JUDGMENT
J.D. Kapoor, J.
1. Controversy centres around two fold propositions of law viz.
(a) Whether suit by a landlord for damages or mesne profits without accompaniment of a suit for possession is barred by the provisions of Order 20 Rule 12 of the Code of Civil Procedure ?
(b) Whether suit for mesne profits is maintainable in respect of a tenant whose tenancy is governed by the provision of Section 19 of the Slum Areas (Improvement and Clearance Act, 1956) pursuant to notice under Section 106 of Transfer of Property Act determining the tenancy ?
2. These propositions have arisen from the following preliminary issue set for determination:
“Whether the suit is maintainable in its present form in view of provisions of Section 19 of the Slum Areas(Improvement and Clearance Act, 1956?”
3. Relevant facts lie in short compass:-
“Defendant No. 1 is partnership firm and defendants No.2 to 8 are its partners. Defendant No. 2 took on rent from the plaintiffs the first floor consisting of a big hall and a open colonade in front of the second floor and terrace of premises No. 450, Katra Choban, Chandni Chowk, Delhi, initially at the rate of Rs. 2000/- per month which was subsequently increased to Rs. 3000/- and from 1.1.1995 the rent was increased to Rs. 6000/- per month. It is alleged that defendant No. 1 had illegally and without the consent and permission of the plaintiff covered the Verandah on the first floor and constructed the mezzanine in between the first floor and the second floor. On account of this illegal act, the plaintiffs did not want to keep the defendant as tenant and by notice dated 2.2.96 under Section 106 of the Transfer of Property Act terminated the tenancy of the premises calling upon them to vacate the premises and hand over the possession. On their failure to vacate the premises, the plaintiffs filed the instant suit claiming the damages/mese profits @ Rs.60,000/- per month.
4. Admittedly, the premises are situated in slum area as defined in Slum Area (Improvement and Clearance) Act, 1956 and as such the plaintiffs cannot institute the suit for possession without previous permission in writing of the Competent Authority appointed under the Act as contemplated under Section 19 of the Act. The petition for seeking the said permission was filed by the plaintiffs before the Competent Authority in 1996 itself but the same has not been granted till date and is pending decision.
5. Sh. L. R. Gupta, the learned senior counsel for the defendant has firstly challenged the maintainability of the instant suit on the premise of provisions of Order 20 Rule 12 of Code of Civil Procedure as according to his interpretation the suit for mesne profits is not maintainable unless and until it is accompanied with a relief of recovery of possession of immovable property as under Order 20 Rule 12 CPC, a specific procedure has been laid down where a decree for possession for mesne profit is sought. In order to appreciate the contention of Mr. Gupta in the correct perspective, the reproduction of the provisions is needed:-
Order 20 Rule 12 CPC. Decree for possession and mesne profits.
12.1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree.
(a) for possession of the property:
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;
(ba) for the mesne profits or direction an inquiry as to such mesne profits:
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until-
(i) the delivery of possession of the decree-holder,
(ii) the relinquishment of possession by the judgment debtor with notice to the decree- holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first occurs.
(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.
6. According to Mr. Gupta the word “and” appearing between the words “immovable property” and “rent or mesne profits” has to be read conjunctively and not disjunctively as no party can seek a decree for rent or for that purpose mesne profits without a decree of recovery of possession. In other words, a landlord or for that purpose, the owner of an immovable property or any person claiming to be owner of an immovable property cannot be permitted to bifurcate his relief by way of two independent suits that is a suit for recovery of possession of immovable property and a suit for recovery of either rent or mesne profits.
7. I am afraid this interpretation of Order 20 Rule 12 CPC provided by Mr. Gupta is difficult to ram down the throat for the simple reason that the word `and’ appearing between the word `property’ and for `rent’ and mesne profits’ connotes disjunctiveness and not conjunctiveness as this rule of procedure is applicable only in those suits which seek decree for recovery of possession of immovable property along with decree for rent or for that purpose mesne profits.
8. Otherwise it would mean that a landlord can not recover rent or mesne profits unless he seeks recovery of possession at the same time. Such a situation is not only preposterous but highly unimaginable.
Section 19 of the Act itself provides the answer. It reads as under:-
19. Proceedings for eviction of tenants not to be taken without permission of the competent authority- (1) Notwithstanding anything contained in any other law for the time being in force, no person shall, except with the previous permission in writing of the competent authority,-
(a) institute, after the commencement of the Slum Areas (Improvement and Clearance) Amendment Act, 1964, any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area; or
(b) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of a tenant from any building or land in such area, execute such decree or order.
(2) Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed.
(3) On receipt of such application, the competent authority after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing either grant or refuse to grant such permission.
(4) In granting or refusing to grant the permission under sub-section (3) the competent authority shall take into account the following factors, namely:-
(a) whether alternative accommodation within the means of the tenant would be available to him if he were evicted;
(b) whether the eviction is in the interest of improvement and clearance of the slum areas;
(c) such other factors, if any, as may be prescribed.
(5) Where the competent authority refuses to grant the permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant.
9. Bare perusal of Section 19 of the Act shows that prior permission from the Competent Authority is a condition precedent to a suit for recovery of possession alone. No such permission is required for filing a suit for recovery of rent or mesne profits and therefore an independent suit for either of the two is very much maintainable. If the interpretation as provided by Mr. Gupta is accepted particularly in view of the facts of the instant case where permission under Section 19 of the Slums Act is a condition precedent to a suit for recovery of possession either by way of eviction proceedings under the Rent Act or by way of an independent suit for recovery of possession under the Code of Civil Procedure, then such a landlord or owner would be left high and dry and remediless as in that case he will have no remedy to recover rent or mesne profits unless he obtains permission to seek recovery of possession. In other words, the tenant or an unauthorised occupant would enjoy the property without paying for it and thus would be at undue advantageous position to keep the landlord or an owner of the property waiting till the permission to seek recovery of possession of the property is granted.
10. Thus, a situation that to recover arrears of rent or mesne profits landlord has to wait for the permission to file suit for recovery of possession that may take months or even years as is the case in hand would be not only highly fallacious but jeopardical and unimaginable also. Situation would be worst and ironical if the landlord does not succeed in obtaining permission to seek recovery of possession of immovable property as in that case he would have no remedy to recover the rent even. It was to avoid such a situation and the hardship that permission under Section 19 of the Slums Act was not made a condition precedent to a suit or proceedings for recovery of rent or mesne profits and was confined to proceedings for eviction. All this leads to inevitable conclusion that suit for recovery of rent or mesne profits is maintainable independently and need not be accompanied with a suit for recovery of possession as provision of Order 22 Rule 12 CPC govern the procedure for passing a decree in a suit for recovery of possession and rent or mesne profits.
11. Now the next most crucial question falling for determination is whether a suit for mesne profits is maintainable against a `tenant’ whose tenancy has been determined through a notice under Section 106 of the Transfer of Property Act and whether after expiry of notice period, such a tenant becomes unauthorised occupant. In other words whether possession of such a tenant becomes wrongful and unlawful irrespective of the fact that premises are governed by the provisions of Slum Clearance Act.
12. Again answer to this propositin depends upon the definition of a `tenant’ for the purposes of Slum Clearance Act as suit for mesne profits is maintainable only against that tenant whose possession becomes wrongful or unlawful. The word `tenant’ has been defined in the Delhi Rent Control Act as under:-
2.1)”tenant ” means any person by whom or on whose account or behalf the rent of any premises is, or, but for a special contract, would be, payable, and includes-
(A) any person against whom an order or decree for eviction has been made except where such decree or order for eviction is liable to be re-opened under the proviso to section 3 of the Delhi Rent Control (Amendment) Act, 1976;
13. Admittedly the word `tenant’ has not been defined in the Slum Clearance Act.
14. From the above, it is clear that according to Delhi Rent Control Act “tenant” includes a person whose tenancy is determined by way of notice under Section 106 of the Transfer of Property Act but it does not include a person against whom an order of eviction has been passed. Mr. Sham Kishore, learned Senior Counsel who incidentally happens to be the plaintiff and has argued the case himself contends that where provisions of Delhi Rent Control Act are not applicable as is in the present case, a tenant ceases to be tenant the moment his tenancy is terminated by way of notice under Section 106 of the Transfer of Property Act as Section 111 of the Transfer of Property Act specifically provides that the tenancy is terminated on the expiration of a notice to determine the lease or to quit duly given by one party to the other. Section 111 reads as under:-
111. Determination of lease- A lease of immovable property determines-
(a) by efflux of the time limited thereby:
(b) where such time is limited conditionally on the happening of some event- by the happening of such event;
(c) where the interest of the Lesser in the property terminates on, or his power to dispose of the same extends only to, the happening of any event- by the happening of such event;
(d) in case the interests of the lessee and the Lesser in the whole of the property become vested at the same time in one person in the same right;
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the Lesser, by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach threof, the Lesser may reenter; or
(2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or
(3) the lessee is adjudicated an insolvent and the lease provides that the Lesser may re-enter on the happening of such event; and in (any of these cases) the Lesser or his transferee (gives notice in writing to the lessee of) his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
15. According to Mr. Kishore even if a person has a protection of Slum Clearance Act as a tenant, his possession becomes unlawful and wrongful after he is served with a notice under Section 106 of the Transfer of Property Act as after expiry of the prescribed period his tenancy stands terminated. In support of this view, Mr. Kishore has placed reliance upon the decision of this Court in wherein it was held that if a tenant does not vacate the premises after the termination of tenancy by efflux of time his occupation becomes unauthorised and similarly if a tenant does not evict the premises after the termination of tenancy by way of a notice under Section 106 T. P. act he becomes an unauthorised occupant and in both the eventualities a tenant has to pay mesne profits and damages at market rate of rent. To the same effect is the view of the Allahabad High Court in J.J. Pancholi vs. Sridharjee and others . According to this if the tenancy is duly terminated by a notice under Section 106 the tenant is at sufferance and has no better status than a trespasser.
16. The definition of `tenant’ in respect of premises governed by Slum Clearance Act came up for consideration before the Full Bench of this Court in Bardu Ram Dhanna Ram vs. Ram Chander Khirbu as the word `tenant’ was not defined in the Slum Areas Act whereas the provisions of Delhi Rent Control Act defined the `tenant’ as above and view of the Delhi High Court that a `tenant’ of a premises situated in slum area also includes even a person against whom decree or order of eviction has been passed was accepted with approval by the Supreme Court in Lal Chand (dead) by LRs and others vs. Radha Kishan . Observation of the Supreme Court are like this:-
“Slum Clearance Act looks at the problem of eviction of tenants from slum areas not from the point of view of the landlord and his needs but from the point of view of tenants who have no alternative accommodation and who would be stranded in the open if they were evicted. The policy of the Slum Clearance Act being that the slum dweller should not be evicted unless alternative accommodation is available to him. We are of the view that the word `tenant’ which occurs in Section 19(1)(1) must for the purpose of advancing the remedy provided by the statute be construed to include a person against whom a decree or order for eviction has been passed. We might mention that a Full Bench of the Delhi High Court in Bardu Ram Dhanna Ram vs. Ram Chander Khirbu, has taken the same view namely, that the word `tenant’ in Section 19 of the Slum Clearance Act includes a person against whom decree or order of eviction has been passed.”
17. At the same time the Supreme Court also held that the definition of the word tenant as contained in Delhi Rent Control Act which does not include a person against whom decree or order of eviction has been passed would not be affected by anything contained in Section 19 of the Slum Clearance Act.
18. As is apparent from the aforesaid decisions, the definition of a tenant for the purposes of Delhi Rent Control Act is less wider than the definition of a tenant for the purposes of Slum Clearance Act. For the purpose of Delhi Rent Control Act the tenant does not include a person against whom decree of eviction has been passed whereas for the purpose of Slum Clearance Act tenant is inclusive of a person against whom ejectment decree has been passed. It is rightly so as the object of Slum Clearance Act was not to evict the tenant from the premises without the permission from the competent authority.
19. There is no gainsaying the fact that suit for mesne profits or for that purposes for damages emanates from the wrongful possession of a tenant. Section 2(12) of the CPC defines the `mesne profits’ as under:-
“Mesne profits” of the property means those profits which the person in wrongful possession of such property actually receives or might with ordinary diligence have received there from…..by the person in wrongful possession.”
20. Thus unless and until the possession of a tenant is wrongful or unlawful the suit for mesne profits does not lie. Termination of a tenancy of a tenant by way of notice under Section 106 of the TP Act does not render the possessin of a tenant either unlawful or wrongful for the purpose of the Slum Clearance Act as it affords additional protection to the tenant that unless and until the permission is obtained under Section 19 of the Act suit or petition for eviction would not lie.
21. A tenant cannot have two split personalities, one for the purpose of suit for recovery of possession and other for the purpose of recovery of mesne profits. That is for the purpose of recovery of possession he will continue to be a `tenant’ and not termed as an unauthorised or unlawful occupant but for the purpose of recovery of mesne profits he is unauthorised or unlawful occupant by virtue of termination of his tenancy under Section 106 TP Act. Had the termination of tenancy of a tenant by way of a notice under Section 106 of the TP Act had the effect of the rendering the possession as unlawful or wrongful, remedy by way of suit for possession would have been readily available as is available in respect of tenants who are not governed by the Slum Clearance Act. Once a protection is afforded by a statute to a tenant the only effect of termination of tenancy by virtue of notice under Section 106 of the TP Act would be that his tenancy would be treated as a statutory tenancy, if not a regular tenancy.
22. This is even otherwise manifestly clear from the provisions of Section 19 of the Slum Clearance Act itself which is in the form of non- obstante clause i.e. notwithstanding anything contained in any other law for the time being in force no person shall except with the previous permission in writing of the competent authority institute any suit or proceeding for obtaining any time or order for the eviction of a tenant from the building or land in a slum area. It was in view of this statutory protection that the Supreme Court as well as the Delhi High Court and other courts in cases after cases held that for the purpose of Section 19 of the Slum Clearance Act the definition of `tenant’ would include even a person against whom an order of eviction has been passed.
23. Once a person carries the status of a tenant even after the eviction order is passed his possession can by no stretch of imagination be held to be unlawful or wrongful. Since the wrongful possession of the tenant of a property is the sine qua non for claim for mesne profits, the suit for mesne profits or for that purpose damages at the market rate and not at the agreed rent would be maintainable only if the possession of that tenant is held to be wrongful or unlawful. The fact that the permission under Section 19 is a condition precedent to the suit for possession or eviction does not mean that a landlord is entitled to file a suit for mesne profits because the permission under Section 19 of the Act is not a condition precedent for the suit for recovery of arrears of rent. One cannot be unmindful of the fact that prior permission is not necessary for recovery of rent only and `rent’ does not include `mesne profits’. Remedy to recovery of mesne profits is available against those persons whose possession is wrongful or unlawful and possession of a premises by a tenant for the purposes of Section 19 of the Act cannot be termed as unlawful by incidence of termination of tenancy under Section 106 TP Act.
24. The object of Slum Clearance Act was to provide a protection to those persons who are occupying premises in Slum area. If a person cannot be evicted solely on the basis of the notice under Section 106 of the TP Act he cannot be sued for mesne profits also. A tenant will continue to be a tenant both for the purposes of eviction proceedings as well as recovery of rent. Had the possession of a tenant whose tenancy is terminated under Section 106 of the TP Act be deemed as wrongful or unlawful it was meaningless to extend the definition of tenant to a person for the purpose of Slum Clearance Act against whom even an order of eviction is passed.
25. Without tarrying further on this aspect I hold that the notice under Section 106 of the TP Act does not convert the possession of tenant in respect of premises situated in slum area into a wrongful or unlawful possession entitling the landlord to a claim for mesne profits. The reason for such a conclusion is simple and short. Wherever there is a statutory protection against dispossession by any operation of law the possession of a person even in spite of termination of his lease is deemed as a lawful possession and under the authority of law. Almost similar view was taken by the Supreme Court in Firm Dewan Kirpa Ram Radha Kishan and others vs. Hari Kishan Dass by holding that when the statute protected the possession of the defendants conferring immunity on them from being dispossessed by operation of law, they would be deemed to be in possession in the authority of law and even after the lease had expired or the tenancy has been terminated and the legal disability of the landlord to evict or dispossess a tenant continuing the continuous possession of a tenant in such conditions will be termed as conferring upon him a right as a statutory tenant.
26. For the foregoing reasons, the issue is decided against the plaintiff and in favor of the defendant as suit for recovery of arrears of rent alone is maintainable and not a suit for recovery of mesne profits. As a consequence the suit is dismissed.
