Delhi High Court
Itdc Ltd. vs Jagdish Kaur & Others on 28 May, 2010
Author: Reva Khetrapal
REPORTED
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% DATE OF RESERVE: April 28, 2010
DATE OF DECISION: May 28, 2010
+ RFA 315/2003 and CM Nos.718/2003 and 1649/2003
I.T.D.C. LTD. ..... Appellant
Through: Mr. Gunjan Kumar, Advocate
versus
JAGDISH KAUR AND ORS. ..... Respondents
Through: Ms. Deepika V. Marwaha, Advocate
CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: REVA KHETRAPAL, J.
1. This appeal is directed against the judgment and decree of the
learned Additional District Judge dated 07.12.2002, whereby and
whereunder a suit for recovery of Rs.4,71,573/- as damages/mesne
profits was decreed in favour of the respondents and against the
appellant together with future/further mesne profits @ Rs.50/- per sq. ft.
from 01.04.1997 till the date of delivery of the possession, i.e.,
31.01.1999 together with interest @ 15% per annum on future mesne
profits for the aforesaid period.
2. The case of the plaintiffs (the respondents herein) as set out in the
plaint is that the plaintiffs are the owners/landlords of Flat No.116,
situated on the 11th Floor of a multi-storeyed building, viz., Himalaya
House at 23, Curzon Road, New Delhi, measuring 698 sq. ft. The
plaintiffs had let out the aforesaid flat to the defendant (the appellant
herein) on 01.06.1973 initially at the rate of Rs.1919.50 per month
excluding other charges. The plaintiff No.1 had been negotiating and
communicating with the defendant to execute a fresh lease deed to
enhance the rate of rent of the flat. Pursuant thereto, a letter dated
25.10.1993 was received by the plaintiffs from the defendant whereby
the defendant agreed for increase in rent of 10% after every three years
from the expiry of the original lease in 1976. The rent with effect from
01.11.1993 was accordingly fixed at Rs.4,467/- per month.
3. It is alleged in the plaint that the defendant, after acknowledging
its liability, did not fulfil it completely and, instead of paying the amount
due in the sum of Rs.1,61,499.50 paid only Rs.65,548.20 in spite of
various requests made by the plaintiffs.
4. It is further the case of the plaintiffs that a fresh lease was
executed between the parties on a Rs.10/- stamp paper on 27.10.1993 @
Rs.4,467/- with effect from 01.11.1993. The said document being
unregistered and not duly stamped had no legal sanctity in law. Thus,
the tenancy of the defendant was a monthly tenancy which was
terminated by a legal notice issued to the defendant on 25.09.1994,
terminating the tenancy with effect from 31.10.1994. The said notice
was duly replied by the defendant vide its reply dated 10.10.1994.
However, since the defendant did not surrender the possession of the flat
despite the receipt of the aforesaid notice of termination, the plaintiffs
instituted a suit for possession and recovery of the amount due, i.e.,
Rs.95,951.30 in the Court of the District Judge, being Suit No.410/1995.
5. The aforesaid suit was decreed for possession as well as for the
recovery of the amount of Rs.95,951.39 in favour of the plaintiffs by the
judgment and decree dated 12.09.1997 passed by Shri S.N. Dhingra,
Additional District Judge, Delhi (as His Lordship then was).
6. The plaintiffs/decree-holders consequently instituted execution
proceedings, bearing Execution Application No.55/1997. In the said
execution petition, an application under Order XXIII Rule 3 CPC was
jointly moved by the parties, duly signed by both the parties. In
paragraph 6 of the said application, the terms and conditions of
compromise entered into by the parties were set out as follows:-
"6. That the Parties have entered into a
compromise, the terms and conditions of the same
are given below:-
a) Mr. Ashok Trikha, General Manager (Admn.),
ITDC is authorized to give undertaking on behalf of
the Judgment Debtor Company and enter into a
compromise in the Court.
b) The Judgment Debtor Company has agreed to
pay a sum of Rs.15,000/- per month as an interim
measure without prejudice to its rights and
contentions and any adjustments as per the decision
of the Hon'ble Court with regard to the mesne
profits payable by the Judgment Debtor Company.
c) That admittedly the Plaintiffs had not received
the rent for the months of May, June and July 1995.
The copy of the Cheques have been filed by the
Defendant Company in the Suit for damages.
The total amount comes
38 months x 15,000/- = Rs.5,70,000/-
Minus 35 months x Rs.4467/- = Rs.1,56,345/-
-------------------
Total amount due = Rs.4,13,655/-
-------------------
d) This amount would be payable to the Decree
Holders by way of a draft in the name of Smt.
Jagdish Kaur, on the signing of the Agreement or
within a week thereafter.
e) The amount of rent/damages shall be
payable/adjusted by the Parties finally at the rate as
determined by the Court in the Suit for Damages
pending in the Court.
f) That the Judgment Debtor would be entitled
to deduct/adjust the amount being paid to the
Applicants now.
g) That the Judgment Debtor gives an
Undertaking to the Court that they shall surrender
the possession of the Flat bearing No.116, Himalaya
House, Curzon Road, New Delhi within 8 months
from the date of signing of the Agreement.
h) That in lieu of the Undertaking given by the
Judgment Debtor, Smt. Jagdish Kaur gives an
Undertaking on behalf of the Decree Holders to the
Court that the Decree Holders will not execute the
Decree from the date of signing of this Agreement.
i) That the Judgment Debtor is also liable to pay
the amount due as per the review Order. Thus the
Judgment Debtor undertakes before the Court to
pay the amount of the Decree Holders as per the
Decree sheet prepared and shown to the Judgment
Debtor. The Judgment Debtor undertakes to pay the
said amount within 30 days of the demand.
j) That the Judgment Debtor will continue to
pay rent/damages @ Rs.15,000/- per month till they
surrender the possession.
k) That if there is any breach of the above
compromise Agreement and Undertaking given to
the Court by the Judgment Debtor, the Decree
Holders shall have the right to execute the Decree
for possession with immediate effect."
7. In view of the aforesaid settlement arrived at between the parties,
the execution proceedings were disposed of in terms of the compromise
arrived at between the parties by an order dated 30 th April, 1998 holding
that the parties shall be bound by the agreement and the statements made
on affidavit.
8. On 31st January, 1999, the defendant handed over vacant
possession of the suit premises to the plaintiffs in terms of clause (g) of
paragraph 6 of the compromise application.
9. A subsequent suit, being Suit No.181 of 1997 for the recovery of
Rs.4,71,573/- as damages/mesne profits was also disposed of by the
judgment and decree dated 07.12.2002, which is impugned by the
appellants herein.
10. Before adverting to the findings of the learned trial court in the
impugned judgment and decree, it deserves to be noted that the plaintiffs
have alleged in the plaint that the defendant was an unauthorized
occupant from the date of the termination of the tenancy and as such
liable to pay damages/mesne profits from 01.11.1994 till the delivery of
possession at the market rate, subject to adjustment of the amount
received every month during the aforesaid period. According to the
plaintiffs, the market rate in 1994-95 and 1995-96 was Rs.45/- per sq. ft.
(approximately) as was evident from the rent prevailing in the nearby
buildings, but the plaintiffs claimed damages in the suit at a lower rate,
i.e., at the rate of Rs.30/- per sq. ft. only from 01.03.1995 to 31.12.1996.
The market rate in 1997 prevailing in the area was between Rs.50/- to
Rs.80/- per sq. ft. and the plaintiffs claimed damages at this rate for the
period 01.01.1997 to 31.03.1997. In paragraph 10 of the plaint, the
plaintiffs assessed and claimed damages/mesne profits for use and
occupation of the flat in question measuring 698 sq. ft., Himalaya House,
23, Curzon Road, New Delhi as under:-
"i) From March, 1995 to December,
1996 @ Rs.30 per sq. ft. for
22 months
i.e. 698 x 30 = 20940 x 22 = Rs.4,60,680/-
ii) Minus the amount received
over the period i.e. rent
for 18 months only @
Rs.4467/- as rent for 4 months
was not received in 1995. = Rs.80,406/-
------------------
Rs.3,80,274/-
iii) Damages for the period Jan.
1997 to March, 1997 @
Rs.50/- per sq. ft. for
3 months
i.e. 689 x 50 = 34,900 x 3 = Rs.1,04,700/-
iv) Minus the amount
received as
rent : 4467 x 3 = Rs.13,401/-
----------------
Rs.91,291/-
----------------
Rs.91,291/-
---------------
Total: Rs.4,71,573/-"
---------------
11. The suit was contested by the defendant by filing a written
statement and raising three preliminary objections to the maintainability
of the suit. First, it was averred in the written statement that the
defendant had been regularly paying rent since the inception of the
tenancy and so the plaintiffs had no cause to claim the exaggerated
amount of Rs.4,71,573/-, as had been claimed in the suit. Second, it
was averred that the plaintiffs and the defendant had entered into a
renewed lease deed for three years on 27.10.1993 with the understanding
that after the expiry of the aforesaid period of three years, the plaintiffs
will only demand a 10% increase in the rent and not the amount claimed
in the present suit, which had been claimed as per their own whims.
Third, it was asserted that the plaintiffs had no right to file the suit in
view of the fact that they had already filed a suit for possession and
recovery.
12. On merits, the essential facts were not disputed by the defendant
in the written statement. It was admitted that the said flat was let out to
the defendant in 1973 at a monthly rate of Rs.1919.50. It was also
admitted that letter dated 25.10.1993 was issued by the defendant to the
plaintiffs, in which the defendant had agreed on the representation of the
plaintiffs for increase of rent from Rs.1,919.50 to Rs.4,467/- per month
with effect from 01.11.1993 and after the expiry of three years, a 10%
increase every three years. It was, however, denied by the defendant that
the defendant was liable to pay the sum of Rs.4,71,573/- or any other
amount whatsoever. The defendant asserted that the plaintiffs had no
right to claim future damages/mesne profits for use and occupation.
13. In the replication filed by them, the plaintiffs controverted the
allegations made by the defendant in its written statement and reiterated
the assertions made in the plaint. On the pleadings of the parties, the
following issues were framed for adjudication:-
"1. Whether the suit is not maintainable in view
of preliminary objections no.1, 2 and 3? OPD.
2. Whether the plaintiff is not entitled for the
decree of the amount at what rate? (sic.)
3. Whether the plaintiff is also entitled to the
future damages as claimed for? OPP."
14. After discussing the evidence on record, the learned trial court
while deciding Issues No.1 to 3, observed that it was no longer in dispute
that the suit for possession filed by the plaintiffs had already been
decreed by judgment - Exhibit PW-2/2 and that the possession of the flat
in question had been received by the plaintiffs on 31.01.1999. It was
also no longer in dispute that the tenancy of the defendant had been
terminated on 31.10.1994 and from 01.11.1994 the defendant was in
unauthorized occupation of the flat in question and as such required to
pay damages/mesne profits. There was also undisputed evidence on
record that in the execution proceedings in the Court of Shri S.N.
Dhingra, Additional District Judge, Delhi (as His Lordship then was), a
compromise had been arrived at between the parties, the certified copy
whereof was placed on record as Exhibit PW-2/3 and as per the terms
thereof, the defendant had agreed to pay Rs.15,000/- per month as an
interim measure till such time as they surrendered the possession to the
plaintiffs. Thus, it was observed that the only question which fell for
determination was as to what should be the amount of damages/mesne
profits which should be granted to the plaintiffs in this case. It is the
decision on the aforesaid question which is impugned in the present
appeal.
15. Arguments in the appeal were addressed by Mr. Gunjan Kumar,
Advocate on behalf of the appellant and Ms. Deepika V. Marwaha,
Advocate on behalf of the respondents.
16. The first and principal contention of the learned counsel for the
appellant was that pursuant to the unregistered agreement between the
parties, the enhanced rent as agreed therein was being paid by the
appellant and received by the respondents. The impugned judgment was
not sustainable, inasmuch as having accepted the enhanced rent of
Rs.4,467/- for a period of three years, it was not open to the respondents
to issue notice of termination under Section 106 of the Transfer of
Property Act, so as to claim that the possession of the tenant was
unauthorized and as such damages for use and occupation were liable to
be paid by the tenant. At the most it could be said to be a case of
"irregular tenancy" and the appellant could not be said to have become
an unauthorised occupant. The only other contention of the learned
counsel for the appellant was that the second suit, i.e. the suit from
which the appeal arises was barred under the provisions of Order II Rule
2 CPC.
17. Ms. Deepika V. Marwaha, on the other hand, contended on behalf
of the respondents that the claim of the appellant that he was an irregular
tenant and not an unauthorized tenant, and as such not liable to pay
mesne profits, as pleaded in ground (c) of the Grounds of Appeal, was
wholly misconceived. It was contended by the learned counsel that the
law envisaged only four kinds of tenants, viz., (i) contractual tenants, (ii)
statutory tenants, (iii) tenants by holding over, and (iv) tenants at
sufferance. There was no plea taken in the written statement either that
the defendant was a contractual or statutory tenant or tenant by holding
over or tenant by sufferance. The appellant claimed to be "an irregular
tenant", which expression was unknown and unrecognized by any
provision of law.
18. Reference was made by the learned counsel for the respondents in
the above context to the letter dated 25.10.1993 (which was relied upon
by the appellant) to contend that there was no renewal of the lease deed
on 27.10.1993 for three years as claimed by the appellant or at all, and
that the appellant was not "an irregular tenant", but a tenant at
sufferance. The said letter reads as under:-
"Smt. Jagdish Kaur Bajaj,
161-B, Mall Road,
Post Box 45,
Meerut Cantt. (U.P.)
Your request for increase in rent of the
premises F-116, Himalaya House, New Delhi.
Dear Madam,
Please refer to your letter dated the 16th Oct.
1993 requesting for an increase in the rent of the
above premises.
It is to inform you that the management of
ITDC is pleased to agree for an increase in rent @
10% after every 3 years from the expiry of original
lease and fix the pre-sent rent at Rs.4467/- per
month with effect from 1.11.1993. It has also been
decided to waive off the expenditure on account of
fire fighting equipments installation in the Building.
The amount of Rs.14,950/- which you have paid
directly and amount deducted from Aug. 1992 on
this account will be reimbursed to you.
You are therefore, requested to come to this
office and execute the fresh lease deed at the earliest
but not later than 1.11.1993.
Thanking you and assuring you of our best
co-operation at all times."
19. The learned counsel for the respondents contended that the
admitted case of the parties was that no fresh lease deed was executed on
27.10.1993 or thereafter, and thus in accordance with the common law
rule, the appellant became a tenant at sufferance, whose status is no
better than that of a trespasser. In this context, reference was made by
her to the judgment of the Supreme Court in Bhawanji Lakhamshi and
Ors. Vs. Himatlal Jamnadas Dani and Ors., AIR 1972 SC 819. In the
said judgment, the Supreme Court categorically laid down that the act of
holding over after the expiration of the term does not create a tenancy of
any kind and that if a tenant remains in possession after the
determination of the lease, the common law rule is that he is a tenant at
sufferance. The Supreme Court then proceeded to draw a distinction
between a tenant continuing in possession after the determination of the
term with the consent of the landlord and a tenant doing so without his
consent. The former, the Court held, is a tenant at sufferance in English
Law and the latter a tenant holding over or a tenant at will.
20. Ms. Marwaha also relied upon the decision of a Division Bench of
this Court in National Radio & Electronic Co. Ltd. vs. Motion Pictures
Association, 122 (2005) DLT 629, wherein this Court while seized of a
suit for possession and recovery of future damages and mesne profits
against the appellant-tenant after termination of tenancy held, that on a
lawful termination of tenancy by the respondent, the respondent is
entitled to market rent as the occupation of the appellant becomes
unauthorized and wrongful.
21. Reference was also made by the learned counsel for the
respondents to the decision rendered by a Division Bench of the
Karnataka High Court in Webbing and Belting Factory (P) Ltd. & Anr.
Vs. C.M. Shashikumar, AIR 2006 Karnataka 173 to contend that where
the tenant continued to be in possession even after the period specified in
the quit notice, he becomes liable to pay damages in view of the law laid
down by the Supreme Court in the case of M/s. Raptakos Brett and
Company Ltd. Vs. Ganesh Property reported in AIR 1998 SC 3085 and
to a decision of the Allahabad High Court reported in AIR 1984
Allahabad 130, J.J. Pancholi Vs. Sridharjee and Ors., wherein it was
held that where the tenancy is duly determined by a notice under Section
106, the tenant becomes a tenant at sufferance, and a tenant at sufferance
is no better than a trespasser.
22. Dealing with the next contention of the appellant's counsel, Ms.
Marwaha contended that the present suit was not barred by the
provisions of Order II Rule 2 CPC and as a matter of fact was covered
under the provisions of Rule 4 of Order II. Rule 4 of Order II of the
Code of Civil Procedure runs as under:-
"4. Only certain claims to be joined for recovery
of immovable property.- No cause of action shall,
unless with the leave of the Court, be joined with a
suit for the recovery of immovable property, except-
(a) claims for mesne profits or arrears of rent in
respect of the property claimed or any part thereof;
(b) claims for damages for breach of any contract
under which the property or any part thereof is held;
and
(c) claims in which the relief sought is based on
the same cause of action."
23. Ms. Marwaha contended that Order II Rule 4 CPC forms an
important qualification to Order II Rule 2 CPC and is by way of an
exception to the said Rule. It is also an exception to Order II Rule 3(1).
It was also contended by her that if evidence to support the claims in the
two suits is different, the bar of Order II Rule 2 will not apply. Reliance
in this regard was placed by her on a Privy Council decision in Mohd.
Khalil Khan vs. Mahbub Ali Mian, AIR 1949 PC 78. In the said case,
the Privy Council laid down the principles to determine the application
of Rule 2 of Order II as follows:-
"61. The principles laid down in the cases thus
far discussed may be thus summarised:
(1) The correct test in cases falling under O.2,
R.2, is "whether the claim in the new suit is in
fact founded upon a cause of action distinct from
that which was the foundation for the former
suit." Moonshee Buzloor Ruheem v.
Shumsunnissa Begum, (1867-11 MIA 551 : 2
Sar. 259 PC) (supra).
(2) The cause of action means every fact which
will be necessary for the plaintiff to prove if
traversed in order to support his right to the
judgment. Read v. Brown, (1889-22 QBD 128 :
58 LJ QB 120) (supra).
(3) If the evidence to support the two claims is
different, then the causes of action are also
different. Brunsden v. Humphrey, (1884-14 QBD
141 : 58 LJ QB 476) (supra).
(4) The causes of action in the two suits may
be considered to be the same if in substance they
are identical. Brunsden v. Humphrey, (1884-14
QBD 141 : 53 LJ QB 476) (supra).
(5) The cause of action has no relation
whatever to the defence that may be set up by the
defendant nor does it depend upon the character
of the relief prayed for by the plaintiff. It refers
... to the media upon which the plaintiff asks the
Court to arrive at a conclusion in his favour.
Muss. Chandkour v. Partab Singh, (15 IA 156 :
16 Cal 98 PC) (supra). This observation was
made by Lord Watson in a case under S. 43 of the
Act of 1882 (corresponding to O.2, R.2), where
plaintiff made various claims in the same suit."
24. As regards the contention of the learned counsel for the appellant
that the impugned judgment was based on conjectures and surmises, the
contention of Ms. Deepika V. Marwaha, the learned counsel for the
respondents was that the respondents-plaintiffs had adduced cogent
evidence on record to show that the market rate of rent per sq. ft. per
month in respect of the same building, i.e., the Himalaya House, 23,
Curzon Road, New Delhi was Rs.70/-to Rs.100/- per sq. ft. at that time.
It was so testified by PW-2 Shri Taran Tej Singh, the General Power of
Attorney holder of the respondents, who further deposed that this rate
continued to prevail in the area where their flat is situated till such time
as they got back the possession in execution of the decree for possession.
He further testified that a legal notice dated 28.03.1997 was served upon
the appellant-tenant before filing the present suit and the said notice was
sent through registered post and UPC, and copy of the said notice was
Exhibit PW-2/6.
25. Ms. Marwaha further contended that the plaintiffs had also
examined PW-3 Shri J.S. Mann from the office of the Sub-Registrar III,
Asaf Ali Road, New Delhi and he had proved certain lease deeds
registered with them, the certified copies whereof are Exhibit PW-3/1
and Exhibit PW-3/2. Exhibit PW-3/1 was executed on 31.03.1995 and
this lease deed pertained to the same building, i.e., the multi-storeyed
building known as the Himalaya House, situated at 23, Curzon Road,
New Delhi. This lease was created for a period of three years on
31.03.1995 and the rate of rent settled was Rs.110/- per sq. ft. The other
lease deed, Exhibit PW-3/2 also pertained to Himalaya House and was
created on 01.04.1996 and for the first three years, i.e., from 01.04.1996
to 31.03.1999, the rent settled was Rs.100/- per sq. ft. As such, in the
light of the evidence on record, the award of damages @ Rs.50/- per sq.
ft. per month by the learned trial court was wholly justified.
26. After carefully considering the rival submissions of the parties,
this Court is of the view that there is no manner of doubt that the tenancy
of the defendant had been terminated on 31.10.1994 and from
01.11.1994 the tenant was in unauthorized occupation of the suit flat and
as such, liable to pay damages/mesne profits for the use and occupation
of the said flat to its owners. There is also irrefutable evidence on record
to show that in the execution proceedings in the earlier suit, i.e., Suit
No.410/1995, a compromise had been arrived at between the parties,
which is Exhibit PW-2/3, and as per the terms of the said compromise,
the appellant had agreed to pay a sum of Rs.15,000/- per month as an
interim measure till such time as they surrendered the possession to the
respondents. This Court is conscious of the fact that Clause (b) of
paragraph 6 of compromise application recorded the fact that this was
without prejudice to the rights and contentions of the parties and any
adjustments as per the decision of the Court with regard to the mesne
profits payable by the appellant Company. Nevertheless, in its opinion,
it cannot be logically deduced therefrom that no amount was payable by
the appellant Company towards mesne profits. Clause (b) of paragraph
6 reads as under:-
"b) The Judgment Debtor Company has agreed to
pay a sum of Rs.15,000/- per month as an interim
measure without prejudice to its rights and
contentions and any adjustments as per the decision
of the Hon'ble Court with regard to the mesne
profits payable by the Judgment Debtor Company."
27. It is settled law that a lease of immovable property from year to
year, or for any period exceeding one year, or reserving a yearly rent,
can be made only by a registered instrument. In the absence of a
registered instrument, it must be held to be a lease from month to month.
Since admittedly the lease in the instant case was for a period exceeding
one year, it could only have been made effectual by a registered
instrument executed jointly by the parties. In the absence of such
registration, the lease must be deemed to be a "lease from month to
month", terminable, on the part of either the lessor or the lessee by 15
days notice in writing under Section 106 of the Transfer of Property Act,
expiring with the end of the month of the tenancy. Reference in this
context may be made to the case of Bajaj Auto Limited v. Behari Lal
Kohli reported in AIR 1989 SC 1806, wherein the Supreme Court held
that an unregistered lease deed could be looked into only for collateral
purposes and not for the terms thereof. The aforesaid dicta was
reiterated in the case of Rai Chand Jain v. Miss Chandra Kanta
Khosla reported in AIR 1991 SC 744. In the case of Vinod Khanna and
Ors. Vs. Bakshi Sachdev (Deceased) Through L.R.s and Others, AIR
1996 Delhi 32, a Division Bench of the Delhi High Court after referring
to the decisions of the Supreme Court in Bajaj Auto Limited (supra) and
Rai Chand Jain (supra) held that an unregistered lease deed could be
looked into only for the collateral purposes and not for the terms.
28. Admittedly, in the instant case, no fresh lease deed was executed
and by no stretch of imagination the document dated 25.10.1993 can be
construed to mean that such a renewal was effected or brought about.
29. It also cannot be lost sight of that the words 'renewal of the lease'
are a misnomer. Viewed from any angle, the renewal is in fact really
execution of a fresh lease and that too a registered one in terms of para-1
of Section 107 of the Transfer of Property Act. The Supreme Court in
DDA Vs. Durga Chand Kaushish , AIR 1973 SC 2609 elucidated as
under:-
"A renewal of lease is really grant of a fresh lease.
It is called 'renewal' simply because it postulates
the existence of a prior lease, which generally
provides for renewal as of right. In all other
aspects, it is really a fresh lease."
30. It bears mentioning at this juncture that the instant case is one in
which an unregistered instrument, which is not produced in the Court or
proved in evidence, is sought to be pressed into service through the
medium of a letter issued by the appellant to the respondents in which
the appellant had agreed at the instance of the respondents for the
increase of rent from Rs.1,919.50 to Rs.4,467/- per month with effect
from 01.11.1993. Further, it cannot be lost sight of that in the earlier
suit, being Suit No.410/1995, a finding had been returned by the Court
that the tenancy of the defendant must be considered a month to month
tenancy, which stood validly terminated on service of the notice to quit
served upon the appellant. No appeal having been filed against the said
judgment, it must be deemed to have attained finality. This being so, the
law postulates that the appellant/lessee remaining in possession after the
determination of the lease being in unauthorized possession must pay
damages/mesne profits till such time as he hands over vacant possession
of the suit premises to the landlord.
31. As regards the quantum of damages determined by the learned
trial court, this Court finds no infirmity in the quantification in view of
the evidence adduced by the respondents-landlords, which has not been
challenged/rebutted by the appellant at all. A perusal of the notice
Exhibit PW-2/6 would show that the defendant was put to notice that the
market rate of rent in 1994-95 and 1995-96 prevailing in the nearby
buildings was Rs.45/- per sq. ft. per month approximately and the
defendant was liable to pay at that rate and that the said rate in the year
1997 was between Rs.50/- to Rs.80/- per sq. ft. per month. No reply to
the said notice was given by the appellant-defendant and the necessary
inference is that the assertion of the respondents with regard to the
prevailing market rate was correct. Then again, in the course of
evidence, PW-2 Shri Taran Tej Singh testified that the market rate of
rent per sq. ft. per month in the same building, i.e., in the Himalaya
House was Rs.70/- to Rs.100/- per sq. ft. at that time. Though PW-2 was
cross-examined at length by the learned counsel for the appellant, but the
assertion made by him regarding the prevalent rate of rent in that area or
in the same building has not been challenged at all. The respondents had
also examined PW-3 Shri J.S. Mann from the office of the Sub-Registrar
III, Asaf Ali Road, New Delhi, who proved on record two registered
lease deeds (Exhibit PW-3/1 and Exhibit PW-3/2) showing the creation
of lease agreements on 31.03.1995 in respect of the same building at the
rent of Rs.110/- per sq. ft. and Rs.100/- per sq. ft.
32. The appellant, on the other hand, has not been able to bring on
record any evidence in rebuttal and as a matter of fact the appellant's
witness DW-1 Shri Rajendra Singh, Senior Assistant (Admn.), in his
cross-examination, admitted that he was not in possession of any lease
deed in which the rent settled between the parties was less than Rs.70/-
per sq. ft. per month for the year 1995. This being so, the award by the
learned trial court of mesne profits @ Rs.50/- per sq. ft. per month from
01.04.1997 to the date of delivery of possession, i.e., 31.01.1999 cannot
be faulted. As held by this Court in Roger Enterprises Private Ltd. Vs.
Smt. Renu Vaish, 71 (1998) DLT 617, where there is no cross-
examination of the respondent's witness on the point of rate of
damages/mesne profits, this shows that the appellant does not challenge
the damages/mesne profits as stated by the respondent in her evidence
before the Court. In such a case, where there is no rebuttal to the rate of
damages/mesne profits suggested by the respondent, the appellant cannot
make an issue about it at a later stage.
33. As regards the contention of the appellant that the suit itself was
not maintainable on account of the bar of Order II Rule 2 of the Code of
Civil Procedure, this Court is of the view that there is no force
whatsoever in the said contention. A Full Bench decision of the Bombay
High Court in Shankarlal Laxminarayan Rathi and Ors. v. Gangabisen
Maniklal Sikchi and Anr., AIR 1972 BOMBAY 326 interpreted the
provisions of Order II Rule 2 in a suit for mesne profits/damages as
follows:-
"Now, it is clear upon a plain reading of Order 2,
Rule 4, that it regards the cause of action or claim
for mesne profits or for damages as different from
the cause of action for the recovery of immovable
property. If it was the same, then there was no
need to state the exceptions in clauses (a), (b) and
(c),because Order 2, Rules 1 and 2, make ample
provision for the same cause of action. It seems to
us therefore that there is the amplest indication in
Order 2 Rule 4 that the cause of action for a suit
for recovery of immovable property is not the same
as the cause of action for damages for breach of
any contract under which the property or any part
thereof is held. (para 22)
We cannot read Order 2 Rule 4 as entirely
divorced from Order 2 Rule 2. No doubt Order 2
Rule 4 is an exception to Order 2 Rule 3 but it does
not therefore follow that it has nothing to do with
Order 2 Rule 2. On the other hand, it seems to us
that Order 2 Rule 4, forms an important
qualification to both Order 2 Rule 2, and Order 2
Rule 3. Order 2 Rule 2 (1) as we have already
said, lays down the general principles that a suit
must include the whole claim which the plaintiff is
entitled to make in respect of a cause of action,
and if he does not, then he is visited with the
penalty in Order 2 Rule 2 (2). Similarly, Order 2
Rule 2 (3) provides that all reliefs arising out of
the same cause of action shall be sued for in one
and the same suit and again attaches a penalty if
the plaintiff omits to do so. Thus Order 2 Rule 2,
deals with one and the same cause of action. Order
2 Rule 3, on the other hand, deals with several
causes of action and makes the contrary provision.
It permits the plaintiff to unite several causes of
action in one suit under certain circumstances.
Where Order 2 Rule 2, deals with the same cause
of action and prohibits its splitting, Order 2 Rule 3
provides for the joinder of several causes of
action. Therefore, inter alia they deal with two
different aspects of the same subject viz. joinder of
causes of action. Now, no doubt an exception to
Order 2 Rules 2 and 3 is created by Order 2 Rule
4. Its opening part says that no cause of action
shall be joined with a suit for the recovery of
immovable property. To that extent this provision
is an exception to Rule 2 (1) and Rule 2 (3) which
respectively enjoin that a plaintiff must include his
whole claim in respect of a cause of action and
claim all the reliefs he is entitled to in respect of
the same cause of action. It is also an exception to
Order 2 Rule 3 (1) which permits several causes of
action to be joined by the plaintiff against the same
defendant or the same defendants jointly. Clauses
(a), (b) and (c) of Order 2 Rule 4 create further
exceptions to the general principle laid down in
the opening part of Order 2 Rule 4; Order 2 Rule
4, therefore deals with a specific subject, namely,
claims which could be joined in a suit for the
recovery of immovable property, and to the extent
that special provision is so made on a special
topic, its provisions qualify the general provision
of both Order 2 Rule 2 and Order 2 Rule 3. In fact,
Order 2 Rule 3 is expressly made subject to the
Order 2 Rule 4 by the use of the words "save as
otherwise provided". Thus, though Order 2 Rule 4,
is in part an exception to the general principle laid
down in Order 2 Rule 3, it is also an exception to
Order 2 Rule 2 (1) and 2 (3). We cannot regard it
as only an exception to Order 2 Rule 3, and
completely divorced from Order 2 Rule 2. (para
24)"
34. A Full Bench of the Punjab and Haryana High Court relying upon
the decision of the Privy Council in Mohd. Khalil Khan v. Mahbub Ali
Mian, AIR 1949 PC 78 and the definition of the expression mesne
profits as delineated in Section 2(12) of the Code of Civil Procedure
observed:-
"As is plain from the above-said provision the
claim for mesne profits may well require evidence
of the duration of wrongful possession of profits
which the person in wrongful possession may have
actually received or in the alternative
constructively which he might with ordinary
diligence have received; and the quantum of
interest on such profits. Can it possibly be said
that evidence of the above said nature is equally
required to support the claim of possession? In my
view, it is hardly so. In a suit for possession it
might well suffice the plaintiff to prove his title to
the property and the factum of possession within
12 years of the filing of the suit in order to
succeed. At the highest it can be said that some
facts in the two suits may be either common or
similar. But as has often been said mere similarity
is not identity. Merely because in the two cases the
facts may substantially run to an extent parallel to
each other or simply because certain matters are
common in the two suits cannot warrant a
conclusion that the evidence in a suit for
possession and in a suit for mesne profits may
necessarily be identical. I find, therefore, that by
the application of the above-said test also it would
be manifest that the two causes of action are
distinct and separate."
35. Referring to and relying upon both the aforesaid decisions, a
Division Bench of this Court in Gurudwara Baba Zorawar Singh &
Baba Fateh Singh Ji Regd. Society vs. Piara Singh & Sons, 141 (2007)
DLT 228 (DB) held that a careful reading of the provisions of Rule 4 of
Order II of the CPC would show that Rule 4 specifically permits
institution of a suit for mesne profits or arrears of rent as a separate
count of action from a suit for recovery of immovable property.
Paragraph 4 of the judgment, which is apposite, reads as under:-
"4. A careful reading of the above would show
that as a general rule in a suit for recovery of
immovable property, the plaintiff cannot join any
other cause of action. There is however an
exception to that rule inasmuch as a claim for
mesne profits or for arrears of rent or for damages
for breach of any contract under which the
property is held can be made in the same suit. This
implies that the court recognises the cause of
action underlying a suit for recovery of immovable
property to be independent of the cause of action
for recovery of mesne profits, damages or arrears
of rent in relation to any such property. If that
were not so, there would have been no necessity of
making a provision in Rule 4 supra specifically
permitting the joinder of the two reliefs in one suit.
It follows that the subsequent suit filed by the
plaintiff appellant out of which the present appeal
arises did not fall within the mischief of Order 2
Rule 2 of the CPC....................."
36. In view of the aforesaid, in my view, there is no merit in the
present appeal. The impugned judgment and decree dated 07.12.2002
passed by the learned trial court is accordingly affirmed and the appeal
dismissed.
RFA 315/2003 and CM Nos.718/2003 and 1649/2003 stand
disposed of accordingly.
REVA KHETRAPAL
(JUDGE)
May 28, 2010
km
