* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CM No. 10131/2008 IN RFA (OS) No. 47/2008
% Date of decision : 27.05.2009
JAGBIR SINGH ... ... ... ... ... ... ...APPELLANT
Through : Mr. Vivek Chib &
Mr. Vibhore Kr. Singh,
Advocates.
-VERSUS-
JAI SINGH PANWAR & ORS. ... ... ... ... RESPONDENTS
Through : Mr. Arun Varma &
Mr. Aman Anand,
Advocates for LRs of R-1.
R-2 to R-5 proceeded ex-parte
vide Order dated 17.02.2009.
CORAM :
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
SANJAY KISHAN KAUL, J. (ORAL)
1. A suit for possession, recovery of mesne profits / damages for use and occupation, declaration and permanent injunction was filed by respondent No. 1 against the appellant and respondents No. 2 to 5 in CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 1 of 11 respect of the property bearing Municipal No. 35-B, Village Shahpur Jat, Delhi ( hereinafter referred to as, 'the suit property' ). Respondent No. 1 / the original plaintiff claims to have left for United States of America (USA) in the year 1980 leaving behind the house in the care and possession of one Master Hari Chand Kadian, relative. The son of respondent No. 1 visited India in February, 1990 when a marriage was finalized and thereafter solemnized with one Kumari Sneh Singh, daughter of respondent No. 2. The marriage, however, did not succeed. Respondent No. 1 has alleged that respondent No. 2 in collusion with the appellant and respondents No. 3 to 5 illegally took possession of the house built on the land and that they had even forged and fabricated documents alleging that respondent No. 1 had agreed to sell the suit property to the appellant. The appellant appointed a new Attorney and thereafter suit was filed in the year 1991.
2. The suit unfortunately dragged on for a very long time and was ultimately dismissed with costs of Rs.50,000/- against the appellant in terms of the judgment and decree dated 19.05.2008.
3. The defence of the appellant in the suit was that he was the bona fide purchaser without notice in respect of the suit property from respondent No. 2 on the strength of a Power of Attorney stated to have been executed by CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 2 of 11 respondent No. 1 in favour of respondent No. 2. The suit was not contested by respondent No. 2 and it was left to the appellant to establish that any Power of Attorney was executed in favour of respondent No. 2 by respondent No. 1. The appellant failed to establish such a Power of Attorney. The findings of learned Single Judge are against the appellant practically on all issues and it is found that the appellant had failed to establish any Agreement to Sell in his favour by respondent No. 1 through any duly authorised Attorney. The damages were awarded to respondent No. 1 against the appellant at the rate of Rs.6,000/- per month from 01.10.1991 as the appellant had no right, title or interest to occupy the suit property. These were the damages claimed originally at the stage of filing of the suit.
4. The appeal was admitted on 17.02.2009 being a first appeal, which would be both on law and facts. The appellant filed an application for interim relief and when notice had been issued earlier on the appeal, the decretal amount of damages was directed to be deposited vide Order dated 23.07.2008 and subject to that, the stay of judgment and decree was granted. The decretal amount, which was so deposited by the appellant, has been released to respondent No. 1 subject to furnishing an undertaking for restitution in case the appellant succeeds.
CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 3 of 11
5. On 17.02.2009, it was noticed that the mesne profits / damages awarded at the rate of Rs.6,000/- per month were on the basis of the tentative claim of mesne profits when the suit was filed in the year 1991 and, thus, it would have to be determined as to what amount the appellant should be directed to deposit in the Court per month during the pendency of the appeal and as to what security should be provided by the appellant as a condition of stay in view of the fact that the appellant had continued to enjoy possession and would continue to enjoy the suit property even after the suit had been decreed against him during the pendency of the appeal in view of the earlier interim orders. The matter was heard on 28.04.2009 when it was noticed that in order to determine the amount of use and occupation charges, which the appellant should deposit during the pendency of the appeal, two aspects had to be examined : (i) the rate per sq.ft.; and (ii) the actual covered area. The parties had placed on record material insofar as the rate per sq. ft. was concerned, but there appeared to be a wide disparity in the covered area as stated by the parties. It was, thus, agreed by learned counsel for the parties that a Local Commissioner should be appointed to measure the existing covered area of the premises for all the floors. CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 4 of 11 The Local Commissioner was so appointed and has submitted a report dated 08.05.2009.
6. The report of the Local Commissioner shows that there is a dwelling house on the property consisting of Ground Floor and First Floor. This house is on the rear portion of the plot and on the front side, there is a large tin-shed starting from the main entrance right upto the dwelling unit. There is also another small tin-shed in one corner of the suit property. The Ground Floor consists of one living room, two bedrooms, two toilets, one kitchen and a store room and on the First Floor, there is a lobby, one drawing room, two bedrooms, one toilet and one kitchen and the remaining area is lying as terrace. The measurements were taken with the assistance of an Architect and are as under :-
S.No. Particulars of Floor / Area Carpet Area
1. Ground Floor 815.78 sq. ft.
2. First Floor 708.60 sq. ft.
3. Large tin-shed on the front side 1147.37 sq. ft.
4. Small tin-shed on the corner 150 sq. ft.
7. The Local Commissioner along with the report has also annexed the photographs, which show that what is shown as the tin-shed has a proper flooring and a ceiling with Girders. Surprisingly, cars were found parked there though photographs show that the interior has been altered as some poles had been removed CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 5 of 11 whose holes were visible. There is also a fan. The stand of learned counsel for respondent No. 1 is that there were originally cabins and after the directions passed by this Court, those cabins had been dismantled to give a picture as if the area was used for car parking, which could not be so in view of the interiors of the tin- shed.
8. Insofar as the current rate per sq. ft. of the area is concerned, respondent No. 1 claims that the structure can be used for commercial letting and gave rates of adjacent areas let out. On the other hand, the appellant claimed that the premises were being utilized only for residential purposes and, thus, only residential letting rates could be considered.
9. The appellant filed a Rent Agreement dated 18.02.2009 of the Ground Floor in Shahpur Jat Village and another one dated 24.04.2008 of the same area. Learned counsel for the appellant pleads that the rate varies between Rs.11.77 per sq. ft. to Rs.13 per sq. ft. Learned counsel for respondent No. 1 has relied upon the Lease Deeds of property bearing No. 4A where Ground Floor is let out at the rate of Rs.30 per sq. ft. and the Lease Deed dated 01.09.2008 where the First Floor has been let out at the rate of Rs.21.87 per sq. ft. Respondent No. 1, thus, claims the amount as per these Lease CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 6 of 11 Deeds depending on the floor and the sq. ft. area as under :-
Ground Floor Lease Deed at Lease Deed at Annexure R1-A @ Annexure R1-D @ Rs.30/- per sq. ft. Rs.21.87 per sq. ft.
for Ground Floor for First Floor
815.78 sq. ft. Rs.24,473.40
(Carpet Area)
1147.73 sq. ft. Rs.34,431.90
{Tin Shed (1)}
150 sq. ft. {Tin Rs.4,500.00
Shed (2)}
Total Rs.63,405.30
First Floor
708.60 sq. ft. Rs.15,500.60
(Carpet Area)
Total Rs.63,405.30 + Rs.15,500.60 = Rs.78,905.90 p.m.
10. It is the submission of learned counsel for respondent No. 1 that the fact that the appellant is using the premises for residential purposes is not material as it has the potentiality of commercial use. A rough sketch plan of the area was also produced by learned counsel for the appellant to show where the property bearing No. 4A was located and the suit property. On perusal of the said rough sketch plan with the assistance of learned counsel for the parties, it became obvious that the picture sought to be presented before us of the suit property being in an inferior location was not correct as access to the suit property is from the peripheral road of Shahpur Jat, which has access through August Kranti Marg, while access to property bearing No. 4A is through a pedestrian shopping street.
CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 7 of 11
11. We are conscious of the fact that no exact calculation is possible, but we cannot lose sight of the fact that the suit property has a commercial potential. The Lease Deeds filed by respondent No. 1 prima facie are proof of this. The appellant cannot claim that because he is using the property for residential purposes, the commercial potentiality should be ignored. We have also noticed that the sheds are being used as car parking area possibly for consideration as per the situation prevalent on the visit of the Local Commissioner. The nature of those sheds, however, show that they are really not meant for car parking and there seems to be some truth in the claim of learned counsel for respondent No. 1 that there have been alterations in the structure to show it as a car parking though earlier cabins existed in the sheds. No one would make proper flooring for car parking with coverage and fans. There are also telltale holes, which have been filled up where there could be existing internal partition poles.
12. We are of view that the benchmark of commercial letting has to be taken into consideration, but a discount has to be made for the fact that the appellant has been using a part of the premises for residential purposes and the premises are old. The fact that the appellant has constructed the First Floor without any authority of CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 8 of 11 respondent No. 1 as also the sheds would not imply that the appellant can utilize the same without paying for it. We, thus, consider it appropriate to give a discount of about 25% on the commercial letting potential and feel that a reasonable amount of use and occupation charges for the property would be Rs.60,000/- per month.
13. Learned counsel for the appellant sought to rely upon the judgment in Smt. Krishna Prakash & Anr. v. Dilip Harel Mitra Chenoy, 2001 V AD (Delhi) 685 to contend that since respondent No. 1 had not led any evidence in excess of Rs.6,000/- per month as damages, interim use and occupation charges could not be more than what was decreed by the learned Single Judge. It was emphasized that respondent No. 1 had not filed any cross-objections. We find the said judgment of little assistance in the given facts of the case where the damages were originally sought on the basis of the position prevalent when the suit was filed in the year 1991. Since then, eighteen years have elapsed and ground realities have changed. The appellant has lost in the suit. The defence of the appellant was of having entered into an Agreement to Sell to purchase the suit property through an alleged Attorney of respondent No. 1, which was not proved. Respondent No. 1 has been residing in USA.
CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 9 of 11
14. We are fortified in our view by the observations of the Supreme Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., 2005 (1) SCC 705 where it was held that an appellate court while exercising jurisdiction under Order 41 Rule 5 of the CPC does have the power to put the appellant tenant on terms while granting stay of decree for eviction. We are unable to accept the plea of learned counsel for the appellant that since that judgment related to a tenancy protected under the Delhi Rent Control Act, 1958, analogous principles would not apply in the present appeal. In fact, in our view, they would apply more so in the present appeal where the occupation of the appellant is not protected under any Rent Act, but is claimed on the basis of an alleged Agreement to Sell, which he has failed to establish before the learned Single Judge.
15. It is not always possible to decide every case promptly because of pendency of large number of matters and, thus, litigants at times take advantage of delays. The first appeal being both on law and facts would have to be examined and this gives an opportunity to the appellant(s) to prolong the litigation. There are observations to this effect in Atma Ram Properties Pvt. Ltd.'s case (supra) and the present case is one where the litigation before the court of first instance has been prolonged for eighteen years and we see no reason why CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 10 of 11 appropriate condition should not be put on the appellant if he wants to continue to enjoy the occupation of the suit property.
16. We, thus, direct the appellant to deposit a sum of Rs.60,000/- per month commencing from the date of interim stay in appeal, i.e., 23.07.2008 till he continues to occupy the suit property. The arrears to be deposited within two months from today. If the appellant fails to deposit this amount, there would be no stay of operation of the judgment and decree even insofar as dispossession of the appellant is concerned. If the amounts are deposited, the same can be released to respondent No.1 on furnishing security for restitution to the satisfaction of the Registrar General. If no security is furnished, the amount deposited be kept in FDs of one year each initially to be kept renewed till further orders.
17. The application accordingly stands disposed of.
SANJAY KISHAN KAUL, J.
May 27, 2009 SUDERSHAN KUMAR MISRA, J. madan CM No. 10131/2008 IN RFA (OS) No. 47/2008 Page No. 11 of 11