Delhi High Court
Sh. Ram Dev vs Sh. Lekh Raj on 14 March, 2011
Author: Indermeet Kaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 14.03.2011
+ RSA No. 45/2011 & CM Appl Nos. 4768/2011 & 4769/2011
SH. RAM DEV ...........Appellant
Through: Mr. G.S. Sharma, Advocate
Versus
SH. LEKH RAJ ..........Respondent
Through: None.
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
22.11.2010 which has endorsed the finding of the trial judge dated
18.09.2010 whereby the suit filed by the plaintiff, Lekh Raj, for
recovery of possession and damages/ mesne profits and permanent
qua the suit property bearing no. A-2/19, (ground floor), Khajoori
Khas, Delhi- 110094 had been decreed in his favour. Along with the
decree of possession, decree for damages at the rate of ` 8,000/-
per month had also been granted.
2. This is a second appeal. Possession of the suit property has
since been handed over to the respondent. This appeal has only
impugned the finding of the courts below wherein damages have
been awarded at the rate of ` 8000/- per month. It has been
pointed out that the rent of the suit premises was ` 3850/- as has
been held by the two fact finding courts; damages at the exorbitant
rate of ` 8000/- per month was un-called for. It is submitted out
that this has raised the substantial question of law.
3. Record shows otherwise. Issues had been framed. Relevant
issue on damages had been framed as Issue no. 3. It reads as
follows:-
"(iii) Whether the plaintiff is entitled for decree of
damamges/mesne profits @ ` 8000/- per month as
prayed in the suit? OPP"
4. The findings of the trial judge noting the testimony of PW -1
and PW-2 as also the cross-examination of DW-1 had been adverted
to.
The said finding reads as follows:-
"Now coming to issue no.3, the plaintiff has stated
in the plaint that after the termination of the
tenancy of the defendant by way of a notice dt.
29.03.09 proved on record as Ex. PW 1/8 by the
plaintiff, the status of the defendant was that of a
trespasser only and he was holding the suit
property thereafter, unauthorizedly and illegally
and as such the defendant is liable to pay damages
for use and occupation @ ` 8000/- per month
which is the prevailing market rate of rent w.e.f.
1st of May 2009.
Whereas on the other hand, Ld. Counsel for
the defendant in the written final arguments has
stated in so many words that the present suit is
barred by Section 50 of the DRC Act and the
tenancy of the defendant was not terminated by
the plaintiff at all. It has been further argued by
Ld. Counsel for the defendant that the plaintiff has
stated in his cross-examination that the defendant
Ram Dev is still the tenant in the tenanted
premises and as such the suit is liable to be
dismissed on this ground alone. It has been
further argued that the plaintiff in the cross-
examination has further stated that the legal
notice dt. 29.03.09 was sent to the defendant only
to initiate the legal proceedings of the present
case and nothing more. It has been further argued
that the said notice does not amount to
termination of the tenancy of the defendant.
Ld. counsel for the plaintiff in the written
final arguments has argued that the
damages/mesne profits @ ` 8000/- per month are
claimed by the plaintiff and PW 1 has deposed to
this effect in his examination-in-chief and the same
goes unrebutted. It has been further argued that
the plaintiff has been able to prove that the
damages/mesne profits of the suit property are
more than ` 8000/- per month at present and the
same may be granted w.e.f. 01.05.2009.
It has to be seen that in para no. 11 of his
affidavit Ex. P1, PW1 i.e. the plaintiff has clearly
stated that the defendant 1 is liable to pay
damages for use and occupation w.e.f 01.05.2009
@ Rs. 8000/- per month which is the prevailing
market rent. The above said examination-in-chief
of PW 1 has not been rebutted in the cross
examination at all. Not even a single suggestion
has been put to this witness who is the plaintiff
himself during the entire cross-examination
carried on by Ld. Counsel for the defendant. The
settled law is that if a part of the examination-in-
chief is not challenged during the cross
examination, then the same stand admitted.
Otherwise also PW2 has stated in his cross
examination that the present market rent of a shop
similar to his shop is Rs. 3500/-. The defendant in
his own cross examination has admitted it to be
correct that the area of the shop is more than
double as compared to the adjoining shop in the
said property.
In the light of the above said discussion. I
am of the opinion that the plaintiff has been able to
prove on record that he is entitled for decree of
damages/mesne profits @ Rs. 8000/- per month
w.e.f. 01.05.2009 as prayed for by the plaintiff in
the plaint and accordingly issue no. 3 is also
decided in favour of the plaintiff and against the
defendant.
5. This finding of the trial judge has been endorsed by the first
appellate court. The finding returned is as follows:
"On rest of the issues no arguments have been
advanced in appeal because they arise out of the
decision of issue no. 1. It is pertinent to noted that
Ld. Civil Judge awarded arrears of rent at the rate
of Rs.3500/- per month w.e.f. 1.5.2007 till
30.9.2007 and further at the rate of Rs. 3850/- per
month w.e.f. 1.5.2007 till 30.9.2007. He further
awarded damages at the rate of Rs. 8000/- per
month w.e.f. 1.5.2009 till the date of handing over
the suit premises to the respondent/plaintiff by the
appellant/defendant. I find no infirmity in these
findings. The damages awarded to the
respondent/plaintiff are not at all excessive
keeping in view the present scenario of high
rentals in Delhi. Hence the findings of the trial
court on all the issues are upheld."
6. Even in the grounds of appeal before the first appellate
court, in the entire body of the appeal, damages awarded at the
rate of ` 8000/- per month by the trial judge had not been assailed.
Today, before this court a certified copy of the testimony of DW-3
has been placed on record. This version of DW-3 i.e. Sh. Jai Singh
does not in any manner deal with the damages, it has only spoken
about the rate of rent of the said premises. Testimony of PW1 and
PW 2 wherein both had testified that damages at the rate of
`8000/- per month as per the prevailing market rate had been
appreciated. DW-1 had also admitted that shop premises are
double the area of a shop which was fetching a market rent of
`3,500/- per month. These fact findings are in no manner perverse;
they call for no interference.
7. No substantial question of law having been arisen, the appeal
as also the pending application is dismissed.
INDERMEET KAUR, J.
MARCH 14, 2011
SS
