Om Prakash vs Suresh Kumar

HELD: 1. From the tenor of the statement of the counsel of the Land-lord, made before the High Court on behalf of the appellant (Land-lord), it is obvious that it is an unequivocal statement made by the counsel engaged by the appellant (landlord) to espouse his (appellant’s) cause before the High Court. It is not the case of the appellant that he had expressly instructed his counsel not to make such a statement. Further, the statement was in respect of the commitment of the appellant qua the subject matter of the proceedings in which the counsel was engaged and instructed to appear. Not only that, right from the beginning and even before this Court, an attempt was made by the parties to explore possibility of working out an amicable solution, as is evident from the order dated 9.1.2017 before the respondent was put to notice of these appeals, and more particularly, dated 14.11.2017. Therefore, the appellant cannot now be allowed to resile from the statement made before the High Court, which the High Court justly declined to undo in the review petition filed by the appellant for that purpose. [Paras 9 and 10] [574-B-E]

2. The appellant is obliged to abide by the unequivocal statement made before the Court to re-induct the respondenttenant in the newly constructed building and to provide him same area which was being used by him earlier. Considering the above, the appellant cannot be permitted to extricate himself from the obligation flowing from the impression given to the Court (before the High Court and again before this Court) and need to be bound by the same. [Para 12] [577-D-E]

3. Even before this Court, the appellant, advisedly, showed willingness to explore possibility of settlement. It is obvious that the delivery of possession of the suit premises, then in possession of the respondent, was expedited and made over to the appellant only after intervention of this Court, which indulgence was shown because the appellant had expressed inclination to spare portion of premises for the respondent. Only after this Court intervened, the appellant could take the construction of proposed building forward and completed it on 19.6.2018. In terms of the order dated 14.11.2017 of this Court, it was made absolutely clear that the appellant will not put the newly constructed premises to use without seeking prior permission of this Court. That permission is yet to be given to the appellant. [Para 11] [576-H; 577-A-C]

4. However, from the subsequent affidavits filed before this Court, it is obvious that the entire ground floor cannot be given to the respondent. Initially, the appellant had given an offer to accommodate the respondent on the upper floor, but it is noticed that the staircase going towards the upper floors (namely, first and second floor) in the newly constructed building passes through the ground floor itself. The same is erected at the rear side within the building (being triplex house). The photographs produced before the Court, however, depict that an opening (exit door) is provided on the rear side of the building, on the ground floor, which opens towards the plot (which the appellant had transferred in favour of his son during the pendency of these appeals. Thus, it is possible to provide access to the upper floors from the rear side of the building, which also opens on the road or portion of the plot. [Para 13] [577-F-H]

5. At the conclusion of the proceedings, the counsel for the appellant without prejudice, gave offer to provide portion of the marked ground floor premises to the respondent, admeasuring 2.25 meters x 7.57 meters by carving out a passage within the ground floor providing access for upper floors through the staircase from the front door of the newly constructed building. This offer has been turned down by the respondent, firstly because the area of the premises will get reduced to just about 17.0325 square meters instead of the original area, admeasuring 36.53 square meters. Moreover, the premises, as offered, would be unusable for carrying on the business as cloth merchant therefrom. [Paras 14 and 15] [578-B-C; 579-A-B]

6. The appellant must provide the entire front portion of the ground floor premises, measuring 3.73 meters (width) x 7.57 meters (length) by putting up a brick wall separating the back end of the ground floor premises, where the staircase has been erected as is shown in the plan. The appellant shall provide access to the first and second floors from the rear side of the building where exit door and staircase has already been erected. This is the most equitable arrangement that can be provided in the fact situation of the present case, to do complete justice to the parties. However, while doing so, as the respondent-tenant will be deprived of almost 8.2939 square meters of the original area (36.53 square meters – 28.2361 square meters), the appellant must compensate the respondent commensurately for the said loss of area by paying amount quantified at Rs.73,898.649 rounded off to Rs.74,000/- [i.e. equivalent to prevailing circle rate (Rs.8910/- per square meter) for the concerned locality, by way of compensation/damages. [Para 16] [579-C-F]

7. Such arrangement would result in compliance of the statement made on behalf of the appellant before the High Court and which was made the basis to dispose of the respondent’s revision petition and at the same time, minimise the loss of area to be made over to the respondent-tenant and optimize the utility of the premises to be used by him for non-residential purpose after re-induction and also adequately compensate him for the loss of area. [Para 17] [579-G; 580-A]

8. This arrangement is in lieu of the liability of the appellant to pay a sum of Rs.1,000/- (Rupees one thousand only) per day from 1.12.2017 towards damages for delayed re-induction of the respondent as directed by the High Court, which, if given effect to, would be substantial amount. To do substantial and complete justice to the parties, the impugned decree has been modified to the above extent. [Para 18] [580-B]

9. Until payment of Rs. 74,000/- is made, the appellant shall desist from using the first and second floor premises for any purpose. The Chief Administrative Officer, District Court, is appointed as receiver in respect of the newly constructed building to ensure proper implementation of the above terms and submit compliance report to this Court. [Paras 19 (ii) and (iii)]

10. For determination of monthly rent upon re-induction of the respondent in the suit premises, the parties shall file a joint application before the Rent Controller. The Rent Controller shall decide the same expeditiously. [Para 19 (v)] [581-B-C] Himalayan Coop. Group Housing Society v. Balwan Singh & Ors. (2015) 7 SCC 373 : [2015] 4 SCR 616 – distinguished.

Tamil Nadu Electricity Board & Anr. v. Raju Reddiar & Anr. (1997) 9 SCC 736 : [1996] 10 Suppl. SCR 915 – referred to.