FAJLU REHMAN vs NAIM AHMED

2023-11-03 Information

$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Order: 03.11.2023
+ RC.REV. 294/2019
FAJLU REHMAN ….. Petitioner
Through: Mr. Saifuddin and Mr. Diwan Singh Chauhan, Advocate
versus
NAIM AHMED Respondent
Through: Mr. Dinesh Garg, Advocate
CORAM:
HON’BLE MS. JUSTICE TARA VITASTA GANJU
[Physical Hearing/Hybrid Hearing (as per request)]
TARA VITASTA GANJU, J.: (ORAL)
CAV 495/2019
1. Since the learned Counsel for the Respondent has entered appearance, the caveat stands discharged.
CM No.22300/2019 [Application for directions to the Respondent to file passport/visa of his son]
2. Learned Counsel for the Petitioner/tenant seeks and is granted liberty to withdraw the present application.
3. Application is accordingly closed.
CM Appl.2951/2023 [Application seeking modification of order dated 26.09.2019 directing the Petitioner to pay use and occupation charges to the Respondent]

4. This is an Application filed on behalf of Respondent/landlord seeking modification of order dated 26.09.2019 to the extent of directing the Petitioner/tenant to pay use and occupation charges.
4.1 Reply to the application has been filed by the Petitioner/tenant.
5. Learned Counsel for the Respondent/landlord submits that the premises i.e. one small shop of about 4.1 x 4.5 sq. ft. situated at Ground Floor of property Premises No.1807, Phatak Talian, Bazar Turkaman Gate, Delhi -110 006 [hereinafter referred to as the demised premises] is a shop on the ground floor and is situated in the commercial street of Turkaman Gate. Learned Counsel further seeks to rely on the averments made by the Petitioner/tenant in his cross-examination before the Trial Court wherein it is submitted that the tenant is earning approximately Rs.17,000/- to Rs.18,000/- per month since the year 2017.
5.1 Learned Counsel for the Respondent/landlord further submits that the use and occupation charges for the demised premises should be in the range of Rs.12,000/- to Rs.13,000/- per month. In this regard, he places reliance on three lease deeds which have been filed by him. It is contended that the lease deeds are in respect of shops which are in the nearby vicinity, approximately 50 to 100 sq. ft. away from the demised premises.
6. Learned Counsel for the Petitioner/tenant while agreeing that the premises admeasures 4.1 x 4.5 sq. ft., which is approximately 16 sq. ft. and submits that there are pillars in the middle of the shop, hence entire shop cannot be used. It is also contended that the lease deed annexed by the Respondent/landlord at Annexure C in the documents filed on 16.02.2023, is in the vicinity of the demised premises. No lease deed has however been filed by the Petitioner/tenant.
6.1 It is further contended by learned Counsel for the Petitioner/tenant that the building is approximately more than 70 years old. Thus, it is submitted by learned Counsel for the Petitioner/tenant that the use and occupation charges should be approximately Rs.2,000/- to Rs.3,000/- per month.
7. For the purpose of affixation of use and occupation charges, the Court is required to look into the factors including the area, locality, use, etc. in terms of the judgment of the Supreme Court passed in in the case of Martin & Harris (P) Ltd. v. Rajendra Mehta, (2022) 8 SCC 527, which reads as follows:
19. The basis of determination of the amount of mesne profits, in our view, depends on the facts and circumstances of each case considering the place where the property is situated i.e. village or city or metropolitan city, location, nature of premises i.e. commercial or residential area and the rate of rent precedent on which premises can be let out are the guiding factor in the facts of individual case.

8. The demised premises is a shop, where commercial activities are being carried out by the Petitioner/tenant. Admittedly, the demised premises are on the ground floor in the commercial market, abutting main Turkaman Gate. However, the fact that building is old is needs to be taken into consideration.
9. Learned Counsel for the Respondent/landlord has contended that the lease deeds being relied upon are relevant, as although the premises are more than 70 years old, and all shops in the area including for which the lease deeds have been relied upon are of the same age and similar condition.
10. Keeping in mind the contention that all shops in that area are more than 50 to 70 years old, the lease deed at Annexure C in the documents filed on 16.02.2023 by the Respondent/landlord seems to be the most relevant.
11. In these circumstances, without prejudice to the rights and contentions of the parties, the directions as set forth below are passed.
11.1 The Petitioner/tenant shall pay to the Respondent/landlord use and occupation charges in the following manner during the pendency of the Revision Petition:
(i) The use and occupation charges for the period from 15.07.2019 to 31.03.2020 shall be paid by the Petitioner/tenant at the rate of Rs.6,000/- per month;
(ii) The use and occupation charges for the period from 01.04.2020 to 31.03.2022 shall be paid by the Petitioner/tenant at the rate of Rs.5,000/- per month; and
(iii) The use and occupation charges for the period from 01.04.2022 to 30.10.2023 shall be paid by the Petitioner/tenant at the rate of Rs.7,000/- per month; and
(iv) The use and occupation charges from 01.11.2023 onwards, shall be paid by the Petitioner/tenant at the rate of Rs.8,500/- per month, on or before 7th day of each calendar month;
(v) The use and occupation charges as set forth in paragraphs 11.1 (i), (ii) and (iii) shall be paid by the Petitioner/tenant to the Respondent/landlord in four equal instalments, i.e., 15.12.2023, 31.01.2024, 15.03.2024 and 30.04.2024.
12. All payments shall be made into the bank account of the Respondent/landlord. The details of the bank account shall be provided by the learned Counsel for the Respondent/landlord to the learned Counsel for the Petitioner/tenant on his email address within three days.
13. It is clarified that the use and occupation charges as affixed hereinabove are tentative and subject to the final outcome of the present Petition.
14. In the event that there is any default in the payment of use and occupation charges on behalf of the Petitioner/tenant, interim protection as granted by this Court on 26.09.2019 shall automatically stand dissolved.
15. The Application is accordingly closed.
16. Parties will act based on the digitally signed copy of the order.
RC.REV. 294/2019 and CM Appl.Nos.22298/2019
17. Learned Counsel for the parties shall file their respective written synopsis, not exceeding three pages each, at least one week before the next date of hearing, along with compilations of judgments, if any, they wish to rely upon.
17.1 All judgments sought to be relied upon by the learned Counsel for the parties shall be filed with an index which also sets out the relevant paragraph numbers and the proposition of law that it sets forth.
18. List on 22.02.2024 at 3.45 p.m.

TARA VITASTA GANJU, J
NOVEMBER 03, 2023/yg
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RC.REV. 294/2019 Page 2 of 2