- (1.) The landlord has filed this petition under Article 227 of the Constitution of India for setting aside the order dated 7.2.2005, passed by the Appellate Court staying the execution of the impugned judgment and decree of the trial Court during the pendency of the first appeal subject to the conditions that the respondent-tenant shall deposit Rs. 1,00,000/- in the name of the Appellate court in an F.D.R. with an undertaking that in the event of the petitioner being found entitled thereto, he will be entitled to encash the F.D.R. and further to deposit Rs. 7,320/- per month on 10th of every month in the Court from 10.3.2005 till the disposal of the appeal.
(2.) The petitioner is the landlord of S.C.O. No. 290, Motor Market and Commercial Complex, Mani Majra, Chandigarh. He filed a suit for ejectment as well as suit for recovery of the arrears of rent and future damages after terminating the tenancy on 13.2.2001, before the Civil Judge (Jr. Division), Chandigarh. In the suit, the petitioner claimed the arrears of rent as follows: (a) that the rate of rent of the demised premises was initially Rs. 7,320/- per month, which was subsequently increased as per the terms of the lease as Rs. 9,516/-. He claimed the difference of enhancement of rent at the rate of Rs. 2,196/- i.e., Rs. 1,48,512/-, for the period from 1.7.1996 to 28.2.2002; (b) rent with effect from 1.3.2002 to 20.12.2002 at the rate of Rs. 9,516/- per month i.e., Rs. 91,980/-; (c) interest at the rate of 18% per month i.e., Rs. 59,560/-; (d) damages with effect from 21.12.2002 to 9.1.2003 at the rate of Rs. 1,000/- per day i.e., Rs. 20,000/-.
(3.) The trial Court decreed the suit while recording the following findings: After the close perusal of the judicial file and considering the arguments adduced by the learned Counsel for the parties, the dispute is regarding the rate of rent on the expiry of the lease deed on 30.6.1996. After the expiry of the said lease deed as per the claim of the plaintiff the rent was to be considered as Rs. 9,516/- and not Rs. 7,320/-. Although the present court being the civil Court has no jurisdiction to give any findings on the rate of rent as this authority only lies with the rent controller but perusal of the orders of the Appellate Court Ex.P2 wherein Mr. Tejwinder Singh, Appellate Authority decided on 30.7.2003 in rent appeal No. 20 dated 11.5.2001 regarding the counter claim having been allowed in favour of the defendant/tenant but later on dismissed by the Appellate Court. It has been clearly observed by the learned Appellate Authority after due consideration of law and evidence that since the lease deed was operative till 30.6.1996 thereafter the defendant was liable to pay rent @ 9,516/-. It has also been mentioned in para No. 18 that in one of the rent petitions the defendant had tendered the rent on 26.8.1997 @ Rs. 9,516/- for which he claimed the recovery of the excess amount considering the rate of rent to be Rs. 7,320/- per month which was declined determining the rate of rent to be Rs. 9,526/- p.m. It is also evident from the entire evidence adduced by the defendant that although it had been alleged by the defendant that some civil revision bearing No. CR-4202 had been filed in the year 2003 but in the absence of any documentary evidence i.e. copy of the revision or any orders of Hon'ble High Court staying the findings of the learned Appellate Authority or setting aside the orders of the learned Appellate Authority passed vide judgment Ex.P2 dated 30.7.2003, this contention becomes unsustainable at this stage. More-so-over the pendency of any civil writ petition is not admitted by the plaintiff as is clear from his cross examination that till date no notice had been received by him regarding any civil revision or civil writ petition. In the absence of any cogent evidence to establish that the said civil writ petition/civil revision petition bearing No. 4202 is the outcome of the orders passed by the learned Appellate authority dated 30.7.2003 which is Ex.P2 it is not possible for the Court to consider this fact and to eradicate the findings of the learned Appellate Authority on the rate of rent. Since it has been held in Ex.P2 that in one of the rent petition the rent @ Rs. 9,516/- was tendered by the defendant till 28.2.1997 so the plaintiff is not entitled for any kind of recovery for the said period but since it is an admitted case that thereafter the entire rent had been paid by the defendant @ Rs. 7,320/- per month only so on the basis of the findings of the learned Appellate Authority and the admissions made by the defendant the plaintiff is entitled for the difference in the rent w.e.f. 1.3.2002 till 30.4.2003 considering the rate of rent to be Rs. 9,516/- as per the findings of the learned Appellate Authority mentioned in the judgment Ex.P2 dated 30.7.2003. As far as the mesne profits and damages are concerned in the absence of authentic and cogent evidence to establish this fact except for the photo copy of the lease deed of S.C.F. No. 309, Motor Market and Commercial Complex, Manimajra, U.T. Chandigarh which is not sufficient for the court to rely upon for assessing the mesne profits/damages this Court is of the considered opinion that the plaintiff is at least entitled for the rent as mesne profits and damages w.e.f. 30.4.2003 till handing over the vacant possession of the said premises by the defendant @ Rs. 9,516/-. Henceforth in view of the above discussion the said issue is decided in favour of the plaintiff.;