Delhi High Court
Smt. Nirmal Tanwar vs U.S. Nagpal on 9 August, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.223/2002
9th August, 2011
SMT. NIRMAL TANWAR ...... Appellant
Through: Mr. Vishal Bhatnagar and Mr.
Nitin Sharma, Advocates.
VERSUS
U.S. NAGPAL ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of this Regular Second Appeal
under Section 96 of the Code of Civil Procedure, 1908 (CPC), is to the
impugned judgment dated 22.2.2002 which has decreed the suit of
the appellant/plaintiff only in part while dismissing the claim of
recovery of Rs.40,000/- being the alleged damage caused by the
respondent/tenant by demolishing a partition wall. The second relief
RFA No.223/02 Page 1 of 4
which has been denied was the claim of the appellant for claiming
liquidated mesne profits in terms of Clause 8 of the Lease Deed, as
per which, the appellant claims to be entitled to charges of Rs.1000/-
per day for unauthorized occupation.
2. So far as the first aspect is concerned, a reference to the
pleadings shows that the respondent/defendant had denied that he
has demolished the partition wall. In fact, during the cross
examination of the appellant/plaintiff, a suggestion has been put that
in fact there was never any partition wall. Even in the affirmative
evidence of the respondent/defendant, he has stated that he has not
demolished any partition wall because there was never any partition
wall when the premises were taken on rent. Learned counsel for the
appellant contends that the appellant in a legal notice Ex.PW1/D, in
para 7, had mentioned the factum of the claim of damages for
breaking of the wall and therefore the appellant was entitled to the
same since this was not denied to in the reply to the legal notice
Ex.PW1/G. I have gone through the reply and this reply specifically
denies that the wall has been demolished by the
respondent/defendant. Further, and as stated above, the
respondent/defendant has specifically in the pleadings and also in his
RFA No.223/02 Page 2 of 4
evidence denied that he has demolished any partition wall. In my
opinion, therefore, there is no error in the judgment of the trial court,
by which, the claim with respect to damages for demolition of the wall
has been disallowed.
3. So far as the second argument as raised by the learned
counsel for the appellant, relying upon Clause 8 of the Lease Deed
Ex.PW1/B is concerned, it is settled law that such Clauses entitling
liquidated damages are bad in law because of Section 74 of the
Contract Act, 1872, inasmuch as once damages can be proved, a
Clause by which interrorem damages have been fixed, cannot have
any legal effect in view of the Constitution Bench judgment in the case
of Fateh Chand vs. Balkishan Das AIR 1963 Supreme Court 1405.
The nature of the contract in the present case is such that the relief of
mesne profits can always be proved by leading evidence of rents of
similar premises, and admittedly, as agreed by counsel for the
appellant, no evidence whatsoever has been led of the rent of other
premises so as to entitle the appellant to a rate of mesne profits
higher than the agreed rate of rent.
RFA No.223/02 Page 3 of 4
4. In view of the above, I do not find any merit in the appeal
which is accordingly dismissed leaving the parties to bear their own
costs. Trial court record be sent back.
AUGUST 09, 2011 VALMIKI J. MEHTA, J.
ib
