Inclen Trust Int. vs RD Ramnath Company (Huf)

Valmiki J Mehta, J.—The challenge by means of this Regular First Appeal filed u/s 96 of the Code of Civil Procedure, 1908 is to the impugned judgment of the trial court dated 7.4.2011 decreeing the suit for mesne profits. The suit was for possession and mesne profits, and possession of the suit premises were already delivered to the respondent/plaintiff by the appellant/defendant on 25.5.2009.

The facts of the case are that the appellant/defendant took on rent w.e.f. 7.4.2005 the suit premises being the 5th Floor of Building No. 18, Yusuf Sarai Community Center, New Delhi ad measuring 2984 sq. ft. The rate of rent between the parties was fixed at Rs. 1,10,000/- per month and additionally there was a six months interest free rent deposit. The tenancy being a monthly tenancy was terminated by the respondent/plaintiff by legal notice dated 12.4.2008 and since the appellant/defendant failed to vacate the suit premises, the subject suit for possession and mesne profits came to be filed.

The only issue which is required to be determined by this Court is the rate at which mesne profits would be payable for the period from 8.5.2008; the date on which the appellant/defendant became an unauthorized occupant of the suit premises; till 25.5.2009, when the suit premises were vacated.

Before the trial court, the respondent/plaintiff in order to prove the mesne profits, filed a rent deed, Ex. PW1/2, dated 9.1.2009 entered into between the respondent/plaintiff and M/s. Brij Capital Reality Pvt. Ltd. with respect to 4th Floor portion of the same building comprising 1365 per sq. ft. The rate of rent fixed was Rs. 1,85,000/- per month, and which comes to Rs. 135 per sq. ft. Though the trial court has discarded this lease deed, I am of the opinion that the trial court was totally unjustified in doing so inasmuch as this document was duly proved and exhibited before the trial court. There was no objection to the exhibition of this document when the same was exhibited by filing of affidavit by way of evidence by the respondent/landlord/plaintiff. Once there is no objection to the exhibition of the document, the said document can always be looked into vide R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Another, . Though there is a suggestion in the cross-examination that the lease deed Ex.PW1/2 is executed in connivance with the tenant of the lease deed Ex. PW1/2, namely, M/s. Brij Capital Reality Pvt. Ltd., however, I have failed to understand that what could be the connivance because after all the lease was entered into and duly acted upon. It is not the stand of the appellant/defendant that this lease deed is a forged and fabricated document and was never acted upon. I, therefore, hold that the trial court committed an error in discarding the lease deed Ex. PW1/2. I, therefore, hold that the trial court ought to have looked into this document Ex. PW1/2, the lease deed dated 9.1.2009 which pertains to the same building and just one floor above the suit premises.

If, we look at the lease deed Ex.PW1/2, the rate of rent comes to Rs. 135/- per sq. ft. This rate of rent is, however of six months subsequent to the date on which appellant/defendant became an unauthorized occupant. Taking an increase of rent of appox. about 20% - 25% per year, the rate of rent in view of the lease deed Ex.PW1/2 in May 2008 will in fact work out to approx. Rs. 115 per sq. ft. Further, giving additional benefit to the appellant/defendant that whereas the suit premises was of a larger area of 2894 sq. ft. and the premises on the 4th Floor which was the subject matter of the lease deed Ex. PW1/2 was lesser of 1365 sq. ft., even then, at least the rent would be Rs. 100 per sq. ft in May 2008. The trial court has granted not this rate of Rs. 100 per sq. ft. but only Rs. 75 per sq. ft. Therefore, the trial court has been more than conservative, and I failed to understand as to how the appellant/defendant can have any grievance at all. In every suit where mesne profits have to be calculated some amount of honest guess work has to be done by the court, though of course, such best judgment assessment has to be reasonable. I do not think that the trial court has exceeded any limits of reasonableness when fixing the rent at Rs. 75 per sq. ft.

No other issue is urged or pressed before this Court.

In view of the above, there is no merit in the appeal, which is accordingly dismissed, leaving the parties to bear their own costs. The respondent will be entitled to withdraw the amount deposited in this Court by the appellant, in appropriate satisfaction of the impugned judgment and decree. Appeal is disposed of accordingly.