Smt. Nisha vs P.N.B.
2009 Latest Caselaw 122 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI


                            Date of Reserve: January 07, 2009
                            Date of Order: January 16, 2009
+CS(OS) 1985/2003
%                                                16.01.2009

     SMT. NISHA                          ... Plaintiff
                     Through: Mr. S.P. Mehta, Adv.

          Versus

     P.N.B.                              ... Defendant
                     Through: Mr.Y.P. Chandana, Sr. Adv.
                     with Mr. Pankul Nagpal, Advocate


     JUSTICE SHIV NARAYAN DHINGRA


1.   Whether reporters of local papers may be allowed to see the
     judgment?                                              Yes.
2.   To be referred to the reporter or not ?                Yes.
3.   Whether judgment should be reported in Digest ?        Yes.

     JUDGMENT:

1. This suit has been filed by the plaintiff for recovery of

Rs.43,04,028/- as damages/mesne profits for use and occupation

of basement in premises no. XVI/10203, Karol Bagh, New Delhi

measuring 3570 square feet for the period from September, 2000

to 8th December, 2002 @ Rs.34/- per square foot per month and

from 9th December, 2002 to 8th August, 2003 @ Rs.59/- per

square foot per month. Out of this amount, the plaintiff had been

receiving a sum of Rs.24,633/- per month as user charges from

the defendant so she had reduced the amount by Rs.8,37,522/-

and filed this suit claiming Rs.43,04,028/-.

2. The defendant, Punjab National Bank was a tenant in

the basement and last rent paid was @ Rs.24,633/- per month.

According to the plaintiff, this tenancy came to an end by efflux

of time, as specified in the lease agreement, on 17 th August,

1991. This lease was not further extended. She then served a

notice on the defendant dated 3rd January, 1992 and then on 12th

February, 1992 terminating the lease with effect from 17th March,

1992. Since the premises was not vacated she filed a suit for

possession in April, 1992 reserving her right to file a suit for

damages. During pendency of the suit, the parties entered into a

compromise and moved an application under Order 23 Rule 3

CPC stating therein that the parties had amicably settled their

disputes and defendant had agreed to vacate and hand over the

possession of premises to the plaintiff on or before 30 th June,

2003 and defendant also undertook to pay the rent/charges for

use and occupation @ Rs.24,633/- as well as electricity charges

as per the bills upto date of handing over the vacant possession.

3. The keys of the premises were actually handed over to

the plaintiff in the Court on 8th August, 2003 on an application

made by the plaintiff. After that the plaintiff filed this suit for

damages and mesne profits on 18th September, 2003 claiming

damages as stated above for a period of 35 months prior to the

filing of the suit.

4. The defendant in the written statement took

preliminary objection that the suit was barred under Order 2 Rule

2 CPC since the plaintiff had not claimed damages when she filed

suit for possession against the defendant on the ground of

termination of tenancy. It is also submitted that in the

compromise entered into between the parties before the Civil

Judge on 9th May, 2003, the defendant-bank had agreed to hand

over the vacant possession and to continue to pay rent as

charges for use and occupation of premises and electricity bills

and that satisfied the claim of the plaintiff for mesne profits and

damages. This compromise was duly signed by both the parties

and the parties had also made statement in the Court. Thus, no

further claim for mesne profits/damages could be filed by the

plaintiff.

5. Out of the pleadings of the parties following issues

were framed:

"1. Whether the suit filed is barred by the

provisions of Order 2 Rule 2 of the Code of Civil

Procedure, 1908 for the reason stated in

paragraph 1 of the preliminary objections

contained in the written statement? OPD

2. Whether the plaintiff is entitled to recover

damages/mesne profits to the extent of

Rs.43,04,028/- or any part thereof? OPP.

4. Relief."

Issue no.1

6. When the plaintiff filed earlier suit for possession on

the ground of termination of tenancy of the defendant, a right

had accrued to the plaintiff to claim mesne profits and damages

for use and occupation of the premises from the date of

termination of tenancy till filing of the suit. Since the tenancy

was terminated only on 17th March, 1992 and the suit was filed in

April, 1992, she could have claimed damages/mesne profits for

one month. As far as claim for damages for the period

subsequent to the filing of the suit is concerned, the right to

claim damages accrued to the plaintiff month-to-month and she

had a right to file a suit for recovery of damages/mesne profits as

and when right accrued to her. She could also take benefit of the

limitation period and could file the suit for damages/mesne profits

for a consolidated period taking care of the limitation. Her suit

for damages for the period subsequent to the filing of the suit for

possession would not be barred by Order 2 Rule 2 CPC. However,

any claim of damages for the period prior to filing of the suit for

possession on the ground of termination of tenancy may have

fallen under order 2 Rule 2 CPC, if no leave of the Court has

sought to file a separate suit for damages.

7. It is settled law that a suit can be filed against the

defendant for existing cause of action. A suit cannot be filed for

future cause of action. The right to claim damages/mesne profits

in April, 1992 when the suit for possession was filed existed only

in respect of the period prior to April, 1992. The plaintiff had a

right to reserve her right of filing suit for damages for subsequent

period, as per her convenience. Thus, the suit filed by the

plaintiff is not barred under Order 2 Rule 2 CPC as claimed by the

defendant. The issue is decided in favour of the plaintiff and

against the defendant.

Issue no.2

8. In order to prove the quantum of damages plaintiff

examined herself and her husband as witnesses. She testified

about the termination of tenancy of the defendant with effect

from 17th March, 1992 and stated that defendant was liable to

pay prevalent market rent for the use of the premises after

termination of tenancy, instead of an amount of Rs.24,633/-. In

order to prove the market rent, she testified that the rate of rent

being paid by Vijaya Bank occupying ground floor portion of the

same premises with effect from November, 1992 was Rs.55/- per

square foot and it was enhanced to Rs.68/- per square foot with

effect from 25th November, 1997. She submitted that the market

rent of the basement should be at least half of the rate of rent

prevalent at the ground floor. Thus, it should be Rs.34/- per

square foot in the year 2002 and she further testified that Vijaya

bank had further increased ground floor rent to Rs.118/- per

square foot with effect from 26th November, 2002. Therefore the

damages from 26th November, 2002 for the basement should be

@ Rs.59/- per square foot. She admitted during her cross-

examination on 28.7.2006 that after the basement was vacated

by the defendant in August, 2003, the basement could not be let

out by the plaintiff at any rate and it was lying vacant ever since.

To the same effect is the testimony of her husband who also

admitted that the basement got vacated from the defendant was

lying vacant and unoccupied since then. She was asked to give

the number or details of any other basement in the vicinity of

that property which had been let out in last 2 or 3 years and she

failed to give details of any other basement let out in the vicinity

of that existing premises. She was given some suggestions

about the basements in adjoining area to which she showed

ignorance. Her husband who appeared as PW-2 though stated

that in the adjoining area there was a property occupied by

tenant 'Gokul Store', who had taken basement, ground floor, first

and second floor, i.e., entire property on rent and the rate of rent

of basement of that property was Rs.82,000/- per month.

However, he had not placed on record any lease deed or any

document to prove this fact.

9. Thus, apart from oral testimony of the plaintiff and her

husband about the prevalent rent, there is no other testimony to

show what was the prevalent rate of rent in the area.

The test for determining mesne profits and damages for any

premises at a relevant time is as to what would be the market

rent of the premises prevalent at that time. Market rent of the

premises can be found out if the premises is sought by the

tenants for possession or some tenant was ready to pay rent for

the premises. The plaintiff got this premises vacated from the

defendant on the ground that defendant was paying low rent. In

the letter written by the plaintiff sometime in the year 2002 to

the defendant (ex.PW-1/7) she claimed that the rent in the area

was very high and the defendant was paying low rent. She

wanted the defendant-bank to revive the mutual relations by

paying rent @ Rs.60/- per square foot per month. However, the

fact of the matter is that after defendant vacated the premises

she could not let out the premises to anybody even at Rs.10/- per

square foot what to talk of Rs.20/- per square foot. The very fact

that the plaintiff could not get a tenant for the basement vacated

by defendant shows that the claim of the plaintiff that the

premises could be let out at a rate higher than what was being

paid by the plaintiff is a baseless claim. If she could get higher

rent nobody stopped her from letting out this premises at the

higher rent since she get the premises vacated for letting out at

higher rent. In absence of any proof of any other basement

having been let out by any other landlord to a tenant in the

vicinity of this basement at a rent higher than what was being

received by the plaintiff at the relevant time, I consider that the

claim of the plaintiff for damages/mesne profits higher than what

she was receiving from the defendant, does not lie.

10. I consider that the plaintiff's right to claim

damages/mesne profits at a rate higher than what was being paid

to her by the defendant, should fail on another ground also. The

earlier suit for possession was filed by the plaintiff on the ground

of valid termination of tenancy. This suit was not decided on

merits. It was not held that the termination of defendant's

tenancy was a valid termination and the defendant was in illegal

occupation of the premises after 17th March, 1992. This issue

could not have been raised afresh by the plaintiff and was to be

decided in the earlier suit only. The earlier suit was compromised

and in the compromise entered into between the parties, it was

specifically mentioned that the defendant shall pay user

charges/rent upto the date of vacating. User charges were

regularly being paid by the defendant at admitted rate. In the

compromise, plaintiff had not reserved her rights to re-agitate

the issue of user charges/damages afresh, I consider that the

plaintiff could not have claimed damages/mesne profits higher

than what she was receiving as user charges from the defendant.

Issue is therefore decided against the plaintiff and in favour of

the defendant.

Relief.

11. The suit of the plaintiff is hereby dismissed.

12. In view of the facts and circumstances of the case, no

orders as to costs.

January 16, 2009                SHIV NARAYAN DHINGRA J.
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