DAVINDER SINGH DHALIWAL Vs. KAWALJIT SINGH

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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 705, Anderson 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 772 to 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.