Delhi District Court
Sh. Prem Raj vs Sh. Balbir on 25 November, 2013
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IN THE COURT OF SH. ROHIT GULIA, CIVIL JUDGE (WEST)2,
DELHI
SUIT NO.537/07
Unique Case ID No 02401C0978982007
Smt. Kamla Devi
W/o Sh. Prem Raj,
R/o 389, Masjid Moth, New Delhi
Through her General Attorney
Sh. Prem Raj, S/o Pt. Lila Ram,
R/o 389, Masjid Moth, New Delhi
..........................PLAINTIFF
VERSUS
1. Sh. Balbir
S/o Late Sh. Sen Singh,
R/o House No.373, 3rd Floor, Hardev Puri, Gautam Nagar, New Delhi.
2. Sh. Ranbir
3. Sh. Mahabir
Both sons of Late Sh. Sen Singh
4. Smt. Vidhoori
D/o Late Sh. Sen Singh
All R/o House No.420, Masjid Moth, New Delhi 110049
........................DEFENDANTS
Suit filed on - 29/09/2007
Judgment reserved on 19/11/2013
Date of decision - 29/11/2013
Suit No.537/07 Page 1/6
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SUIT FOR RECOVERY OF ARREARS OF MESNE PROFIT/DAMAGES
JUDGMENT: By this judgment I shall dispose off a suit for recovery of arrears of mesne profit/damages filed by the plaintiff against the defendants.
1. The brief facts of the case as per plaint are that the plaintiff is the absolute owner of House No.420, Masjid Moth, New Delhi110049 and the father of the defendants Shri Sen Singh was inducted as a tenant in the said property and the same was let out only for residential purposes and the rate of rent of the premises was Rs.34.60 Ps. per month excluding electricity and water charges and the rent had been paid upto March, 2002.
That the plaintiff has filed a Suit No.286 of 2003 for possession and recovery of arrears of rent alongwith mesne profits and damages against the defendants in respect of premises no.420, Masjid Moth, New Delhi110049, which was assigned to the Court of Ms. Sugandha Goel, Civil Judge, Delhi and the same was decided on 28/07/2007 and it was held that the defendants are liable to pay damage/mesne profit @ Rs.1500/ per month for using the premises in question in the capacity of unauthorised occupants.
That after the decision of the said Hon'ble Court the plaintiff has become entitled to recover the damages @ Rs.1500/ per month from all the defendants from 19/09/2003 upto 24/09/2007 alongwith interest @ 18% p.a. The Hon'ble Court has already passed the order for damages for the period 29/07/2003 to 18/09/2003 in the said matter.
Suit No.537/07 Page 2/6
3 That the defendants are liable to pay a sum of Rs.71,700/ being damages/mesne profit from 19/09/2003 to 24/09/2007 and interest @ 18% p.a. on the aforesaid amount.
That the plaintiff has become entitled to claim the damages/mesne profits @ Rs.1500/ per month of the premises in question after the decision/judgment passed by the Court of Ms. Sugandha Goel, Civil Judge Delhi on 28/07/2007 and the suit is within the period of limitation as per the provisions of order 20 Rule 12 CPC.
That the plaintiff has sent a legal demand notice dated 03/09/2007 through her counsel under Regd. A.D. and UPC which has been duly served upon the defendants. The defendants instead of complying with the notice sent a false and frivolous reply dated 12/09/2007. Hence this suit.
2. The WS was filed on behalf of defendants wherein certain preliminary objections were taken like that the suit no.286/03 has wrongly been decreed and that an appeal is also pending against the decree. Further, it has been mentioned that the filing of the present suit prior of decision of appeal is meant for sheer wastage of the time of the court.
In reply on merits the defendant has denied all the averments made in the plaint as false and frivolous and has prayed that the suit be dismissed with heavy costs.
3. Replication has been filed on behalf of plaintiff wherein the averments made in the WS were denied and those made in the plaint were reiterated and reaffirmed.
Suit No.537/07 Page 3/6
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4. From the pleadings of the parties the following issues were framed on 04/11/2011 :
1. Whether the plaintiff is entitled to decree of damages/mesne profits, it so, at what rate and for which period? OPP
2. Whether the plaintiff is entitled to interest on the amount of damages/mesne profits, if so, at what rate and for which period? OPP
3. Relief.
5. The arguments have been heard and the record has been carefully perused. From the perusal of the record it becomes that no evidence has been, lead by any of the parties and only the certified copy of the judgment has been placed on record by the plaintiff which has been exhibited as Ext. P1.
As both the issues involves same legal point, therefore, both the issues will be decided together. Now, I shall give my issuewise findings which are as under :
6. ISSUE NO.1 & 2
1. Whether the plaintiff is entitled to decree of damages/mesne profits, it so, at what rate and for which period? OPP
2. Whether the plaintiff is entitled to interest on the amount of damages/mesne profits, if so, at what rate and for which period? OPP The onus to prove these issues was upon the plaintiff. Suit No.537/07 Page 4/6
5 The main contention of the plaintiff is that the plaintiff is entitled for a sum of Rs.71,700/ being damages/mesne profits from 19/09/2003 to 24/09/2007 in view of the judgment dated 28/07/2007 passed in civil suit no. 286/2003 wherein it was held that the defendants are liable to pay damages/mesne profit @ Rs.15,00/ per month for using the premises in question in the capacity of unauthorized occupants.
No evidence has been lead by any of the parties but only the certified copy of the judgment dated 28/07/07 has been placed on record and the same has been exhibited as Ext. P1. The perusal of the said judgment shows that issue regarding the damages/mesne profits was framed as issue no.6 which was as follows: "Whether the plaintiff is entitled to mesne profits/damages, if so at what rate and for what period?"
While deciding the issue it was held by the court that the plaintiff has only claimed for the damages/mesne profits @ Rs.1400/ for illegal use and occupation of the suit property by the defendant and it was further held that as the defendant are in the illegal occupation of the suit property, therefore, issue was decided in favour of the plaintiff.
Even at the end of the judgment a sum of Rs.1400/ was awarded to the plaintiff as damages for illegal occupation of the suit property. There is nothing in the order to suggest that the damages @ Rs.1500/ per month as claimed by the plaintiff were awarded to the plaintiff. The judgment is dated 28/07/2007 and the appeal against the judgment has also been dismissed vide order dated 22/11/07.
Suit No.537/07 Page 5/6
6 Herein the plaintiff is claiming mesne profits from 19/09/2003 to 24/09/2007 but the issue of damages/mesne profits of this period has already been decided in the judgment dated 28/07/07 as discussed above and a sum of Rs. 1400/ has been awarded to the plaintiff. The order has become final as the appeal with respect to the same has also been dismissed.
The suit is a frivolous suit primafacie and appears to have been filed just to harass the defendants, moreover once a issue has been decided in a earlier suit the subsequent suit on the same ground is barred by resjudicata and if there was any grievance of the plaintiff with respect to the judgment, then an appropriate appeal should have been filed by the plaintiff against that order but the present suit could not have been filed by the plaintiff. Though as a matter of fact even the appeal filed by the defendant has also been dismissed.
Accordingly, in view of the above mentioned facts and circumstances both the issues are decided against the plaintiff and in favour of the defendants.
7. ISSUE NO.3 RELIEF - In view of the findings given on issues no.1 and 2, documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff has failed to prove her case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is hereby dismissed.
Decree sheet be prepared accordingly. File be consigned to record room after completing necessary formalities.
(ROHIT GULIA) Civil Judge (West)2, Delhi Announced in the open court on 29/11/2013.
Suit No.537/07 Page 6/6