VIJAY KUMAR AND ORS. Vs. RAHUL MALHOTRA

JUDGEMENT

(1.) The tenants have challenged the order dated 09.10.2014 passed by the Appellate Authority, Chandigarh, staying the operation of the order of eviction, subject to deposit of all the arrears of rent @ Rs. 2,400/- per month after the date of order of ejectment and Rs. 1,00,000/- per month as mesne profits from the date of filing of appeal till the date of passing of the order. The petitioners are basically aggrieved against the order of award of the mesne profits by the Appellate Authority.

(2.) In short, the landlord filed the petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949, as extended to Chandigarh (hereinafter referred to as the "Act") for eviction of the tenants from SCF No.21, Sector-11, Chandigarh on the ground of bona fide necessity. The eviction petition was allowed by the Rent Controller on 13.03.2014 and is challenged by the tenants by way of appeal which was admitted on 05.04.2014. On the said date, the landlord appeared through his advocate and filed an application for assessment of mesne profits. Since the tenants had also filed an application for staying the operation of the impugned order stating that they are ready and willing to pay the arrears of rent along with interest and costs, the case was adjourned by the Appellate Authority for enabling the landlord to file reply and in order to consider both the applications for payment of arrears of rent and mesne profits. After contest, the impugned order has been passed and hence, the present revision petition.

(3.) Counsel for the petitioners has argued that the Appellate Authority could not have assessed the mesne profits and the application should have been filed before the Rent Controller who would have allowed opportunity to both the parties to lead evidence and thereafter, the mesne profits could not have been assessed. In this regard, he has referred to an order of the Supreme Court in the case of M/s Bird Travels (P) Ltd. v. Smt. Amarjit Kaur and others, Civil Appeal No.4589 of 2012 arising out of S.L.P. (Civil) No.3299 of 2012, decided on 11.05.2012. He has also submitted that the order of stay passed by the Appellate Authority is under Section 15(2) of the Act which is unlike Order 41 Rule 5 (3) of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC") and has also submitted that the judgment of the Supreme Court in the case of M/s Atma Ram Properties (P) Ltd. v. M/s. Federal Motors Pvt. Ltd., 2005 1 RCR(Cri) 1 is not applicable as in the said case, stay was granted under Order 41 Rule 5 of the CPC in which conditions were there for payment of mesne profits.