Oriental Bank Of Commerce vs Tilak Raj & Ors.
2011 Latest Caselaw 2307 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 29.04.2011


+                 R.S.A.No. 186/2007 & CM Nos.9770-71/2007

ORIENTAL BANK OF COMMERCE             ...........Appellant
                  Through: Mr. Saran Suri & Mr. Gunjan
                           Kumar, Advocates.

                  Versus

TILAK RAJ & ORS.                               ..........Respondents
                        Through:    Mr.Ashok Sapra, Advocate for
                                    respondent No. 2.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

    1. Whether the Reporters of local papers may be allowed to
       see the judgment?

    2. To be referred to the Reporter or not?                Yes

    3. Whether the judgment should be reported in the Digest?
                                                         Yes

INDERMEET KAUR, J. (Oral)

1 This appeal has impugned the judgment and decree dated

02.12.2006 which had endorsed the findings of the trial Judge

dated 24.03.2003 whereby the suit filed by the plaintiff Tilak Raj

seeking possession of the suit property i.e. property bearing No.

D-985, New Friends Colony, New Delhi had been decreed along

with mesne profits granted in favour of the plaintiff @ `40/- per

sq. feet for ground floor, `35/- per sq. feet for the first floor, `34/-

per sq. feet for the second floor and `30/- per sq. feet for the third

floor from 01.09.1990 to 27.10.1997.

2 The suit had been filed by the plaintiff who is admittedly

the landlord of the suit premises. The suit property had in the

course of proceedings been handed over to the plaintiff. The suit

property had been vacated on 31.10.1997 pursuant to the

compromise arrived at between the parties. This was in terms of

the order of the High Court where the statement of the respective

counsel for the parties had been recorded. It was further agreed

between the parties that by means of negotiation, the quantum of

mesne profits and damages for the period up to the date of

vacation of the suit property shall also be mutually settled and in

case it is not settled, the plaintiff would be at liberty to move an

application under Order 20 Rule 12 of the Code of Civil Procedure

(hereinafter referred to as the „Code‟) before the executing Court

for determination of the said amount. The mesne profit could not

be mutually settled.

3 On 10.09.1998 on an application under Order 20 Rule 12

of the Code, the following two issues were framed:-

1. Whether the plaintiff/D.H. is entitled to the mesne profits/damages, if so, at what rate and for what period? OPP

2. Relief.

4 The evidence was led by the respective parties which

included two witnesses on behalf of the plaintiff and two on behalf

of the defendant. Apart from the oral testimony, documentary

evidence was also adduced which was the lease deed Ex. PW-1/1

executed between the plaintiff and Essar Commercial Vision dated

26.09.1997; Ex. PW-1/2 was the maintenance agreement and

Ex.PW-1/3 was the hire agreement. On the other hand the

defendant had produced only one document Ex. DW-1/1; it was

about the handing over of possession back to the plaintiff. The

Court had examined oral and documentary evidence led by the

respective parties and granted mesne profits at the aforenoted

rate.

5 This finding was endorsed in the first appellate court.

6 This is a second appeal. It had been admitted and on

24.07.2007, the following substantial question of law was

formulated. It reads as under:-

"Whether the mesne profits/damages granted by the courts below is on the higher side. If so, its effect?"

7 On behalf of the appellant, it has been urged that the

judgment of the trial court is illegal and arbitrary for the reason

that even as per the documentary evidence adduced by the

plaintiff, he had been able to prove that the adjoining property i.e.

property bearing No. D-942, New Friends Colony, had been leased

out at a rental of `22.50/- per sq. feet; the Court having been

awarded damages for the ground floor of the suit property @ `40/-

per sq. feet is clearly a perversity. It is pointed out that even in

the application under Order 20 Rule 12 of the Code which had

been filed by the plaintiff seeking adjudication of the mesne

profits, for the second floor he had claimed `30/- per sq. feet; the

impugned judgment has granted mesne profits @ `34/- per sq.

feet for the second floor which is the second perversity. For the

aforenoted reasons, the judgment is liable to be set aside.

8 Arguments have been refuted. It is pointed out that the

finding of fact cannot be lightly disturbed. No interference is

called for.

9 Admittedly parties had reconciled their disputes and

property had been handed back to the plaintiff on 31.10.1997.

Impugned judgment has awarded mesne profits in favour of the

plaintiff @ `40/- per sq. feet for ground floor, `35/- per sq. feet for

the first floor, `34/- per sq. feet for the second floor and `30/- per

sq. feet for the third floor; this was for the period from 01.09.1990

to 27.10.1997 i.e. for the period when admittedly the defendant

was an unauthorized occupant. PW-1 was the neighbor who had

come into the witness box, he had proved the lease deed as Ex.

PW-1/1; apart from the lease deed, the maintenance agreement

and hire agreement for fixtures Ex. PW-1/2 and Ex. PW-1/3 had

also been proved. As per Ex. PW-1/1 `25,000/- per month was the

rent, maintenance agreement Ex. PW-1/2 was for `15,000/- per

month and hire agreement Ex. PW-1/3 was for `10,000/- per

month for the first two years and thereafter an escalation of 20%

after every two years was noted; the total rent would thus be

`50,000/-. PW-2 had deposed that the he had leased out his

property measuring 442 square yards at `50,000/- per month. He

had deposed that the property of the plaintiff would fetch market

rent @ `40/- per sq. feet as it is located on the main road and has

a greater potential area. PW-2 was the plaintiff; he had

corroborated this version and deposed that he is claimed damages

@ `40/- per sq. feet for ground floor, `35/- per sq. feet for the first

floor, `34/- per sq. feet for the second floor and `30/- per sq. feet

for the third floor. The court had noted that in fact no cross-

examination had been effected of this witness that the rate of

damages/mesne profits being claimed by him for the different

levels of the suit property was not the said market rent. The Court

had also noted that the defendant had not led any evidence.

10 These are findings of fact returned by the two fact finding

courts below. In no manner it can they be said to be perverse. A

second appellate court can interfere in the findings of fact only if

the same are shown to be perverse i.e. based on no evidence. This

is not one such case. The trial Judge had in fact after detailed

scrutiny of the evidence, oral and documentary arrived at the

aforenoted finding. The impugned judgment had thereafter

affirmed it which was again after a detailed examination of the

evidence both oral and documentary. This court is not a third fact

finding court. No perversity has been pointed out. The impugned

judgment calls for no interference.

11 Substantial question of law is answered accordingly in

favour of the respondent and against the appellant. There is no

merit in this appeal. Dismissed.

INDERMEET KAUR, J.

APRIL 29, 2011 A