Chief Postmaster & Ors vs Kanta Devi
2012 Latest Caselaw 4952 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Date of Decision: 23rd August, 2012

+     RFA 356/2012

      CHIEF POSTMASTER & ORS                             ..... Appellants

                    versus


      KANTA DEVI                                     ..... Respondent

Advocates who appeared in this case:

For the Appellants                 :     Mr. Rajinder Nschal, Advocate
For the Respondent                 :     Mr. V. P. Dewan, Advocate.

CORAM:
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

SUDERSHAN KUMAR MISRA, J. (ORAL)

1. Issue notice to the respondent.

2. Mr. Dewan, Advocate, enters appearance and accepts notice.

3. With consent of parties, the matter is taken up for final

disposal today itself.

4. The instant appeal impugns the decision of the court below

with regard to mesne profits awarded to the respondent in a suit filed by

the respondent seeking recovery of possession and mesne profits, in

respect of the portion of the premises bearing No.5326/31, Basti Harphool

Singh, Sadar Thana Road, (Post Office Building), Delhi, measuring

approximately 660 sq. ft., which was let by the respondent to the appellant

for running a post office on monthly rent of Rs.5100/- for a period of five

years with effect from 23rd October, 2001. The period of tenancy,

admittedly, expired on 22nd October, 2006 by efflux of time. The fact and

duration of tenancy is not disputed.

5. After trial, the court concluded that, in terms of the lease

executed between the parties on 3rd June, 2004, the tenancy stood

determined by efflux of time on 22nd October, 2006. To this extent, there

appears to be no dispute between the parties.

6. The appellants have confined the scope of the appeal to the

determination of mesne profit arrived at by the trial court. In this context,

after trial, the court below awarded damages to the respondent for the use

and occupation of the aforesaid premises by the appellants for the period

28th October, 2006 to 22nd May, 2008 @ Rs.42/- per sq. ft. amounting to

Rs.27,720/- per month; and from 23rd October, 2008 to 31st January, 2009;

when the appellant ultimately vacated the premises, @ Rs.48/- per sq. ft.

amounting to Rs.31,680/- per month. In addition, the respondent was also

awarded interest @ 10% per annum. It was further directed that the

respondent shall adjust any amounts paid by the appellants during the

aforesaid period towards rent/damages from the total damages/use and

occupation charges awarded by that court. In this context, on 27th

February, 2008, the trial court had framed the following issue:

"To what amount by way of damages/mesne profit is the plaintiff entitled to recover from defendant for use and occupation of the suit premises?"

7. It is the case of the appellants that the trial court was not

justified in relying upon the evidence produced by the respondent to

demonstrate that another property which was, admittedly, in the vicinity of

the suit property and was let out to the Andhra bank was attracting a rent

of Rs.72,265/- per month, because the size of that premises was 1720 sq.

ft., comprising of ground floor and first floor, and its rate of rent comes to

a little over Rs.42/- per sq. ft.; whereas the suit property was merely 660

sq. ft. on the ground floor. According to the appellants, the trial court

failed to appreciate that the two properties were not comparable, and that

they were not equally circumstanced for the sole reason that the former

measured more than two and half times the size of the suit property.

Appellants have contended that on this sole ground alone, the said property

let out to Andhra bank could not have been taken to fair estimate of the

letting value of the suit property for the period in question, i.e., after the

occupation of the appellants' became unauthorized.

8. Admittedly, the property leased to Andhra Bank, which was relied

upon by the respondent to calculate mesne profits was let out with effect

from 25th May, 2005 for three years, i.e. upto 24th May, 2008. The said

lease pertaining to Andhra bank also envisaged the renewal for period of

another three years with 15% increase on the last rent paid. Whereas, in

the case at hand, the period for calculation was from 23 rd October, 2006 to

31st January, 2009, when the appellants ultimately vacated the property.

9. Admittedly also, the appellants have not produced any other

evidence to the contrary with regard to the letting value of any other

comparable property in the vicinity to demonstrate a lower rent and

disprove the contention of respondent. The sole defence witness produced

by the appellants has merely denied the liability of the appellants to pay

the damages as demanded by the respondent in the suit. The only other

aspect stated by the said witness is that, according to him, the appellants

are rendering a public service and, therefore, they cannot be saddled with

the damages claimed by the plaintiff/respondent. At the same time, it was

also admitted by the said witness that he had never visited the suit property

and he has no idea about the prevailing rate of rent in the vicinity.

10. I notice that after institution of the suit by the respondent, the

appellants vacated the suit premises on 31st January, 2009. During the

pendency of the suit, and after the premises was vacated on 31st January,

2009, the respondent re-let the premises to the ICICI bank. This fact, and

the fact that the suit premises was re-let at Rs.96,000/- per month, which

comes to Rs.145.45 per sq. ft., was put to DW1 appearing on behalf of the

appellants, however, he denied any knowledge of the same. Admittedly,

both, the suit property, as well as the tenanted premises leased to Andhra

bank, are situated on the same side of main road. The appellants have not

even bothered to suggest that there is lack of parity between the bank and

the suit property as far as the location is concerned. No authority has been

cited at the bar in support of the propositions being raised by the appellant.

11. It is well known that rate per square foot is always higher for

smaller premises as compared to a much larger premises. It follows

therefore that the disparity in size of the smaller suit property, when

compared with the much larger one in the vicinity leased to the Andhra

bank, would actually operate in favour of the respondent's smaller

property and therefore, there could be no error in the trial court having

accepted the rate being paid by the Andhra bank for a premises measuring

1720 sq. ft. as a fairly reliable indicator of the rent that the suit property,

which only measured about 660 sq. ft., could have attracted. Under the

circumstances, the decision of the trial court to award Rs.42/- per sq. ft. on

22nd May, 2008, which was nearly at par with the amount being paid by the

Andhra bank for the same period, in the same vicinity and with the same

benefits as regards the location etc., and thereafter at Rs.48 per sq. ft. until

the date of vacation, which was approximately 15% more, also in terms of

what Andhra Bank had agreed to pay cannot be faulted.

12. The appeal is therefore dismissed.

SUDERSHAN KUMAR MISRA, J.

AUGUST 23, 2012 dr