Nirmaljit Kaur, J
Both the revision petitions shall stand decided by this common order as they arise out of a common order. C.R.No.1035 of 2018 is filed by the landlord
for enhancement of mesne profit as fixed by the Appellate Authority @ Rs. 90,000/- per month for the premises in dispute comprising of ground floor
and the first floor area of SCF No.54, Phase 5, SAS Nagar, Mohali.
While praying for enhancement of the mesne profit, Mr.M.L.Sarin, learned Senior Advocate for the petitioners-landlord submitted that the first floor
fetches a much higher rent and is commercially more viable than the basement. The premises in dispute would definitely fetch a market rent of Rs.
1,50,000/- per month, but the Appellate Authority has over looked the fact that even as per the lease-deed, relied upon by the tenant (Annexure P-6),
dated 03.07.2015, the rent for the ground floor and basement of SCF No.51, Phase-V, Mohali measuring 1584 sq.ft. was let out for Rs. 75,000/- per
month (Rs.47.35 per sq.ft.) with an enhancement of 15% every five years, whereas the premises in dispute is much larger, i.e. 1904.625 sq.ft. and,
therefore, the market rent for the premises in dispute cannot be the same. Secondly, the premises in dispute is the ground floor and the first floor,
which can fetch higher rent vis-a-vis the lease deed, relied upon by the tenant, which pertain to the basement and ground floor and hence, the same
cannot be equated with the rent of the basement. The Appellate Court took into consideration the lease-deed, Annexure P-3, as placed on record by
the landlord wherein the rent was of Rs. 85,000/- per month (Rs.54.17 per sq.ft.) with service tax and with enhancement @10% every five years of
an area of 1569.14 sq.ft. relating to SCF No.54, Phase V, Mohali. In spite of the same, the rent was fixed merely Rs. 90,000/- even though the
premises in dispute is of larger area.
Learned counsel for the tenant while opposing the present revision petition has also filed a separate petition, i.e. CR No.8469 of 2017 seeking setting
aside of the same order on the ground that the mesne profits were on the higher side. Reliance was placed on the various judgments rendered by the
Apex Court in the cases of Atma Ram Properties(P) Ltd. vs Federal Motors (P) Ltd. 2005 (1) SCC 70, 5Anderson Wright and Co. vs Amar Nath
Roy, 2005 (6) SCC 489, State of Maharashtra and another vs M/s Super Max International Pvt.Ltd. and others, 2009(9) SCC 77 2to contend that the
mesne profit should not lead to unjust enrichment of the landlord at the cost of the tenant. Further, while fixing the mesne profits, the rent being paid
should be deducted as the mesne profit cannot be, in any case, more than the market rent and be levied as a pecuniary measure. Learned counsel for
the tenant also disputed the area in occupation of the tenant, which he insisted was about 1580 sq.ft. and as such even if the actual market rate of rent
is taken at Rs.40/- sq.ft., the same cannot be more than Rs. 63,000/- per month and after deducting the rent already being paid, the tenant, if at all, is
liable is to deposit the balance amount only. Learned counsel further submitted that even if the rent was taken at Rs. 50/- per sq.ft., the same would
be only for an area of 1580 sq.ft.
Learned counsel for the parties were heard at length.
It is admitted that all the lease-deeds pertain to Phase 5, Mohali and are almost in the same line. The argument of learned counsel for the tenant that
the area of the premises in his occupation is 1580 sq.ft. and not 1904.625 is not substantiated by any document on record except the assertion of the
tenant. On the other side, the land-lord has placed on record Annexure P-8, which is the sanctioned plan of the premises in dispute showing the area
as 1904.625 sq.ft.. Presently, the determination of mesne profits are only summary proceedings. Therefore, as of now, there is nothing really to doubt
the site plan Annexure P-8. As per the lease-deed relied on by the Appellate Authority, dated 10.09.2014, (Annexure P-3) produced by the landlord,
the rent works out to Rs.54.17 per sq.ft, whereas, the rate of rent works out to Rs.47.35 per sq.ft. as per lease-deed, dated 03.07.2015 (Annexure P-
6) relied upon by the tenant. Therefore, taking the rent of both the registered sale-deeds produced by the respective parties, this Court deems it proper
to calculate the same @ Rs.50 per sq.ft. Therefore, taking the area as 1904.625 and applying the rate @ Rs.50/- per sq.ft, the mesne profits works
out to Rs.95,231.25. However, taking into account that there can still be some marginal variation in the area in occupation, this Court does not deem it
proper to interfere in the rate of mesne profits fixedby the Appellate Court, i.e. Rs.90,000/- per month.
Further, this Court is also not convinced with the argument of learned counsel for the tenant that the amount of Rs.35,000/- already deposited towards
rent should be deducted. Judgment rendered by the Hon'ble Apex Court in the case of M/s Atma Ram Properties (P) Ltd. vs M/s Federal Motors
Pvt.Ltd., 2005(1) RCR (Rent) 1 is a complete answer to the same. The observations made in Para Nos.4 and 8 of the judgment are relevant, which
read as under:-
“4.....Landlord-tenant litigation constitutes a large chunk of litigation pending in the Courts and Tribunals. The litigation goes on for unreasonable
length of time and the tenants in possession of the premises do not miss any opportunity of filing appeals or revisions so long as they can thereby
afford to perpetuate the life of litigation and continue in occupation of the premises. It the plea raised by the learned senior counsel for the repsondent
was to be accepted, the tenant, in spite of having lost at the end, does not loose anything and rather stands to gain as he was enjoyed the use and
occupation of the premises, earned as well as lot from the premises if they are non-residential in nature and all that he is held liable to pay is damages
for use and occupation at the same rate at which he would have paid even otherwise by way of rent and a little amount of costs which is generally
insignificant.
8. It is well settled that mere preferring of an appeal does not operate as stay on the decree or order appealed against nor on the proceedings in the
court below. A prayer for the grant of stay of proceedings or on the execution of decree or order appealed against has to be specifically made to the
appellate Court and the appellate Court has discretion to grant an order of stay or to refuse the same. The only guiding factor, indicated in the Rule 5
aforesaid, is the existence of sufficient cause in favour of the appellant on the availability of which the appellate Court would be inclined to pass an
order of stay. Experience shows that the principal consideration which prevails with the appellate Court is that in spite of the appeal having been
entertained for hearing by the appellate Court, the appellant may not be deprived of the fruits of his success in the event of the appeal being allowed.
This consideration is pitted and weighed against the order paramount consideration: why should a party having succeeded from the Court below be
deprived of the fruits of the decree of order in his hands merely because the defeated party has chosen to invoke the jurisdiction of a superior
forum.....â€
In view of the safeguards provided with respect to deposit of the mesne profits by the various judicial pronouncements to deposit the same before the
Court and thereafter to be disbursed to the party that finally succeeds as well as the reasoning rendered in the case of M/s Atma Ram Properties (P)
Ltd.(supra), this Court finds that the mesne profits awarded above for rent is justified. Accordingly, both the petitions are dismissed with a clarification
that the amount of mesne profits, so fixed by the Appellate Court, shall be deposited within two months from the date of receipt of a certified copy of
this order by calculating the same from three years preceding to the date of application for mesne profits and arrears shall be deposited before the
Executing Court, who is directed to keep the same in a fixed deposit in a Nationalised Bank and the future mesne profits be put in a Recurring Deposit
and the amount so accrued, shall be disbursed to the party, who finally succeeds. The rent shall, however, be paid directly to the land-lord.
