ACHAL MISHRAversusRAMA SHANKAR SINGH AND ORS.

                          ACHAL MISHRA                                              A
                               v.
                   RAMA SHANKAR SINGH AND ORS.

                                 MAY I, 2006

                  [S.B. SINHA, TARUN CHATTERJEE AND                                 B
                       P.K. BALASUBRAMANYAN, JJ.]


      Rent Control:

       Clarificatory order-Tenant directed by Supreme Court to deposit Rs.          C
3 lakhs towards arrears of rent as a condition precedent to pursue his writ
petition in High Court-Tenant prayed for clarification of that direction on
ground that while passing such direction the Court did not specifically
notice the fact that on an earlier direction the tenant had already paid
 Rs.1.46 lakhs to the landlord-Held: Clarification cannot automatically             D
follow merely for the reason that the factum ofpayment of Rs./.46 Lakhs was
not specifically referred to by the Court-Constitution of India, 1950-
Article 136.

      This Court vide an order dated 11-4-2005 directed the tenant to deposit
Rs.3,00,000/- towards the arrears of rent as a condition precedent for enabling     E
him to pursue his writ petition in the High Court.

      The tenant filed an application praying for clarification of that direction
on ground that while passing such direction the Court did not specifically
notice the fact that on an earlier direction of this Court the tenant had already
paid on 5-7-2004 a sum of Rs.1,45,860/- to the landlord. He contended that          F
the said deposit of Rs.1,45,860/- should be deducted from the sum of
Rs.3,00,000/- thereby reducing the amount to be deposited to Rs.1,54,140/-.

      Disposing of the application, the Court

      HELD: 1. A substantial building in an important part of the town was          G
being held by the tenant all these years without paying or tendering the rent
that was payable. 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.
                                      617                                           H
    618                    SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A   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 the tenant 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
B   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.
                                                                         1622-C-EI

          2.1. At the same time, the amount has been directed to be deposited as
    a condition precedent for the tenant to get a hearing in his writ petition.
C   Taking notice of that fact, it is proper to give some concession to the tenant,
    in respect of the amount to be deposited towards the rent/damages that may
    become ultimately payable. According to the tenant, 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, it would be appropriate
    to modify the direction for payment by the tenant, by fixing a sum of
D   Rs.2,00,000/- in the place of Rs.3,00,000/-.1622-F-Hl

          2.2. It is directed that the amount of Rs.2,00,000/- should be paid by the
    tenant within a period of one month, 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
E   judgment, towards the sum directed to be paid, the sum paid would be given
    credit to and the tenant will be liable to pay only the balance within the time
    fixed, to make up the sum of rupees two lakhs. 1623-A-Bl

          CIVIL APPELLATE JURISDICTION : I.A. No. 7 of2005.

F                                          IN
          Civil Appeal No. 3322 of 1998.

         From the Judgment and Order dated 29.1.1997 of the High Court of
    Allahabad at Lucknow Bench in W.P. No. 803/1979.

G        Manoj Swarup, Lalita Kohli, Mona Rajvanshi and Anubhav Kumar for
    Manoj Swarup & Co. for the Appellant.

         Sunil Kumar Jain, S. Borthakur, Manish Kumar and B. Barooah for the
    Respondents.

H         The Judgment of the Court was delivered by
        AC HAL MISHRA v. RAMA SHAN KAR SINGH [P.K. BALASUBRAMANYAN, J.]    6J9
      P.K. BALASUBRAMANYAN, J. I. This application is filed by the                 A
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. I to pay a sum of
Rs. 3,50,000/- and Respondent no.2 to pay a sum of Rs. 3,00,000/- as a             B
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 of 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       C
and it was just and necessary to permit the deduction of those sums paid from
the amounts ordered to be deposited. Respondent no. I 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. J",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            D
deposited by him to Rs. l ,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. I in the appeal, petitioner no. I had
tendered the entire amount of Rs. 3,50,000/- as ordered by this Court and there    E
was no argument on his behalf for making the adjustment as sought for by
him. Therefore, we need not conisder the case of petitioner no. I 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     F
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 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 of 5.4.2004,
directing the occupants to pay the entire arrears of rent/damages within a         G
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         H
    620                    SUPREME COURT REPORTS [2006] SUPP. I S.C.R.

A on 5.7.2004 and 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.
B   3,00,000/- but it would have been less than the amount ordered to be deposited.
    On behalfofthe 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.
C   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-a-
D 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
E          in question which is Rs. 5, I00/- 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. I as addressee-landlord was not
           available at the address give by him."

          'Then it was noticed in paragraphs 19 and 20 thus :
F
           "According to the landlord, the property is a valuable property situated,
           in a prime locality of Lucknow city. The landlord has got the propetry
           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
G
           Rs. 28,496/- per month.
                                                                                       '.
           This litigation is more than 25 years old. To allows 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
H          two proceedings pending between the parti.!s; one is the present
        ACHALMISHRA v. RAMA SHANKARSINGH[P.K. BALASUBRAMANYAN,J.]            62 J

        proceedings and the other is a suit for recovery of rent filed by the        A
        landlord against tenants."

      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                B
        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 eftect 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            C
        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          D
        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        E
        entitled to be heard."

This Court also noticed the decision in Atma Ram Properties (P) Ltd. v.
Federal Motors (P) Ltd., [2005] I 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           F
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,   G
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 Cl'.n be seen
from this petition, as regards Respondent no. I in the appeal. But still,
considering the aspects noticed in the Judgment and the circumstances
                                                                                     H
    622                    SUPREME COURT REPORTS [2006) SUPP. I S.C.R.

A obtaining, respondent no. I 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. I 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
B   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
C   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 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
D   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 remainded 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 of 5.7.2004
E   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
F a condition precedent for petitioner no.2 to get a hearing in his writ petition.
    Taking notice of that fact, we th ink 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
G   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 I Ith April, 2005 by directing that the amount
    payable by Raj Singh, respondent no.2, in the appeal, would be Rs, 2,00,000
H   and not Rs. 3,00,000/- as originally fixed.
         ACHAL MISHRA v. RAMA SHANKAR SINGH [P.K. BALASUBRAMANYAN,J.l      623

        9. Now that we have modified the amount to be paid by respondent no.2     A
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     B
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.

      I 0. It is brought to our notice that in spite of the hope expressed by     C
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.                                    D
      11. The application is disposed of with the above modification and
observation.

B.B.B.                                               Application disposed of.