Bhimsen A Mamtani vs M/S Lakme Ltd.
2011 Latest Caselaw 1643 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Date of Judgment: 22.03.2011

+                 RSA No. No. 342/2005



BHIMSEN A MAMTANI                      ...........Appellant
                 Through: Mr. Anil Mittal, Advocate.

              Versus
M/S LAKME LTD.                          ..........Respondent.
                   Through: Mr. Rahul Ravindran, Advocate

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 is directed against the impugned judgment and

decree dated 22.07.2005 which had modified the order of the trial

Judge dated 24.11.2004. Admittedly the possession of the suit

property i.e. Flat No. 307, 3rd floor, Ansal Bhawan, K.G.Marg, New

Delhi has since been handed back to the plaintiff. What remained

before the trial court were the issues of mesne profits and the

difference in the house tax which was claimed by the plaintiff. Vide

judgment and decree dated 24.11.2004, the suit of the plaintiff qua

these issues had been dismissed. Trial Judge was of the view that

no evidence has been led by the plaintiff on the mesne profits; he

was also not entitled to the difference in house tax.

2 In appeal, vide the impugned judgment and decree dated

22.07.2005, the findings of the trial Judge were modified. While

dismissing the claim of the plaintiff seeking mesne profits, the

claim of the plaintiff for the difference in payment of house tax i.e.

the claim of Rs.48,945.80 paise had been decreed in favour of the

plaintiff with proportionate costs and interest @ 12% per annum

from the date of filing of the suit till realization.

3 This is a second appeal. This judgment has been impugned.

The appeal had been admitted and on 28.08.2008, the following

two substantial questions of law were formulated. They read as

under:-

1. Whether when admittedly the plaintiff/appellant had terminated the tenancy of the respondent w.e.f. 04.12.1995 by a valid notice dated 30.10.1995 and on that basis decree for possession dated 15.10.1999 was passed whereby suit for possession was decreed in favour of the appellant/plaintiff on the basis of the respondent being declared in unlawful possession being a trespasser, whether the courts below were justified in holding that after encashment of the cheques by the plaintiff/appellant the respondent/defendant became tenant by holding over and as such the plaintiff was not entitled to mesne profits?

2. Whether in the facts and circumstances of the case, the courts below have rightly interpreted the provision of section 116 of the Transfer of Property Act?

4 Counsel for the appellant has urged that the case be

remanded back to the trial court in order that he may prove

documents to the effect that the mesne profits for adjoining area

were of the same amounts which he had claimed in his plaint. This

request has been vehemently opposed. Admittedly till date even

before this Court, there is no application filed by the appellant

seeking permission to adduce additional evidence. At this stage,

this request cannot be entertained by this Court which is not a

third fact finding Court.

5 On behalf of the appellant, it has also been urged that

although admittedly no evidence had been led on the quantum of

mesne profits yet this was a specific claim made by the plaintiff

and he had made averments to the said effect on his deposition on

oath in Court. Attention has also been drawn to Ex. PW-1/6

(Collection of documents) which are house tax bills purported to

have paid by the plaintiff for the period prior to the date when the

property was handed back to him. Perusal of the same shows that

they are bills pertaining to June, 1985 to June, 1995. Admittedly

the possession of the suit property had been handed back to the

plaintiff in October, 2001. It is also not in dispute that the claim for

the difference in house tax as claimed by the plaintiff in his plaint

(evident from para 19 of the plaint wherein the claim is for the

period from 1992-1993 & 1993-1994) had been decreed in favour

of the plaintiff.

6 The impugned judgment calls for no interference. As noted

by both the courts below and as borne out from the record,

admittedly no evidence was led by the plaintiff on the issue of

mesne profits. Except for the oral statement that there was no

other evidence with the courts below to grant mesne profits in

favour of the plaintiff; it was in these circumstances that the claim

of mesne profits was rejected. Counsel for the respondent has

further pointed out that even after the termination of tenancy, the

defendant had continued to pay rent which was accepted by the

plaintiff. The difference in house tax for the period claimed in the

plaint had been decreed in favour of the plaintiff i.e. a sum of

Rs.48,945.80 paise along with proportionate costs and interest @

12% per annum from the date of filing of the suit till realization.

What is now claimed and set up in Ex. PW-1/6 was never a part of

the plaint; the plaintiff cannot be granted a relief which has not

been prayed for by him.

7 The impugned judgment calls for no interference. Substantial

questions of law are answered accordingly. There is no merit in the

appeal. Dismissed.

INDERMEET KAUR, J.

MARCH 22, 2011 A