Bharat Bhushan Jain & Ors. vs Goodyear India Ltd. & Anr.
2011 Latest Caselaw 3904 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   RSA No.186/2010 & RSA No.187/2010


%                                                 11th August, 2011

1. RSA No.186/2010
BHARAT BHUSHAN JAIN & ORS.                      ...... Appellants
               Through:  Mr. V.K.Srivastava with Mr. B.B.Jain, Advs.

                          VERSUS

GOODYEAR INDIA LTD. & ANR.                       ...... Respondents

Through: Mr. B.Mohan & Ms. Shashi Saxena, Advs. for the respondent no.1.

Mr. Abhinav Jain with Ms. Shikha Sapra, Advs. for the respondent no.2.

&

2. RSA No.187/2010 BHARAT BHUSHAN JAIN & ORS. ...... Appellants Through: Mr. V.K.Srivastava with Mr. B.B.Jain, Advs.

VERSUS

GOODYEAR INDIA LTD. & ANR. ...... Respondents Through: Mr. B.Mohan & Ms. Shashi Saxena, Advs. for the respondent no.1.

Mr. Abhinav Jain with Ms. Shikha Sapra, Advs. for the respondent no.2.

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? Yes

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

VALMIKI J. MEHTA, J (ORAL)

1. Both these appeals can be disposed of by this common

judgment inasmuch as they are between the same parties and involve

more or less identical facts.

2. The issue is with respect to entitlement of mesne profits of the

appellants and the respondent no.2 (hereinafter „the landlord‟) with

respect to the premises which were held over by the respondent

no.1/tenant after termination of tenancy and till the vacation thereof. In

RSA No.186/2010 the period in question is from 2.1.1990 to 30.3.2001

and in RSA No.187/2010 it is from 2.1.1990 to 30.4.1999.

3. By the impugned judgment, the Appellate Court allowed the

appeals of the respondent no.1 and granted only the admitted rate of rent

as mesne profits. The appellants are aggrieved by this aspect inasmuch

as even if the entire rationale of the Appellate Court is accepted, yet, a

most vital judicial admission made by the witness of the respondent no.1

was ignored while considering this issue of mesne profits and which if

considered the landlords would have been granted mesne profits higher

than the admitted rent.

4. Learned counsel for the appellants has taken me through the

testimony of DW1, Sh.P.V.Ramni, Officer of the respondent no.1 who in his

examination in chief stated as under:-

"At that time when the termination notice of tenancy was served upon the defendant the prevailing rate in the locality was Rs.5/ to Rs.8/ per sq.ft. per month."

5. It is argued that this is a judicial admission not even in the

cross-examination but in examination in chief, and judicial admissions are

placed on a much higher pedestrian than the evidential admissions in

view of a decision of Division Bench of three judges of the Supreme Court

in the case of Nagindas Ramdas vs. Dalpatram Ichharam (1974) 1

SCC 242. Para 27 of the judgment is relied upon and which reads as

under:-

"From a conspectus of the cases cited at the bar, the principle that emerges is, that if at the time of the passing of the decree, there was some material before the Court, on the basis of which, the Court could be prima facie satisfied, about the existence of a statutory ground for eviction, it will be presumed that the Court was so satisfied and the decree for eviction though apparently passed on the basis of a compromise, would be valid. Such material may take the shape either of evidence recorded or produced in the case, or, it may partly or wholly be in the shape of an express or implied admission made in the compromise agreement, itself. Admissions, if true and clear, are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions, admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admissions. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand, evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong. "(underlining added)

6. A reference to para 27 of the judgment in the case of

Nagindas (supra) shows that admissions, if true and clear, are by far the

best proof of the facts admitted. Admissions in pleadings or judicial

admissions, made by the parties or their agents at the hearing of the

case, stand on a higher footing than evidentiary admissions. These

judicial admissions are fully binding on the party that makes them and

constitute a waiver of proof. Such admissions by themselves can be made

the foundation of the rights of the parties.

7. Learned counsel for the appellants also argues that the

Appellate Court has very surprisingly ignored this most crucial evidence

and granted only the admitted rate of rent. It is argued that the

appellants are definitely entitled to mesne profits at Rs.5-8 per square

feet. It is argued that this perversity raises a substantial question of law.

I agree. The substantial question of law which is thus framed is:- "Can a

Court ignore clinching evidence which entitle a person to relief thus

making the judgment perverse requiring it to be set aside."

8. Learned counsel for the respondent, of course, tried to

vehemently rebut the arguments of the appellants and said that the

Appellate Court‟s judgment is a detailed judgment giving the correct

reasons for denying the mesne profits at a higher rate than the admitted

rate. However, I find this argument not of much substance inasmuch as

admittedly the Appellate Court has ignored the vital evidence being the

admission made by the witness of the respondent no.1 itself. This

therefore clearly raises a substantial question of law entitling this Court to

interfere with the impugned judgment dated 12.7.2010. I therefore hold,

considering all the facts and circumstances of the case, that since the rate

of rent is stated to be in a range of Rs. 5/- per square feet to Rs. 8/- per

square feet, the appellants should be entitled to mense profits for the

relevant period at Rs.7/- per square feet per month. This rate of Rs. 7/-

per square feet per month is for the ground floor and for the mezzanine

floor, the landlord will be entitled to at Rs.5/- per square feet per month.

9. The next issue is the issue with respect to Award of interest on

the arrears of mesne profits. I have an occasion to consider this aspect in

the judgment titled as M/s. P.E.C. Ltd. vs. Sh. Samir Prakash & Anr.

in RFA No.563/2005 decided on 12.7.2011 in which I have relied upon the

Supreme Court‟s decision in the case of Indian Oil Corporation vs.

Saroj Baweja 2005(12) SCC 298 which held that the landlord is entitled

to interest on arrears of mesne profits. On this aspect I may note that in

the present scenario there has been a consistent fall in the rates of the

interest in the fixed deposits, and therefore, weighing and considering all

the aspects, being the interest during the relevant period, I deem it fit

that the appellants are entitled to interest at 7 ½ % simple pendent lite

and future till payment from the respective months mesne profits became

payable till the date of payment. If however, the respondent no.1 in terms

of the present decree makes payment of the decretal amount within a

period of 2 months from today, then the rate of interest shall only be 6 %

per annum simple.

10. Accordingly, the appeal is accepted to the extent as stated

above. Decree sheet be prepared. Trial Court record be sent back.

11. I may clarify that if the respondent no. 1 is shown to have paid

any amount for the relevant period to the landlords, then, the counsel for

the appellants states that adjustment will be given for such payments

made.

12. The entitlement of mesne profits to the landlords, I may

clarify, will include the entitlement of rent to the respondent no.2 herein

and who was originally the plaintiff in the suit. If there are any, inter se,

disputes with respect to the inter se division of the rent, this Court cannot

go into the same and this aspect will be considered by the Civil Court

before whom appropriate proceedings may be filed or pending.

CM Nos.18595/10(stay), 4687/11 & 9751/11 in RSA No.186/10 CM No.18632/10 & 4688/11 in RSA No.187/10

13. Since the main appeals stand disposed of, no orders are

required to be passed in these CMs and the same are disposed of

accordingly.

AUGUST 11, 2011                              VALMIKI J. MEHTA, J.
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