Srinagar Tenant’s Appeal Against Rs 5,000 Monthly Occupation Charges Dismissed as Not Maintainable by J&K&L High Court

The respondent-landlord sued the appellant for ejectment, possession and mesne profits.

The appellant claimed a tenancy dating from 1975, asserted that the agreed rent was Rs. 1,250 per month, and disputed being in unauthorized occupation.

The Trial Court directed him to deposit Rs. 56,250 as alleged arrears and to pay occupational charges of Rs. 5,000 per month during the suit, with liberty to seek execution upon default.

The appellant challenged that direction by appeal, arguing that it was appealable under Order XXXIX Rule 10 CPC or, alternatively, Rules 1 and 2.

The respondent disputed maintainability, contending that the direction was not founded on an admitted liability and was, at most, made under Section 151 CPC.

A Coordinate Bench had dismissed an appeal against a materially similar order as not maintainable, while reserving liberty to pursue an appropriate remedy.

A right of appeal is statutory and cannot be assumed merely because an order is interlocutory or affects a party’s rights; an order must fall within an express statutory provision conferring appealability.

Section 104 read with Order XLIII Rule 1(r) CPC permits an appeal from specified orders under Order XXXIX, including Rules 1, 2 and 10.

Order XXXIX Rule 10 applies where a party admits that money or property is held for, belongs to, or is due to another party; the relevant admission must be clear, unequivocal and ascertainable.

Rules 1 and 2 concern temporary injunctions.

An order made under Section 151 CPC is not, merely by reason of that provision, appealable under Section 104 and Order XLIII.

The Court distinguished Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705, noting that it concerned compensation for use and occupation after an eviction decree, particularly when imposing conditions on a stay, and did not eliminate the need to identify the legal basis for charges imposed in a pending suit.

The Court found no clear, unequivocal admission by the appellant of liability to pay occupational charges at Rs. 5,000 per month; his position was that only the agreed rent was payable, and both the alleged deposits and any outstanding liability were disputed.

The direction therefore could not be treated as one under Order XXXIX Rule 10 merely because it required payment during the suit.

Nor was it, in substance, an order granting or refusing temporary injunctive relief under Rules 1 or 2.

Considering the application’s nature, the absence of a statutory basis under those rules and the substance of the direction, the Court held that it appeared to have been made under the Trial Court’s inherent powers under Section 151 CPC, which did not confer a statutory appeal.

The Coordinate Bench’s ruling in the related appeal was not res judicata against this appellant, but its maintainability reasoning was relevant and no material distinction justified a different result.

The Court confined its decision to appealability and did not determine the merits of the payment direction or the parties’ underlying tenancy and mesne-profits disputes.

The appeal was dismissed as not maintainable, without prejudice to the appellant’s right to pursue an appropriate remedy available in law, including under Article 227; connected applications were also disposed of.

The merits of the Trial Court’s payment directions remained open for determination by the competent forum.