Inclen Trust Int vs Rd Ramnath Company (Huf)
2012 Latest Caselaw 121 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              RFA No.415/2011

%                                                    6th January, 2012

         INCLEN TRUST INT                                     ..... Appellant
                       Through :         Mr. Prakash Gautam, Advocate.

                      versus

         RD RAMNATH COMPANY (HUF)                ..... Respondent

Through : Mr. Sameer Vashisht and Mr. Dhruv Rohatgi, Advocates.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal filed under

Section 96 of the Code of Civil Procedure, 1908 is to the impugned

judgment of the trial court dated 7.4.2011 decreeing the suit for mesne

profits. The suit was for possession and mesne profits, and possession of the

suit premises were already delivered to the respondent / plaintiff by the

appellant / defendant on 25.5.2009.

2. The facts of the case are that the appellant / defendant took on rent

w.e.f. 7.4.2005 the suit premises being the 5th Floor of Building No.18,

Yusuf Sarai Community Center, New Delhi ad measuring 2984 sq. ft. The

rate of rent between the parties was fixed at `1,10,000/- per month and

additionally there was a six months interest free rent deposit. The tenancy

being a monthly tenancy was terminated by the respondent / plaintiff by

legal notice dated 12.4.2008 and since the appellant / defendant failed to

vacate the suit premises, the subject suit for possession and mesne profits

came to be filed.

3. The only issue which is required to be determined by this Court is the

rate at which mesne profits would be payable for the period from 8.5.2008;

the date on which the appellant / defendant became an unauthorized

occupant of the suit premises; till 25.5.2009, when the suit premises were

vacated.

4. Before the trial court, the respondent / plaintiff in order to prove the

mesne profits, filed a rent deed, Ex. PW1/2, dated 9.1.2009 entered into

between the respondent / plaintiff and M/s. Brij Capital Reality Pvt. Ltd.

with respect to 4th Floor portion of the same building comprising 1365 per

sq. ft. The rate of rent fixed was `1,85,000/- per month, and which comes to

`135 per sq. ft. Though the trial court has discarded this lease deed, I am of

the opinion that the trial court was totally unjustified in doing so inasmuch

as this document was duly proved and exhibited before the trial court. There

was no objection to the exhibition of this document when the same was

exhibited by filing of affidavit by way of evidence by the respondent /

landlord / plaintiff. Once there is no objection to the exhibition of the

document, the said document can always be looked into vide R.V.E.

Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple &

Anr., (2003) 8 SCC 752. Though there is a suggestion in the cross-

examination that the lease deed Ex.PW1/2 is executed in connivance with

the tenant of the lease deed Ex. PW1/2, namely, M/s. Brij Capital Reality

Pvt. Ltd., however, I have failed to understand that what could be the

connivance because after all the lease was entered into and duly acted upon.

It is not the stand of the appellant/defendant that this lease deed is a forged

and fabricated document and was never acted upon. I, therefore, hold that

the trial court committed an error in discarding the lease deed Ex. PW1/2. I,

therefore, hold that the trial court ought to have looked into this document

Ex. PW1/2, the lease deed dated 9.1.2009 which pertains to the same

building and just one floor above the suit premises.

5. If, we look at the lease deed Ex.PW1/2, the rate of rent comes to

`135/- per sq. ft. This rate of rent is, however of six months subsequent to

the date on which appellant / defendant became an unauthorized occupant.

Taking an increase of rent of appox. about 20% - 25% per year, the rate of

rent in view of the lease deed Ex.PW1/2 in May 2008 will in fact work out

to approx. `115 per sq. ft. Further, giving additional benefit to the appellant

/ defendant that whereas the suit premises was of a larger area of 2894 sq. ft.

and the premises on the 4th Floor which was the subject matter of the lease

deed Ex. PW1/2 was lesser of 1365 sq. ft., even then, at least the rent would

be `100 per sq. ft in May 2008. The trial court has granted not this rate of

`100 per sq. ft. but only `75 per sq. ft. Therefore, the trial court has been

more than conservative, and I failed to understand as to how the appellant /

defendant can have any grievance at all. In every suit where mesne profits

have to be calculated some amount of honest guess work has to be done by

the court, though of course, such best judgment assessment has to be

reasonable. I do not think that the trial court has exceeded any limits of

reasonableness when fixing the rent at `75 per sq. ft.

6. No other issue is urged or pressed before this Court.

7. In view of the above, there is no merit in the appeal, which is

accordingly dismissed, leaving the parties to bear their own costs. The

respondent will be entitled to withdraw the amount deposited in this Court

by the appellant, in appropriate satisfaction of the impugned judgment and

decree. Appeal is disposed of accordingly.

VALMIKI J. MEHTA,J JANUARY 06, 2012 dk