Punjab National Bank vs Kamla Mehra
2010 Latest Caselaw 3937 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     RFA 298/2005

%                              Date of Decision: 25th August, 2010


#     PUNJAB NATIONAL BANK                       ..... Appellant
!              Through: Mr. S.K. Pruthi, Ms. Nidhi Pruthi and
                        Mr. Manoj Ahuja, Advocates

                                  versus

$     KAMLA MEHRA                                    ..... Respondent
^             Through:         Mr. Akhil Mehra, Constituted Attorney

      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(ORAL):

This appeal was filed by the appellant bank against the judgment of

the learned Additional District Judge directing it to pay to the respondent

mesne profits for unauthorized occupation of the suit premises after the

termination of its tenancy. The mesne profits have been awarded for a

period of three months prior to the filing of the suit for recovery of

possession of the suit premises(from 21/04/92 to 21/07/92) at the rate of

Rs. 52,000/- per month and for the period after the filing of the suit from

21/07/92 to 20/07/97 at the rate of Rs.62,400/- p.m. and at the rate of

Rs.74,880/- p.m. from 21st July, 1997 to 16th July, 2003 on which date the

possession of the tenanted premises was handed over by the appellant-

tenant to the respondent- land-lady .

2. The respondent-plaintiff had let out premises no. 1483, E.S.Pearey

Lal Building, Chandni Chowk, Delhi('suit premises' in short) to the

appellant bank for starting its branch there on 21st April,1972 for a period

of ten years. After the expiry of the lease period of ten years the lease was

renewed for a further period of ten years from 21 st April, 1982. The suit

for possession in respect of the leased premises had to be filed by the

respondent-plaintiff against the appellant-defendant since the appellant had

failed to hand over the vacant possession of the suit premises to the

respondent despite termination of its tenancy vide notice dated 11th

March,1992. The suit was filed in a civil Court since the contractual rent

was more than Rs.3500/- per month and the provisions of the Delhi Rent

Control Act were not attracted. The respondent-plaintiff had claimed

mesne profits also.

3. The appellant-defendant had initially contested the suit on different

grounds taken in its written statement. The following issues were framed

by the trial Court for trial:

i) Whether the plaintiff is entitled to a decree of possession of the suit property?

ii) If so, whether the plaintiff is entitled to damages/mesne profits at what rate and from what period?

iii) Whether the present suit is maintainable without permission U/s 19

of the Slum Area (Improvement and Clearance) Act 1957?

iv) Whether the lease has validly been terminated in accordance with law and if not its effect?

v) Whether the plaintiff had agreed to extend the lease in favour of the defendant and is now barred by principle of Estoppel from claiming possession?

vi) Whether the suit has been filed and instituted by a duly authorized person?

vii) Whether this Court has no pecuniary jurisdiction to try the suit?

viii) Relief.

4. During the pendency of the suit, however, the appellant decided to

surrender possession of the suit premises and surrendered the same on 16th

July, 2003. With the surrender of the suit premises by the appellant-

defendant to the respondent landlady the trial Court was left with the task

of deciding only the question of entitlement of the respondent-plaintiff for

mesne profits/damages for unauthorized use and occupation of the suit

premises to the land-lady. That controversy was covered under issue no. 2

and vide judgment dated 24.01.2005, the trial Court held it in favour of the

respondent-plaintiff that she was entitled to claim mesne profits/damages

from the appellant-defendant and awarded the same to her for different

periods as noted already.

5. The appellant felt aggrieved with the amount of mesne

profits/damages and therefore, the present appeal. Respondent-plaintiff also

felt aggrieved since she was claiming mesne profits at much higher rates

than awarded to her by the trial Court and so she filed cross-objections.

6. During the course of hearing of the appeal, a question arose as to

whether the trial Court could have awarded any mesne profits/damages at

all to the respondent-plaintiff for the period after the filing of the suit till

the date of the handing over of the possession of the tenanted premises by

the appellant to her without holding an enquiry as contemplated under

Order XX Rule 12 of the Code of Civil Procedure. Though initially the

respondent's attorney who argued in person had contended that the trial

Court could have dispensed with holding of enquiry but today during the

course of hearing it was stated by him as well as counsel for the appellant

that since the trial Court has observed that no cogent evidence had been

produced from either side to support their respective claims in respect of

the amount of mesne profits the matter can now be remanded back to the

trial Court with a direction to hold an enquiry to fix mesne profits/damages

not only for the period after the filing of the suit but also in respect of the

period of three months prior to the filing of the suit for which also the

respondent-plaintiff had claimed mesne profits/damages. However, a

request has also been made by the respondent's attorney that the trial Court

should be directed to complete the enquiry within a reasonable period

considering the fact that this litigation is going on since 1992.

7. In view of the aforesaid consensus arrived at between the parties, the

trial Court's judgment/decree awarding damages/mesne profits to

respondent-plaintiff in respect of the period after the filing of the suit till

the date of surrender of the possession of the tenanted premises by the

appellant-defendant as well as for the period of three months before the

filing of the suit without holding an enquiry are set aside. The matter is

remanded back to the trial Court with a direction to hold an enquiry as

contemplated under Order XX Rule 12(1)(ba)and(c)(i) CPC and to

conclude it within six months from the date of receipt of this judgment. The

cross-objection filed by the respondent-plaintiff for enhancement of the

mesne profits/damages would consequently stand rejected. It is needless to

state that since enquiry is being ordered both the parties shall be at liberty

to produce in the enquiry any evidence which they want to adduce in

support of their rival stands and after the enquiry is over the trial Court

shall arrive at a fresh decision regarding the rate of mesne profits payable

by the appellant-defendant to the respondent-plaintiff and then a final

decree shall be passed.

8. The case shall now be taken up by the trial Court on 17th September,

2010 at 2.00 p.m. The parties shall appear there on the said date and time

and it shall not be necessary to the trial Court to issue any notice to the

parties. The decretal amount already lying deposited with this Court shall

continue to remain deposited and shall be subject to the final outcome of

the enquiry.

P.K. BHASIN,J AUGUST 25, 2010/pg