Bijendra Pathak vs Ram Kishan Sharma
2010 Latest Caselaw 3632 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     RFA NO.129/2008

%                             Judgment Delivered on: 05.08.2010

SHRI BIJENDRA PATHAK                          ..... Petitioner
                Through:      Ms. Rana Parveen Siddiqui, Advocate

                  versus

RAM KISHAN SHARMA                             ..... Respondent
              Through:        Mr.Rakesh Kansal, Adv. for respondent

      CORAM:
      HON'BLE MR. JUSTICE G.S.SISTANI

         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?

G.S.SISTANI, J. (ORAL)

1. With the consent of counsel for the parties, this appeal is taken up

for final hearing and disposal.

2. Present appeal is directed against the judgment and decree dated

21.01.2008. The respondent had filed a suit for recovery of

possession, by way of ejectment and for recovery of damages/

mesne profit. Counsel for the appellant submits that the possession

of the suit property has been recovered. The appellant restricts her

challenge in the appeal to the judgement which has been passed

with respect to issued No.4 which pertains to damages/mesne

profits. The necessary facts which have been noticed by the

learned trial court are that the respondent is the owner of property

bearing No.F-137, Dilshad Garden, Delhi, comprising of ground floor and first floor built on a plot measuring approximately 233 sq. yds.

The respondent is stated to have purchased this property from its

previous owner one Shri Jaswant Singh on 27.6.1990 vide registered

sale deed. The appellant was in possession of the first floor of the

suit property comprising of one room in the front portion measuring

9'3" x 8'3" and one room in the rear portion measuring 8'9"x 8'3"

with balconies. The appellant was also enjoying the common facility

of one toilet and one bath room situated at the ground floor of the

suit premises. The suit of the respondent for recovery of possession

by way of ejectment and recovery of damages/mesne profits was

decreed by the judgment and decree dated 21.1.2008. Since the

appellant has restricted her challenge in the appeal with respect to

issue no.4, issue No.4 is reproduced below:

Issue No.4.

"Whether the plaintiff is entitled for the damages/mesne profits? If yes, then at what rate and for what period? OPP"

3. Counsel for the appellant submits that the area in question is a

commercial area and the damages/mesne profits which have been

awarded by the learned trial court are far in excess. It is further

stated that the respondent was awarded damages @Rs.6000/- per

month which could not have been claimed.

4. Learned counsel for the respondent submits that the appellant/

defendant in the suit failed to lead any evidence with respect to the

quantum of mesne profits. The only ground which is sought to be

raised in the present appeal that the mesne profits awarded are highly in excess, in comparison to the rates prevalent to the vicinity

where the property is situated. I have carefully perused the grounds

of appeal. Ground C-1, pertains to issue No.4, which reads as

under:

"Because otherwise also the mesne profits are highly excessive seeing the local condition of the area."

5. The respondent (plaintiff in the suit) had filed his affidavit by way of

evidence. In addition to the affidavit filed by the respondent (Ex.P-

1) in support of his contention that the appellant is liable for

damages @Rs.200/- per day, the respondent also relied on a

valuation report Ex.PW1/1. The respondent has also examined PW-5

Rameshwar Dayal, an architect who has prepared the valuation

report Ex.PW1/1. The trial court has also considered the fact that

the property is being used for commercial purposes and the

appellant has himself affirmed that he was under employment of

Shri Narender Pathak, the deceased son of the respondent who was

running a factory on the ground floor. PW-5 has also given the

estimated rent of the premises as Rs.6000/- per month. No

evidence was led by the appellant herein. In the absence of any

evidence to the contrary to show that the appellant is not liable to

damages/mesne profits @Rs.200/- per day, the trial court has come

to the conclusion based on the evidence of the respondent and the

valuation report PW1/1 as also the evidence of PW-5 Shri

Rameshwar Dayal who is an architect.

6. In view of the aforesaid facts that there is no infirmity in the

judgement and decree passed by the trial court and in the absence

of any evidence on record to the contrary to the evidence led by the

respondent, there are no grounds made out to entertain this appeal

The same is accordingly dismissed.

G.S. SISTANI, J.

August 05, 2010 'aj/ssn'