Strictly  speaking, this is not a case where a clarification should  automatically follow merely for the reason that the factum of  payment of the sum in question was not specifically referred to  in the judgment of this court.

8.              At the same time, the amount has been directed to  be deposited as a condition precedent for petitioner no.2 to get  a hearing in his writ petition.   Taking notice of that fact, we  think it proper to give some concession to respondent no.2 in  the appeal, petitioner no.2 herein, in respect of the amount to  be deposited towards the rent/damages that may become  ultimately payable.   According to petitioner no.2, the amount  to be tendered to make up the sum of Rs.3,00,000/- is only  Rs.1,54,140/-.    In the circumstances, taking stock of the  situation as a whole, we think that it would be appropriate to  modify the direction for payment by respondent no.2 in the  appeal, petitioner no.2 herein, by fixing a sum of  Rs.2,00,000/- in the place of Rs.3,00,000/-.   We, therefore,  modify the judgment dated 11th April, 2005 by directing that  the amount payable by Raj Singh, respondent no.2, in the  appeal, would be Rs.2,00,000/- and not Rs.3,00,000/- as  originally fixed.

9.               Now that we have modified the amount to be paid  by respondent no.2 by fixing it at Rs.2,00,000/- after taking  note of what he had paid earlier on 5.7.2004,  we, direct that  the amount of Rs.2,00,000/- should be paid by respondent  no.2, petitioner no.2 herein within a period of one month from  today, failing which he would lose the right to pursue the writ  petition he has already filed in the High Court, as indicated in  the original Judgment.  If he had made any payment after the  date of the judgment, towards the sum directed to be paid, the  sum paid would be given credit to and respondent no.2 will be  liable to pay only the balance within the time fixed, to make  up the sum of rupees two lakhs.

10.             It is brought to our notice that in spite of the hope  expressed by this Court that the writ petition should be  disposed of expeditiously and preferably within six months of  the receipt of a copy of the Judgment by this Court, the same  has not been heard.   We feel that it would be proper for the  High Court to hear the writ petition without delay so as to  ensure that the image of the institution is not dented.   We  expect the High Court at least now to dispose of the writ  petition expeditiously.

11.             The application is disposed of with the above  modification and observation.