Delhi Tourism & Transportation ... vs Chander Shekhar Bhandari
2013 Latest Caselaw 5728 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 11th December, 2013.

+                               RFA 457/2013

       DELHI TOURISM & TRANSPORTATION
       DEVELOPMENT CORPORATION LTD.              ..... Appellant
                   Through: Mr. Arvind Nayar and Mr. Sanad Jha,
                            Advocates.

                                Versus

    CHANDER SHEKHAR BHANDARI                  ..... Respondent
                  Through: Mr. J.C. Mahindroo, Advocate.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree (dated 2 nd April, 2013

of the District & Sessions Judge (North) in CS No.556/2010 filed by the

respondent/plaintiff) of ejectment of the appellant/defendant from the

ground floor of property No.C-76, Ramgarh, Jahangirpuri (stated to be

wrongly written in para 19 of the judgment as Mangol Puri), Delhi and for

recovery from the appellant/defendant of mesne profits at the rate of

Rs.8,000/- per month compounded by 10% per annum with effect from 3 rd

August, 2010 till the delivery of possession of the property.

2. The appellant/defendant delivered the possession of the property, as

per the counsel for the appellant/defendant on 1 st July, 2013. The counsel

for the respondent/plaintiff states that the possession was recovered in

execution of the decree but is not aware of the date.

3. This appeal was thus filed only impugning the decree of mesne profits

and notice thereof was issued and the Trial Court record requisitioned.

4. Considering the nature of the controversy, it was not deemed

appropriate to admit the appeal and keep the same pending in the category

of 'Regular Matters' and with consent, the counsels have been finally heard

in the appeal.

5. The respondent/plaintiff instituted the suit claiming that he is the

owner of the property and the appellant/defendant, an undertaking of Delhi

Government, was in unauthorized occupation thereof. Reliefs of recovery

of possession of the property alongwith mesne profits from the date of

notice issued preceding suit, were claimed

6. The appellant/defendant contested the suit pleading to have been

inducted into the property by one Mr. Jaswant Singh in the year 2005 and

the respondent/plaintiff having given an affidavit of no objection for

running/operation of a liquor vend from the said property and of agreement

with the said Mr. Jaswant Singh to pay 12.5% of the gross profits from the

liquor vend to be operated from the said property by way of use and

occupation charges of the said property.

7. Though, the factual controversy, from the judgment, is not clear but

the counsel for the respondent/plaintiff on enquiry states that the case of the

respondent/plaintiff is, of Mr. Jaswant Singh having unauthorizedly

occupied the said property of the respondent/plaintiff and having illegally

inducted the appellant/defendant into possession thereof. On pointed

enquiry, the counsel for the respondent/plaintiff is not able to dispute that

the appellant/defendant was in possession of and operating the liquor vend

from the said property, since the year 2005. The only explanation given for

not taking any action against the appellant/defendant or against Mr. Jaswant

Singh from the date when Mr. Jaswant Singh was in unauthorized

occupation or from the year 2005, when the appellant was in possession, is

that the respondent/plaintiff was previously a resident of Punjab and took

action of first issuing the notice and then instituting the suit from which this

appeal arises, both in or about August, 2010 only, upon shifting to Delhi.

8. It is the case of the appellant/defendant that the appellant/defendant

has paid the use and occupation charges to Mr. Jaswant Singh till the month

of November, 2012. The contention of the counsel for the

appellant/defendant thus is that the appellant/defendant is liable to pay the

use and occupation charges only for the month of December, 2012 till 30th

June, 2013 at the rate of 12.5% of the gross profits, as per the agreement

under which the appellant/defendant had come into possession of the

premises.

9. The counsel for the respondent/plaintiff has contended that the

appellant/defendant after the institution of the suit should not have paid any

amount to the said Mr. Jaswant Singh.

10. It has however been enquired from the counsel for the

respondent/plaintiff as to why the respondent/plaintiff, in spite of the

appellant/defendant in its written statement having taken a defence of the

appellant/defendant being in occupation of the premises through Mr.

Jaswant Singh and paying use and occupation charges thereof to Mr.

Jaswant Singh, did not seek to restrain the appellant/defendant from making

any such payments to the said Mr. Jaswant Singh.

11. The counsel for the respondent/plaintiff informs that though an

application under Order 39 Rule 10 of the Civil Procedure Code (CPC),

1908 was filed in the suit but remained pending and no orders were passed

thereon.

12. I am of the view that in the light of the conduct of the

respondent/plaintiff of having not interfering with the possession of the

appellant/defendant since the year 2005 and till the year 2010 and having

allowed the appellant/defendant to pay use and occupation charges to Mr.

Jaswant Singh, the respondent/plaintiff merely by filing a suit for possession

and even then not seeking any restraint order against Mr. Jaswant Singh,

could not have interfered with the payments which the appellant/defendant

had been making for the previous five years to the said Mr. Jaswant Singh.

The appellant/defendant cannot be ordered to pay twice over. Though the

learned District Judge has not given any finding with respect to the affidavit

by way of no objection aforesaid, and the counsel for the

respondent/plaintiff states that the respondent/plaintiff had denied his

signatures thereon, but the respondent/plaintiff from his conduct aforesaid

of, for a long period of time allowed the appellant/defendant to pay use and

occupation charges to Mr. Jaswant Singh and of being even today not able

to say as to when Mr. Jaswant Singh had occupied the property and to what

use the property was being put prior to the year 2005, has deprived himself

from claiming/recovering any use and occupation charges for the property

till the determination of his rights with respect thereto.

13. There is another aspect of the matter. There is absolutely no basis

whatsoever for the formula applied by the learned District Judge for

payment of mesne profits. The counsel for the respondent/plaintiff also

admits that except bare statement of the respondent/plaintiff and giving

suggestion to the witnesses of the appellant/defendant that the letting value

of the property was Rs.25,000/- per month, no evidence was led of the rent

being fetched by adjoining or similarly situated properties. The property

situated in a Local Shopping Centre and there would be a large number of

other similar shops in the said shopping centre and from the

respondent/plaintiff having not led any evidence, adverse inference has to be

drawn against the respondent/plaintiff.

14. The Division Bench of this Court in National Radio and Electronics

Co. Ltd. Vs. Motion Pictures Association 122 (2005) DLT 629 has held that

no judicial notice of the rate of increase in rent can be taken and the same

has to be proved by leading cogent evidence.

15. For all of the aforesaid reasons, I am not inclined to uphold the decree

insofar as for recovery of mesne profits against the appellant/defendant.

However, since the appellant/defendant has admittedly not paid any use and

occupation charges from the month of December, 2012 till the date of

vacation of the premises to the said Mr. Jaswant Singh also, the

appellant/defendant to within three months of today, pay use and occupation

charges for the property calculated at the rate of 12.5% of the gross profits

from the said property for the period from December, 2012 till the date of

vacation of the premises to the respondent/plaintiff.

16. The decree is modified to the aforesaid extent.

17. The appeal is disposed of. No costs. Decree sheet be drawn up.

18. The counsel for the respondent/plaintiff states that it be clarified that

the respondent/plaintiff shall be entitled to recover the amounts which Mr.

Jaswant Singh has realised from the appellant/defendant from the said Mr.

Jaswant Singh.

19. Mr. Jaswant Singh being not a party to this suit, the

respondent/plaintiff, if entitled in law, would be able to do so.

RAJIV SAHAI ENDLAW, J.

DECEMBER 11, 2013 bs