Shri Bhupinder Singh vs M/S Hill Elliott & Co. Ltd.
2013 Latest Caselaw 1923 Del

34
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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 2400/2008 & I.As. 13983/2008 AND 9908/2009

       SHRI BHUPINDER SINGH                ..... Plaintiff
                     Through: Mr. Sanjeev Bahl, Advocate with
                              Mr. Kishan Rawat Ms. Ruchika Singh
                              and Mr. Rajan Narain, Advocates.

                     versus

       M/S HILL ELLIOTT & CO. LTD.           ..... Defendant
                       Through: Mr. Yashank Adhyaru, Senior Advocate
                                with Mr. Jagdeep Anand, Advocate.

%                                  Date of Decision: 29th April, 2013


CORAM:
HON'BLE MR. JUSTICE MANMOHAN

                                   JUDGMENT

MANMOHAN, J (Oral):

1. Present suit has been filed for recovery of possession, rent and mesne profits as well as damages and permanent injunction.

2. The facts of the present case are that plaintiff is the owner and landlord of property bearing No. S-323, Panchshila Park, New Delhi-110017 admeasuring 500 sq. yds (hereinafter referred to as 'suit property').

3. On 16th October, 1982, a Lease Deed was executed by virtue of which the entire suit property comprising the ground floor, first floor, garage as well as lawn was leased out to the defendant.

4. Upon I.A. 9073/2010 being filed by the plaintiff under Order XII Rule 6 CPC, this Court decreed the suit for possession vide order dated 26th October,

2010.

5. A Division Bench of this Court vide judgment dated 22nd December, 2010 dismissed the defendant's Appeal being RFA(OS) 123/2010.

6. A Special Leave petition filed against the order of the Division Bench was also dismissed vide order dated 31st January, 2011.

7. Since the defendant still did not hand over vacant possession of the suit property, the plaintiff executed the decree and recovered its possession on 17th March, 2011.

8. This Court on 14th January, 2011 and 21st March, 2011 framed the following issues:-

Issues framed vide order dated 14th January, 2011 "(i)Whether the plaintiff is entitled for Rs.14,000/- towards arrears of rent @ Rs.7,000/- for the period w.e.f. 13.07.2008 uptill 12.09.2008? OPP

(ii)Whether the plaintiffs is entitled to mesne profit/damages from 13.09.2008 from the defendant? If so, for which period and at what rate? OPP

(iii) Whether the plaintiff is entitled for interest on mesne profit? If so, for which period and at what rate? OPP

(iv) Relief."

Issue framed vide order dated 21st March, 2011

"(i) Whether the plaintiff has over-valued the prayers made in the suit? If so, to what effect? OPD"

9. On 09th May, 2011, plaintiff tendered his affidavit in examination-in-chief. After being cross-examined, he was discharged. Plaintiff produced lease deeds of similar situated properties in the same area to prove the market rent of the suit property at the time of institution of the suit. The details of the lease deeds produced by the plaintiff are as under:-

S.No. Exhibit No. Date of Property No. Rented Rent (PM) Lease Deed Portion

1. PW1/1 01.11.2007 N-115, 2nd Floor 86,000/-

Panchsheel Park, New Delhi

2. PW1/2 26.10.2007 N-107, Entire 2,05,000/-

                                 Panschsheel               Property
                                 Park, New Delhi.
   3.    PW1/3       01.01.2008 S-378,                     2nd Floor     90,000/-
                                 Panchsheel Park,
                                 New Delhi
   4.    PW1/4       26.03.2008 N-1, Panchsheel      Rear       1,20,000/-
                                 Park, New Delhi     portion of
                                                     Ground
                                                     Floor
   5.      PW1/5         30.01.2008 S-378,           Ground     1,64,000/-
                                    Panchsheel park, Floor
                                    New Delhi.
   6.      PW1/6         Nov.' 2007 E-33, Panchsheel Ground     1,65,000/-
                                    Park, New Delhi Floor
   7.      PW1/7         27.03.2008 N-45, Panchsheel 1st Floor 1,75,000/-
                                    Park, New Delhi
   8.      PW1/8         10.01.2008 N-117,           2nd Floor 1,40,000/-
                                    Panchsheel Park,
                                    New Delhi
   9.      PW1/9         13.09.2007 S-54, Panchsheel Ground     1,70,000/-
                                    Park, New Delhi floor

10. A witness from the office of Sub-Registrar-V, Assurances was also examined as PW2 and was discharged on 22nd July, 2011. Thereafter, the plaintiff closed his evidence in the affirmative.

11. Though the defendant filed its evidence by way of affidavit, yet as the defendant's witness did not appear for cross-examination, defendant's evidence was closed and the matter was proceeded ex parte.

12. Upon an application being I.A. 5045/2013 filed by the defendant for recall of the ex parte order, this Court on 01st April, 2013 passed the following order:-

"I.A. 5045/2013 in CS(OS) 2400/2008 Learned counsel for the applicant/defendant states that he does not wish to lead evidence and is willing to finally argue the matter.

Keeping in view the aforesaid statement, the order dated 7th March, 2013 is recalled to the extent that the applicant/defendant was proceeded ex-parte.

The plaintiff and an authorised representative of defendant are directed to be personally present in Court on 12th April, 2013.

With the aforesaid observations, present application stands disposed of."

(emphasis supplied)

13. Mr. Yashank Adhyaru, learned senior counsel for defendant submits that the present suit has not been properly valued for the purpose of Court-fees and jurisdiction. He states that plaintiff has valued the suit for the purpose of prayer for injunction at Rs.12 lacs only to confer jurisdiction upon this Court. According to him, plaintiff has highly exaggerated and enhanced the suit value.

14. Mr. Adhyaru, learned senior counsel further contends that the defendant was not in possession of the suit property since 1986 and therefore, no direction for mesne profits, rent and/or damages can be passed against the defendant. Mr. Adhyaru states that a third party namely, Mr. A.K. Jhajharia had appeared through counsel in the present suit and had filed an affidavit in February, 2011 stating that he was in possession of the suit property and that he wanted to hand over the key to the plaintiff in this Court. In support of his submission, Mr. Adhyaru, learned senior counsel for defendant also relied upon the order dated 26th October, 2010 passed by the learned Single Judge in the present suit. The relevant portion of the order dated 26th October, 2010 relied upon by Mr. Adhyaru is reproduced hereinbelow:-

"16. From the above discussion, the following may be deduce as undisputed facts:

1) The plaintiff is the owner of the suit premises.

                    xxx            xxx             xxx





        5)      Execution of a registered lease deed in 1989 between the
               plaintiff and the AJ.

                       xxx          xxx           xxx

       9)      Rent receipt issued to AJ by the plaintiff in 1990."

15. Mr. Sanjeev Bahl, learned counsel for the plaintiff submits that in view of the lease deeds exhibited by the plaintiff, it would be apparent that mesne profits/damages payable by the defendant for use and occupation of the suit property would not be less than Rs. 4 lacs per month. He further submits that in view of the decree of possession having already been passed by this Court, defendant is estopped from contending that it was not in possession of the suit property after 1986.

16. Having heard learned counsel for the parties, the decision of the Court on each of the issues is as under:-

Whether the plaintiff has over-valued the prayers made in the suit? If so, to what effect? OPD"

17. This Court is of the opinion that the defendant's objection with respect to valuation of the suit is not tenable in view of the Suit Valuation Act, 1887 and the Court-Fees Act, 1870. In fact, a Division Bench of this Court in All India O.B.C. Employees Federation, Indian Railways, New Delhi vs. Vasudev Yadav, FAO(OS) 110/2012 after considering the judgments of the Supreme Court in Tara Devi vs. Sri Thakur Radha Krishna Maharaj Through Sebaits Chandeshwar Prasad and Meshwar Prasad and Another, (1987) 4 SCC 69, M/s Commercial Aviation and Travel Company and Others vs. Vimla Pannalal, (1988) 3 SCC 423, S. Rm. Ar. S. Sp. Sathappa Chettiar vs. S. Rm. Ar. Rm. Ramanathan

Chettiar, AIR 1958 SC 245, Hans Raj Kalra vs. Kishan Lal Kalra and Ors., ILR 1976 Delhi 745, Shakuntala Rani vs. Rajesh Bhatt (deceased) Through Lrs., 80 (1999) DLT 98 (DB) has held as under:-

"15. We may note that there are a catena of judgments of different High Courts on the same line and, thus, it is beyond pale of doubt that in a suit for injunction the valuation put forth by the plaintiff must prevail."

18. Consequently, this issue is decided against the defendant and it is held that suit has been properly valued for the purpose of court-fees and jurisdiction. ISSUE NOS. 2, 3, 4 and 5.

(ii) Whether the plaintiff is entitled for Rs.14,000/- towards arrears of rent @ Rs.7,000/- for the period w.e.f. 13.07.2008 uptill 12.09.2008? OPP

(iii) Whether the plaintiffs is entitled to mesne profit/damages from 13.09.2008 from the defendant? If so, for which period and at what rate? OPP

(iv) Whether the plaintiff is entitled for interest on mesne profit? If so, for which period and at what rate? OPP

(v) Relief.

19. The aforesaid issues can be conveniently clubbed and decided together as they pertain to rent/mesne profits/damages and interest payable by the defendant.

20. The defendant's defence that not it but AJ was in possession of the suit property since 1986, is contrary to facts and untenable in law. The learned Single Judge while decreeing the suit for possession on 26th October, 2010 had rejected this defence of the defendant. The relevant portion of the order dated 26th October, 2010 is reproduced hereinbelow:-

"17. During the course of proceedings, the Court had required someone on behalf of the defendant Hill Elliott to depose on its behalf. Accordingly, Shri. K.G. JhAJaria, presented himself; he stated on oath about his lack of awareness regarding Hill Elliott's tenancy. He also said that AJ was his brother, and that he was in

possession. The Court had issued summons to AJ to appear and depose in the suit, for a fuller adjudication, in view of the plea by Hill Elliot that it was not a tenant, but that he was such tenant. After the Court made the order, AJ moved an application for its recall; the Court, after hearing his counsel, rejected it. Thereafter, AJ did not appear before the Court, in answer to the summons.

18. The entire previous discussion, and the extracts from pleadings of Hill Elliot, would show that it unambiguously and categorically held out that it continued in the premises, and that no one else is in the premises, and that its tenancy is a continuing one. Its counsel's argument, in the present application is two-fold. The first is that the admission was made erroneously, and that its director, Sh. Khemka, was unwell when he affirmed the affidavit, opposing the withdrawal of the plaintiff's previous suit. As far as the admission being erroneous and requiring an opportunity to explain is concerned, Hill Elliot, on the merits, submitted that some documents, particularly the receipt issued for the suit premises, establish that AJ was treated as tenant, even in 1990. The Court, according to counsel, cannot ignore such material, and deprive the opportunity of a full trial in such case. The explanation preferred, i.e. illness of Sh. Khemka, even if taken at face value, is of recent vintage. The affidavit affirmed by him is in respect of the reply to the application for withdrawal. However, Hill Elliot's written statement in the plaintiff's previous suit was filed in 1995; it was verified by Sh. A.K. Jhajaria. The argument that such director is Ahmedabad based, is irrelevant, since there is no denial that he was empowered to depose on behalf of Hill Elliott, and was its director at that time. Besides, in the verification clause in that written statement (of 28th April, 1995) he said that the contents of the written statement were true to his knowledge. Neither he, nor Sh. Khemka, deposed at any time, in the Civil Court, before which that suit was filed, that they had made the averments erroneously, or what in fact was the erroneous statement. In these circumstances, the argument that the admission was erroneous, needing explanation has to be rejected. The Court is also conscious that AJ too had supported the company's plea; the latter in fact has stated that he is a brother of Hill Elliot's directors - a fact corroborated by Sh. K.G. Jhaharia, who deposed in Court. In these circumstances, and in the absence of any other plea about the company's shareholding, the Court can not only draw an adverse inference against Hill Elliot, but even proceed to hold that it and AJ

were, and are acting in concert, and bent upon continuing in the premises. As a postscript, it may be noticed that if indeed, Hill Elliott is not in possession, it should not even have had any objection to the Court making appropriate orders in this case. Both Hill Elliott, and AJ have been taking advantage of the legal system, and making averments, at their convenience, with the view of depriving the plaintiff the right to secure his premises. Till date, there is no material placed by Hill Elliot (or anyone) before any Court, proving that the tenancy in respect of the premises was extended any time after 1992. The pleas and explanations of Hill Elliott about the admissions being erroneous are not only hollow, but lacking in bona fides. They are accordingly rejected."

(emphasis supplied)

21. Moreover, as the defendant has led no evidence in the present case, this Court is of the view that the arguments of the learned senior counsel for defendant cannot be accepted. Further, if the defendant's contention was correct, then, no decree of possession could have been passed against the defendant in the first instance itself! As in the present case, the decree of possession has been upheld right till the Supreme Court, this Court is of the opinion that the arguments of learned senior counsel for defendant cannot be accepted.

22. Further, on a perusal of the evidence as well as documents placed on record, this Court is of the opinion that plaintiff has, in fact, proved the facts stated in the plaint and has also exhibited the relevant documents in support of his case. Since defendant has led no evidence, the plaintiff's evidence is accepted as true and correct.

23. However, keeping in view the fact that the suit property was constructed prior to the year 1970, this Court decrees the suit for grant of arrears of rent w.e.f. 13th July, 2008 to 12th September, 2008 at the rate of Rs.7,000/- per month and mesne profits/damages w.e.f. 13th July, 2008 to 12th November, 2008 for unauthorized use and occupation @ Rs.2,00,000/- per month and also mesne

profits/damages for unauthorized use and occupation from the date of institution of the suit (i.e. 15th November, 2008) till the date of handing over of possession (i.e. 17th March, 2011) at the rate of Rs.2,00,000/- per month.

24. Keeping in view the rate of interest prevalent at the relevant time, defendant is directed to pay simple interest @ 5% per annum from the date of institution of the suit till realization of the decretal amount.

25. With the aforesaid observations, present suit and pending applications stand decreed. Registry is directed to prepare a decree sheet accordingly.

MANMOHAN, J APRIL 29, 2013 js