NARENDRA KUMAR JAIN vs HARISH PRATAP SEONIE & ORS

2024-04-03 Information

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment Pronounced on: 03.04.2024
+ RC.REV. 671/2019 & CM Appls.50953/2019 and 18843/2023
NARENDRA KUMAR JAIN ….. Petitioner
versus
HARSH PRATAP SEONIE & ORS ….. Respondent
Advocates who appeared in this case:
For the Petitioner : Mr Sandeep Sethi, Sr. Advocate with Mr Rohan Jaitley, Mr Akshay Sharma, Mr Dev Pratap Shahi and Ms Riya Kumar, Advocates

For the Respondent : Mr Rajesh Yadav, Sr. Advocate with Mr Rohan Yadav, Mr Dhananjay, Mr Harminder Singh, Ms Dishaa Gulati, Mr Karan Bane, Mr Vibhor Sharma and Ms Alisha Gaba, Advocates
CORAM:
HON’BLE MS. JUSTICE TARA VITASTA GANJU
[Physical Court Hearing/ Hybrid Hearing]
JUDGMENT
TARA VITASTA GANJU, J.:
Table of contents
Preface…2
Brief Facts.2
Contentions of the Respondents/landlords7
Contentions of the Petitioner/tenants10
Analysis and Findings…13
Affixation..25

CM APPL. 18843/2023 [Application seeking payment of use and occupation charges]
Preface:
1. This is an Application filed on behalf of the Respondents/landlords seeking directions to the Petitioner/tenants to pay the use and occupation charges for the premises bearing Shop no.9A admeasuring about 11 feet X 44 feet or 484 sq. ft. at Plot No.9. Block No. 171, Sunder Nagar Market, New Delhi [hereinafter referred to as demised Premises].
Brief Facts:
2. It is necessary in the first instance to set out briefly few facts that are relevant for the purposes of adjudication of this Application.
2.1 The Respondents/landlords filed a Petition for eviction of the demised Premises against Sh. Narendra Kumar Jain [hereinafter referred to as the original tenant] on 25.04.2012 [hereinafter referred to as Eviction Petition] before the Court of the learned ACJ-cum-Civil Judge-cum-ARC (South), Saket Courts, New Delhi [hereinafter referred to as learned ARC]. It was the case of the Respondents/landlords that the demised Premises were let out on 09.08.1987 at a monthly rental of Rs. 973.62/- for non-residential purposes to the original tenant. The said Eviction Petition was contested by the original tenant and a complete trial in the matter took place where the original tenant and the Respondent/landlord also appeared in the witness box as a witness.
2.2 During the pendency of the Eviction Petition, an Application, under Order I Rule 10 Code of Civil Procedure, 1908 [hereinafter referred to as CPC] read with Order VI Rule 17 and Section 151 CPC as well as Rule 23 of the Delhi Rent Control Rules, 1959, was filed by the Respondents/landlords seeking to implead the nephew of Sh. Narendra Kumar Jain, one Sh. Arjun Jain, the proprietor of M/s Padma Gems, as a party in the Eviction Petition. In the said Application, it was contended by the Respondents/landlords that the said Sh. Arjun Jain is an unlawful sub-tenant in the demised Premises. Notice in this Application was issued to said Sh. Arjun Jain as well as the original tenant.
2.3 Both, the original tenant as well as Sh. Arjun Jain appeared in response to this Application through their counsel, although no replies were filed. The application was heard by the learned ARC and by an order dated 22.12.2014 it held that the said Sh. Arjun Jain is not a necessary party to the present Petition and his title, if any, will have to be decided by a Civil Court in view of Section 50(4) of the Delhi Rent Control Act, 19581 [hereinafter referred to as the DRC Act]. Relying on Section 25 of the DRC Act, it was held by the learned ARC that since the sub-tenant did not have an independent title/claim in the property, the original tenant alone is the necessary party to the proceedings.
2.4 The relevant extract of order dated 22.12.2014 passed by the learned ARC is reproduced below:
11. Distinguished from a lawful sub-tenant having a direct legal interest in the property are other persons who are either not lawful sub-tenants or whose possession is not protected by the Act. These persons may be of two kinds namely (a) those claiming through the tenant, and (b) those having an independent title of their own. The former claim through the tenant and are not protected by the Act. They are not, therefore necessary parties. They are represented by the tenant who alone is a necessary party. An order passed against the tenant is binding on them and is executable against them U/s 42 and under the principal part of section 25 of the Act.
12 The jurisdiction of this Court is limited to a proceeding which is between the landlord and the tenant. Such a person, who is not a party to such a relationship is not, therefore, either necessary or a proper party to such a proceeding. His title will have to be decided by the Civil Court in view of sub-section (4) of section 50 of the Act. The alleged sub-tenant is not therefore, necessary party within the meaning of the first part of order 1 Rule 10(2) Civil Procedure Code For, either he is a part of the respondent or in possession on behalf of the respondent. He do not have any direct legal interest in the premises protected by the Act. Nor did the Court have any discretion in joining him under the second part of the principle underlying order 1 Rule 10(2) Civil Procedure Code For, it cannot be said that his presence is necessary for the complete adjudication of the issues in the case. If the landlord obtained an order of eviction against the tenant, the sub tenant would go out with the tenant. His joinder was, therefore, contrary to the principle underlying the order 1 Rule 10 (2) Civil Procedure Code.
..
14. Accordingly, I am of the opinion that Arjun Jain proprietor of M/s Padma Gems is neither a necessary nor a proper party to the present proceedings.
[Emphasis supplied]

2.5 Admittedly, the said order was not challenged by either party.
2.6 The plea of the sub-tenancy was taken by the original tenant during the final arguments in the Eviction Petition as well. The learned ARC by its order dated 27.05.2019 [hereinafter the Eviction Order] held that the ingredients of Section 14(1)(e) of the DRC Act stands satisfied and allowed the Eviction Petition directing the original tenant to vacate the demised Premises.
2.7 Aggrieved by the impugned Eviction Order, the original tenant has filed the present Petition. On the 1st hearing of the Petition, on 26.11.2019, the original tenant sought time to take instructions to vacate the demised Premises. It was on this account that an undertaking was given by the Respondents/landlords that they will not file the Execution Petition till the next date of hearing. Thereafter, the statement made by the Respondents/landlords, on instructions, continued. The relevant extract of order dated 26.11.2019 passed by a Coordinate Bench of this Court is reproduced below:

1. After some arguments, learned counsel for the petitioner prays for some time to take instructions as to whether the petitioner would be willing to seek some time to vacate the premises.
2. At request, re-notify on 19.12.2019.
3. Learned counsel for the respondents assures that the respondents shall not file execution petition till the next date of hearing
[Emphasis supplied]

2.8 Upon the demise of the original tenant, his legal heirs [hereinafter jointly referred to as the Petitioner/tenants] were impleaded as parties to the present petition on 13.12.2022.
3. Subsequently, an Application for payment of user charges was filed by the Respondents/landlords. Notice in this Application was issued by a Coordinate Bench of this Court on 19.04.2023, when the Petitioner/tenants were granted time to file a Reply to the Application.
3.1 The gist of the Reply filed by the Petitioner/tenants is that the demised Premises has been let-out by the original tenant to a nephew of the original tenant and is being used by nephew, namely, Sh. Arjun Jain for running of his business in the name and style of M/s Padma Gems, since 1989 till today. Thus, it is contended that Sh. Arjun Jain is the lawful tenant of the demised Premises and not the Petitioner/tenants herein and the demised Premises is being used by a third party/Sh. Arjun Jain, and the Petitioner/tenants are not liable to pay user charges with respect to the demised Premises.
3.2 In addition, an objection was raised by the Petitioner/tenants that the Application filed was supported by affidavit of Respondent No.1 only, who is a part owner of the demised Premises and not by all the owners and thus the Application is liable to be dismissed on this ground alone. It is further contended that since the sub-tenant is a necessary party in the Eviction proceedings, the Eviction Order is untenable. Hence, interim relief of the nature as sought for in the present Application cannot be granted.
3.3 On the other hand, it was contended on behalf of the Respondents/landlords that it is the Petitioner/tenants, i.e., the original tenant, who was contesting this matter before the learned ARC and this Court and not the third party/sub-tenant.
4. The interim protection, initially granted by this Court, was on the basis of a statement of Counsel. Subsequently, pending adjudication of this Petition, the interim protection from eviction continues till today.
5. There is no dispute, however, that the Petitioner/tenants are in possession and occupation of demised Premises after the passing of the Eviction Order on 27.05.2019, without paying any interim compensation/mesne profits thereafter.
Contentions of Respondents/landlords
6. Learned Senior Counsel appearing for the Respondents/landlords has submitted that the legal representatives of original tenant are in possession and occupation of the demised Premises, which is a commercial office space/shop on the ground floor admeasuring 484 sq. ft in the posh area of South Delhi, locality of Sunder Nagar Market. It is contended that the Petitioner/tenants are running their jewellery business by the name of M/s Padma Gems from the demised Premises and earning income, running into several lakhs every day, without paying any rent much less market rent to the Respondents/landlords since the year 2012.
6.1 It is further contended that the demised Premises was taken on lease by the original tenant sometime in the year 1987. Subsequently, the Eviction Order was passed whereby the original tenant was directed to vacate the demised Premises within six months.
6.2 It is averred that initially the original tenant and after his demise his legal heirs, the Petitioner/tenants are enjoying interim protection from this Court. In terms of order dated 26.11.2019, it was recorded by the Court, that after some arguments, time was sought on behalf of the original tenant to take instructions on additional time to vacate the demised Premises and in light of what was said, an assurance was given by the Respondents/landlords that they will not file execution proceedings till the next date of hearing. However, vacant possession of the demised Premises has not been handed over till date.
6.3 Learned Senior Counsel appearing for the Respondents/landlords averred that, thereafter, the Petitioner/tenants are in uninterrupted occupation of the demised Premises after the passing of the Eviction Order without paying any market rent.
6.4 Learned Senior Counsel appearing for the Respondents/landlords further submits that although the execution proceedings were thereafter filed by the Respondents/landlords before the Executing Court, the possession of the demised Premises remains with the Petitioner/tenants, in view of the pendency of these proceedings. The Petitioner/tenants is thus liable to pay market rent in terms of the settled law. Reliance is placed on the judgment passed by the Supreme Court in Atma Ram Properties (P) Ltd. vs. Federal Motors (P) Ltd.2 to submit that once the Eviction Order has been passed, the tenant is required to pay the use and occupation charges at market rent till the final disposal of the Revision Petition.
7. With respect to the fixation of interim user charges, the Respondents/landlords have contended that the demised Premises is situated in the heart of the city and the market rent, at present, for similarly situated offices/shops in the area is approximately between Rs. 450/- and Rs. 760/- per sq. ft/per month.
7.1 Thus, the Respondents/landlords have submitted that the Petitioner/tenants are liable to pay market rent at the rate of Rs. 2.5 lakhs to Rs. 3.5 lakhs per month to the Respondents/landlords for user charges of the demised Premises.
7.2 The Respondents/landlords have filed 3 lease deeds of like premises in the same market as the demised Premises in support of his contentions that the rental for the demised Premises should be at least Rs. 2.5 lakhs to 3.5 lakhs per month. The relevant details of the lease deeds filed are set forth below:
1. Lease deed dt. 13.09.2022
Nature
Ground floor
Use
Commercial
Area
carpet area of 1030 sq. ft.
Rent
Rs. 5,50,000 /- (per month)
@ Rs. 533/- per sq. ft.
Description/details
Shop No. 28, Ground Floor, Sunder Nagar Market, New Delhi.

2. Lease deed dt. 29.05.2013 [Lease period of 9 years]
Nature
Ground floor
Use
Commercial
Area
carpet area of 958 sq. ft.
Rent
Rs. 7,28,697.50/ – (per month) (from 2019-23)
@Rs 760/- per sq. ft.
Description/details
Shop No. 29, Ground Floor Sunder Nagar Market, New Delhi.

3. Lease deed dt. 04.06.2014 [Lease period of 9 years]
Nature
Ground & first floor
Use
Commercial
Area
1350 sq. ft.
Rent
Rs. 5,54,000/- (per month)
@Rs. 410/- per sq. ft.
Description/details
Shop No. 22, Ground Floor and First Floor, Sunder Nagar Market, New Delhi.

Contentions of the Petitioner/tenants
8. Learned Senior Counsel appearing for the Petitioner/tenants has raised a preliminary objection to this Application. It is contended that the demised Premises is not in occupation of the legal representatives of the original tenantlate Sh. Narender Kumar Jain, hence, they cannot be made liable for payment of market rent/mesne profits. It is contended that it is within the knowledge of the Respondents/landlords, that the demised Premises is being used since 1989 by one Sh. Arjun Jain, the nephew of the original tenant for running his business in the name and style of M/s Padma Gems from 1989 till today.
8.1 Learned Senior Counsel further contends that the use by said Sh. Arjun Jain is pursuant to a no objection/consent given by the Respondents/landlords on 16.01.1989 for subletting and that the demised Premises was sublet on 01.04.1989 to Sh. Arjun Jain. It is also averred that notice under Section 17 of the DRC Act qua the subletting was given to the Respondents/landlords on 10.04.1989. Thus, Sh. Arjun Jain is the lawful sub-tenant in the demised Premises.
8.2 It is averred that in view of the fact that Sh. Arjun Jain is using the demised Premises as a lawful sub-tenant since 1989, no Eviction Order could have been passed against the original tenant (since deceased).
8.3 Learned Senior Counsel for the Petitioner/tenants further submits, that as per Atma Ram case, the market rent is to be paid by person who is holding over the property, and in the present case the possession is with Sh. Arjun Jain, and not with the Petitioner/tenants. Hence, the Petitioner/tenants are not liable to make payment of use and occupation charges to the Respondents/landlords.
9. Learned Senior Counsel has also contended that the lease deeds filed by the Respondents/landlords are with respect to newer premises which have been let out to banks, while the demised Premises is actually only half a shop. It is contended that the lease deeds relied upon by the Respondents/landlords also provide additional facilities which are requisite for banks and, hence, the rental is also much higher.
9.1 The Petitioner/tenants relies upon a lease deed which reflects a monthly rental of Rs. 1 lakh per month for a premise which is similar in size to the demised Premises, to submit that the market rent will be about Rs. 1 lakh and not more. The relevant details of the lease deed relied upon is set forth below:
1. Lease deed dt. 02.01.2024:
Nature
Ground floor
Use
Commercial
Area
430.5 sq. ft. (40 sq. meter)
Rent
Rs. 1,00,000/- (per month)
@ Rs. 232.5/- per sq. ft.
Description/details
Shop No. 4, Sunder Nagar market, New Delhi 110003.
10. In Rejoinder, learned Senior Counsel appearing on behalf of the Respondents/landlords submits that the lease deed relied upon by the Petitioner/tenants is a sham document which is executed inter se the family members of the Petitioner/tenants. It is pointed out that both the parties to the lease deed are the relatives of Shri Arjun Jain. He contends that the document is a self-serving document created specifically for the hearing as it has only been filed by the Petitioner/tenants on 02.01.2024, although this Application was filed almost a year ago. It is also submitted that small shops usually go at a higher rental.
10.1 It is further contended that so far as concerns the plea of sub-tenancy, the same has been dealt with by the learned ARC in the order dated 22.12.2014 as well as the impugned Eviction Order holding that an unlawful sub-tenant is required to vacate once an Eviction Order is passed against the tenant. It is also contended and that no proper notice as required under DRC Act has been given to the Respondents/landlords. Hence, the said Sh. Arjun Jain remains an unlawful sub-tenant qua the demised Premises.
Analysis and Findings
11. As stated above, the Eviction Order was passed by the learned ARC on 27.05.2019 directing the original tenant to vacate the demised Premises within six months and thereafter, the original tenant and Petitioner/tenants have been enjoying the occupation of the demised Premises and continuing business therefrom. This Court is informed that although Execution proceedings are filed these are still pending on account of the pendency of this Petition and the interim orders granted by this Court.
12. The Petitioner/tenants have essentially raised two objections to the payment of interim user charges. In the first instance, Petitioner/tenants submit that they cannot be asked to pay market rent or occupation charges, as the demised Premises is in the actual physical possession of a sub-tenant, Sh. Arjun Jain. Secondly, the Petitioner/tenants have also relied on Sections 17, 18 and 25 of the DRC Act to submit that the Eviction Order is not binding on a lawful sub-tenant, since he was not a party to the proceedings and hence, no user charges are required to be paid.
13. Sections 17 and 18 of the DRC Act were enacted for the protection of genuine sub-tenants, who obtained the consent of the landlord for such sub-tenancy. The legislature wanted to prevent persons who had been inducted by a tenant, by not following the procedure as is prescribed in these provisions, from being accorded protection under the DRC Act.
13.1 Section 17 of the DRC Act sets forth that where a premises is sub-let by a tenant with the consent of the landlord, a notice in the prescribed form is required to be given to the landlord of the creation of a sub-tenancy. This notice is to be given within one month of creation of the sub-tenancy. Similarly, when such sub-tenancy is terminated, the notice of termination of the sub-tenancy

is also required to be given within one month thereof. Section 17(1) of the DRC Act is extracted below:
17. Notice of creation and termination of sub-tenancy-
(1) Where, after the commencement of this Act, any premises are sub-let either in whole or in part by the tenant with the previous consent in writing of the landlord, the tenant or the sub-tenant to whom the premises are sub-let may, in the prescribed manner, give notice to the landlord of the creation of the sub-tenancy within one month of the date of such sub-letting and notify the termination of such sub-tenancy within one month of such termination.
[Emphasis supplied]
13.2 The DRC Act, thus, provides for a two-step mechanism for creation of a sub-tenancy:
(i) Prior consent of the landlord in writing; and
(ii) A notice of creation of the sub-tenancy within one month of date of the sub-letting, in the format as prescribed under the DRC Act.
13.3 Sub-section (1) of Section 18 of the DRC Act, on the other hand, states that where an order for eviction is made against a tenant but not against a sub-tenant, as referred to in Section 17 of the DRC Act, the sub-tenant shall be deemed to be a tenant holding directly under landlord and on the same terms and conditions, if the tenancy had continued. This provision is, however, only applicable where notice of creation of a sub-tenancy has been sent to the landlord in the manner as prescribed in Section 17(1) of the DRC Act.
13.4 For ease of reference, Section 18(1) of the DRC Act is extracted below:
18. Sub-tenant to be tenant in certain cases-
(1) Where an order for eviction in respect of any premises is made under section 14 against a tenant but not against a sub-tenant referred to in section 17 and a notice of the sub-tenancy has been given to the landlord, the sub-tenant shall, with effect from the date of the order, be deemed to become a tenant holding directly under the landlord in respect of the premises in his occupation on the same terms and conditions on which the tenant would have held from the landlord, if the tenancy had continued.
[Emphasis supplied]
14. It is apposite to refer to Section 25 of the DRC Act at this stage, as well:
25. Vacant possession to landlord –
Notwithstanding anything contained in any other law, where the interest of a tenant in any premises is determined for any reason whatsoever and any order is made by the Controller under this Act for the recovery of possession of such premises the order shall, subject to the provisions of section 18, be binding on all persons who may be in occupation of the premises and vacant possession thereof shall be given to the landlord by evicting all such person therefrom:
Provided that nothing in this section shall apply to any persons who has an independent title to such premises.
[Emphasis supplied]
14.1 A plain reading of the aforesaid provision shows that an order of eviction and recovery of possession of premises under Section 14 of the DRC Act is binding on all persons in the occupation of such premises, subject to the provisions of Section 18 of the DRC Act. The proviso to Section 25 of the DRC Act states that this Section is inapplicable in the event a person has an independent title to such premises.
14.2 Concededly, it is not the case of the Petitioner/tenants nor was it the case of the original tenant that the said Sh. Arjun Jain has an independent title to the demised Premises. Further, no proceedings under Section 50 (4) of the DRC Act have been filed by the person alleging an independent title to the demised Premises either. Thus, the proviso to Section 25 of the DRC Act is not applicable in the present case.
14.3 However, it has been contended by the Petitioner/tenants that the sub-tenant, being a lawful sub-tenant, has become a tenant holding over and is in authorized occupation of the demised Premises.
15. The record shows that the plea of sub-tenancy was raised by the original tenant in the proceedings before the learned ARC. It was stated by the original tenant that the said Sh. Arjun Jain had been running his business in the demised Premises under the name and style of M/s Padma Gems as its sole proprietor and is a lawful sub-tenant of the demised Premises.
15.1 A review of the pleadings filed by the parties before the learned ARC shows that during the proceedings before the learned ARC, and before this Court, the Respondents/landlords have maintained that Sh. Arjun Jain is an unlawful sub-tenant. The Petitioner/tenants however claim that the said Sh. Arjun Jain is a lawful sub-tenant in terms of the provisions of the DRC Act.
15.2 As stated above, the provisions of sub-section (1) of Section 17 of the DRC Act require that the tenant or sub-tenant to give notice to the landlord within one month of creation of such sub-tenancy. However, both in the Leave to Defend dated 06.08.2012 and the Written Statement dated 10.10.2013 filed by the original tenant before the learned ARC [which forms part of the Court file], it has been contended that Sh. Arjun Jain has been running his business in the demised Premises since much prior to 1989. In addition, in the cross-examination of the original tenant during proceedings before the learned ARC, it has been stated by the original tenant – Sh. Narendra Jain that Sh. Arjun Jain, has been running his business from the demised Premises at least 3 to 4 years prior to 10.04.19893. Thus, admittedly the sub-tenancy was created much prior to 1989.
15.3 The Petitioner/tenants have relied on notice dated 10.04.19894 as the notice of sub-tenancy under Section 17 of the DRC Act [hereinafter referred to as Notice]. This notice states that the sub-tenancy has commenced on 01.04.1989. Given the fact that the pleadings of the original tenant and his statement given during evidentiary proceedings, unequivocally state that the sub-tenancy commenced much prior to 1989, the notice under Section 17 of the DRC Act would also be required to have been given much prior to 1989. Concededly, this has not been done by the original tenant or the sub-tenant. In fact, the Notice states that tenancy commenced on 01.04.19895. In addition, receipt of this Notice by the Respondents/landlords is also disputed.
15.4 The Supreme Court in Girdhari Lal & Sons v. Balbir Nath Mathur6 has held that the twin test as prescribed under sub-section (1) of Section 17 of the DRC Act is sacrosanct and the notice has to be given in the manner as has been prescribed by the DRC Act. The relevant extract is set out below:
“5. Rule 21 of the Delhi Rent Control Rules, 1959 provides that a notice of the creation or termination of subtenancy required under Section 17 shall be in Form E. Rule 22 provides that unless otherwise provided by the Act, any notice or intimation required or authorised by the Act to be served on any person shall be served (a) by delivering it to the person; or (b) by forwarding it to the person by registered post with acknowledgement due. Form E provides for a statement of full particulars of the demised premises, such as the street, municipal ward and house number, names of the tenant and the subtenant, details of the portion sublet, rent payable by the subtenant, date of creation of the subtenancy, etc.
…….
17. Bearing these broad principles in mind if we now turn to the Delhi Rent Control Act, it is at once apparent that the Act is primarily devised to prevent unreasonable eviction of the tenants and subtenants from demised premises and unreasonable enhancement of rent. In particular, the purpose of Sections 17 and 18 is clearly to protect the subtenants from eviction where a landlord obtains a decree for eviction against the principal tenant. In an action for eviction by a landlord against the principal tenant, the subtenant has no defence of his own under the ordinary law, even if he has been inducted into possession with the consent of the landlord. He has to go with the tenant. He can claim no right to sit in the premises apart and distinct from the right of the tenant..
……
22. In normal cases a subtenant under the Act can get relief under the provisions of the Act only if he satisfies the twin conditions laid down in Section 17 viz. that there must be the previous consent in writing by the landlord, of the creation of the subtenancy and a notice in the prescribed manner by the subtenant of the creation of the subtenancy to the landlord within one month of the date of such creation. It is only when these two conditions are satisfied that the consequences mentioned in Section 18(1) will follow. I should not, therefore, be understood to hold the view that, as a general rule, in all cases where the subtenant somehow secures the signature of the landlord in some communication relating to tenancy, a consent in writing satisfying
the requirements of the section is to be assumed….
[Emphasis supplied]
15.5 The twin test under sub-section (1) of Section 17 of the DRC Act is thus not satisfied in the present case, as the Notice does not correctly state the commencement of the tenancy. Also, as stated above, even the delivery of this Notice is disputed by the Respondents/landlords.
15.6 Section 25 of the DRC Act states that the Eviction Order is binding on all persons who may be in occupation of the premises, subject to the provisions of Section 18 of the DRC Act. Section 18 sets forth that an order for Eviction against a tenant will not apply to a sub-tenant where a notice of sub-tenancy has been given in the prescribed format under Section 17 of the DRC Act, which has not been done in the present case. Thus, in terms of Section 25 of the DRC Act, vacant physical possession was liable to be handed over not only by the original tenant but also by any third party/unauthorised sub-tenant in occupation of the demised Premises.
16. So far as concerns the other objection of the Petitioner/tenants, the averment that the Application has only been filed by one of the co-owners of the demised Premises, it is settled law that one co-owner acts as an agent of the other co-owners and that the consent of the co-owners is assumed as taken, unless it is shown otherwise. [See India Umbrella Manufacturing v. Bhagabandei Agarwalla (Dead) by L.R.s7].
16.1 In any event, the present Application has been filed by all the Respondents/landlords. Hence, this contention of the Petitioner/tenants is without any merit.
17. In matters wherein a tenant endeavours to seek a stay on an eviction order, it is deemed equitable, and reasonable that said tenant be directed by the High Court to provide compensation to the landlord. This compensation serves to counter potential adverse effects suffered by the landlord due to the delay or suspension of the eviction order. This view is articulated by Supreme Court in Martin & Harris Private Limited and Another v. Rajendra Mehta and Others8 while relying on the Atma Ram case and reads as follows:
17. In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. [Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705], this Court held that the appellate court does have jurisdiction to put reasonable terms and conditions as would in its opinion be reasonable to compensate the decree-holder for loss occasioned by delay in execution of the decree while granting the stay. The Court relying upon the provisions of the Delhi Rent Control Act, observed that on passing the decree for eviction by a competent court, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises in present and earn the profit if the tenant would have vacated the premises. The Court has explained that because of pendency of the appeal, which may be in continuation of suit, the doctrine of merger does not have effect of postponing the date of termination of tenancy merely because the decree of eviction stands merged in the decree passed by the superior forum at a later date.
[Emphasis supplied]
17.1 The Supreme Court in Atma Ram case, has laid down that once an order for eviction has been passed against a tenant and the tenant continues in possession of the tenanted premises, such tenant is required to pay use and occupation charges to the landlord at the market rate applicable to like premises situated in the vicinity, until the disposal of the Petition impugning such order of eviction.
17.2 It has further been held in the Atma Ram case that this interim compensation is granted based on the discretion of Court in its judicial wisdom, to offset the detrimental effects of prolonged litigation on landlord. The relevant extract reads as follows:
9. Robust common sense, common knowledge of human affairs and events gained by judicial experience and judicially noticeable facts, over and above the material available on record all these provide useful inputs as relevant facts for exercise of discretion while passing an order and formulating the terms to put the parties on. After all, in the words of Chief Justice Chandrachud, speaking for the Constitution Bench in Olga Tellis v. Bombay Municipal Corpn. [(1985) 3 SCC 545] : (SCC p. 574, para 35)
Common sense which is a cluster of lifes experiences, is often more dependable than the rival facts presented by warring litigants.
[Emphasis supplied]
17.3 A similar view has been taken by the Supreme Court in the cases of State of Maharashtra and Anr. v. Super Max International Private Limited and Ors.9; Sumer Corp. v. Vijay Anant Gagan & Ors.10 and Heera Traders v. Kamla Jain11. It has also been held that in fixing the interim compensation/use and occupation charges, the Court would exercise restraint and not fix excessive, fanciful or punitive amount. However, the Appellate/Revisional Court while staying an eviction decree can direct payment of such compensation for continued use of the premises and the compensation would be at the same rate of rental at which the landlord would have been able to get if he had let out such premises after they were vacated by the tenant. It has been held that the direction to pay mesne profits or use and occupation charges, will depend on the facts and circumstances of each case including the location of the property as well as its nature whether it is a commercial or residential area.
18. Thus, the settled legal principle is that once a decree for eviction has been passed and such decree cannot be executed by the landlord in view of the fact that the Eviction Order is stayed, the tenant can be put to such terms which in the opinion of the Appellate Court would reasonably compensate the landlord for loss occasioned by a delay in execution of the decree for possession. The tenant is liable to pay mesne profits or compensation for use and occupation at reasonable rate as prevalent in the market.
18.1 In the case at hand, the Petitioner/tenants, have contended that the person in occupation/holding over, Sh. Arjun Jain, will be liable to pay these mesne profits or interim compensation. This submission is unmerited. As discussed above, the twin test as envisaged under the provisions of Section 17 of the DRC Act is not satisfied in the present case qua the sub-tenant and the sub-tenant is not a lawful sub-tenant as is envisaged in the DRC Act.
18.2 In addition, the record shows that it is the original tenant who filed the present Revision Petition and who had contested the Eviction Petition before the learned ARC. Concededly, no challenge has been made to the Eviction Order by the said Sh. Arjun Jain.
18.3 There is another consideration which has persuaded this Court. The original tenant has stated in his Written Statement dated 10.10.2013 filed before the learned ARC, that it is the business of the original tenant Shri Narendra Jain – that is being run from the demised Premises by his nephew, Sh. Arjun Jain and that this business is the only source of income for him and his family. Thus, clearly the benefit of the demised Premises was for the original tenant and his family members who are the Petitioner/tenants before this Court. The Petitioner/tenants have continued in occupation of the demised Premises by paying a meagre rental initially, and since the last several years without any payment at all. The Respondents/landlords are clearly deprived not only of their property but also have received no compensation for its use and occupation since 2012. These facts are undisputed.
19. In the facts of the present case, it was the original tenant who had been contesting the Eviction Petition, which was filed in the year 2012 and after a complete trial, was decreed by the learned ARC and the Eviction Order was passed. In view of the fact that the Petitioner/tenants before this Court are the legal representatives of original tenant, this Court deems it appropriate to direct that during the pendency of these proceedings, interim compensation shall be paid by the Petitioner/tenants in the manner as is determined hereinbelow.
Affixation
20. The demised Premises is admittedly a commercial property/shop in the Sunder Nagar market, which is a well-reputed and amongst the markets in South Delhi which have the highest rentals for retail shops. The premises in issue admittedly admeasure 11 feet X 44 feet or 484 sq. ft. on the ground floor, with the common verandah. The lease deed relied upon by the Petitioner/tenants shows the rental at the rate of Rs.232.5/- sq. ft. while those of relied upon by the Respondents/landlords shows rental between Rs.410/- and Rs.760/- per sq. ft. per month.
20.1 As has been stated above, the lease deeds relied upon by the Respondents/landlords are for banks and also have various facilities such as car parking, open space in front, space on rooftop for installation of diesel generators/equipments and hence, command a higher rental.
20.2 The demised Premises is an old-construction and the facilities available at the demised Premises are not at par with the leased premises to ATM/Banks which are relied upon by Respondents/landlords. Hence, these rentals need to be discounted as such. It is not disputed that the lease deed relied upon by the Petitioner/tenants at Rs.232.5/- sq. ft. is admittedly between parties who are related to each other and hence, this is obviously at a discounted rate of rent.
20.3 In view of the aforegoing circumstances, this Court deems it appropriate to fix Rs.350/- per sq. ft. as rental totalling to approximately Rs.1.7 lakhs per month, as the interim compensation/user charges for the demised Premises upto 31.03.2024.
21. Since, the Eviction Order was passed on 27.05.2019 giving the Petitioner/tenants six months to vacate the demised Premises, it is also deemed appropriate to fix the interim maintenance/user charges from that date. Hence, for the period from 28.11.2019 onwards, without prejudice to the rights and contentions of the parties, the directions as set forth below are being passed.
21.1 The Petitioner/tenants shall pay to the Respondents/landlords 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 28.11.2019 to 31.03.2020 shall be paid by the Petitioner/tenants at the rate of Rs.1.7 lakhs per month;
(ii) The use and occupation charges for the period from 01.04.2020 to 31.03.2022 [discounted for Covid-19] shall be paid by the Petitioner/tenants at the rate of Rs.1 lakh per month;
(iii) The use and occupation charges for the period from 01.04.2022 to 31.03.2024 onwards shall be paid by the Petitioner/tenants at the rate Rs.1.7 lakhs per month;
(iv) The use and occupation charges from 01.04.2024 onwards shall be paid by the Petitioner/tenants at the rate of Rs. 375/- per sq. ft. per month amounting to Rs. 1,81,500/- per month, on or before 7th day of each calendar month;
(v) The use and occupation charges as set forth in paragraphs 21.1(i) (ii) and (iii) shall be paid by the Petitioner/tenants to the Respondents/landlords in four equal instalments on 15.05.2024, 15.07.2024, 15.09.2024 and 15.11.2024.
22. All payments shall be deposited by the Petitioner/tenants with the Registry of this Court in the manner as set forth in paragraph 21.1 above. The payments deposited will be converted into an interest bearing fixed deposit by the Registry of this Court and shall be subject to further directions as passed by this Court.
23. Subject to the payment of the interim compensation/user charges as set forth in paragraph 21.1 above, the execution of the Impugned Order shall remain stayed during the pendency of the present Petition.
24. Needless to add, in the event that there is any default in the payment of use and occupation charges by the Petitioner/tenants, the interim protection as granted by this Court shall automatically stand dissolved.
25. The Application is accordingly disposed off.
RC.REV. 671/2019 & CM Appls.50953/2019[Stay]
26. List for final arguments before the Roster Bench on 09.04.2024.

TARA VITASTA GANJU, J

APRIL 03, 2024/SA

1. 50. Jurisdiction of Civil Courts barred in respect of certain matters-
.. 4) Nothing in sub-section (1) shall be construed as preventing a civil court from entertaining any suit or proceeding for the decision of any question of title to any premises to which this Act applies or any question as to the person or persons who are entitled to receive the rent of such premises.
2 (2005) 1 SCC 705
3 Evidence of Narender Kumar Jain in cross examination held on 27.02.2018
4 Exhibit D-20
5 Exhibit D-20.
6 (1986) 2 SCC 237
7 (2004) 3 SCC 178
8 (2022) 8 SCC 527
9 (2009) 9 SCC 772.
10 2022 SCC Online SC 1548.
11 2022 SCC Online SC 220.
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