- (1.) THIS petition has been filed challenging the order dated 10-7-2012 passed by the Rent Tribunal, Jaipur Metropolitan Jaipur in execution petition No.9/2011.
(2.) THE admitted facts of the case are that a certificate of possession was issued against the petitioners on 12-9-2008, and appeal thereagainst before the Appellate Rent Tribunal was dismissed on 5-3-2010. Aggrieved of the order dated 5-3-2010, the petitioners filed a writ petition No.4397/2010 before this court, which was disposed of by this court on 27-8-2010, and even while refusing to interfere with the orders passed by the Rent Tribunal and the Appellate Rent Tribunal, on the consent of the parties, this court granted time to petitioners to vacate the tenanted premises on or before 28-2-2012, and in the meantime the petitioners were directed to deposit "rent " month to month in the bank account of the respondent landlord. It is not in dispute that the petitioners have vacated the tenanted shop, as directed by this court, on 28-2-2012. The issue in the execution petition filed by the respondent landlord was that the tenancy stood terminated in law following the issue of certificate of possession of the tenanted shop on 12-9-2008, and for the period subsequent thereto the respondent landlord was entitled to mesne profit as provided for in sub-sections 3 and 4 of Section 20 of the Rajasthan Rent Control Act, 2001 (herein after 'the 2001 Act') for the tenant's overstaying thereafter. The petitioners tenants opposed the execution petition with regard to recovery of mesne profit, stating therein that in terms of the order dated 27-8-2010 passed by this court in writ petition No.4397/2010, the tenancy has been allegedly extended till 28-2-2012 and consequently only rent was payable and not mesne profits under Sections 20(3) and 20(4) of the 2001 Act. Mr. Saransh Saini, counsel appearing on behalf of the petitioners has emphatically argued that this court extended the period of tenancy while granting time to vacate the tenanted shop, and consequently there was no occasion to pay the mesne profit. He submits that tenants were liable only to pay the contracted rent Rs.1413/- per month for the period commencing 1st April, 2010 and ending 28th February, 2012 when the shop was vacated. Heard and considered. In terms of sub-section 7 of Section 15 of the 2001 Act, where the Rent Tribunal decides the petition in favour of the landlord, it issues a certificate for recovery of possession from the tenant to the benefit of the landlord. With the issue of certificate for recovery of possession from the tenant, the tenancy come to an end. The proviso to sub-section 8 of Section 15 of the 2001 Act however keeps in abeyance for six months the execution of the certificate for recovery of possession from the date of decision in respect of commercial premises -as the tenanted shop in the instant case was. Consequently, in my opinion six months time has been provided in law to the tenant to hold the possession of commercial tenanted premises, if he so chooses. Even while possession of a tenant is thus protected for six months, yet after the issue of certificate for recovery of possession, the tenant is to be visited by a liability to pay mesne profit in terms of sub-sections 3 and 4 of Section 20 of the 2001 Act. It is not in dispute that certificate for recovery of possession was issued on 12-9-2008 and an appeal thereagainst was dismissed on 5-3-2010. Admittedly during the pendency of appeal till March, 2010 the tenants paid Rs.4239/- per month, i.e. three times of the rent Rs.1413/- per month as the tenanted premises was a shop. [The tenant calls it "rent " but the fact that the amount was Rs.4239 (three times rent) clearly indicates it was mesne profit]. This was the lawful adhereance in the matter in terms of obtaining law. However on the matter coming before this court in writ petition No.4397/2010 decided on 27-8-2010 while dismissing the writ petition, and refusing relief prayed for, on the consent of parties, time was granted to the tenants to vacate the tenanted premises by 28-2-2012. The tenants now seek to over-look the factum of implied rejection of writ petition and the relief prayed for being denied as also the upholding of the orders passed by the Rent Tribunal and Appellate Rent Tribunal, but instead seeks to distort the concession limited to time granted for vacation of tenanted premises in terms of certificate for recovery of possession dated 12-9-2008. The tenant unacceptably contends that order dated 27-8-2010 passed by this court created a tenancy afresh on a rent of Rs.1413/- per month till 28-2-2012 -the certificate of possession passed by the Rent Tribunal and the statutory consequences thereof notwithstanding. Counsel for the tenants (petitioners) submits that tenants were consequently liable to pay only the rent and they were not liable to pay mesne profit. I am afraid, the argument of learned counsel for the petitioner is completely misdirected, as would be evident from the reading of explanation to Section 20 of the 2001 Act, which provides that filing of an appeal or other proceeding against the order of issue of certificate for recovery of possession or immediate possession will not save the tenant from his liability to pay mesne profit, at the rates specified in sub-section (3) of Section 20 of the 2001 Act, unless specifically ordered otherwise by the Appellate Rent Tribunal or the Court before which such an order is under challenge and if the order of issue of recovery certificate is finally maintained, the tenant shall be liable to pay mesne profit at the rates specified under sub-section (3) from the date on which the recovery certificate was initially issued. It is not in dispute that the writ petition was dismissed albeit impliedly by this court on 27-8-2010, and the issue of recovery certificate by the Tribunal maintained, inasmuch as the prayer sought in the writ petition was not granted. The mere concession granted by this court with the consent of the landlord to the tenant to vacate the tenanted premises on or before 28-2-2012 did not absolve the tenants from their statutory liability to pay the mesne profit for possession held after issue of certificate for recovery of possession, in terms of explanation to Section 20 of the 2001 Act. The statutory interdict plainly is that failed appeal and other proceeding (writ against the issue of certificate for recovery of possession) there is no escape for the tenants from the inexorable operation of law and payment of mesne profit to the landlord for the period of keeping possession after issue of a certificate of possession.
(3.) THE consent order passed by this court dated 27-8-2010 in the writ petition No.4397/2010 was a mere concession on time to vacate the premises and does not tantamount to specifically ordering that provisions of Section 20 (3) of the 2001 Act would not apply to the facts of the instant case. This court while upholding the orders of the Rent Tribunal and Appellate Rent Tribunal has simply granted some time to tenants to vacate the premises when they would otherwise have been liable to forthwith vacate under pain of execution on passing of six months from the date of issue of certificate of possession as per the proviso to Section 15 (8) of the 2001 Act. If at all the petitioners seek to obtain any benefit from the use of word "rent "--quite evidently inadvertant, in the order dated 27-8-2010 in writ petition No.4397/2010, contrary to the scheme of the statutory provisions of the 2001 Act, it was for them to seek a requisite clarification from the concerned court. In my considered opinion, in the context of statutory scheme of the 2001 Act, the petitioners are liable to pay mesne profit Rs.4239/- per month beginning April, 2010 (after dismissal of appeal by the Appellate Rent Tribunal) till 28-2-2012 -till vacation of tenanted premises. More so when during the pendency of the appeal they have admittedly and without demur paid Rs.4239/- per month. Consequently the writ petition is dismissed being without any merit. Learned counsel for the petitioners finally prays that he be allowed seven days time to obtain a clarification from the court which passed the order dated 27-8-2010 in writ petition No.4397/2010, or otherwise challenge this order in appeal. Prayer granted. Consequently, the order passed today will not be operative for a period of seven days from today. All corrections made in the order have been incorporated in the order being emailed.;