Nawal Kishore Gupta vs Employees State Insurance ...
2009 Latest Caselaw 2165 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI


%                        Date of Decision: 20th May, 2009


+                    RFA NO. 269 OF 1996




#     NAWAL KISHORE GUPTA                                 ...Appellant
!                               Through: Mr. A.P. Aggarwal, Advocate

                              Versus

$    EMPLOYEES STATE INSURANCE CORPORATION             ...Respondent
^                                                      Through: None

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN
1.    Whether Reporters of local papers may be allowed to see the
       Judgment?(No)
2.    To be referred to the Reporter or not?(No)
3.    Whether the judgment should be reported in the digest?(No)


                         JUDGMENT

P.K.BHASIN, J:

The appellant had filed a suit for possession against the

respondent in respect of the first floor of property No. 36, Central

Market, Ashok Vihar, Phase-I, Delhi which he had let out to the

respondent at a monthly rent of Rs. 5013/- w.e.f. 1/12/86. The suit

for possession was filed after the termination of the tenancy of the

respondent. In the suit, the appellant had also claimed damages for

use and occupation at the rate of Rs.20,000/- per month from 1.5.91

to 31.5.91 and at the same rate from 1.6.91, the date when the suit

was filed, onwards till the delivery of possession of the suit premises

to him.

2. The respondent had contested the suit primarily on the ground

that there was no valid termination of its tenancy.

3. The pleadings of the parties led to the framing of the following

issues by the trial Court:-

"i. Whether the tenancy of the deft. has been validly terminated vide notice dt. 14.3.91? OPP ii. Whether this court has no jurisdiction to try the suit as alleged in para 1 & 3 of the pre. objections of the WS? OPD iii. To what amount the plaintiff is entitled? OPP.

iv. Relief."

4. After examining the evidence adduced by the parties the

learned Additional District Judge decided all the issues in

favour of the appellant vide judgment and decree dated

23.12.95. However, while accepting the claim of the appellant

that he was entitled to claim damages for unauthorized use

and occupation of the suit premises by the respondent because

of itsa failure to deliver back the possession of the suit

premises after the termination of its tenancy the damages

were awarded only @ Rs. 5013/- per month, which was the

agreed rent between the parties Accordingly, a decree for

possession was passed in favour of the appellant-plaintiff as

also a decree for damages for use and occupation @ Rs.5013/-

per month from 1.5.91 onwards till the delivery of possession.

5. Feeling aggrieved by the rejection of his claim for

damages for use and occupation @ Rs.20,000/- p.m. by the

trial Court the plaintiff filed the present appeal praying for

setting aside the impugned judgment and decree to the extent

the damages for use and occupation were awarded @

Rs.5013/- per month only and for passing of a decree in his

favour @ Rs.20,000/- per month from 1/5/91 onwards till

delivery of possession of the suit premises to him.

6. The respondent entered appearance on getting the notice

of the appeal. However, when the appeal was taken up for

hearing none appeared on its behalf. Therefore, arguments

from the side of the appellant only were heard.

7. It was contended by Shri A.P. Aggarwal, learned counsel

for the appellant, that the appellant-plaintiff had adduced

sufficient evidence to justify his claim for damages @

Rs.20,000/- per month but the learned trial Judge had without

any cogent reason rejected that evidence. It was submitted

that the appellant besides examining himself had also

examined one manager of Syndicate Bank posted at its branch

in Ashok Vihar in which area the suit property is also situated

and that witness had deposed that Syndicate Bank had taken

on rent property No. 11, Community Centre, Ashok Vihar, Delhi,

which was close to his property, at a monthly rent of Rs. 10/-

per sq. ft. with effect from 1st March 1989. The plaintiff had

deposed that he could have fetched rent of Rs.20,000/- p.m. in

respect of the suit premises if it had been vacated by the

tenant in May,1991. Learned counsel also submitted that

neither the plaintiff nor his other witness were cross-examined

on behalf of the respondent-defendant on this aspect. Not only

that the respondent-defendant had also not adduced any

evidence in rebuttal and, therefore, Mr. Aggarwal submitted,

bbthere was no reason whatsoever to reject the unchallenged

testimony of this witness examined by the appellant-plaintiff.

8. Section 2(12) of the Code of Civil Procedure defines

„Mesne profits‟ and it reads as under:-

"mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall

not include profits due to improvements made by the person in wrongful possession;"

9. In the present case the respondent‟s possession of the

suit premises after the termination of its tenancy, as per the

decision of the trial Court became unauthorized and the

respondent has not challenged that finding. So, the learned trial

Judge was right in holding that the plaintiff(appellant herein)

was entitled to claim mesne profits/damages for use and

occupation of the suit premises from the

defendant(respondent herein). The appellant had claimed

damages @ Rs.20,000/- p.m. for a period of one month prior to

the date of filing of the suit for possession and also for the

future at the same rate till the delivery of possession of the suit

premises to him. Now, as far as grant of past and future mesne

profits/damages for unauthorised use and occupation of some

immovable property in a suit for possession and mesne profits

is concerned, the same can be granted to a plaintiff in the

same suit as provided under Order XX Rule 12 of the Code of

Civil Procedure instead of requiring the plaintiff to file a

separate suit for that relief after getting the declaration that he

was entitled to get the same from the tenant of his property

whose possession had become unauthorized. Rule 12 is re-

produced below:-

"12. Decree for possession and mesne profits. (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree:

(a) For the possession of the property;

(b) For the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;

(ba) for the mesne profits or directing an inquiry as to such mesne profits;

(c) Directing an inquiry as to rent or mesne profits from the institution of the suit until, -

(i) The delivery of possession to the decree-holder,

(ii) The relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or

(iii) The expiration of three years from the date of the decree, whichever event first occurs.

(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry."

10. The question of grant of past and mesne profits in a suit for

possession of an immovable property came to be considered by the

Hon‟ble Supreme Court in "Gopalakrishna Pillai vs. Meenakshi Ayal",

AIR 1967 SC 155, and this is what was observed by the Supreme

Court:-

"Order 20 Rule 12 enables the Court to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to the past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit in view of Order 7. Rules 1 and 2, and Order 7 Rule 7 of the Code of Civil Procedure and Section 7(i) of the Court Fees Act. The plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay court-fees thereon, With regard to future mesne profits, the plaintiff has no cause of action on the date of the institution of the suit and it is not possible for him to plead this cause of action or to value it or to pay court- fees thereon at the time of the institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit, to which the provisions of Order 20 Rule 12 apply. But in a suit to which the provisions of Order 20 R 12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits............................................."

11. From the foregoing, it is clear that as far as the grant of mesne

profits/damages for use and occupation for the period prior to the

institution of a suit for possession is concerned, the Court may either

pass a decree for mesne profits/damages which have already accrued

prior to institution of the suit provided the plaintiff has brought on

record sufficient material to enable the Court to ascertain the

damages. And in case there is no sufficient material available with the

Court for calculating the mesne profits/damages the Court has the

discretion to direct an enquiry for that purpose and thereafter

depending upon the result of the enquiry final decree for mesne

profits/damages can be passed. As far as the grant of future mesne

profits is concerned, the only discretion available with the Court is to

direct an enquiry for fixing the amount of mesne profits/damages and

if no such enquiry is ordered the plaintiff is always at liberty to file an

independent suit only for mesne profits/damages. In the present

case, the learned trial Judge has rejected the claim of the appellant-

plaintiff for mesne profits @ Rs.20,000/- per month on the ground

that there was no sufficient material before him to fix the mesne

profits/damages @ Rs. 20,000/- p.m. which was four times the

agreed rate of rent and has passed a decree for mesne profits @

Rs.5013/- per month which was the rent payable by the respondent-

tenant to the appellant as per the terms of the lease not only for the

past but also for period after the fining of the suit till delivery of suit

premises to the appellant-plaintiff.

12. Learned counsel for the appellant had submitted that the

evidence adduced by the appellant in support of his claim of mesne

profits/damages @ Rs.20,000/- per month had remained totally

controverted and so should have been accepted by the learned trial

Judge and in any event the amount of mesne profits/damages should

not have been fixed at the rate of Rs.5013/- per month and taking

judicial notice of the fact that there has been steep increase in rents in

respect of tenancies for commercial purposes, the learned trial Judge

should have considered at least three-fold increase in the amount of

the agreed rent to be reasonable amount of mesne profits/damages.

13. I have myself also examined the evidence on record on the point

of mesne profits and I am also of the view that except for the bare

statement of the appellant-plaintiff that the premises in question

could have fetched Rs.20,000/- p.m. and the statement of one

Manager of a bank that some premises had been taken on rent by the

bank in Ashok Vihar @ Rs.10/- per sq.ft. p.m. in March,1989 there was

no other evidence relying on which the amount of mesne

profits/damages could be fixed @ Rs.20,000/- p.m. By its very

nature, the fixation of damages for use and occupation of an

immovable property by some unauthorized occupant involves

adjudication of a pure question of fact and there exists hardly any

uniform and standard pattern of assessment in this regard. The Court

has to undertake a comparative assessment of the nature, location,

condition etc. of the property in question, on the one hand, and similar

characteristics of premises in the surrounding area, on the other. In

the present case, there was no material brought on record by the

appellant-plaintiff to enable the trial Court to fix the damages by

comparing the characteristics of the suit premises with any other

property in the same locality having similar characteristics. However,

absence of sufficient material in this regard was no justification for

the learned trial Court to have fixed the damages at the agreed rate of

rent between the parties since a judicial notice can be taken of the

fact that rents must have increased after 1986 when the premises

were let out to the respondent. In these circumstances, in my view, the

proper course for the learned trial Judge to adopt was either to have

left the matter of fixation of the amount of mesne profits to be

decided in a separate suit or to have passed a preliminary decree for

mesne profits/damages and an enquiry for fixation the amount should

have been directed as provided under Order XX Rule 12 (1)(ba) and

(c)(i). Now, after so many years I do not think it appropriate to ask the

appellant-plaintiff to file a fresh suit for mesne profits/damages and

in my view the trial Court should be directed to conduct an enquiry as

contemplated under Order 20 Rule 12 CPC.

14. I, therefore, set aside the impugned judgment and decree to the

extent the claim of the appellant-plaintiff for mesne profits/damages

has been restricted to Rs.5013/- per month and in place of that

finding of the trial Court it is ordered that an enquiry should be

conducted by the trial Court for the purpose of fixation of mesne

profits/damages in respect of the suit property from 1.5.91 onwards

till the actual date of delivery of possession of the suit premises or up

to the expiry of period of three years from the date of the decree,

whichever event had occurred first. The mesne profits would be fixed

after giving an opportunity to both the parties to adduce evidence and

after completion of the enquiry a final decree for mesne

profits/damages shall be passed which, it is needless to state, would

be executable only on payment of requisite court fees by the

appellant-plaintiff. The appeal stands disposed of accordingly. Parties

shall appear before the trial Court on 20th July, 2009 at 2 p.m.

P.K. Bhasin, J

May 20, 2009 nk