Delhi High Court
Pradeep Anand vs Deepak Arora on 28 April, 2016
Author: Rajiv Sahai Endlaw
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA 655/2015
PRADEEP ANAND ..... Appellant
Through: Mr. Vipin Nandwani, Adv.
Versus
DEEPAK ARORA ..... Respondent
Through: Mr. Rakesh Malhotra & Mr. Sahil
Ahuja, Advs.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
ORDER
% 28.04.2016
1. This first appeal under Section 96 of the Code of Civil Procedure,
1908 (CPC) impugns the judgment and decree dated 9th July, 2015 of the
Court of Additional District Judge (ADJ)-07, (West), Tis Hazari Courts,
Delhi in suit No.17/2014 to the extent denying the relief of recovery of (a)
arrears of rent; and (b) mesne profits / damages for use and occupation at
more than the agreed rate of last paid rent, to the appellant / plaintiff.
However when the appeal came up first before this Court on 6 th October,
2015, the counsel for the appellant confined the challenge in this appeal only
to the denial of mesne profits at a rate over and above the agreed rate of last
paid rent and gave up the challenge to the denial of the relief of recovery of
arrears of rent.
2. Notice of the appeal was issued and upon the respondent being
served, the appeal admitted for hearing and considering the limited nature of
the controversy therein, ordered to be listed today for final hearing.
3. The counsel for the respondent has appeared today and both counsels
have been heard and the Trial Court record requisitioned in this Court has
been perused.
4. The appellant / plaintiff sued for ejectment of the respondent /
defendant from a commercial shop let out to the respondent / defendant at a
rent of Rs.4,000/- per month, on the ground that the respondent / defendant
was irregular in payment of rent and was in arrears of rent since the year
2008 and his tenancy has been terminated but he has still failed to vacate the
premises and hence also claiming mesne profits after the date of termination
of tenancy.
5. The respondent / defendant contested the suit. A decree on
admissions, insofar as for the relief of ejectment, was passed and the
challenge by way of RFA No.510/2013 to this Court thereagainst also did
not meet with any success and the respondent / defendant vacated the
premises on 9th April, 2014 and the parties went to trial on the aspect of
arrears of rent and mesne profits.
6. The learned ADJ has vide the impugned judgment and decree held the
appellant /plaintiff to have failed to prove that there were any arrears of rent
and not found the appellant / plaintiff to be entitled to any mesne profits over
and above Rs.4,000/- per month being the last agreed rent and which had
been paid.
7. The only question for consideration is whether the appellant / plaintiff
is entitled to any mesne profits for the period 1st April, 2011 (the tenancy
having been terminated vide notice dated 11th March, 2011 with effect from
31st March, 2011) till the date of delivery of possession i.e. 9 th April, 2014.
The appellant / plaintiff in this regard has led evidence before the Trial
Court of a registered lease deed of an adjoining shop proved as Ex.PW1/15
and which was with effect from 1st November, 2011 let out at a rent of
Rs.12,000/- per month for a period of two years. The contention of the
counsel for the appellant / plaintiff is that the appellant / plaintiff is entitled
to mesne profits / damages for use and occupation at the rate of Rs.12,000/-
per month less Rs.4,000/- already paid for the aforesaid period.
8. Per contra, the counsel for the respondent / defendant has drawn
attention to the cross examination of the appellant / plaintiff where the
appellant / plaintiff literally deposed contrary to his case in the plaint insofar
as for arrears of rent and for which reason the learned ADJ concluded that
the appellant / plaintiff was not entitled to recover the arrears in the sum of
Rs.1,20,000/- claimed in the suit and which claim has now not been pressed
in this appeal also.
9. On a reading of the impugned judgment and decree, though is not so
clearly set out, it appears that the learned ADJ was swayed in denying mesne
profits at any rate higher than the last paid rent to the respondent / defendant
finding falsity in the claim of the appellant / plaintiff in the suit for arrears of
rent.
10. On a reading of the entire record, I entirely agree with the said view
of the learned ADJ. The claim for arrears of rent was clearly contrary to the
MOU admittedly executed by the appellant/plaintiff and the
respondent/defendant. The factum of the appellant / plaintiff having given
up the claim for recovery of Rs.1,20,000/- as arrears of rent in this appeal
also is indicative of the appellant / plaintiff having made a false claim in the
suit in that respect. The appellant / plaintiff, in my view, would be liable to
be non-suited insofar as for recovery of mesne profits, at a rate more than
last paid rent also on this ground alone.
11. The counsel for the appellant/plaintiff has contended that the claim in
the plaint was not false and has in this regard drawn attention to para 1 of
the legal notice, got served on the respondent / defendant preceding the suit
and the reply thereto and has contended that the appellant / plaintiff therein
itself had stated that the shop was let out at a rent of Rs.4,000/- per month
and therespondent /defendant had not controverted the same. It is argued
that the letting out was much prior to the date (17 th September, 2010) of the
Memo of Understanding (MOU) and for which period the respondent /
defendant was contending the rent to be Rs.2,000/- per month only.
12. I am unable to find any merit in the said argument. The appellant /
plaintiff in the legal notice has not given the date of letting out and in the
MOU which was signed between the parties, it has been categorically
recorded that all past disputes had been settled between the parties and the
appellant/plaintiff in his cross examination admitted receiving entire rent for
the period after the MOU.
13. However finding that even as per the MoU the respondent / defendant
had agreed that the rent would be increased by 10% every three years, it is
deemed appropriate that the respondent / defendant is not absolved of the
said liability. The respondent / defendant in fact in the cross examination of
the appellant / plaintiff himself suggested that the respondent / defendant
had paid rent at the rate of Rs.4,400/- per month to the appellant / plaintiff
for 2-3 months.
14. In this view of the matter, the judgment and decree under appeal is
modified to the extent that the appellant / plaintiff shall be entitled to mesne
profits / damages for use and occupation at the rate of Rs.4,000/- per month
with effect from 1st April, 2011 till 31st August, 2013 but with effect from 1st
September, 2013 till 9th April, 2014, the respondent / defendant shall be
liable for mesne profits / damages for use and occupation at the rate of
Rs.4,400/- per month and of which for 2-3 months admittedly the said
amount has already been paid.
15. Else, the application is dismissed.
No costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J
APRIL 28, 2016
'gsr'..
