Amar Singh Trilochan Singh v. Jasoti

C.K. Mahajan, J.

1. This appeal is directed against the order dated 25th January, 1982 passed by Rent Control Tribunal in Appeal 1079 of 1980.

2. The premises in question was let out by late Shri Vishan Das Shivani to the appellants for commecial purposes with effect from 1st July, 1974. The appellants entered into a partnership business with one Ranjit Singh son of Mr. Bhagwan Singh for the transport business. The respondent, who is the widow of Vishan Dass Shivani, filed an eviction petition under Clauses (a), (b) and (j) of the proviso to Sub-section (1) to Section 14 of the. It was alleged that appellants had sub-let, assigned or parted with the possession of the premises in question to M/s. Amar Transport Company, Agra, without the consent in writ of the respondent and the unauthorised sub-tenant had opened its branch in the premises in question. It was further contended that appellant had caused or permitted to be caused substantial damage to the property and had unauthorised made a partition in the hall on the first floor and had broken the stairs and walls and had tampered with the electric meters. An eviction order was passed by Additional Rent Controller on the ground of sub-letting, assigning or parting with the possession of premises under Clause (b) of Section 14 of Delhi Rent Control Act. The appellants assailed the eviction order by way of an appeal before the Rent Control Tribunal. The appeal was dismissed on 26th January, 1982.

3. Counsel for the appellants contends that appellants did not sub-let the premises. The appellants entered into a partnership business with M/s. Amar Transport Company, Agra and were doing their business from the premises in question. The possession of the premises was the with appellants. It did not amount to sub-letting.

4. In support of their contentions, the appellants placed reliance on a judgment of the Supreme Court in M/s. Madras Bangalore Transport Company (West) v. Inder Singh and Others, AIR 1986 SC 1564 [LQ/SC/1986/174] . In that case the appellant firm was carrying on transport business and was in possession of a premises as tenant. The firm founded a limited company with its partners as directors. The company was formed to circumvent the ban against the firm from operating in a particular area. The firm was appointed agent of the company and the company the agent of the firm. The firm allowed the company to operate from its tenanted premises along with it. Both the company and the firm had their sign-boards at the premises and they were both registered under the Delhi Shops and Establishments Act as having their offices at the disputed premises. The owner of the disputed premises filed eviction petition against the firm on ground of sub-letting. The Supreme Court held that there was no sub-letting, assignment or parting with possession of the premises by the firm, to the limited company so as to attract Section 14(1)(b). The firm continued to be in occupation of the premises even after the private limited company came in. The firm never effaced themselves. The firm allowed the private limited company, to function from the same premises but the private limited company, though a separate legal entity was in fact a creature of the partners of the firm and was the very image of the firm. The limited company and the partnership firm were two only in name but one for practical purposes. There was substantial identity between the limited company and the partnership firm. As such even though the firm and company were distinct legal entitities there was no sub-letting or assignment etc.

5. The appellants also relied on judgment of this Court in Hazari Lal and Ram Babu v. Shri Gian Ram and Others, 1972 RCR 74. The Court held as under :

Clause (b) to the proviso to Sub-section (1) of Section 14 of the Rent Act uses three expressions, namely `sub-let, `assigned and `otherwise parted with the possession of the whole or any part of the premises without obtaining the consent in writing of the landlord. These three expressions deal with different concepts and apply to difference circumstances. In sub-letting there should exist the relationship of landlord and tenant as between the tenant and his sub-tenant and all the incidents of letting or tenancy have to be found, namely, the transfer of an interest in the estate, payment of rent and the right to possession against the tenant in respect of the premises sub-let. In assignment, the tenant has to divest himself of all the rights that he has as a tenant. The expression parted with the possession undoubtedly postulates as has been held in the cases mentioned above the parting with legal possession. As we understand it, parting with possession means giving possession to persons other than those to whom possession has been given by the lease and the parting with possession must have been by the tenant. The mere user by other person is not parting with possession so long as the tenant retains the legal possession himself or, in other words, there must be vesting possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to claim possession from his guest who does not pay him any rent or other consideration it would not be for the duration of his stay, the guest has been given the exclusive use of the whole or a part of the tenancy premises. The mere fact that the tenant himself is not in physical possession of the tenancy premises for any period of time would not amount to parting with the possession so long as, during his absence, tenant has a right to return to the premises and be in possession thereof. A mere privilege or licence to use the whole or a part of the demised premises which privilege or licence can be terminated at the sweet will and pleasure of the tenant at any time would not amount to parting with possession. The divestment or abandonment of the right to possession is necessary in order to invoke the clause of parting with possession.

6. Reliance is also placed on the judgment of the Punjab and Haryana High Court in Devki Nandan v. Om Parkash and ORs. , 1972 RCR 321 wherein the Court held as under :

6..................It is undisputed that if a tenant takes with him one or two more partners and carries on a joint business in the premises, which he has taken on rent, that would not afford a ground to the landlord for his eviction. It is only if it is established that he has nothing to do with the partnership business and has completely given over the possession of the premises to other partners that subletting can be inferred.....

7. The appeal is opposed by the respondent. It is contended that the partnership deed relied upon by the appellants is a forged and fabricated document.

8. I have heard learned Counsel for the parties and perused the documents on record and the Trial Court record.

9. The learned Additional Rent Controller very exhaustively dealt with the matter pertaining to sub-letting, assigning or otherwise parting with the possession of the premises in dispute by the appellant to M/s. Amar Transport Co., Agra without consent of the respondent. He also examined the evidence of the parties while passing the eviction order. The relevant portion of the order may be read as under :

13. I have thoughtfully considered the evidence of both the parties regarding sub-letting, parting with and assignment as discussed above. The main plank of the respondent is partnership deed proved by them as Ex.RW1/5. In respect of this document it is submitted by the learned Counsel for the petitioner that it is forged one because though it has been shown that partnership was entered into on 7.6.76 the document Ex.RW1/5 gives the date as 8th day of June, 1976. That the document is forged one on the face of it in view of the fact that the partnership is between three persons but it has been signed by only two persons namely Amar Singh and Ranjit Singh and that from the careful perusal of this document it would be revealed that the stamp paper of this document are not signed by either of the signatories to this document and that the type impression of pages 1 and 2 is also different than that of page 3. It is also submitted by him that none of the attesting witnesses has been examined by the respondents to prove this document which clearly points out towards its fictitiousness. He has further submitted that alleged partner Ranjit Singh has not been examined by the respondents. I have found all the arguments of the learned Counsel to be worthy of consideration because he is supported by the record. It is true that page 1 and page 2 of partnership deed Ex.RW1/5 have a different type impression than that of page 3 and both these pages are also not signed by any of the signatories and that this partnership deed though is between Amar Singh, Trilochan Singh as party No. 1 and Ranjit Singh party No. 2 yet Trilochan Singh admittedly has not signed this document. Even otherwise from the perusal of testimony of RW1 it becomes apparently clear that this document has been simply executed in order to conceal the real relation between the parties to the document. The genuineness of the document is also doubtful because of the circumstances discussed above and also that the date of partnership is given as 7.6.76 in the w/s but in Ex.RW1/5 it is recorded as 8.6.76. Having thoughtfully considered the testimony of respondents witnesses as discussed above coupled with this document and bearing in mind the conduct of the respondents who had even committed interpolation in documents Ex.RW1/1 to Ex.RW1/4, I find that document Ex.RW1/5 is not worthy of any reliance. If this document is not there then the entire case of the petitioner stand proved because it has been admitted by RW1 that M/s. Amar Transport Co., Agra is running its business in the premises in dispute. In the arguments learned Counsel for the respondents has submitted that even though it is assumed that Amar Transport Co., Agra is doing its business yet since legal possession is with the respondents they cannot be said to have sub-let or parted with possession. In Clause (b) of proviso to Sub-section (1) of Section 14 are used three expressions namely `sub-let, `assigned and `otherwise parted with possession of whole or any part of the premises without obtaining the consent in writing of the landlord. These three expressions deal with different concepts and apply to different circumstances. In sub-letting there should exist the relationship of landlord and tenants as between the tenant and his sub-tenant and all the incidents of letting or tenancy have to be found i.e. the transfer of interest in the estate, payment of rent and the right to possession against the tenant in respect of the premises sub-let. In assignment, the tenant has to divest himself of all the rights that he has a tenant. The expression parted with possession undoubtedly postulates the parting with legal possession which means giving the possession to persons other than those to whom possession has been given by the lessee and that this must have been done by the tenant. The mere user by other persons is not parting with possession so long as the tenant retains the legal possession himself or, in other words there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. Regarding the first impression it is deposed by AW5 that premises has been sub-let by the respondents to M/s. Amar Transport Co. who are running their business in the premises in dispute. Against this the case of the respondents is that there is a partnership between themselves and M/s. Amar Transport Co. As discussed above the partnership deed on which the respondents were relying was held to be unworthy of credence and it has been proved on record by the petitioner by examining AW1, AW2 and AW4 that Amar Transport Co., Agra is a firm owned by Bhagwan Singh and Ranjit Singh who are father and son respectively. It is also deposed by AW5 that respondents are charging Rs. 800/- from M/s. Amar Transport Co., Agra as monthly rent. This part of his testimony has not been challenged in the cross-examination by the learned Counsel for the respondents nor it has been denied clearly and categorically by the respondents in their evidence. The evidence of the respondents as discussed above is quite contradictory to each other and even contradicted their own case as set up by them in their written statement. RW2 and RW5 have tried to prove by producing certain records that M/s. Amar Transport Co. which is doing their business in the premises in dispute is maintaining its account but in view of the testimony of RW1 their entire case falls to the ground. Even otherwise the documents referred to by them are admittedly from April, 1980 and possibility of manufacturing those documents at such late stage cannot be ruled out because had there been any truth in the case of the respondents, they would have produced their record w.e.f. the inception of their alleged partnership. Bald averments of RW2 and RW5 do not prove their legal possession in the premises in dispute particularly when the testimoney of AW5 with regard to the sub-letting, parting with possession and assignment goes unchallenged.

14. It is also provided in Sub-section (4) of Section 14 of DRC Act that for the purposes of Clause (b) of proviso to Sub-section (1) of Sec. 14, any premises which have been let out for being used for purposes of business or profession shall be deemed to have been sub-let by the tenant if the Court feels satisfied that the tenant without obtaining the consent in writing of the landlord after 16th day of Aug., 1958 allowed any peson to occupy the whole or any part of the premises on the ground that such person is a partner of the tenant in the business or profession while really it is for the purposes of sub-letting such premises to that person. In the present case it is not disputed that the premises in dispute are let out after 16.8.58 and that no consent in writing has been obtained by the respondents from the petitioner or her predecessor-in-interest late Sh. Vishan Dass and it is not in dispute that the premises in dispute were let out for being used for the purpose of business and the alleged partnership between the respondents. And Ranjit Singh is held to be fictitious, therefore, it can be safely held under the deeming provision of Sub-section (4) that the premises in dispute has been sub-let by the respondents to M/s. Amar Transport Co., Agra who are admittedly carrying on their busienss in the premises in dispute. I, accordingly, hold that ground under Clause (b) is made out and hence I allow the eviction petition with regard to this ground.

10. In the first appeal, the Rent Control Tribunal re-appreciated the documents and evidence on record and affirmed the eviction order passed by the Additional Rent Controller. The relevant portion of the order may be read as under :

The only other ground of eviction surviving for consideration is under Clause (b) of the proviso to Sub-section (1) to Section 14 of the. Shri Sube Singh, appeared as A.W.1 as the Clerk from the office of the Chief Inspector, Shops Establishment. He had brought the file relating to M/s. Amar Transport Co. registered since the year 1966 from the address of Queens Road and stated that since June, 1976 the application was received for the change of the address to premises 841-4633, Roshan Ara Road, Delhi. He stated further that correspondence with the concern is being done from the address 4638, Roshan Ara Road, Delhi. Sushil Kumar, a Clerk from the Remunerative Project Cell, Municipal Corporation also stated that in the application of September 27, 1986 the name of partners is Bhagwan Singh and Ranjit Singh. Lastly Ramesh Shivani, husband of the respondent, of course, supported the case of the respondent as pleaded which hardly needs to be re-emphasized and reproduced. He denied, of course, that there is any partnership existing between the appellants and M/s. Amar Transport Co.

As against this evidence Amar Singh, one of the appellants appeared as R.W.1 and stated that partnership deed was executed when the partnership was entered into and produced Ex.R.W.1/5 is the copy of the deed of partnership. When cross-examination he admitted that Amar Transport Co. is working from the suit premises though asserted that it is a partnership concern. He deposed that no such accounts are maintained. He further stated that no attendance register is being maintained. He had not brought those books of accounts etc. and added that he has not brought those books of accounts because they are not in existence. He further stated that they are maintaining their own accounts and he is maintaining his own accounts. It was admitted that he did not sign any bill of voucher of Amar Transport Co. and that Amar Transport Co. pays income-tax. The said partnership, of course, was admitted to be not paying any income-tax and that till date according to this witness the shares have been divided. The alleged partnership even was admitted to be having no bank account. Tarlochan Singh, RW.2 proved the partnership deed Ex.R.W.1/5 and stated that it is signed by Amar Singh and Ranjit Singh and that business of partnership was being done in the suit premises. According to this witness they had nothing to do with Amar Transport Co., Agra and that commission is distributed after three months. According to this witness individually he and his father are paying income-tax. He did not know the names of the partners of Amar Transport Co. and deposed that Ranjit Singh is the owner of the said company. According to him, Amar Transport Co. had no office at Delhi. Naginder Pal Singh, R.W. 4 was the next witness who is also doing transport and tyre business and he stated that he knows Tarlochan Singh respondent who is running transport business at Roshnara Road i.e. the suit premises and they were working under the name of Amar Transport Co., K.K. Sharma R.W.5 also made by and large an identical statement deposing that he is working with M/s. Amar Transport Co. for the past four years as an employee and that office is opened by Tarlochan Singh and closed by him.

This in brief is the entire evidence on the record on the basis of which it has to be determined if any sub-letting, assignment or parting with possession is established or not. The ingredients of Clause (b) of the proviso to Sub-section (1) to Section 14 of theare well known and reference may be made to the Division Bench decision of our High Court in the case of Hazari Lal v. Gian Ram, 1972 Rent Control Reporter 74. It was observed as under:

These three expressions deal with different concepts and apply to different circumstances. In sub-letting there should exist the relationship of landlord and tenant as between the tenant and his sub-tenant and all the incidents of letting or tenancy have to be found, namely, the transfer of an interest in the estate, payment of rent and the right to possession against the tenant in respect of the premises sub-let. In assignment the tenant has to divest himself of all the rights that he has as a tenant. The expression `parted with the possession undoubtedly postulates as has been held in the cases mentioned above the parting with legal possession. As we understand it, parting with possession meant giving possession to persons other than those to whom possession has been given by the lease and `the parting with possession must have been by the tenant. The mere user by other persons is not parting with possession himself, or, in other words, there must be vesting of possession by the tenant in another person by divesting himself not only of physical possession but also of the right to possession. So long as the tenant retains the right to claim possession from his guest who does not pay rent to him or other consideration it would not be possible to say that the tenant has parted with possession even though for the duration of his stay, the guest has been given the exclusive use of the whole or a part of the tenancy premises.

23. Similarly in the case of Lal & Co. v. A.R. Chadha, 1969 Rent Control Reporter 940, it was held by Honble Mr. Justice Deshpande that if a tenant is in exclusive possession and enters into a partnership with another person then it would not amount to sub-letting or parting with possession because it was observed that partnership is not a legal person and is merely an association of persons and the name given to it.

24. Examining the facts of the present case in the light of the aforesaid decisions at the outset I may mention that there is no dispute that if a tenant enters into a partnership with another person then the question of sub-letting or parting with possession does not arise. But all the same the Controller and the authorities under the are duty bound to examine the partnership deed and to separate the grain from the chaff so as to see if it is bogus or a sham document or a genuine document. Keeping in view this, Sub-section (4) to Section 14 of thehas been incorporated which is to the following effect:

For the purpose of Clause (b) of the proviso to Sub-section (1), any premises which have been let for being used for the purpose of business or profession shall be deemed to have been sub-let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person to occupy the whole or any part of the premises ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of sub-letting such premises to that person.

25. Ex. R.W. 1/5 is the alleged partnership deed that has been produced on the record and on appraisal of the entire facts I am of the considered opinion that it is not a genuine document. This is so because Ex.A.W.5/7 is the notice in which a specific averment has been made that the property has been sub-let, assigned or parted with. In the reply Ex.A.W.5/11 the appellants simply denied the fact and asserted that they are in complete possession and occupation of the property. No such partnership was set up. If there was any partnership, then immediately on receipt of the notice in the normal course reference to it would have been made. It is interesting to mention that when the petition for eviction was filed, at that time in the written statement for the first time it was asserted that appellants in partnership with Amar Transport Co. have been working in the suit premises and the deed of partnership was given as of June 7, 1976. But unfortunately the document i.e. produced has his own story to tell. It is not of June 7, 1976 but of June 8, 1976 and thus what was pleaded is falsified by the document.

26. No only that the appraisal of the partnership deed shows that even it is not typed at one time. The first page, the second and the third page appears to have been typed on different type machines and what knocks the bottom of the appellants version is that first two pages are not even signed by partners. It leaves scope for interpolations. I, therefore, hold that is not a genuine document.

27. It is not merely the document, which makes one to conclude that it is not a genuine but the appellants had full opportunity to show if any such partnership functioned at all or not. As reproduced above, the said partnership has no bank account. It does not pay income-tax; it is not a registered partnership; it maintains no register of employees; and no accounts are maintained or produced so as to show that any such partnership functioned. Above-all, there is not even a single voucher purported to have been signed by any of the appellants on behalf of the partnership. If appellants were partners of any such concerned, they would have had some transactions which are totally absent.

28. The oral evidence of the appellants is totally unreliable which is very easy to procure but it transpired in evidence that appellants also have another shop at Roshanara Road which makes me believe that they were not perhaps interested in the shop in question. In any case, they have not shown that during this period any such business was done from the suit premises.

29. Lastly the evidence of the respondent certainly shows that appellants had nothing to do with the property in question because appellant No. 1 himself has admitted that the partnership has no printing material while the printed material of Amar Transport Co. was in the suit premises. Sube Singh, A.W.1 Chief Inspector, Shops Establishment also established that Amar Transport Co. wrote and got their office address changed to the address of the suit premises. Even to Remunerative Project Cell, Municipal Corporation the said concern Amar Transport Co. described the names of the partners as Bhagwan Singh and Ranjit Singh even in the year 1976 and not of the appellants. These documents and factors leave no doubt in my mind that no such partnership came into being and it was a third person M/s. Amar Transport Co., Agra which was in possession and functioning in the property.

30. When a third person is established to be functioning in the property in question and there is nothing to show that the tenant did any business from the shop in dispute the conclusions of sub-letting or parting with possession are obvious. To the same effect is the decision of Honble Mr. Justice Khanna in the case of Abdul Aziz v. Mohd. Yaqub, 1970 Rent Control Journal 492. The Trial Court on that score rightly passed the order of eviction.

Even if I were to go into the facts, which in second appeal I should not, I will come to the same conclusion as the two Courts below did. An additional reason is operation of Sub-section (4) of Section 14 of the Delhi Rent Control Act which clause qualifies Clause (b). It reads as follows:

For the purpose of Clause (b) of the proviso to Sub-section (1), any premises which have been let for being used for the purposes of business or profession shall be deemed to have been sub-let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person to occupy the whole or any part of the premises ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of sub-letting such premises to that person.

11. The case of the appellant is based on the alleged partnership deed between the appellants and one Mr. Ranjit Singh. Interestingly, the said partnership deed does not contain signatures of one of the partners namely Tarlochan Singh. Perusal of the partnership shows that type impression of pages 1 and 2 is different from page 3. It appears that there is manipulation in the said document. The appellants failed to examine attesting witnesses in order to prove the partnership deed. The learned Additional Rent Controller and the Rent Control Tribunal examined the validity of the partnership deed and came to the conclusion that the same is a fictitious document.

12. On a broader principle, protection of the Rent Control Act is meant for personal use of those to whom tenancy is granted. It is the original guarantee alone who is entitled to this protection of law. Such protection is not to be abused. Using the premises for self use is one thing, but making a monetary gain by allowing its use by another is quite a different thing. If the tenant does not need the premises, he must restore it to the landlord. He cannot allow the use of the premises or any part thereof by another while himself remaining there only in name. The monetary gain in such a situation is a matter of place inference from the combination of these facts: (a) that a third person is using it; (b) that the tenant himself is not exclusively using it; and (c) that the premises have a monthly usufruct (for rateable value) which far exceeds the rent which is payable to the landlord. Law comes down heavily against those who try to abuse Rent Control protection in this manner. On the plain facts, an inference of sub-letting would follow and is sufficient but here on record there is much more.

13. Section 100 of Code of Civil Procedure bars second appeal unless a question of law is involved in a case and the question of law so involved is substantial. The memorandum of appeal shall precisely state the substantial question of law involved in the appeal. In the present case, the memorandum of appeal does not show any question of law. There is no question of law involved in the present petition. It is settled law that the normally the High Court would not interfere with the finding of fact as recorded by the Courts below while considering the matter in exercise of the jurisdiction in second appeal or civil revision unless it is shown that finding is recorded without any legal evidence on record suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse. The orders passed by the Additional Rent Controller and Rent Control Tribunal are well reasoned orders and do not suffer from any legal infirmity. While passing the eviction orders and came to the conclusion that the alleged partnership deed is a fictitious document, the Courts below examined the evidence of parties and documents in detail. I see no reason to interfere with the orders. There is no merit in the appeal.

14. There is one disturbing fact that I cannot ignore. The appeal was filed way back in 1982 and stay against recovery of possession has continued from 24th February, 1982 till date. Considering the fact that stay of eviction has operated for over 21 years and keeping in view the principle that no one can take benefit of a stay or an injunction that is ultimately vacated, I wish to make orders for compensation on the lines as the Supreme Court did in Marshal Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. & Anr., II (1999) SLT 91=1999(2) SCC 325: 1999 AIR (SC) 882.

15. In any case if a tenant abandons the premises or illegally transfers possession and use to another and thereafter eviction proceedings are contested and they take their own time, the protection, or the right to pay only the standard or the last paid rent and not the prevailing market rent cannot be availed. Suppose a tenant of a commercial premises decides to shift to a foreign country and instead of handing over possession to the landlord, hands it over to another and for whatever consideration, there is no reason why upon eviction being finally ordered, both tenant and the sub-tenant or the assignee should not be made liable to pay mesne profits at least for the period in which the matter was being contested and remained in Court. On the facts of the case, I am, however, confining the order to the period the stay of dispossession operated.

16. The Supreme Court in Kanoria Chemicals and Industries Ltd. and Ors. v. U.P. State Electricity Board and Others, (1997) 5 Supreme Court Cases 772 [LQ/SC/1997/451] held :

11.............. It is equally well settled that an order of stay granted pending disposal of a writ petition/suit or other proceeding, comes to an end with the dismissal of the substantive proceedings and that it is the duty of the Court in such a case to put the parties in the same position they would have been but for the interim orders of the Court. Any other view would result in the act or order of the Court prejudicing a party (Board in this case) for no fault of its and would also mean rewarding a writ petitioner in spite of his failure. We do not think that any such unjust consequence can be countenanced by the Courts.....

17. The Supreme Court in Style (Dress Land) v. Union Territory, Chandigarh & Another, VII (1999) SLT 48=(1999) 7 Supreme Court Cases 89 [LQ/SC/1999/756] held as under :

15. Regarding awarding of the interest by the High Court for the period of stay it is argued that as in Sahib Singh case no such direction was issued, the appellants could not be burdened with the liability of paying the interest and that at the rate of 18% per annum it was excessive and exorbitant. It is a settled principle of law that as and when a party applies and obtains a stay from the Court of Law, it is always at the risk and responsibility of the party applying. Mere passing of an order of stay cannot be presumed to be the conferment of any additional right upon the litigating party................ The order of stay granted pending disposal of a case comes to an end with the dismissal of a substantive proceeding and it is the duty of the Court in such cases to put the parties in the same position they would have been but for the interim orders of the Court. Again in Kanoria Chemicals and Industries Ltd. v. U.P. SEB, the Court held that the grant of stay had not the effect of relieving litigants of their obligation to pay late payment with interest on the amount withheld by them when the writ petition was dismissed ultimately. Holding otherwise would be against public policy and the interest of justice. In Kashyap Zip Industries v. Union of India interest was awarded to the Revenue for the duration of stay under the Courts order, since the petitioners therein were found to have the benefit of keeping back the payment of duty under orders of the Court.

18. Since it will be difficult for this Court to assess the amount, I leave it open to the landlord to make an application to the Controller for an inquiry into and determination of the mesne profits for the period the stay of this Court remained in operation and further till possession is delivered. Credit of interim payments shall be allowed. Such application may be made within three months from today, and for that limited purpose the original proceedings shall continue. On filing of such application, Controller shall decide the same in accordance with law.

19. Appeal against eviction is dismissed with costs. Orders of the Additional Rent Controller and Rent Control Tribunal are upheld. Trial Court record be sent back for inquiry into mesne profits.