Delhi High Court - Orders
G L Oberoi vs Lal Dev Pandit on 20 September, 2021
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Digitally Signed By:DEVANSHU
JOSHI
Signing Date:23.09.2021 14:19:43
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 20/2019 & CM APPL. 4634/2019
G L OBEROI ..... Appellant
Through: Mr. Manu Sishodia and Mr. Hitesh
Saini, Advocates with Appellant in
person. (M:9810019309)
versus
LAL DEV PANDIT ..... Respondent
Through: Mr. Triloki Pandit, Advocate.
(M:98105699536)
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 20.09.2021
1. This hearing has been done through hybrid mode.
2. The present second appeal arises out of the impugned judgment and decree dated 31st August, 2018 passed by ld. ADJ, Dwarka Court, New Delhi (hereinafter "Appellate Court"). By the said judgement, the Appellate Court had upheld the decree of possession granted by the trial court, on 30th May, 2017 except in respect of damages, where there was some modification.
3. The brief background is that Shri G. L. Oberoi - Appellant/tenant (hereinafter "tenant") had taken Shop No. 28, Ground Floor, Vishal Tower, District Centre, Janakpuri, New Delhi-110058 (hereinafter "suit shop") on rent, vide lease deed dated 25th February, 2003. A suit was filed by the landlord - Respondent herein (hereinafter "landlord") seeking possession after termination of the said tenancy. Vide judgment dated 6th June, 2012, the trial court had dismissed the first suit of the landlord on the ground that RSA 20/2019 Page 1 of 13 Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:19:43 the rent was Rs.3500/- and, therefore, the correct remedy was to approach the Rent Control Tribunal. The operative portion of the said judgment reads as under:
"19. It is also crystal clear that the law for eviction of tenants in respect of premises whose monthly rent is Rs.3500/- or less is contained in Delhi Rent Control Act and therefore, the proper remedy for the plaintiff lies in Delhi Rent Control Act and the correct forum is the Rent Control Tribunal."
4. Subsequent to the said judgment, the landlord relied upon Section 6A of the Delhi Rent Control Act, 1958 (hereinafter "DRC Act") which provides enhancement of 10%, every 3 years. Thereafter, he served notice dated 28th July, 2012 on the strength of Section 6A of the DRC Act and terminated the tenancy. A fresh suit was filed by the landlord now on the enhanced rent of Rs.3850/- per month. The issues framed by the trial court in the said suit were as under:
"1. Whether the plaintiff is entitled to the decree of possession as prayed for? OPP
2. Whether the plaintiff is entitled to recovery of arrears as mentioned in Order dated 09.11.2011 passed by the Ld. Addl. District Judge-06, West, Delhi? OPP
3. Whether the plaintiff is entitled to decree of damages @ Rs.25,480/- p.m. as prayed for? OPP
4. Whether the plaintiff is entitled to the decree of permanent injunction? OPP
5. Whether the suit of the plaintiff is hit by Section 11 CPC? OPD
6. Whether the suit of the plaintiff is hit by Section 50 and Section 3 of DRC Act? OPD
7. Whether the suit of the plaintiff is hit by Section 54 of Transfer of Property Act? OPD RSA 20/2019 Page 2 of 13 Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:19:43
8. Whether the plaintiff has not affixed the proper court fees? OPD
9. Whether the suit of the plaintiff is not maintainable in the present form? OPD
10. Relief."
5. One of the issues was relating to whether the second suit was barred by res judicata under Section 11 CPC. The trial court held that the second suit was based on a completely new cause of action and, accordingly, decreed the suit of the landlord in the following terms.
"18. The above facts clearly demonstrates that this suit has been filed by plaintiff on the basis of second legal notice Ex. PW1/I5 regarding termination of tenancy and after increasing the rent to Rs.3,850/- per month though notice Ex PW 1/8, As such a fresh cause of action arose in favour of plaintiff after increase in rent and issuance of the second legal notice Ex. PWI/I5. Under such circumstances, it cannot be held that the suit is barred by the doctrine of Rea Judicata when the second suit has been filed on a subsequent cause of action.
This issue is decided in favour of plaintiff and against the defendant.
XXX
46. Relief.
With these observations and findings, the suit of the plaintiff stands decreed. Defendant is directed to handover the peaceful and vacant possession of suit shop i.e. shop No. G-28, Ground Floor, Rishal Tower, District Centre, Janak Puri, DeIhi-110058, as shown in red colour in the site plan Ex. PW 1/1, to plaintiff within one month from the date of drawing of decree sheet. Plaintiff is further entitled to recover arrears of rent from defendant @ Rs. 3,500/- per month w.e.f. 06.08.2009 till 30.08.2012. Thereafter, RSA 20/2019 Page 3 of 13 Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:19:43 defendant shall pay arrears of rent from 01.09.2012 till 31.10.2012 @ Rs.3,850/- per month.
47. Plaintiff is also awarded damages/mesne profits @ Rs. 10,000/- per month w.e.f. 01.11.2012. This amount of damages shall be increased at the rate of 15% with escalation of every 3 years i.e. since 01.11.2015, the mesne profits would be Rs. 11,500/- per month and so forth, till the date of handing over of its physical possession. However, defendant is entitled to adjust the amount of rent already deposited by him before the court. Interest claimed by plaintiff @ 15% p.a. is on the higher side. Interest @ 10 % per annum is fair and equitable and is awarded to the plaintiff. Cost of the suit is also awarded to the plaintiff."
6. This judgment was appealed by the tenant. Vide the impugned judgment dated 31st August, 2018, the decree passed by the trial court for possession has been upheld and in respect of the damages, the arrears of rent was modified from Rs.3850/- per month to Rs.3500/- per month. The operative portion of the Appellate Court's judgment reads as under:
"46. The decree for arrears of rent vide the impugned judgments is @ 3500/- per month for the period 06.08.2009 till 30.08.2012 and thereafter for enhanced rent @ Rs.3850/- per month from 01.09.2012 till 31.10.2012. Damages @ Rs.10,000/- per month have been awarded for the period 01.11.2012 onwards.
47. It is seen that the suit was instituted in 09.11.2012. Consequently, arrears could have been awarded only for the preceding three years as the recovery of arrears prior to 09.11.2009 was barred by limitation.RSA 20/2019 Page 4 of 13
Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:19:43
48. Hence, the decree is liable to be modified with respect to the term of the period for which arrears of rent are to be awarded to the plaintiff. The appeal is liable to be allowed to the limited extent that arrears of rent are to be awarded @ Rs.3500/- per month from 09.11.2009 to the date of termination of the tenancy i.e. 31.10.2012.
49. As to the assessment of damages @ Rs. 10,000/- per month by the Id. trial court, the court would observe that the award of arrears of rent @Rs. 3500/- per month had its basis in the said rate of rent operating between the parties in the year 2003 i.e. when the plaintiff became the landlord upon purchase from the previous owner on 05.07.2003. The same rate of rent could not be stated to have been prevailing even in the year 2012. Damages were therefore expectedly to be awarded at a higher rate. The court does not find the estimation of damages @Rs. 10,000/- per month from 01.11.2012 to be excessive. Similarly, the enhancement @ 15% every three years, awarded by the trial court is just. The award of interest @ 10% per annum cannot be termed excessive either.
50. The appeal is therefore partly allowed to the extent that arrears of rent are awarded in favour of the plaintiff and against the defendant @ Rs. 3500 per month from 09.11.2009 to 31.10.2012. The remaining reliefs awarded vide the impugned judgment dated 30.05.2017 are upheld."
7. Thus, the Appellate Court restricted both the period and amount of arrears of rent payable. The appellate court directed payment of Rs. 3,500/- as arrears for the period 9th November 2009 to 31st October 2012. The remaining award of damages and enhancement etc., were upheld. The RSA 20/2019 Page 5 of 13 Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:19:43 present second appeal has been filed challenging the said judgment.
8. The submission of Mr. Sishodia, ld. Counsel appearing for the tenant, is that the second suit was barred by res judicata in view of Section 11 of the CPC. He submits that the issues tried in the first suit and in the second suit were identical. Even in the first suit, complete evidence was led for a period of seven years and thereafter the suit was dismissed. Since the Court had held that the appropriate remedy for the landlord was to proceed to the Rent Control Tribunal, the second suit was not maintainable at all.
9. It is his submission that the only remedy, which was available, was to seek relief under Section 14 of the DRC Act. He further submits that the enhancement of rent under Section 6A should not be granted in favour of the landlord as per the second notice dated 28th July, 2012. Further submission of Mr. Sishodia is that there is no basis of damages, which have been fixed by the trial court or by the Appellate Court, as the rent deed, which was relied upon, was not produced in original to prove the market rent.
10. On the other hand, Mr. Pandit, ld. Counsel on behalf of the landlord, submits that the total amount due in terms of the Appellate Court's order is more than 15 lakhs. The tenant has only paid a sum of Rs.1.68 lakhs till now from 2009 onwards. There are huge arrears of rent and even the damages and mesne profits fixed by the trial court and the Appellate Court have not been paid. He further submits that the tenant had been unnecessarily holding up giving up the possession of the property, inasmuch as the tenant owns another shop bearing No. G-27, Ground Floor, District Centre, Janakpuri, New Delhi, which is used by him, so therefore, he already had an alternative accommodation to continue his business. Additionally, he submits that this being a commercial property, no indulgence ought to be shown by this RSA 20/2019 Page 6 of 13 Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:19:43 Court. He further submits that the enhancement of rent lead to the second cause of action, which is clear from the second termination notice, which was issued by the landlord on 28th July, 2012. Both the judgments do not deserve to be interfered with.
11. The main contention of the tenant in the present case is that the second suit is barred by res judicata. This contention is raised on the ground that the issues, which were framed in the first suit and second suit are identical. For the sake of reference, the relevant issues framed in both the suits are set out below:
In the first suit dated 6th June 2012:
"1. Whether the plaintiff is entitled to the decree of possession as prayed for? OPP
2. Whether the plaintiff is entitled to recovery of arrears as mentioned in Order dated 09.11.2011 passed by the Ld. Addl. District Judge-06, West, Delhi? OPP
3. Whether the plaintiff is entitled to decree of damages @ Rs.25,480/- p.m. as prayed for? OPP
4. Whether the plaintiff is entitled to the decree of permanent injunction? OPP
5. Whether the suit of the plaintiff is hit by Section 11 CPC? OPD
6. Whether the suit of the plaintiff is hit by Section 50 and Section 3 of DRC Act? OPD
7. Whether the suit of the plaintiff is hit by Section 54 of Transfer of Property Act? OPD
8. Whether the plaintiff has not affixed the proper court fees? OPD
9. Whether the suit of the plaintiff is not maintainable in the present form? OPD
10. Relief."RSA 20/2019 Page 7 of 13
Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:19:43 In the second suit issues were framed vide order dated 17th January 2013:
"1. Whether the plaintiff is entitled to the decree of possession as prayed for? OPP
2. Whether the plaintiff is entitled to recovery of arrears as mentioned in Order dated 09.11.2011 passed by the Ld. Addl. District Judge-06, West, Delhi? OPP
3. Whether the plaintiff is entitled to decree of damages @ Rs.25,480/- p.m. as prayed for? OPP
4. Whether the plaintiff is entitled to the decree of permanent injunction? OPP
5. Whether the suit of the plaintiff is hit by Section 11 CPC? OPD
6. Whether the suit of the plaintiff is hit by Section 50 and Section 3 of DRC Act? OPD
7. Whether the suit of the plaintiff is hit by Section 54 of Transfer of Property Act? OPD
8. Whether the plaintiff has not affixed the proper court fees? OPD
9. Whether the suit of the plaintiff is not maintainable in the present form? OPD
10. Relief."
12. The main contention of the tenant is that after dismissal of the first suit, the second suit was not maintainable despite the statutory enhancement under Section 6A. The suit having been held to be not maintainable and the Court having relegated the parties to the Rent Control Tribunal, a second civil suit would be barred.
13. Heard. A mere reading of Section 11 of the CPC along with the issues framed in both the suits shows that the issue of possession may be identical, however, while deciding the issue of res judicata, what ought to be assessed is not the mere wording of the issue, but the question as to whether the foundational facts leading to framing of the said issues had themselves RSA 20/2019 Page 8 of 13 Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:19:43 changed or not.
14. It is the settled position in law that issues are framed on the basis of the facts in dispute, between the parties. In the first suit, the issue, which was framed, was whether the possession was liable to be handed over and that issue was based on the facts as existing on the day when the suit was instituted. The foundational facts had completely changed after the statutory enhancement under Section 6A and the termination notice dated 28th July, 2012. Thus, the issue though worded identically in the second suit, was not based on the same facts. The facts forming the basis of the second suit, having changed, the issue deserved to be adjudicated afresh in view of the fact that the cause of action had also arisen afresh owing to the enhancement and the termination. The observations Mulla on The Code of Civil Procedure (2017, 19th edn.) on this aspect of Section 11 CPC are as under:
"26. Conditions of Res Judicata.- XXX The claim of right depends upon proof of facts and application of law relevant thereto. When it is said that a previous decision is res judicata, it is meant that the right claimed has already been adjudicated upon and cannot again be placed in contest between the same parties. The decision on law cannot be dissociated from decision on facts on which the right is founded. In other words, when the finding on an issue is based on certain view of the law, that view of the law, as an abstract proposition and dissociated from the actual matter in issue, will not be res judicata so as to be applicable to all future disputes between the same parties which may give rise to the applicability of the same abstract question of law."RSA 20/2019 Page 9 of 13
Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:19:43 Thus, the question of res judicata raised under Section 11 cannot be looked at in a completely pedantic manner, divorced from the facts.
15. It is pertinent to note that the first suit was also not adjudicated on merits. It was merely dismissed on the ground that the Rent Control Tribunal was the forum to properly adjudicate the issues. It is the settled principle of law that in order for res judicata to apply, the earlier adjudication ought to have been on merits. Mulla on CPC (supra) opines:
"In order that a matter may be said to have been heard and finally decided, the decision in the former suit must have been one on the merits."
Under such circumstances, the first suit having not been decided on merits and the foundational facts and the cause of action having changed, the second suit would not be barred by res judicata. Thus, the trial court's finding that there was a fresh cause of action does not warrant any interference.
16. Insofar as the question of damages/mesne profits is concerned, the manner in which the damages were imposed by the trial court is as under:
"44. However, considering the fact that plaintiff has not been cross examined on the point of damages and mesne profits and also considering the fact that the suit shop is located in a commercial hub i.e. District Centre, Janak Puri, the size of suit shop and also the fact that defendant is a tenant therein since 2003, in my considered opinion, damages / mesne profits at the rate of Rs. 10,000/- per month would be fair. Hence the plaintiff is awarded this amount as mesne profits / damages w.e.f. 01.11.2012 i.e. the date from which the tenancy was terminated vide legal notice Ex. PW 1/|15. This mesne profits/damages would be subject to increase by RSA 20/2019 Page 10 of 13 Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:19:43 15% with expiry of every three years till the date of vacating the suit shop."
17. Insofar the Appellate Court is concerned, the damages imposed are as under:
"48. Hence, the decree is liable to be modified with respect to the term of the period for which arrears of rent are to be awarded to the plaintiff. The appeal is liable to be allowed to the limited extent that arrears of rent are to be awarded @ Rs.3500/- per month from 09.11.2009 to the date of termination of the tenancy i.e. 31.10.2012.
49. As to the assessment of damages @ Rs. 10,000/- per month by the Id. trial court, the court would observe that the award of arrears of rent @Rs. 3500/- per month had its basis in the said rate of rent operating between the parties in the year 2003 i.e. when the plaintiff became the landlord upon purchase from the previous owner on 05.07.2003. The same rate of rent could not be stated to have been prevailing even in the year 2012. Damages were therefore expectedly to be awarded at a higher rate. The court does not find the estimation of damages @Rs. 10,000/- per month from 01.11.2012 to be excessive. Similarly, the enhancement @ 15% every three years, awarded by the trial court is just. The award of interest @ 10% per annum cannot be termed excessive either.
50. The appeal is therefore partly allowed to the extent that arrears of rent are awarded in favour of the plaintiff and against the defendant @ Rs. 3500 per month from 09.11.2009 to 31.10.2012. The remaining reliefs awarded vide the impugned judgment dated 30.05.2017 are upheld."
18. The difference is in respect of the period and the amount which is RSA 20/2019 Page 11 of 13 Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:19:43 reflected in the table below:
Particulars Trial court Appellate Court Arrears of rent Rs. 3,500/- for 6th August 2009 Rs. 3,500/- but only from 9th to 30th August 2012 November 2009 Arrears of rent Rs. 3,850/- for 1st September Rs. 3,500/- till 31st October 2012 to 31st October 2012 2012 Damages Rs. 10,000/- w.e.f. 1st November ----Same as trial court---2012
Thus, the period and the amount in respect of arrears of rent, was modified by the Appellate Court. Remaining reliefs granted by the trial court were upheld.
19. In the meantime, today the tenant, who is present in Court, submits that he is 80 years of age and his son, who was actually running the business in both the shops, expired in March, 2021. The tenant also submits that he is willing to hand over the possession of the suit shop immediately to the landlord tomorrow itself.
20. Considering the age of the tenant, a senior citizen, and the fact of his son having expired, after passing of the impugned judgment, this Court takes a compassionate view of the matter and modifies the damages to Rs.5,000/- per month with effect from 1st November, 2012 instead of Rs.10,000/- per month. If the entire arrears are cleared within a period of 6 months from today, no interest would be liable to be paid. If the same are not cleared, there shall be enhancement of 10% every three years.
21. As per the calculation filed by the landlord, he has only received Rs.1.68 lakhs, however, the case of the tenant is that he has deposited more than 3.2 lakhs. If that is the position, both the counsels may appear before RSA 20/2019 Page 12 of 13 Digitally Signed By:DEVANSHU JOSHI Signing Date:23.09.2021 14:19:43 the Executing Court and all the money which is lying deposited by the tenant, along with the interest accrued thereon, shall be released to the landlord within two weeks.
22. Parties to appear before the Executing Court on 6th October, 2021. The Executing Court would verify the position and release the entire amount deposited in favour of the landlord within two weeks from 6th October, 2021.
23. Insofar as possession is concerned, the tenant has undertaken and agreed before this Court that he would hand over the vacant peaceful possession of the suit shop through the bailiff tomorrow i.e., 21st September, 2021, at 3:00 pm. The tenant shall also ensure that the electricity and water charges etc. are cleared upto date and proof of payment shall be given to the landlord within a period of two weeks. The amounts, which are paid to the landlord, shall be adjusted in any amounts further payable in terms of this order.
24. With these observations, the appeal is disposed of.
PRATHIBA M. SINGH, J.
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