Delhi High Court
H.L. Mehra And Ors. vs Inter Publicity Pvt. Ltd. on 7 November, 2003
Equivalent citations: 2004IAD(DELHI)50, 108(2003)DLT102, 2003(71)DRJ779
Author: R.S. Sodhi
Bench: R.S. Sodhi
JUDGMENT
R.S. Sodhi, J.
1. This appeal is directed against the judgment and order dated 5th November, 1999, of the Additional District Judge, Delhi in RCA No. 22/99, whereby the learned Appellate Court has reversed the order and finding of the trial court in respect of mesne profits and damages for use and occupation of the premises in question based on the judgment of the High Court in Anjini Devi v. V.S.T. Industries Ltd. [1999 (5) DRJ-807] .
2. The question of law that arises for determination in this regular second appeal is whether the Appellate Court could have relied upon the aforesaid judgment to arrive at the conclusion that the law laid down is mesne profits can only be double the rate of the current rent.
3. The brief facts of the case as noted by the the Civil Judge are as follows :
” The brief fact leading to the present case are that the plaintiffs stated that they are land-lords of the commercial flat identified as Unit No. ‘F’ measuring 820.25 Sq. ft. on the 12th floor in the multistoreyed building known as ‘Vandana’ situate at 11 Tolstoy Marg, New Delhi. The flat had been let out to the defendant at the rest of Rs. 4, 000/- p.m. with tenancy reckoned from the 1st of every month. The tenancy was terminated by issue of notice dated 6/1/95 which was served n the defendant on 10/1/95. As per the notice the tenancy was terminated after 15 days from the date of receipt and expiry and expiring by the end of the tenancy month i.e. after midnight of 31st of January, 1995 but the defendant did not reply to the notice. The defendant is no longer a tenant in respect of the premises and is liable to pay damages/mesne profits which according to the plaintiff comes to Rs. 63979.50/- p.m. and on the aforesaid fact it was prayed that the decree for ejectment/possession be passed in favor of the plaintiff and against the defendant in respect of flat No. F-12, Vandana Building, 11 Tolstoy Marg, New Delhi and the decree for mesne profit and damages be passed against the defendant based upon an enquiry under order 20 rule 12 CPC.
3. The suit was contested and the preliminary objection was taken that a notice determining the tenancy has been waived of by the plaintiffs. Further defendant has made permanent structural changes in the suit premises. Hence, the plaintiff have given up their rights. Thirdly, the lease of the premises was in perpetuity and finally that the suit falls within the purview of Delhi Rent Control Act. As the amount of rent is more than standard rent liable to be fixed by the rent controller. On merit, it was denied that flat was let out at the rate of rent of Rs. 4000/-. It was submitted that the premises was taken at the rate of Rs. 2, 007.60. The rent was paid already on advance which included service charges and last monthly payable amount of Rs. 4000/- which included Rs. 1000/- towards the service charges for providing fitting and fixtures to the defendants. Further it was submitted that in the years, 1976 an Agreement was entered into between the parties incorporating the same Terms and Conditions. It was agreed that parties would continue to occupy the premises on the same Terms and Conditions. The copy of the agreement was got signed by the plaintiff but defendant did not get the copy of the same and thereafter it was agreed that the defendant continued to occupy the property so far as he continues to pay the rent. It was denied that the tenancy was terminated by the notice. It was also denied that minimum market rate of rent prevalent in the locality is Rs. 78/- per sq. ft.
4. The replication was filed by the plaintiff wherein they reiterated and re-affirmed his previous stand taken in the plaint.
5. ……………………………….
1. Whether the plaintiffs have validly terminate the tenancy of the defd? OPP.
2.Whether the notice terminating the tenancy has been waived by the Plfs? OPD
3.Whether the plf. Is entitled to damages and the mesne profits as claimed in the suit? OPD
4.Whether the suit of the plaintiff for relief of possession is maintainable? OPD”
4. The trial court vide its judgment and decree dated 15th September, 1999, decreed the suit for possession as also for mesne profits by determining the rate at Rs. 50/- per sq, ft. The Appellate Court while upholding the decree of possession reverse the finding of the trial court on the question of mesne profits and held that only double the rate agreed to in the lease can be fixed, relying on the judgment of the High Court in Anjini Devi’s case (supra).
5. Learned counsel for the appellant submits that the judgment relied upon by the First Appellate Court is not a judgment that lays down law, as has been held by the First Appellate Court but is confined to the fact of that case. He points out that there are catena of judgments which have held that the rate per sq. ft. commanded by premises in Connaught Place varies from Rs. 50/- to Rs. 60/- per sq. ft. He also submits that after taking over the possession of premises, the premises has been re-let @ Rs. 75/- per sq ft.
6. Counsel for the respondent submits that although it has been open to the court to take judicial notice of the prevalent rates yet in the regular second appeal it would not be proper to do so inasmuch as what is to be seen is the evidence on record to prove the case of the plaintiff. He also submits that there is no evidence on record to show that the prevalent market rate of the premises in question was Rs. 50/-, as has been awarded by the trial court. He further submits that the yardstick adopted by the First Appellate Court to arrive at its conclusion was just and proper.
7. Having heard learned counsel for the parties and having gone through the judgment of the appellate Court as also the judgment of the trial court, I find that the trial court has based its judgment on the evidence of PW-1 who has deposed to the effect that the current market value as per the market rate is minimum of Rs. 78/- per sq.ft. p.m. He also stated that appellant has received prospective rate from the real estate agent at Rs. 78/- per sq. ft. p.m. This witness has also stated that the building adjacent and similar is fetching a rent @ Rs. 85/- per sq. ft. per month while others close by are fetching rate at Rs. 150/- per sq. ft. per month. The trial court while appreciating the evidence of this witness has brought down the rate to Rs. 50/- per sq. ft. per month. It appears to me that the above-cited judgment of the High Court is not a precedent for the proposition as to the yardstick to be used to calculate market rate in all cases. It has adopted a method in the facts and circumstances of that case. In the present case, where there is evidence on record to show the prevalent market rate, there was no need to go to the judgment of the High Court which does not lay down law in that regard. As pointed out by learned counsel for the appellant, there are various judgments of the High Court dealing with properties in Connaught Place which show that the prevalent rate in Connaught Place is around Rs. 50 to Rs. 60/- per sq. ft.
8. Having therefore consider the case advance before me by the parties and also material on record, I am of the opinion that the First Appellate Court was wrong in reversing the order of the trial court insofar as adjudication of mesne profits was concerned.
9. In that view of the matter, I set aside the judgment of the Appellate Court as regards the mesne profits and restore the judgment and decree dated 15th September, 1999, of the trial court.
10. RSA 29/2000 is allowed. CM Nos. 600, 601 and 603/2000 are accordingly disposed of. No order as to costs.