JUDGMENT Pradeep Nandrajog, J.
1. Plaintiffs seek to recover damages for continued illegal occupation by the defendant qua part of ground floor and mezannine floor of property bearing municipal No.19, Netaji Subash Marg (Faiz Bazar), Daryaganj, Delhi. Plaintiffs pray for a decree in a sum of Rs.34,59,673/- for the alleged unauthorised occupation effective from May,1989 till September,1992 and for damages for continued unauthorized occupation till the period defendant continues to be unauthorized occupation of the tenanted premises.
2. Mesne profits are claimed at the minimum rate of Rs.91,980/- per month. It is stated in para 13 of the plaint that from May,1989 to September,1992, defendant has deposited sum of Rs.3,11,506.70.
3. As per the plaintiffs, portion in occupation of the defendant on the ground floor ad-measures 2066 sq.ft and on the mezannine floor it measures 1219 sq.ft. Property was let out to the defendant at a rate of Rs.8,419.10 per month. Month of tenancy commenced on the 22nd day of every English calendar month. By a notice dated 5.1.1989 tenancy was terminated effective from the midnight of 21.1.1989 and 22.1.1989.
4. Plaintiff has also claimed interest at the rate of 24% per month on the damages due and payable to it.
5. Present suit was proceeded by a suit for ejectment and damages filed by the plaintiffs, being CS(OS) 1247/1989. In the said suit, apart from praying for a decree for ejectment, damages for use and occupation up to April,1989 were prayed for. Said suit related to the property in respect of which damages are being claimed in present suit and was against defendant herein.
6. Following issues were framed in the said suit :-
i Whether the plaintiff gave any oral assurance to the defendant that they would be entitled to occupy the premises in perpetuity. If so, to what effect? OPD ii Whether the notice dated 5.1.1989 has no force in law as the tenancy could be terminated only by mutual agreement? OPD iii Whether the plaintiff ever waived their rights under the notice dated 5.1.1989 after sending the notice? If so to what effect?OPD iv Whether the plaintiffs were not co-owners of the premises on the date of institution of the suit? If so, to what effect? OPD v Whether the defendant is not liable to ejectment? OPP vi Whether the plaintiff is not entitled to damages for use and occupation of the premises at Rs.25,000/- per month of February, March, April,1989? OPP vii Whether the plaintiffs are not entitled to costs?
viii Relief.
7. Plaintiffs gave up relief for damages in the suit aforesaid. Suit was decreed vide judgment and decree dated 14.5.1992, Ex.PW-1/B.
8. Decree in favor of the plaintiffs, being an ex parte decree, defendant sought setting aside of the ex-parte decree. Application of the defendant under Order 9 Rule 7 CPC, being IA.No.9573/92 was dismissed vide order dated 19.8.1992, Ex.PW-1/C. Appeal by the defendant, being FAO(OS) 188/92 was dismissed vide order dated 22.9.1992, Ex.PW-1/D. Defendant sought Special Leave To Appeal before the Supreme Court vide SLP(C) No.12982/92. It was dismissed vide order dated 2.11.1992, Ex.PW-1/E.
9. Plaintiffs sought execution of the decree dated 14.5.1992 by filing Execution No.199/92. In the said execution petition, an order was passed on 18.2.1993 recording undertaking of the defendant to hand over vacant possession of the tenanted property on or before 31.3.1994 and in terms thereof consigning the execution petition with liberty to the plaintiffs to seek revival, if undertaking was not honoured. Undertaking of the defendant which resulted in order dated 18.2.1993, Ex.PW-1/J, was the statement of Sh. A.K. Jain, Manager of the defendant bank, being Ex.PW-1/G.
10. In Ex.PW-1/J, it came to be recorded that there was an agreement between the parties. Plaintiffs moved and application pointing out that there was no agreement inasmuch as the defendant had furnished an undertaking which was accepted and accordingly reference to the word `agreement' in Ex.PW-1/J be corrected to read `undertaking'. Application was allowed vide order dated 25.2.1994, Ex.PW-1/K. Order reads as under:-
''I have gone through the application and the reply thereto. I have also heard counsel for the parties. A reading of the statement dated 18.2.1993 of Shri A.K. Jain, Manager of judgment debtor bank and the order dated 18th February 1993 passed by the court on the basis thereof clearly shows that the word `agreement' at the end of the order is a typographical error. The entire order proceeds on the basis of the undertaking given on behalf of the judgment debtor and, therefore, the word `agreement' ought to have been `undertaking'. Accordingly I allow the application and order that the word `agreement' at the end of the order dated 18.2.1993 be read as `undertaking'. Necessary correction may be carried out in the records.
The application stands disposed of.''
11. Defendant handed over possession of tenanted property on 31.3.1994.
12. Present suit was filed in the year 1992 and a defense was taken by the defendant as if possession could be defended and earlier litigation had not attained finality. However, by the time issues came to be framed on 24.4.1996, events as noted above in the earlier suit and execution had transpired and in light thereof, following issues were framed vide order dated 24.4.1996:-
1. Whether the suit is barred under Order 2 Rule 2 of the Code of Civil Procedure?
2. Whether the plaintiffs are entitled to damages for use and occupation of the premises? If so, at what rate and for what period?
3. Whether the plaintiffs are entitled to interest? If so, at what rate and for what period?
4. Relief.''
13. Parties have led evidence. I need not refer to the defense in detail for the reason that defendant lost possession during pendency of the present suit and much before issues were framed. Proceedings arising out of Suit No.1247/89 attained finality. I accordingly proceed to deal with the issues straightaway.
Issue No. 114. Onus to prove that a suit is barred under Order 2 Rule 2 C.P.C has to be on the party which seeks to oust the plaintiff by invoking said rule. Success can be achieved under Order 2 Rule 2 CPC only when it is made out that:-
(a) The present suit was in respect of the same cause of action on which the previous suit was based;
(b) In respect of that cause of action, the plaintiff was entitled to more than one relief; and
(c) If entitled to more than one relief, plaintiff, without obtaining leave from the court omitted to sue for the relief for which the second suit has been filed.
15. Defendant has not placed on record, much less proved pleadings in the previously instituted suit.
16. Mr. Amit Chadha, learned counsel for the plaintiffs urged that in the present suit, damages for continued unauthorised occupation were claimed with effect from May 1989. Relief prayed in Suit No.1247/1989 was for possession and damages uptil April,1989. He urged that when the said suit was filed, month of May,1989 and subsequent months thereto were months in the future and therefore cause of action would not and could not have accrued when the previous suit was filed. Counsel urged that a party may have many causes of action at any particular point of time, but it is not bound to sue in respect of all of them. A party may sue in respect of one or more as per choice and leave the rest for later suits. It was further urged that in a suit for ejectment and suit for mean profits, cause for mesne profits would accrue each day of the continued unauthorised occupation.
17. Principle enshrined under Order 2 Rule 2 is aimed against a multiplicity of suits in respect of the same cause of action. Rule is on the principle that a party should not be vexed twice for one and the same cause of action. To my mind, rule needs application with caution. The plea under Order 2 Rule 2 CPC defeats, what otherwise may be a legitimate claim of a party. Care must be taken to ensure complete identity of cause of action being established.
18. Can it be said that a suit for recovery of possession of immoveable property and damages for unauthorised use for a particular period would constitute a single cause of action for a subsequent suit filed for recovery of damages for a later period. To my mind, cause of action to recover damages for unauthorised use and occupation would accrue each month of unauthorised possession. Reference may be made to the decision of the Calcutta High Court reported as 2nd 1973(1) Calcutta 343.
19. The principle of law enshrined under Order 2 Rule 2 has been pithily stated in the judgment of the Privy Council reported as 26 IC 228, Patanna vs. Pannchal. It was held ''that the rule is directed to secure the exhaustion of the relief in respect of one cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction.''
20. Issue No.1 is accordingly decided against the defendant and in favor of the plaintiffs. It is held that the suit is not barred under Order 2 Rule 2 of the CPC.
Issue No.2 and 321. 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 14.5.1992 in favor of the plaintiffs. Judgment, Ex.PW-1/B decides issues 1 to 5 and issue no.7 framed in said suit in favor of the plaintiff.
22. Decree dated 14.5.1992 has attained finality. Finding against the defendant that notice dated 5.1.1989 terminated the tenancy effected from the midnight of 21/22.1.1989 having attained finality and the finding that the plaintiffs never waived their right under the notice dated 5.1.1989 having attained finality as also the finding that plaintiffs were entitled to a decree for ejectment of the defendant as possession after 31.1.1989 was unauthorised having attained finality, issue no.2 is decided in favor of the plaintiffs. In that view, plaintiffs would be entitled to damages.
23. As regards the period it need hardly be stated that the period would be from 1.5.1989 till 31.3.1994, the date on which defendant handed over possession of the tenanted premises to the plaintiffs.
24. I may deal with one contention raised in the written statement. It is stated in the written statement that the plaintiffs agreed to allow the defendant to continue in possession till 31.3.1994 as per agreement and therefore possession cannot be unauthorised and secondly, defendant was liable to pay only the agreed rent.
25. I have noted above the consent which resulted in order dated 18.2.1983, Ex.PW-1/J, being passed. I have also noted above the subsequent order passed on 25.4.1994, Ex.PW-1/K, in that Ex.PW-1/K clarified the earlier order, Ex.PW-1/J. It is clear that there was no agreement. Defendant gave an undertaking to the court and the plaintiffs undertook not to execute the decree in their favor for possession till 31.3.1994.
26. That takes me to the third limb of issue No.2; the rate at which damages have to be paid.
27. Mr. Amit Chadha, learned counsel for the plaintiff relied upon lease deed dated 4.8.1989, Ex.P-9, to urge that plaintiffs would be entitled to damages at the rate of Rs.22.50 per sq.ft. per month.
28. Ex.P-9 is a lease deed dated 4.8.1989 wherein a shop measuring 300 sq.ft on the ground floor of premises bearing No.19, Netaji Subash Marg was let out at a monthly rent of Rs.6,000/-. Rent per sq.ft as per said lease deed would come to Rs.20/- per sq.ft.
29. Though in his deposition, PW-1 has deposed that while letting out the shop vide Ex.P-9, Rs.50,000/- was received as interest free deposit, I find that there is no covenant in the lease deed to this effect and therefore I would not be inclined to admit any parole evidence which varies the terms of a written document.
30. On the issue of the market rent prevalent, defendant examined Mr. K.L. Miglani, Chief Manager, Punjab National Bank, Daryaganj Branch, New Delhi. Mr. K.L. Miglani deposed that the defendant bank was having its branch at 3575, Netaji Subash Marg, Daryaganj. There were 3 lease deeds dated 26.12.1990. Rent as per said lease deeds was Rs.6/- per sq.ft per month for the period 1.4.1990 to 31.3.1995. The 3 lease deeds have been proved as Exs. DW-1/3, DW-1/4 and DW-1/5.
31. It is, however, relevant to note that on being cross examined, DW-1 stated:
''those premises at 3575, Netaji Subash Marg have been in tenancy of Punjab National Bank since 1950. The lease thereof has been renewed by the landlord from time to time.
The last such renewal is by Ex.DW-1/3 to Ex.DW-1/5. The lease has also come to an end on 31.3.2000. The bank is in the process of vacating the same and is shifting to DDA building in the same area on rent. The rent there is Rs.40/- per sq.ft per mont.''
32. Since Ex.DW-1/3 to DW-1/5 are in continuation of earlier leases pertaining to the same property, rent reflected therein would not be indicative of a fair rent.
33. Evidence on record would, therefore, bring out the position that vide lease deed dated 4.8.1989, Ex.P-9, rent of a shop in the same building on the ground floor was Rs.20/- per sq.ft per month. From the testimony of DW-1 and in particular the cross examination, defendant bank took on lease a premise in a DDA building in the same area in the year 2000 at a rent of Rs.40/- per sq.ft per month. A fair rent for ground floor area would be at least Rs.20/- per sq.ft per month in the year 1990. For mezanine floor, the rent would reasonably be expected to be less for the reason that higher is the floor, lesser is the rent. In my opinion, a fair rent for the mezannine portion would be Rs.15/- per sq.ft per month.
34. Portion in occupation of the bank on the ground floor was 2066 sq.ft and on the mezannine floor it was 1219 sq.ft. At the rate of Rs.20/- per sq.ft per month, fair market rent, for the ground floor portion would accordingly be Rs.41,320/- and for the mezannine floor at the rate of Rs.15/- per sq.ft per month it would be Rs.18,285/-. Total comes to Rs.59,605/-.
35. It is accordingly held that the plaintiff would be entitled to damages from the defendant in the sum of Rs.59,605/- per month.
36.Defendant has paid a sum of Rs.8,419.10 per month for the period 1.5.1989 to 31.3.1994. Plaintiffs would accordingly be entitled to a sum of Rs.51,185.90 per month as damages for said period. Since period is 59 months, damages awarded are in the sum of Rs.30,19,968.10. Plaintiffs would also be entitled to simple interest @ 12% p.a. on damages payable, interest to be payable with effect from each month successively on sum of Rs.51,185.90 payable each month. Interest would run till date of decree and from date of decree till date of realization.
37. Plaintiffs would also be entitled to costs against the defendants.