JUDGMENT Janardan Sahai, J.
1. A suit for rent and ejectment was filed by the respondents No. 1 and 2 against Tejashwi Investment Company Ltd. alleging that the company was its tenant. The suit was decreed ex parte on 8.8.1986. The decree was put into execution. The applicant Ram Adhar Singh resisted delivery of possession. Objections under Order XXI, Rule 97. C.P.C. were filed by the applicant alleging that he was in possession in his own right being the tenant since 1.2.1984 and that the decree could not be executed against him. The trial court by its order Impugned dated 3.11.2003 dismissed the objections holding that the tenancy agreement relied upon by the applicant was not proved and that he was not a tenant but was set up by his brother who was a Director in the company which was the tenant against which the decree was passed.
2. I have heard Sri P.N. Saxena counsel for the applicant and Sri R.K. Srivastava counsel for the respondents.
3. It is submitted by Sri Saxena that the findings recorded by the trial court that the applicant entered into possession some time during the pendency of the execution case is not correct and in fact the applicant was in possession since even before the suit was instituted in October, 1984. Sri Saxena submits that there are documents on the record copies of which he has filed as Annexure-4 to the stay application in this revision. These documents relied upon are two certificates, one issued by the S.P. Deoria dated 19.2.1984 and the other by the A.D.M., Deoria dated 16.3.1984. In both these certificates the residential address of the applicant shown is that of the property in dispute. There is also a solvency certificate issued by the A.D.M., Deoria dated 16.4.1993 showing the same address. These documents it is contended have not been considered by the trial court. An agreement by which the petitioner's tenancy is alleged to have been created is also relied upon which the trial court found to be forged and it Is submitted that the Court below erred in relying upon its own visual Impression of the signatures upon the tenancy agreement and comparing them for coming to the conclusion that the signatures made upon the tenancy agreement are not of those of Shiv Autar Dubey the attorney of respondents 2 and 3. It is submitted that an expert's report had been submitted by the applicant and the said expert Hasan Raza was examined to prove that the signatures on the tenancy agreement are the same as the admitted signatures and his report ought to have been relied upon.
4. I shall first take up the contention that the Court could not have acted as an expert. The findings recorded by the Court below on this point is that Hasan Raza who was examined by the applicant as expert did not state at all that he was a handwriting expert. The certified copy of the statement of the expert has been produced before me. The witness has no doubt been referred to as handwriting expert in the description shown against his name at the head of his statement but neither in the examination-in-chief nor in the cross-examination has it been stated that he is a handwriting expert. Opinion of experts is relevant under Section 45 of the Evidence Act. Before his opinion is accepted, the Court has to satisfy Itself that the person who is being examined to prove a signature is qualified or not and is indeed an expert. As there was no statement at all made by Hasan Raza that he was a handwriting expert, he cannot be classed as an expert. His statement could, therefore, not have been relied upon and the Court below committed no error on this point. The Court below has, on the other hand, considered the statement of the expert of the respondents M. M. Kakkar. It has also made visual comparison of the signatures and has come to the conclusion that the signatures on the tenancy agreement do not tally with the admitted signatures. The trial court also considered the statements of the applicant and of his witness Ravi Bhushan but did not find them reliable. This is essentially a finding of fact and appears to suffer from no error.
5. The contention of the applicant's counsel that certain documents were not considered may now be examined. The finding recorded by the trial court is that none of the documents filed by the applicant established that the applicant was in possession of the premises as a tenant since before the execution case. Reliance was placed by the petitioner upon the certificates of the S.P. and of the A.D.M. and the insolvency certificate. There are certain circumstances, which cast doubt upon the genuineness of the certificates. None of the certificates Including the solvency certificate issued by the A.D.M. bears any letter number, which is usually given in such official certificates as they are used for such purposes as grant of contract. That apart, it is not in dispute that for certain period, the brother of the applicant Ram Pravesh Singh was the Managing Director of the Company. In view of this fact, the applicant may have given his address in the certificates as that of the company. The copy of the extract of the statement of the applicant has been filed along with the supplementary affidavit. No doubt it is stated therein that the signatures appended are those of the officers who issued them and that the applicant recognizes them but it has not been stated that the certificates were given in the applicant's presence or that he was acquainted with their signatures or handwriting or was receiving their correspondence and he could, therefore, recognize the signatures. If made by a person not an expert, evidence of a signature being that of a particular person would be admissible under Section 47 of the Evidence Act, if the person making the statement gives direct evidence about the signatures having been made in his presence or if he is acquainted with the writing or signatures of the person. In absence of any such evidence, not much reliance can be placed upon the interested statement of this witness. The finding of the J.S.C.C. is based upon material on record. He has placed reliance on paper No. 45Ga dated 7.6.1984 and upon the Ration card of the applicant in which there is given a different address of the applicant. The oral statement of the applicant was also considered. The J.S.C.C, has recorded a finding of fact that the applicant was unable to prove that he was a tenant since 1.2.1984 and has found that the applicant was inducted into possession during the pendency of the execution case. That apart, the applicant has come out with a specific case. His specific case is based upon a written agreement of tenancy. The agreement of tenancy has not been found to be proved. Rather it has been found to be forged. The findings recorded by the J.S.C.C. are based upon evidence and are findings of fact and cannot be said to be perverse.
6. Counsel for the applicant submitted that even though the tenancy agreement may not have been proved, the possession of the applicant was established and that he was in occupation in his own right. I do not find any force in this contention. The specific case of the applicant has not been accepted. The applicant is none other than the brother of Ram Pravesh Singh, the Managing Director of the Company. The decree was against the company and in the circumstances, it appears that the finding that the applicant has been Inducted into possession by his brother does not suffer from any error.
7. There is one other aspect of the matter. The rent of the premises, which was settled with the company, was Rs. 1,150 p.m. The J.S.C.C. has made a clear recital in his order that it was admitted between the parties that the rent on which the premises has been let out to the company was Rs. 1,150 p.m. The petitioner's case is that it was the company which was originally the tenant and after it had vacated, the premises were let out @ Rs. 300 p.m., to the applicant. This version of the applicant is wholly improbable as it would not be expected that the property let out @ Rs. 1,150 p.m. would on the original tenant's vacating it, be let out only @ 300 p.m.
8. The trial court has awarded damages at the rate of Rs. 1,150 per month together with interest at the rate of 12% per annum from 30.10.1986 upto the date of possession. From internal page 23 of the certified copy of the order of the trial court, it appears that damages and interest were claimed from 30.10.1986 on the foundation of that date being the date of the Institution of the case and not that it was the date from which the possession of the applicant has been found as is being contended by the applicant's counsel. However, it appears that the date of the institution of the case under Order XXI, Rule 97, C.P.C. is 4.11.1986 instead of 30.10.1986 and as such, the decree of the trial court can be modified to that extent.
9. The principal ground upon which Sri Saksena challenged the award of Interest is that Section 34, C.P.C. provides for award of interest only upon the principal sum for which the suit is filed or decreed and there being neither any principal sum due nor any decree for any principal sum, no interest could be awarded. It is also contended that no interest can be awarded on damages. The power of the Court to award damages in a decree passed under Order XXI, Rule 98, C.P.C., read with Section 101, C.P.C. has not been challenged. We are concerned, therefore, only with the award of interest on damages from the date of the institution of the case under Order XXI, Rule 97, C.P.C. That provision on its literal language provides a remedy for a decree holder to obtain possession from a person who in execution proceedings resists possession. The law, however, is now settled by the apex court that the person resisting the possession may also invoke the provision and he need not wait until his dispossession to apply under Order XXI, Rule 99, C.P.C. The adjudication under Order XXI, Rule 98, C.P.C. on an application under Order XXI, Rule 97 would have under Order XXI, Rule 103, C.P.C. the force of a decree and a separate suit is barred by Order XXI, Rule 101, C.P.C. An adjudication on an application by a party resisting possession would bind the parties and would bar a separate suit by the decree holder. The effect is that an application under Order XXI, Rule 97, C.P.C. is to be treated as a suit by the decree holder and the same principles, which govern the grant of interest in a suit would apply. The words "decree is for the payment of money" occurring in Section 34, C.P.C. have been interpreted to apply to a decree for damages. In Union of India v. A. Venkatiah, AIR 1975 Mad 119, it was held "The expression 'decree for payment of money' is not to be understood as a technical expression or an expression with some reservation. A suit instituted by a litigant claiming damages either in tort or in breach of contract, or for payment of damages by a carrier for non-performance of a statutory and other obligations as bailee resulting in a decree for damages are obviously and necessarily computed in terms of money can also be characterised as a decree for payment of money." The Bench followed the Privy Council decision in B.N. Railway's case, AIR 1938 PC 69 and Union of India v. Pantpat Woolen and General Mills, AIR 1967 Punj, in holding that interest on damages can be awarded.
10. Section 34, C.P.C. governs the payment of interest in a suit in respect of three different periods - the period before the filing of the suit, the period during the pendency of the suit and the period after the decree. It has been held by the Privy Council in B. N. Railway v. Ruttanji Ramji, AIR 1938 PC 69, that right to interest for the period before the suit is governed by substantive law of contract or statute or by trade usage or in some cases by equity. The Court has power to award interest under Section 34, C.P.C. for any period prior to the suit only if it can be allowed under the substantive law. The law of procedure steps in after the suit is filed. A distinction has, therefore, been made in the right to be awarded interest for the period before the suit is filed and for the period thereafter. The parties having not yet brought their dispute before Court, the payment of interest for the period prior to the suit must be governed by the substantive law. If there is no right under the substantive law for payment of interest, the theoretical basis for award of interest can only be In the nature of damages but if what is being claimed as the principal sum is itself damages no question ordinarily arises in allowing interest which would be in the nature of damages over damages. In Union of India v. W.P. Factories', AIR 1966 SC 395, the Supreme Court held In a case where damages were awarded that no interest could be awarded for the period upto the date of the suit. The decision of the judicial committee in the B.N. Railway case, was relied upon. As a decree for damages is a decree for payment of money within the meaning of Section 34, C.P.C., the Court has power to award interest on damages for the period after its jurisdiction is Invoked by the suit being filed. For it, it is not, necessary in such a case to Justify the claim of interest under the substantive law. While there is ample authority in support of the proposition that ordinarily no interest can be awarded on damages for any period prior to the suit, but no authority was cited in support of the proposition that interest on damages cannot be awarded for the period after the parties have come to Court. Award of interest for the period after the suit falls within the realm of the law of procedure and is discretionary. It can be allowed even if not specifically claimed in view of the provisions of Order VII, Rule 7, C.P.C. The discretion to award interest for the period after the decree is controlled by Section 34, C.P.C. wherein it is provided that except in the case of commercial transaction, it shall not exceed 6%. It has been held in Jainarain v. Biseswar Prasad, AIR 1954 Pat 304, that interest can be awarded on damages for use and occupation. The Division Bench held ;
"The last point to be considered is with respect of Interest. As the lease has been held to be invalid and the point in question has been considered on the basis of implied contract, it must be taken that there is no contract stipulating any amount of interest to be paid on the claim. In B.N. Railway Co. Ltd. v. Ruttanji Ramji, AIR 1938 PC 67 (E), it was held that interest for the period prior to the date of the suit may be awarded If there is an agreement for the payment of interest at fixed rate. Following this case It was held by a Division Bench of this Court in Masood Ahmad v. Bikan Mahuri, AIR 1941 Pat 6 (F). that claim to interest up to the institution of suit cannot be allowed when it Is not based on any contract. In Gobind Ram v. Hari Mohan Singh, AIR 1934 Lah 175 (G), it was held that rent due is a debt no doubt, but damages for use and occupation is not a liquidated sum and licence Interest cannot be allowed. A similar view was taken in Gopalan Nain v. Dist. Board, Malabar, AIR 1933 Mad 704 (H), in which it was held that in the absence of a contract interest cannot be granted on equitable principles. It, therefore, appears that the plaintiff is not entitled to any interest on his claim up to the date of the institution of the suit. The Court has, however, got discretion to award interest after the institution of the suit till realisation of the money and in my opinion the plaintiff should be awarded interest at six per cent per annum from the date of the suit till the date of realisation of the money that may be decreed in his favour."
It has, therefore, to be held that interest can be awarded on damages. The contention of Mr. Saksena that there was in this case no principal sum due nor a decree for any principal sum was passed is not sound. The damages have been determined at a particular rate and have been found to be payable from a particular date. The damages are thus quantifiable. The damages awarded constitute the principal sum adjudged, for the purposes of awarding interest. No doubt the principal amount being the damages is adjudged only when It is decreed but as it has been found payable for every month since the suit remained pending, Interest on such sum is permissible under Section 34, C.P.C.
11. It was also submitted that exemplary cost of Rs. 1 lakh awarded against the applicant is arbitrary. The J.S.C.C. has held that the applicant has delayed the possession being handed over to the decree holder since 1986 and the judgment-debtor has evaded the execution of the decree by handing over the possession to the applicant. It appears that after the ex parte decree was passed, an application under Order IX, Rule 13, C.P.C. was filed by Ram Pravesh Singh which was rejected on the ground that it was the company which was the Judgment-debtor tenant and that the application under Order IX, Rule 13, C.P.C. at the instance of Ram Pravesh Singh was not maintainable. Sri Saxena submitted that the process of delivery of possession no doubt initially was issued in the year 1986 but actually the process was issued again pursuant to the dismissal of the revision against the order rejecting the application under Order IX, Rule 13, C.P.C. in the year 1997 and, therefore, it cannot be said that the applicant is responsible for thwarting the delivery of possession.
12. Looking to the totality of the facts and circumstances, it does appear to me that the applicant has been compensated by the award of damages and interest at the rate of 12% during the pendency of the suit and the award of exemplary costs of Rs. 1 lakh is excessive. Accordingly, the revision is partly allowed. Interest pendente lite shall be payable as awarded. The quantum of exemplary costs is reduced to Rs. 10,000. The damages shall be payable from 4.11.1986 and interest from the date of the decree upto the date of realisation shall be payable at 6% per annum. To this extent, the decree of the trial court is modified.