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Judgment
A.K. Sikri, J.
CM No. 12438/2007
This application is for early hearing. Since the main appeal is listed for final hearing today itself, prayer made in this application is rendered infructuous and it is accordingly disposed of.
2.RFA (OS) No. 5/2005
In this appeal we are concerned with the validity of order passed by the learned single Judge in the suit filed by the respondent (hereinafter referred to as the ''plaintiff) fixing the mesne profits/damages for the period 01.05.1989 to 31.03.1994 when the appellant (hereinafter referred to as the ''defendant'') remained in unauthorised and illegal occupation of part of the ground floor and mezzanine floor of property bearing Municipal No. 19, Netaji Subash Marg (Faiz Bazar), Daryaganj, Delhi (for short, ''the suit property''). The plaintiff had earlier filed a suit for ejectment and damages, which was registered as CS (OS) No. 1247/1989. Apart from the decree of ejectment, the plaintiff also claimed damages for use and occupation upto April 1989. The suit was in respect of ground floor and mezzanine floor of the suit property. The ground floor admeasures 2066 sq.ft. and portion of the mezzanine floor in occupation of the defendant was 1219 sq.ft. The suit property was let out by the plaintiff to the defendant @ Rs. 8,419.10 per month. Month of the tenancy commenced on 22nd day of every English calendar month. Vide notice dated 05.01.1989, the tenancy was terminated with effect from the midnight of 21.01.1989 and 22.01.1989. As the defendant had not vacated the premises in spite of termination of the tenancy, suit was filed in April/May 1989 and damages were also claimed upto April 1989. Decree for ejectment in the said suit was passed on 14.05.1992. Insofar as damages for the months of February, March and April 1982 is concerned, the plaintiff had given up the said relief. Decree passed was ex-parle. Effort on the part of the defendant to get the said decree set aside failed up to the highest level. Execution petition seeking execution of the decree was filed and pursuant to the orders passed in this petition, the plaintiff got vacant possession of the tenanted property on 31.03.1994. Simultaneously with the filing of the execution petition, the plaintiff also filed CS (OS) No. 4219/1992 claiming damages from May 1989 till September 1992 as well as for the further period till the tenanted premises are restored to the plaintiff. Mesne profits are claimed at the minimum rate of Rs. 91980/- P.M. The defendant contested the suit on various grounds. It was alleged that the suit was barred under Order II Rule 2 of the CPC Code, 1908 (for short, ''CPC'')- On merits, the defendant pleaded that the plaintiff was not entitled to damages and, in any case, the rate claimed was excessive. Entitlement of interest on damages was also disputed.
On the basis of pleadings, following issues were framed:-
" 1. Whether the suit is barred under Order 2 Rule 2 of the Code of Civil Procedure?
Whether the plaintiffs are entitled to damages for use and occupation of the premises? If so, at what rate and for what period?
Whether the plaintiffs are entitled to interest? If so, at what rate and for what period?
Relief?
The learned single Judge decided these issues in favour of the plaintiffs and determined the damages @ Rs. 59,605/- per month.
Learned counsel for the defendant submitted that the suit was barred under Order II Rule 2 of the CPC as the plaintiffs had earlier filed a suit for ejectment and damages, but the relief of damages was given up. However, in view of the well-settled law laid down in numerous cases, insofar as claim for damages is concerned, it provides for a separate cause of action; and even if in the earlier suit filed for ejectment such a prayer is not made, the subsequent suit for damages for wrongful use and occupation would not be barred under Order II Rule 2 of the CPC.
Learned counsel for the defendant could not dispute the aforesaid legal position and, therefore, did not even lay much stress on this submission, except feign reference. We are of the opinion that only the period for which claim for damages was filed earlier and given up would be barred keeping in view the principles contained in Order XXIII Rule 1 CPC. The plaintiff, in fact, did not even include that period while filing the suit for damages. We, therefore, hold that the judgment of the learned single Judge on this aspect on which Issue No. 1 was framed is perfectly valid and justified and does not call for any interference.
The central issue is the quantum of damages on which Issue No. 2 was framed. Issue No. 3 which is related to that is about the entitlement of interest on the damages.
The learned single Judge in the impugned judgment commenced the discussion on these issues in the following words:-
"Issue No. 2 and 3
Hardly any discussion is required in light of the issues framed in the previous suit, being Suit No. 1247/1989 and the judgment and decree dated 14.05.1992 in favour of the plaintiffs. Judgment, Ex.PW1/B decides issues 1 to 5 and issue No. 7 framed in said suit in favour of the plaintiff.
Decree dated 14.05.1992 has attained finality. Finding against the defendant that notice dated 05.01.1989 terminated the tenancy effected from the midnight of 21/ 22.01.1989 having attained finality and the finding that the plaintiffs never waived their right under the notice dated 05.01.1989 having attained finality as also the finding that plaintiffs were entitled to a decree for ejectment of the defendant as possession after 31.01.1989 was unauthorised having attained finality, issue No. 2 is decided in favour of the plaintiffs. In that view, plaintiffs would be entitled to damages.
As regards the period it need hardly be stated that the period would be from 01.05.1989 till 31.03.1994, the date on which defendant handed over possession of the tenanted premises to the plaintiffs?
This factual aspect could not be disputed by learned counsel for the appellant/ defendant. What is clear from the above is that the finding of the court in the earlier suit to the effect that the appellant herein was unauthorised occupant after termination of tenancy is conclusive between the parties and, therefore, for the period in question, i.e. 01.05.1989 to 31.03.1994, the plaintiff would be entitled to damages for use and occupation. The only question which was, therefore, to be decided was the rate at which such damages are to be assessed.
The plaintiff had claimed damages @ Rs. 22.50 per sq.ft. per month relying upon Ex.P9 which is a lease deed dated 04.08.1989. As per this lease deed, a shop measuring 300 sq.ft. on the ground floor of the suit premises was let out at a monthly rate of Rs. 6,000/- and on this basis the rent per sq.ft. would be Rs. 20/- per month. On this basis the learned single Judge opined that the rent of the premises in that area as on 04.08.1989 was Rs. 20/- per sq.ft. per month. In addition, the learned single Judge referred to the testimony of the defendant''s own witness, namely Shri K.L. Miglani, Chief Manager, Punjab National Bank, Daryaganj, New Delhi, who appeared as DW1. This witness in the cross-examination had, inter alia, stated that the bank had taken on lease a premises in a DDA building in the same area in the year 2000 at a rent of Rs. 40/- per sq.ft. per month. On the basis of the aforesaid evidence on record, the learned single Judge has granted damages @ Rs. 20/- per sq.ft. per month for the ground floor and Rs. 15/- per sq.ft. per month for the mezzanine portion of the suit premises.
In view of this evidence on record, we hardly see any ground to interfere and are of the opinion that the damages worked out on that basis, namely, Rs. 59,605/- for the period in question, would be fair and proper. Simple interest of 12% p.a. is granted, which also appears to be reasonable.
In spite of this, learned counsel for the respondent/plaintiff had stated on instructions that the respondent was willing to give concession of a total sum of Rs. 7.50 lacs to the appellant/defendant. In view of this concession, the damages payable by the appellant to the respondent for the period in question shall stand reduced by Rs. 7.50 lacs. Decree passed by the learned single Judge is modified to this extent.
Appeal is disposed of in the aforesaid terms.
At this juncture, we may point out that pursuant to the directions given by the Division Bench, the appellant/defendant bank had deposited the decreetal amount. Out of this, Rs. 50 lacs were allowed to be withdrawn by the respondent, subject to his furnishing security to the satisfaction of the Registrar General of this Court. This security was furnished and amount has been withdrawn by the respondent. Out of the balance amount, which is lying deposited in this Court, a sum of Rs. 7.50 lacs shall be released to the appellant and the balance amount, along with interest accrued thereon, shall be handed over to the respondent. The security given by the respondent shall also be discharged/released. Parties shall appear before the Registrar for this purpose on 7th December, 2007.