Delhi High Court
The Motor & General Finance Ltd. vs M/S. Nirulas & Ors. on 23 April, 2001
Equivalent citations: 2001VAD(DELHI)43, 92(2001)DLT97
Author: A. K. Sikri
Bench: A.K. Sikri
ORDER A. K. Sikri, J.
1. The plaintiff has filed this suit for recovery of possession in respect of Premises No. 9283 & 3089 (old) - N-1 And N-5/2 (New) in the property known a "N" Block, Connaught Place, New Delhi (hereinafter to be called as "suit property" for short).
2. While the suit is pending adjudication, this IA No.14256/92 has been filed by the plaintiff seeking direction to the defendants to deposit a sum of Rs. 18 lakhs for wrongful use and occupation of the premises in question with further direction to the defendants to deposit a sum of Rs. 50,000/- per month as damages till the disposal of the suit. For determining the issue involved in this IA, it would be appropriate to have a glance at the pleadings.
3. The plaintiff claims to be the owner of the suit property which was purchased by the plaintiff in an open auction dated 16th March, 1961 by the Ministry of Rehabilitation through Chief Settlement Commissioner, Department of Rehabilitation (Now Ministry of Home Affairs). The provisional possession of the suit property was delivered to the plaintiff vide letter dated 13.3.1962 by the Managing Officer of the Office of Regional Settlement Commissioner. Intimation to this effect was given to the Secretary, Delhi Development Authority as well as Land and Development Officer (Nirman Bhavan) by letters dated 10.8.1965 and 10.5.1968. At the time of purchase of this property by the plaintiff, it was in occupation of various tenants and unauthorised occupants. Attornment letter dated 20.3.1962 was duly issued to the plaintiff by the Office of Settlement Commissioner giving the names of the tenants/unauthorised occupants in the premiss. These names as per the said letter are as under:
1. M/s. Roy & James.
2. M/s. Edde Tailors.
3. M/s. Roy Brothers.
4. M/s. S. S. Bali.
5. M/s. B.R. Chopra.
6. M/s. Metro Hotel.
4. The defendant No. 2 through its Director Shri R.N. Rai was the allottee/tenant of the aforesaid premises bearing No. 9283 and 3089 (old) -N-1 & N-5/2 (New) ad measuring 1037. 89 sq. feet shown red in the map under the Government of India, Ministry of Rehabilitation, Office of the Regional Settlement Commissioner, Jam Nagar house, New Delhi. However, the allotment/tenancy of defendant No.2 was cancelled by the Managing Officer vide Order dated 1.9.1961 on the ground that the defendant No.2 had sub-let, assigned or parted with the possession of the whole of the premises allotted to defendant No.2 by the said Office of the Regional Settlement Commissioner without the permission of the competent authority and it was confirmed that in view thereof, the defendant No.3, M/s. Tej was held to be unauthorised occupant of the said premises and are liable to be evicted from the said premises. The defendants no.4 and 5 were the partners/proprietors of defendant No.3. The notices dated 8.7.1960 were issued to the defendant No.2 to 5 by the Office of the Regional Settlement Commissioner. On the basis of the said notices and after hearing the parties, the Managing Officer vide order dated 1.9.1961 cancelled t he tenancy of defendant No.2 on the ground of unauthorised and illegal transfer and sub-letting of the suit premises to defendant No.3 without the permission in writing of the competent authority. It was further held vide the said order dated 1.9.1961 that defendant No.3, M/s. Tej is unauthorised occupant of the premises and both M/s. East and West Travel Pvt. Ltd. through Shri R.N. Rai and M/s Tej through their proprietor through Shri Tej Narain are liable to be evicted from the said premises.
5. After taking provisional possession of the premises, the plaintiff issued notice dated 2.2.1970 to defendant No.2 mentioning the aforesaid events as per which defendant No.2 mentioning the aforesaid events as per which defendant No.2 had illegally sub-let the premises to Shri Tej Narayan and Shri Deep Narayan. It was further stated in the notice that tenancy of defendant No.2 was statutory and was terminated by the said notice on the ground of unauthorised subletting of tenancy. Notice was also issued to defendant No.3 for compliance. Defendants were called upon to handover the possession of the premises. Defendant No.3 replied vide letter dated 28.2.1970 denying the contents of the notice and stating that M/s notice and stating that M/s. Tej and Shri Tej Narayan were the tenants. The plaintiff thereafter filed eviction petition before the Rent Controller, Delhi which was, however, dismissed by the Additional Rent Controller vide order dated 31.3.1977 on the ground that there did not exist any relationship of landlord and tenant between the parties. Plaintiff filed appeal before the Rent Tribunal which was dismissed. Second appeal to this Court also met the same fate. Thereafter present suit for possession was filed. It is further stated int he plaint that whereabouts of defendant No.2 are not known. His company, namely, M/s. East and West Travel (P) Ltd. also does not exist. Defendant No.2 had illegally parted with the possession of the said premises. Defendants 3 to 5 in turn illegally parted with possession of the said property to defendant No.1 in the year 1987 by taking illegal consideration and it is only defendant No.1 who is running its Fast Food business in the said premises unauthorisedly. Notice dated 16.11.1987 was also served upon defendant No.1 to vacate the premises. Damages for wrongful use and occupation at the rate of Rs. 50,000/- PM were also claimed. As defendant No.1 did not pay any heed to this notice as well, present suit was filed.
6. In the suit following reliefs are claimed:
(a) A decree for possession of Shop No. N-1 and N-5/2 N Block Connaught Place, New Delhi ad measuring total area 1037.89 sq. ft as per plain attached be passed in favor of the plaintiff against the defendants.
(b) A decree for a sum of Rs.18,00,000/- (Rs.Eighteen lakhs only) for recovery of damages/mesne profits for wrongful use and occupation of the said shop be also passed in favor of the plaintiff and against the defendants who may be liable to pay the said amount of mesne profits/damages jointly and severally.
(c) Interest on the decretal amount be also granted at the rate of 18% p.m. from the date of decree till realisation of the decretal amount.
(d) That the defendants be also directed by the said decree to continue to pay a sum of Rs.50,000/-p.m. from the date of institution of the present suit till the actual peaceful vacant possession is handed over to the plaintiff as and by way of damages/mesne profits for wrongful use and occupation of the premises.
(e) Costs of the suit be also granted in favor of the plaintiff and against the defendants; and
(f) Such other order relief which this Hon'ble Court deems fit and just be also granted in favor of the plaintiff and against the defendants.
7. Along with the plaint this IA was filed seeking directions to the defendants to deposit a sum of Rs.18 lakhs i.e. last three years damages/claims at the rate of Rs.50,000/-PM as already noticed above.
8. It may be mentioned that suit is contested by the defendant No.5 by filing written statement. It is the case of t he defendant No.5 that defendant No.1 has entered into Franchise Agreement with defendants 3 and 5 (defendant NO.4 already expired as far as back in June, 1984) for running the Restaurant and also challenged the jurisdiction of Civil Court to entertain the present suit under Section 50 of the Delhi Rent Control Act. They claim themselves to be the lawful tenants at monthly rent of Rs.225/-PM. It is also stated that the suit is barred by limitation as they are in possession of the suit property since 1959.
9. The present application is contested by the defendants on the following grounds:
1. Defendants are in lawful occupation of the premises at a monthly rent of Rs. 225/- per month. As of today there is no finding that they are in wrongful possession. The defendants cannot be called upon to pay any amount by way of damages till they are held to be in wrongful possession.
2. The damages/mesne profits for wrongful possession can be determined in an enquiry as mandated by the provisions of Order XX Rule 12 CPC. In the absence of such an enquiry no orders can be passed as there is no provision of interim mesne profits. There are no pleadings about mesne profits.
3. The plaintiff has not disclosed about judgment dated 4.3.1974 rendered by Additional District Judge in the case filed by plaintiff against these defendants. That was a Suit No.82/73 for recovery of damages filed against these defendants on the ground that they are unauthorised sub-tenants of R.N.Rai (Defendant No.2 herein). The suit was dismissed on the ground that the allegations made int he plaint showed that Shri R.N. Rai was still a tenant and defendants are sub-tenants. Since tenancy between the plaintiff and Shri R.N. Rai was still subsisting, the plaintiff could not claim any amount from the defendants directly. The Plaintiff was not entitled to possession till Shri R.N. Rai was evicted and as such the defendants were not liable to pay any damages for keeping the plaintiff out of possession. Till an order for eviction of Shri R. N. Rai was passed the plaintiff could claim rent or damages for use and occupation of possession from Shri R.N. Rai. On this basis the said suit filed by the plaintiff was dismissed. Thus according to the defendants the remedy of plaintiff was to institute eviction proceedings against Shri R.N. Rai before the Rent Controller, Delhi.
10. Insofar as judgment dated 4.3.1974 in Suit No.82/73 is concerned that may not come in the way of the plaintiff. Admittedly, thereafter the plaintiff had filed petition for eviction under the provision of Delhi Rent Control Act. However, that was dismissed on the ground that there was no relationship of landlord and tenant between the parties after Shri R.N. Rai was declared as unauthorised occupant by the Settlement Commissioner itself. These defendants were also parties to the said proceedings before the Additional Rent Controller. The judgment of the Additional Rent Controller was upheld in appeal before the Rent Tribunal as well as second appeal in this Court. Nothing was pointed out by the defendants about the judgment dated 4.3.1974 passed by Additional District Judge. Fact remains that the plaintiff had invoked the provisions of the Delhi Rent Control Act but remained unsuccessful. It was decided that such a petition was not maintainable in the absence of any landlord and tenant relationship between the parties. These findings in the case have attained finality and would operate as res judicata between the parties. Therefore, faced with such a situation when the plaintiff filed the present suit, defendants cannot now take the plea that plaintiff should approach the machinery provided under the Rent Control Act. Moreover when we examine the two judgment i.e. one dated 4.3.1974 passed by Additional District Judge in Suit No.82/73 and the other of the Additional Rent Controller in eviction petition, there may not be a conflict. The suit was dismissed only on the ground that as per the allegations made in the plaint Shri R.N. Rai was still a tenant and the defendants are sub-tenants. On this basis alone it was held that when the plaintiff himself was claiming Shri R.N. Rai to be a tenant, he should have sough eviction of Shri R.N. Rai. However, before the Additional Rent Controller, a finding was recorded to the effect that there was no relationship of landlord and tenant between the parties. It is this finding which has attained finality and has become res judicata. The defendants cannot render the plaintiff remedyless by creating such a situation, namely, when the plaintiff approached the Rent Controller his petition is dismissed on the ground that there is no relationship of landlord and tenant and when the plaintiff approached Civil Court the plea is taken that he should have approached Rent Controller as there is a relationship of landlord and tenant.
11. Be as it may one cannot turn a blind eye to the various orders passed by the Settlement Commissioner as per which Shri R.N. Rai had sub-let, assigned or parted with possession of the whole premises allotted to him to the defendant No.3 M/s. Tej without the permission of the competent authority. By order dated 1.9.1961 Managing Officer of the Regional Settlement Commissioner had cancelled the tenancy of defendant no.2 on the ground of unauthorised and illegal transfer. By that order defendant No.3 was held to be unauthorised occupant of that premises. Therefore, as per these orders these defendants have been declared to be unlawful occupants of the premises. No doubt in the written statement filed in this court defendants 3 and 5 have pleaded that they are lawful tenants at the rate of Rs.225/- per month as rental. However, this plea appears to be specious as the aforesaid orders of the Settlement Commissioner which were not challenged at any point of time, cannot be ignored while taking prima facie view of the matter. The defendants have not produced any document on record on the basis of which they could at least prima facie claim themselves to be the lawful tenants. Therefore, in case ultimately decree of possession is passed against the defendants holding them to be in unauthorised occupation of the premises, the defendants in that eventuality would be liable to pay the mesne profits/damages for the period in question.
12. The plaintiff has claimed these damages at the rate of Rs. 50,000/-PM. May be there is no enquiry conducted so far while determining the mesne profits payable, fact remains that in that eventuality such a decree is passed on whatever amount determined, it would be a substantial amount. When defendants are, prima facie, unauthorised occupants they cannot be allowed to remain in possession of the premises without paying any amount. Paying a sum of Rs.225/-per month will not serve any purpose. Court can take judicial notice of the location of the premises and also that it consists of 1000 sq.feet. Leaned counsel for the plaintiff has placed on record copy of the order dated 27.5.1999 passed in the Division Bench of this Court in FAO(OS)159/99 wherein direction was made to deposit at the rate of Rs.45/-per sq.feet by way of interim measure. Learned counsel also relied upon the judgment of Madhya Pradesh High Court in the case of Shyamacharan Raghubar Prasad Tiwari Vs. Sheojee Bhai Jairam Chattri and another holding that controlled or standard rent which are for benefit of a lawful tenant cannot be allowed against unlawful possessor. Learned counsel also relied upon judgments in the cases of Phiraya Lal Kapur Vs. Jia Rani and another AIR 1973 Delhi 86; Dwarka Rai and others Vs. Babu Lakshmi Narain Singh and others ; S Kumar Vs. G.R. Kathpalia & Anr. and Fatech Chand Vs. Balkishan Dass in support of his contention that mesne profit can be awarded by the Court and the criteria for calculation of mesne profits is the profits which the person in wrongful possession actually received or might with ordinary diligence have received from the property to together with interest on such profits.
13. One has also to bear in mind that in case decree for mesne profits is passed after enquiry, the amount would be substantial and it may become difficult for the plaintiff to recover t his amount from the defendants at that time. Moreover as already observed earlier the defendants cannot be allowed to enjoy the use and occupation of t he premises without paying anything. Something which is to be paid by the defendants cannot be a meagre amount of Rs.225/-per month. Therefore, after balancing the interest of both the sides and taking judicial notice of the location and area of the suit premises, it would be appropriate if the defendants 3 and 5 deposit in this Court at least a sum of Rs.15,000/- per month (i.e. Rs.15/- per sq.ft.) which in any case is on lower side. This amount should be deposited with the Registrar. This amount for a period of three years prior to filing of the suit on which the court fee is also paid by the plaintiff would come to Rs.5,40,000/-. The defendants would also deposit a sum of Rs. 15000/- per month from the date of filing of the suit and continue to deposit at that rate for future period also. For the arrears, deposit should be made within four months. The defendants should start making future deposits by 7th of the following month i.e. for the month of April, 2001 deposit should be made by 7th of May, 2001 and so on. The arrears of t he amount deposited as well as future deposits made would be kept in the bank in a fixed deposit by the Registrar of this Court.
14. The application stands disposed of.