Delhi High Court
Poonam Khanna And Ors. vs Shri Lav Kumar Kaul on 28 April, 2015
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 28.04.2015
+ CS(OS) 1775/2007
POONAM KHANNA AND ORS. .... Plaintiffs
Through: Mr. Sanjeev Anand with Ms. Sonam
Anand, Advs.
Versus
SHRI LAV KUMAR KAUL E+ .....
Defendant
Through: None.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J. (OPEN COURT)
1.
This is a suit seeking possession, declaration and recovery of mesne profits.
2. Vide order dated 26th February, 2007, the plaintiffs were permitted to sue as
indigent persons. Thereafter, vide order dated 23 rd March, 2009, the
defendant was proceeded ex parte. However, the defendant has filed his
Written Statement (WS). The plaintiffs have led ex parte evidence vide
affidavits dated 4th December, 2009 (PW-1/A) and 28th February, 2014 (PW-
1/X1)
3. The plaintiffs claim to be the owners of property bearing No. 21, Aurangzeb
Road, New Delhi (for short „suit property‟). It is stated that the suit property
vested with Pradeep Kumar Khanna HUF, which comprised the late Mr.
Pradeep Kumar Khanna and the plaintiffs, former is stated to have passed
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away on 12.01.2002, therefore the plaintiffs are the only surviving members
of the said HUF.
4. The plaint avers that the property was mutated in favour of late Mr. Pradeep
Kumar Khanna by a Memorandum dated 27.08.1977 issued by the Land and
Development Office, Ministry of Works & Housing, Government of India
(Mark 14). The plaintiffs have deposed to this effect in evidence.
5. The plaintiffs submit that in the WS, the defendant has admitted that the suit
property vests with Pradeep Kumar Khanna HUF. Paragraphs 1-9 of the
plaint recapitulate the history of the suit property, i.e., after the demise of
Mr. Pradeep Kumar Khanna, the suit property has devolved upon the other
members of the HUF, i.e., the plaintiffs. The defendant in his WS has
admitted to the contents of paragraphs 1-9 of the plaint.
6. It is the plaintiffs' case that the defendant is a trespasser and in unauthorized
occupation of the suit property. However, in the WS, the defendant has set
up a case that there was an agreement between him and late Mr. Pradeep
Kumar Khanna, whereby the defendant was to evict Sudan Embassy
(erstwhile tenant) from the suit property; however, since the late Mr.
Pradeep Kumar Khanna could not pay the defendant the agreed service
charges of Rs. 4 crores, therefore, the former put the defendant in possession
of the suit property and the defendant was to occupy the suit property till the
aforesaid service charges (plus interest) were paid to him.
7. The learned counsel for the plaintiffs submits that the circumstances as
claimed by the defendant, which led to him possessing the suit property are
contrary to law and opposed to the public policy of India. He submits that
the alleged agreement by which the defendant was put in possession of the
suit property would be contrary to the provisions of the Delhi Rent Control
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Act,1958 (for short „DRC Act‟); that under Section 14 thereof, a tenant can
be evicted only upon an order made by the Rent Controller or a Court and
that too only if the grounds contained therein are attracted such as non-
payment of rent, bona fide requirement etc.; that the defendant could not
have initiated and in fact, did not initiate proceedings under the DRC Act
since the same could have been done only at the instance of a
landlord/owner. The learned counsel further submits that the defendant
would have intended to use other illegal means to evict the erstwhile tenant
which is also hit by Section 23 of the Indian Contract Act, 1872. He also
submits that although the defendant claims possession of the suit property
since 12th May, 1992, however, he has not been able to prove the agreement
which he allegedly entered into with late Mr. Pradeep Kumar Khanna or that
was put in possession of the suit property by the latter.
8. The learned counsel further submits that defendant's stand in the WS cannot
be relied upon by the Court since he has taken contradictory stands before
different judicial proceedings. He submits that in paragraph 11 of the WS,
the defendant claims that he was introduced to one Mr. Avtar Singh by late
Mr. Pradeep Kumar Khanna, whereas in CS(OS) 425/1993 (Ex. PW-1/9),
the defendant claimed that one Mr. Avtar Singh, who was known to him,
introduced him to late Mr. Pradeep Kumar Khanna. He further submits that
under paragraph 11 (K) of the WS, the defendant claims that the service
charges of Rs. 4 crores carried along with it interest @ 2%/month for the
delay in making payment and under paragraph 11(M), the defendant claims
that the suit property was mortgaged with him by late Mr. Pradeep Kumar
Khanna as security for the payment of the said service charges, however,
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none of these averments have been made the defendant in the earlier suit i.e.
CS(OS) 425/1993 (Ex. PW-1/9).
9. The learned counsel draws the attention of this Court to an order in I.A. No.
8147/1998 in CS (OS) 425/1993 (Ex. PW-1/19), whereby the Court had
appointed a Receiver to manage the suit property. The defendant (defendant
No. 3 therein) was removed from the suit property and it was observed that
he was a stranger to the suit property, having no title or interest of any
nature and that he had to be removed from the suit property. This Court
notices that the said order had also questioned the legal sanctity of the
alleged agreement entered into by the defendant with late Mr. Pradeep
Kumar Khanna. It was further held that under no law, the defendant could be
permitted to retain possession of the suit property.
10.The learned counsel further submits that the defendant wanted to amend his
WS in CS (OS) 425/1993 to incorporate the claims of interest and mortgage
in the suit property which was rejected by the Court vide order dated 3 rd
September, 2007 (Ex. PW-1/19); that a Division Bench of this Court vide
judgment dated 20th February, 2009 (Ex. PW-1/20) upheld the aforesaid
order of appointment of a Receiver; that the SLP against the said order was
dismissed by the Supreme Court vide order dated 30 th August, 2013 (Ex.
PW-1/27). He also submits that PW-1 has not been cross examined; the
defendant was proceeded ex-parte; he has not led any evidence; the
statements made by PW-1 on affidavit have neither been challenged or
controverted therefore they ought to be accepted. Lastly, he submits that the
defendant has admitted the ownership of the plaintiffs apropos the suit
property and in any case, the plaintiffs have proved their ownership by
documentary evidence as aforesaid; that the onus to prove that the defendant
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was in lawful possession of the suit property was on him but he has failed to
discharge the burden of proof. As a consequence thereof, he submits that the
plaintiffs are entitled to a decree of possession and a declaration that the
defendant played fraud upon late Mr. Pradeep Kumar Khanna.
11.Apropos the issue of damages/mesne profits, the learned counsel submits
that the defendant has been in unauthorized occupation of the suit property
since 12th May, 1992. However, he submits that the plaintiffs are entitled to
recovery of mesne profits for a period of three years prior to the institution
of the suit, i.e., from 11.05.2001 to 10.05.2004 and from 11.05.2004 to
18.09.2007 when a Receiver was appointed to manage the suit property. He
relies upon two judgments1 of this Court to contend that determination of the
market value of a land always has an element of speculation; various
considerations go towards valuation of a land; smaller plots and very large
plots fetch a lesser value; mid segment plots fetch the highest price;
therefore, the Court would be guided by the rule of prudence.
12.Having heard the learned counsel for the plaintiffs and after perusal of the
records, this Court is of the view that the plaintiffs are entitled to a decree of
possession in their favour. Evidently, the suit property was mutated in
favour of late Mr. Pradeep Kumar Khanna. The case of the plaintiffs that the
suit property belongs to Pradeep Kumar Khanna HUF and that after the
death of Mr. Pradeep Kumar Khanna, it devolved upon the plaintiffs has
been admitted by the defendant in paragraphs 1-9 of the WS. Moreover, the
evidence led by the plaintiffs in support of their averments in the plaint have
gone unrebutted. Furthermore, neither has the defendant led any evidence in
Sushila Kumari v. Rama Stores 2005 (83) DRJ 197; and Ravinder Pal Singh v. Surender Pal Singh
ILR (2008) I Delhi 187
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support of his averments in the WS nor has he proved the documents relied
upon by him. In these circumstances, this Court sees no reason to not believe
the averments and evidence led on behalf of the plaintiffs.
13.Apropos the issue of declaration that the agreement allegedly entered into
between the defendant and late Mr. Pradeep Kumar Khanna is void, this
Court is of the view that the same is indeed, void. As observed in I.A. No.
8147/1998 in CS (OS) 425/1993 (Ex. PW-1/19), "Rent Control laws seem to
have been thrown to the winds", there could not have been an agreement
purporting to evict the erstwhile tenant. This Court would not dwell upon
whether the DRC Act would have been applicable for evicting the erstwhile
tenant. However, this Court is of the view that the aforesaid agreement
allegedly entered into between late Mr. Pradeep Kumar Khanna and the
defendant would have no legal sanctity.
14.With regard to the relief of damages/mesne profits, the plaintiffs have filed
sale deeds of eight adjoining properties supported by PW-1's affidavit which
is not rebutted, therefore, the Court would take into consideration the said
documents to determine the approximate value of the suit property so as to
determine its rental value. In Sushila Kumari (supra), the Court had taken
rental value to be ten per cent of the capital value of the property. The L &
DO rates for Aurangzeb Road w.e.f 01.04.1998 till 31.03.2000 was
Rs.13,860/- per square meter.
15.The Court is of the view that rental returns per year, ordinarily range
between 6 to 10% of the capital value of the property. In the circumstances,
the Court deems 7% per annum as a reasonable rate of rental depending
upon the location, nature of construction, amenities, permitted user, demand
and supply scenario, etc. of the property. Considering that the suit property
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is located in Lutyen's zone of the capital city and on one of its prestigious
boulevards, there would be an abiding demand for such respectable and tony
address by tenants in need of it. Diplomatic missions, international agencies
and large corporate entities would be some of the prospective users of such
properties. There would be no dearth of takers. As no new accommodation
would be added on the said street, the available rentable space would be
more or less static, thereby making the demand for the available space more
pressing. Hence, the annual rent would be revisable at 10% every year. In
the circumstances, for the period the plaintiffs were deprived from using the
suit property by the defendant till the Receiver took possession of it, the
plaintiffs would be entitled to recovery of mesne profits as under:
Period Amount Description
11.05.2001 to Rs. 35,83,918.80 Rs. 13,860 (L&DO
10.05.2002 Rate) x 3694 sq. m.
(Area of the suit
property) x 7% (Rental
Value as determined
hereinabove)
11.05.2002 to Rs.39,42,310.68 Increase in rent by 10%
10.05.2003 of the annual rental i.e.
Rs. 35,83,918.80 + the
annual rent.
11.05.2003 to Rs.43,36,541.75 10% of Rs.39,42,310.68
10.05.2004 + annual rent.
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11.05.2004 to Rs.47,70,195.90 10% of Rs.
10.05.2005 43,36,541.75 + annual
rent.
11.05.2005 to Rs.52,47,215.50 10 % of Rs. 47,70,195.9
10.05.2006 + annual rent
11.05.2006 to Rs.57,71,937.00 10 % of Rs.52,47,215.5
10.05.2007 + annual rent
11.05.2007 to Rs.22,57,468.40 At the last calculated
18.09.2007 rent plus 10% increase
for a period of 4 months
and 8 days
16.The suit is decreed in the aforesaid terms. Let the decree sheet be drawn up
accordingly.
17.At this stage, the learned counsel for the plaintiffs submits that a Receiver
has been appointed for the suit property. In the circumstances, the decree
would not be executable till the issue relating to appointment of the Receiver
is adjudicated.
18.The suit is disposed off in the above terms.
APRIL 28, 2015/vmk/acm NAJMI WAZIRI, J.
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