Shri Inder Sain Bedi vs Chopra Electricals
2008 Latest Caselaw 1457 Del

            HIGH COURT OF DELHI : NEW DELHI

                            FAO (OS) No.218/1998

                                 Judgment reserved on :    21st July 2008

                                 Pronounced on         :     27th August, 2008


SHRI INDER SAIN BEDI             ........Appellant
                    Through : Mr.Rajan Sabharwal, Adv.

                       Vs

CHOPRA ELECTRICALS              .......Respondent
                  Through : Ms. Neelima Tripathi, Adv.

Coram:

HON'BLE MR.JUSTICE A.K.SIKRI
HON'BLE MR.JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported
   in the Digest?

MANMOHAN SINGH, J.

1. This is an appeal filed by the appellant (hereinafter referred

to as „plaintiff‟) against the order dated 9 th July, 1998, passed in IA

No.2436/1994 in Suit No.519/1994, dismissing the application under

Section 151 of the Code of Civil Procedure for fixing an interim amount

as damages/mesne profits payable to the plaintiff with the direction to

the respondent (hereinafter referred to as „defendant‟) to pay the same

every month to him. The main suit was filed by the plaintiff for

recovery of possession, mesne profit and injunction etc.

2. The case of the plaintiff in the trial court was that the

plaintiff is the owner of a commercial property bearing no. B-59/1,

Narayana Industrial Area, Phase-II, New Delhi. According to him, the

defendant had taken on rent a portion of the said property shown

"green" in the plan attached to the plaint on 26 th May, 1980, and from 1st

May, 1981, each time for a period of 11 months at the rent of Rs.4,500/-

per month.

3. It was averred in the plaint that the defendant in the year

1983 encroached upon the other portion of the property in an area

approximately 3193 sq. ft. detailed in para 8 of the plaint and shown

"red" in the plan. It was also learnt that he unauthorizedly made some

construction in the said portion.

4. The plaintiff by notice terminated the defendant‟s tenancy

regarding the subject matter of the premises and the defendant having

not vacated it, he filed the suit (Suit no.384/1989) for the recovery of

possession before the Additional District Judge, Delhi reserving his

right to take appropriate action for possession, compensation etc.

separately pertaining the portion of the property encroached upon.

5. The said suit was contested by the defendant inter alia on the

plea that the entire property comprising of both the "green" and "red"

portion had, in fact, been rented out to him and no portion was

encroached upon and that the notice to vacate demise premises was

illegal and the suit as filed was not maintainable for the part of tenancy.

6. It was averred that after trial, the learned Additional District

Judge decreed the suit on 23 rd April, 1993 and the plaintiff thereafter

served the notice on 19th May, 1993 calling upon the defendant to pay

damages/mesne profits and also to vacate the said encroached portion

and on his failure to comply the requirement of the notice the plaintiff

filed the suit before this Hon‟ble Court (Suit no. 519/1994) for

possession of the portion encroached upon, recovery of Rs.16,72,992/-

damages/mesne profit with mandatory injunction etc.

7. During the pendency of the suit, the plaintiff filed the

application under Section 151 CPC for fixing the interim amount of

damages/mesne profits payable to the plaintiff. After hearing, the said

application was dismissed on the main reason that the plaintiff claims to

have learnt about the alleged encroachment by the defendant in the year

1983 but he chooses to keep mum for about ten years and the

application was filed only in 1993. Another reason for rejecting the

application was pendency of the appeal in RFA No.507/1993 filed by

the defendant against the judgment and decree dated 23 rd April, 1993,

passed by the Additional District Judge, Delhi.

8. We have heard the arguments of the learned Counsel for both

the parties in the main appeal as well as four miscellaneous applications

being CM No.5057-60/2008 filed by the plaintiff/appellants. The first

submission made by the learned counsel for the plaintiff is that when

this appeal was listed on 29th January, 2008, no one appeared on behalf

of either of the parties, and the appeal has been disposed of having been

rendered as infructuous in view of the judgment dated 16 th March, 2004,

passed in the connecting appeal RFA No.507/1993. He informed that

since no one appeared, therefore, the court was not aware about the

orders passed by the Supreme Court on 27 th August, 2004, having

setting aside the said judgment passed in RFA No.507/1993 otherwise

the order dated 29th January, 2008, would not have been passed. The

plaintiff has moved an application being CM No.5057/2008 in this

Court under Order 41 Rule 19 CPC Code of Civil Procedure in this

respect and one of the prayers is to restore this appeal. In view of the

reason stated, we restore the appeal at original position.

9. The second prayer in the said CM No.5057/2008 is that the

plaintiff in this appeal had expired on 10 th March, 2002, and the plaintiff

in fact on 30th April, 2002, filed the application under Order 22 Rule 3

read with Section 151 CPC being IA No.5292/2002 in the main Suit

no.519/1994 and the said application was allowed by the learned trial

court by order dated 14th August, 2002. In this appeal similar prayer

has been made in the application alongwith the application for

condonation of delay for bringing the legal representative of the

appellant on record. Since the application has already been allowed in

the main suit present appeal has arisen out of the said suit, therefore, the

delay in filing of the application is condoned and the legal

representative of the plaintiff/appellant are brought on record and

pending CM Nos.5057-5760/2008 are disposed of accordingly.

10. The learned counsel for the plaintiff has brought to our

notice that during the pendency of the present appeal the possession of

the suit premises has also been handed over by the defendant in

compliance with the judgment passed by the apex court on 27.8.2004 in

Civil Appeal no.6405/2002.

11. Learned counsel for the plaintiff has also made another

submission that when the connecting appeal RFA No.507/1993 was

pending before this Hon‟ble Court in CM No.1081/1993 the following

order was passed by the Division Bench on 24th April, 1995 :

"Mr. Bhasin says that without prejudice to his contentions

the petitioner will pay rent/damages @ Rs.10,000/- per

month as from 1st January 1995. We feel it is a fair offer.

Of course, the petitioner will not claim any equity on that

account. The arrears etc. as mentioned above, may be paid

within one month and future rent/damages by the 10 th of

each succeeding month."

12. On the other hand, the learned counsel for the defendant has

argued that as per the admission made in para 7 of the plaint, the

plaintiff learnt about the encroachment in the year 1983 as alleged but

the application was under Section 151 CPC was filed in the year 1993

which was barred by time. Secondly, the learned counsel for the

defendant has made the submission that the appeal against the interim

order passed by the learned Single Judge is not maintainable and lastly,

since the main suit is at the final stage as evidence of the parties are

being recorded, therefore, this Hon‟ble Court should not interfere with

the discretionary orders passed by the learned Single Judge.

13. We have considered all the facts and circumstances. The question

before us is very limited as to whether the order passed by the learned

Single Judge in the application under Section 151 CPC for fixing an

interim amount as damages/mesne profits is sustainable or not.

14. It is an undisputed fact that the plaintiff had the knowledge of the

said encroachment by the defendant since April, 1983 and the subject

matter of application was filed after about ten years. Further, it appears

from the trial court record that the trial has already begin and the main

suit is almost in final stage where the question of damages and mesne

profit is going to be determined as the only dispute left pending between

the parties.

15. As regards other submissions of the learned counsel for the

parties are concerned, it is not in dispute that their exists change of

circumstances in the matter which have happened during the pendency

of the present appeal, although as per trial court record, the pleadings

have not been amended by the plaintiff on additional facts. Even

otherwise we feel that those are not to be decided in the present appeal

as the scope of this appeal is restricted to the impugned order where

the application under Section 151 CPC is dismissed. Therefore, we are

unable to consider the said circumstances which are not the subject

matter of the present appeal.

16. However, the plaintiff is at liberty to file the fresh application for

bringing on record the additional facts before the trial court, if so

advised in accordance with law.

17. In view of the above, we are not inclined to interfere with the

impugned order dated 9th July, 1998. The present appeal is dismissed.

No costs.

MANMOHAN SINGH, J.

August 27, 2008                                            A.K. SIKRI, J.
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