- (1.) HEARD Sri V. K. Kohli, Sr. Advocate, assisted by Sri I. R Kohli, counsel for the revisionist and Sri Arvind Vashisth, counsel for the respondent.
(2.) BY the present civil revision filed Under Section 25 of the Provincial Small Cause Courts Act, 1887, the revisionist has prayed for setting aside the order dated 15th February, 2005 passed by the Addl. District Judge/ftc-V, Dehradun by which he has directed for the eviction of the defendant from the premises No. 473 consisting of shops No. 7, 8 and 9 as well as for recovery of arrears of rent and for mesne profit to the extent of Rs. 500 per day. Briefly stated, the defendant-re spondent has filed a suit for rent, ejectment and mesne profit being Suit No. 25 of 2002 Ashok Aggap. Wal Vs. Dr. B. M. Soni stating therein that he is the owner of the premises No. 473 Laxman Jhula Road, Rishikesh, District Dehradun and the defendant is a month to month tenant of premises No. 473. consisting three shops no. 7,8 and 9, Laxman Jhula Road, Rishikesh, Dehradun. According to the case of the plaintiff-respondent, rent has been paid till September, 2002 to the extent of Rs. 5,632. 62 and after the said adjustment, the rent was in arrears for the last about one and half years. The defendant has paid the rent for the said shops to the extent of Rs. 2,537. 50 per month. The rent has been paid up to 31-03-2001 vide Cheque No. 753370 dated 28-03-2001 for a sum of Rs, 13,837/- drawn on Punjab National Bank, Gate Road, Rishikesh, Dehradun, thereafter the de fendant has paid a sum of Rs. 20,4007 - on 18th December, 2001 and a sum of Rs, 5,000/- on 8th May, 2002 and the rent has been adjusted uptill September, 2002 at the rate of Rs. 2,537. 50 per month for the three shops. However, ac cording to the plaintiff, he has sent a notice on 2nd September, 2002 to the defendant for the recovery of the arrears of rent and the notice was duly served on 3rd September, 2002, but neither the rent has been paid nor the premises has been vacated. The plaintiff-respondent has claimed the following amount from the defendant "5. That now following amount is due to the plaintiff against the de fendant on account of rent and cost of notice : (i) Part rent for the month of February, 2001 2,512. 50 (ii) Full rent since 01-03-2001 till 03-10-2002 Rs. 2,537. 50 per month 18,016. 25 (iii) Cost of Registered A. D. notice 100. 00 Total 20. 628. 75 5. So far as the mesne profit is concerned, the plaintiff has claimed the same at the rate of Rs. 500/- per day. 6. According to the plaintiff, since the rate of the rent was more than Rs. 2,000/- per month, therefore, the build ing was exempted from the purview of the Act No. 13 of 1972. 7. The defendant-revisionist has contested the case by filing a written statement, where in paragraph 2, it has been stated that he is the tenant of premises no. 473 consisting shops no. 7, 8 and 9. Relevant portion of the writ ten statement is quoted below : "2. That with regard to Para 2 of the plaint, it is true that the Defendant is a tenant on behalf of Plaintiff in Shops No. 7, 8 and 9 forming part of property bearing No. 473 Hardwar Lakshman Jhulla Road, Rishikesh, District Dehradun. " 8. In paragraph 5 of the written statement, the defendant has stated as under: "5. That the contents of Para 5 of the plaint are wrong and are denied. It is wrong to say that the rent as mentioned in this paragraph is due from the defendant. Facts are that the defendant has already paid the rent upto May 2002 through cheque to the plaintiff but the plaintiff never issued any receipt of cheques. The rate of rent is Rs. 2527/- per month of three shops. " 9. Similar statement has been made in paragraph 12 of the written state ment, where he has stated that he is the tenant of three different shops. Relevant paragraph 12 of the written statement is quoted below : "12. That the defendant is a tenant in the three different shops and the rent of all the three shops were paid to the plaintiff. The rent of all the three shops were being paid by the defendant to the plaintiff separately for each shop. " 11. Mr. Ashok Kumar Agarwalwas examined on oath as PW2. He has deposed that the defendant- revision ist used to pay the rent for the three shops. It was agreed between the parties that in every year, there will be increase of 25% of rent. There was a question-answer from the PW2 with regard to the letting of the three shops and increase of 25% of rent. The same is quoted below : Hindi 11. Thereafter in another affidavit, Ashok Kumar has stated on oath as un der : Hindi 12. On behalf of the defendant-ap plicant, affidavit was filed by the Mr. . B. M. Soni, who has stated in paragraph 2 that he is a tenant of the plaintiff in shops forming part of property no. 473. Paragraph 2 is quoted below : "2. That the deponent is a tenant on behalf of Plaintiff in the Shops form ing part of property bearing No. 473 Hardwar Lakshman Jhulla Road, Rishikesh, District Dehradun. " 13. In paragraph 13 of the affida vit, it has been stated that the rent of all the three shops were being paid to the plaintiff. Paragraph 13 is quoted below : "13. That the deponent is a tenant in the different shops and the rent of all the shops were paid to the plain tiff. The rent of all the shops were being paid by the deponent to the plaintiff. " 14. In her affidavit D. W. 2-Smt. Chhaya Soni, wife of Dr. B. M. Soni has admitted that her husband has been pay ing consolidated rent for the three shops. Relevant portion is quoted below : "2. That the defendant is a tenant on behalf of the plaintiff in respect of 3 different shops forming part of property No. 473, Hardwar- Laxman Jhoola Road, Rishikesh, Distt. Dehradun. The defendant has been regularly paying the rent to the plain tiff and rent for each shop comes to about Rs. 850/- per month and the consolidated amount of rent for 3 shops is Rs. 2,527/- per month. " 15. In the cross-examination, D. W. 2 has stated as under : Hindi 16. One Sudhir Kumar-servant of the defendant, has stated on oath that the consolidated rent for three shops is about 2500 per month and he has admitted that he was not depositing the rent separately. Relevant paragraph to that effect is quoted below : Hindi 17. A perusal of the record shows that Sudhir Prakash used to pay the rent on behalf of the defendant and he never bifurcated the rent for separate shops. 18. Similar statement has been made by Dr. R. K. Anand who has de posed that he is aware about the rent paid to the landlord. 19. Detail of the amount paid for the shop has been filed along with the affidavit of Shri Ashok Kumar Agap. Wal. The chart is quoted below : Hindi 20. A perusal of the chart does not show that any amount has been paid so far as any particular shop is concerned and it appears that the shops were taken on rent by the defendant on a rent of Rs. 2, 537. 50 and from time to time, consolidated rent was paid to the plain tiff for the shop no, 7, 8 and 9. This chart is a part of the affidavit of the de fendant / revisionist. The averments made in the affidavit i. e. paragraph 3 to that effect is quoted below : Hindi 21. The aforesaid affidavit and the chart is a complete answer that there was no bifurcation of rent of each shops and the defendant has treated the rent of the shops to be Rs. 2,537. 50 as a consolidated rent and as such at this stage, the defendant cannot be allowed to save his tenancy on the ground that there were three separate shops and the rent was less than Rs. 2000/ -. A perusal of the record, therefore, establishes that the parties have taken to be granted that the shops no. 7, 8 and 9 are part of premises no. 473 and the amount of Rs. 2,537. 50 is being paid for the shops in premises no. 473. 22. I have, therefore, no hesitation to hold that the premises in dispute is exempted from the purview of the U. P Act No. 13 of 1 972 because of Section 2 (g) which is reproduced to the follow ing effect : " (g) any building, whose monthly rent exceeds two thousand rupees;" 23. The rental of the premises, therefore, being more than Rs. 2000/-, U. P Act No. 13 of 1972 has no appli cation to the premises in dispute. The notice has been received by the defend ant. I find to fault in coming to the conclusion that the notice was validly served. 24. So far as the mesne profit is concerned, the court below has awarded a sum of Rs. 15,000/- per month. 25. Counsel for the revisionist has invited attention with regard to the fact that the plaintiff has stated in his state ment regarding the enhancement of 25% of rent in every year. 26. Taking into consideration the rental value of the premises, where the act does not apply to the building, the landlord is entitled for the enhancement in the mesne profit at the market rate in view of the Atma Ram Properties (P) Ltd. Vs. Federal Motors (P) Ltd. (2005) 1 SCC 705 where after relying upon various judgments, it has been held as under: "in Shyam Charan v. Sheoji Bhai (1977) 4 SCC 393, this Court has, upheld the principle that the tenant continuing in occupation of the tenancy premises after the termination of tenancy is an unauthorized and wrongful occupant and a decree for damages or mesne profits can be passed for the period of such occu pation, till the date he delivers the vacant possession to the landlord. . . . . . . . . . . . . . . . After determination of the tenancy, the position of the tenant is akin to that of a trespasser and he can not claim that the measure of damages awardable to the landlord should be kept tagged to the rate of rent payable under the provisions of the Rent Control Order. If the real value of the property is higher than the rent earned then the amount of compensation for continued use and. occupation of the property by the tenant can be assessed at the higher value. " 27. Relying upon the judgment of Atma Ram Properties (P) Ltd. V. Federal Motors (P) Ltd. JT 2004 (1) SC 410:2005 (1) SCC 705:2005 SCFBRC 99 in Achal Mishra Vs. Ram Shankar Singh reported in 2005 (1) ARC Page 887 it has been observed as under : "we make it clear that the respond ents shall be liable to pay the rent equivalent to mesne profits with ef fect from the date with which they are found to have ceased to be en titled to retain possession of the premises as tenant for such period the landlord's entitlement cannot be held pegged to the standard rent. Reference may be had to the law laid down by the Court in Atma Ram Properties' (P) Ltd. V Federal Motors (P) Ltd. , JT2004 (1) SC 410 :2005 (10) SCC 705 : 2005 SCFBRC 99. 28. In-view of the above, I direct the applicant to pay the enhanced dam-ages/mesne profits to the extent of 25% after the termination of tenancy i. e. from 03-10-2002 till the delivery of pos session. 29. Scope of interference under; Sec tion 25 of the Provincial Small Cause Court Act has been interpreted by the Apex Court from time to time. It is not an appellate jurisdiction and therefore, the findings of fact cannot be interfered. 30. In Harshvardhan Chokkani Vs. Bhitpendra N. Pate/ 2002 SCFBRC 344, the Apex Court has. observed as under : "nonetheless the High Court is ex ercising the revisional power which in its very nature is a truncated power. The width of the powers of the Revisional Court cannot be equated with the power of the Appellate Court. In examining the legally and the proprietary of the order under challenge, what is required to be seen by the High Court is whether it is in violation of any statutory provision or a binding precedent or suffers from misreading of the evidence or omission to consider relevant clinch ing evidence or where the inference drawn from the facts proved in such that no reasonable person could ar rive at or the like, it is only in such situations that the interference by the High Court in revision in a finding of fact will be justified. Mere possibil ity of a different view is no ground to interfere in exercise of revisional power. From the above discussion, it is clear that none of the aforemen tioned reasons exists in this case to justify interference by the High Court. " 31. In Miss Kanta Udharam Jagasia v. Shir C. K. S. Rao 1998 SCFBRC 45, the Apex Court has observed as under : "the High Court, forgetting that it had a limited revisional jurisdiction, analysed the evidence and substi tuted to findings in place of the find ings of the Competent Authority. On a perusal of the evidence, we find that the findings arrived at by the Competent Authority on the basis of oral evidence cannot be said to be perverse or even unreasonable requir ing the High Court to reverse the same. It is well settled that though another view is possible of reappreciation of the evidence, the revisional Court may not interfere with the findings of the Lower Courts on that ground. " 32. In Patel Valmik Himatlal v. Pate/ Mohanlal Muljibhai 1998 SCFBRC 351, the Apex Court has observed as under : "5. The ambit and scope of the said section came up for consideration be fore this Court in Helper Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri and Ors. (1987) 3 SCC 538, and after re ferring to a catena of authorities. Sabyasachi Mukharji, J. drew a distinc tion between the appellate and the revisional jurisdictions of the Courts and opined that the distinction was a real one. It was held that the right to appeal carries with it the right of re hearing both on questions of law and fact, unless the statute conferring the right to appeal itself limits the rehear ing in some way, w,hile the power to hear a revision is generally given to a particular case is decided according to law. The High Court cannot substitute its own findings on a question of fact for the findings recorded by the Courts below on reappraisal of evidence. Did the High Court exceed its jurisdiction? 6. The powers under Section 29 (2) are revisional powers with which the High Court is clothed. It empowers the High Court to correct errors which may make the decision con trary to law and which errors go to the root of the decision but it does not vest the High Court with the power to re-hear the matter and re-appreciate the evidence. The mere fact that a different view is possible on reappreciaion of evidence cannot be a ground for exercise of the revisional ju risdiction. " 33. However, so far as the arrears of rent are concerned, the same will be recoverable at the same rate of rent prior to termination of tenancy. 34. In view of the above I direct the applicant to pay the enhanced damages/ mesne profits to the extent of 25% after the termination of tenancy i. e. from 03-10-2002 till the delivery of possession. 35. Subject to the modification as stated above towards the payment of damages/ mesne profits, the revision lacks merit and is dismissed with costs. .;