Y.P. Nargotra, J.
1. These six Civil Ist Appeals and three Cross Appeals arise out of the common judgment of the learned District Judge Jammu dated 25.9.2002 whereby six Civil suits filed by the respondent against the appellant have been decreed.
2. Respondent-plaintiff, Kuldip Raj Gupta, is the owner of the shop situated at City Chowk Jammu. He mortgaged the said shop with possession to the appellant-defendant, Yog Raj in April 1973 through a registered mortgage deed in consideration of Rs. 5000/- for a period of three years. The rental of the shop was fixed at Rs. 100/-P.M. to be paid by the defendant-appellant which was, however, equated with interest computed at Rs. 1000/-monthly to be accrued to the mortgagor-plaintiff on the said amount of Rs. 5000/-. In this way actually nothing was to be paid by the appellant to the respondent by way of rent of the shop during the period of mortgage. On 3.11.1993 the respondent filed a suit for redemption and possession of the shop against the appellant. The suit was compromised on 2.12.1983 in terms whereof it was decreed. Learned Sub-Registrar Jammu by his judgment dated 2.12.1983 passed the decree in the suit in the following terms:-
"The defendant shall deliver the possession of the suit shop to the plaintiff on 1.1.1989 as the property stands redeemed. The defendant shall pay compensation for use and occupation of the suit shop at such rate as may be fixed by the plaintiff until the possession of the shop is so delivered to the plaintiff. The parties shall bear their own costs."
3. The appellant did not hand over the possession back to the respondent in terms of the decree on 1.1.1989; the respondent filed an execution application seeking execution of the decree. However the appellant filed Civil Suit No. 294/1989 in this court in October 1989, challenging the compromise decree on the ground that the same is null and void and without jurisdiction, inoperative, inexecutable and not binding upon the plaintiff. The plaintiff also claimed consequential relief prohibitory in nature for restraining the respondent herein from executing the said decree and interfering into the peaceful possession of the plaintiff in respect of the said shop in any manner whatsoever. On the said suit being entertained and admitted this court ordered for the stay of the execution of the decree impugned dated 2.12.1983. The respondent herein filed his objections to the application of the appellant for grant of interim relief i.e. CMP No. 559/1989. A learned Single Judge of this court after hearing the parties by order dated 27.12.1989 dismissed the application of the appellant for grant of temporary injunction and held the respondent entitled to execute the decree impugned. Aggrieved by the order of the learned Single Judge the appellant went in appeal before the Division Bench and the Hon'ble Division Bench also dismissed the appeal. The appellant then approached the Supreme court by way of Civil Appeal No. 1284/92 and the Hon'ble Supreme court by its order dated 8.9.1994 disposed of the appeal as follows:-
"In view of the judgment in Dalpat Kumar and Anr. v. Prahlad Singh and Ors., (1992(1)SCC 719), the question whether the execution of a decree will be an injury within the meaning of Order 39 Rules 1 and 2 of Civil Procedure Code is no longer in survival. Therefore, we set aside the impugned judgment. We make it clear that we are not inclined to enter into a discussion on merits since admittedly Civil Suit No. 294/89 is pending before the J&K High Court. It is open to both the parties to urge all contentions available to them in the said suit.
We request the High Court to dispose of the suit at a very expeditious level preferably within six months from today. The suit shall be disposed of without being uninfluenced by the observations contained in the impugned judgment. Till the disposal of the suit, status quo as on today shall prevail. The appeal is ordered in the above terms."
4. The suit of the appellant herein was however, transferred to the court of learned District Judge Jammu who dismissed the same. The dismissal of the suit was challenged by the appellant in appeal before this court and the same was dismissed by this court also. The appellant filed an appeal against the judgment of the learned Single Judge of this court on 30.3,2001 before the Division Bench and the Hon'ble Division Bench also dismissed the same on 30.7.2001. Aggrieved by the dismissal of the appeal by the Division Bench the appellant preferred an SLP before the Supreme Court which was also dismissed in September 2001. After dismissal of the SLP the appellant restored the possession of the shop back to the respondent on 18/19.9.2001.
The respondent filed six suits against the appellant for claiming compensation. Learned District Judge Jammu by his common judgment and decree dated 25.9.2002 decreed the suits in favour of the respondent. The details of the suits, compensation claimed and period etc. are as follows:-
Suit No. Rate Rs: From To Decree Rs:. 31(per day) 500/- 1.10.1990 10.3.1992. 1,04,000/- 38 (per day) 350/- 11.3.1992 21.2.1994 1,40,400/- 25(per day) 500/- 22.2.1994 4.10.1994 44,200/- 28(per day) 500/- 5.10.1994 6.8.1996 1,32,600/- 83(per day) 500/- 1.4.1997 31.3.2000 2,16,000/- 19 6000 Upto 1990. 1,30,500/-
6. Aggrieved by the common judgment and decree of the learned District Judge the appellant has filed these six appeals. The respondent also filed three cross appeal for claiming that his suits should have been decreed at the rates of compensation, which he had claimed in his suits.
7. The period for which the plaintiff respondent has claimed compensation can be divided into two parts. The first part pertains to the period prior to 1.1.1989 which was the date fixed by the compromise decree for handing over of the possession of the shop to the respondent by the appellant. The possession of the appellant during this period was permissive and was thus not unauthorized. Learned District Judge by his judgment impugned granted the rent of the shop at the rate of Rs. 300/-PM only describing it to be the agreed rent. Learned counsel for the appellant submits that he is ready and prepared to pay the same at the said rate. However, it is not acceptable to the counsel for the respondent. He contends that it should be at the market rate, which according to him was Rs. 6000/- PM and therefore, has filed the cross-appeal.
8. The respondent Mr. Gupta argues that learned District Judge has fixed the rate at Rs. 300/- a month on the assumption that it was an 'agreed rent'. According to him in the proceedings of the suit he had never agreed to the said rate of rent. Mr. Jalali learned counsel for the appellant accepts the claim of Mr. Gupta that he had not agreed to the said rate. According to him it was the appellant who in fact had agreed to pay the rent at that rate in his pleadings. He submits that even otherwise also the rent at that rate being fair in the circumstances of the case, he is prepared to pay the same without questioning the entitlement of the respondent-plaintiff to maintain the suit in this behalf.
9. Since the respondent has filed the cross-appeal in this behalf, therefore, it is necessary to determine the question whether the appellant is liable to pay any rent/compensation for this part of the period i.e. prior to 1.1.1989. Admittedly possession of the defendant was permissive one till 1.1.1989 in terms of the compromise decree, the decree does not contain any stipulation about payment of any rent till 1.1.1989, the date stipulated for handing over the possession. The absence of the stipulation in this regard in the decree is indicative of the fact that by implication the respondent had agreed to forego the rent if any was payable by the appellant in lieu of his agreeing to vacate the shop on 1.1.1989. And after having foregone an available relief no separate suit could be maintained by the respondent. Be it so even if it is assumed that suit could be maintained by the respondent, he would be entitled to the rent on same rate at which he was entitled at the time of passing of the decree on 2.12.1983. Till then he was mortgager and the rent under the mortgage deed was Rs. 100/- PM only. As the appellant was permitted to continue to be in possession till 1.1.1989 by the respondent without any specific stipulation about the rate of rent it can be presumed that he agreed and allowed the appellant to continue on the same terms. Be it so the appellant agrees to pay the same at the rate ordered by the learned District Judge. The finding returned by the learned District Judge is therefore, upheld and cross appeal No. 11/2003 is dismissed.
10. As regards the 2nd part of the period of possession of the appellant over the suit shop is concerned i.e.. with effect from 1.1.1989 to Sept.2001,the respondent would under law be entitled to claim compensation if he establishes that possession of the appellant was unauthorized.
11. The case of the respondent in terms of the decree passed in his suit for redemption on 2.12.1983 in C.S.No. 515 was that the appellant was under obligation to hand over the possession of the shop on 1.1.1989 and because he did not do so on 1.1.1989 therefore his possession became unauthorized and so the respondent became entitled to compensation.
12. As regards the period commencing from 1.1.1989 to October 1989 is concerned the possession of the appellant no doubt was unauthorized, the dispute however is with regard to the period commencing from Nov.1989 to Sept.2001 for the reason that admittedly the possession of the appellant was on the strength of court orders. As already said when the appellant's suit was admitted in this court, the execution of the decree dated 2.12.1983 was stayed. The stay was however vacated but ultimately by the order of Hon'ble Supreme court was restored by an order of status quo, which continued to remain in force till Sept.2001 when the matter came to be finally decided by the dismissal of the SLP and consequently the appellant handed back the possession of the shop to the respondent. No relief by way of compensation for use and occupation or by way of rent for the period of litigation was claimed by the respondent nor the same was granted to him either by the trial court or by the appellate courts. This being the position the question arising for consideration is; can the respondent maintain an independent suit?
13. Mr. Gupta, the respondent, has argued that the suit is maintainable as according to him in considering and granting interim relief no rights of the parties are adjudicated upon and decided. He submits that if a party against whom the injunction is granted does not file an application for damages Under Section 95 C.P.C. before the court, which granted the injunction, independent suit for same is not barred. For support he relies upon a case titled Basamma and Ors. v. Peerapa, reported in AIR 1982 Karnatka 9. Per contra Mr. Jalali learned counsel for the appellant argues that fresh suit would not lie.
Section 95 of the C.P.C. reads:-
"95-Compensation for obtaining arrest, attachment or injunction on insufficient grounds (1) where in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section.
(a) it appears to the court that such arrest, attachment or injunction was applied for on insufficient grounds, or
(b) the suit of the plaintiff fails and it appears to the court that there was no reasonable or probable ground for instituting the same, the defendant may apply to the court and the court may, upon such application, award against the plaintiff by its order such amount, not exceeding one thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury including injury to reputation caused to him.
Provided that a court shall not award, under this section, an amount exceeding the limits of its pecuniary jurisdiction.
(2) An order determining any such application shall bar any suit for compensation in respect of such arrest, attachment or injunction."
14. From the bare reading of the section it is manifest that where in any suit injunction has been granted and it appears to the court that such injunction was applied for on insufficient grounds or the suit of the plaintiff fails and it appears to the court that there was no reasonable or probable ground for instituting the suit, the defendant is entitled to claim compensation and court may grant the reasonable compensation to the defendant not exceeding one thousand rupees and when such order is passed the independent suit shall be barred but not otherwise. The section provides for a summary remedy to an injured defendant and appears to be an optional remedy. Such defendant may choose to file an independent suit instead of filing an application Under Section 95 CPC.
In AIR 1982 Karnataka 9 (supra) it was held:-
"The remedy provided for by Section 95 is a special remedy. In an application under the section the defendant has only to establish the ingredients referred to in that section and no more. Sub-section (2) of Section 95 bars a person who makes an application from instituting a suit for the same purpose. But a person who does not make an application under Section 95(1) can also institute a suit for damages for the same purpose In such a suit the action is founded on what is called as abuse of the process of the court or malicious prosecution in which the plaintiff has to allege and prove that the abuse of the process of the court was also malicious. But in an action for trespass, the plaintiff is neither required to allege malice nor prove the same and he has only to allege and prove that he was in possession of the immovable property and the defendant has disturbed his possession."
15. Therefore suit for compensation for having obtained the injunction on insufficient ground at the behest of the injured defendant against whom the opposite party had obtained injunction is maintainable. However, in such suit it is necessary for the plaintiff to prove that there was malice on the part of the defendant who had obtained injunction on insufficient grounds. In the present case the plaintiff-respondent has not pleaded malice or insufficient grounds for instituting the suit for claiming compensation from the defendant/appellant. On the dates of institution of the suits the suit of the appellant was still pending adjudication and came to be finally decided in September 2001. Till then the respondent was not entitled to say that the appellant had obtained the order of injunction for staying the execution of the decree on insufficient grounds. The respondent had filed the suits for claiming compensation on the strength of the decree dated 2.12.1983. The decree had become unexecutable because of stay order granted by the court and therefore possession of the appellant over the suit shop was not rendered unauthorized. As the decree had become unexecutable, the continuance of the possession had to be deemed to be on the same terms as it was before the passing of the decree. That is to say the appellant was relegated to the position of mortgagee and the respondent to the position of the mortgager and therefore, the mortgager was only entitled to the same rent, which he would have got under the mortgage. However, as already said in view of the stand taken by the appellant in respect of the pre-decree period of first part the respondent shall be entitled to rent at the rate of Rs. 300/-PM only, whatever the market value for user of the property may be.
16. Learned trial court appears to have missed this aspect of the case and swayed to grant the compensation for use and occupation for the aforesaid period at the rate of Rs. 6000/-PM taking it to be the market rate. Whatever may have been the actual market rate, the respondent in the circumstances of the case could not have been held entitled to the rent/compensation at market rate. The finding of the trial court cannot, therefore, be sustained.
17. Now let us deal with the period between 1.1.1989 to September, 1989 This is the period for which there was no stay of the decree. The continuance of the appellant in possession was, therefore, unauthorized. The decree entitled the respondent to compensation from the appellant at the rate of his choice. The respondent in suit No. 19/90 claimed compensation at the rate of Rs. 6000/-PM.
18. The suit was contested by the defendants inter-alia on the ground that suit is not maintainable in view of the provision contained in Section 47 of C.P.C. as the question of payment of compensation arises out of the execution, discharge and satisfaction of the decree and therefore fresh suit is barred.
19. The case of the plaintiff/respondent before the trial court was that 2nd part of the decree dated 2.12.1983 is only declaratory and therefore, fresh suit was not barred.
20. Learned trial court in its judgment impugned has held the 2nd part of the decree which entitles the plaintiff to compensation from defendant at the such rate as may be fixed by the plaintiff himself until the possession is delivered to the plaintiff is a future right and is thus separable from the first part of the decree under which the defendant was to hand over possession to the plaintiff on 1.1.1989 and therefore is a declaratory decree in nature. According to learned trial court independent suit for enforcing the 2nd part of the decree was maintainable.
21. The vital question arising thus for determination is whether the 2nd part of the compromise decree dated 2.12.1983 passed by the learned Sub-Registrar Jammu is an executable decree or is a declaratory decree?
Section 47 C.P.C. reads as under:-
"47-Questions to be determined by the court executing decree-(1) All questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing decree and not by a separate suit."
22. From the bare perusal of the section it clearly transpires that the section pre-supposes the existence of a decree, which is capable of execution. It does not apply to the cases where decree sought to be executed is nullity or declaratory in character. Declaratory decree only declares the rights of the parties, which can only be enforced by a suit. In order to find out whether the 2nd part of the decree in the instant case is declaratory, it would be beneficial to recapitulate the same. It says:-
"The defendant shall deliver the possession of the suit shop to the plaintiff on 1.1.1989 as the property stands redeemed. The defendant shall pay compensation for use and occupation of the suit shop at such rate as may be fixed by the plaintiff until possession is so delivered to the plaintiff. The parties shall bear their own costs."
23. Under this compromise decree possession of the suit shop was to be delivered on 1.1.1989, And in case the possession was not delivered on 1.1.1989 and delivered on a later date, for the intervening period decree directs the defendant to pay the compensation for use and occupation to the plaintiff at such rate as may be fixed by the plaintiff.
24. The plaintiff-respondent contends that decree only declares the right of the plaintiff to recover compensation from the defendant at a rate to be fixed by him. The amount to be recovered is not determined. The rate at which it was to be fixed has not been specified. According to Mr. Gupta the decree is thus declaratory only and therefore independent suit is maintainable. For support he relies on the case Rajindra Narain v. Bajranji AIR 1983 All 364 wherein it has been held as follows:-
"The decree of the trial court in suit No. 4 of 1942 was for possession by removal of the cattle trough etc. and restoration of land to its original state. The appellate court held in that case that probably the Kolhu and the cattle trough lay within the area of one biswa 6 biswansis of the land to the west of the land AB on the map which is Ext.3 in the present suit. The said one Biswa 5 Bisansis of land had to be marked off by measurement and the kolhu and the cattle trough would be required to be removed only if they fell in the remaining western part of the land of plot No. 310. The observation of the appellate court in that suit that they probably lay within that area of one Biswa and 6 Biswansis to the immediate west of the land AB on the map which is Ext.3 in the present suit, and thus were not liable to be removed, is entitled to great weight, and the evidence of the plaintiff in the present suit has been that of measurements got done through an Amin privately the plaintiffs part of the land was to the west of the Imli tree and the well. The well had been found by the appellate court in that case to be the property of the plaintiff's predecessors in interest and situate on the land belonging to him. The result was that on the plaintiff's own showing the decree passed in the earlier suit was inexecutable in as much as the kolhu and the cattle trough was not liable to be removed. And if there was no question of their removal, there could be no question of delivery of possession, and that the decree in the earlier suit operated as a decree of declaration to the effect that western portion of one Biswan 6 Biswansis of the land to the west of the land AB on the map which is Ext.3 in the present suit belonged to the present defendant's predecessors in interest and that the remaining western part of plot No. 310 was the property of the plaintiffs predecessors in interest.
There was thus no question of taking any step for execution of the decree in suit No. 4 of 1942.The plaintiffs evidence was that after the decree in the earlier suit measurements had been got done by an Amin privately and he had pointed out that the land to the east of the Imli tree and the well belonged to the defendant's [predecessors in interest while that to the west of it belonged to the plaintiffs predecessors in interest and that the plaintiffs predecessors in interest had entered into possession accordingly. This was in consonance with ordinary course of business and the two courts below, in my opinion acted illegally in not appraising the evidence in the light of the presumption arising under Section 114 Evidence Act by having regard to the common course of business in relation to the facts of the case. I am therefore, of the view that the present suit was not barred by anything contained in Section 47 Civil P.C. and it is impossible to say that the defendant had prescribed title to the land by adverse possession.. I have only to add that the decree in the earlier suit became final on 11.10.1944, and the present suit was filed on 4.3.1966 within 123 years from that date."
25. The judgment relied upon by Mr. Gupta is distinguishable and as such cannot be applied to the facts of the present case as in the said decree land measuring 1 Bisa and 6 bisnwsis had to be marked off by measurement and the kolhu and the cattle trough would be require to be removed only if they fell in the remaining western part of the land of plot No. 310. Such being the position the decree was found to be declaratory.
26. Mr. Jalali learned counsel for the appellant contends that in the present case the decree is not declaratory but is conclusive between the parties being based upon the compromise.
27. The decree in question came to be passed upon compromise. By the compromise it was agreed upon between the parties that the defendant shall vacate the shop on 1.1.1989 and in case he fails to do so then he shall pay compensation for use and occupation until he delivered the possession of the shop. The rate at which he would have to pay the compensation was left to be fixed at the choice of the plaintiff. This decree in my considered opinion cannot be called a declaratory decree simply because it pertained to future period from the date fixed for restoration of the possession. A declaratory decree is that decree, which instead of determining the dispute between the parties determines only the right of the parties and leaves open something to be proved and determined for entitling a party a relief claimed against the opposite party. In terms of the decree in issue the date of handing over the possession of the suit shop stood fixed as 1.1.1989. In case the possession was not delivered the plaintiff was made entitled to recover compensation at any rate of his choice from the defendant. Therefore, for seeking recovery of such compensation the plaintiff was not to prove that he is entitled to claim compensation from the defendant nor he was required to prove at what rate he was entitled to claim such compensation. He was simply to seek execution of the decree as it was by putting his own value of the rate at which he was to seek recovery of the compensation. It is only in his execution the executing court under Section 47 CPC could decide the question of executability of the decree. The question of recovery of compensation under the terms of the decree is a question relating to the execution, discharge or satisfaction of the decree, a separate suit for recovery of compensation, therefore, is not maintainable. In my view learned District Judge erred in holding the decree dated 2.12.1983 to be a declaratory decree. The suit of the plaintiff filed for this part of the 2nd part of the aforesaid period i.e. suit No. 19/90 would merit to be dismissed, however, as the learned counsel for the appellant-defendant has agreed to pay the compensation for this period i.e. with effect from 1.1.1989 to September 1989 at the rate of Rs. 1500/-PM as such the plaintiff-respondent is held entitled to receive the compensation at the rate of Rs. 1500/-PM for the said period from the defendant-appellant.
28. The respondent has claimed compensation at Rs. 600Q/-PM in the first suit No. 19/90 and at the rate of Rs. 500/- per day in other suits claiming it to be the market rate of tenancy and learned District Judge has granted the compensation at the rate of Rs. 6000/-PM for the second part of the period.
29. Market rate of tenancy would mean the rate of rent at which the shops are let out in the ordinary course of business. The onus to prove the market rate prevalent at the relevant period lies' upon the plaintiff. It could be proved satisfactorily from the instances of leases given and taken of the shops in the vicinity of the suit shop and the best evidence could be of those of tenants or landlords who have taken or given the shops on rent during the relevant period. But in the present case no such evidence has been led by the plaintiff. The plaintiff besides himself examined PWs Om Parkash and Rabinder Kumar.
30. The plaintiff in his statement has deposed that as the defendant had not handed over the suit shop in terms of the decree therefore he has claimed compensation for use and occupation from the defendant @ Rs. 6000/-PM. PW Rabinder Kumar has stated that in the end of the year 1989 he had gone to the plaintiff for obtaining the shop on rent for his son which was in possession of some chemist and was about to fall vacant; that the plaintiff had claimed a rent of Rs. 12000/-PM from him but deal was settled at Rs. 11000/- a month. On being cross-examined he admitted that he is a government servant and posted as Information Officer at Jammu that he new the plaintiff because he used to play cricket with him. He also admitted that he has never obtained any shop on rent and does not know any owner of the shop who may be taking rent @ Rs. 15000/-PM and nor he knows any one who may be receiving or paying rent @ Rs. Five to ten thousands a month. Learned District Judge found the evidence of this witness unreliable. In his view the witness had made the statement only to appease the plaintiff. I am in agreement with the learned District Judge so far as evidence of PW Rabinder Kumar is concerned.
31. The other witness of the plaintiff PW Om Parkash has deposed that he visited the plaintiff in the year 1988 in connection with the suit shop as he required the same for his son who is a shopkeeper at Fattu Chogan Jammu and that the plaintiff demanded rent @ Rs. 8000/-PM but Rs. 6000/-was settled between them. On being cross-examined he admitted that he runs a shop, Mahajan Shoe co. at Ragunath Bazar Jammu and that he knew the plaintiff because he is his neighbour. He also admitted that he himself had not obtained any shop on rent but his son had taken a shop at Raj Tilak Road Jammu which carried rent of Rs. 1300/-PM. He has stated that he does not know what was the rent of the shop adjoining to the suit shop and it is only on the basis of his personal assessment that he has stated that rent of that shop must be Rs. 15000/- a month which is the market rate.
32. PW Om Parkash thus has not obtained any shop on rent in the vicinity of the suit shop. His evidence that the shop adjoining to the suit shop carries rent @ Rs. 15000/-PM cannot be accepted at its face value. It could be the person who has either obtained the shop or let out the shop in the vicinity of the suit shop who could say what was the prevailing rent in the area. The evidence tendered by the plaintiff therefore is deficient as it does not in any manner prove the actual market rate of rent prevalent in the area at the relevant time. Learned District Judge has found the evidence of PW Om Parkash acceptable being corroborative of the version of the plaintiff on the reasoning that DW Darshan Kumar Gupta examined by the appellant had stated in his testimony that the rent of a new shop according to the locality was Rs. 500/ to 700/-PM but admitted that a shop like the suit shop could fetch Rs. 5 to 10 lacs as pagri and rate of interest in the market is 2% PM. Learned District Judge after appreciating the evidence of the witness of the plaintiff and the defendant, including DW Darshan Kumar has observed in his judgment as follows:-
"Even otherwise, defendant has not established anywhere about the rent claimed by the plaintiff to be penal and unconscionable. Rather I find statement of the plaintiff that he was offered Rs. 6000/-per month of the suit property supported by strong cogent and best evidence of his witness Om Parkash who cannot be disbelieved being shopkeeper of busy and hectic commercial locality of Jammu city who offered Rs. 6000/-per month for the suit property and the same was settled with the plaintiff for renting the shop for his son who is a shopkeeper at Fattu Chogan coupled with the positive evidence of DW Darshan Kumar Gupta who has deposed that suit property can fetch Rs. 5.00 lacs to Rs. 10 lac as pagri and interest is 2% per month further supported by statement of DW Krishanlal who admitted pagri of Rs. 30 lac in Ragunath Bazar at present. This system of pagri is unknown in legal parlance and is under-table deal obviously in areas where there is a paucity of commercial accommodation and demand is more is a factor to reckon the market rent prevalent cannot be overlooked from consideration and taking 2% interest on the minimum of Rs. 5.00 lacs pagri stated by DW Darshan Kumar Gupta prevalent in the vicinity of the suit property is in no way less than Rs. 6000/-per month which is little more than half of the interest accrued on Rs. 5.00 lacs pagri amply supports the claim of the plaintiff for compensation for use and occupation of the suit property after the expiry of date of 1.1.89 which is unauthorized and illegal to be Rs. 6000/-per month as the same sum was offered to the plaintiff by PW Om Parkash for running business by his son who is running a shop at Fattu Chogan and accepted by the plaintiff is considered to be market rent of the suit property which plaintiff is entitled to recover from the defendant in the circumstances of admission of the fact by the defendant himself and his witness that suit property is situate near City Chowk where any kind of business can be transacted and is the central place of business of Jammu city."
33. Mr. Gupta submits that since he was offered rent at Rs. 6000/-PM therefore it can be accepted as the market rate of rent for awarding compensation for use and occupation. In support of his contention he relies upon a case titled Bhagwan Das Mengi v. Union of India, AIR 1961 J&K 39 wherein this court held as follows:-
"On the other hand there are a number of cases of different High Courts wherein it has been laid down that if the tenant after the expiry of lease remains in occupation of the premises inspite of the fact that the landlord served a notice on him to vacate and warned him that if he remains in occupation he will have to pay a specified sum as damages for wrongful use and occupation of the building, the defendant will be liable to pay that amount provided it is not penal and unconscionable.
In support of this view reliance may be placed on an authority of the Lahore High Court, Sunder Singh v. Ram Saran Das, reported in AIR 1933 Lah 61 in which it has been held that the defendant's having held over contumaciously the plaintiff was clearly entitled to damages. In case Kumar Das v. Radhika Singh, reported in AIR 1929 Pat 717 it was pointed out that a cause for the payment of the enhanced rent in a lease is not penal when apparently it is not introduced into the lease to compel the performance of an act stipulated in the contract but is merely an option given to the lessee which he may accept or reject as he chooses; hence a stipulation to pay a higher rent if the lessee remains in occupation after the expiry of the lease is neither penal nor an unreasonable one. Parekh Nandlal v. Anant Govind AIR 1940 Nag 140 is also to the same effect. In this ruling it has been held that where landlord gives notice to his tenant that he would be charged at an enhanced rate from a certain date and should vacate if he does not accept the enhancement and the tenant refuses to pay enhanced rent and he also refused to vacate he should be deemed to have accepted the enhanced rent inspite of his refusal. Of course the Court has discretion in the matter and when the enhanced rate demanded is obviously penal and impossible the court would not grant it.
There is also a ruling of this court, Jogeshwar Kumar v. Mst. Suwaran Kour, reported in 2 J&K LR 42 on this point. It has been held therein that in considering what sum should be allowed for use and occupation or for damages for contumacious holding over the whole circumstances of the tenancy and sufficiency in point of time of notice have to be taken into consideration. In the present case the plaintiff has adduced evidence to show that he was offered Rs. 500/- PM as rent for the premises in case it was vacated by the defendant on expiry of the lease.
But the defendant did not vacate the premises on the date specified in the notice and the plaintiff had to suffer loss on account of the occupation of the premises by the defendant after the expiry of the lease. The District Judge has neither discussed the evidence adduced by the plaintiff nor has he given an y reasons for discarding it. The defendant has produced evidence to show that some houses in that area are let out for lesser rent.
The evidence is of n o avail to the defendant in view of the fact that these houses are not in close vicinity nor have they the same accommodation and amenities. In view of the fact that there is evidence to show that the plaintiff was offered Rs. 500/- as rent PM and there is no reason to disbelieve this testimony of the witness of the plaintiff it is not necessary for us to determine what would be the fair rent of the house."
34. So far as granting of compensation for use and occupation is concerned law is well settled that it can be granted at the amount which is not penal and unconscionable. In AIR 1994 Delhi 255, P.S. Bedi v. Project & Equipment Corporation of India it was observed that:-
"In view of the law already discussed above it becomes evidence that after the expiration of the tenancy and in spite of legal notice dated 1.5.1989 if the defendant does not vacate the premises, he is liable to pay the market rent as damages/mesne profits for use and occupation of the demised premises, the damages can be paid at the market rent demanded in the notice provided the same is not penal or unconscionable."
35. Here the question is can a solitary offer be made basis for determination of market rate of rent. The judgment of this court relied upon by Mr. Gupta does not lay down the preposition that solitary offer received by a landlord can be taken as the prevailing market rate of rent in the vicinity. In that case the claim was made for compensation for use and occupation at rate of Rs. 500/-PM as the same had been offered to him for whom the plaintiff had noticed the defendant when the original rate of rent was Rs. 200/-PM. In the circumstances of the case this court had accepted the claim of the plaintiff at the rate of Rs. 500/-PM. This authority relied upon by Mr. Gupta in my view cannot help him in support of the plea that solitary offer can be made basis for determining the prevalent market rate of rent. As already said the prevalent market rate of rent is the rate at which the shops are let out in the vicinity. One solitary offer-by a person who has not let out or obtained a shop in the vicinity of the suit shop, that he would pay a particular rent, cannot be accepted as the prevalent rate of rent in the market.
The evidence of the plaintiff in this regard is deficient. Learned District Judge appears to have swayed in accepting the market rate as per the offer made by PW Om Parkash as defendant's witnesses have stated that plaintiff could have received the pagri at the rate of 5 to 10 lac rupees, while reletting the shop. The payment of pagri-under table payment-has nothing to do with the market rate of rent. In a suit for compensation for use and occupation by a landlord of a property, against a tenant holding over after the expiry of the lease, the rentals of other property more or less of the same description, is a recognized mode of determining the compensation, but where evidence is deficient, as it is in the present case, certain amount of conjecture and guess work is permissible for being employed for determination of the compensation. And while doing so the court is required to keep in mind the amount so determined is not penal or unconscionable.
36. Learned District Judge, in my considered view, erred in accepting the amount of Rs. 6000/-PM as market rate of rent in the first place and he also erred in finding that rate of rent to be not penal and unconscionable.
37. Admittedly the shop as per mortgage was chargeable with a monthly rental of Rs. 100/-only till2.12.1983, the date of decree. If the rate of rent of the shop in 1983 was Rs. 100/-. PM what could be the rate of rent in 1989. Within six years, the increase by 60 times therein appears to me penal and unconscionable. Even if the rent is deemed to have got enhanced by 50% each year only it could not be more than Rs. 1500/-PM which can be taken as the just rate, keeping in view the locality of the suit shop for granting compensation for use and occupation of the suit shop.
38. Therefore even if the suit of the plaintiff is held to be maintainable, he can be entitled to receive compensation at the rate of Rs. 1500/-P.M.
39. The net result of the aforemade discussion is that suit No. 19/90 of the plaintiff shall stand decreed to the extent that plaintiff is entitled to recover compensation at the rate of Rs. 300/-PM for a period of 15 months prior to 1.1.1989 and w.e.f. 1.1.1989 to September 1989 plaintiff is entitled to recover compensation for use and occupation of the suit shop @ Rs. 1500/- PM and from October 1989 to September, 1990 @ Rs. 300/-PM. The judgment of the learned District Judge passed in COS No. 19/1990 stands modified accordingly. Likewise the judgment of the learned District Judge granting compensation @:Rs. 6000/-PM for the period 1.1.1990 to 10.3.1992 in COS No. 31/1992 also stands modified to the effect that plaintiff-respondent shall be entitled to recover compensation for use and occupation from the defendant-appellant @ Rs. 300/-PM for the said period. The judgment of the learned District Judge in other suit Nos. 38, 25, 28 and 83 is also modified to the effect that the plaintiff in all these suits shall be entitled to recover compensation for use and occupation from the defendant @ Rs. 300/-PM.
40. The plaintiff in all the suits shall also be entitled to simple interest @ 9% per annum from the date of decrees till actual date of realization. All the six appeals are thus partly allowed.
41. In view of the above findings Cross Appeal Nos. 11, 12 and 13 shall stand dismissed.
42. The amount deposited by the appellant in terms of interim direction dated 10.2.2003 shall be adjusted towards satisfaction of the decrees and shall be paid in terms of this judgment to the
plaintiff-respondent. The excess amount, if any found, shall be refunded to the appellant. Parties to bear their own costs.
43. Registry shall place one copy of this judgment on each file.