Mrs.Pushpa Kakkar & Another vs The New India Assurance Co. ...
2009 Latest Caselaw 1226 Del

                                      REPORTED
       IN THE HIGH COURT OF DELHI AT NEW DELHI

                        CS(OS) 2130/2003 & IA 3947/2008

#      Mrs.Pushpa Kakkar & Another                  ....... Plaintiffs
!                  Through: Mr.Sanjeev Anand, Advocate

                       VERSUS

$      The New India Assurance Co. Limited          ...... Defendant
^                        Through: Mr.H.L.Tikku and Mr.R.K.Tripathi,
                                 Advocates

                              RESERVED ON: December 4, 2008

               %       DATE OF DECISION:          APRIL 08, 2009

       CORAM:
*      HON'BLE MS. JUSTICE REVA KHETRAPAL

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

2.     To be referred to the Reporter or not?

3.     Whether judgment should be reported in Digest?

:      REVA KHETRAPAL, J.

The plaintiffs have filed the present suit for possession and recovery of

office premises bearing Flat No.202, Second Floor, E-9, Connaught House,

Connaught Place, New Delhi, admeasuring approximately 2,388 sq. ft., more

particularly, described in red in the site plan annexed with the plaint.

2. The suit property was originally owned by Mr.Triloki Nath Khanna

HUF, who executed a registered deed dated 23.09.1996, letting out the suit

property to the defendant w.e.f. 01.04.1996 for a period of three years, i.e.,

from 01.04.1996 to 31.03.1999, on a monthly rent of Rs.14,925/- exclusive of

electricity, maintenance charges, water taxes and surcharge. The lease deed

provided for an option for the renewal of the lease for the period beginning

from 01.04.1999 to 31.03.2002 at a rent of Rs.8.10 per sq. ft., for which a

fresh lease deed was to be executed. Clause 4(II) of the said lease deed also

provided for the renewal of the lease beyond 31.03.2002 if the defendant

desired and gave three months' notice in writing to the owner before the expiry

of the term, on rent as mutually agreed and subject to the same covenants as

contained in the earlier lease deed, except the clause for renewal. Both the

lessor and the lessee were entitled to mutually agree and terminate the lease by

giving three months' notice to the other party.

3. It is averred in the plaint that in terms of the clause 4(II) of the lease

deed dated 23.09.1996, a fresh lease was executed between Mr.Triloki Nath

Khanna and the defendant on 26.04.1999, whereunder the suit property was

leased to the defendant for a further period of three years from 01.04.1999 till

31.03.2002 at Rs.19,343/- with an option for renewal. The said lease was duly

registered with the Office of the Sub Registrar, Assurances. As per clause

4(IV) of the Lease Deed dated 26.04.1999, in case the previous owner

sold/cancelled his rights in the suit property, it was provided that the defendant

shall attorn to such transferors on the same terms and conditions, as contained

in the said lease deed.

4. It is further averred in the plaint that the defendant by its letter dated

19.10.2001 notified the owner/lessor that it wanted the renewal of the present

lease deed for a further period w.e.f. 01.04.2002 on terms to be mutually

agreed between the lessor and the lessee. Pursuant to the defendant's aforesaid

notice dated 19.10.2001, there was some correspondence and meetings also

took place between the parties. On 06.03.2002, a meeting was held between

the representative of the lessor Mr.Triloki Nath Khanna and the officials of the

defendant as to the renewal terms of the lease and the following terms were

mutually agreed, subject to the final approval of the same from the Head Office

of the defendant Company:-

"(a) The Lease Deed will be renewed for the period from 1.04.2002 to 31.03.2005 @ Rs.32.50 per sq.ft.

(b) There will be provision of two further renewals of 3 years term each. At the time of each renewal, rent will be increased by 20% over the rent last paid.

(c) The owner will be given security deposits equivalent to 6 months rent as on 1st April, 2002. This security will be refundable at the time of termination of Lease Agreement and will not bear any interest.

(d) Other terms and conditions of the Lease will remain unchanged.

(e) The Stamp Duty for registration will be shared on 50-50

basis between The New India & the owners. Lease Deed for every term of 3 years will be registered separately."

5. However, before the renewal of the lease deed could take place, the

lessor Mr.Triloki Nath Khanna by two separate registered sale deeds dated

13.05.2002 sold the suit property to the plaintiff Nos.1 and 2 in equal shares,

and by two separate letters dated 04.06.2002, one of which was sent by the

previous owner and the other by the plaintiffs, the defendant was informed of

the said transfer and requested to deal directly with the plaintiffs. The

plaintiffs by the aforesaid letter suggested to the defendant that a meeting be

held to discuss the renewal terms at the earliest.

6. The defendant, in response to the letter dated 04.06.2002 of the

plaintiffs', while asking for some documents, informed the plaintiffs that the

terms discussed with the previous owner had been sent to their corporate office

at Mumbai for their sanction and the same was awaited. On 12.08.2002, a

meeting was held between the plaintiffs and the Regional Office Committee of

the defendant at the office of the defendant. At the said meeting, the plaintiffs

offered to renew the lease on a monthly rent of Rs.50/- per sq. ft. with interest

free security deposit equivalent to six months' rent and on other terms and

conditions to be mutually discussed and decided. By their letter dated

20.08.2002, the plaintiffs reiterated the said offer. The defendant, however,

was not in agreement with the terms offered by the plaintiffs and wanted to

hold fresh negotiations for the rent, which the defendant wanted to be less than

Rs.32.50 per sq. ft. By their subsequent letter dated 12.09.2002, the plaintiffs

offered to accept monthly rent @ Rs.42.50 per sq. ft. for the renewal of the

lease. This not being acceptable to the defendant, on 27.12.2002, another

meeting was held between the plaintiffs and the defendant to discuss the terms

for the renewal of the lease w.e.f. 01.04.2002. At the said meeting, the revised

offer was discussed, which the defendant decided to send to its Competent

Authority at Mumbai for approval as follows:-

"(a) The lease agreement will be for 3 years effective from 1.04.2002 to 31.03.2005.

(b) The rent will be paid at the rate of Rs.42.50 per sq. ft.

This will be inclusive of all present and future taxes but exclusive of electricity and water charges which will be paid by the Defendant to the respective authorities as per actual consumption.

(c) The present lease agreement is for 3 years. However, the same is renewable for two further terms of 3 years and the Defendant agrees to enhance the rent by 20% at the time of each renewal of lease, other terms and conditions remaining unchanged. Renewal of lease after 31st March, 2011 will be on the terms to be mutually agreed and negotiated between the Defendant and the Plaintiffs at the relevant time.

(d) The Plaintiffs will be given security deposit equivalent to 6 months rent refundable at the time of vacating the premises by the Defendant. The security deposit will not bear any interest.

(e) The expenses on registration of lease will be shared on

50:50 basis."

7. By a communication dated 07.07.2003, the plaintiffs after a long wait,

were informed by the defendant that their Head Office had agreed to increase

the rent to Rs.42.50 per sq. ft., as negotiated, applicable from the current date

and not from 01.04.2002. The plaintiffs were requested to accord their

approval. By their letter dated 08.07.2003, the plaintiffs informed the

defendant that the said offer was not acceptable and the defendant was

requested to "convey their final approval to the terms recorded in the minutes

of the meeting dated 27th December, 2002 effective from 1st April, 2002 within

one month of the receipt of the said letter failing which it will be concluded

that the defendant was not interested in the mutual extension of the lease and

the plaintiffs would be at liberty to take such action which was in their

interest."

8. No response was received by the plaintiffs to the aforesaid letter sent by

the plaintiffs on 08.07.2003. The defendant unilaterally continued to tender

the rent at the rate which was not acceptable to the plaintiffs and ultimately, the

plaintiffs had no option left except to terminate the lease in favour of the

defendant vide their letter dated 25.08.2003 w.e.f. 30.09.2003. By way of

abundant caution, a registered notice dated 28.10.2003 was sent to the

plaintiffs once again terminating the lease of the defendant w.e.f. 30.11.2003.

By this notice, the defendant was requested to hand over the possession on

01.12.2003 to the plaintiffs and also called upon to pay the market rent that

was prevailing from 01.04.2002 onwards upto 30.11.2003.

9. The defendant vide their letter dated 13.11.2003 replied to the aforesaid

notice raising objections to the termination of the lease and refusing to hand

over the possession of the premises, leading to the filing of the present suit for

recovery of possession and mesne profits.

10. Summons of the suit were issued to the defendant and after the

completion of the pleadings, the following issues were framed on 16.05.2005:-

(1) Whether Mr.T.N.Khanna (HUF) was the owner of the suit property and had leased the same to the defendant through the registered deed? OPP

(2) Whether the said lease came to an end on 31.3.2002 and was not renewed thereafter? OPP

(3) Whether the plaintiff is a successor in interest of Mr.T.N.Khanna (HUF) in respect of the suit property?

OPP

(4) Whether the tenancy of the defendant in the suit property with effect from 1.4.2002, was on month to month basis and had been validly terminated by notice dated 28.10.2003, by the plaintiff? OPP

(5) Whether the plaintiffs have no locus standi to file the present suit? OPD

(6) Whether the plaintiffs had no right to terminate the lease and the lease is valid and subsisting upto 31.3.2005?

OPD

(7) Whether the defendant is not liable to hand over the possession of the suit property to the plaintiffs? OPD

(8) Whether the plaintiffs are entitled to claim damages from the defendant and if so, for what period and at what rate?

OPP

(9) Whether the suit is bad for non-joinder of necessary parties?

OPD

(10) Whether this Court has no pecuniary jurisdiction to entertain the present suit? OPD

(11) Relief

11. After the framing of the above issues, the suit was sent to trial. In the

course of the trial, the plaintiff No.1, Mrs.Pushpa Kakkar examined herself as

P.W.1. The defendant too examined only one witness, namely, D.W.1,

Mr.B.L.Gupta and both the parties closed their respective evidence.

12. It was at this stage that the plaintiff filed an application under Section

151 CPC and Order XII Rule 6 CPC, being I.A. No.3947/2008, praying for

judgment and decree on the basis of the admissions of the defendant in the

present suit. The defendant filed its reply, in which it submitted that the

present application was not maintainable at this belated stage and, in view of

the fact that even otherwise it is well settled by this Court that where the

admissions are not unequivocal and the defendant raises certain preliminary

pleas, which must be decided before the plaintiff can be held entitled to decree,

no decree on the basis of the alleged admissions could be passed (State Bank

of India Vs. Mid Land Industries, AIR 1988 Delhi 153). Alternatively, it was

submitted by the defendant that the preliminary objections raised by it in the

written statement, were required to be examined in detail, and if allowed,

would non-suit the plaintiffs.

13. After having gone through the record and having heard Mr.Sanjeev

Anand, the learned counsel for the plaintiffs and Mr.H.L.Tikku, the learned

counsel for the defendant, it is deemed expedient and more appropriate to deal

with the issues framed by this Court rather than to return a finding on the

application under Order XII Rule 6 CPC filed by the plaintiffs. While this

Court is conscious of the fact that there is no merit in the contention of the

defendant that the application has been filed belatedly and, therefore, cannot be

entertained at this stage, the nature of case is such as requires it to be decided

taking recourse to the evidence adduced by the parties. Thus, though the

admissions made by the defendant may obviate the necessity of looking into

the evidence of the parties so far as the prayer of the plaintiffs for recovery of

the possession is concerned, while considering the preliminary objections

raised by the defendant to the maintainability of the suit and the prayer for

damages/mesne profits, this Court may have no option (keeping in view the

provisions of Order XX Rule 12 CPC, which mandate an inquiry into the

matter), but to look at the result of the said inquiry as it emerges from the

evidence of the parties. It is, therefore, proposed to straightaway embark upon

adjudication of the issues framed.

ISSUE NO.1

14. This issue is wholly covered by the admissions made by the defendant

in the pleadings and the evidence. Thus, in para-1 of the Preliminary

Submissions to its written statement, the defendants states:

"The defendant is tenant of the premises, i.e., Flat No.202, Second Floor, 9-E, Connaught House, Connaught Place, New Delhi, admeasuring 2,388 sq. ft., of which the initial rent as per the lease deed dated 23.09.1996 was Rs.14,925/- for the period from 01.04.1996 to 31.03.1999 @ Rs.6.25 per sq. ft."

15. In the course of evidence, the original lease deed dated 23.09.1996

executed by Mr.Triloki Nath Khanna HUF in favour of the defendant, and

exhibited as Exhibit P-1, was admitted by the defendant and is relied upon in

the affidavit by way of evidence filed by D.W.1, Mr.B.L.Bhatia.

16. Then again, the registered lease deed dated 26.04.1999 between

Mr.Triloki Nath Khanna HUF through its Karta, Mr.Triloki Nath Khanna and

the defendant Company, whereunder the demised premises were leased for a

further period of three years from 01.04.1999 to 31.03.2002, has been

specifically admitted by the defendant in para-3 of its written statement,

wherein, it is specifically stated that a fresh lease dated 26.04.1999 was

executed by the landlord in favour of the defendant and registered in the Office

of the Sub-Registrar, New Delhi as Document No.7090 in Additional Book

No.1 Volume 75 at pages-69 to 81. The said lease deed (Exhibit P-3) has also

been specifically admitted by the defendant in evidence.

17. Even otherwise, it is trite to say that a tenant in a legal proceeding is

estopped from questioning the title of the landlord under Section 116 of the

Evidence Act. Reference in this connection may be made to the three Judge

Bench decision of the Hon'ble Supreme Court in Sri Ram Pasricha Vs.

Jagannath and Others reported in AIR 1976 SC 2335 wherein it is held :-

"..... The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law in a suit between landlord and tenant the question of title to the leased property is irrelevant..."

18. In view of the aforesaid, in my view, the plaintiffs must be held to have

discharged the onus placed upon them of proving that Mr.Triloki Nath Khanna

HUF was the owner of the suit property and had leased the same to the

defendant through the aforesaid registered lease deeds.

19. Issue No.1 is accordingly answered in the affirmative in favour of the

plaintiffs.

20. Since issue Nos.2 and 6 are inter-connected and deal with the

controversy as to whether the lease came to an end on 31.03.2002 or continued

to subsist till 31.03.2005, they are being dealt with together.

21. With reference to the aforesaid issues, the learned counsel for the

plaintiffs relies upon the letter dated 19.10.2001 sent through registered A.D.

post by the Senior Divisional Manager of the defendant Insurance Company to

Mr.Triloki Nath Khanna captioned:

"Renewal of lease deed in respect of premises Flat No.202, E-9, 2nd Floor, Connaught House, Connaught Place, New Delhi belonging to you expiring on 31st March, 2002."

The relevant portion of the aforesaid letter reads as under:-

"As per Lease executed in respect of this premises vide Lease Deed dt.26.4.1999, the lease deed is expiring on 31.3.2002.

Now, we wish to inform you that we want to renew the present Lease Deed for the further period w.e.f. 1.4.2002 on terms to be mutually agreed between you and our company.

You are requested to make it convenient to finalise the renewal of Lease Deed."

22. The aforesaid letter was admitted by the defendant in its written

statement as well as in the course of admission/denial of documents and is,

therefore, exhibited as Exhibit P-6. This was followed by a letter dated

15.12.2001 from Triloki Nath Khanna HUF to the defendant offering to renew

the lease deed on a monthly rent of Rs.62/- per sq. ft. with interest free security

deposit equivalent to six months' rent. This letter too is admitted by the

defendant and exhibited as Exhibit P-7.

23. Next, there appears on record the minutes of the meeting dated

06.03.2002, which are admitted by the defendant and exhibited as Exhibit P-8,

whereby it was agreed between the parties, subject to the final approval of the

same from the Head Office of the defendant that the lease deed would be

renewed for the period from 01.04.2002 to 31.03.2005 @ Rs.32.50 per sq. ft.

However, the defendant has not disputed that the said minutes did not fructify

in the execution of the lease deed and in the meanwhile, by two separate sale

deeds, the previous lessor Triloki Nath Khanna HUF sold the demised

premises to the plaintiffs. It is also not in dispute that no lease deed was ever

executed between the plaintiffs and the defendant and thus it must be held

that the lease dated 26.04.1999 came to an end on 31.03.2002 and was not

renewed thereafter.

24. Issue No.2 is accordingly decided in favour of the plaintiffs and, issue

No.6 must be decided against the defendant, and is decided accordingly by

holding that there was no valid or subsisting lease upto 31.03.2005.

25. Both the aforesaid issues are intricately connected with each other as

Issue No.3 deals with the aspect of the plaintiffs being successors in interest of

Triloki Nath Khanna in respect of the suit property and Issue No.5 deals with

the locus standi of the plaintiffs to file the present suit.

26. In the context of the aforesaid issues, the learned counsel for the

plaintiffs, Mr.Sanjeev Anand relied upon two admitted documents, being

Exhibits P-9 and P-10, both dated 04.06.2002. The document, Exhibit P-9, as

noticed above, is a letter written by Mr.Triloki Nath Khanna, Karta of Triloki

Nath Khanna HUF to the defendant Company, informing the defendant

Company of the two registered sale deeds dated 13.05.2002 executed by him

for the sale of the demised property to the plaintiff No.1 and the plaintiff No.2

in equal shares. It categorically states that pursuant to and in terms of the said

sale deeds, the plaintiffs were the new owners/landladies of the suit property.

It is also requested in the said letter that the defendant henceforth directly deal

with them in respect of the lease deed and also pay the rent directly to them. It

further clarifies as follows:-

"As you are aware the lease of the premises in your favour has already come to an end on 31.3.2002. You may discuss the matter directly with them for the terms and conditions at which the lease has to be renewed."

27. The second document, which too is an admitted document, exhibited as

Exhibit P-10, is a similar communication jointly sent by the plaintiffs Nos.1

and 2 to the defendant Company, informing the defendant Company as under:-

"This is to inform you that we have purchased the property No.2nd Floor, E-9, Con.House, Con.Place, New Delhi vide two separate registered Sale Deeds dated 13.5.2002 executed in our favour and as such you have attorned to us as the tenants of the said premises.....

Even after the expiry of the lease on 31.3.2002, we have been informed that you have been sending the rent at the same rate as agreed under the lease deed dated 26.04.1999, which have not been accepted by Mr.T.N.Khanna and are not acceptable to us (sic.).

We would like to discuss with you the terms and conditons at which the lease can be renewed in your favour and suggest a meeting be held for this purpose at the earliest at a mutually convenient date and time."

28. In response to both the letters dated 04.06.2002, the defendant by its

communication dated 24.06.2002 (admitted and exhibited as Exhibit P-11),

after acknowledging receipt of the letter dated 04.06.2002, wrote to the

plaintiffs that they had noted that the plaintiffs had purchased the property.

Significantly also, the defendant by the same communication sought to inform

the plaintiffs that:

"...........................the lease deed in respect of the property had expired on 31.03.2002 and the same was due for renewal w.e.f. 01.04.2002. Mr.T.N.Khanna (HUF) the previous owner of the property had negotiated the terms for renewal of lease deed w.e.f. 01.04.2002 with the Company.

These proposals have already been sent to our

Corporate Office at Mumbai for their sanction and we are awaiting their reply very shortly. After negotiations on the renewal terms, it was verbally agreed by the previous owner that the increased rent will be paid immediately after our getting the approval from our Head Office."

29. Reference was also made by Mr.Anand to clause 4 (IV) of the lease

deed dated 26.04.1999, to submit that the aforesaid letter is a candid admission

on the part of the defendant of having attorned to the plaintiffs and entered into

negotiations with them for the renewal of the terms and conditions of the lease

deed. Thus, it cannot be said that the plaintiffs had no locus standi to file the

present suit.

30. Issue Nos.3 and 5 are accordingly decided in favour of the plaintiffs and

against the defendant.

ISSUE NO.4

31. The learned counsel for the plaintiffs contended that the tenancy of the

defendant in the suit property w.e.f. 01.04.2002 was on month-to-month basis

and had been validly terminated by notice dated 28.10.2003 (Exhibit P-24),

which was duly served, as borne out by the postal receipts (Exhibit P-25) and

registered acknowledgment due cards (Exhibit P-26) placed on record. The

learned counsel further contended that the defendant had at no point of time

raised any objection as to the validity or sufficiency of the said notice, and the

only contention raised by it was that it was not a three months' notice in terms

of Clause 4 (III) of the lease deed and thus cannot amount to legal or valid

termination of the lease. This objection, learned counsel stated, is to be noted

in order to be rejected, for, a bare glance at Clause-4 (III) makes it evident that

the said clause was to operate only during the subsistence of the lease deed.

The said clause reads as follows:-

"That the lessor and the lessee may mutually agree to terminate this lease on giving three months' notice, therefore, to the other part."

32. I find merit in the contention of Mr.Anand, the learned counsel for the

plaintiffs and have no hesitation in holding that the Clause 4(III), which

provides for three months' notice, was to operate only during the subsistence of

the lease and that too by mutual agreement, and had no relevance whatsoever

after the lease expired and the tenancy became a tenancy on month to month

basis.

33. Accordingly, it is held that the tenancy of the defendant in the suit

property w.e.f. 01.04.2002 which was on a month-to-month basis had been

validly terminated by the plaintiff's notice dated 28.10.2003.

Issue No.4 is decided accordingly.

ISSUE NO.7

34. The onus of proving this issue was upon the defendant, but the

defendant has miserably failed to discharge the same by adducing any

worthwhile evidence to show that it is not liable to hand over the possession of

the suit property to the plaintiffs. This issue is accordingly decided against the

defendants.

ISSUE NO.9

35. Before dealing with Issue No.8, it is proposed to deal with this issue

which pertains to a preliminary objection raised by the defendant that the suit

is bad for non-joinder of Mr.Triloki Nath Khanna HUF, who was the landlord

of the premises and hence, is liable to be dismissed outright.

36. It is not in dispute between the parties that the previous landlord of the

premises was Mr.Triloki Nath Khanna HUF and that Mr.Triloki Nath Khanna

HUF, as agreed, had executed the registered lease deed dated 23.09.1996,

leasing the property to the defendant for a period of three years. It is also not

in dispute between the parties that a fresh lease deed was executed between

Mr.Triloki Nath Khanna HUF and the defendant on 26.04.1999 for a further

period of three years from 01.04.1999 till 31.03.2002, with an option for

renewal. However, a provision was made in clause 4(IV) of the lease deed

dated 26.04.1999, that in case the previous owner sold or cancelled its rights in

the property, the defendant shall attorn to such transferors, on the same terms

and conditions as were contained in the said lease deed.

37. As already stated above, it is also the admitted case of the parties that

Mr.Triloki Nath Khanna HUF had sold the leased premises to the plaintiffs and

the defendant had attorned to the plaintiffs. However, the lease deed could not

be renewed for want of any mutual agreement between the plaintiffs and the

defendant. The renewal for the period from 01.04.2002 to 31.03.2005 was

subject to increase in rent, as mutually agreed between the parties. The parties

were not able to mutually agree upon the quantum of increase in the rent, the

tenancy thereupon became a month-to-month tenancy and was terminated by

the plaintiffs vide notice dated 23.10.2003. In such circumstances, in my

considered opinion, the previous owner Mr.Triloki Nath Khanna, who was

admittedly no longer the landlord of the premises, was neither a necessary nor

a proper party.

38. At this juncture, it may be noted that CS(OS) No.1919/03 stated to be

filed by the mother of the plaintiff challenging the sale deed executed by

Mr.Triloki Nath Khanna, (the father of the plaintiff, in favour of the plaintiffs)

as void is pending adjudication in this Court, but the same has no bearing on

the relief prayed for in the present suit, which is a suit for possession and

recovery of damages from the plaintiff Nos.1 and 2.

Issue No.9 is accordingly decided against the defendant.

ISSUE NO.10

39. This issue relates to the pecuniary jurisdiction of this Court to entertain

the present suit. A reading of para-14 of the plaint shows that according to the

plaintiffs, the defendant is liable to pay the plaintiffs a sum of Rs.28,65,600/-

with interest @ 18% p.a. and as such, the preliminary objection with regard to

the pecuniary jurisdiction of this Court to entertain the present suit has no

merit.

Issue No.10 is decided accordingly.

40. The substratum of both these issues relates to the relief to be granted to

the plaintiffs and accordingly both these issues are being dealt with together.

In my considered opinion, in view of the foregoing discussion, the

plaintiffs must be held entitled to a decree for possession in their favour and

against the defendant, directing the defendant to hand over the actual vacant

physical possession of the suit property. Apart from this, the defendant must

also be held liable to pay rent from 01.04.2002 onwards upto 30.11.2003 at the

market rate that was prevalent for the suit property as well as future damages

from 01.12.2003 onwards till such time as they hand over the vacant

possession of the suit property to the plaintiffs.

41. According to the plaintiffs, the rate of rent during the period

intervening 01.04.2002 to 30.11.2003 was Rs.60/- per sq.ft. per month. On this

basis, the defendant, the learned counsel for the plaintiffs contended, is liable

to pay to the plaintiffs a sum of Rs.28,65,600/- as rent for the aforesaid period,

i.e. 2,388 sq.ft.xRs.60x20 months. Thereafter, the defendant was a trespasser

in the suit property and as such is liable to pay damages/user charges at the

market rate, which, according to the plaintiffs' counsel must be held to be

Rs.60/- per sq. ft. The plaintiffs' counsel thus submitted that the defendant is

also liable to pay to the plaintiffs future damages from 01.12.2003 onwards at

Rs.60/- per sq. ft. per month till such date the possession of the suit property is

handed over by the defendant to the plaintiffs. The defendant had been

sending to the plaintiffs, during this period, rent by way of cheques @

Rs.19,343/- per month, making it liable for payment of the balance with

interest @ 18% p.a., i.e., from 01.12.2003.

42. Per contra, the learned counsel for the defendant categorically denied

that the defendant was liable to pay market rent or damages @ Rs.60/- per sq.

ft. and thus liable to pay arrears of rent of Rs.28,65,600/-. He emphatically

denied that the defendant was a trespasser from 01.12.2003 and was

additionally liable to pay damages/misuser charges at Rs.60/- per month or at

any other rate. According to him, the plaintiffs were not entitled to any amount

in excess of the monthly rent at Rs.19,343/-, which in any case, the defendant

had been regularly paying to the plaintiffs by cheques, not encashed by them.

He submitted that the plaintiffs had not explained the basis of their demand or

the basis on which the aforesaid figure was arrived at.

43. In the course of the hearing, the learned counsel for the plaintiffs, in

order to buttress his claim in respect of the damages, relied upon the judgement

of a Division Bench of this Court (Hon'ble Mr.Justice D.P.Wadhwa and

Hon'ble Dr.M.K.Sharma) in Vinod Khanna & Others Vs. Bakshi Sachdev

(deceased) through L.R & Others, reported in AIR 1996 Delhi 32, to

contend that even in the absence of any evidence being led by the plaintiffs in

respect of the increase of rents, judicial notice can be taken of the fact of

increase of rents for the purpose of calculating the fair amount payable

towards damages/mesne profits in favour of the plaintiffs. In the said case

which was a suit for possession of rented premises and recovery of mesne

profits, the Division Bench held that the learned trial Judge, in the absence of

any evidence led by the landlord in respect of increase of rent, did not commit

any illegality in taking judicial notice of the fact of increase of rent and

determining the compensation in respect of the suit premises at Rs.10,000/- per

month w.e.f. 19.01.1989 in view of the fact that the rent fixed for the said

premises was at Rs.6,000/- per month as far back as in the year 1974. In

paragraph-21 of the judgment, the Division Bench observed as follows:-

"It is true that no substantial evidence has been led by the plaintiffs in respect of the increase of rent in the properties like that of the suit property. However, it is a well known fact that the amount of rent for various properties in and around Delhi has been rising staggeringly and we cannot see why such judicial notice could not be taken of the fact about such increase of rents in the premises in and around Delhi, which is a city of growing importance being the capital of the country, which is a matter of public history. At this stage, we may appropriately refer to the Court taking judicial notice of the increase of price of rents rapidly in the urban areas in connection with the land acquisition matters. Even the Apex Court has taken judicial notice of the fact of universal escalation of rent and even raised rent of disputed premises by taking such judicial in case of D.C.Oswal Vs. V.K.Subbiah; reported in AIR 1992 SC 184."

44. Reference was next made by the learned counsel for the plaintiffs to the

judgement of a learned Single Judge of this Court in M/s. Atma Ram

Properties (P) Limited Vs. M/s. Pal Properties (India) Pvt. Ltd. & Others,

reported in 91(2001) DLT 438. In the said case, as in the instant cast, an

inquiry, as contemplated under Order XX Rule 12 of the Code of Civil

Procedure, had already been undertaken by the Court through the Joint

Registrar, who had recorded evidence in this regard and it was held that this

Court after taking the said evidence into account should also take judicial

notice of the increase of rents in Delhi, which would be fully justified in fixing

the quantum of damages/mesne profits payable by the defendant to the

plaintiffs.

45. A look at the evidence in the above context is warranted at this juncture.

In the affidavit by way of evidence filed by the plaintiff No.1, Pushpa Kakkar,

the said witness deposed as follows:-

"I state that the lease under the registered deed in favour of the defendant with respect to the suit property came to an end on 31st March, 2002. Thereafter the lease was not renewed in their favour under any agreement or document, registered or otherwise. The tenancy as such of the defendant with effect from 1st April, 2002 was on month to month basis starting from 1st day of the month and ending with the last day of the month.............................................. As there was no consensus on the rent which the defendant was liable to pay to us from 1st April, 2002 onwards upto 30th November, 2003, the defendant is liable to pay to us the market rent that was prevailing for the suit property/similar properties for this entire period. I am attaching hereto as Mark 'A', photocopy of the registered lease deed dated 5th May, 1995 with respect to the ground floor of the same building in which the suit property is located, entered into by thelandlord Sh.Bhola Nath and the tenant, Centurion Bank Limited. As per this lease deed, the rent was Rs.110/- per sq. ft. per month for the period 05.05.1995 to 04.05.1998 with a renewal in lease for two further periods of 3 years each with an increase in rent by 25% on the last paid rent. According to us, the market rent during this period of our suit property was also Rs.110/- per sq.ft. per month. On this basis the defendant is liable to pay to us a sum of Rs.52,53,600/-."

46. In the course of cross-examination of P.W.1 Pushpa Kakkar, a

suggestion was put to her that she had falsely stated in the affidavit that the

market rate of the premises at the time of filing of the suit was @ Rs.110/- per

sq. ft., which was categorically denied by her and she reiterated that at the time

of filing of the suit, the rate of rent in the vicinity was around Rs.110/- per sq.

ft. per month.

47. The defendant Insurance Company in the course of its evidence, as

already stated above, examined only one witness viz. D.W.1 B.L.Gupta, its

Divisional Manager, who, in his affidavit by way of evidence, merely stated

that no consensus could be arrived at with regard to the rate of rent and that the

rate of rent was mutually agreed at Rs.32.50p. per sq.ft. in a meeting held on

06.03.02. In the course of his cross-examination, however, he candidly

admitted that he did not know what was the rate of rent in the years 2002 to

2007 in the Connaught Place area and that he had never tried to make inquiry

in that regard. He further stated:-

"It may be that present rate of rent in Connaught Place is Rs.140 per sq. ft. and I do not know whether it was Rs.110 per sq. ft. in the year 2002............. I cannot tell if Insurance Company had written a letter dated 07.07.2003 to the landladies offering to increase the rent of Rs.42.50 per sq. ft. from the current rate i.e. 07.07.2003 and not from 01.04.2002 because I was not there at that time."

48. In my considered opinion, the aforesaid evidence clinchingly

establishes the plaintiffs' stand that the plaintiffs had received a

communication dated 07.07.2003 from the defendant wherein it was

mentioned that its head office had agreed to increase the rent to Rs.42.50 per

sq. ft. applicable from the current date and not from 01.04.2002 and that the

said offer was not acceptable to the plaintiffs. In my considered opinion also,

judicial notice can be taken of the fact that the rate of rent in the Connaught

Place area in the year 2002 onwards upto 30.11.2003 was not less than Rs.60

per sq. ft. per month, though it is possible that for certain buildings/floors, the

rent was as high as Rs.110 per sq. ft. as deposed by P.W.1, Pushpa Kakkar. It

is accordingly held that the defendant is liable to pay to the plaintiffs

rent/damages at the rate of Rs.60 per sq. ft. per month from 01.04.2002

onwards till such date the possession of the suit property is handed over by the

defendant to the plaintiffs. The defendant during this period claims to have

sent cheques to the plaintiffs in the sum of Rs.19,343 per month towards rent.

The said amount if any received by the plaintiffs shall be entitled to be set off

from the amount calculated to be payable by the defendant to the plaintiffs.

The plaintiffs shall also be entitled to receive interest @ 9% p.a. on the

balance amount.

49. In the result, a decree for possession in favour of the plaintiffs and

against the defendant directing the defendant to hand over the actual vacant

physical possession of the suit property being Flat No.202, Second Floor, E-9,

Connaught House, Connaught Place, New Delhi-110001 admeasuring

approximately 2,388 sq. ft., more particularly described in the Schedule A and

delineated in red in the plan annexed to the plaint, is passed. A decree is also

passed for a sum of Rs.28,65,600/- in favour of the plaintiffs against the

defendant as rent for the period intervening 01.04.2002 onwards upto

30.11.2003 and for future damages at Rs.60/- per sq. ft. per month from

01.12.2003 onwards till such time as the possession of the suit property is

handed over by the plaintiffs to the defendant. The defendant shall, however,

be entitled to deduction of the amount of Rs.19,343/- per month, if paid,

making it liable for payment of the balance with interest at 9% p.a. Costs

payable to the plaintiffs shall also be calculated by the Registry and paid to the

plaintiffs by the defendant.

CS(OS) 2130/2003 and IA 3947/2008 are disposed of accordingly.

APRIL 08, 2009                              REVA KHETRAPAL, J.
aks