Delhi District Court
Chitra Garg vs Surendra Kumar Bansal on 9 October, 2023
IN THE COURT OF SH. NAVJEET BUDHIRAJA,
ADDITIONAL SESSIONS JUDGE- 02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
CS DJ No. 211236/2016
In the matter of:
Smt. Chitra Garg
Wife of Shri Dinesh Kumar Garg
G-51, East of Kailash
New Delhi-110065
........ Plaintiff
Vs
1. Shri Surendra Kumar Bansal
M-148 Greater Kailash II
New Delhi 110048
(Defendant no.1 died on 13.04.2002. His legal representatives
were brought on record on 19.09.2006. In view of Order
dated 07.05.2009 in IA 7942/1998 name of the defendant no.1
and his LRs were struck off from the array of parties)
2. Smt. Seema Bansal
Wife of Late Shri Surendra Kumar Bansal
M-148 Greater Kailash II
New Delhi 110048
(Defendant no.2 Seema died on 26.08.2011. Her legal
representatives mentioned below were brought on record by
Order dated 18.04.2012)
2.1 Shri Sanjay Bansal
I. R-96, Greater Kailash I
New Delhi 110048
II. M-148 Greater Kailash II
New Delhi 110048
2.2 Smt. Neeti Mittal
Wife of Sh. Alkesh Mittal
I. R-96 Greater Kailash I
New Delhi-110048
II. A-80 Defence Colony
Meerut Up
2.3 Smt. Preeti Goel
Wife of Shri Manoj Goel
I. R-96 Greater Kailash I
New Delhi-110048
II. D-261 Sector 47
1 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016
Digitally signed
by NAVJEET
NAVJEET BUDHIRAJA
BUDHIRAJA Date: 2023.10.09
15:43:10 +0530
Noida 201301
III. 18 Central Lane (Basement)
Bengali Market
New Delhi-110001
2.4 Smt. Radha Agarwal
Wife of Sh. Sanjay Agarwal
I. R-96 Greater Kailash I
New Delhi-110048
II. R/o A-16, Oakland Estate
DLF Phase II, Gurgaon
Haryana 122001
.........Defendants
Date of Institution : 10.11.1993
Date of conclusion of
final arguments : 24.08.2023
Date of decision : 09.10.2023
Result : Decreed
(This judgment is being pronounced by the undersigned
after his transfer in terms of order No.35/G-
I/Gaz.IA/DHC/2023 as the case was listed for pronouncement
of the judgment before the transfer order.)
JUDGMENT
The present suit was instituted in the year 1993 seeking possession, recovery of Rs.11,66,500/- towards damages/mesne profits for the period 19.02.1992 to 08.11.1993, the pendente lite and future damages/mesne profits at the rate of Rs.50,000/- per month or at such higher rate at which the plaintiff may be found entitled, the pendente lite and future interest at the rate of 19% per annum on the arrears of damages and pendente lite and future damages/mesne profits and injuncting the defendants from putting the property i.e. plot no. R-96, Greater Kailash-I, New Delhi (henceforth, would be referred as 'Suit Property') to any non-confirming use, along with cost of the suit against the defendants. In the course of the 2 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.10.09 15:43:25 +0530 proceedings, defendant no.1 was dropped and defendant no.2 expired on 26 August, 2011 following which her four children being the legal representatives namely Sh. Sanjay Bansal, Smt. Neeti Mittal, Smt. Preeti Goel and Smt. Radha Agarwal pursued the suit. For the sake of convenience, I shall refer defendant no.2 by this identification only instead of referring to her LRs, save in the final decision.
2. The aforesaid prayer of seeking possession of and injunction in respect of the suit property became redundant in view of defendant no.2 having given up her control over the suit property and handing over its possession to the plaintiff in the proceeding before the High Court of Delhi on 24.02.2020, which is recorded in the order dated 13.03.2020 of this Court. Needless to say, the suit proceeded further in regard to the remaining prayers.
3. Before I set to adjudicate on myriad issues flagged on either side, let me spell out laconically the landscape of the pleadings.
4. The case, as initially set up by the plaintiff, was that by means of sale deed dated 29.07.1964, registered with Sub-
Registrar II, New Delhi on 03.08.1964, suit property was sold by DLF to Lieutenant Colonel Harjeet Singh (hereinafter, would be referred as 'Colonel'), who became the owner thereof. The suit property is measuring 266 sq. mts. (318 sq. yards), located in R- Block, facing East and abutting 60 ft. wide road. Colonel constructed a two and quarter story residential house on the suit 3 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:43:35 +0530 property which was let out to 'Mr. Pires's Pvt. School' through its proprietor Mr. Pires at a monthly rent of Rs.1,800/- w.e.f 01.10.1971 for three years. On expiry of the three years, the lease was extended and a deed dated 27.09.1974 was executed. The extended lease period expired in September, 1977 and as the Colonel was about to retire, he implored Mr. Pires to vacate the suit property, but in vain.
5. Colonel then filed an eviction petition on the ground of bona fide requirement before the Rent Controller, Delhi, the petition no. being 965 of 1978, in which Mr. Pires was summoned, who filed an affidavit seeking leave, which was granted to him. In the meanwhile, Mr. Pires died on 19.11.1980 leaving behind his son Mr. Alan St John Pires and daughter Ms. Joyce Pires. The eviction petition remained pending, while the Colonel also died on 15.01.1982, who was then survived by his widow Smt. Jitender Kaur, his son Sh. Manjit Inder Singh and his daughter Ms. Maninderjit Kaur. By the deed dated 25.05.1983, daughter Ms. Maninderjit Kaur relinquished her right, title and interest in the suit property in favor of her mother and brother. The eviction petition was continued by them.
6. By order dated 08.12.1985, the then Additional Rent Controller Sh. A.K. Garg dismissed the eviction petition holding that the purpose of letting being residential cum commercial, the ground of bona fide requirement was not available. Civil Revision No. 214 of 1986 was filed there against, which came to be dismissed in default.
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7. The widow and the son (who were now the owners of one-half share each), filed an eviction petition on the ground of sub-letting. The Colonel's widow also filed a petition for eviction under Section 14D. (Both these petitions were later decided against her/successor)
8. The plaint further asserts that in the meanwhile Mr. Pires abandoned the suit property, the precise date of which is not clear, but in any case it was after 1984. Smt. Seema Bansal, the original defendant no.2, was an employee of Pires's Pvt. School, who later self-styled herself as Principal and defendant no.1 Sh. Surinder K. Bansal was her husband.
9. It is further alleged that before the owners could take over the suit property, the defendant no.2 found it convenient to unauthorizedly enter in it, which amounted to trespass. Defendant no.2, ostensibly, started alleging herself to be the partner of Mr. Pires's Pvt. School and, therefore, a tenant in the suit property. To avoid the controversy, the previous owners impleaded defendant no.2 Smt. Seema Bansal as the respondent to the eviction petitions with the following description:
"22.To avoid controversy, the previous owners impleaded Seema Bansal as a respondent to the eviction petitions with the following description:-
2 Mrs. Seema Bansal (S. Bansal) alleged partner of Pires's Pvt. School, R-96, Greater Kailash-I, New Delhi (The Petitioners, however, do not admit S.Bansal as Partner of Pire's Pvt. School, as alleged by her)."
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10. Defendant no.2, had in the meantime acquired a residential house at M-148, Greater Kailash-II, and shifted there along with her children.
11. The widow of Colonel sold her interest in the suit property to the plaintiff who purchased the same by means of sale deed dated 19.02.1992 and the son of the Colonel also sold his one-half share to the plaintiff. Thus, w.e.f 19.02.1992, the plaintiff became the absolute owner of the suit property. When the plaintiff apprised the defendants having become the owner of the suit property, it was replied that when the Colonel and his wife could not evict them, the plaintiff should have little hope, but there was an offer to increase the rent from Rs.1,800/- to Rs.3,498/- per month.
12. The plaintiff, after some investigation, found out that the claim of defendant no.2 being a partner in the school was false. The plaintiff attempted to reason out with her to get back the possession of the suit property but to no avail. Accordingly, the plaintiff was left with no option, but to bring the present suit.
13. The plaint is contested on behalf of defendant no.2 with vehemence. The preliminary objections flagged are that the plaint does not disclose any cause of action, is vague and misconceived. The present suit is barred by time and is also bad for mis-joinder of parties. The suit of the plaintiff is based on the sale deed dated 19.02.1992, alleged to have been executed by Smt. Jitender Kaur, but necessary particulars of its registration in the office of Sub-Registrar have not been disclosed. The plaintiff
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2023.10.09 15:44:02 +0530 has no locus standi to file the present suit as Smt. Jitender Kaur from whom the plaintiff has alleged to have purchased the suit property was not the owner on 19.02.1992 as defendant no.2 Smt. Seema Bansal became the owner by adverse possession in October 1989, which in fact started from October 1977, when there was a positive act of ouster on her part and when she got the exclusive possession of the suit property and when she asserted hostile title and from that time onwards her possession had been open, continuous, hostile, peaceful and uninterrupted.
14. It is further canvassed that the fact of adverse possession of defendant no.2 is also evident from the pleadings of the plaintiff where it is alleged that the suit property was abandoned by Mr. Pires. The plaintiff has intentionally omitted to give the date of abandonment and the time of actual, physical and hostile possession of defendant no.2 started w.e.f October 1977. It is further alleged that the title of defendant no.2 was even perfected against LRs of deceased Colonel and, thus, plaintiff cannot be said to have acquired any right, title or interest with respect to the suit property. The school was being run by defendant no.2 in the suit property in her own right, without any interference from anybody. It is also alleged that neither the site plan of the suit property nor its boundaries have been given in the plaint so as to identify it.
15. The further combat is to the effect that in the petition under section 14 (1) (b) of Delhi Rent Control Act [DRC Act] the plaintiff has stated against the ground for eviction that without any consent in writing of the plaintiff and her predecessors, the erstwhile tenant, sub-let, assigned and parted
7 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:44:11 +0530 with possession to respondent no.2 (Defendant no.2 herein) subsequent to 1974 and had accordingly prayed before the Rent Controller that the eviction order with costs be passed in favor of the petitioner and against the respondent. The said petition was dismissed on 17.05.1996, a date well after the filing of plaint, written statement, replication and framing of issues. This had necessitated filing of amended written statement under Order 6 Rule 17 of the Code of Civil Procedure, 1908 [CPC]. The present suit is barred in view of Section 50 of DRC Act, read with other provisions read with averments in the plaint, amended written statement. The judgment dated 17.05.1996 even otherwise operates as res-judicata and the present suit cannot be tried.
16. On merits, defendants have substantially dis- affirmed the contents of the plaint. It is reiterated that defendant no.2 is holding the suit property in adverse possession without any interruption since October 1977 onwards. Mr. Maurice Wilfred Pires died on 19.11.1980 and the Colonel died on 15.01.1982 and the said Smt. Jitender Kaur, Sh. Manjit Inder Singh and Ms. Maninderjit Kaur were the legal heirs of the Colonel. It is though denied that any right was relinquished vide deed dated 25.05.1983.
17. It is further alleged that the widow and Smt. Jitender Kaur were not the owners of the suit property and the eviction petition was filed on false averments, which eventually came to be dismissed on 17.05.1996. The eviction petition, prior to this, under Section 14D of DRC Act also came to be dismissed on 11.02.1994. On this premise, the reliefs sought on behalf of 8 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.10.09 15:44:20 +0530 plaintiff were negated.
18. The replication was filed on behalf of the plaintiff against the initial written statement, but no replication was filed against the amended written statement.
19. Vide order dated 24.04.1995, admission-denial of the documents was conducted. Initially, on behalf of the plaintiff, only one document came to be admitted which was marked as Ex.D1. Vide order dated 11.03.1997, some of the documents filed on behalf of the plaintiff were admitted which were marked as Ex.P1 to Ex.P36. On behalf of the plaintiff, further documents of the defendant's side were admitted which were also marked as Ex.D2 to Ex.D4.
20. Post consummation of the pleadings, on 31.07.1995, the following issues were initially framed:
Issue no.1 : Whether the suit property has been properly valued for purpose of Court Fees? Issue no.2 : Whether the suit is barred by time? Issue no.3 : Whether the plaintiff is owner of the property? If not, to what effect? Issue no.4 : Whether the defendant no.2 has become owner by adverse possession? Issue no.5 : Whether plaintiff is entitled to claim mesne profits or damages for use and occupation of the premises by the defendant? If so, at what rate and for what period? Issue no.6 : Whether the plaintiff is entitled to recover
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Issue no.7 : Relief.
21. However, vide order dated 13.03.2020, the issues were recast, as the relief towards the possession of the suit property stood satisfied. Ld. Predecessor of this Court canceled the previous issues and the fresh issues were framed as under:
Issue no.1: Whether the plaintiff is entitled for the relief of mesne profit/damages as claimed? OPP Issue no.2: Whether the plaintiff is also entitled to any interest? OPP
22. Thereafter, considering the antiquity of the case, by virtue of Order 18 Rule 4 read with Order 26 Rule 4A CPC, Ms. Stuti Gupta, Advocate was appointed as Local Commissioner to record the evidence. However, the recording of evidence could not take place before the Local Commissioner and it is on 27.02.2021 that PW-1 Sh. Sanjay Goel came to be examined before the Court who tendered his evidence by way of affidavit Ex.PW-1/A and relied upon the following documents:
i. General Power of Attorney as Ex.PW-1/1. ii. The photographs as Ex.PW-1/2 & Ex.PW-1/3 (colly). iii. The Google Satellite Image is Marked as PW-1/4 (objected to on the ground that it is not accompanied by the Certificate of 65B of the Indian Evidence Act). iv. Four visiting cards marked as PW-1/5 (colly) (objected to on the ground that the witness is not the author/witness to the same nor same were part of pleading/record). v. A letter dated 08.09.2016 marked as PW-1/6 (objected to 10 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.10.09 15:44:38 +0530 on the ground that the witness is not the author/witness to the same nor same were part of pleading/record). vi. Valuation report dated 28.03.1996 of Sh. T.S. Ratnam is exhibited as Ex.PW-1/7. (Objected to on the ground that the witness is not the author/witness to the same. Now the counsel for the plaintiff has pointed out that the said valuation report was filed by the defendant himself). vii. 54 copies of lease deeds are marked as Mark 1/8 to Mark 1/61.
viii. Six Government Notifications as Ex.PW-1/62 to Ex.PW- 1/67.
23. Thereafter, PW-2 Sh. Upender, Record Attendant from the office of Sub-Registrar V-A, Hauz Khas, Mehrauli, Delhi was also examined who produced the certified copies of the lease deed which were marked as under:
(1) Lease deed dated 23.07.2014 as Ex.PW2/1 (2) Lease deed dated 22.03.2015 as Ex.PW2/2 (3) Lease deed dated 25.03.2015 as Ex.PW2/3 (4) Lease deed dated 06.05.2015 as Ex.PW2/4 (5) Lease deed dated 10.05.2015 as Ex.PW2/5 (6) Lease deed dated 06.07.2015 as Ex.PW2/6 (7) Lease deed dated 01.08.2015 as Ex.PW2/7 (8) Lease deed dated 01.12.2015 as Ex.PW2/8 (9) Lease deed dated 04.03.2016 as Ex.PW2/9 (10) Lease deed dated 13.04.2016 as Ex.PW2/10 (11) Lease deed dated 20.03.2017 as Ex.PW2/11 (12) Lease deed dated 24.04.2017 as Ex.PW2/12 (13) Lease deed dated 08.06.2017 as Ex.PW2/13 11 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:44:47 +0530 (14) Lease deed dated 30.08.2017 as Ex.PW2/14 (15) Lease deed dated 30.10.2017 as Ex.PW2/15 (16) Lease deed dated 12.11.2017 as Ex.PW2/16 (17) Lease deed dated 27.11.2017 as Ex.PW2/17 (18) Lease deed dated 12.12.2017 as Ex.PW2/18 (19) Lease deed dated 04.04.2018 as Ex.PW2/19 (20) Lease deed dated 24.01.2018 as Ex.PW2/20 (21) Lease deed dated 24.01.2018 as Ex.PW2/21 (22) Lease deed dated 18.04.2018 as Ex.PW2/22 (23) Lease deed dated 14.05.2018 as Ex.PW2/23 (24) Lease deed dated 08.05.2018 as Ex.PW2/24 (25) Lease deed dated 23.05.2018 as Ex.PW2/25 (26) Lease deed dated 29.05.2018 as Ex.PW2/26 (27) Lease deed dated 31.05.2018 as Ex.PW2/27 (28) Lease deed dated 06.08.2018 as Ex.PW2/28 (29) Lease deed dated 09.07.2018 as Ex.PW2/29 (30) Lease deed dated 12.07.2018 as Ex.PW2/30 (31) Lease deed dated 30.07.2018 as Ex.PW2/31 (32) Lease deed dated 18.09.2018 as Ex.PW2/32 (33) Lease deed dated 16.01.2019 as Ex.PW2/33 (34) Lease deed dated 23.01.2019 as Ex.PW2/34 (35) Lease deed dated 01.02.2019 as Ex.PW2/35 (36) Lease deed dated 01.02.2019 as Ex.PW2/36 (37) Lease deed dated 04.02.2019 as Ex.PW2/37 (38) Lease deed dated 06.02.2019 as Ex.PW2/38 (39) Lease deed dated 07.02.2019 as Ex.PW2/39 (40) Lease deed dated 15.03.2019 as Ex.PW2/40 (41) Lease deed dated 29.03.2019 as Ex.PW2/41 (42) Lease deed dated 24.04.2019 as Ex.PW2/42 12 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:44:56 +0530 (43) Lease deed dated 17.05.2019 as Ex.PW2/43 (44) Lease deed dated 31.05.2019 as Ex.PW2/44 (45) Lease deed dated 23.08.2019 as Ex.PW2/45 (46) Lease deed dated 18.09.2019 as Ex.PW2/46 (47) Lease deed dated 14.10.2019 as Ex.PW2/47 (48) Lease deed dated 21.11.2019 as Ex.PW2/48 (49) Lease deed dated 28.11.2019 as Ex.PW2/49 (50) Lease deed dated 31.01.2020 as Ex.PW2/50 (51) Lease deed dated 05.02.2020 as Ex.PW2/51 (52) Lease deed dated 20.02.2020 as Ex.PW2/52 (53) Lease deed dated 17.08.2020 as Ex.PW2/53 (54) Lease deed dated 18.08.2020 as Ex.PW2/54
24. For recording of further evidence, a request was made for appointment of Local Commissioner on 20.03.2021, which was accepted by Ld. Predecessor of this Court and Sh. J.R. Aryan, Retired Additional District Judge was appointed to record the evidence. PW1 was cross examined extensively. Plaintiff's evidence thereafter stood closed.
25. DW1 Sh. Sanjay Bansal was then examined who tendered his evidence vide affidavit Ex.DW1/A and relied upon the documents which are marked as under:
A. Copies of the few of the property tax receipts concerning the property as Mark A1 (colly) (in the affidavit, these are marked as Ex.DW1/1 (colly));
B. Copies of the few of the documents/affidavit/assessment order concerning the property as Mark A2 (colly) (in the affidavit, these are marked as Ex.DW1/2 (colly));
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NAVJEET BUDHIRAJA
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C. Certified copies of registered leases of residential properties as Mark A3 (colly) (in the affidavit, these are marked as Ex.DW1/3 (colly)).
26. Thereafter DW1 Sh. Sanjay Bansal was cross examined on behalf of the plaintiff. Defendant no.2 also got examined DW2 Sh. Tanuj Kumar Bhatnagar vide his affidavit Ex.DW2/A and his report Ex.DW2/1, who was also cross examined on behalf of the plaintiff. Defendant's evidence was thereafter put to rest, paving the path for final arguments.
27. Ld. Senior Counsel for the plaintiff Dr. Arun Mohan broached the case by narrating and relating the facts of the plaint, the written statement and the replication. Ld. counsel also attracted the attention of the court to the history of the case by adumbrating upon various time lines and how the case unfolded over three decades. Ld. Senior Counsel for the plaintiff also riveted the attention of the court to the germane extracts of the cross examination of defendant witnesses and argued for the grant of the mesne profits and the compound interest with the support of various case laws of High Court and Supreme Court.
28. Ld. Senior counsel for the plaintiff highlighted the manner in which the defendant no.2 allegedly abused the process of the law for almost thirty years and how the defendant no.2 held on to the possession of the suit property on the pretext of a false, flimsy and frivolous ground of adverse possession. Ld. Senior Counsel carved out a distinction between the defence of denial and affirmative false claim which has been put forth by 14 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:45:13 +0530 the defendant and which in his view tantamount to gross abuse of the process of the law and further stressed that no one can be permitted to take advantage of his own wrong. Ld. Counsel for the plaintiff also adverted to the affidavit of DW1/LR of the defendant to punch holes in the defence sought to be projected on behalf of defendant no.2.
29. In order to embolden the submissions advanced, Ld. Senior counsel for the plaintiff also took the court through the excerpts of various judgments to emphasize that where the litigants, on the strength of false pleadings and documents, manage to procrastinate the litigation, the court must apply the principle of restitution in a pragmatic manner in order to do real and substantial justice.
30. The excerpts of the case laws referred to are not reproduced herein, however, those case laws are mentioned herein below:
(a) Rameshwari Devi Vs. Nirmala Devi, 2011 8 SCC 249
(b) Padmawati Vs. Harijan Sewak Sangh, CM (Main) No. 449/2002, decided on 06.11.2008, Delhi High Court
(c) Indian Council for Enviro Legal Action Vs. Union of Inida, JT 2011 (8) SC 375
(d) Ram Krishna Verma and Ors Vs. State of UP and Ors, 1992 2 SCC 620
(e) Kavita Trehan Vs. Balsara Hygiene Products, 1994 5 SCC 380
31. Specifically on the issue of restitution, following 15 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:45:21 +0530 judgments are referred to:
(a) South Eastern Coalfields Ltd Vs. State of MP, AIR 2003 SC 4482
(b) Karnataka Rare Earth Vs. The Senior Geologist, JT 2004 (2) SC 472
(c) Kalabharati Advertising Vs Hemant Vimalnath, 2010 9 SCC 437
32. On the aspect of the court taking judicial notice of the increase in rent, following judgments are referred to:
(a) Roshan Lal Vegetable Products (P) Ltd Vs. Param International, (2011) ILR 2 Delhi 350
(b) Connaught Plaza Restaurants (P) Ltd Vs. Niamat Kaur, 2013 (3) ARBLR 19 (Delhi)
33. On the aspect of grant of interest (simple-
compound), Ld. counsel referred to Indian Council for Enviro- Legal Action Vs. Union of India, JT 2011 (8) SC 375. The relevant para no.169, 178, 179 and 180 are mentioned below:
"169. Unjust enrichment has been defined as: "A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense." See Black's Law Dictionary, Eighth Edition (Bryan A. Garner) at page 1573.
....
178. While Section (') 3 (Unjust Enrichment) reads as under:
"The phrase "unjust enrichment" is used in law to characterize the result or effect of a failure to make 16 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:45:30 +0530 restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor. It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly."
179. Unjust enrichment is basic to the subject of restitution, and is indeed approached as a fundamental principle thereof.
They are usually linked together, and restitution is frequently based upon the theory of unjust enrichment. However, although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another.
180. While the term `restitution' was considered by the Supreme Court in South-Eastern Coalfields 17 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.10.09 15:45:38 +0530 2003 (8) SCC 648 and other cases excerpted later, the term `unjust enrichment' came to be considered in Sahakari Khand Udyog Mandal Ltd vs Commissioner of Central Excise & Customs ((2005) 3 SCC
738)."
34. Ld. Senior Counsel for plaintiff, to further emphasize on the aspect of measure of damages in case of illegal trespass, alluded to the judgment of High Court of Madras in K Pandurangan Vs. Mrs. C Parimala, date of decision 23.12.2021. Ld. Senior Counsel for plaintiff devoted sufficient time to take the court through this judgment to hammer home the point that a trespasser's liability should be one of reparation of which restitution is a part.
35. In so far as arguments on behalf of defendant no.2 are concerned, Ld. Counsel Sh. Pawan Mathur also advanced marathon and comprehensive arguments, which I shall advert to in the discussion indicated infra. In the written submissions on behalf of defendant no.2 also, it is noticed that some of the arguments were duplicative, beyond pleadings and not relevant to the facts in issue. Therefore, I deem it prudent to only allude to relevant arguments.
36. At the outset, I decide the objections raised on behalf of defendant no.2 at the time of tendering of evidence by PW1. With regard to general power of attorney Ex.PW1/1, photographs Ex.PW1/2 (colly) and Ex.PW1/3 (colly), no objection was raised. With regard to google satellite image Ex.PW1/4, an objection was raised that it is not accompanied by 18 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:45:46 +0530 certificate under Section 65B of Indian Evidence Act, which objection is found to be valid and is accepted as this document appears to be a computer generated and the certificate is mandatory. With regard to the four visiting cards Mark PW1/5 (colly) also, an objection was raised on the ground that PW1 is not the author/witness to the same nor the same was part of the pleading or record. This objection is also valid and these visiting cards cannot be read in evidence. A letter dated 08.09.2016 Mark PW1/6 also was objected to on the same ground, which objection is also found to be valid and this document also cannot be read in evidence. With regard to valuation report dated 28.03.1996 Ex.PW1/7 of Sh. T S Ratnam also, an objection was raised, however, this objection is rejected as pointed out by Ld. counsel for plaintiff that the said valuation report was filed by defendant himself. With regard to 54 certified lease deeds also, an objection was raised but which objection was removed by examining PW2 and exhibiting the lease deeds through the registrar office.
37. Before I get poised to render finding on the two issues framed vide order dated 13.03.2020 as already noted in the preceding discussion, I would like to throw a succinct outline again, following which, I shall deal with the plethora of the arguments, factual and legal advanced on behalf of both the sides and alongside that I shall also dwell upon the evidence led by both the sides and various case laws on the aspect of mesne profits.
38. The present suit was initially instituted on behalf of the plaintiff against defendant no.1 and 2 for seeking possession 19 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:45:54 +0530 of the suit property, recovery of damages/mesne profits for the period from 09.02.1992 onwards, among other reliefs. During the course of the proceedings, defendants contested the suit tooth and nail. In the meanwhile, defendant no.1 claimed to be unrelated to the suit property and sought to be subtracted from the array of parties, and eventually he was dropped. Defendant no.2, wife of the defendant no.1, proceeded with her contest, who claimed to have become the owner of the suit property by way of adverse possession in October 1989, her adverse possession having started with effect from October 1977. Statement of defendant no.2 was also recorded under Order 10 CPC on 15.05.1995 wherein also she postulated to be partners with Sh. Pires in the school which was a tenant in the suit property and that later she bought the school from Sh. Pires and after his death, she became the owner of the school as well as the suit property. She further claimed having been depositing the rent of the suit property in the court and stated that though her possession of the suit property was that of a tenant, but she became the owner being in occupation of the suit property for more than 12 years. She was pertinent to clarify that her claim was only on adverse possession.
39. During the course of further proceedings, defendant no.2 sought to amend her aforesaid suit but her attempts were scotched, particularly vide order dated 10.01.2018 whereby her application under Order 6 Rule 17 CPC came to be dismissed with the cost of Rs.30,000/-. It can be culled out from the paragraph 4 of the said order that by way of the said application, defendant sought to make the following amends:
Digitally signed20 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.10.09 15:46:02 +0530 "4. By way of present application, following amendments are sought in WS:-
"(a) The defendant as an employee of Mr. Pires' Pvt School was authorized to occupy the suit premises. The suit premises has always been and continues to be in possession of Mr. Pires' Pvt School being run by the defendant and hence the Defendant cannot be regarded as trespasser.
(b) The Defendant is in occupation as co-tenant.
(c) In view of previous proceedings before the Rent Controller instituted by the plaintiff's predecessor in interest, the plaintiff is estopped from alleging that the Defendant is a trespasser. The plaintiff cannot approbate and reprobate.
(d) In view of the fact that the defendant was granted leave to defend u/s 25B(4) in the proceedings u/s 14(1)(e), 14(1)(b) and 14(D) of the DRC Act, which was not challenged by the plaintiff's predecessor on the ground that the defendant was a trespasser and the said order having attained finality u/s 43 of the DRC Act, consequently, the existence of landlord-tenant relationship between the parties stands established.
(e) In view of the fact that the plaintiff's predecessor obtained orders u/s 15(2) of the DRC Act for deposit of rent; pursuant thereto the defendant deposited the rent and the plaintiff's predecessor withdrew the rent, therefore, the same conclusively establishes landlord-tenant relationship between the parties.
(f) Even before the Supreme Court, the plaintiff admitted that the defendant is assignee and the term lessee in the lease agreement dated 27.09.1974 has been defined to include assignee.
(g) In view of the fact that the tenancy was determined in October 1977 and 21 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:46:10 +0530 no civil suit for recovery of possession was filed for 12 years thereafter, consequently the suit is barred under Articles 66 and 67 of the Limitation Act.
(h) The plea of adverse possession is being taken in the alternative and without prejudice as against the extreme plea of trespass taken by the plaintiff.
(i) In all the proceedings before the Rent Controller, it has been the consistent case of the defendant that she is co-tenant of the suit premises.
The same is true even today."
40. Post the dismissal of the aforesaid application, defendant no. 2 challenged the said order before High Court of Delhi and during the course of the proceedings therein, on 24.02.2020, defendant no.2 agreed to give up the possession of the suit property and handed over the keys to the plaintiff. The Hon'ble Judge of the High Court of Delhi then disposed of the challenge and relegated the parties to the trial court for inquiry into the claim of mesne profits.
41. Issue no.1: Whether the plaintiff is entitled for the relief of mesne profit/damages as claimed? OPP i. The burden to prove this issue was upon plaintiff. I would broach this issue with the most crucial argument raised on behalf of plaintiff that in the aforesaid background the plaintiff is already found entitled to mesne profits in the light of the defendant no.2 having given up the possession of the suit property after holding on to it for many years and now only quantum of mesne profits is to be decided or as contended by Ld. 22 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET BUDHIRAJA NAVJEET Date: BUDHIRAJA 2023.10.09 15:46:18 +0530 Counsel for defendant no.2, the plaintiff has to first establish her right and entitlement to claim the mesne profits and only then the court can enter into the realm of quantifying the same. During the course of in-extenso and comprehensive final arguments spilling over to months, Ld. Counsel for defendant Sh. Pawan Mathur was confronted with a query as to in what capacity defendant no.2 held on to the possession of the suit property for almost three decades after the institution of the suit and what made her to finally give up the possession before High Court of Delhi, to which, Ld. Counsel for would adopt a circuitous route and eschewed coming up with a clean and clear response. Though, he kept on harping that defendant no.2 being a partner of Pires School was occupying the suit property in the capacity of the tenant and just because she had given up the possession of the suit property, it would not tantamount to the entitlement of the plaintiff to claim mesne profits in respect of the suit property, but, I respectfully differ on this count, as this argument is nothing but a ruse to scupper the entitlement of the plaintiff to claim mesne profits for the entire length of the period for which the defendant no.2 held on to the suit property. But before I build upon this view, some of the road blocks have to be cleared which have been placed on behalf of defendant no.2 in the form of legal arguments.
ii. The first legal submission on behalf of defendant no. 2, as extracted from the written submission, is as under:
"The tenant in the property who is a necessary and property party to the suit has not been impleaded and the suit is liable to be dismissed under Order I Rule 9 of the Code of Civil
23 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET BUDHIRAJA NAVJEET Date: BUDHIRAJA 2023.10.09 15:46:36 +0530 Procedure. It is all the more necessary in view of the fact that the plaintiff is pursuing eviction of the tenant under section 14(1)
(b) of the DRC Act, 14(1)
(c) of the DRC Act and (c) of the DRC Act and even the plaintiff has prosecuted the litigation for the eviction of the tenant before the DRC Act"
iii. In furtherance of the aforementioned first legal submission, Ld. Counsel for defendant ambitiously assailed the case of the plaintiff and her pleading in the instant suit on the back of the previous pleading on behalf of the plaintiff and her predecessor which were in relation to the eviction of the tenant by way of various petitions under DRC Act. Ld. Counsel for defendant argued that when the suit property was purchased by the plaintiff, admittedly there was litigation pending in various courts against the tenant Pires Private School, a partnership concern and defendant no.2, and which fact is also evident from the contents of sale deed executed in favour of the plaintiff. Thus, the said tenant Pires Private Limited, a partnership concern is the necessary and property party to the suit, and it has been deliberately not impleaded by the plaintiff by the plaintiff with mala-fide intention and to mislead the court. It is further the argument that the trespass on the suit property by an alleged third person after the alleged abandonment by the tenant cannot be pleaded and proved without the tenant being impleaded as a party to the suit and no order for possession of the suit property can be sought.
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2023.10.09 15:46:45 +0530 iv. Ld. counsel for defendant further argued with vehemence that it is an admitted case of the plaintiff as borne out from various admitted documents that the tenant i.e. partnership concern, Mr. Pires Private School was running the school in which defendant no.2 was the principal and one of the partners. In the previous litigations by erstwhile owner/landlord Colonel and Smt. Jitender Kaur (wife), his son Sh. Manjit Inder Singh and his daughter Ms. Maninderjit Kaur, an eviction petition under Section 14(1)(b) of DRC Act was filed which after the purchase of the suit property was continued by the plaintiff herein wherein the categorical stand was that defendant no.2 was a tenant in the suit property. It is further argued that even when the plaintiff was pursuing this stand before the Ld. Rent Controller that the tenant of the suit property was a partnership concern and that defendant no.2 was sublet the suit property, plaintiff on 10.11.93 filed this present suit on the false and incorrect premise of the tenant being one individual Mr. Pires and defendant no.2 being the trespasser, after the suit property was abandoned by Mr. Pires. Though it is a specific and admitted case of the plaintiff in paragraph 19 that defendant no.2 was an employee of the school and was a teacher cum manager who later called herself the Principal but still her status was shown and pleaded to be that of trespasser.
v. Ld. Counsel for defendant thereafter took the court through the proceedings of the previous litigation under the DRC Act i.e. eviction petition under Section 14(1)(e) of DRC Act instituted by Colonel against Mr. Pires Public School which was dismissed vide order dated 03.12.1985 Ex.P1, the eviction
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2023.10.09 15:46:53 +0530 petition filed his LRs under Section 14(1)(b) of DRC Act, and eviction petition under Section 14(1)(D) of DRC Act, also filed by LRs of Colonel. Ld. Counsel for defendant further argued that plaintiff is to be held liable for concealment of all these facts and for projecting the false case against the defendant no.2 of she being the trespasser into the suit property. Ld. Counsel further highlighted that an application under Order 22 Rule 10 CPC was also filed by the plaintiff in the eviction petition under Section 14(1)(b) of the DRC Act with the sole intention of the preventing this court from examining the document which could show that the case of the plaintiff against defendant No.2 before the Ld. Rent Controller was that the possession of the suit property was handed over to defendant no.2 by the tenant and she was not a trespasser under any circumstances. The said eviction petition came to be dismissed by the rent court vide order dated 17.05.1996 Ex.D5. On this bedrock, Ld. Counsel further argued that it is the plaintiff who is guilty of approbating and reprobating rather than defendant no.2. In support of his arguments, Ld. counsel for defendant no.2 has referred to the following judgments:
A. Shyam Telelink Limited Vs. Union of India, (2010) 10 SCC 165 B. Bharti Cellular Limited Vs. Union of India and Ors, (2010) 10 SCC 174 vi. It is further the stand of the defendant no.2 that in light of the decision in the eviction petition under Section 14(1)
(b) of DRC Act, defendant filed for the amendment of the written statement, which was not opposed by the plaintiff and the
26 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:47:02 +0530 amendment was allowed vide order dated 03.12.1996, but the plaintiff deliberately did not file any replication thereto. The replication dated 07.11.1994 in response to the original written statement dated 16.08.1994 only goes on to show and demonstrate that the suit filed by the plaintiff is false.
vii. This contention, at the first blush, certainly appears to be meritorious as it is an admitted position which is culled out from various petitions under the DRC Act, the record of which has been filed in the present suit, however, Ld. Counsel for defendant no.2 in his arguments has completely side lined and abandoned the defence of the defendant no.2 having become owner of the suit property by way of adverse possession, probably for the reason that during the course of the proceeding, defendant no.2 sought to divorce herself from this defence and rather substitute the same by way of her being in occupation of the suit property as a tenant. But as has already been noted, those attempts of defendant no.2 were unsuccessful and she was not permitted to make any amends.
viii. The aforesaid legal submissions have also been strongly opposed on behalf of the plaintiff, and rightly so, as on the date when the plaintiff purchased the suit property by way of registered sale deed the defendants herein were in occupation of the suit property and in the written statement, defendants nowhere flagged any such objection as to non-impleadment of Pires Private School, probably for the reason that defendant no.2 projected herself to be the owner of the suit property by way of adverse possession. In paragraph 5 of the written statement, she 27 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:47:11 +0530 went on to challenge the locus of the plaintiff to file the present suit on the back of assertions that Smt. Jitender Kaur from whom the plaintiff alleged to have purchased the suit property was not the owner on 19.02.1992 as defendant no.2 had become the owner by way of adverse possession. She also pleaded that there was a positive act of ouster on her part and when she asserted hostile title and from that time onwards her possession had been open, continuous, hostile, peaceful and uninterrupted and she perfected her title over the suit property by way of adverse possession even before the execution of the sale deed in favour of the plaintiff. It is also noticed that at other stages of written statement also, defendant no.2 tenaciously persisted with the claim of her ownership over the suit property by way of adverse possession. But there is nothing in the entire written statement that the defendants were in occupation of the suit property in the capacity of being a partner in Pires School and eventually as a tenant. There is no pleading on the part of the defendant no.2 as to in what capacity, she came to occupy the suit property. Rather, in the written statement, she claimed that the school was being run by her in her own right. Further, all these claims came to naught and drew blank when the possession of the suit property was handed over to the plaintiff, which act clearly debunks and belies the version of defendant no.2 having gained ownership over the suit property on the basis of adverse possession. Thus, Ld. Counsel for defendant no.2, in my opinion, had no basis to argue on this line and prolong the litigation.
ix. Ld. counsel for defendant no.2 had also laid his thrust upon the partnership theory by further relying upon the 28 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:47:21 +0530 partnership deed Ex.D2 dated 07.01.1978 to assert that defendant no.2 was in fact a partner with Sh. Pires in the Pires School. However, this would also not advance the cause of defendant no.2 as already noted that without any pleading in this regard, this partnership deed cannot be said to be taken to be a supplement to the said averment. DW1 in his extensive cross examination also harped on his alleged plea of partnership of defendant no.2 with Sh. Pires. Though DW1 claimed that defendant no.2 entered into partnership with Sh. Pires in the year 1974, however, there is no evidence in regard to the inception of the alleged partnership in the year 1974. Otherwise also as already stated, since this statement was beyond pleading, the testimony of DW1 on this score is hardly relevant.
x. Though, Ld. Counsel for defendant no.2 sought to find fault with the pleading of the plaintiff in the sense that the pleading is bereft of the details as to when Mr. Pires abandoned the suit property and defendant no.2 trespassed the same, and I also agree with this to the extent that plaintiff ought to have come clean on the details of the abandonment of the suit property and wrongful entry of defendant no.2 in the same, but in view of the aforesaid frivolous and vexatious claim of defendant no.2 having not yielded any result in her favour, the said omissions in the plaint cannot be said to be fatal.
xi. In so far as the previous petitions under the DRC Act on behalf of the plaintiff are concerned, though, there is no denial that at some point of time, the predecessor in interest of the plaintiff was pursuing litigation against Pires Private School 29 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.10.09 15:47:30 +0530 seeking its eviction which proceeding was taken over and pursued by the plaintiff and which did not see fruition, however, one of those petitions of DRC Act was contested by the defendant on the ground of pendency of the present suit, which fact was taken cognizance of by the Hon'ble Judge of the High Court of Delhi in this case vide order dated 09.09.2009 wherein it opined that the said conduct of defendant no.2 appears to be mala fide and she cannot be permitted to approbate and reprobate at the same time and cannot oust the plaintiff from the proceeding for eviction of defendant no.2. Therefore, continuing with the said view, I am also of the opinion that this court has to confine itself to the pleadings of the present suit without embarking upon any inquiry as to the previous petitions between the parties which may have been filed under the DRC Act. What is to be seen herein is that the defendant no.2 has taken an unequivocal stand having been in possession of the suit property on the basis of the ownership having accrued to her by way of adverse possession and since defendant no.2 has given up the possession of the suit property in a related proceeding before the High Court of Delhi, it is obvious that the stand of the defendant no.2 was specious, untruthful, and was nothing but a facade to held on to and retain the illegal possession of the suit property, thereby denuding the plaintiff of her right to enjoy the suit property.
xii. Ld. Counsel for defendant no.2 also argued on the lines that the annexures filed along with the pleadings constitute the part of the pleadings, and therefore, even if in the written statement of defendant no.2, there is no pleading qua her
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2023.10.09 15:47:39 +0530 occupation of the suit property as the tenant, the previous proceedings of DRC Act can be taken into consideration. To assert the point that the annexures to the plaint are part of the pleadings, reliance is placed on behalf of the defendant no.2 on the following pronouncements:
A. K K Manchanda Vs. S D Technical Services Pvt Ltd, Review application no. 320/2008, CM (Main) No. 1205/2017, dated 01.07.2009 B. Modern India Builders Vs. President, Super Bazar Coop Stores Ltd, 43 (1991) DLT 287 C. Nangia Construction Co Vs. National Buildings Constructions Ltd, 41 (1990) DLT 359 D. Keshav Metal Works Vs. Jitender Kumar Verma, 1994 (28) DRJ 206 E. Vittal Daulat Lad Vs. Ashok Govind Tawade, 2002 (3) BomCR 475 F. Commercial Finances Vs. Thressia, (1990) 68 CompCase 704 G. Janki Das Vs. Kushalya Devi, AIR 1943 Lahore 207 H. SRMAR Ramanathan Chettiar Vs. Annamalai Chettiar, AIR 1931 Madras 825 I. V S Vijayaraghavan Vs. Girija Surendran, AIR 2002 Kerala 62 xiii. The aforesaid argument, in the context of the factual position of the present suit, cannot help the case of the defendant no.2 as the annexures cannot substitute and take the place of pleadings. The annexures filed along with the pleadings must supplement the pleadings rather than run contrary to it. As noted
31 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:47:47 +0530 above, the written statement on behalf of defendant no.2 does not contain any pleading as to her occupation of the suit property as tenant and also that there is no such pleading of the present suit being bad for non-impleadment of a proper or necessary party, therefore, I do not find any merit in the aforesaid legal submission. The Judgments referred are clearly on distinct setting and are of no help.
xiv. In this backdrop, I also feel the urge to examine whether a person can take an alternative plea of adverse possession and tenancy. The High Court of Delhi had an opportunity to deal with somewhat similar situation in Hansraj Vs. Raghubir Singh and others, RFA No. 633/2014, decided on 09.01.2020. The issue therein in brief was that the respondents were admitted to be the owners of the suit property and the appellant/tenants used to pay rental. The appellant later sought to claim his ownership by way of adverse possession and challenged the order of Trial Court under Order 12 Rule 6 CPC before the High Court of Delhi on the pretext that the civil court did not have the jurisdiction as the suit was barred by DRC Act. The Court therein held that though it is a settled law that the DRC Act proceeds on an assumption that there exists a relationship of landlord/tenant between the parties and in case of mere denial of such, rent tribunal is an authority to determine the such question. But it was further held that there is no cavil with said proposition of law but that does not mean that the person claiming to be a landlord cannot proceed by filing a civil suit by relying upon the pleading of the tenant before the competent authority. Once the appellant claims to be in adverse possession 32 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.10.09 15:47:56 +0530 of the premise, he cannot allege himself to be a tenant as both these pleas cannot exist together. The principle that once a tenant always a tenant ends on taking plea of adverse possession and ascertaining one's owner right.
xv. In the instant case also, we are somewhat confronted with a situation where on one hand predecessor in interest of the plaintiff and thereafter the plaintiff pursued the proceeding under Section 14 of DRC Act wherein defendant no.2 was also impleaded as an alleged tenant, and on the other hand, plaintiff has filed the present suit on the bedrock of the defendant no.2 having been in unlawful possession of the suit property being a trespasser. We have already noted that the Hon'ble Judge of the High Court of Delhi, when the suit was being dealt with therein, had held in order dated September 9, 2009 that the plaintiff cannot be ousted from the jurisdiction of this court in view of the divergent stand of the defendant no.2. Now since the case is about to achieve finality, this issue has to be dealt with in accordance with the legal principle of law. In my view, once the plaintiff has taken the stand before Ld. Rent Controller in various petitions under Section 14 of DRC Act that defendant no.2 was a tenant in the suit property (though plaintiff sought to justify that she was impleaded as alleged to be a tenant), those proceedings ought to have been taken to its logical conclusion in Appellate Court even if the reliefs claimed therein eluded the plaintiff before the Rent Tribunal, but eventually plaintiff chose to pursue the present suit, and therefore, now this situation has to be reconciled on the basis of the respective pleadings of both the parties. As we have noted in the aforesaid case law of High Court Digitally signed
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2023.10.09 15:48:04 +0530 of Delhi that the plea of adverse possession is mutually destructive vis a vis the plea of tenancy under the DRC Act and on this premise the court had upheld the order of eviction passed in the civil suit, but in this case, the plaintiff has not complied with the formalities as envisaged in the Transfer of Properties Act for forfeiture of the lease, for the reason that the plaintiff in the present suit has not acknowledged the capacity of the defendant no.2 being in possession of the suit property as a tenant. Be that as it may, since defendant no.2 has failed to stick to her guns of staking her claim over the suit property on the basis of adverse possession after having given up the physical possession thereto in favour of the plaintiff, defendant no.2 cannot be accorded the benefit of this flaw in the suit of the plaintiff. Plaintiff cannot be left in lurch after having fought this litigation for almost three decades due to the illegal act of defendant no.2 in continuing in the suit property despite knowing the legal right of the plaintiff over the suit property.
xvi. Now before I part with this issue, if I, for once, assume that defendant no.2 was once a partner with Pires School of Pires who was a tenant as alleged and later she occupied the suit property as tenant and that she cannot be termed as a trespasser, there arise some lingering questions in my mind and whether defendant no.2 has any valid explanations to those. First is, after the death of Pires, legally did the partnership survive between him and defendant no. 2? Second, did defendant no.2 attempt to forge partnership with legal heirs of Pires to take the alleged partnership forward? Third, did defendant no.2 attempt to rent the suit property from colonel or his representatives after the
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2023.10.09 15:48:12 +0530 death of Pires? The answer to all these questions is "No". And why she did not tread on any of the aforesaid path, because she was driven by the greed and avarice to take over the entire school first and eventually the suit property, and it is this wanton greed which made her audacious enough to even challenge the ownership of Colonel family, the erstwhile owner and later the plaintiff's title for more than 25 years. In this view of the matter, I fail to fathom as to on what grounds defendant no.2 claim to be exonerated from the liability to compensate the plaintiff.
xvii. The second legal submission on behalf of defendant is that the power of attorney was not filed on behalf of the plaintiff with the leave of the court. It was argued that PW1 Sh. Sanjay Goel could not have appeared on behalf of the plaintiff in the present suit and the alleged attorney dated 02.02.2021 Ex.PW1/1 was not filed by this witness with the leave/permission of the court. It was argued that the plaintiff had to file all the documents before the court at the time of filing of the suit or replication, which was not done and thus, this power of attorney along with the evidence by way of affidavit of PW1 cannot be read in evidence.
xviii. The third legal submission is also in regard to power of attorney only and which is that the same has not been proved in accordance with law. It is argued that the original of the said power of attorney has not been filed in the court record and the photocopy Ex.PW1/1 cannot be said to have been proved in accordance with law. Further, it is argued that since the plaintiff's witness has not identified and proved the signatures of the
35 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:48:20 +0530 plaintiff on the document as required under the provision of 67 of Indian Evidence Act 1872, the said special power of attorney cannot be said to be proved. It is further argued that the executant of the said attorney has not entered into the witness box nor any attesting witness has been examined as per Section 68 of Indian Evidence Act 1872.
xix. The fourth legal submission is that the said power of attorney has not been proved as per the Notaries Act 1956 and the Notaries Rules 1956. The arguments in this regard, as culled out from the written submission on behalf of the defendant, are as under:
"Section 8 of the Notaries Act, 1952 provides the Functions of a Notary Public.
Sub-section (a) provides that the function of the Notary is to verify, authenticate, certify and at least the execution of any instrument.
Section 10 of the Notaries Rules 1956 prescribes the Fees payable to a Notary Public for doing any Notarial Act Section 11 of The Notaries Act, 1952 prescribes the Functions of a Notary Reliance is placed on section 11 (1), (2), (8) and 9 Section 12 of the Notaries Rules, 1956 deals with the Seal of a Notary
(a) As per the provisions of section 85 of the Indian Evidence Act, 1872 there have to be two conditions which are to exist together that are necessary for the presumption as to Power of Attorney to come into play i.e.
- Execution before the Notary AND
- Document should be authenticated by the Notary At the outset it is submitted that in terms of the provisions of section 85
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2023.10.09 15:48:29 +0530 of the Indian Evidence Act, it cannot be presumed that the Special Power of Attorney dated 02.02.2021 (identified as Exhibit PW1/1), was executed and authenticated by the Notary Public since
- it is the admitted case of the PW-1 that the Exhibit PW1/1 was not executed before the Notary Public (Ques No.23 in cross examination)
- Exhibit PW1/1 itself shows that the same has not been authenticated by the Notary Public as the same is not signed by the Notary and the same also does not bear the authentication Certificate of the Notary recording the details therein.
- There is no identification of the Executant of the
(b) It is further stated that the Notarial Adhesive Fee Stamp has not been affixed → reliance is placed on column no.6 of the Notarial Register as detailed in Form XV of 'The Notaries Rules, 1956 → even otherwise PW1/1 is not legal and valid document
(c) In the absence of any presumption under section 85 of the Evidence Act © dated 02.02.2021 (identified as Exhibit PW1/1) has to be proved like any other document under the Indian Evidence Act, 1872.
In such a situation, it was essential for the plaintiff to prove the execution of the Exhibit PW1/1 and it is not proved before the court that Exhibit PW1/1 is executed by the plaintiff in the suit. The plaintiff has not proved the Special Power of Attorney dated 02.02.2021 identified in the evidence as a document identified as a Mark Ex. PW1/1 like any other document as per the provisions of 'The Indian Evidence Act, 1872' as submitted earlier.
(d) The plaintiff has failed to produce before the court the original of the Attorney dated 02.02.2021 for the 37 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:48:37 +0530 examination of the Hon'ble Court.
(e) Further there is no Notarial Fee Stamp that has been affixed on the Special Power of Attorney dated 02.02.2021 identified as Exhibit PW1/1 paid to the Notary Public (i.e. which bears a Notarial Stamp) and in the absence of the same, it is neither legal and valid.
Reliance is also placed on section 10© of the Rules pertaining to the payment of the Fee to the Notary for doing the notarial act of the 'The Notaries Rules, 1956', the affixation of the Notarial Fee Stamp (Notarial Fee) on the Attorney dated 02.02.2021 identified as PW1/1, for the purpose of authenticating the execution thereof, the same is neither legal nor valid.
(f) The alleged Special Power of Attorney dated 02.02.2021 is neither legal nor valid nor validly executed and attested before the Notary Public. It is submitted that the photocopy of the alleged Special Power of Attorney dated 02.02.2021 filed before the court shows that the same is
- Without the identification of the signatures of the Executant of the Attorney dated 02.02.2021, so the identity of the executant is to be proved
- Without the signatures of the Notary Public
- Without affixation of the Notarial Stamp as per section 10(c0 of the Notaries Rules, 1956
- Without any attestation as per law by the Notary Public
- Not entered in the Notarial Register of the Notary Public, since the same is not executed and notarized before the Notary Public.
As far as the entry in the Notarial Registration is concerned, for the notarization to be legal and valid the same has to be entered into the Notarial Register and the Serial number on which it is entered in the 38 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:48:45 +0530 notarial register is so recorded on the document which is Notarized. Since it is not entered into the Notarial Register, it is neither legal nor valid. As per section 11 of the Notaries Rules, 1956 a notary in transacting the business under the Act shall use the Forms set forth in the Appendix to the Rule and every Notary has to maintain a Notarial Register in the prescribed for XV.
(g) The maintaining of the relevant records by the Notary Public is a very must so as to prove the execution and authentication of the document in case there is any doubt casted on the instrument/document in any manner whatsoever.
Reliance is placed on the following judicial pronouncements
(a) Kashi Prasad Sakesna versus State Government of Uttar Pradesh reported as AIR 1969 Allahabad-195- para 5 page 198- affixation of Notary Stamp
(b) "Prataprai Trumbaklal Mehta versue Jayant Nemchand Shah and another" reported as AIR 1992 Bombay 149 (para 11);
(c) "Pratima Chowdhury versus Kalpana Mukherjee and another"
reported as AIR 2014 SC 1304 (paragraph no. 28(viii) on page 1329 → section 8 of the Ac
(d) "J.G. Hegde versus R. D. Shuka"
reported as AIR 2004 Bombay 55 (para 7, 8, 10, 11, 12, 15- page 60)
(h) The signature of the Executant of any Special Power of Attorney is so obtained in the Notarial Register at the time of the attestation/Notarization at the Serial Number in the Notarial Register, where the detail of the Notarized document is so recorded and the notarization of the Attorney before the Notary Public is proved.
The instrument in the instant case does not bear the same and the same is not entered in the Notarial Register 39 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET BUDHIRAJA NAVJEET Date:
BUDHIRAJA 2023.10.09 15:48:58 +0530 maintained by the Notary Public. Reliance is placed on the proforma of the Notarial Register as per Form XV of the Notaries Rules, 1956'
(i) The signatures of the Executant on the © dated 02.02.2021 have not been identified by anyone. Neither the Lawyer nor the Notary, nor the witnesses.
The alleged Special Power of Attorney dated 02.02.2021 is neither legal nor valid and the same is nothing but a piece of paper having no evidentiary value."
xx. Further, in support of the argument that the plaintiff has not subjected herself to the cross examination and, thus, she has to face the consequences, Ld. counsel for defendant no.2 has referred to the following judgments:
A. Vidhyadhar Vs. Manikrao, (1999) 3 SCC 573 B. Ishwar Bhai C Patel Vs. Harihar Behera, 1999 (3) SCC 457 C. Ramesh Kumar and Another Vs. Feru Ram and Another, (2011) 8 SCC 613 D. Sardar Gurbaksh Singh Vs. Gurdial Singh and Ar, AIR 1927 PC 230 E. Goverdhan P Thakare Vs. jandhan G Thakare and Ar, 2005 AIHC 1276 F. Martand Pandharinath Vs. Radhabai, AIR 1931 Bombay 97 G. Tulshi and Ors Vs. Chandrika Prasad and Ors, 2006 (8) SCC 322 H. Binapani Paul Vs. Partima Ghosh and Ors, 2007 (6) Scale 398 I. Adivekka and Ors Vs. Hanamawa Kom Venkatesh and
40 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:49:15 +0530 Anr, AIR 2007 SC 2025 xxi. As against the aforesaid arguments, on behalf of the plaintiff, it was submitted that since in the present suit, the issues pertaining to the recovery of the possession of the suit property have already been dropped in the light of the defendant no.2 having ceded the ground, the only issue remains to be decided is the quantum of mesne profits and since that is primarily in the nature of a judicial inquiry, plaintiff being a senior citizen aged about 66 years, was unable to appear and depose before the court owing to covid-19 crisis and, therefore, she executed a special power of attorney in favor of PW1 only for the purpose of producing certified copies of rent deed and mathematic calculation.
xxii. Alongside the discussion on the aforesaid issue, another legal submission can also be ensnared herein that the plaintiff has not entered into the witness box herself and not tendered herself to cross examine and thus, adverse interference has to be drawn against her.
xxiii. I, to some extent, concur with the submission of Ld. Senior counsel for the plaintiff that since defendant no.2 has already surrendered her alleged claim of ownership in respect of the suit property and peaceful possession thereto has been handed over to the plaintiff, the substantial issues framed earlier have been subtracted and replaced by the two issues which only touch upon the aspect of the grant of mesne profits and interest thereof in favour of the plaintiff and therefore, even if the plaintiff 41 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:49:24 +0530 herself has not entered into the witness box to depose qua the same, the cause of action in so far as the mesne profits are concerned does not get impeded as can be gathered from the judgment of division bench of High Court of Delhi in National Radio and Electronic Corporation Vs. Motion Pictures Association, 122 (2005) DLT 629 that even if no substantial evidence is led by the plaintiff in respect of the rent of the properties, judicial notice can be taken thereof to appreciate the rate of rent and fix the quantum thereto. This would also somehow strengthen the argument of Ld. Senior Counsel for the plaintiff that the assessment of grant and quantum of the mesne profits is in the realm of being an inquiry and thus, it can be safely concluded that even if there is no evidence led by the plaintiff who is claiming his/her entitlement to the grant of the mesne profits, the court can take judicial notice of the prevalent rate of rent of any particular area and proceed to pass the necessary order. Therefore, the contention of the defendant that plaintiff was incumbent upon to enter into the witness box and subject herself to cross examination, does not hold any water. The judgments relied upon in this regard are facts centric and completely distinguishable as in none of those cases, the testimony of the attorney was limited to the extent of mesne profits.
xxiv. In so far as competency of PW1 Sh. Sanjay Goel is concerned, I take the discussion forward by dealing with the legal objections raised in regard to the admissibility of power of attorney Ex.PW1/1. The first submission in this regard is that the plaintiff had not sought the leave of the court to get PW1 42 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:49:33 +0530 examined as her special power of attorney holder and, therefore, his affidavit is of no value to the present suit. Ld. Counsel for defendant no.2 also argued that PW1 did not have any personal knowledge relating to the present suit and his testimony is based on the knowledge gained either from the plaintiff or the counsel.
xxv. Further, to buttress his arguments that special power of attorney holder cannot depose on the merits of the case in place of the plaintiff, reliance is placed upon the following judgments:
A. Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd, (2005) 2SCC 217 B. Man Kaur (dead) by LRs Vs. Hartar Singh Sangha, (2010) 10 SCC 512 C. S Kesari Hauman Goud Vs. Anjuman Jehan and Ors, (2013) 12 SCC 64 D. Shambhu Putt Shastri Vs. State of Rajasthan, (1986) 2 WLN 713 (2) E. Ram Prasad Vs. Hari Narain and Ors, AIR 1998 Raj 185 xxvi. Before coming to grips with this issue, let us have a glance at the cross examination of PW1 on this aspect. PW1 was cross examined as to when did he meet the plaintiff for the first time and where, to which he replied having met the plaintiff about five to six months before his deposition in the office of Advocate Sh. Arvind Bhatt. PW1 was then also questioned as to why did he choose to represent the plaintiff in the present case which is pending since 1993 despite only knowing her five to six months, to which he responded that he was associated with
43 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:49:42 +0530 charitable institution and in connection with a matter similar to the present case, he entered into discussion with the plaintiff during which plaintiff desired to donate money for some good cause if recovered as mesne profits and for this reason, PW1 was appointed as representative of the plaintiff.
xxvii. To the query that whatever has been stated in the affidavit of PW1 was informed to him by the plaintiff or her counsel, PW1 affirmed that his statement in the affidavit was on the basis of the information provided by the plaintiff as well as counsel and also on the basis of the record which he had seen.
xxviii. There is no yardstick to assess as to when a person can become competent to appear as a witness for other person. Thus, the fact that PW1 was acquainted with the plaintiff only for 5-6 months before his deposition is no bar to discard his testimony. In this regard, I observe that by virtue of Section 118 of Evidence Act, 1872, all persons are competent to appear as a witness who are capable of understanding the questions and giving rational response thereto. The exception carved out is in respect of those persons who owing to some disability are unable to depose before the court. It is not the case herein that PW1 Sh. Sanjay Goel was incompetent to appear as a witness being unable to understand the questions and respond thereto. There is no impediment in him appearing as a witness subject only to the embargo of not deposing anything about the act or the transaction of which plaintiff only had the personal knowledge. In Pawan Kumar Dalmia Vs. M/s HCL Info Systems Limited and Ors, date of decision 13.03.2012, High Court of Delhi, it was 44 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:49:51 +0530 observed in paragraph 10 that evidence of a person is governed by the Evidence Act, 1872, and any person who is aware of the facts of the case and whose evidence would be of relevance is competent to depose. A witness can depose as per facts in his knowledge or as per records.
xxix. Keeping in line with the aforesaid view that a witness can depose as per records, I further rely upon Bhimppa and Ors Vs. Allisab and Ors, 27.02.2006, Karnataka High Court, which held in para 15 that it is open to the plaintiff to examine the power of attorney holder, to produce the documents through him, mark the same and examine witnesses to prove the said documents if it is denied.
xxx. Therefore, the contention that the evidence of a power of attorney holder cannot prove the case of the plaintiff in all cases is not correct and that is not the law laid down by the Supreme Court in Janki Vashdeo Bhojwani Vs. Indusind Bank Ltd, (2005) 2SCC 217 which is also relied by Ld. Counsel for Defendant no.2. But, Ld. Counsel for defendant no.2 is correct to the extent that the testimony of PW1 in this case on the aspects not within his knowledge, and of which knowledge has been gained from the plaintiff and her counsel as admitted by him in his cross-examination, cannot be read in evidence. Thus, the testimony of PW1 can be read and considered only to the extent of furnishing the comparable lease deeds on record and nothing more than that, meaning thereby that his deposition that liability of the four defendants is joint and several, images of visiting cards of staff Ex.PW1/5(Colly), letter dated 8.09.2016 written by 45 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.10.09 15:49:59 +0530 Principal Ms. Radha Agarwal Ex. PW1/6, cannot be considered. The other Judgments relied on behalf of defendant no.2 need not be referred to as there is no dispute qua the legal position cited therein.
xxxi. It has been further argued on behalf of defendant no.2 that the notarization of special power of attorney Ex.PW1/1 has not been in consonance with the Notaries Act 1952 and the Notaries Rules. Further, there is no notarial adhesive fee stamp affixed as per column no.6 of the notarial register as detailed in Form 15 of the Notaries Rules 1956. Also, it was argued that in terms of the provision of Section 85 of the Indian Evidence Act, it cannot be presumed that the special power of attorney Ex.PW1/1 was executed and authenticated by notary public as the same does not contain the signature of the notary and the authentication certificate.
xxxii. A power of attorney is a mode of creating an express agency. It is a written instrument executed by a principal to appoint an agent to act for the principal in one or more transactions. There is no specific mode prescribed for the execution of power of attorney. Yet it is not uncommon to notarize the execution of the power of attorney. An aspect of notarization is governed by provision of Notaries Act 1952. Under the said act, a notary is appointed by Centre or State to do specified acts inter alia to verify authenticate, certify or attest the execution of any instrument. Further, under the provision of Section 85 of Indian Evidence Act, a power of attorney executed before and authenticated by notary public carries a presumption
46 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.10.09 15:50:08 +0530 that it was properly executed.
xxxiii. In Smt. Kamla Rani and Ors Vs. Texmaco Ltd, MANU/DE/7343/2007, High Court of Delhi explained the effect of notarization as follows:
"Authentication by a notary public is a solemn act performed by the notary public whose duty is to ensure that the executant is the person before him and is identified to his satisfaction. Once a document is authenticated by a notary public, it will be presumed that the document was duly executed and was in order.
The use of the expression 'shall presume' shows that the section is mandatory and the court has to presume that all necessary requirements for the proper execution of the power of attorney were duly fulfilled before the notary public. As observed in AIR 1984 363 E.C. & E. Co. Ltd. v. J.E. Works, if 2 conditions are satisfied, firstly the power of attorney being executed before a notary public and secondly it being authenticated by a notary public, a presumption would arise under Section 85 about the executant of the power of attorney.
34. Onus would thus lie on the opposite party to prove to the contrary.
35. It is well settled that authentication would mean more than mere execution.
Where proof of authentication surfaces, 47 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:50:16 +0530 benefit of Section 85 has to be granted."
xxxiv. While a power of attorney executed before and authenticated by notary carries a presumption as to its due execution, the absence of such authentication would not render the document invalid. Explaining this aspect, Delhi High Court in case titled as Grafitek International Vs. K K Kaura, 2002 SCC Online DLT held as under:
"Merely because the power of attorney is not duly notarized does not mean that the concerned person was not authorized to institute the suit.
Notarization raises presumption as to its authentication and no more.
Notarization of power of attorney is a matter of procedure and raises the presumption of authority of the person to institute the suit. In other words, it does not mean that power of attorney executed in favor of a particular person but not duly notarized does not confer power upon the person to institute the suit".
xxxv. It is, thus, clear from the aforenoted judgment that the authentication of the document by a notary public would raise a presumption of the document being duly executed and in order. However, notarization is a matter of procedure and it does not mean that power of attorney executed in the favour of a particular person but not duly notarized does not confer any power upon the said person. The implication of this for the present case would be 48 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET BUDHIRAJA NAVJEET Date:
BUDHIRAJA 2023.10.09 15:50:23 +0530 that if the special power of attorney Ex.PW1/1 has been proved to be duly notarized as per the Notaries Act 1952 and the Notaries Rules 1956 then a presumption under Section 85 of Indian Evidence Act can be raised as to its authenticity, thereby dispensing with the requirement of its formal proof. But the perusal of the special power of attorney Ex.PW1/1 reveals that the same is lacking in fulfilling the compliances as per the Notaries Act 1952 as pointed out by Ld. Counsel for defendant no.2 in detail as I do not find any authentication being done by the concerned notary or any identification being done in the form of issuing a particular number which gets entered in the notarial register as per the Notaries Rules 1956. In fact, the attorney does not reveal the signatures and identification of the Notary. Thus, to this extent, the arguments advanced on behalf of defendant no. 2 are meritorious and the necessary presumption as enunciated in Section 85 of Indian Evidence Act cannot be raised herein.
xxxvi. The other way to prove the special power of attorney was to examine its author who is the plaintiff herein to the effect that she has executed the special power of attorney in favour of PW1 Sh. Sanjay Goel to depose in the present suit. It is a matter of record that plaintiff has not examined herself to prove the special power of attorney Ex.PW1/1 but it is to be seen now whether at the time of marking and tendering of special power of attorney in evidence by PW1, any objection was raised on behalf of defendant no.2 as to mode of proof of the said attorney.
xxxvii. At this juncture, I deal with the argument of Ld. Counsel for Defendant no.2 that mere marking or exhibit on a
49 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.10.09 15:50:31 +0530 document does not amount to its proof and in this regard, he has relied upon the judgment of Supreme Court of India in Life Insurance Corporation of India and Another Vs Ram Pal Singh Bisen, (2010) 4 SCC 491.
xxxviii. Ld. counsel further highlighted that the parties who allege any document to be bogus has to prove nothing until the party relying upon the document establishes its genuineness, which was held by the Supreme Court of India in Subhra Mukherjee Vs. Bharat Coking Coal Ltd, AIR 2000 SC 1203. Ld. counsel further referred to judgment in Rajwati Devi Vs. Joint director, AIR 1989 Patna 66, in support of his arguments that if no witness is examined for proving the document, it amounts to procedural infirmity.
xxxix. The examination in chief of PW1 dated 27.02.2021 does not reveal that at the time of tendering the special power of attorney in evidence as Ex.PW1/1 any objection was raised as to the mode of proof of this document. It is a settled legal position that the objection with regard to the mode and manner of proof of a document has to be raised at the time of marking/exhibition of the document and in case of failure on the part of the opposite party to raise any such objection, he/she is precluded to raise it at the later stage. In this regard, I hereby rely upon the judgment of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple & Anr, date of decision 08.10.2003 wherein the Supreme Court has laid down the following salutary principle which has been followed in catena of judgments.
"Privy Council in Padman
50 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:50:40 +0530 and Others vs. Hanwanta and Others [AIR 1915 PC 111] did not permit the appellant to take objection to the admissibility of a registered copy of a will in appeal for the first time. It was held that this objection should have been taken in the trial court. It was observed:
"The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar's office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied.
Their lordships think that there is no substance in the present contention."
Similar is the view expressed by this Court in P.C.Purushothama Reddiar vs. S.Perumal [1972 (2) SCR 646]. In this case the police reports were admitted in evidence without any objection and the objection was sought to be taken in appeal regarding the admissibility of the reports. Rejecting the contention it was observed:
51 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 "Before leaving this case it is necessary to refer to one of the contention taken by Mr. Ramamurthi, learned counsel for the respondent.
He contended that the police reports referred to earlier are inadmissible in evidence as the Head-
constables who covered those meetings have not been examined in the case.
Those reports were marked without any objection.
Hence it is not open to the respondent now to object to their admissibility - see Bhagat Ram V. Khetu Ram and Anr. [AIR 1929 PC 110]."
Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced.
So is the observation of the High Court that the photocopy of the rent note was not readable. The photocopy was admitted in evidence, as already stated.
It was read by the trial court as also by the first Appellate Court. None of the said two courts appear to have felt any difficulty in reading the document and understanding and appreciating its contents.
May be, that the copy had fainted by the time the matter came up for hearing before the High Court. The High Court if it felt any difficulty in comfortable reading of the document 52 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 then should have said so at the time of hearing and afforded the parties an opportunity of either producing the original or a readable copy of the document. Nothing such was done. The High Court has not even doubted the factum of the contents of the document having been read by the two courts below, drawn deductions therefrom and based their finding of fact on this document as well. All that the High Court has said is that the document was inadmissible in evidence being a photocopy and with that view we have already expressed our disagreement. Nothing, therefore, turns on the observation of the High Court that the document was not readable when the matter came up for hearing before it...."
xl. The requirement of raising the objection at the time of marking/exhibition of the document is essential as that would apprise the party to take corrective steps to prove the particular document in regard to which the objection may have raised and, therefore, in the absence of no objection, other party would be given an impression that the opposite party has no objection in regard to the admissibility of this document.
xli. In light of the aforesaid position, since on behalf of defendant, at the time of tendering of the special power of attorney in evidence and marking the same as Ex.PW1/1, no 53 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 objection was taken as to mode and manner of proof of this document, at the stage of final arguments this objection cannot be permitted to be raised.
xlii. As regards the Judgment in LIC of India v. Ram Pal Singh, mentioned above, on behalf of defendantno.2, it though says that mere marking of a document is not the proof of its contents, there is no dispute about this, but in that case it was in the context of admission/denial of documents, and the Court found that even if documents are admitted, its contents were proved. But the position is different where document is being tendered in evidence and no objection is then raised as to its mode, then that document cannot be discarded. I further stand fortified on this by another recent judgment of Supreme Court in Lachhmi Narain Singh v. Sarjug Singh, 17 August, 2021, para 23 and 24 of which are worth noting here:
23. This Court in the opinion written by Justice S. H. Kapadia in Dayamathi Bai v. KM Shaffi4 has similarly held that objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. Moreover, objection is to be taken before the document is marked as an exhibit and admitted in Court.
24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before 54 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that 4 (2004) 7 SCC 107 party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of R.V.E. Venkatachala (Supra).
xliii. On the aspect of the original power of attorney of PW1, he responded in his cross examination that he had not brought it that day and sought to bring it on the next day. Ld. counsel for plaintiff then clarified that the power of attorney in favour of PW1 was already exhibited while his affidavit was tendered into evidence and copy of power of attorney was given exhibit mark after showing the original document. Thereafter, no such counter suggestion was posed on behalf of the defendant no.2 that the original of the power of attorney was not shown at the time of tendering of evidence by PW1. Thus, the grouse of 55 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Ld. Counsel for defendant no.2 assailing the competency of PW1 and non-production of the original power of attorney falls face down. Needless to say, on the contents of special power of attorney PW1/1, there is no challenge in the cross-examination of PW1.
xliv. The upshot of the aforesaid discourse is that defendant no.2 has not been able to substantiate the legal submissions put forth which would warrant the case of the plaintiff to fail altogether. Defendant no.2 has miserably failed to justify her occupation of the suit property from the date of the institution of the suit till 24.02.2020 when the suit property was handed over to the plaintiff. It is a foregone conclusion that the unauthorized and illegal occupation of the suit property for the said period has deprived the plaintiff to enjoy the fruits of the said property. It is also pertinent to highlight here that after the death of defendant no.2 on 26.08.2011, who was allegedly running a Kindergarten school in the suit property, her LRs still perpetuated in the illegal occupation of the suit property which is evident from the admission of DW1 in question no.54 of his cross examination that his sister Ms. Radha Bansal continued to look after the school. There never was any offer to hand over the possession of the suit property to its rightful claimant who was the plaintiff. Thus, defendant no.2 without any iota of doubt, has to be saddled with the liability to pay damages/mesne profits to the plaintiff in respect of the suit property.
xlv. Having now dealt with the entitlement of the plaintiff to the grant of mesne profits in respect of the suit 56 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 property, the next step would be to assess the quantum and duration of the same. Though, Ld. Counsel for defendant no.2 argued that issue no.1 merely is to the extent of entitlement of the plaintiff to claim damages/mesne profits, without any whisper about its extent, however, the extent of mesne profits, its quantum and duration are implicit in the entitlement of the plaintiff to claim the same, and if the plaintiff is found entitled to the mesne profits, the next logical step would be to ascertain its quantum.
xlvi. On the aspect of mesne profits, Ld. Counsel for defendant further assailed the case of the plaintiff and took umbrage on the plaintiff invoking the methods of annual escalation of the property value and expected return on the land rates as the plaintiff had approached the court seeking damages from the defendant on the basis of rent of comparable leases. Ld. Counsel further emphasised that the deposition of PW1 in paragraph 5, 7, 8 and 10 is beyond the pleading and cannot be read in evidence.
xlvii. Ld. Counsel further urged that plaintiff has further failed to prove that she is entitled to the sum of Rs.50,000/- per month towards the damages/mesne profits as claimed in the plaint. Ld. Counsel further highlighted that the lease deeds filed by DW1 are Ex.DW1/3 and which show the prevalent rent in respect of the similarly situated properties and even better properties during the relevant time period i.e.1992-93 and thus judicial notice cannot be taken and judicial notice of 14% increase rent every year is not warranted. It was further 57 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 highlighted that the rate of rent of the suit property was Rs.1800/- per month and when the suit was filed in the year 1993, the tenancy was still subsisting and rent at that time was Rs.1800/- only which is also evident from the fact that plaintiff in the year 2022 made categorical statement before MCD that rent of the suit property has not increased from Rs.1800/- per month. It is further argued that annexure F has not been proved in accordance with law as the plaintiff in his examination in chief dated 27.02.2021 has not relied upon it and as such, the same cannot be taken into consideration. Further, it is pointed out on behalf of the defendant no.2 that the lease deeds sought to be placed in evidence pertain to commercial property and the suit property being residential in nature, lease deeds are of no assistance to the case of the plaintiff.
xlviii. All the legal systems which govern the civilized nation of the world agree upon the basic principle of natural justice to obtain reparation for wrongs or infringement of legal rights. In other ways, the law of nature gives primary right to a compensation for injuries. Mesne profit is one such right to compensation granted against injuria i.e breach of legal right. Mesne profit is a positive right available against infringement of private legal right. Main object of awarding mesne profit is to compensate the actual owner of the property for all the losses he/she suffered. In other words, the object of awarding of decree of mesne profit is to compensate a person who has been kept out of possession and deprived of enjoyment of his/her property even though he/she was entitled to possession of the property.
xlix. Mesne profits is defined under Section 2(12) CPC as 58 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 under:
"(12) "mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;"
l. From the analysis of the above stated definition, one can conclude that mesne profits are the profits which the person in unlawful possession actually earned or might have earned with the ordinary diligence.
li. In case titled as Nataraja Achari Vs. Blanbal Ammal, AIR 1980 Madras 2228, taking into the consideration the definition of mesne profit provided under Section 2(12) CPC, High Court observed that there are three different types of cases in which question of rights of profits areas (I) suit for ejectment or for recovery of possession of immovable property from a person in possession without title, together with a claim for past or past and future mesne profits. (2) Suits for partition by one or more tenants-in-common against others with a claim for account of past or past and future profits. (3) Suits for partition by a member of a joint Hindu family with a claim for an account from the manager. The court further observed that in the first case the possession of the defendant not being lawful, plaintiff is entitled to recover of mesne profits, being in the nature of damages. 59 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 lii. In the instant case as well, we are dealing with a situation where the defendant no.2, in contest to the suit sought to justify her possession over the suit property on the pretext of ownership being accrued to her by way of adverse possession being in occupation from 1977 till 1989, and when the present plaintiff became owner of the suit property and instituted the present suit to reclaim the possession from defendants, defendant no.2 persisted to retain the possession but eventually gave up the same in February 2020. It is obvious that defendant no.2 has miserably failed to prove her claim of ownership on the basis of adverse possession, and therefore, her possession right from the institution of the suit in the year 1993 till February 2020 when the possession was given up, is found to be unlawful, for which plaintiff is entitled to claim the mesne profits in the form of damages/compensation.
liii. As per the affidavit of PW1 Ex.PW1/A, the suit property is built on a free hold plot measuring 308 sq yard land with 2 1/4th storey residential house on it. Photographs of the same are Ex.PW1/2 and the layout plan of the suit property is Ex.P6. The suit property is stated to be situated in a prime area abutting a wide road, is well connected, is three sides open property, nearby park, market and even police station for security. In the suit property, admittedly a children play school was being run by the defendant. But as already noted, PW1 was only competent to furnish the lease deeds and mark them and at the most assist in computation, rest all deposition of his is on the basis of the knowledge obtained from the plaintiff as admitted by 60 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:51:09 +0530 him in his cross-examination. So, the description and the location of the suit property given by him in his affidavit cannot be read in evidence.
liv. Let us find out from pleadings and other admissible evidence the measurements of the suit property, location, its physical structure, existing at the time of institution of the suit. As per the plaint, the suit property is measuring 318 sq yards facing east and abutting on 60ft wide road, which is constructed to be 2 ¼ story in the form of residential house. Though, in the corresponding written statement, defendant no.2 had oppugned the identification and aforesaid structure of the suit property, however, that denial is without any specification. DW1 in his cross examination also acknowledged that Ex.PW1/2 and Ex.PW1/3 (colly) are the photographs of the suit property. Furthermore, DW1 in his affidavit Ex.DW1/A, in paragraph 19 has described the layout of the suit property as under:
"a. Ground Floor: Entrance Lobby (partly converted into a makeshift Principal Office) + Living Room + Kitchen + Single Bedroom + Toilet + Open garage (+ staircase leading to First Floor) b. First Floor : Staircase Corridor + Two bedrooms with attached toilets and balconies c. Barsati Floor : Store Room/Servant Room + Servant Toilet "
lv. DW1 has further stated in his affidavit that Mr. Pires had his residence on the entire ground floor (till when he died) 61 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date:
2023.10.09 15:51:16 +0530 excepting the principal office and kindergarten school operating in the two rooms on the first floor of the suit property. He further stated that post his demise, the kindergarten school began to operate from the ground floor of the suit property with first floor serving as music room and library. He further stated that in March 2006, Municipal Corporation of Delhi prohibited the use of the first floor for operating a Kindergarten School and only ground floor on designated roads can be used for operating the Kindergarten School and, therefore, since September 2006, ground floor was used for the purpose of Kindergarten School only till March 2018. Thus, the position in regard to the physical structure of the suit property, is clear that it measures 318 sq yards situated on 60ft wide road comprising of 2 ¼ story.
lvi. The controversy now boils down to as to what would be the rate of mesne profits which could be stated to be existing at the time of institution of the suit i.e. 10.11.1993 in respect of the suit property.
lvii. Ld. Senior counsel for the plaintiff pointed out the cross examination of DW1 in regard to the user of the suit property. DW1 was questioned as to during the period 10.11.1993 till 24.02.2020, his mother i.e. defendant no.2, he himself or any of his sisters (Neeta, Priti, Radha) ever resided in the suit property and if not, who was then residing, upon which he was unable to state whether his mother or any of his sisters ever resided in the suit property.
lviii. DW1 was also queried as to the period between Digitally signed by 62 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:51:25 +0530 11.11.1993 till 31.03.2001 was the school running in the suit property had any bank account to which he replied in affirmative. In regard to the collection of the fees, he also responded that all the fees and expenses would be recorded in the books of the bank account of school and credit and debit to the bank account would have been made as per the books of account. These books of accounts have not been produced on record on behalf of defendant no.2. Thus, it is to be presumed that defendant no.2 had not come clean on the profits received while being in wrongful possession of suit property.
lix. Moving further, as already noted above that on behalf of the plaintiff, the various lease deeds placed on record as comparables for quantifying mesne profits pertinent to the period 2013 onwards and as such there is no material on behalf of the plaintiff as to what was the rental/damages existing at the time of institution of the suit. PW1 also affirmed in his cross- examination that rent deeds placed on record were only from the year 2012-13 and not prior to that. In regard to a specific query as to when the lease deeds filed by PW1 pertain to 2013-14 onwards, would it be correct to say that there are no comparable rent deeds available for the year 1992-93 upon which PW1 responded that comparison can be made on the basis of 'base point' and thereby prevailing rent can be calculated. PW1 then referred to annexure G which was given Mark X to compare the prevailing rent in the year 1992 with the prevailing rent in the year 2013.
lx. Defendant no.2, on the other hand, through the
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deposition of DW1 has placed on record some lease deeds pertaining to the period between 1992-95 in the form of Mark A3 in his deposition, which have not been repudiated on behalf of the plaintiff.
lxi. Now let us examine the lease deeds Mark A3 relied upon by DW1 in his evidence. Paragraph 40 of his affidavit is laid herein below:
"I state that the Registered Leases (certified true copy) of Residential Properties, in an around the Suit Property, as leased out between 1992 to 1995, more particularly of the following properties are filed along with the present affidavit as Mark A-3. The Defendants have named the said leases in their list of witnesses as documents to be summoned from the office of Sub-Registrar concerned and proved as per law:
i. E 98 Greater Kailash 1, New Delhi dated 31 May 1992 ii. M 57 Greater Kailash 1, New Delhi dated 22 July 1992 iii. M 14 Greater Kailash 1, New Delhi dated 21 April 1993 iv. W 120 Greater Kailash 1, New Delhi dated 13 October 1993 v. E 116 Greater Kailash 1, New Delhi dated 20 June 1995"
lxii. Further, in paragraph 41, DW1 has claimed the plot 64 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:51:41 +0530 area of the aforesaid property to be 360 sq yards plus, although from none of the said lease agreements, the measurement of built up area and carpet area is made out. Nevertheless, on bone deep analysis of those lease agreements, it is noted that these agreements pertain to single floor of the property and the rent ranges from Rs.4500/- per month to Rs.10,000/- per month. The relevant details related to the said lease agreements are extracted herein below:
The first lease agreement dated 31.05.1992 is in respect of ground floor of property bearing No. E-98, Greater Kailash Part I, New Delhi and the rental is stated to be Rs.6000/- per month.
The second lease agreement dated 22.07.1992 is in respect of ground floor of property bearing No. M-57, Greater Kailash Part I, New Delhi and the rental is stated to be Rs.4500/- per month.
The third lease agreement dated 21.04.1992 is in respect of ground floor of property bearing No. M-14, Greater Kailash Part I, New Delhi and the rental is stated to be Rs.10000/- per month.
The fourth lease agreement dated 13.10.1993 is in respect of ground floor of property bearing No. W-
120, Greater Kailash Part I, New Delhi and the rental is stated to be Rs.10000/- per month.
The fifth lease agreement dated 20.06.1995 is in respect of ground floor of property bearing No. E-
65 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:51:49 +0530 116, Greater Kailash Part I, New Delhi and the rental is stated to be Rs.5000/- per month.
lxiii. It can be safely deduced from the aforesaid lease deeds that all the lease deeds pertain to only ground floor of a particular property. Furthermore, none of the properties is shown to be situated at R Block, Greater Kailash Part I, New Delhi as is the case with the suit property. It is not clear whether any of these properties was situated on 60ft wide road. Thus, these lease deeds cannot be considered as a complete yardstick to fix the quantum of mesne profits in respect of the suit property. Needless to say, the path to ascertain the mesne profits for the year 1993 i.e three decades ago, is not easy to tread on. But, in the form of these lease agreements, we are able to gather some inkling as to the existing rate of rent in Greater Kailash Part I, New Delhi area between the period 1992 to 1995 and, thus, some support can be drawn from it to arrive at a base figure of the rate of mesne profits which can be fixed at the time of institution of the suit. It is, however, to be kept in mind of these lease deeds pertain to only single floor whereas the suit property admittedly comprises of 2 ¼ floors and the rental would have to be counted and computed in accordance therewith.
lxiv. In so far as valuation of the suit property is concerned, PW1 has relied upon the report Ex.PW1/7 which was filed on behalf of defendantno.2 dated 28.03.1996 from an independent valuer Sh. T S Ratnam, Additional Director General, CPW Retired. The said report records the suit property to be situated in high class locality with excellent proximity to civic 66 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:51:56 +0530 amenities. It also records that the plinth of the suit property on the ground floor is 1653 sq ft, on first floor is 1655 sq ft and the second floor is 400 sq ft. The said report valued the suit property to be Rs.69.89 lacs in February 1992 and Rs.81.48 lacs in the year 1993.
lxv. Let us now see what methods PW1 has cited towards computation of mesne profits. As per the affidavit Ex.PW1/A, the three methods to compute the quantum of mesne profits are, the first method is of judicial notice based on various judgments laid down by High Court of Delhi; the second method is of exemplars or renting in the vicinity and the third method is of expected return on notified land rates.
lxvi. The admitted rate of rent of the suit property in the year 1971 was Rs.1800/- per month with effect from 01.10.1971. The mesne profits are to be quantified from the institution of the suit onwards till 24.02.2020 when the keys of the suit property were delivered to the plaintiff before High Court of Delhi.
lxvii. In so far as the aforenoted second method is concerned, PW1/plaintiff has relied upon various lease deeds Ex.PW2/1 to Ex.PW2/54 which were brought on record by PW1 and later on proved by PW2 Sh. Upender, Record Attendant, Office of Sub-Registrar-VA, Hauz Khas, Mehrauli, New Delhi. However, these exemplars pertain to the period from 2013 onwards and since we have to assess the mesne profits from the year 1993 onwards, these exemplars would be of little assistance. Though PW1 has sought to justify the reverse computation to 67 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:52:04 +0530 arrive at base figure of mesne profits in 1993 during his questioning on behalf of defendant no.2, but that involves too much of a guess work which is not feasible to adopt. We are now left with the aforesaid method first or third, either of which can be brought into picture to assess the quantum of mesne profits in the present suit along with the comparable lease deeds Mark A3 placed on behalf of defendant no.2.
lxviii. After having examined various case laws of the High Courts, it is found that in majority of the cases, the Supreme Court and High Courts, where the evidence is scant, have adopted the first method for calculating the mesne profits on the basis of 10-15% annual escalation in the rate of rent and interest thereof. I would now like to present some of those case laws and the relevant observations made therein:
(1) Pradeep Kumar Vs. Hazarilal, date of decision 22.02.2008, Supreme Court:
"4. We have considered the arguments advanced by the learned Counsel for the parties. In the first place, it must be borne in mind that only an interim order is under challenge before us and ordinarily no interference should be made in such a proceeding under Article 136 of the Constitution. On merits too, we are of the opinion that in the light of the valuation report by Rajendra Arya and the fact that the rent of the premises was fixed at Rs. 600/- per month almost 18 years ago, interim mesne profit at the rate of Rs. 4,000/- per
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2023.10.09 15:52:23 +0530 month cannot be said to be excessive. We also see from a bare reading of the record that the appellant has managed to delay the eviction proceedings for more than 15 years by resorting to tactics which are clearly unacceptable.
The submission of the learned Counsel for the appellant that though the appellant had indeed been transferred from Alwar, yet his wife and young son often used the premises, is again unacceptable. We find it difficult to believe that a mere Clerk, such as the appellant, would be able to justify the maintenance of two houses, one at Alwar and the other at his place of posting 400 kms. Away. "
Crux- In the aforesaid case, the Supreme Court had appreciated that where the rent of the premises at one point of time was fixed at Rs.600/- per month 18 years ago, interim mesne profits at the rate of Rs.4000/- per month cannot be said to be excessive. The court also found that the appellant in that case had managed to delay the eviction proceedings for more than 15 years by resorting to tactics which are clearly unacceptable.
2. United Bank of India Vs. Smt. Shakuntala Yadav, date of decision 04.01.2012, High Court of Delhi:
"3. The premises in question in the present case are ground floor and first floor of the premises bearing no. A-24, Tagore Marg, Kirti Nagar, Delhi.
69 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:52:38 +0530 The area of the tenanted premises is 2886 square feet.
4. Before the Trial Court, the respondent/landlord led evidence in the form of a lease deed executed between Bank of Baroda and its landlord with respect to a premises No. 9, LSC Kirti Nagar, Delhi, i.e. in around the same area where the tenanted premises are located. The tenanted premises as also the premises which were the subject matter of the lease deed of Bank of Baroda with its landlord, Ex.PW2/3 were thus both situated in the same Kirti Nagar Area. Whereas the premises of the respondent is on the main road, the premises taken by Bank of Baroda under the lease deed dated Ex.PW2/3 is admittedly not on the main road. Mesne profits in this case have to be calculated from 1.10.1997 to 31.12.2003 and therefore, for determining the mesne profits, what are the mesne profits which would be prevalent in around October, 1997 would be an issue. The lease deed Ex.PW2/3 is of the year 1995, i.e. about 2 years prior to the period commencing from which the mesne profits have to be calculated.
5. The Trial Court has noted that rents have fallen during the relevant period, and therefore, instead of granting Rs.43/- per square feet, mesne profits have 70 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:52:45 +0530 been granted at Rs.25/- per square feet. In every case of determination of mesne profits, some amount of honest guess work is always involved.
Obviously, there cannot be complete exactness of evidence led with respect to rate of rents/mesne profits, and the Courts have to make a best judgment assessment on the basis of the evidence which is led before it. I have already stated above that the suit premises are situated on the main road, and surely, premises on the main road have far higher rents than premises located in the interiors.
6. I therefore do not feel that the Trial Court has committed any illegality or perversity in granting mesne profits at Rs.25/- per square feet and therefore there is no ground for interference in this appeal so far as the awarding of the rate of mesne profits are concerned. In fact I find that the Trial Court has been more than liberal to the appellant/bank inasmuch as the rate of mesne profits should ordinarily undergo an increase each year, however, the rate of mesne profits which has been granted continues to be for a fixed amount for the entire period from 1.10.1997 to 31.12.2003, i.e. a period of about 6 years.
7. At this stage, it is however necessary to point 71 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:52:53 +0530 out a seeming illegality in the impugned judgment which allows interest at 9% per annum pendent lite and future till realization. I may note that the suit has been filed on 20th October, 1997 and therefore there would hardly be any mesne profits which would be payable with respect to the pre suit period. The mesne profits have only accumulated pendent lite and till 31.12.2003 when the premises were vacated.
Therefore it cannot be said that interest at 9% per annum can be granted on the total amount of the money decree on mesne profits from the date of filing of the suit.
Obviously, interest has to be calculated only from the end of the month for which the mesne profits became payable. Learned counsel for the respondent could not very seriously dispute this illegal position. I therefore clarify the impugned judgment by observing that when the Trial Court has granted interest at 9% per annum pendent lite and future, interest will only be calculated from the end of the month from which the mesne profits would be payable, and it will not be that interest will be paid from the date of filing of the suit on the total amount of mesne profits decreed. "
Crux- The premises in this case was ground floor and first floor of Kirti Nagar, Delhi and the area was 2866 sq ft. The mesne 72 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:53:01 +0530 profits were to be calculated from 01.10.1997 to 31.12.2003. The premises was found to be situated on the main road and it was held that premises on the main road have far higher rents than premises located in the interiors. The trial court granted fixed amount for the entire period but the High Court observed that rate of mesne profits should ordinarily undergo an increase each year. The High Court also upheld the interest of 9% per annum from the end of the month for which mesne profit became payable and also clarified that it will not be that interest will be paid from the date of filing of the suit on the total amount of mesne profits decreed.
3. Amresh Bajaj Vs. National Hydro Electric Power Corporation, date of decision 01.11.2017, Delhi High Court:
"10. In calculating the mesne profits/damages which are payable some amount of honest guess work is always required because evidence led by the parties even if accepted will only show rate of rent for a similar type of premises. Courts can however take judicial notice of increase of rent and this has been so held by this Court in the case of M/s. M.C. Agrawal HUF Vs. M/s. Sahara India and Ors. (2011) 183 DLT 105. Relevant para 8 of this judgment reads as under:- "8. What is now therefore to be determined is that what should be the mesne profits which should be awarded to the landlord in 73 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:53:09 +0530 the absence of any evidence having been led by the landlord with respect to the rents prevalent in the area. Though it has not been argued on behalf of the landlord, I would like to give benefit to landlord of various precedents of this Court and the Supreme Court which take judicial notice of increase of rent in the urban areas by applying the provisions of Sections 114 and 57 of the Evidence Act, 1872. In my opinion, considering that the premises are situated in one of the most centrally located commercial localities of Delhi, situated in Connaught Place, an increase of 15% every year should be awarded (and nothing has otherwise been shown to me for the increase to be lesser) during the period for which the tenants have over stayed in the tenanted premises. Putting it differently, for the first year of illegal occupation, the tenant will pay 15% increased rent over the contractual rent. For the second year of illegal occupation, 15% increase will be over the original contractual rent plus the additional 15%. It will be accordingly for all subsequent years of the illegal occupation till the premises were vacated on 3.4.2005. I rely upon and refer to a Division Bench judgment of this Court in the case of S. Kumar Vs. G.R. Kathpalia 1999 RLR 74 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:53:17 +0530 114, and in which case the Division Bench has given benefit to the landlord and has taken judicial notice of increase in rent, and has accordingly allowed mesne profits at a rate higher than the contractual rate of rent."
11. It is seen in the facts of the present case that the respondent/defendant has already given benefit to the appellant/plaintiff of enhanced rent/mesne profits by increasing the rent at 15% after three years, however, in terms of the ratio of the judgment in the case of M/s M.C. Aggrawal (supra), increase would have to be taken per year. In my opinion in the facts of this case increase be granted yearly with 10% increase every year and not 15% every year or three years as per lease deeds of respondent/defendant noting that inasmuch as both the parties have not given exact evidence for exact rate of rent in the same building where the suit premises are situated. I am specifically not granting 15% annually compounded increase in terms of M/s M.C. Aggrawal (supra) because even between the same parties as per the admitted lease deed the enhanced rental was at 15% increase every three years and even in the lease deed Ex.DW1/1 proved by the respondent/defendant the increase is at 15% every two years. Therefore the 75 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:53:25 +0530 mesne profits on an honest guess work and assessment from the evidence on record, would be taken at Rs.16,793/- per month from 15.7.1991 till the suit was filed on 4.10.1993 and thereafter from 15.7.1992 the rate of mesne profits would stand increased by 10% compounded annually till the respondent/defendant vacated the suit premises on 29.9.1995.
Respondent/defendant will also liable to pay interest at 6% per annum simple on the arrears of mesne profits unpaid i.e the interest will be payable for the net mesne profits which have not been paid to the appellant/plaintiff in terms of this judgment and for all amounts already paid by the respondent/defendant to the appellant/plaintiff, the respondent/defendant will be entitled to adjustment.
Putting it in other words the respondent/defendant will be liable to pay interest only on the differential amount which has not been paid towards mesne profits along with the simple interest at 6% per annum.
12. I may note that this Court has exercised powers under Order VII Rule 7 CPC for grant of pendente lite mesne profits and interest at 6% per annum simple inasmuch as though such reliefs were not claimed in the suit yet even if a relief is not specifically prayed for, but once the relief can be granted by the 76 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:53:33 +0530 court on the facts which have emerged on record, then a court in order to further equity and justice would, because of Order VII Rule 7 CPC, not hesitate to grant the relief simply because that relief is not specifically prayed."
Crux- The court had observed that the lease deeds relied upon by the parties could not be looked into to determine the rate of rent/mesne profits from January 1991. The court called for the calculation of the mesne profits on the basis of some honest guess work and also of taking of judicial notice of increase of rent by applying the provisions of Section 114 and 57 of Indian Evidence Act, 1872. The court also took note of the ratio of judgment in M C Aggarwal Vs. Sahara India, (2011) 183 DLT 105 and mentioned about the increase of 15% every year, but in the context of said case, the court granted 10% increase compounded annually, as there was a prior agreement of 15% increase every two years. The court also granted 6% simple interest rate.
4. Vinod Khanna and Others v. Bakshi Sachdev 59 (1995) DLT 89, High Court of Delhi:
"21) The learned Counsel for the appellants also urged before us that the learned Trial Court was not justified in taking a judicial notice of the fact of increase of rents like the suit property and also in providing Rs.10,000.00 per month as fair amount towards damages mesne profits in favor of the 77 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:53:41 +0530 plaintiffs. It is true that no substantial evidence has been led by the plaintiffs in respect of the increase of rent in the properties like that of the suit property.
However, it is a well known fact that the amount of rent for various properties in and around Delhi has been rising staggeringly and we cannot see why such judicial notice could not be taken of the fact about such increase of rents in the premises in and around Delhi which is a city of growing importance being the capital of the country which is a matter of public history. At this stage we may appropriately refer to the Court taking judicial notice of the increase of price of land rapidly in the urban areas in connection with the land acquisition matters. Even the Apex Court has taken judicial notice of the fact of universal escalation of rent and even raised rent of disputed premises by taking such judicial in case of D.C. Oswal v. V.K. Subbiah;
22) In that view of the matter we have no hesitation in our mind in holding that the Trial Court did not commit any illegality in taking judicial notice of the fact of increase of rents and determining the compensation in respect of the suit premises at Rs.
10,000.00 per month w.e.f.
19.1.1989, in view of the 78 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 fact that the rent fixed for the said premises was at Rs. 6,000.00 per month as far back as in the year 1974. We may, however, note here that the learned Counsel for the appellants did not seriously challenge the findings of the learned Judge that Rs. 10,000.00 per month would be the fair market rent of the suit premises. Accordingly, in view of the aforesaid findings arrived at by us the submissions of the learned Counsel for the appellants in our view have no substance at all."
Crux - The Court took note of the rising rate of rent in Delhi around 1990's and upheld the order of Trial Court where it fixed the rate of monthly rent in respect of the property as Rs. 10,000 per month in 1989 when the admitted rate of rent in 1974 was Rs 6,000 per month.
5. Chander Kirti Ranji Tandon Vs. M/s VXL Lodging N Boarding, date of decision 31.01.2013, High Court of Delhi:
"19. Placing reliance on the very same judgment in the case of D.C. Oswal (supra), a Division Bench had observed in the case of Vinod Khanna (supra), that the trial court had not committed any illegality in taking judicial notice of increase of rents and proceeded to determine the compensation accordingly.
The observations of the Division Bench in this context are apposite and are 79 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 reproduced hereinbelow:-
"21. The learned Counsel for the appellants also urged before us that the learned Trial Court was not justified in taking a judicial notice of the fact of increase of rents like the suit property and also in providing 10,000/- per month as fair amount towards damages/mesne profits in favor of the plaintiffs. It is true that no substantial evidence has been led by the plaintiffs in respect of the increase of rent in the properties like that of the suit property.
However, it is a well known fact that the amount of rent for various properties in and around Delhi has been rising staggeringly and we cannot see why such judicial notice could not be taken of the fact about such increase of rents in the premises in and around Delhi which is a city of growing importance being the capital of the country which is a matter of public history. At this stage we may appropriately refer to the Court taking judicial notice of the increase of price of land rapidly in the urban areas in connection with the land acquisition matters. Even the Apex Court has taken judicial notice of the fact of universal escalation of rent and even raised rent of disputed premises by taking such judicial in case of D.C. Oswal v. V.K. Subbiah reported in AIR 80 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 1992 SC 184;
22. In that view of the matter we have no hesitation in our mind in holding that the Trial Court did not commit any illegality in taking judicial notice of the fact of increase of rents and determining the compensation in respect of the suit premises at `10,000/- per month w.e.f. 19.1.1989, in view of the fact that the rent fixed for the said premises was at `6,000/- per month as far back as in the year 1974. We may, however, note here that the learned Counsel for the appellants did not seriously challenge the findings of the learned Judge that `10,000/- per month would be the fair market rent of the suit premises. Accordingly, in view of the aforesaid findings arrived at by us the submissions of the learned Counsel for the appellants in our view have no substance at all."
......
21. The essence of the aforesaid decisions of the Supreme Court and this Court is that judicial notice of the increase of rents in urban areas can be taken note of by courts by applying the provisions of Sections 57 and 114 of the Evidence Act, 1872 and while calculating the mesne profits, certain amount of guess work by the court, is inevitable and acceptable.
22. In the present case, considering the fact that the 81 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 demised premises is situated in one of the prime residential localities in Delhi, i.e., Greater Kailash-
I, this Court is of the opinion that it would be just, fit and proper if an increase of 15% per annum over and above the contractual rent be awarded to the plaintiff for the first year commencing w.e.f.
01.10.2011 till 30.09.2012.
For the second year of illegal occupation, i.e., w.e.f. 01.10.2012 onwards, the defendant is held liable to pay an increase of 15% per annum, over and above the original contractual rent plus an additional 15% rent that has been found to be payable for the first year.
Same would remain the standard of calculating mesne profits for the subsequent period, till the demised premises is vacated by the defendant and possession handed over to the plaintiff.
23. As regards the claim of interest, the plaintiff has sought payment of interest calculated @ 18 % per annum on the awarded amount. However, given the facts and circumstances of the present case, the Court is not inclined to award interest at the rate as claimed by the plaintiff.
Instead, it is deemed appropriate to award simple interest @ 10 % per annum on the aforesaid amount for the period of default/delay in making payment of rent/occupation charges, till realization. The 82 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 said interest shall be calculated on the outstanding rent on a monthly basis, reckoned at the end of each month. The plaintiff is also held entitled to recover the electricity and water charges payable in respect of the tenanted premises.
Besides the above, the defendant is held liable to issue TDS certificates to the plaintiff for the amounts deducted by it from the rent paid to the plaintiff or in the alternate, pay to her amounts so deducted if not deposited with the Income Tax Department. "
Crux- The premises in this case was first and second floor of the residential premises in Greater Kailash I area. The court concluded that since the demised premises was situated in one of the prime residential locality in Delhi i.e. Greater Kailash I, it would be just and proper if an increase of 15% per annum over and above the contractual rate be awarded along with simple interest @10% per annum to be calculated on the monthly basis.
6. Balwant Singh Dhamrait and Ors Vs. State Bank of India, date of decision 20.10.2022, Delhi High Court "33. At this stage, it is deemed appropriate to refer to the term mesne profits as defined in Section 2 (12) of the Code of Civil Procedure, 1908 (CPC):
"2(12) "mesne profits" of property means those profits which the person in wrongful possession of
83 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;"
34. The Supreme Court in the judgment of Lucy Kochuvareed v. P. Mariappa Gounder & Ors., (1979) 3 SCC 150, has discussed the principles with regard to awarding mesne profits. The relevant observations are set out below:
"25. Mesne profits being in the nature of damages, no invariable rule governing their award and assessment in every Signature Not Verified case, can be laid down and "the Court may mould to the justice of the case". Even so, one broad basic principle governing the liability for mesne profits is discernible from Section 2(12) of the CPC which defines 'mesne profits' to mean "those profits which the person in wrongful possession of property actually received or might with ordinary diligence have received therefrom together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession". From a plain reading of this definition, it is clear that wrongful possession of the defendant is the very essence of a
84 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 claim for mesne profits and the very foundation of the defendant's liability therefore. As a rule, therefore, liability to pay mesne profits goes with actual possession of the land. That is to say, generally, the person in wrongful possession and enjoyment of the immovable property is liable for mesne profits."
35. Similarly, the Division Bench of this Court in Phiraya Lal Alias Piara Lal & Anr. v. Jia Rani & Anr., AIR 1973 Del 186, has observed as under:
"14. The claim in the suit by Jia Rani against the appellants was firstly for possession and secondly for damage's for use and occupation of the site in suit wrongfully by the defendants appellants.
When damages are claimed in respect of wrongful occupation of immovable property on the basis of the loss caused by the wrongful possession of the trespasser to the person entitled to the possession of the immovable property, these damages are called "mesne profits". The measure of mesne profits according to the definition in section 2(12) of the Code of Civil Procedure is "those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from, together with interest on such profits". It is to be 85 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 noted that though mesne profits are awarded because the rightful claimant is excluded from possession of immovable property by a trespasser, it is not what the original claimant loses by such exclusion but what the person in wrongful possession gets or ought to have got out of the property which is the measure of calculation of the mesne profits. (Rattan Lal v.
Girdhari Lal, Air 1972 Delhi 11). This basis of damages for use and occupation of immovable property which are equivalent to mesne profits is different from that of damages for tort or breach of contract unconnected with possession of immovable property.
Section 2(12) and Order XX Rule 12 of the Code of Civil Procedure apply only to the claims in respect of mesne profits but not to claims for damages not connected with wrongful occupation of immovable property."
36. In various judgments with regard to determination of mesne profits/damages, this Court has held that in residential and commercial areas in prime and centrally located locations, an enhancement of stated rent @ 15% every year would be justified.
Reliance in this regard is placed on the judgments of this court in Sneh Vaish & Anr. v. State Bank of Patiala, 182 (2012) DLT 153; M.C. Agrawal and 86 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Ors. v. Sahara India and Ors., 183 (2011) DLT 105 and; Indian Tourism Development Corporation v. Anil Kumar Khanna, MANU/DE/0935/2016
37. In Chander Kirti Rani Tamdon v. VXL Lodging N. Boarding Services Pvt.
Ltd., 197 (2013) DLT 266, a Co-ordinate Bench of this Court relying upon the earlier judgments has observed that while calculating mesne profits, certain amount of guess work by the Court is inevitable and acceptable.
Further, the judicial notice of increase of rents in urban areas can be taken note of by the Courts by applying provisions of Section 57 and 114 of the Indian Evidence Act, 1872.
Applying the aforesaid principles, 15% enhancement over the original lease rent was ordered as mesne profits.
The relevant observations are set out below:
"21. The essence of the aforesaid decisions of the Supreme Court and this Court is that judicial notice of the increase of rents in urban areas can be taken note of by courts by applying the provisions of Sections 57 and 114 of the Evidence Act, 1872 and while calculating the mesne profits, certain amount of guess work by the court, is inevitable and acceptable.
22. In the present case, considering the fact that the demised premises is situated in one of the prime 87 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 residential localities in Delhi, i.e., Greater Kailash- I, this Court is of the opinion that it would be just, fit and proper if an increase of 15% per annum over and above the contractual rent be awarded to the plaintiff for the first year commencing w.e.f.
01.10.2011 till 30.09.2012.
For the second year of illegal occupation, i.e., w.e.f. 01.10.2012 onwards, the defendant is held liable to pay an increase of 15% per annum, over and above the original contractual rent plus an additional 15% rent that has been found to be payable for the first year.
Same would remain the standard of calculating mesne profits for the subsequent period, till the demised premises is vacated by the defendant and possession handed over to the plaintiff."
.........
40. Applying the same principle of enhancement of rent at the rate of 25% after a period of 5 years, the plaintiffs would be entitled to mesne profits at the rate of 25% over the last paid rent for the period of 13th November, 2013 to 12th November, 2014.
Further, following the principles laid down by this Court in the aforenoted judgments, the plaintiffs would be further entitled to enhancement in mesne profits by 15% every year on the aforesaid amount. "
88 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Crux- Where the property is commercial in nature or the residential property is located in prime location, the court found the plaintiff entitled to enhancement in mesne profits by 15% every year along with simple interest @10% of the succeeding months for which the payment fell due.
7. In S. Kumar v. G.R Kathpalia and another, 14 th August, Delhi High Court:
"4. Lastly, the learned Counsel for the appellant vehemently argued that the judgment of the learned Addl. District Judge cannot be sustained in so far as it has fixed damages @ Rs.
50,000/- per month. It is submitted that in the plaint the plaintiff had claimed damages @ 'Rs. 10,000/- per month and, therefore, the Trial Court could not go beyond the said figure while fixing the amount of damages/ mesne profits. It is true that in the plaint the plaintiff claimed damages @ Rs. 10,000/- per month upto the date of filing of the suit. However, it is to be noted that the plaintiff has further prayed that till such time that the possession of the suit premises is delivered to the plaintiff, the Court may hold an inquiry under Order 20, Rule 12, CPC and determine the mesne profits/damages and decree in respect thereof may also be passed. The plaintiff has also undertaken to pay the requisite Court fee on such a decree. The Trial Court 89 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 has considered the evidence in this behalf and reached a conclusion that the damages/mesne profits for the premises at the relevant time ought to have been @ Rs. 50,000/- per month. It is a premises built on a 500 sy. yds. plot in East of Kailash, New Delhi and the period under consideration is the year 1994. The learned Counsel for the respondent submitted on this aspect of the matter that the amount of mesne profits/damages may be fixed by this Court as it may be deemed proper and the decree of the Trial Court in this behalf could be modified. We have heard learned Counsel for the parties on this aspect and considered the evidence adduced.
Respondent/landlord has not led any documentary evidence of the prevalent market rent of other premises in the vicinity. However, keeping in mind the prime location of suit premises, its proximity to Community Centre and commercial activity, we are of the view that a sum of Rs. 25,000/- per month would be a just and fair amount by way of damages/mesne profits from the date of institution of the suit till the delivery of the possession of the premises. The decree of the Trial Court will stand modified to this extent. The respondent will pay the balance requisite Court fee on this part of the decree 90 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:54:18 +0530 and the requisite Court fee stamps will be deposited in the Trial Court within four weeks from today."
Crux- The Trial Court reached a conclusion of Rs 50,000 per month as mesne profits, but the High Court reduced it to Rs 25,000 per month considering that property was 500 sq yds in prime location of East of Kailash Delhi, in the year 1994, it could command the rent of Rs 25,000 per month.
8. In M/s Ashoka Promoters Pvt. Ltd. v. Captain Virender and another, High Court of Delhi, 29 November, 2012.
"There is always involved some amount of reasonable guess works in the exercise of computation of mesne profits inasmuch as rent of exactly similar premises cannot be calculated to the last square feet and to the last rupee. In the facts of the present case there is no lease deed of the year 1996, from when I have to start calculation of mesne profits. Considering all the above documents which have been filed on behalf of both the parties, and considering the fact that the plaintiff itself has prayed for rent from 1996 to 1999 at Rs.32/- per sq.ft. per month and from 1.11.1999 to 30.4.2000 at Rs.50/- per sq.ft. per month, and since the rate of rents proved by the different lease deeds (of course for a different period) varies from Rs.18.32/- per sq.ft.(only 91 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:54:27 +0530 for basement) to Rs.60/-
per sq.ft (for the ground floor), I am of the opinion that the rate of rent for the purpose of grant of mesne profits should be fixed at Rs.30/- per sq.ft. per month for the leased premises of 14,010 sq.ft. with effect from 1.11.1996. I am fixing this rate by factoring in various aspects including the aspects of the lease deeds filed and proved on record being of different years than 1996, the lease deeds being only of the ground floor or basement, since not being of the same neighbourhood and so on. I also note that the suit premises comprise of basement, ground floor, mezzanine, first floor, second floor and third floor.
9. Since the premises were let out for non-residential purposes of an office, in terms of my judgment in the case of M.C. Agrawal (HUF) vs. Sahara India Pvt.
Ltd. 183 (2011) DLT 105 I grant 15% cumulative yearly increase every twelve months from 1.5.1998 till the premises were vacated on 11.11.2004.
10. The plaintiff will also be entitled to interest at the rate of 9% per annum simple on the arrears of mesne profits i.e. on the arrears remaining after giving adjustment for any amount which would have been paid by the defendant no.3 to the plaintiff during the relevant period 92 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:54:35 +0530 thereafter. Interest on the arrears of mesne profits are granted in terms of the judgment of the Supreme Court in the case of Indian Oil Corporation vs. Saroj Baweja 2005(12) SCC
298."
Crux- The Court observed that rent of even similarly situated property cannot be calculated on the basis of last square feet and to the last rupee. The Court also gave 15 percent escalation annually given the property to be commercial with 9 percent simple interest.
9. In Punjab National Bank v. Delhi Properties, 10 January, 2011, Delhi High Court, wherein it was concluded that when the rate in the year 1980 was Rs. 10,952 then surely after 10 years the plaintiff was justified in claiming rent of Rs. 41,070 per month.
lxix. The exposition of the aforenoted case laws is that in case there is no or sketchy evidence produced on record to establish the rate for the period for which the mesne profits are being claimed, the court has to brought in some honest guess work and fix the base price for the year from which the mesne profits are being claimed. In the case in hand as we have already noted that there is no evidence from the side of the plaintiff as to what was the rate of rent in respect of the suit property in the year 1992 when the plaintiff purchased the suit property, while defendant no.2 was already in occupation thereto. Though, PW1 has given a computation in various annexures wherein the 93 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:54:44 +0530 admitted rate of rent of Rs.1800/- per month in the year 1971 has been taken to be the base price over which 14% annual escalation has been given till the year 1992, however, I am not inclined to accept the same. I shall also furnish my reasons to rebuff the computation done on behalf of the plaintiff in the affidavit of the PW1. But before I venture into that, some part of questioning and response of PW1 in relation to computation of mesne profits are extracted herein below.
lxx. PW1 affirmed in his cross-examination that rent deeds placed on record were only from the year 2012-13 and not prior to that. He also acknowledged that at least 10 properties of which the certified copies of the lease agreements have been filed are the properties in the main Greater Kailash Part I, M Block Market pertain to the commercial properties. He also fessed up during further questioning that some of the other leases filed by him of Greater Kailash Part I, B Block, main road properties have been in use for approved commercial purpose and the same has been the situation with some of the other leases pertaining to Greater Kailash Part I, M Block. PW1 also acknowledged that 35 properties of which the lease deeds have been filed are retail shops and rest of them are either banks or guest house. In regard to a specific query as to when the lease deeds filed by PW1 pertain to 2013-14 onwards, would it be correct to say that there are no comparable rent deeds available for the year 1992-93 upon which PW1 responded that comparison can be made on the basis of 'base point' and thereby prevailing rent can be calculated. PW1 then referred to annexure G which was given Mark X to compare the prevailing rent in the year 1992 with the prevailing 94 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:54:57 +0530 rent in the year 2013.
lxxi. Upon further questioning from PW1 as to his qualification and competency for carrying out mesne profits computation for the suit property, he responded that mesne profits were calculated by him on the basis of his own search and with the help of his well wishers.
lxxii. Further cross-examination of PW1 on the aspect of computation of mesne profits is reproduced below:
"Q-2 You have clarified that the computation is correct, please clarify the method adopted?
Ans I have deposed three methods for computation of mesne profits, one on the prevailing rent basis, second on the basis of Delhi Government notification concerning land circle rates and third by way of placing certified copies of Lease Deeds of the properties, situated around suit property.
Q-3 Is it fair to say that the Suit property was acquired/purchased by Plaintiff in 1992-93?
Ans I may not deny, it is matter of record.
Q-4 Please clarify that the rent prior to the purchase of this property by Plaintiff, its rent was Rs 1800 per month, what you have to say?
Ans It is a matter of record.
Q-5 Is it correct that the rental per month you assumed in your calculation of mesne profit 95 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:55:14 +0530 under the method of annual escalation of rent would be Rs 28,000 per month in the year 1992?
Ans It is true and correct.
Q-6 Could you explain the computation carried by you under the method of annual escalation of rent?
Ans The method was to take Rs 1800 per month multiplied by 12 which comes to around Rs.21,600, and annual escalation @14% on this amount of Rs.21,600, was calculated for computation of mesne profit.
Q-7 Which year was taken as a base for taking rent @ Rs.1800 per month for calculation of mesne profit on annual escalation?
Ans The base year was taken as 1972-73.
Q-8 Are you aware of any Rent Agreement concerning Suit property for the year 1971-77 showing the rent @ Rs.1800 per month ?
Ans No I am not aware, but in the Suit its somewhere appeared that rent of the Suit property was Rs. 1800 per month during that stated period.
......
Q-21 Can you explain the rationale of adopting 12% increase per annum while adopting the land rate method for calculation of mesne profit?
Ans That rationale was as a consequence of discussions made with persons when this calculation was taken up and those persons were close associates, but I do 96 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:55:23 +0530 not want give those names.
......
Q-25 Please look at your document Annexure G at page 26 and explain the computation of rent per square foot, how it was arrived?
Ans I would say like an average rent of property in the year 2013 as shown in Annexure G is Rs. 166 per square foot and this figure Rs. 166 was arrived while taking an average of all the rent Deeds of that year filed in this case and while calculating this average, area of properties was also taken into consideration and final calculation was arrived with the help of excel software."
lxxiii. Now I canvass the reasons for not accepting the computation given by PW1. The first reason is that PW1, being the special power of attorney holder of the plaintiff, was permitted only to mark the documents and the lease deeds as exemplars for fixing the mesne profits. In the absence of PW1 having any personal knowledge of the acts/transactions in relation to the suit property, its description and location, its rental in 1971, his testimony in the affidavit Ex.PW1/A to this effect is disregarded. The second reason is that the plaintiff has arrived at a figure of Rs 3,85,798 per annum as per Annexure F as mesne profits for the year 1993 on the basis of annual escalation of 14% per annum since the year 1971 when the rental was Rs.1800/- per month, however, it is an admitted case of the plaintiff that till 1977, the rental in respect of the suit property remained Rs.1800/- per month and at that time, the suit property was also 97 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:55:30 +0530 protected under the DRC Act wherein a procedure has been prescribed for claiming enhancement in the rentals of a particular property, therefore, the court cannot countenance the annual escalation of 14% per annum from 1971 onwards when in the lease deed executed by the colonel in favor of Pires School till 1977 did not provide so. The third reason is that from 1977 onwards till 1993, the plaintiff has failed to produce on record any comparables which could facilitate the court to arrive at a particular figure in respect of the mesne profits starting from the year 1993. Rather from 1993 till 2013 also, there is no material on behalf of the plaintiff which could convince the court in accepting the computation placed on record by PW1.
lxxiv. There is another reason for ignoring the exemplars lease deeds, which would become lucid post comparison of the below mentioned chart:
Exhibit Area Address Lessee
Ex.PW2/1 4660 sq ft B-54A HDFC Bank Ltd
Ex.PW2/2 500 sq yards R-53 M/s Onara Hospitality
Ex.PW2/3 20 sq mt shop R-45 Giant Design Works
Ex.PW2/4 Second floor 2000 M-32 Kanika Kapur (commercial
sq ft usage)
Ex.PW2/5 Basement 400 sq ft E-84 KRV Health care
Ex.PW2/6 Ground floor 250 C-44 M/s Scolita Play School
sq ft
Ex.PW2/7 20 sq mt shop R-45 M/s Devani
Ex.PW2/8 20 sq mt shop R-45 M/s Fezert Solution
Ex.PW2/9 200 sq ft rooms M-2 Mahak Malik (commercial)
Ex.PW2/10 800 sq ft M-26 Second VRSA Beverages
floor (commercial)
Ex.PW2/11 215 sq ft S-5 M/s Pacific Envitosystems
Ex.PW2/12 20 sq mt shop C-44 M/s Modi Beauty Products
98 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:55:38 +0530 Ex.PW2/13 100 sq ft shop M-28E M/s Ignia Hospitality Ex.PW2/14 Ground floor shop C-32 Vinayak Enterprises 200 sq ft Ex.PW2/15 20 sq mt shop R-45 Rajbinder Kaur Ex.PW2/16 2471 sq ft plot F-47 HSBC Bank Ex.PW2/17 Shop 20 sq mt B-24 M/s Gasfrom.. Ex.PW2/18 1750 sq ft M-18 First M/s GPA Hospitality Floor Ex.PW2/19 500 sq ft shop M-47 M/s Chique Clothing Ex.PW2/20 20 sq mt shop M-2 M/s Navech Enterprises Ex.PW2/21 215 sq ft S-5 M/s Cocoberry..
(commercial) Ex.PW2/22 500 sq yard E-16 Parhit Diagnostic Pvt ltd and Ors Ex.PW2/23 200 sq ft R-45 Euronet World Wide Ex.PW2/24 500 sq yards C-48A Strengthening India Pvt Ltd Ex.PW2/25 shop M-2 M/s Kavi's Bakery Ex.PW2/26 215 sq ft S-5 Crcoberry Restaurant Ex.PW2/27 1054 sq ft B-70 Aumex Healthcare and commercial Reserch Center LLP Ex.PW2/28 Shop 200 sq ft C-44 Press 2 Dry cleaning and Laundry Pvt Ltd Ex.PW2/29 Basement and C-50 The seedlings ground floor 2014 sq ft Ex.PW2/30 Shop 20 sq mt S-5 Naresh Exports Pvt Ltd Ex.PW2/31 Shop 20 sq mt C-44 Fezert Solution Private Limited Ex.PW2/32 800 sq ft M-40 KPS Hospitality Ex.PW2/33 20 sq mt B-24 M/s Dadaji Retail Ex.PW2/34 Shop 19.98 sq mt M-2 Arvinder Pal Singh Thukral Ex.PW2/35 750 sq ft M-41 Arven Marketing Solution Ex.PW2/36 200 sq ft R-45 M/s Vandana Pharmacy Greater Kailash Ex.PW2/37 4500 sq ft S-63 Sanghi Medical Centre Pvt Ltd Ex.PW2/38 Basement 1500 sq M-54 Chivas Lifestyle In ft Ex.PW2/39 Ground floor, C-10 The Jammu and Kashmir 99 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:55:46 +0530 1488.04 sq ft and Bank Ltd basement floor 993.4 sq ft Ex.PW2/40 500 sq yards C-2 Daffodils INN Ex.PW2/41 Part of basement E-84 Skin Balance The Partner Dr Lalit Kant Batra Ex.PW2/42 360 sq ft M-28A Amit Aggarwal and Mayanka Aggarwal Ex.PW2/43 Shop 20 sq mt M-8 Master Clean Ex.PW2/44 200 sq ft S-21 Crudo Juicery Pvt Ltd Ex.PW2/45 1998 sq mt room M-2 Andblooms Ex.PW2/46 6000 sq ft B-68 Standard Chartered Bank Ex.PW2/47 900 sq ft N-20 Axix Bank Ltd Ex.PW2/48 190 sq ft S-21 Krishnayan Promotoers Pvt Ltd Ex.PW2/49 200 sq ft R-241 Kumud Kukreja Ex.PW2/50 3550 sq ft W-57 M/s Nevi Enterprises Pvt Ltd Ex.PW2/51 100 sq ft shop M-28 Sanjay Kumar Pal Ex.PW2/52 Not clear, whether W-53 Universal Legal the entire third floor or 196 sq ft Ex.PW2/53 20 sq mt M-2 ground Good to go foodworks pvt floor ltd Ex.PW2/54 20 sq mt Ground floor Dev Hospitality S-13 lxxv. As we have seen above that there is hardly any lease deed which can be said to be similarly placed as the suit property except Ex.PW2/16, which is close on the parameter of measurement being 2471 sqft. The words 'similarly placed' encompasses within its ambit similar or nearly similar in area, location, age of property, availability of amenities. The lease deeds mainly pertain to the shops/commercial properties situated primarily in commercial areas whereas in the case in hand, the suit property is admittedly a residential property, though, 100 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:55:55 +0530 defendant no.2 had been running a kindergarten school which can be equated with a commercial activity. But rentals in respect of commercial shops cannot be equated with the rentals in respect of the residential areas, and therefore, all those lease deeds are of little to no assistance to the plaintiff. The court is, thus, left with no option but to take the judicial notice for fixing the mesne profits in respect of the suit property from the date of the institution of the suit in November 1993 till February 2020 when the suit property was handed over to the plaintiff.
lxxvi. After meditating over the entire material available on record in the form of an admitted position that in the year 1971, the admitted rate of rent was Rs.1800/- per month or 0.62 per sq feet considering the size of suit property to be 2862 sq ft, for the entire suit property and the same rent was carried forward till 1977 when the lease was extended by the colonel in favor of the Pires School and also considering the rate of rentals found to be existing between 1992 to 95 as per the lease deeds Mark A3, some guess work has to be brought into to fix the quantum of the mesne profits found to be appropriate in respect of the suit property at the time of institution of the suit. If we take average of the rentals as per the lease agreements Mark A3 and honest guess work, the same comes out to be around Rs.8000/- per month for each floor and since the suit property comprises of 2 ¼ floors, I am of the opinion that Rs.18000/-, which comes to Rs 6.28 per sq ft, can be fixed as the base rate for calculating the mesne profits in respect of the suit property from the date of the institution of the suit. In 22 years from 1971, when the rate per sq ft. was agreed to be 0.6 per sq ft., this much appreciation can be 101 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:56:03 +0530 said to be reasonable.
lxxvii. Having arrived at a base figure of Rs 18,000 per month from the month of November, 1993, the next task is to compute the total quantum of mesne profits till 24.02.2020 when the suit property was handed over to the plaintiff. It certainly is a cumbersome and tedious task to assess the mesne profits as there are number of factors which would govern the annual escalation i.e the age of the property, location, overall quality of construction, the wear and tear suffered by the property, the repair and renovation work carried out etc. There is no material to assess on these parameters as to what was the state of the suit property between the year 1971 to 1993. Rather from 1992 onwards till the time of handing over the possession of the suit property in the year 2020 also, there is no enough material to assess the quantum of mesne profits keeping the aforesaid parameters in mind. Though DW1 sought to put forth that all these years plaintiff has not spent any amount towards the upkeep of suit property and it is the defendant no.2 who had spent from her own pocket, but this contention is worth repelling here as it was defendant no. 2 who kept on holding on to the suit property on the pretext of being its owner. She ought to have surrendered the property as soon as the suit was filed. Having failed to do so, she cannot be heard to complain about spending on the maintenance of the suit property. Thus, the court has to resort to honest guess work to quantify the mesne profits and for this, the aforementioned case laws and its crux are being referred to.
102 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:56:12 +0530 lxxviii. On the aspect of annual escalation, Ld. counsel for defendant no.2 argued with much alacrity that 15% annual increase is not considered by the court for the residential property and therefore the judgment in M C Aggarwal is not applicable to the suit property which is residential premises. Ld. counsel for defendant no.2 in this regard, relied upon the judgments i.e. (I) M/s Marudhar Services Ltd and Anr Vs. Ved Prakash and Anr, 2012 SCC OnLine Del 2587 and (II) Hindustan Paper Corporation Vs. Kanta Manocha, 2013 SCC Online Del 4232 lxxix. Further, as exemplars on the measurement of damages/mesne profits, Ld. counsel for defendant no.2 has relied upon the following judgments:
A. Martin and Harris Private Limited Vs. Rajendra Mehta, (2022) 8 SCC 527 B. Atma Ram Properties Pvt Ltd Vs. Federal Motors Pvt Ltd, 2005 1 SCC 705 C. State of Maharashtra and Another Vs. Super Max International Private Limited and Ors, (2009) 9 SCC 772 D. Virender Kumar and Another Vs. Meena Verma and Another, (2017) RCR 337 E. Alka Sachdev Vs Neeraj Gupta and Ors, (2022) 1 RCR 444 F. V C Jain Vs. Radha Kishan Poddar, (2022) 1 RCR 9 lxxx. Ld. Senior Counsel for the Plaintiff, on the contrary, laid emphasis on the following judgments towards his claim of mesne profits, some of which we have already noted above.
A. Roshan Lal Vegetable Products (P) Ltd Vs. Param 103 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:56:20 +0530 International, (2011) ILR 2 Delhi350 B. Connaught Plaza Restaurants Pvt Ltd Vs. Niamat Kaur, 2013 (3) ARBLR 19 (Delhi) C. D C Oswal Vs. V K Subbiah, AIR 1992 SC 184 D. State Bank of India Vs. H C Takyar, Decided on 13.02.2012, RFA No. 6/2004, High Court of Delhi E. M R Sahni Vs. Doris Randhawa, AIR 2008 Delhi 110 F. Vinod Khanna Vs. Bakshi Sachdev, AIR 1996 Delhi 32 G. Anant Raj Agencies Properties Vs. State Bank of Patiala, 2002 (4) AD (Del) 733 H. Sneh Vaish Vs. State Bank of Patiala, 2012 (8) AD (Del) 188 I. Sardar Pal Singh Vs. Kalu Ram Sisodia, RFA No. 183/2012, decided on 23.04.2012, High Court of Delhi lxxxi. In so far as annual escalation is concerned, we have already seen in most of the judgments noted herein above that the courts have been inclined to grant 10-15% annual escalation in the rate of rent for every consecutive year for which the property is retained in unlawful possession by the tenant/trespasser. In order to bolster this principle of annual escalation, I reiterate the judgment of High Court of Delhi in Chander Kirti Ranji Tandon Vs. M/s VXL Lodging N Boarding, date of decision 31.01.2013 in which case the Hon'ble Judge dealt with a suit in respect of the first and second floor of the residential premises in Greater Kailash Part I, New Delhi and in respect of the mesne profits, the crux of which is produced again herein under:
Crux- The premises in this case was first and second floor of the 104 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:56:29 +0530 residential premises in Greater Kailash I area. The court concluded that since the demised premises was situated in one of the prime residential locality in Delhi i.e. Greater Kailash I, it would be just and proper if an increase of 15% per annum over and above the contractual rate be awarded along with simple interest @10% per annum to be calculated on the monthly basis.
lxxxii. Also, in Anil Kumar Khanna Vs. Indian Tourism Development Corporation, July 17, 2015, Delhi High Court, held as under:
"69. In my opinion, in the light of the above position there is no merit in the contentions of the defendant. The question of fixing the mesne profits @ Rs.345/- per month as sought to be argued is a completely misplaced argument and has to be rejected outright. The suit property is three side open premises on the ground floor abutting on the common corridor in Connaught Place, New Delhi i.e. a prime and prestigious commercial hub of Delhi. The submission of the learned senior counsel for the defendant cannot be accepted.
Reference may be had to the judgment of this Court in the case of Roshan Lal Vegetable Products Pvt.Ltd.
vs. Param International and Anr.(2011) ILR 2Delhi 350 this Court in paragraphs 11 and 12 held as follows:-
"11. From these decisions, 105 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:56:38 +0530 it is clear that for assessing mesne profits, judicial notice can be taken of the prevailing rents and that an element of guess work is always involved.
12. Once some evidence has been adduced by the Plaintiff as to the prevailing rate and judicial notice taken as supplementing that, the burden shifts to the Defendant to establish his version as to the prevailing rents, or the rent at which similar premises were being leased out during the relevant period. He has also to prove the prevailing rate as being not what the lessor seeks to prove, but the rate which he contends it to be.
It is on weighing the two that the Court determines the correct figure. The Defendant's failure to adduce evidence to rebut leaves the Court free to draw an appropriate inference, and pass orders." It is clear that the defendant had failed to submit any credible evidence. The defendants submissions are clearly without merits.
70. As far as the contention of the plaintiffs is concerned, in my opinion, there are no reasons to differ with the findings recorded by the Local Commissioner.
The Local Commissioner has for sound reasoning noted that the correspondence of Empire Store and Bata India Ltd. cannot be taken into account for the purpose of determining the market 106 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:56:46 +0530 rent. In my opinion, the conclusions are correct.
PW4, the partner of Empire Store in his cross-
examination states that he is not aware of the area with Bata India Ltd. He is also not aware of whether a lease deed was executed in favour of Bata India Ltd. No lease deed has been produced. There is nothing to show what were the terms and conditions agreed upon. Hence, the conclusion of the Local Commissioner in not accepting the said documents are in order. The claim of the plaintiff on these documents i.e. Rs.41.97 per sq. ft. per month for 1979 cannot be accepted.
......
73. It is also clear that determining the mesne profit/market rent for a period of nearly 27 years i.e. 1.2.1980 to 28.2.2007 cannot be done on the basis of two sporadic leases of two separate properties filed by the plaintiffs dated 5.6.1997 and 24.10.2005. There is also no evidence to show that the leases pertained to properties that had identical features as the suit properties. The evidence placed on record by the plaintiffs is sketchy and based on these sporadic leases for a huge area like Connaught Place it would not have been appropriate or proper to conclude the market rent for a long period of 27 years.
74. The approach of the 107 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:56:55 +0530 Local Commissioner in fixing the base rate based on the rent of Rs.30,000/- per month for the period 01.01.1980 to 31.01.1980 is in order. It cannot be forgotten that as per the preliminary decree passed by this Court the initial rent had been agreed to be Rs.30,000/- per month for the period 1st January, 1980 to 31st January, 1980 i.e. one month. This rate was never challenged by the defendant before the Division Bench or the Supreme Court. In fact in an undertaking filed before the Supreme Court the defendant had agreed to pay the plaintiff at this rate till determination of the mesne profits by the Local Commissioner. The Local Commissioner rightly took this figure, namely, 9.37 per sq.feet to be the base rate for 1980. The Local Commissioner also relied on leases produced before this court in various judicial pronouncement to conclude that the base rate of Rs.9.37 per sq.ft. is in order. The enhancement of the said rate by 15% every year is also as per various judgments of this court i.e. Sneh Vaish & Anr. vs. State Bank of Patiala, 189(2012) DLT 153; Chander Kirti Rani Tandon vs. M.s.VXL Lodging N.Boarding Services Pvt. LTd., 197(2013) DLT 266 and;
M.C.Agrawal and Ors. vs. Sahara India and Ors., 183(2011) DLT These judgments have held 108 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:57:04 +0530 that in residential and commercial areas in prime and centrally located locations like Connaught Place an increase of 15% every year would be in order.
75. I also cannot help noticing that in 1997 based on the lease dated 5.6.1997 the plaintiffs claimed mesne profits at Rs.272.90 sq.ft. per month. The Local Commissioner has awarded Rs.116.015 per sq. ft per month. Similarly, for the period 2005 based on the lease deed dated 24.10.2005 the plaintiffs claimed a rent of Rs.454.32 per sq. ft per month. The Local Commissioner has awarded Rs.354.895 per sq. ft per month. Keeping in view the findings of the Local Commissioner and the nature of evidence placed on record by the plaintiffs I see no reason to differ with the findings of the Local Commissioner and accept the rates on which mesne profits have been determined. The rate of mesne profits adopted by the Local Commissioner in the facts and circumstances is in order.
76. Coming to the interest part, the Local Commissioner has awarded based on judicial pronouncements 12% per annum from the end of each month of illegal occupation till 28.2.2007. Keeping in view the market rate I reduce the interest awarded to 8% per annum Simple Interest from the 109 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:57:14 +0530 date the mesne profit fell due i.e. end of each month of illegal occupation and payable till payment is received by the plaintiff. A final decree is passed in favour of the plaintiffs and against the defendant for mesne profit as per chart below fixed by the Local Commisioner based on the rates fixed by the Local Commissioner as follow for the area of 3200.11 sq ft:-
(The Local Commissioner has noted the area of the premises as 3200.11 sq.ft.
(equivalent of 297.3 sq.meter) to which neither party has objected.) A D (3200.11 Sq. ft. is the area of the suit premises) Year Contractual rent p.m. in the Rates per sq. ft. p.m. starting month of each determined on the basis of 15 percent increase on the previous rent contractual rent 1.2.1980 to 34500 10.780 31.12.1980 1.1.81 to 39675 12.401 31.12.81 1.1.82 to 45626.25 14.257 31.12.82 1.1.83 to 52470.19 16.396 31.12.83 1.1.84 to 60340.71 18.855 31.12.84 1.1.85 to 69391.822 21.684 31.12.85 1.1.86 to 79800.595 24.936 31.12.86 1.1.87 to 91770.684 28.677 31.12.87 1.1.88 to 105536.28 32.978 31.12.88 1.1.89 to 121366.72 37.925 31.12.89 1.1.90 to 139571.72 43.614 31.12.90 1.1.91 to 160507.47 50.156 31.12.91 1.1.92 to 184583.59 57.680 31.12.92 1.1.93 to 212271.12 66.332 31.12.93 110 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:57:22 +0530 1.1.94 to 244111.78 76.282 31.12.94 1.1.95 to 280728.54 87.724 31.12.95 1.1.96 to 322837.82 100.883 31.12.96 1.1.97 to 371263.49 116.015 31.12.97 1.1.98 to 426953.01 133.418 31.12.98 1.1.99 to 490995.96 153.430 31.12.99 1.1.2000 to 564645.35 176.445 31.12.2000 1.1.2001 to 649342.15 202.912 31.12.2001 1.1.2002 to 746743.47 233.349 31.12.2002 1.1.2003 to 858754.99 268.351 31.12.2003 1.1.2004 to 987568.23 308.604 31.12.2004 1.1.2005 to 1135703.4 354.895 31.12.2005 1.1.2006 to 1306058.9 408.129 31.12.2006 1.1.2007 to 1501967.7 469.348 28.2.2007"
lxxxiii. Thus, in the aforesaid case laws also the property was found to be situated in prime location and a distinction was also drawn between the properties which are commercial in nature and residential properties which are at prime location would fall in one bracket, and thus, in both the aforesaid cases, 15% annual escalation was found to be justified.
lxxxiv. The question which now looms large is whether the present case is such which would call for the application of 15% annual escalation in the base price of Rs.18000/- from November 1993 onwards till 24.02.2020. On perusal of various lease deeds placed on record on behalf of the plaintiff, it is made out that in 111 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 some cases the escalation in rent is prescribed every second year, in some cases after three years @10-15% per annum, depending upon the rate of rental, the location of property and other suitable parameters. It is also seen that in case of residential properties, the escalation generally hovers around 10% per annum. The present is a case where the court is tasked to calculate the mesne profits from the year 1993 till 2020 and in between this time many significant developments in terms of economy and real estate have taken place. The economy started opening up in the early 1990 and the real estate flourished around early 2000, followed by recession. The Courts also observed that though the third quarter of 20th century saw a very slow but steady increase in prices of immovable property but a drastic change occurred from the beginning of the last quarter and a galloping increase in prices of immovable properties had taken place with prices increasing steeply, by leaps and bounds and judicial notice can be taken thereof. Factoring in all these developments would involve a lot of guess work in calculating in the mesne profits, which can be avoided by adopting an annual figure of escalation ranging between 10% to 15%. The fact that it is an admitted position that despite the suit property being residential in nature, was being used for running a kindergarten school which to some extent would qualify to commercial activity and defendant no.2 having not disclosed the profits generated while being in wrongful possession of suit property, I am of the view that 12% annual escalation in the base price of Rs.18,000/- would be just and proper in the facts of the present case. Thus, taking cue from the aforesaid case laws, which had also discussed other significant case laws pertaining to the calculation of the mesne profits, the 112 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 present case also calls for granting annual escalation of 12% on the aforesaid fix base amount of Rs.18000/- per month in respect of the suit property starting from November 1993 (the date of institution of the suit being 10.11.1993) onwards, till February 2020 (the handing over of the suit property being 24.02.2020).
lxxxv. I would now delve into the Judgments relied by Ld. Counsel for defendant no. 2 on the aspect of grant of damages/mesne profits. Since this is the most crucial aspect of the case, I am stimulated to hash out each Judgment.
lxxxvi. In Fateh Chand v. Balkishan Dass, [1964] 1 SCR 515, and Bureau of Indian Standards v. M/s Goodwill Theatres Pvt. Ltd, Civil Appeal No. 8738 of 2017, Supreme Court of India, the principle for the grant of mesne profits was cited, and there is thus no divergence from that. The computation of mesne profits arrived in this case is in accord with the principle of annual escalation as approved in number of case laws exposited above where the evidence is scanty and the Court has to resort to some honest guess work. A person in wrongful possession of immovable property has to pay compensation computed on the basis of profits he actually received or with ordinary diligence might have received. Further, in that case the transaction was in the nature of sale and purchase of the property, which is not the case herein. The other Judgments are quite categorical that in case of unauthorized possession of property, in the absence of any evidence, annual escalation to the tune of 10- 15 percent can be awarded.
113 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 NAVJEET Digitally signed by NAVJEET BUDHIRAJA BUDHIRAJA Date:
+0530 2023.10.09 15:58:48 lxxxvii. In Martin and Harris Ltd v. Rajendra Mehta, 2022 8 SCC 527 and VC Jain v. Radha Kishan Poddar, 2021 SCC Online Del 4386 again the Court reiterated that the basis of determination of the amount of mesne profits depends on the facts and circumstances of each case considering the place where property is situated along with other parameters. In that case, considering the location, the Supreme Court upheld that mesne profits of Rs2,50,000 per month. In this case also, the location of the suit property is undoubtedly prime and, thus, the mesne profits assessed are in sync with that, else annual escalation of 12 percent per annum would not have been given.
lxxxviii. In State of Maharashtra v. SuperMax International Pvt. Ltd, 2009 9 SCC 772, the Courts are called upon to exercise restraint and would not fix any excessive, fanciful and punitive amount. Despite the dictums favoring grant of 15 percent annual escalation, I have avoided such outer limit and reduced it to 12 percent per annum, which cannot be termed as fanciful.
lxxxix. In Alka Sachdeva v. Neeraj Gupta and Others, 2021 SCC Online Del 5536, the Court took note of the dilapidated condition of the property and the lease deeds of the neighbouring area, which is done in this case also as I have given an average figure of base value of mesne profits in the year 1993 on the basis of the lease deeds of the corresponding period placed on behalf of defendant no. 2 only.
xc. In Marudhar Services v. Ved Prakash and Other, 2012
114 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 SCC Online Del 4232, the court appreciated that in case of commercial property the annual escalation can be 15 percent which can be reduced to 10 percent in residential property. Keeping this in mind, escalation of 15 percent was declined, but considering the dictum in the case of Anil Kumar case and Chander kirti Rani Tandon case mentioned above that in commercial properties and residential properties at prime locations, 15 percent escalation is permitted, I have deemed it fit to award 12 percent annual escalation given the fact that suit property is situated in one of the prime locations of South Delhi i.e Greater Kailash on a wide road.
xci. In Hindustan Paper Corporation v. Kanta Manocha, 2013 SCC Online Del 4232, the Court had spoken about 10-15 percent increase every three years, but this can be one off case as we have seen in numerous cases above that escalation is being given on yearly basis.
xcii. Further, a pleading of mis-joinder of parties and the suit being barred by limitation were also raised in the written statement, however, there is no evidence to substantiate these pleadings. The cause of action in regard to the claim of mesne profits is a continuing one and in this case since the suit property was surrendered on behalf of defendant no.2 only on 24.02.2020, at no stretch of imagination, the suit cannot be said to be barred by limitation.
xciii. Ld. Counsel for Defendant no.2 also elucidated with the help of case laws on the concept that plaintiff has to prove the 115 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:57:38 +0530 case on its own merits without deriving any advantage out of the weakness of the defendant, but this weakness which Ld. Counsel was referring to was the pleading of the defendant no.2 of having become owner of the suit property on the back of adverse possession. This argument is also nothing but a ploy to save defendant no.2 from being imputed with the liability to compensate the plaintiff for the loss suffered by keeping out of the possession of suit property. The plaintiff has proved her entitlement to claim mesne profits the moment defendant no.2 chose to concede the possession of the suit property in her favour which also amounted to conceding to the ownership claim of the plaintiff.
Issue no.1 is accordingly decided in favour of the plaintiff and against defendant no. 2.
42. Issue no.2: Whether the plaintiff is also entitled to any interest? OPP i. The burden to prove this issue was also on the plaintiff. Ld. Senior Counsel for the plaintiff, as we have already noted, laid thrust on restitution in favour of the plaintiff and to set an example by granting exemplary interest in the form of compound interest rather than simple interest.
ii. Ld. counsel for defendant no.2, per contra, stated that the principle of restitution has been invoked for the first time at the stage of final arguments which does not find part of the pleading or the evidence of the plaintiff and in this regard 116 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:57:46 +0530 reliance is placed upon the judgment of State of Gujarat & others Vs. Essar Oil Limited and another, AIR 2012 SC 1146 wherein it was held as under:
"....Concept of restitution is basically founded on the idea that when a decree is reversed, law imposes an obligation on the party who received an unjust benefit of the erroneous decree to restitute the other party of what the other party has lost during the period of erroneous decree was in operation. The Court while granting restitution is required to restore the parties as far as possible to their same position as they were in at the time when the court by its erroneous action displaced them...."
iii. Further to counter the judgment of Madras High Court relied on behalf of the plaintiff mentioned in preceding discussion, Ld. counsel for defendant no.2 canvassed that the said judgment is not applicable to the facts and circumstances of the present case as the facts therein are entirely different and the said judgment cannot be treated to be a precedent applicable to the present case. Ld. counsel for defendant no.2 categorically distinguished the said judgment of Madras High Court from the present case on various parameters in the written synopsis.
iv. From the expression "together with interest on such profits" in Section 2(12) of CPC, it is apparent that mesne profits includes within its fold an interest component and the rate of interest to be allowed in regard to the mesne profits varies 117 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:57:54 +0530 depending upon the facts and circumstances of each case. Since the statute does not fix any rate of interest, it is left at the discretion of the court to determine the rate of interest. In Mahant Narayana Dasjee Vs. Board of Trustees, The Tirumalai 1965 SC 1231, the Supreme Court observed that the interest is integral part of mesne profits, therefore, it is to be allowed in the computation of mesne profits itself.
v. In the plaint, the plaintiff has claimed interest @ 19% per annum but no material has been placed on record to justify such exorbitant rate of interest, except the oral arguments advanced on behalf of the plaintiff wherein cross examination of DW1 was also pointed out particularly from question no.16 to 34 and question 114 to 120. The interest component also constitutes a significant fragment of the pleading and evidence, and since in this case the testimony of PW1 can be read only to a limited extent, he being the special power of attorney holder of the plaintiff, and in the absence of any material in his affidavit to support the claim of 19% interest, the cross questioning of DW1 on the aspect of rates applicable to the nationalized bank and returns at a particular rate would be of no assistance to the plaintiff.
vi. Ld. Counsel for defendant no. 2 also referred to Vinod Kumar and Others v. Bohat Ram and others, RFA No. 221/2018, Delhi High Court and Ramnik Vallabhdas Madhvani v. Taraben PravinLal Madhvani, 2004 1 SCC 497, in support of restriction of interest component to 6 percent per annum.
118 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:58:03 +0530 vii. On the issue of interest on mesne profits, let me spell out the observation of High Court of Delhi in M/s M C Agarwala (HUF) Vs. M/s Sahara India and Ors, date of decision 02.09.2011, paragraph 17 of which is relevant and the same is as under:
"17. In my opinion, the interest granted at the rate of 20% per month besides being wholly vague is clearly exorbitant in the present economic scenario where the rates of interest on fixed deposit vary between 6% to 10% per annum. The Supreme Court also in its recent chain of judgments Rajendra Construction Co.
V. Maharashtra Housing & Area Development Authority, (2005)6 SCC 678, McDermott International Inc. v. Burn Standard Co. Ltd., (2006) 11 SCC 181, Rajasthan State Road Transport Corpn. v. Indag Rubber Ltd.., (2006) 7 SCC 700, Krishna Bhagya Jala Nigam Ltd Vs. G. Harishchandra, (2007) 2 SCC 720, State of Rajasthan v. Ferro Concrete Construction Pvt.
Ltd, (2009) 3 Arb. LR 140 (SC) has held that Courts are mandated to reduce high rates of interest which are granted. Accordingly, in the facts and circumstances of this case, I reduce the interest granted by the trial Court from 20% to 12% per simple. The interest 119 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:58:10 +0530 liability will come into existence at the end of each month of illegal occupation of the tenants on the amount due at the end of the month and till payment thereof. To clarify further, so far as the month of January, 2005 is concerned, interest will be payable for the said month from 1.2.2005. For the month of February, 2005 interest will be payable from 1.3.2005 and similarly with respect to earlier months, the interest will be payable at the end of the months, the interest will be payable at the end of the month of illegal occupation by the tenants.
I may note that the Supreme Court has also awarded interest on arrears of mesne profits and one such judgment of the Supreme Court is the case of Indian Oil Coporation v.
Saroj Baweja, (2005) 12 SCC 298."
viii. In the aforesaid case, the Hon'ble Judge has noted that the interest granted at the rate of 20% per annum was clearly vague and exorbitant where the rate of interest on fixed deposit vary between 6 to 10% per annum. The Hon'ble Judge has also referred to various other judgments of the Supreme Court to highlight that the courts are mandated to reduce high rate of interest which are claimed.
ix. Furthermore, Section 34 of CPC prescribes that the grant of interest on the principal sum has to be reasonable.
120 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by
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Section 3 and 4 of the Interest Act also prescribe relevant provisions for grant of interest in money suits. The present case is one such case which undoubtedly stands out for the sheer abuse of the process of law as a result of which the present litigation remained in the corridors of the court for almost three decades. Defendant no.2, though can be stated to have entered into the suit property being the partner of Pires School but her possession became illegal, once she started proclaiming herself as owner of the suit property on the basis of adverse possession, which plea from the very inception was false and vexatious and which eventually fizzled out when the keys of the suit property was handed over to the plaintiff. But in this long-drawn process, the plaintiff has suffered due to shenanigans of defendant no.2 who managed to prolong the litigation for almost three decades. When the plaintiff had purchased the suit property and became its legal owner following which the present suit was filed, defendant no.2 ought to have vacated the suit property in the absence of any legal right to occupy the same but she persisted in her illegal quest to usurp the suit property in the garb of plea of adverse possession, which constrained the plaintiff to embark on this unwarranted journey, in order to lawful recover the possession of the suit property. Therefore, for these special reasons, I am of the confirmed opinion that defendant no.2 be saddled with onerous interest at the rate of 9% per annum (simple) payable at the end of each month of illegal occupation by defendant no.2 starting from the institution of the suit till handing over of the suit property.
x. Though, Ld. Senior counsel for the plaintiff, during
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arguments, clamored for the grant of compound interest on the back of the restitution theory as propounded in the judgments referred by Ld. Senior counsel, however, those judgments are on distinct platform, except the judgment in K Pandurangan Vs. Mrs. C Parimala, date of decision 23.12.2021, Madras High Court, but in that case also, the High Court reduced the compensation as sought by the party from Rs.49 lacs approximately to Rs.35 lacs. No doubt, the plaintiff herein is entitled to the restitution for the immense loss suffered by her at the hands of the defendant no.2, but in my opinion, ends of justice would be met by granting 9% simple interest per annum to be calculated at the end of each month when the mesne profits fell due.
Issue no.2 is decided in favor of the plaintiff and against the defendant no.2.
42. In so far as the claim of recovery of Rs.11,66,500/- on behalf of the plaintiff as damages/mesne profits for the year 19.02.1992 till 08.02.1993, in view of the jurisprudence of grant of mesne profits, the fact that the same can only be awarded from the date of institution of the suit, the arrears with effect from 19.02.1992 cannot be granted in favour of the plaintiff. It is not the case of the plaintiff that defendant no.2 was a tenant in the suit property who was bound to deposit/pay the arrears of rent. Therefore, this claim of the plaintiff cannot be acceded to. Decision:
43. The suit of the Plaintiff is decreed against Defendant no.2/LRs as per memo of parties as under:
1. Mesne profits @ Rs.18,000/- per month from 10th November 122 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:59:21 +0530 1993 till 24th February 2020;
2. 12% annual escalation on the aforesaid amount of Rs.18,000/-
for the aforesaid period;
Period Annual rent Monthly rent 12% increase per annum 10.11.93 to 216000 18000 09.11.94 10.1194 to 241920 20160 2160.00 09.11.95 10.11.95 to 270950.4 22579 2419.20 09.11.96 10.11.96 to 303464.448 25288 2709.50 09.11.97 10.11.97 to 339880.18176 28323.35 3034.64 09.11.98 10.11.98 to 380665.80357 31722.15 3398.80 09.11.99 10.11.99 to 426345.7 35528.81 3806.66 09.11.2000 10.11.2000 477507.184 39792.27 4263.46 to 09.11.2001 10.11.2001 534808.04608 44567.34 4775.07 to 09.11.2002 10.11.2002 598985.01161 49915.42 5348.08 to 09.11.2003 10.11.2003 670863.213 55905.27 5989.85 to 09.11.2004 10.11.2004 751366.79856 62613.90 6708.63 to 09.11.2005 10.11.2005 841530.81439 70127.57 7513.67 to 09.11.2006 10.11.2006 942514.51212 78542.88 8415.31 to 09.11.2007 123 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:59:29 +0530 10.11.2007 1055616.2536 87968.02 9425.15 to 09.11.2008 10.11.2008 1182290.204 98524.18 10556.16 to 09.11.2009 10.11.2009 1324165.0285 110347.09 11822.90 to 09.11.2010 10.11.2010 1483064.8319 123588.74 13241.65 to 09.11.2011 10.11.2011 1661032.6117 138419.38 14830.65 to 09.11.2012 10.11.2012 1860356.5251 155029.71 16610.33 to 09.11.2013 10.11.2013 2083599.3081 173633.28 18603.57 to 09.11.2014 10.11.2014 2333631.2251 194469.27 20835.99 to 09.11.2015 10.11.2015 2613666.9721 217805.58 2336.31 to 09.11.2016 10.11.2016 2927307.0088 243942.25 26136.67 to 09.11.2017 10.11.2017 3278583.8499 273215.32 29273.07 to 09.11.2018 10.11.2018 3672013.9118 306001.16 32785.84 to 09.11.2019 10.11.2019 1210948.5878 342721.30 36720.14 Per Rs.11,424.
to Day 04/-
24.02.2020
Total 3,36,83,078.43 106
Amount 2 days
* The aforesaid computation is subject to rectification for any calculation error and parties may move appropriate application, if required.
124 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 Digitally signed by NAVJEET NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:59:44 +0530
3. Further, plaintiff is awarded 9 percent simple interest to be computed on the principal amount accrued at the end of each month when the mesne profits fell due till the date of handing over of the suit property i.e 24.02.2020. LRs of defendant No.2 are granted three month time to clear the awarded amount as per the applicable law failing which plaintiff is also entitled to 6 percent future interest till realization;
4. Cost of the suit and exemplary litigation cost of Rs.2 lacs for the reasons already cited above;
44. Deficient court fee be deposited on behalf of the plaintiff on the awarded mesne profits which is to be included in cost of suit and decree sheet be drawn up accordingly. File be consigned to record room.
Announced & dictated in the open court on 09.10.2023 (Navjeet Budhiraja) Additional Sessions Judge-02 South District, Saket Courts, New Delhi 09.10.2023 Certified that this judgment contains 125 pages and each page bears my signatures.
(Navjeet Budhiraja) Additional Sessions Judge-02 South District, Saket Courts, New Delhi 09.10.2023 Digitally signed 125 Chitra Garg Vs. S K Bansal and Ors CS DJ no.211236/2016 NAVJEET by NAVJEET BUDHIRAJA BUDHIRAJA Date: 2023.10.09 15:59:55 +0530