Prabhat Kumar Sharma vs Shri Ram Mohan (HUF)

Indermeet Kaur, J.—This appeal has impugned the judgment and decree dated 20.11.2006 which had endorsed the finding of the trial judge dated 01.9.2005 whereby the suit filed by the Plaintiff Ram Manohar seeking possession of the suit property bearing No. 4740, 23 Darya Ganj, Ansari Road with damages and mesne profits had been decreed in his favour.

It is in dispute that the during the pendency of the proceedings the possession of the suit property had been handed over to the Plaintiff; this was on 08.8.2005.

None has appeared for the Respondent in spite of service. On behalf of the Appellant, it has been urged that the judgment of the trial court is a perversity; the trial judge has granted mesne profits @ Rs. 18000/- w.e.f. 01.6.1999 to 31.5.2002 thereafter the enhanced amount of Rs. 9600/- had been awarded w.e.f. 01.6.2002 to3.5.20005 and thereafter @ Rs. 11,500/- per month w.e.f. 1.6.2005 up to the date of delivery of the suit property. It is pointed out that these enhanced slabs are a figment of the imagination of the judge; how and in what manner he has arrived at this conclusion is unexplained. It is pointed out that the Plaintiff had in factled no evidence on this score which was his bounden duty to do so; in the absence of which mesne profits awarded at the aforenoted rates which had since been endorsed by the first Appellant court are a perversity and call for interference. Learned Counsel for the Appellant placed reliance upon a judgment of the Apex Court reported in Union of India (UOI) and Others Vs. Banwari Lal and Sons (P) Ltd., as also another judgments of this Court report in 122(2005) Sonia and Co. (Pvt.) Ltd. Vs. Saboo Cylinders Pvt. Ltd. and Another, Sonia & Co. (Pvt.) Ltd. v. Saboo Cylinders Pvt. Ltd. to support his submission that mesne profits could not have been awarded in this manner as there was no evidence forth coming by the Plaintiff .

This is a second appeal. It has been admitted on 12.8.2009 and the following substantial question of law was formulated:

Whether the trial court followed the principles of law governing the fixation of mesne profits while granting mesne profits on increased slabs to the Respondent?

Record has been perused. The Ram Mohan Tewari karta of Plaintiff had entered into witness box as PW-1. In his affidavit by way of evidence he had while reiterating the averments made by him in the plaint had in para 5 stated that even after the termination of the lease which had come to an end by efflux of time on 31.7.1997 the Defendants continued to occupy the suit property; they had failed to pay agreed enhanced amount of Rs. 6250/-. He had terminated the tenancy of the Defendants with a legal notice dated 30.4.1999 terminating their tenancy w.e.f. 31.5.1999. The said notice had been proved as Ex.PW-1/A. In para 7 he had deposed that the Defendants are liable to pay damages for their unauthorized use and occupation; the interest free security of Rs. 1,00,000/- was adjusted against the arrears of rent; in para 8 it has been averred that mesne profits @ Rs. 35,000/- w.e.f. 01.6.1999 are payable. No cross-examination had been effected of this witness as the evidence of the Defendants had been struck down. The Defendants led no evidence. The only evidence which was thus available with the court is the statement of the Plaintiff. The lease deed dated 09.3.1994 although unregistered was an admitted document. In terms of this lease deed the tenancy was to expire on30.4.1997; it was extended for another period of three years i.e. up to 30.7.1998subject to enhancement of rent @ 25%. This was an admitted position. The initial rate of interest was Rs. 5000/- and thereafter enhanced to rent of Rs. 6250/- per month. Defendants had also made payment of Rs. 12500/- for two months at the rate of Rs. 6250/-per month. The court coupled with the testimony of PW-1 has also taken judicial notice of the locality in which the suit premises is situated i.e. Ansari Road, Darya Ganj being a prime commercial area of Delhi as also the area which had been let out to the Defendants i.e. comprising of 500 sq. yards, Ist Floor. The court was of the view that mesne profits @ Rs. 8000/- per month be awarded from 01.6.1999 upto 31.5.2002; 20% enhancement was awarded thereafter for the next three years w.e.f. 01.6.2002 to 31.5.2005; these damages were awarded @ Rs. 9600/- per month. The last enhancement at the rate of 20% i.e. at the rate of Rs. 11500/- was awarded as damages w.e.f. 01.6.2005 till the date of delivery of the possession. The court had relied upon the terms of the lease deed which had stipulated enhancement of 25%after every three years. This was coupled with the testimony of PW-1; judicial notice of the locality and the area of the suit property had led to the award of damages at the aforenoted rates.

The finding returned by the trial judge and endorsed in the impugned judgment were dealt with while disposing of issue No. 2. The said finding reads as follows:

Onus to prove this issue was again upon the plaintiff and in order to discharge the same Plaintiff has categorically placed reliance on the unregistered Lease DeedEx.PW1/1 and since the clause relating to enhancement of rent payable by the deft does constitute a collateral purpose, hence the Lease Deed though unregistered can also be looked into for this purpose and in Clause 7 thereof, it has been clearly provided that in case if the defendants failed to vacate the property by 30.4.97 then they shall be allowed to continue and remain in possession of the suit property for further period of three months i.e. upto 30.7.1997 but they shall have to pay the rent at the enhanced rate with 25% enhancement in the amount of actual rent. Thus, from the aforesaid clause it becomes amply clear that after 30.4.97, the defdts were liable to pay to the Plaintiff, the rent @ Rs. 6,250/- per month. Further a perusal of Ex.PW-1/2 makes it amply clear that the payments were made by the defdts to the tune of Rs. 12,500/- for two months pertaining to the months of May and June, 1997 which also establishes the fact of the payment of rent by them at the rate of Rs. 6250/- per month. Further, in an application filed by the defdt on record, which also finds its mention in the order sheet dated 7.12.2002, the defdts themselves had shown their readiness to pay the rent at the admitted rate ofRs.6250/- per month to the Plaintiff.

Although no independent evidence has been adduced by the Plaintiff on record nor any independent witness has been examined by him in order to prove his entitlement to the damages/mesne profits @ Rs. 25,000/- per month ad claimed by him in the present suit, but in rebuttal, the defdts have also failed to lead any evidence and even their defence was directed to be struck off vide my orders dated 26.2.05 and against the said order no appeal or any other legal remedy has been exhausted by the defdts, hence same has become final now.

However, still keeping in view the interest of justice and taking a judicial notice of the locality in which the suit premises is situated which happens to be one of the prime commercial areas of Delhi and also taking into consideration the area of the suit property which was let out to the deftds by the Plaintiff and after taking a judicial notice of the rates of rent prevailing in the said locality, I am of the considered opinion that interest of justice shall be best served if the Plaintiff is awarded mesne profits/damages @ Rs. 8000/- per month with effect from 1.6.99 i.e. the date from which the defdts were liable to vacate the suit property in terms of the legal notice dated 30.4.99 terminating their tenancy with effect from the midnight of 31.5.99 with further enhancement at the rate of 20% after every three years.

Accordingly, in view of my aforesaid lengthy discussion, I hereby hold that Plaintiff is entitled to mesne profits/damages @ Rs. 8000/- per month with effect from 1.6.99 till 31.5.2002 and thereafter @ Rs. 9,600/- per month with effect from 1.6.2002 till 31.5.2005 and thereafter @ Rs. 11,500/- (round off) per month with effect from 1.6.05 till the date of actual handing over of vacant, peaceful and actual physical possession of the suit property by defdts to the Plaintiff. the issue is disposed off accordingly.

This finding does not in any manner suffer from any perversity. This was not a case of no evidence. The logic adopted by the trial judge was based on the admitted document which had been executed between the parties i.e. the lease deed dated 09.3.1994 which had stipulated enhancement of rent of 25% after every three years and it was also acted upon by the parties.

The judgments relied upon by the learned Counsel for the Appellant do not advance his case. In the judgment of Union of India (supra) the court had laid down the guidelines on how quantum of damages should be assessed by an arbitrator; an arbitrator is a quasi judicial authority. That apart in that case the court had noted that damages could not have been awarded up to 31.3.1993 as it was under the permission of the court that the Appellant had been allowed to use and occupy the property up to this date. The second judgment of National Radio (supra) was a case where the Plaintiff had not led any evidence on the damages claimed by him; the third judgment of Sonia & Co. (supra) was also a case where the judgment had noted that there was no evidence led by the Plaintiff for his claim of damages.

This Court is sitting in a second appeal. Findings of fact cannot be lightly interfered with; unless and until there is a perversity. No such perversity has been pointed out. There is no scope for interference.

Substantial question of law is answered in favour of the Respondents and against the Appellant. The appeal as also pending applications are dismissed.