Delhi High Court
Mahanagar Telephone Nigam Ltd vs Smt. Santosh Gupta on 24 January, 2012
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.502/2011
% 24th January, 2012
MAHANAGAR TELEPHONE NIGAM LTD ..... Appellant
Through: Mr. R.P.Sharma, Adv.
versus
SMT. SANTOSH GUPTA ..... Respondent
Through: Mr. Satya Prakash Gupta, Adv.
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 25.7.2011 decreeing the suit of the
respondent/plaintiff/landlord for possession and mesne profits with respect
to the suit premises being the ground floor of the property bearing no. S-
164, School Complex, Shakarpur, New Delhi.
2. The facts for the case are that the appellant/defendant became
a tenant of the suit premises vide a registered lease deed dated 17.8.2005
for a period of three years. Though the lease deed had a renewal clause, no
fresh lease deed was executed for the optional period of three years and
consequently the respondent/landlord terminated the tenancy by serving a
legal notice dated 21.7.2008. As the appellant/defendant failed to vacate
the premises and to pay the mesne profits, the subject suit came to be filed.
3. In the Trial Court, the notice terminating tenancy dated
21.7.2008 has been proved and exhibited as Ex.PW1/4 and the Registry
receipts and UPC Certificate have been proved and exhibited as Ex.PW1/5
to Ex.PW1/7. The AD card has been proved and exhibited as Ex.PW1/8.
In fact a reply was sent and the reply has been exhibited as Ex.PW1/9.
Once, there is no registered lease deed for a fixed period, the tenancy is a
monthly tenancy which can be terminated by means of a legal notice and
therefore the Trial Court has rightly held that the tenancy was validly
terminated. The Supreme Court in the case of Hardesh Ores vs. (P) Ltd.
vs. Hede & Company 2007 (5) SCC 614 has held that unless there is an
appropriate lease deed for the renewal period, it cannot be said that the
tenant continues to stay in the tenanted premises by virtue of an option of a
fixed term, and in fact, the tenancy is only a monthly tenancy.
Accordingly, the Trial Court has rightly held that the suit for possession
was bound to be decreed.
4. So far as the issue of mesne profits is concerned, the same are
payable with effect from 17.8.2008, the date from which the tenancy stood
terminated. The respondent/plaintiff filed before the Trial Court two lease
deeds of the same area, the first dated 20.9.2006 and second of the year
2009, as per which lease deeds, Ex.PW-3/1 and Ex.PW-4/1, the rate of rent
was `35/- per square feet per month and `105/- per square feet per month
respectively. The Trial Court has taken the rate for mesne profits to be
payable on a conservative rate of `35/- per square feet per month. The
relevant paras in this regard are paras 19 to 22 of the impugned judgment
and which read as under:-
"19. Onus of proof of both these issues lies upon the
plaintiff. IN support of her contentions, the plaintiff has
categorically stated that the defendant is also liable to pay
damages @ `70,000/- per month as the area where, the suit
property is situated, is a thickly populated area and is
surrounded by residential and commercial properties and
has a great market value and it could very easily fetch a rent
of `70,000/- per month in the year 2008. The plaintiff has
also filed on record two lease deeds regarding the rent of
similarly situated properties, to prove the damages. The
Lease deed dated 20.9.2006 has been proved on record by
PW-3 Sharad Srivastav as Ex.PW-3/1. The said lease deed
pertains to the ground floor of the property bearing no. FF-
9, Mangal Bazar Road, Laxmi Nagar, Delhi-92, which was
let out to Dena Bank for commercial purposes w.e.f.
20.9.2006 to 19.9.2016. Initially the rate of rent was fixed
`35/- per sq.ft. per month, for an initial period of five years
till 19.9.2011 and thereafter, the rate of rent is to be
enhanced by 25% of the existing rent.
20. PW-4, Ms. Vandana Handa, has proved another lease
deed in respect of the similarly situated property bearing
no.S-529, Ground Floor, School Block, Shakurpur, Delhi
and the said lease deed has been proved on record as
Ex.PW-4/1. Perusal of the said lease deed shows that the
said property has been let out in the year 2009 at a rent of
`1,05,000/- per month, for a premises of about 1000 sq. ft.
As per this lease deed, the rate of rent comes to about `105/-
per sq.ft. per month.
21. No evidence has come on record, in contradiction to
these lease deeds and the defendant has failed to examine
any witness to rebut these contentions and to make the
testimonies of PW-3 and PW-4 unreliable.
22. Keeping in view the locality, where the suit property
is situated, the nature of tenancy and keeping in view the
various factors for increase in rent and the lease deed
Ex.PW-3/1 and Ex.PW-4/1, I am of the considered opinion
that the claim of the plaintiff for damages @ `35/- per sq. ft.
per month is a valid claim and accordingly, both these issues
are decided in favour of the plaintiff and against the
defendant and it is, hereby, held that the plaintiff is also
entitled to claim damages/mesne profits @ `35/- per sq. ft.
per month, amounting to `74,445/- per month w.e.f.
18.8.2008 till its realization."
5. I completely agree with the aforesaid observations and
conclusions of the Trial Court. In fact, the Trial Court has been more than
conservative although the mesne profits could have been granted at a much
higher rate considering that `35/- per square feet per month was the
amount payable in terms of the lease deed dated 20.9.2006, and in the
present case, mesne profits had to be calculated with effect from 17.8.2008.
6. At this stage, counsel for the appellant states that the appellant
agrees to abide by today's judgment, and seeks one year time to vacate the
premises. In my opinion, a period of one year is excessive, and cannot be
granted. However, in the interest of justice, subject to the appellant paying
mesne profits at `90/- per square feet per month from 1.8.2011 till
31.12.2012, the operation of the today's judgment as also the impugned
judgment and decree dated 25.7.2011 will remain stayed till 31.12.2012.
The appellant however will file an undertaking in this Court within a period
of 3 weeks from today to vacate the premises on or before 31.12.2012 and
to pay the mesne profits at `90/- per square feet per month with effect from
1.8.2011 to 31.12.2012 every month till the premises are vacated. The
arrears be cleared in four weeks. The appellant will also be liable to pay the
electricity and water charges payable with respect to the premises till the
same are vacated. The time to vacate the premises is granted to the
appellant, on the appellant filing and complying with the terms of the
undertaking as aforestated.
7. The amount deposited in this Court along with accrued
interest, if any, be released to the respondent in appropriate satisfaction of
the impugned judgment and decree dated 25.7.2011. The appeal is
disposed of accordingly. Parties are left to bear their own costs. Decree
sheet be prepared. Trial Court record be sent back.
VALMIKI J. MEHTA, J
JANUARY 24, 2012
ak
