Commodore G.C.Mitra Avsm(Retd.) vs Mr.Ashish Dogra
2009 Latest Caselaw 1359 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI
                               CS(OS) No.717/2000
+
                        Date of Decision: 13.04.2009
%
Commodore G.C.Mitra AVSM(Retd.)                                     .... Plaintiff
             Through: Mr.Shantanu Rastogi, Advocate


                                     Versus

Mr.Ashish Dogra                                                   .... Defendant
              Through: Nemo.



CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.    Whether reporters of Local papers may be                      YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                        NO
3.    Whether the judgment should be reported in                    NO
      the Digest?



ANIL KUMAR, J.

*

1. This is a suit for possession and recovery of damages and mesne

profits and injunction. The plaintiff claims that he is the

owner/landlord of premises No.C-7/3, Vasant Vihar, New Delhi. The

plaintiff has contended that the front portion of the second floor of the

said property, consisting of a drawing-dining and a bedroom with

attached bathroom was let out to the defendant vide a lease deed dated

4th November, 1998 at a monthly rent of Rs.20,000/- per month besides

payment of electricity and water charges. The rent was agreed to be

paid on quarterly basis and in advance by cheque.

2. The plaintiff has contended that the lease deed dated 4th

November, 1998 was executed between the parties, but the lease deed

was not got registered as contemplated under the law. Therefore, the

defendant became a tenant on month to month basis. The defendant is

alleged to have paid rent for sometime and thereafter the defendant

stopped making payments and as on 31st January, 2000 defendant was

allegedly liable to pay a sum of Rs.1,40,000/- as arrears of rent in

respect the premises demised.

3. The plaintiff has also claimed that the defendant is liable to pay

electricity charges as per sub-meter readings. It was contended that

though the defendant had paid two bills of Rs.15,030/- and Rs.13,

950/- directly to Delhi Vidyut Board by cheque, still some amount was

due from the defendant.

4. On account of lapses committed by the defendant the plaintiff

determined the tenancy with effect from midnight of 31st January, 2000

by giving a legal notice dated 24th December, 1999 and demanded

possession of the suit premises. Since the defendant failed to restore

the peaceful possession of the premises whose tenancy had been

determined, the suit for recovery of possession along with arrears of

rent of Rs.1,40,000/- was filed.

5. The plaintiff has also contended that since the defendant

continued in possession of the suit premises even after the month to

month tenancy was determined he is liable to pay damages with effect

from 1st February, 2000. The plaintiff is claiming damages for the period

1.2.2000 to 1.4.2000 at Rs.75, 000/- per month amounting to a total of

Rs. 1,50, 000/-.

6. The plaintiff has also contended that the defendant is liable to

pay damages on account of misuse of premises by unauthorized

installation of an industrial generator set fitted with six cylinder engines

weighing about one tone with a size of 6 feet x 4 feet x10 feet on top of

the building. It is alleged that the prolonged heavy strain on the terrace

has put the entire structure of the building consisting of four floors

most vulnerable to collapse. Though the plaintiff had claimed an

amount of Rs.6,00,000/- under this head in the legal notice sent to the

defendant, the plaintiff has averred that he is only claiming symbolical

damages of Rs.1,00,000/- as he is not in a position to pay the Court fee

due to financial constraint.

7. The defendant contested the suit and filed the written statement.

The defendant contended inter-alia that the lease was for a period of

three years with revival clause and, therefore, it could not be terminated

before the expiry of the term.

8. An application was filed on behalf of plaintiff under Order XII

Rule 6 of the Code of Civil Procedure. This Court by judgment dated

15th October, 2001 allowed the application and decreed the suit for

recovery of possession and a decree of possession was passed in favour

of plaintiff and against the defendant in respect of tenanted premises i.e

front portion of the second floor of the property C-7/3, Vasant Vihar,

New Delhi.

9. By order dated 15th October, 2001 the suit was directed to be

proceeded qua other reliefs for mesne profits and recovery of arrears of

rent etc. Pursuant to order dated 15th October, 2001 the keys of the

premises were handed over to the plaintiff.

10. On 12th July, 2002 on the basis of the pleadings and documents

of the parties for the reliefs other than for recovery of possession the

following issues were framed:-

1. Whether plaintiff is entitled to a decree of arrears of rent? If so, to what amount?

2. Whether plaintiff is entitled to decree for recovery towards damage/mesne profits for use and occupation of the premises? If so, to what amount and at what rate per month?

3. Whether plaintiff is entitled to pendente lite and future interest? If so, at what rate?

4. Whether plaintiff is entitled for the damages towards damage to the building as alleged in the plaint?

5. Whether plaintiff is liable to pay electricity charges as alleged in the plaint?

11. On 27th November, 2002 the plaintiff was examined as PW.1.

Despite the opportunity given to the defendant, the plaintiff was not

cross examined and therefore the cross examination of PW.1 by the

defendant was closed. Two other witnesses were also examined by the

plaintiff on 15th January, 2003, however, even they were not cross

examined and the defendant's right to cross examine was closed. The

plaintiff, thereafter, closed his evidence. Since the defendant did not

appear on 27th November, 2002 or on 15th January, 2003 the evidence

of the defendant was closed and the matter was listed for final disposal

by an order dated 11th February, 2003.

12. The defendant had also filed an appeal being FAO(OS)

No.40/2001 in which the appellant paid the amount of electricity

charges and by order dated 19th December, 2002 it was held that no

amount was due from defendant to Delhi Vidyut Board/BSES Rajdhani

Power Ltd and, therefore, the appeal was disposed of. However, the

counsel for the defendant had stated, at the time of disposal of appeal,

that extra amount had been paid to BSES Rajdhani Power Ltd and,

therefore, the defendant will take recourse regarding recovery of extra

amount from BSES Rajdhani Power Ltd in accordance with law.

13. On 27th November, 2002 the affidavit of PW.1 was tendered in

evidence which was exhibited as Exhibit P1. Deposition of PW.2

Shri.Kunal Mathur and PW.3 Mr.Raman Salwan were tendered on 15th

January, 2003 and were exhibited as exhibit P.2 and exhibit P.3

respectively. The plaintiff in his deposition dated 21st November, 2002

deposed that he is the owner/landlord of premises C-7/3, Vasant Vihar,

New Delhi and that he had let out the front portion of the second floor

to the defendant at a monthly rent of Rs.20, 000/-

14. The plaintiff deposed that the possession of the premises was

handed over to him on 17th December, 2001 in pursuance to an order

dated 15th October, 2001. It was deposed by the plaintiff that the

tenancy was terminated and with effect from 1st February, 2000 the

possession of the defendant became unlawful. The plaintiff has claimed

that he is entitled to arrears of rent up to 31st January, 2000

amounting to a sum of Rs.2,60,000/-. The plaintiff has deposed that he

has received an amount of Rs.5,92,755/- from the defendant and that

the balance amount of Rs.3, 32, 755/- of the defendant lying with him

is adjustable against the damages for unlawful occupation of the suit

premises by the defendant from 1st February, 2000. The plaintiff also

deposed that he is entitled for damages with effect from 1st February,

2000 to 17th December,2001 at Rs.44 per sq. feet which comes to

Rs.44,000/- per month for the tenanted portion comprising of 1000

sq.feet.

15. For arriving at the rate of Rs.44 per sq.feet the plaintiff relied on

market rent valuations in Times of India dated 21st September, 2002

wherein a rent of Rs.75,000/- to Rs.1 lakh was stipulated for an area of

2200 sq.feet at Vasant Vihar which works out to be Rs.34 to Rs.45 per

sq.feet. A copy of the newspaper article was annexed with the deposition

and was marked as exhibit PW1/1. The plaintiff also produced a copy of

Properties Guide, a monthly journal which had published a rental

valuation of Rs.39/- per sq.feet at Vasant Vihar and marked it as

exhibit PW1/2. The plaintiff also deposed that he had rented out his

first floor premises with a total area of 2200 sq.feet for Rs.73,000/- per

month with effect from 15th August, 2001 and on that basis, the rent

works out to be Rs.33 per square feet. A copy of the agreement was also

annexed and was marked as exhibit PW1/3. A copy of an agreement

dated 16th August, 2002 in respect of premises No.F-6/8B, Vasant

Vihar, New Delhi was also filed disclosing that the rent which was

charged for the said property comprising of 3000 sq.feet was

Rs.90,000/- per month. The plaintiff has worked out the average of the

above mentioned rental valuations to be Rs.36 per sq.feet and has

contended that as in February, 2000 i.e. on the expiry of the notice

period the rent was 20% higher than the prevailing market rate of Rs.36

per sq.feet, the market rent and on the expiry of the notice period can

be assumed to be Rs.44 per sq.feet.

16. The plaintiff deposed that he is entitled for damages from 1st

February, 2000 to 17th December, 2001 at the rate of Rs.44 per sq.feet

i.e. Rs.44, 000/- per month and he has claimed a total sum of

Rs.9,92,933/- as damages for 22 months 17 days. Since an amount of

Rs.3,32,755/- of the defendant is lying with the plaintiff after adjusting

the arrears of rent, the plaintiff has claimed a sum of Rs.6,60,176/-.

17. The plaintiff has also deposed that he is entitled for damages of

Rs.4,52,640/- caused by the installation and running of a Heavy

Industrial Generator Set on the terrace of the building by the defendant.

A report of damages as assessed by one Mr.Kunal Mathur, Architect

was also annexed with the deposition and was marked as Exhibit PW-

2/1. Mr.Kunal Mathur was also examined as a witness by the plaintiff

and his deposition dated 21st January, 2002 was tendered in evidence

on 15th January, 2003 and exhibited as Exhibit P.2. He has deposed

that he had visited the premises C-7/3, Vasant Vihar, New Delhi - 110

057, on the request of the plaintiff, to assess the damages caused to the

building structure due to vibrations generated on account of

installation, continuous running and operation of an industrial

generator on the terrace of the building and that on the basis of the

spot inspection he had quantified the damages to be Rs.4, 52, 640/-

18. Another witness of the plaintiff Mr.Raman Salwan who appeared

as PW.3 deposed that he is a property dealer. He deposed that a licence

agreement was executed between Mrs.Hima Balaram and Mr.Yuri

Khomenko on 16th August, 2002 in respect of property bearing No.F-

6/8B, Vasant Vihar, New Delhi for an area of 3000 sq.feet for a total

licence fee of Rs.90,000/- per month. The said witness also produced a

copy of the licence agreement which was exhibited as exhibit PW-3/1

and he further deposed that the prevailing market rent in Vasant Vihar

as in November, 2002 was Rs.30 per sq.feet.

19. The deposition of plaintiff and his witnesses have remained un-

rebutted. They were not cross examined.

20. Issue No.1 is pertaining to whether the plaintiff is entitled for a

decree of arrears of rent, if so, what amount?

According to the deposition of the plaintiff he was entitled for

arrears of rent up to 31st January, 2000 at the rate of Rs.20,000/- per

month. The plaintiff deposed that he is entitled for arrears of rent for 13

months amounting to Rs.2,60,000/- and since the defendant had

already paid a sum of Rs.5,92,755/-, the plaintiff had received the

entire arrears of rent up to 31st January, 2000. Consequently, the

plaintiff is entitled for a sum of Rs.2,60,000/- which amount has

already been paid by the defendant to the plaintiff and, therefore, the

issue is decided accordingly.

21. Issue no.2 is regarding the entitlement of the plaintiff to recover

damages and the amount of damages.

The plaintiff has deposed that he is entitled for damages at the

rate of Rs.44 per sq.feet from 1st February, 2000 to 17th December,

2001. The plaintiff has claimed a total sum of Rs.9,92, 933/- at Rs.44

per sq.feet. Though the plaintiff has produced the agreement exhibited

as PW.1/3 and the agreement dated 16th August, 2002 exhibited as

PW.3/1, however, no cogent evidence has been led by the plaintiff to

prove the same. Mere exhibition of the documents is not the proof of the

same. Consequently on the basis of documents produced by the

plaintiff, it cannot be held that the documents have been proved and on

the basis of same, it will not be appropriate to take any inference in his

favor. The deposition of the plaintiff that he is entitled for damages at

the rate of Rs.44 per sq.feet, however, has remained unrebutted. The

plaintiff has also produced another witness Sh.Raman Salwan, PW.3, a

property dealer who has deposed that the rent prevailing in Vasant

Vihar was Rs.30 per sq.feet. The testimony of the witness of the plaintiff

also remains unrebutted. In the circumstances, the inevitable inference

is that the plaintiff is entitled for damages from 1st February, 2000 to

17th December, 2001 at Rs.30 per sq.feet and not at Rs.44 per sq.feet as

the witness of the plaintiff has deposed that the average rate was Rs.30

per sq.feet. Therefore, at the rate of Rs.30 per sq.feet the plaintiff shall

be entitled for Rs.6,77,000/- as damages. The plaintiff has already

admitted that after adjusting the arrears of rent he still has a sum of

Rs.3,32,755/- of the defendant with him which is to be adjusted against

the amount of damages. Therefore, after adjusting the said amount the

plaintiff shall be entitled for Rs.3,44,245/- as damages.

22. The third issue is whether the plaintiff is entitled for pendentelite

and future interest. Though the plaintiff has deposed that he is entitled

for pendentelite and future interest at 24% per annum, however

considering the facts and circumstances the plaintiff is awarded

pendentelite and future interest at the rate of 8% per annum on the

amounts decreed in his favor.

23. The issue No.4 is regarding whether the plaintiff is entitled for

damages towards damage to the building. The plaintiff has examined

Mr. Kunal Mathur, an architect who had inspected the premises of the

plaintiff and who had assessed the damage caused to the building on

account of installation and continuous running an operation of an

industrial generator at the terrace of the building. He assessed the

damage caused to the building at Rs.4,52,640/-. He gave a report which

was proved by him and which was exhibited as Ex Pw 2/1. The

testimony of the said witness remained un-rebutted. The plaintiff has

also deposed that the damage was caused to his building on account of

installation of an industrial generator by the defendant on the terrace of

the building. The testimony of the plaintiff also remained un-rebutted.

The plaintiff has thus been able to prove that installation and running

of the industrial generator has caused damage to the building. The

plaintiff, however, has claimed an amount of Rs.1,25,000/-and has

paid court fees on that. Though in the prayer the plaintiff has claimed

damages of Rs. 6,00,000/-, however, in the facts and circumstances the

plaintiff is only entitled for Rs.1,25,000/-. The issue is thus decided in

favour of plaintiff awarding him damages of Rs.1,25,000/-

24. Issue No.5 is whether the plaintiff is liable to pay electricity

charges. No evidence has been led either by the plaintiff or defendant on

this issue. A copy of the order dated 19th December, 2002 passed in an

appeal, being RFAOS 40/2001, reveals that no amount is due from the

defendant to the electricity authority. Therefore, it is held that the

plaintiff is not entitled for any other charges as electricity charges. The

issue is decided accordingly.

25. In the circumstances, the suit of the plaintiff is decreed for a sum

of Rs. 3,44,245/- as the arrears of damages up to 17th December, 2001

from 1st February, 2000 at the rate of Rs.30 per sq.feet after adjusting

the amount of Rs. 3,32,755/- which amount the plaintiff already have

and Rs.1,25,000/- as damage caused to the building of the plaintiff.

Therefore, the suit is decreed for a sum of Rs. 4,69,245/- (Rupees four

lakhs sixty nine thousand two hundred and forty five) along with

interest at 8% per annum from the date of institution of the suit till the

recovery of the decreetal amount. The plaintiff shall, however be liable

to pay the balance ad valorem Court fees on the amount of Rs.344,245

the amount of damages for use and occupation of the premises up to

17th December, 2001 as the plaintiff has paid the court fees on

Rs,1,50,000/- only. The suit is decreed accordingly. Decree sheet be

drawn on plaintiff paying the balance Court fees within four weeks.

April 13, 2009. ANIL KUMAR J.

'dev'