PURUSHOTTAM DAS BANGUR Vs DAYANAND GUPTA
Bench: T.S. THAKUR,GYAN SUDHA MISRA
Case number: C.A. No.-007710-007710 / 2012
Diary number: 4977 / 2008
Advocates: SURYA KANT Vs
CHIRA RANJAN ADDY
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7710 OF 2012 (Arising out of S.L.P. (C) No.4629 of 2008)
Purushottam Das Bangur & Ors. …Appellants
Versus
Dayanand Gupta …Respondent
J U D G M E N T
1. Leave granted.
2. This appeal arises out of a judgment and order
passed by the High Court of Calcutta whereby Civil
First Appeal No.290 of 1986 filed by the respondent-
tenant has been allowed, the judgment and decree
passed by the trial Court set aside and the suit for
eviction filed by the plaintiff-appellant against the
defendant-respondent dismissed.
3. A residential premise comprising two rooms
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with a gallery situate at the first floor bearing no.95-A,
Chittaranjan Avenue, Calcutta and owned by Gauri
Devi Trust of which the appellants are trustees was let
out to the respondent-tenant on a monthly rental of
Rs.225/-. One of the conditions that governed the
jural relationship between the parties was that the
tenant shall not make any additions or alterations in
the premises in question without obtaining the prior
permission of the landlord in writing. Certain
differences appear to have arisen between the parties
with regard to the mode of payment of rent as also
with regard to repairs, sanitary and hygiene conditions
in the tenanted property which led the landlord-
appellant to terminate the tenancy of respondent in
terms of a notice served upon the latter under Section
106 of the Transfer of Property Act read with Section
13 (6) of West Bengal Premises Tenancy Act, 1956.
Since the respondent-tenant did not oblige, the
plaintiff-appellant instituted Ejectment Suit No.391 of
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1976 in the City Civil Court at Calcutta asking for
eviction of the former inter alia on the ground that
respondent- tenant had illegally and unauthorisedly
removed the corrugated tin-sheet roof of the kitchen
and the store room without the consent of the
appellant-landlord and replaced the same by a cement
concrete slab apart from building a permanent brick
and mortar passage which did not exist earlier. These
additions and alterations were, according to the
plaintiff-appellant, without the consent and permission
of the Trust and, hence, violative not only of the
provisions of clauses (m), (o) and (p) of Section 108 of
the Transfer of Property Act, 1882 but also the
conditions stipulated in the lease agreement executed
between the parties. Eviction of the respondent was
also sought on the ground that the respondent and his
family members were using the passage constructed
by them for creating nuisance and peeping into the
bedroom of Shri Bharat Kumar Jethi, another tenant
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living on the second floor of the premises.
4. The defendant-respondent contested the suit
primarily on the ground that his tenancy had not been
terminated in terms of the notice allegedly issued by
the landlord and that there was no violation of the
provisions of clauses (m), (o) and (p) of Section 108 of
the Transfer of Property Act. A Court Commissioner
deputed by the trial Court carried out a local
inspection of the suit premises on 12th July, 1978 in
presence of the parties. The Commissioner formulated
five different points for local inspection and answered
the same in the report submitted to the Court. One of
the aspects on which the Commissioner made a report
related to the existence of a passage leading to the
concrete roof of the kitchen and the store space. The
Commissioner appears to have found that the kitchen
and store space had a concrete cemented plastered
roof with a small window inside the kitchen.
5. Long after the Commissioner’s report was
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submitted to the trial Court, the tenant filed an
additional written statement in which he for the first
time took the stand that although he was inducted
into the premises, comprising two rooms and two
small rooms with corrugated tin-sheet for a roof, the
latter required replacement on account of the tin-
sheet roof getting worn out. It was further submitted
that it was only on repeated demands of the
defendant-tenant that the landlord had replaced the
said corrugated tin-sheet by putting a cement
concrete slab over the kitchen and store room. He
further alleged that he had not made any alterations
or additions or committed any act contrary to clauses
(m), (o) and (p) of Section 108 of the Transfer of
Property Act.
6. On the pleadings of the parties, the trial Court
raised as many as eight issues in the suit and allowed
parties to adduce their evidence. In support of his
case the plaintiff examined four witnesses while three
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witnesses were examined by the defendant-tenant. A
careful appraisal of the evidence so adduced led the
trial Court to the conclusion that the plaintiff had made
out a case for the grant of a decree for ejectment of
the respondent-tenant. The trial Court in the process
held that the removal of the tin-sheet roof over the
kitchen and store room and its replacement with a
concrete slab was carried out by the respondent-
tenant and not by the plaintiff-trust. In coming to that
conclusion, one of the circumstances which the trial
Court mentioned was the fact that the defendant had
not made any whisper in the first written statement
filed by him about the construction of the concrete
roof having been undertaken by the landlord. The
story that the landlord had replaced the tin roof by a
concrete slab was propounded belatedly and for the
first time in the supplementary written statement. The
trial Court observed:
“Lastly, it must not be lost sight of that when the defendant first filed the written statement there was no whisper from the side of the
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defendant that the construction was made by the landlord for the convenience of the tenants. This story was first propounded by the convenience of the tenants. This story was first propounded by the defendant by filing an additional written statement in 1983 i.e. about seven years after the institution of the suit. This belated plea of the defendant should be taken with the grain of salt.”
7. The trial Court accordingly held that it was the
defendant-tenant who had made a permanent
structural change in the premises in violation of the
conditions stipulated in the lease agreement and in
breach of the provisions of Section 108 of the Transfer
of Property Act. The trial Court further held that the
tenant had not, while doing so, obtained the written
consent of the landlord. The trial Court also found
that the legal notice for determining the tenancy of
the respondent-tenant had been served upon him and
accordingly decreed the suit.
8. Aggrieved by the judgment and decree passed
against him, the tenant-respondent herein appealed to
the High Court of Calcutta which appeal has been
allowed by the Division Bench of that Court in terms of
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the Order impugned before us. While the High Court
has not disturbed the finding of fact recorded by the
trial Court that the replacement of the tin-sheet by a
concrete slab was undertaken by the respondent-
tenant, it has reversed the view taken by the trial
Court on the ground that any such replacement of the
roof did not tantamount to violation of clauses (m), (o)
and (p) of Section 108 of the Transfer of Property Act.
The High Court held that since the replacement of the
tin-sheet roof by cement concrete slab did not result in
addition of the accommodation available to the tenant,
the act of replacement was not tantamount to the
construction of a permanent structure. The
replacement instead constituted an improvement of
the premises in question, observed the High Court. In
support the High Court placed reliance upon the
decisions of this Court in Om Prakash v. Amar
Singh AIR 1987 SC 617 and Waryam Singh v.
Baldev Singh (2003) 1 SCC 59 .
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9. The High Court also relied upon an earlier
decision of that Court in Ratanlal Bansilal & Ors. v.
Kishorilal Goenka & Ors. AIR 1993 Cal 144 and
held that unless a case of waste or damage is proved,
there can be no violation of clauses (m), (o), (p) of the
Transfer of Property Act. The High Court held that
proof of waste and damage because of the
construction of a cement concrete roof over the
kitchen and store space and the construction of a
brick-built passage for reaching the roof of that area
was completely absent in the instant case. The High
Court, on that basis, set aside the judgment of the
trial Court and dismissed the suit filed by the
appellant.
10. Section 13 of the West Bengal Premises
Tenancy Act 1956, starts with a non-obstante clause
and forbids passing of an order or decree for
possession of any premises by any Court in favour of
the landlord and against the tenant except on one or
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more of the grounds stipulated therein.
11. Among other grounds stipulated in Section 13
of the Act is the ground that the landlord can sue for
eviction of the tenant where the tenant or any person
residing in the premises let to the tenant has done any
act contrary to the provisions of clauses (m), (o) or
(p) of Section 108 of the Transfer of Property Act,
1882. Section 13 (1) (b) reads thus:
“13. Protection of tenant against eviction.—(1) Notwithstanding anything to the contrary in any other law, no order or decree for the recovery of possession of any premises shall be made by any court in favour of the landlord against a tenant except on one or more of the following grounds, namely: (a) * * * (b) where the tenant or any person residing in the premises let to the tenant has done any act contrary to the provisions of clause (m), clause (o) or clause (p) of Section 108 of the Transfer of Property Act, 1882 (4 of 1882);”
12. Clauses (m), (o) and (p) of Section 108 of the
Transfer of Property Act referred to in clause 1 (b) of
Section 13 (supra) may also be extracted at this stage
:
“108. Rights and liabilities of lessor and lessee.
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—In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased: * * * (m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left;
* * * (o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted or commit any other act which is destructive or permanently injurious thereto;
(p) he must not, without the lessor's consent, erect on the property any permanent structure, except for agricultural purposes;”
13. The appellant has in the case at hand pressed
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into service clause (p) of Section 108 (supra)
inasmuch as, according to the appellant, the
respondent-tenant had without his consent erected on
the demised property a permanent structure which
rendered him liable to eviction under Section 13 (1)
(b) extracted above. The question, however, is
whether the alterations which the respondent-tenant
is found by the Courts below to have made
tantamount to erection of a “permanent structure”
within the meaning of clause (p) of Section 108 of the
Act (supra). The expression “permanent structure”
has not been defined either under the West Bengal
Premises Tenancy Act, 1956 or in the Transfer of
Property Act, 1882. The expression has all the same
fallen for interpretation by the Courts in the country
on several occasions. We may briefly refer to some of
those pronouncements at this stage.
14. In Venkatlal G. Pittie & Anr. v. Bright Bros.
Pvt. Ltd. (1987) 3 SCC 558, the landlord alleged
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that the tenant had without his consent raised a
permanent structure in the demised premises. The
trial Court as also the first appellate Court had taken
the view that the construction raised by the tenant
was permanent in nature. The High Court, however,
reversed the said finding aggrieved whereof the
landlord came up to this Court in appeal. This Court
referred to several decisions on the subject including a
decision of the High Court of Calcutta in Suraya
Properties Private Ltd. v. Bimalendu Nath Sarkar
AIR 1965 Cal 408 to hold that one shall have to look
at the nature of the structure, the purpose for which it
was intended to be used and take a whole perspective
as to how it affects the enjoyment and durability of
the building etc. to come to a conclusion whether or
not the same was a permanent structure. This Court
approved the view taken in Suraya Properties
Private Ltd. v. Bimalendu Nath Sarkar AIR 1965
Cal 408 and Surya Properties Private Ltd. & Ors.
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v. Bimalendu Nath Sarkar & Ors. AIR 1964 Cal 1,
while referring to the following tests formulated by
Malvankar J. in an unreported decision in Special Civil
Application No.121 of 1968:
“(1) intention of the party who put up the structure; (2) this intention was to be gathered from the mode and degree of annexation; (3) if the structure cannot be removed without doing irreparable damage to the demised premises then that would be certainly one of the circumstances to be considered while deciding the question of intention. Likewise, dimensions of the structure and (4) its removability had to be taken into consideration. But these were not the sole tests. (5) The purpose of erecting the structure is another relevant factor. (6) The nature of the materials used for the structure and (7) lastly the durability of the structure”.
15. In Surya Properties Private Ltd. & Ors. v.
Bimalendu Nath Sarkar & Ors. AIR 1964 Cal 1 a
Special Bench of the High Court of Calcutta was
examining the meaning of the expression “permanent
structure” appearing in Clause (p) of Section 108 of
the Transfer of Property Act, 1882. The Court held
that whether a particular structure is a permanent
structure or not is a question that depends on the
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facts of each case and on the nature and extent of the
particular structure as also the intention and purpose
for which the structure was erected. No hard and fast
rule, declared the Court, could be laid down for
determining what would be a permanent structure for
the purposes of Section 108 (p) of the Transfer of
Property Act. When the very same case came up for
final adjudication on merits before a Division Bench of
the High Court of Calcutta, the High Court in its order
dated 20th March, 1964 reported in Suraya
Properties Private Ltd. v. Bimalendu Nath Sarkar
AIR 1965 Cal 408 held that the expression
“permanent structure” did not mean ‘everlasting’. The
word “permanent” had been used to distinguish it from
“temporary” and that while a lessee has the power to
raise any type of temporary structure, he has no
power to raise a permanent structure. The Court held
that on a true construction of Section 108 (p) Transfer
of Property Act the words “permanent structure” could
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only mean a structure that lasts till the end of the
term of the lease and does not mean “everlasting” nor
does it mean a structure which would last 100 years or
50 years. The Court observed:
“In all these cases condition (p) will operate. The phrase “permanent structure” does not mean “ever lasting”. But the word “permanent” has been used to distinguish it from “temporary”. A lessee has the power to raise any type of temporary structure, but he has no power to raise a permanent structure. The word “permanent” is also a relative term, because the absolute meaning of the word “permanent” is “ever lasting”. But we cannot accept the meaning if the word “permanent” is a relative term, the question is, - relative of what? The answer immediately is – for purposes of Section 108(p) relative to the term of the issue. Therefore, the word “permanent” means “which lasts till the end of the term of the lease” and does not mean “ever lasting” nor does it mean “which would last 100 years or 50 years”. The term, as stated above, is a relative one and the relation here is to the period of the lease. There may be a lease from month to month or from year to year and we do not know when the lease is going to terminate. But the meaning of the words “permanent structure” would be that the lessee intended that he would enjoy the structure that he raises as long as he be continuing in possession. That period may be definite, that period may be indefinite. But that period is the period of the lease and the person, namely, the lessee, who constructs the structure, should have an intention to use it as long as he remains a lessee.”
16. Applying the above to the case before it, the
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High Court held that the tenant in that case had
constructed a kitchen which he intended to use till the
time he remained in occupation. The Court found that
the case before it was not one where the tenant had
constructed the structure for a special purpose like a
marriage in the family. Any structure which was used
for any such limited period or definite event, function
or occasion, even if made of bricks and mortar would
not amount to building or erecting a permanent
structure. The Court observed:
“A person raises a struct (sic) for the purpose of a marriage in the family. There he intends to use it only during the occasion and has no intention to use it thereafter and intends to remove the structure thereafter. We cannot say that it would be a permanent structure even if it is made of brick and mortar. In the circumstances, of this case, the lessee has said that he wanted to use it as a kitchen. He never says that the kitchen was required for a particular purpose temporarily. Therefore, we get from the evidence of the tenant that the tenant intended to use the structure as a kitchen during the continuance of the lease, because the tenant requires a kitchen as long as the tenant uses the premises and as he wants, to use it as a kitchen, he sufficiently express his intention to use it as a kitchen during the term of his tenancy which in this case is not definite. Therefore, for purposes of Section108(p) of the Transfer of Property Act, we would hold that the kitchen raised must be
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considered to be for a permanent purpose.”
17. To sum up, no hard and fast rule can be
prescribed for determining what is permanent or what
is not. The use of the word ‘permanent’ in Section 108
(p) of the Transfer of Property Act, 1882 is meant to
distinguish the structure from what is temporary. The
term ‘permanent’ does not mean that the structure
must last forever. A structure that lasts till the end of
the tenancy can be treated as a permanent structure.
The intention of the party putting up the structure is
important, for determining whether it is permanent or
temporary. The nature and extent of the structure is
similarly an important circumstance for deciding
whether the structure is permanent or temporary
within the meaning of Section 108 (p) of the Act.
Removability of the structure without causing any
damage to the building is yet another test that can be
applied while deciding the nature of the structure. So
also the durability of the structure and the material
used for erection of the same will help in deciding
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whether the structure is permanent or temporary.
Lastly the purpose for which the structure is intended
is also an important factor that cannot be ignored.
18. Applying the above tests to the instant case
the structure was not a temporary structure by any
means. The kitchen and the storage space forming
part of the demised premises was meant to be used till
the tenancy in favour of the respondent-occupant
subsisted. Removal of the roof and replacement
thereof by a concrete slab was also meant to continue
till the tenancy subsisted. The intention of the tenant
while replacing the tin roof with concrete slab,
obviously was not to make a temporary arrangement
but to provide a permanent solution for the alleged
failure of the landlord to repair the roof. The
construction of the passage was also a permanent
provision made by the tenant which too was intended
to last till the subsistence of the lease. The concrete
slab was a permanent feature of the demised premises
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and could not be easily removed without doing
extensive damage to the remaining structure. Such
being the position, the alteration made by the tenant
fell within the mischief of Section 108 (p) of the
Transfer of Property Act and, therefore, constituted a
ground for his eviction in terms of Section 13(1)(b) of
the West Bengal Premises Tenancy Act, 1956.
19. We may at this stage refer to the decision of
this Court in Ranju alias Gautam Ghosh v. Rekha
Ghosh and Ors. (2007) 14 SCC 81 where this
Court found that cutting of a collapsible gate by 5/6”
and replacing the same without the consent and
permission of the landlord was tantamount to violation
of Section 108 (p) of the Transfer of Property Act read
with Section 13 (1)(b) of West Bengal Premises
Tenancy Act, 1956. It is thus immaterial whether the
structure has resulted in creating additional usable
space for the tenant who carries out such alteration
and additions. If addition of usable space was ever
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intended to be an essential requirement under Section
108 (p) of the Act, the Parliament could have easily
provided so. Nothing of this sort has been done even
in Section 13 (1) (b) of the State Act which clearly
shows that addition of space is not the test for
determining whether the structure is permanent or
temporary.
20. Reliance upon the decisions of this Court in
Brijendra Nath Bhargava and Anr. v. Harsh
Wardhan and Ors. (1988) 1 SCC 454, Om
Prakash v. Amar Singh and Ors. (1987) 1 SCC
458, Waryam Singh v. Baldev Singh (2003) 1
SCC 59 and G. Reghunathan v. K.V. Varghese
(2005) 7 SCC 317 do not in our opinion advance the
case of the respondent. In Brijendra Nath
Bhargava’s case (supra) this Court was dealing with
a case arising out of Rajasthan Premises (Control of
Rent and Eviction) Act, 1950. Section 13 (1) (c) of the
said Act required the landlord to prove that the tenant
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had, without his permission, made or permitted to be
made any construction which had in the opinion of the
Court, materially altered the premises or was likely to
diminish the value thereof. Section 13 (1)(c) of the
Rajasthan Premises (Control of Rent and Eviction) Act,
1950 is to the following effect:
“13(1) (c) that the tenant has without the permission of the landlord made or permitted to be made any such construction as, in the opinion of the court, has materially altered the premises or is likely to diminish the value thereof”
21. The above provision is materially different from
the provision of Section 13(1)(b) of the West Bengal
Premises Tenancy Act 1956 applicable in the present
case which does not require the landlord to prove that
there was any material alteration in the premises or
that such alteration was likely to diminish the value
thereof. The decision in Brijendra Nath Bhargava’s
case (supra), is therefore, distinguishable and would
not have any application to the case at hand.
22. In Om Prakash’s case (supra) this Court was
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dealing with a case under Section 14 (c) of the U.P.
Cantonment Rent Control Act, 1952 which reads as
under:
“14. Restrictions on eviction.—No suit shall, without the permission of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds, namely: (c) that the tenant has, without the permission of the landlord, made or permitted to be made any such construction as in the opinion of the court has materially altered the accommodation or is likely substantially to diminish its value.”
23. A perusal of the above would show the
language employed therein is materially different from
the provision of Section 13(1)(b) of the West Bengal
Premises Tenancy Act 1956 with which we are
concerned in the present case. In the case at hand the
landlord is not required to prove that the construction
have been materially altered or is likely to diminish its
value as was the position in Om Prakash’s case
(supra).
24. In Waryam Singh v. Baldev Singh (2003) 1
SCC 59 this Court was dealing with a case under
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Section 13(2)(iii) of East Punjab Urban Rent
Restriction Act, 1949 which was to the following effect:
“13. Eviction of tenants.—(1) * * *
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied— * * * (iii) that the tenant has committed such acts as are likely to impair materially the value or utility of the building or rented land, * * *”
25. It is evident from the above that this provision
was different from the language employed in Section
13(1)(b) of the West Bengal Premises Tenancy Act
1956. The ratio of that case also, therefore, does not
lend any support to the respondent. Same is true
even in regard to the decision in G. Reghunathan’s
case (supra) where this Court was dealing with an
eviction petition under Section 11(4)(ii) of the Kerala
Buildings (Lease and Rent Control) Act, 1965 which
was to the following effect:
“11. (4) A landlord may apply to the Rent
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Control Court for an order directing the tenant to put the landlord in possession of the building— (i) * * * (ii) if the tenant uses the building in such a manner as to destroy or reduce its value or utility materially and permanently;”
26. The above provision is also materially different
from the provisions with which we are concerned in
the present case. The ratio of that case does not,
therefore, have any application to the question
whether the structure raised by the respondent was a
permanent structure within the meaning of Section
108 (p) of the Transfer of Property Act. In Om Pal v.
Anand Swarup (dead) by Lrs. (1988) 4 SCC 545
also this Court was dealing with a case under the East
Punjab Urban Rent Restriction Act, 1949 which makes
material impairment of the property an important
consideration for purposes of determining whether the
tenant has incurred the liability on the premises leased
to him.
27. In the result, therefore, we allow this appeal,
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set aside the order passed by the High Court and
restore that of the trial Court. Respondent is,
however, given one year’s time to vacate the premises
in his occupation subject to his filing an undertaking
on usual terms within four weeks from today. The
grant of time to vacate the premises is further subject
to the condition that the respondent shall either pay
directly to the appellants or deposit in the trial Court
compensation of the premises @ Rs.1500/- p.m. from
1st October, 2012 till the date of vacation. The deposit
shall be made by the 15th of every succeeding calendar
month failing which the decree shall become
executable by the Court.
……………………………………….……….…..…J. (T.S. Thakur)
……………………..…………………..…..…J. (Gyan Sudha Misra)
New Delhi October 31, 2012