Punjab National Bank vs Delhi Properties

Valmiki J Mehta, J.—The only issue which is called for decision in the present appeal is the rate of mesne profits because the Appellant bank has already surrendered possession of the tenanted premises on 31.1.2001 to the Respondent/landlord.

The facts of the case are that premises being Flat No. 113, Second Floor of Pratap Building, Connaught Circus, New Delhi were let out to the Appellant/Defendant at a rent of Rs. 14,577.11 per month. The tenancy was on month to month basis and was terminated by a notice dated 30.6.1992 u/s 106 of the Transfer of Property Act, 1882. There is no dispute to these facts.

The trial court framed the issue with regard to the mesne profits being Issue No. 4-A which reads as under:

4A. Whether the Plaintiff is entitled to manse profits? If so, to what extent? With respect to this issue, the finding is contained in para 11 which reads as under:

Issue No. 4-A. The tenancy of the Defendant was terminated w.e.f. 22.07.91. Therefore from 23.07.1992 the Defendant is in occupation without any authority and is liable to pay mesne profits. So far as the rate of rent provides is concerned, the only evidence on record is that of the Plaintiff. PW-1 deposes that the prevailing rate of rent for the similar premises was Rs. 42,000/- per month. He further deposes that during the pendency of the suit the market rate has improved to Rs. 60,000/- to 70,000/- per month. There is no evidence to contradict the testimony of PW-1. Hence I have no option but to hold that the Plaintiff is entitled to mesne profits at the rate at which it is claimed namely Rs. 41,070/- per month from the date of termination of tenancy till recovery of possession. By the time the suit was filed i.e.21.10.92 three month''s mesne profits had accumulated. However the Plaintiff has paid court fees only on one month''s mesne profits. Therefore till the filing of the suit mesne profits can be awarded for only one month. The Plaintiff is entitled to mesne profits during the pendency of the suit till recovery of the possession.

Normally, the onus of proof is not discharged when an oral statement in the examination-in-chief in affirmative by the witness on behalf of the Plaintiff is rebutted by deposition of the opposite party. However, in the present case, the Appellant/bank did not lead any evidence to dispute the rate of rent which was proved by the Respondent/landlord/Plaintiff. Accordingly, the trial court was fully justified in awarding the rate of mesne profits at Rs. 41,070/- from the date of termination of tenancy.

I may note that the tenancy was originally from 23.7.1980 therefore, when the rate in the year 1980 was Rs. 10,952/-, then, surely, after 10 years, the Respondent/Plaintiff was justified in claiming the rent of Rs. 41,070/- p.m as premises in question are situated in the commercial hub being Connaught Circus, New Delhi.

As an Appellate Court, I am entitled to interfere with the decision of the trial court if two views are possible and the view taken by the court below leads to injustice. I do not think that calling upon the Appellant/bank to pay the mesne profits decreed will in any manner cause injustice to the Appellant. In fact, injustice will be caused to the Respondent/landlord if mesne profits as decreed are not sustained.

Accordingly, there is no scope for interference in the present appeal. The appeal is dismissed leaving the parties to bear their own costs. Trial court record be sent back.