Supreme Court of India
OM PRAKASHversusSURESH KUMAR
- Citation
- 2020 INSC 111
- Decided
- 30 January 2020
- Disposal
- Appeal(s) allowed
- Bench
- A M KHANWILKAR
Holding
An unequivocal statement made by counsel engaged by a party is binding on that party, and the landlord must re‑induct the tenant in the new building, provide the specified area, and pay compensation for the loss of area.
Summary
The appellant, Om Prakash, owned a three‑room shop in Hamirpur and had evicted the respondent, Suresh Kumar, a cloth‑merchant tenant since 1969, on the ground that the premises were needed for reconstruction. The Rent Controller ordered eviction, which the High Court affirmed, but noted that the landlord was not averse to the tenant’s offer to hand over possession if he were re‑inducted in an equivalent area in the new building. The landlord later changed counsel and filed a review petition claiming the counsel’s statement was made without his instruction; the review was dismissed. The Supreme Court held that an unequivocal statement made by counsel engaged by a party is binding on that party, obligating the landlord to re‑induct the tenant in the new premises. The Court modified the decree, directing the landlord to provide the front portion of the ground floor (3.73 m × 7.57 m), pay Rs 74,000 as compensation for the loss of area, refrain from using the upper floors until payment, and appoint a receiver to ensure compliance. The appeals were partly allowed.
Issues considered
- The statement made by counsel on behalf of the landlord before the High Court is binding on the landlord despite the landlord's claim of lack of instruction.
- Whether the landlord is obligated to re‑induct the tenant in an area equal to the original premises as per the counsel's statement.
- Whether the landlord must compensate the tenant for the reduced area after re‑induction.
- Whether the landlord is liable for daily damages for delayed re‑induction.
Legislation cited
Subjects
rent controlevictionlandlord‑tenantre‑inductionbinding statementcounsel authoritycompensationequitable reliefnon‑residential tenancy
Judgment
[2020] 1 S.C.R. 565 565
OM PRAKASH A
v.
SURESH KUMAR
(Civil Appeal Nos. 833-834 of 2020)
JANUARY 30, 2020 B
[A. M. KHANWILKAR, HEMANT GUPTA AND
DINESH MAHESHWARI, JJ.]
Rent Control and Eviction:
C
Non-residential tenancy – Eviction proceedings – Rent
Controller directed eviction holding that there was bonafide
requirement of suit premises for the purpose of reconstruction –
Appellate court confirmed the order of Rent Controller – In revision,
the tenant urged that it was ready and willing to hand-over the
possession of suit premises subject to the land-lord agreeing to re- D
induct him as tenant in equivalent area occupied by him – High
Court on the statement of the counsel for the land-lord that the
land-lord was not averse to the offer so made by the tenant, disposed
of the revision directing that the tenant would be re-inducted –
Land-lord changed his advocate and filed review petition asserting
that he had never instructed his counsel to make any statement E
regarding re-induction – Review petition dismissed – Appeal to
Supreme Court – Held: The statement regarding re-induction of the
tenant made by the counsel for land-lord before High Court is
unequivocal – Land-lord now cannot be allowed to resile from the
statement and is obliged to abide by the same – In order to provide F
same area as in the old building, in the facts of the case, to do
complete justice, the Court reached an arrangement regarding the
area, location, floor and entrance to the tenanted premises after re-
induction – However, while doing so the tenant was deprived of
some area – Land-lord is directed to pay compensation/damages
for the said loss to the tenant. G
Partly allowing the appeals, the Court
HELD: 1. From the tenor of the statement of the counsel
of the Land-lord, made before the High Court on behalf of the
H
565
566 SUPREME COURT REPORTS [2020] 1 S.C.R.
A appellant (Land-lord), it is obvious that it is an unequivocal
statement made by the counsel engaged by the appellant (land-
lord) 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
B
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
C 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]
D
2. The appellant is obliged to abide by the unequivocal
statement made before the Court to re-induct the respondent-
tenant 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
E 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
F 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,
G 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]
H
OM PRAKASH v. SURESH KUMAR 567
4. However, from the subsequent affidavits filed before this A
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
B
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 C
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 D
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 E
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 F
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 G
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.
H
568 SUPREME COURT REPORTS [2020] 1 S.C.R.
A 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/
B
- 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
C 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]
D 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
E 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
F 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
G 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.
H
OM PRAKASH v. SURESH KUMAR 569
Tamil Nadu Electricity Board & Anr. v. Raju Reddiar & A
Anr. (1997) 9 SCC 736 : [1996] 10 Suppl. SCR 915
– referred to.
Case Law Reference
[2015] 4 SCR 616 distinguished Para 5
B
[1996] 10 Suppl. SCR 915 referred to Para 11
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 833-
834 of 2020.
From the Judgment and Order dated 12.05.2016 of the High Court
of Himachal Pradesh at Shimla in C.R. No. 227 of 2015 and Order C
dated 24.08.2016 in Review Petition No. 65 of 2016.
M. C. Dhingra, Gaurav Dhingra, Ms. Kandra Indira, Abhishek,
Ms. Deepthi Raj, Advs. for the Appellant.
Ms. Sharmila Upadhyay, Sarvjit Pratap Singh, Advs. for the
D
Respondent.
The Judgment of the Court was delivered by
A. M. KHANWILKAR, J.
1. Leave granted.
E
2. These appeals are directed against the judgments and orders
dated 12.5.2016 in Civil Revision No. 227/2015 and 24.8.2016 in Review
Petition No. 65/2016 passed by the High Court of Himachal Pradesh at
Shimla (for short, ‘the High Court’).
3. The facts very briefly are that the appellant being owner of the F
premises having three rooms with one veranda, admeasuring 36.53
square meters situated in Ward No. 6, M.C. Area, near Sabji Mandi, Up
Mahal, Hamirpur, Himachal Pradesh (for short, “the suit premises”),
had inducted the father of the respondent as its monthly tenant in the
year 1969 to use it for non-residential purpose and the respondent was
in occupation thereof when the appellant filed eviction proceedings before G
the Rent Controller for possession. The respondent, at the relevant
time, was carrying on business as cloth merchant in the suit premises.
The Rent Controller vide order dated 28.11.2013 decreed the suit directing
eviction of the respondent from the suit premises on the ground that the
suit premises was required bonafide by the appellant for the purpose of
H
570 SUPREME COURT REPORTS [2020] 1 S.C.R.
A reconstruction, which could not be carried out without vacating the same
followed by demolition thereof. That decree was confirmed by the
appellate Court, against which civil revision being C.R. No. 227/2015
came to be filed before the High Court. During the hearing of the said
petition, the learned counsel for the respondent-tenant had urged before
the High Court that the tenant was ready and willing to handover
B
possession of the suit premises subject to the landlord (present appellant)
agreeing to re-induct him as tenant in equivalent area occupied by him in
the suit building. In response to the said submission, the learned counsel
appearing for the present appellant, unequivocally, stated before the High
Court that the appellant was not averse to the offer so made by the
C tenant. That statement has been recorded by the High Court and on
that basis the civil revision came to be disposed of in the following
words: -
“5. Mr. R.K. Sharma, learned Senior Advocate assisted by
Ms. Anita Pramar, Advocate is not averse to the offer so
D made on behalf of the petitioner-tenant. It is stated at the
Bar that construction work will be completed within one year
from the date i.e. 30th October, 2016, when the possession of the
demised premises is to be handed over to the respondent-landlord.
Mr. Sharma further submits that the petitioner-tenant will
be re-inducted in equal area in the newly constructed
E building within one month i.e. on or before 30th November,
2017 from the date of completion of the construction work
i.e. 31.10.2017. Mr. Sharma also agreed to the fixation of rent
on re-induction of the petitioner-tenant at the market rates
prevalent in the area where the demised premises situate by the
F Rent Controller concerned.
6. In view of the above, nothing is left to be adjudicated
upon in this petition on merits. The same, therefore, is
disposed of with a direction to the petitioner-tenant to hand
over the vacant possession of the demised premises to
G respondent-landlord on or before 31 st October, 2016. He
shall pay the use and occupation charges till 31st October,
2016 at the rates, he is paying at present. On his failure to
hand over the vacant possession by the aforesaid date, the
respondent-landlord shall have the right to execute the
order of eviction and in that event the petitioner-tenant
H
OM PRAKASH v. SURESH KUMAR 571
[A. M. KHANWILKAR, J.]
shall also have no right to claim his re-induction in the newly A
constructed building. There shall be a direction to the
respondent-landlord to complete the construction on the
spot on or before 31 st October, 2017. He shall re-induct
the petitioner-tenant in equal area i.e. 36.53 square meters,
presently occupied by him in the demised premises within
B
one month thereafter i.e. by 30th November, 2017. On the
failure of the respondent-landlord to compete the
construction within the stipulated period and re-induction
of the petitioner-tenant in the newly constructed
building, he shall be liable to pay the damages at the rate of
Rs.1,000/- per day from 1.12.2017 onwards till he is re- C
inducted as tenant.
7. As regards the rent on re-induction, the parties shall file a joint
application for the purpose in the Court of learned Rent Controller
at Hamirpur. The application so filed shall be decided by learned
Rent Controller, in accordance with law and taking into D
consideration the rates prevalent in the area where the demised
premises situate, after affording an opportunity of being heard to
the parties on both sides. Pending application(s), if any, shall also
stand disposed of.”
(emphasis supplied) E
4. The appellant changed his Advocate and then filed review
petition before the High Court being Review Petition No. 65/2016,
asserting that he had never instructed his counsel to make such statement
before the Court regarding re-induction of the respondent-tenant in the
newly constructed shops. The said review petition came to be dismissed F
vide order dated 24.8.2016. Consequently, both these decisions (dated
12.5.2016 and 24.8.2016) passed by the High Court are subject matter
of challenge in the present appeals.
5. The principal argument of the appellant is that the statement
made by his counsel before the High Court was not binding on him, as it G
was made without his instructions. For that, reliance has been placed on
the decision of this Court in Himalayan Coop. Group Housing Society
vs. Balwan Singh & Ors.1.
1
(2015) 7 SCC 373
H
572 SUPREME COURT REPORTS [2020] 1 S.C.R.
A 6. When the special leave petitions were listed for admission on
9.1.2017, this Court deferred the hearing by passing the following
order: -
“On a query as to whether the petitioner would be in a position
still to spare a small room for the respondent, learned counsel
B prays for some time to produce a plan of the shop.
List the matter after three weeks.”
(emphasis supplied)
The matter was then listed on 15.2.2017 when the Court noted
C the submission of the learned counsel for the appellant and issued notice
to the respondent. That order reads thus: -
“Delay condoned.
The learned counsel for the petitioner submits that the
respondent is not even permitting the petitioner to demolish the
D building and go for construction.
In view of the above submission, issue notice, returnable in
four weeks.”
7. Thereafter, the matter was listed on 14.11.2017 when the Court
after noting the submissions of the parties, passed the following order:-
E
“The petitioner is permitted to complete the construction of
the building.
There shall be no obstruction whatsoever caused by the
respondent or his men for doing the construction work. The
F respondent shall also not cause any obstruction for the ingress
and egress of the petitioner.
The petitioner is directed to complete the construction
within four months from today.
List on 1.5.2018, when the parties are directed to be present
G before this Court.
In view of the order, as above, the petitioner shall not
be liable to pay the amount of Rs.1000/ per day, as ordered
by the High Court for the delayed construction.
H
OM PRAKASH v. SURESH KUMAR 573
[A. M. KHANWILKAR, J.]
We make it clear that before the petitioner making the A
actual use of the premises, permission shall be sought from
this Court so that this Court may pass appropriate orders
to protect the interests of the respondent as well.”
(emphasis supplied)
It has come on record that during the pendency of these cases, B
the appellant transferred the abutting plot being khasra No. 778 to his
son on 14.3.2018.
8. Be that as it may, in view of the deliberations in Court, the
learned counsel for the appellant sought time to take instructions, as is
noted in the order dated 21.8.2019 which reads thus: - C
“List these matters after three weeks to enable the counsel
for the petitioner to get instructions in the matter.”
(emphasis supplied)
Again on 22.11.2019, the matter was deliberated upon, whereafter D
the learned counsel appearing for the respondent took time to file affidavit
of a qualified Architect to show that the building constructed after
demolition of the suit premises can be provided with access to the upper
floors (first and second floors) from outside the building. That has been
recorded in the order dated 22.11.2019, which reads thus: -
E
“Learned counsel for the sole respondent prays for time to
place on record affidavit of a qualified Architect indicating therein
the feasibility of providing access to first and second floor of the
building from outside the building.
List the matters on 5th December, 2019.” F
Pursuant to the liberty given, the respondent has filed an affidavit
of one Ram Swaroop, son of Mr. Prithvi Chand, a qualified Architect,
accompanied by the relevant sketches/plan(s) and photographs of the
building from outside, as well as, floor-wise in support of the stand taken
earlier that the appellant can provide access to the upper floors through G
the staircase outside the newly constructed building, without disturbing
the possession of the respondent on the ground floor thereat. The
appellant, however, by filing affidavit dated 20.1.2020, has pointed out
that the staircase already constructed is on the rear side of the building
within the premises (being triplex house) and it is not possible to provide
H
574 SUPREME COURT REPORTS [2020] 1 S.C.R.
A additional access to the first and second floors from outside the building.
The appellant is also placing reliance on the photographs in support of
this submission.
9. The moot question is: whether the appellant should be bound by
the statement made by his counsel before the High Court that the
B respondent-tenant will be re-inducted in equal area in the newly
constructed building within one month i.e. on or before 30.11.2017 from
the date of completion of the construction work i.e. 31.10.2017. From
the tenor of the statement made before the High Court on behalf of the
appellant, it is obvious that it is an unequivocal statement made by the
counsel engaged by the appellant to espouse his (appellant’s) cause
C 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
D 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.
10. Considering the above, the appellant cannot now be allowed
E 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. In the peculiar facts of this case, the decision
of this Court in Himalayan Coop. Group Housing Society (supra) will
be of no avail to the appellant. Inasmuch as, it is not a case where the
counsel, who made the statement was not engaged by the appellant
F before the High Court. The engagement was in respect of eviction
proceedings and the statement was in relation to the commitment of the
appellant qua the subject matter thereof and being an unequivocal
statement, it will be binding on the appellant. In any case, even this
Court showed indulgence to the appellant on the basis of impression
G given to this Court about the possibility of at least sparing a small room
for the respondent, which was the basis for issuing notice to the
respondent, as is evident from the orders dated 9.1.2017 and 15.2.2017.
11. Reverting to the exposition in paragraph 22 of the reported
decision, the same reads thus: -
H
OM PRAKASH v. SURESH KUMAR 575
[A. M. KHANWILKAR, J.]
“22. Apart from the above, in our view lawyers are perceived to A
be their client’s agents. The law of agency may not strictly apply
to the client-lawyer’s relationship as lawyers or agents, lawyers
have certain authority and certain duties. Because lawyers are
also fiduciaries, their duties will sometimes be more demanding
than those imposed on other agents. The authority-agency status
B
affords the lawyers to act for the client on the subject-matter
of the retainer. One of the most basic principles of the lawyer-
client relationship is that lawyers owe fiduciary duties to their
clients. As part of those duties, lawyers assume all the traditional
duties that agents owe to their principals and, thus, have to respect
the client’s autonomy to make decisions at a minimum, as to the C
objectives of the representation. Thus, according to generally
accepted notions of professional responsibility, lawyers should
follow the client’s instructions rather than substitute their judgment
for that of the client. The law is now well settled that a lawyer
must be specifically authorised to settle and compromise a claim,
D
that merely on the basis of his employment he has no implied or
ostensible authority to bind his client to a compromise/settlement.
To put it alternatively that a lawyer by virtue of retention, has the
authority to choose the means for achieving the client’s legal goal,
while the client has the right to decide on what the goal will be. If
the decision in question falls within those that clearly belong to the E
client, the lawyer’s conduct in failing to consult the client or in
making the decision for the client, is more likely to constitute
ineffective assistance of counsel.”
Our attention was also invited to paragraph 31 of the same decision,
which reads thus: - F
“31. Therefore, it is the solemn duty of an advocate not to
transgress the authority conferred on him by the client. It is always
better to seek appropriate instructions from the client or his
authorised agent before making any concession which may, directly
or remotely, affect the rightful legal right of the client. The advocate G
represents the client before the court and conducts proceedings
on behalf of the client. He is the only link between the court and
the client. Therefore his responsibility is onerous. He is expected
to follow the instructions of his client rather than substitute his
judgment.”
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576 SUPREME COURT REPORTS [2020] 1 S.C.R.
A In addition, we may usefully refer to paragraph 32 of the said
decision, which reads thus: -
“32. Generally, admissions of fact made by a counsel are
binding upon their principals as long as they are
unequivocal; where, however, doubt exists as to a purported
B admission, the court should be wary to accept such
admissions until and unless the counsel or the advocate is
authorised by his principal to make such admissions.
Furthermore, a client is not bound by a statement or admission
which he or his lawyer was not authorised to make. A lawyer
generally has no implied or apparent authority to make an
C admission or statement which would directly surrender or
conclude the substantial legal rights of the client unless
such an admission or statement is clearly a proper step in
accomplishing the purpose for which the lawyer was
employed. We hasten to add neither the client nor the court is
D bound by the lawyer’s statements or admissions as to matters of
law or legal conclusions. Thus, according to generally accepted
notions of professional responsibility, lawyers should follow the
client’s instructions rather than substitute their judgment for that
of the client. We may add that in some cases, lawyers can
make decisions without consulting the client. While in
E others, the decision is reserved for the client. It is often
said that the lawyer can make decisions as to tactics without
consulting the client, while the client has a right to make
decisions that can affect his rights.”
(emphasis supplied)
F
As aforesaid, in the present case, the counsel who was engaged
by the appellant and had appeared for him before the High Court did not,
stricto sensu, transgress the authority conferred on him by the appellant.
Notably, the appellant filed review petition before the High Court by
engaging another Advocate for reasons best known to him. This Court
G has deprecated the conduct of such petitioners and has opined that such
review petitions should not be encouraged and need to be dismissed, as
expounded in Tamil Nadu Electricity Board & Anr. vs. Raju Reddiar
& Anr.2 Not only that, even before this Court, the appellant, advisedly,
2
(1997) 9 SCC 736
H
OM PRAKASH v. SURESH KUMAR 577
[A. M. KHANWILKAR, J.]
showed willingness to explore possibility of settlement as is evident from A
different orders recorded above. 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.
B
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. C
12. The argument of the appellant that the respondent cannot
take benefit of amendment to Section 14(3)(c) of the Himachal Pradesh
Urban Rent Control Act, 1987 in the form of Himachal Pradesh Rent
Control (Amendment) Act, 2008, will be of no avail to the fact situation
of the present case. For, in this case, the appellant is obliged to abide by D
the unequivocal statement made before the Court to re-induct the
respondent-tenant in the newly constructed building and to provide him
same area which was being used by him earlier, namely, 36.53 square
meters. 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 E
need to be bound by the same.
13. 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 F
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 us, however, depict that an opening (exit door) is provided
on the rear side of the building, on the ground floor, which opens towards G
plot No. 778 (which the appellant had transferred in favour of his son
during the pendency of these appeals). In other words, it is possible to
provide access to the upper floors from the rear side of the building,
which also opens on the road (as a car parked at that entrance can be
seen in the photographs) or portion of plot being khasra No. 778 (now
H
578 SUPREME COURT REPORTS [2020] 1 S.C.R.
A owned by the appellant’s son). The fact remains that the staircase has
been erected in such a manner, for the reasons best known to the
appellant, that the access to first and second floors would be possible
only through the ground floor premises, as it is inside the building and not
outside the building.
B 14. At the conclusion of the proceedings, the learned 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. The proposed ground floor plan, as submitted
C
by the appellant through counsel is as follows: -
D
E
F
G
H
OM PRAKASH v. SURESH KUMAR 579
[A. M. KHANWILKAR, J.]
15. This offer has been turned down by the respondent, firstly A
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. The width being
just 2.25 meters (7.382 feet) will not be enough to accommodate sale
B
counter and stock storage space; and moreso leaving no space for free
movement of customers/sales persons.
16. After considering the arguments of both parties, we are of the
considered opinion that 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 C
ground floor premises, where the staircase has been erected as is shown
in the plan. In other words, instead of width of 2.25 meters, the premises
to be given to the respondent will have the entire frontage width of 3.73
meters with exclusive access from the front side. The depth or the
length of the premises would be 7.57 meters as indicated in the plan. D
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, as is noticed from the plan/photograph(s). 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 E
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 meter3) for the concerned locality, that F
is to say, 8.2939 x 8910], by way of compensation/damages.
17. The arrangement directed by us 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 G
to the respondent-tenant and optimize the utility of the premises to be
3
Per Notification Nos. HMR/DCH/DRA/Circle Rates-2019-20: 1517-37 dt. 30 th March,
2019 and HMR/DCH/DRA/Circle Rates-2019-20: 247-63 dt. 31 st March, 2018 issued
by the District Collector, Hamirpur, District Hamirpur, H.P. H
580 SUPREME COURT REPORTS [2020] 1 S.C.R.
A used by him for non-residential purpose after re-induction and also
adequately compensate him for the loss of area.
18. We may note that 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
B respondent as directed by the High Court, which, if given effect to, would
be substantial amount. In other words, to do substantial and complete
justice to the parties, we have modified the impugned decree to the
above extent. In terms of this modified decree, the appellant shall
forthwith erect a brick wall beyond 7.57 meters from the front door, so
as to divide the ground floor premises into two parts as indicated above.
C We direct the appellant to re-induct the respondent in the front portion,
admeasuring 3.73 meters x 7.57 meters and the leftover rear portion
can be used by the appellant for providing access to upper floors (first
and second floors) through the staircase already erected in that area.
19. We, accordingly, modify the order/decree passed by the High
D Court vide impugned judgment as under: -
(i) The appellant shall construct the brick wall separating ground
floor premises in two portions in the manner mentioned
hitherto within six weeks from today and handover the front
portion premises to the respondent, whereafter the
E respondent can use the same for non-residential purpose on
monthly rent basis.
(ii) In addition, the appellant shall pay the amount of
Rs.74,000/- (Rupees seventy four thousand only) towards
compensation/damages and until such payment is made, the
F appellant shall desist from using the first and second floor
premises for any purpose.
(iii) We appoint the Chief Administrative Officer, District Court,
Hamirpur as receiver in respect of the newly constructed
building situated at Ward No. 6, M.C. Area, near Sabji Mandi,
G Up Mahal, Hamirpur, Himachal Pradesh owned by the
appellant - Om Prakash, to ensure proper implementation
of the above terms and submit compliance report to this
Court.
H
OM PRAKASH v. SURESH KUMAR 581
[A. M. KHANWILKAR, J.]
(iv) In case the appellant commits any breach of the condition A
of using the first and second floors until delivery of
possession and payment of damages/compensation, the
Chief Administrative Officer, District Court, Hamirpur shall
report that fact to this Court forthwith and not later than
one week from the knowledge thereof.
B
(v) 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 at Hamirpur. The
Rent Controller shall decide the same expeditiously and not
later than six months from the date of presentation, in
accordance with law after giving fair opportunity to both C
parties in that regard.
20. The appeals are partly allowed and the impugned judgments/
decree stand modified in the aforementioned terms. There shall be no
order as to costs. Pending interlocutory applications, if any, shall stand
disposed of. D
Kalpana K. Tripathy Appeals partly allowed.
E
F
G
H
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