Delhi District Court
Sh. Surinder Nath vs M/S Continental Constructions Ltd on 30 March, 2011
IN THE COURT OF DR. ARCHANA SINHA
ADDL. DISTRICT & SESSIONS JUDGE, (CENTRAL) 04, THC, DELHI
Date of institution : 06.09.1996
Judgment reserved on : 26.03.2011
Judgment delivered on : 30.03.2011
Suit No.000280/08/96 Unique Case ID No. 02401C6007282004
Sh. Surinder Nath
S/o Late Sh. Prem Nath,
R/o B36, Greater Kailash Part I,
New Delhi110020 .... Plaintiffs
Versus
M/s Continental Constructions Ltd.,
28 Nehru Place,
New Delhi. 110019. ... Defendant
J U D G E M E N T
1. This is a suit for eviction,damages and mesne profits.
2. In nutshell, the case as set out in the plaint is that the plaintiff Surinder Nath has let out the premises No. E333, East of Kailash, New Delhi (hereinafter called as `suit premises'), to the defendant M/s.Continental Construction Ltd., vide lease deed dated 23.03.1994 at the monthly rent of Rs.13,225/.
3. It was pleaded that the term of the lease expired on 27.05.1996 Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 1 and the tenancy of the defendant was terminated vide notice dated 01.05.1996, and the defendant was bound to restore the possession of the said property by 31.05.1996 to the plaintiff. However, the defendant failed to vacate the premises and pay the rent, which is due since 31.03.1996, besides after termination of the tenancy, he was also liable to pay the mesne profits for use and occupation of the same at the prevalent market rate of Rs.8,000/per day, and thus the plaintiff brought the suit for eviction and for mesne profits w.e.f. 14.10.1999, along with pendent lite and future interest.
4. The defendant in the pleadings by way of written statement has taken preliminary objections that the suit of the plaintiff is liable to be dismissed, as no cause of action ever accrued in favour of the plaintiff and against the defendant. Also it is claimed that there was an oral agreement and understanding between the plaintiff and defendant to the effect that the property in question was leased out for a period of 15 years, with an increase of 10% to 15% rent every three years, to that effect fresh lease deeds were to be executed after expiry of three years period.
It is also alleged that the plaintiff has not approached this Court with clean hands, and is rather guilty of suppression and concealing material facts.
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Further, it is submitted that proper court fee has not been paid by the plaintiff and the suit does not fall within the pecuniary jurisdiction of the Court. Apart from the preliminary objections, the defendant has further raised a plea that after expiry of the lease deed dated 28.03.1988, plaintiff executed another lease deed on 25.03.1991 for a further period of three years, on a monthly rent of Rs.11,000/, and the security amount of Rs.1,50,000/ was further retained by the plaintiff on similar conditions as before. And also that the defendants had approached the plaintiff in the year 1993 for structural repairs required to be carried out in the premises, vide its various letters, but no action was taken by the plaintiff. It is emphatically denied that the tenancy of the defendant was ever terminated, and thus it was prayed that suit of the plaintiff be dismissed on these counts with exemplary costs.
5. The replication to the written statement was filed by the plaintiff reiterating the facts as stated in the plaint and denied the averments of the defendant.
6. On the basis of the pleadings vide order dated 18.12.1996, the following issues were framed :
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(i).Whether suit is premature as alleged? OPD.
(ii).Whether there was any agreement for continuing the tenancy for 15 years. OPD.
(iii). Whether the tenancy of the defendant was terminated as alleged by the plaintiff.? OPP.
(iv).Whether the tenancy of the defendant has also expired by efflux of time vide lease dead on 23.03.1994? OPP.
(v). Whether the defendant is on the tenancy month to month basis? OPP.
(vi).Whether the plaintiff is entitled for the relief of eviction as claimed? OPP.
7. The plaintiff has examined five witnesses for proving his case. PW1 Sh. Rohtas Bhatnagar has exhibited one letter Ex.PW1/1 to show that a complaint sent by some Ajit Singh was delivered to M/s Chandra and Chandra vide A.D. Letter No.1032 dated 01.05.1996. PW2 Sh.Vinod Kumar was the Public Relation Inspector and had brought the dispatch register with regard to the aforesaid letter No.1032 dated 01.05.1996. Copy of dispatch register was exhibited as Ex.PW2/2. PW3 Sh.S.S. Handa, Advocate had deposed that he had issued a legal notice on behalf of the plaintiff to the defendant and proved photocopy of the said Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 4 notice along with postal receipt as Ex.PW3/1. Photocopy of legal notice was Ex.PW3/2.
PW4 Sh. Indraj Raj was a postman and deposed that registered letter No.1032 dated 01.05.1996 was delivered by him to M/s Continental Construction Ltd. 28, Nehru Place, New Delhi.
The plaintiff Sh. Surinder Nath was examined himself as PW5 and proved his affidavit Ex.P5A and additional affidavit Ex.P5B and has proved the valuation report Mark X. Plaintiff was crossexamined at length by ld. Counsel for the defendant, some time as PW1 and some time as PW5 on different dates.
One Sh. Ravi Raj was the Real Estate Agent, also examined as PW2 (now he has referred as PW2A for writing the judgment).
One Architect Sh. R.S. Yadav was also examined as PW3 (now he has referred as PW3A for writing the judgment), who proved the valuation report Mark X as PW3/1, site plan as Ex.PW3/2 and house tax receipt as Ex.PW3/3.
8. To counter the plaintiff's case, the defendant has examined only one witness Sh. S.S. Sinha, who proved documents Ex.DW1/1 to Ex.DW1/7. Ex.DW1/1 is the Special Power of Attorney dated 11.08.2009. Ex.DW1/2 to Ex.DW1/6 are the letters dated 08.04.1993, Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 5 23.04.1993, 09.07.1993, 16.09.1993 & 17.09.1993, respectively. Ex.DW 1/7 is the notice dated 22.09.1993.
9. I have heard Ld. Counsel Sh.M.L. Sharma for the plaintiffs and Ld. Counsel Sh. Kunal Rawat for the defendant on all the issues and have gone through the records placed with the file.
10. An application under Order 6 Rule 17 CPC moved on behalf of the plaintiff was allowed for amendment of the pleadings. On the basis of such amended pleadings of the parties, vide order dated 21.12.2001, an additional issue has also been framed:
(vii).Whether plaintiff is entitled to mesne profits? If so at what rate and for which period? OPP.
11. Vide order dated 29.03.2005, a decree for possession of the suit premises was granted under Order 12 Rule 6 CPC in favour of the plaintiff and against the defendant and in pursuance thereof the possession of the suit property was handed over on 06.10.2005.
Thus except the issue No.(vii) relating to mesne profits, all other issues became infructous for the purpose of adjudication, as the same were relating to the issues for eviction of the premises. Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 6
12. Now the issue for adjudication is reproduced as : "Whether plaintiff is entitled to mesne profits? If so at what rate and for which period? OPP".
My findings on the above issue are as follows:
13. The onus of proving the entitlement to mesne profits against the defendant was on the plaintiff and to establish such issue, the plaintiff has examined total number of five prosecution witnesses, but the evidence of PW1 Surinder Nath the plaintiff, PW2A Sh. Ravi Raj a Real Estate Agent/Property Dealer and PW3A Sh. R.S. Yadav, an architect was relevant in respect of the issue in hand.
14. PW1, the plaintiff has exhibited his affidavit as Ex.P5A and additional affidavit as Ex.P5B, who deposing through affidavit Ex.P5A has averred that through the lease deed dated 23.03.1994, the suit property was let out to the defendant at the monthly rent of Rs.13,225/ per month, but on termination of the tenancy vide notice dated 01.05.1996, he has claimed damages/mesne profits from defendant @ Rs.8,000/ per day w.e.f. 13.09.1999 to 06.10.2005 for use and occupation of the suit premises, as the defendant became unauthorized occupant after serving of notice for termination of tenancy. It was deposed that the amount has Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 7 been calculated on the basis of the market rate, for the description of the suit property that was built on the plot measuring 450 square yards, situated on the main road at East of Kailash, New Delhi, a posh area of Delhi, lying opposite to the main commercial market and the suit premises consisting of basement, first floor and second floor.
15. Further, it was deposed that as per the real estate agent/property dealer Sh. Ravi Raj, examined as PW2A, who was carrying on the business under the style of "Seven Star Properties", in regards to the rate of rent of the similarly situated property during the period in question, it could fetch not less than Rs.2,50,000/ per month as per his estimate of the market rate of the suit property.
The PW1 has also deposed through his additional affidavit Ex.PW5/B, that as per the valuation of the suit property through one Sh.R.S. Yadav, an architect, who inspected the property and prepared his valuation report, the rate of rent of such property in the year 1999 was more than Rs.1,12,674/, and after the year 2001 due to steep hike in the price of the properties, the rate was more than Rs.2,50,000/ per month. The plaintiff has also examined Sh. R.S. Yadav as PW3A.
16. PW2A Sh. Ravi Raj and PW3A Sh. R.S. Yadav have given Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 8 the verbatim evidence in the Court when they were examined and on these aspects, the contrary suggestion put to them, were denied, that the suit property could not fetch such rate of rent and was not of such value as per valuation report Ex.PW3/1 and site plan Ex.PW3/2. The house tax receipt was also exhibited as Ex.PW3/3 by PW3.
17. Ld. Counsel Sh. M. L. Sharma for the plaintiff has submitted that vide para No. 2(a) in the amended plaint dt 14.05.04, the plaintiff has abandoned the rate of rent for the suit premises and by inserting para No. 3(a) in the plaint has claimed the mesne profits @Rs. 8,000/ per day for the period the tenancy was terminated till the possession was handed over. It was submitted that apart from mere denial in the contrapleadings of the defendant through the amended written statement, nothing has been placed to controvert such facts in the pleadings and to the testimony of PW1, 2A and 3A on the market rate of mesne profits @Rs. 8,000/ per day for use and occupation of the property, was unrebutted and unchallenged, thereby establishing the facts regarding the claim of the plaintiff.
Ld. Counsel for the plaintiff, has raised the contentions that the defendant has not entered into the witness box to depose any contrary facts pleaded in the amended written statement of the defendant and the Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 9 attorney of the defendant has admitted that he was not present at the time of lease agreement between the parties, and that he had no personal knowledge about the facts stated in the pleadings of the defendant. Thus, on the point in issue, his testimony cannot be read in evidence in view of the Law settled in a case titled as Usha Rangnathan Vs. N.K.V. Krishnan & Ors. Cited as AIR 2009 Madras 178 that has relied on the case Janki Vasudev Bhojwani vs Indusind Bank Ltd.,AIR 2005 SC 439 on the propositions of Law relevant under Order 3 Rule 1 & 2 CPC which deals with the position of holder of power of attorney to 'act' on behalf of the principal (the defendant in this case).
Thus, it was submitted by the Counsel that the case of the plaintiff regarding the market rate of the mesne profit stand established on record.
18. The defendant has contested the issue by leading an evidence of one Sh. S. S. Sinha, examined as DW1, who has tendered his affidavit inevidence Ex.DA and has deposed that he is the duly constituted attorney of the defendant company vide power of attorney Ex. DW1/1 and is well conversant of the facts of the case.
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19. It was further deposed by DW1 that the suit premises was taken on rent for the residential use of one of its Director and the plaintiff offered the lease for 15 years through oral agreement and understanding, but later on it was converted into a written lease deed dated 28.03.88 @Rs.10,000/ per month as rent, with a stipulation of further increase by 10 to15% after a period of 3 years with a fresh lease deed.Also that such lease has created a limited tenancy u/Section 21 of the Delhi Rent Control Act, as per the permission granted by Ld. ARC Sh. Rakesh Kapoor.
20. It was further deposed that on expiry of the lease after 3 years, a fresh lease was created on 25.03.1991 at the increased rate of monthly rent of Rs.11,000/ and the security amount of Rs.1,50,000/ was retained by the plaintiff and that on the request of structural repairs in the premises vide several letters Ex. DW1/2 to 1/7, it resulted in serving of a legal notice by the plaintiff to the effect that they did not want to extend the lease. The same was replied vide letters Mark A & B.
21. The lease deed has already been executed for another 3 years on23.03.94 on expiry of the three years period of the earlier lease at the increased rate of monthly rent of Rs. 13,225/, i.e., @ 20% increase to the earlier rate of rent.
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22. This witness has produced a report of a real estate agent M/s. Kaushik Estates, showing that according to the said report, the prevailing market rent at that time was only an increase of about 10 to 15% in the rental value of the properties of the similarly situated property in the locality. Therefore, it is deposed that the defendant was entitled only for a rate of rent in the range of Rs.16,000/ to Rs.17,500/ for the year 1999 2000 and Rs.17,500/ to Rs.20,000/ for the subsequent years in between 2002 to 2005, not more than that. The valuation report dated 15.09.2006 was Marked as Mark- C. It is also deposed that despite the understanding between the parties regarding the repairs to the suit premises was to be done by the plaintiff, the defendant had to incur heavy expenses on account of repairs that needed to be adjusted. And that he was regularly paying the rent through cheques viz. the plaintiff has refused thereby the plaintiff cannot claim any mesne profit at the rate claimed.
23. Ld. Counsel for the defendant has specifically addressed on behalf of the defendant that the plaintiff is not entitled for the mesne profit @ 8,000/ per day as claimed, except of the rate of rent mentioned above in the depositions of DW1, submitting that the tenancy was never Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 12 terminated and the defendant was not an unauthorized occupant, and that the market rate was not as mentioned by the plaintiff that was highly excessive, particularly when it was a common knowledge that in the recession, the rates of properties in Delhi had not only declined but most of the properties were lying vacant, despite the best efforts of the landlord and in any case the plaintiff could not fetch more than the agreed rent.
24. On careful perusal of the evidence led by the parties on the point in issue in the light of contentions of both the parties, it is observed that the entire evidence needs to be appreciated only in reference to the short question: "As to what could be the rate of amount for use and occupation of the suit property during the period 13.09.1999 to 06.10.2005."
25. It is observed that the plaintiff has produced the evidence of Sh.Ravi Raj, PW2A and Sh. R.S. Yadav PW3A apart from his own evidence as PW1 on the point in issue, whereas the defendant has examined one witness Sh. S.S. Sinha as DW1, who has exhibited the report of one Real Estate Agent as Mark C, in support of his deposition.
26. Ld. Counsel for the plaintiff has questioned the evidence of Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 13 DW1 raising the contentions that he could not depose for his principal, i.e. the defendant company, in view of the law settled in Usha Ranganathan Vs. N.K.V. Krishnan & Anr., AIR 2009 Madras 178, submitting that in the said judgment, the Apex Court has relied on the earlier law settled in Janki Vasudev Bhojwani vs Indusind Bank Ltd., AIR 2005 SC 439, and the legal proposition of Order 3 Rules 1 and 2 CPC that deals with legal empowerment of the holder of power of attorney, and its extent to act on behalf of its principal. The contentions of ld. Counsel were that DW1 had no personal knowledge about the facts of the case, nor he was a participant to the lease deed executed between the parties, nor he has produced the original power of attorney, therefore, his evidence cannot be read for the defendant company.
27. The evidence led by the plaintiff for proving its claim for the mesne profits @Rs.8,000/ per day is based on the facts that the suit property is built up on the plot of land measuring 450 square yards consisting of basement, first floor and second floor and the entire building was in possession of the defendant up to 06.10.2005. Also, on the facts that the suit property was situated on the main road at East of Kailash, New Delhi opposite main commercial market and that the area i.e. East of Kailash is one of the posh colony of New Delhi and the rental are very Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 14 high in the locality. These facts are deposed by the plaintiff, Surinder Nath as PW1. This witness was crossexamined on these facts.
It is observed that during crossexamined PW1 has shown his ignorance regarding the nearby properties bearing No. F36, E59 First Floor, D17 Ground and First Floor , B12, B87 First and Second Floor, in East of Kailash, New Delhi were lying vacant or these were let out on rent. The suggestion was neither admitted nor denied that such properties were lying vacant. The suggestion was also denied that the suit property could fetch only admitted rent. To this witness a letter dated 06.10.1993 Mark A, was put to this witness, who has shown his ignorance about receipt of this letter, but accepted certain facts voluntarily that there was certain complaints about repairs to be carried out during his tenancy. Though, this witness has denied the suggestion that the suit property was in dilapidated condition. The perpetual lease of the property with DDA was produced in photocopy and was marked as Mark Z.
28. On the basis of such evidence, it was submitted on behalf of defendant that during the perpetual lease shows the value of the suit land as 20,250/ in the year 1970 and has to be valued accordingly for calculating the cost of land and construction as it was constructed only in the year 1970 before 1994.
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Also that the witness has no knowledge about the status and position of rent of the nearby properties to compare the rate of rent for the purpose of determining the quantum of rent of the suit premises as per the principle of Quantum Meriuts.
Also that the letters/communications including the letter dated 06.10.1993 put to the witness, were sent for requesting the structural repairs required to be done in the suit premises that was not carried by the plaintiff and it was informed through such letter that such repairs were asked to be done at their end and at their cost.
29. So far as the rate of rent is concerned, the plaintiff has produced PW2A Sh. Ravi Raj, the Real Estate Agent, who has deposed that he was engaged in the business of Real Estate for many years and on asking by the plaintiff, he informed him that the suit property could easily fetch a rent of Rs.2,50,000/ per month, if let out at rent, to the best of his estimate. This witness during his crossexamination also has shown his ignorance about the other properties in the area that were lying vacant or were not let out on rent. He has volunteered that there was no comparison in respect of rent with the property in E Block, in which the suit property has been situated.
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30. It is observed that this witness has vaguely deposed in the court that the suit property could easily fetch a rent of Rs.2,50,000/per month,but he has not clarified, as to whether such rent for such property could be fetched for its residential or nonresidential use. This witness has not informed any rent of any property of the area, similarly situated rather on crossexamination about the other properties of the area, he has denied the suggestion regarding the status that they were lying vacant or were let out on rent. He has volunteered that the properties referred had no comparison in respect of rent with the property in E Block,but he has not clarified about the position,status&rent could be fetched by another property E59,put to this witness in the suggestions. Thus, this witness could not give any comparative chart of the properties ever let out in the area or of the properties similarly situated as of the suit premises in question.
31. The plaintiff has also produced Sh. R.S. Yadav, PW3 who has exhibited his valuation report Mark X, with regard to rate of rent on which the suit property could be let out. He has also produced a house tax receipt Ex.PW3/3.
As per his report Ex. PW3/1, he has estimated the total cost of construction as Rs. 22,70,856/ and total land value as Rs. 1,12,50,000/ Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 17 @ 25,000/ per sq. yds. for the area of 450 sq. yards. He has calculated the rental value of the property as Rs. 1,12,674/ only.
It is observed that this witness has not clarified as to what was the circle rate for the cost of the land in that area or what was the basis to calculate the rate of Rs. 25,000/ per sq. yds for such land.
It is worth to mention that the lease deed of the suit land in 1970 as per MarkZ produced by PW1 was Rs. 20,250/ on 08.07.1970 and the land value was estimated as Rs. 1,12,50,000/ for the year 1999.
It is observed that as per house tax receipt Ex.PW3/3 dated 15.07.2006, the property tax for the year 20062007 was shown as Rs.16,193/. No receipt of house tax was produced for the period of 1999 2005, either by this witness or by the plaintiff for the period the rate of mesne profit was in issue.
32. During crossexamination, this witness has admitted that he had inspected the area for the purpose of submitting the report only in the year 2006 but his report was calculating pertaining to the rental value of the property for the year 1999 on the basis that the plaintiff has told him that the property was occupied by the tenant for that year. He has also shown his ignorance about the renovation of the suit property. He has also admitted that he has not seen the completion certificate and that it was Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 18 informed to him that the suit property was constructed in 1980s.
33. It is observed that the report Ex. PW3/1 was prepared on the basis of inspection in 2006, but valuing the suit property and the rental value for the year 1999. It is also observed that most part of the report was based on the facts submitted to him by the plaintiff, and no technical base of calculating the valuation was adopted. Even the report has not considered the circle rate of the land of the current year in that area or consideration amount of lease of the suit property with the DDA.
34. It is also observed, that the rental value was calculated on the basis of the cost of construction plus the cost of land divided by 120 and as the year of cost of construction was treated in 1980s , it was rated accordingly.
35. There is no evidence on record that after acquiring the land on perpetual lease from the DDA in the year 1970, the plaintiff has constructed the property only in 1980s.
36. Also it is observed that as per PW2 the rent was estimated @ Rs.2,50,000/ per month whereas as per PW3 it was rated as Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 19 Rs.1,12,674/ that has a difference of Rs.1,37,326/ that is more than the estimated rate of rent.
37. Thus, it is observed that for proving the market rate of rent, the plaintiff has relied on depositions as PW1, claiming @ Rs.8,000/ per day on the basis of size, locality, position of the suit premises on the main road and on the supporting estimation of PW2A, Ravi Raj, who was the real estate agent engaged in the business of letting and purchasing of the property in the locality, wherein the suit property is situated.
The plaintiff has also relied on the valuation report Ex.PW 3/1 of Sh. R.S. Yadav examined as PW 3A, who estimates the rental rate of the suit premises on the basis of cost of land and cost of construction divided by 120 as per his technical knowledge, being an architect and valuer of the property.
Whereas, the defendant has produced the report dt. 15.09.2006 of one real estate agent namely M/s Kaushik Estates, that was marked as Mark C. Such real agent was not produced by the defendant to put him on crossexamination on the aspect of his valuation report. As per the report, the property could fetch a rent in the range of Rs.16,000/ Rs.17,500/ in the year 19992000, and for the subsequent years, in the years 2002 to 2005 @ ranging from Rs.17,500/ to Rs.20,000/.
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38. Ld. Counsel for the plaintiff has raised a contention that the DW1 Sh. S.S. Sinha could not depose for its principle, in view of the law settled in Usha Venkatraman. It is observed that such contention is not tenable in the facts and circumstances of the case, as the facts are relating to the estimation of the rate of use and occupation charges, that has to be ascertained on the basis of the measurement, the locality and the position of the suit premises, and for such facts the personal knowledge factor are not applicable to the present case, as the facts of the case in hand are absolutely on the distinguishable factual matrix, than to the facts mentioned in the authority Usha Rangnathan Vs. N.K.V. Krishnan & Ors. Cited as AIR 2009 Madras 178 relied by the ld. Counsel.
Thus, the law settled in such authority has no application to the present facts of the case.
39. On appreciation of evidence on record on the point of establishing the market rate of mesne profits for use and occupation by the defendant, it is observed that the depositions of PW1 is depending on the estimation of PWs2A & 3A. But, the estimate of PW2A is not free from defects, as this witness has not shown any basis, on which such estimate @ Rs.8,000/ per day was made. He has only deposed in the Court that Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 21 such property could fetch such amount of rent, but has not mentioned as to whether, he was meaning for residential or nonresidential use. It is observed that only the fact that the suit premises was situated on the main road, opposite to the commercial market, will not rate at the commercial rate, as admittedly the suit premises was in occupation of the defendant only for residential purpose. Also, PW2A has not produced any evidence of any property, similarly situated in the area that was let out at such rate of Rs.8,000/ per day, for the residential use.
In these circumstances, the rating of the PW2A cannot be treated as reasonable estimation for the market value of the rent/mesne profits for the suit premises, that was in occupation of the defendant, who was using the property for the residential purpose only. It is also not clear from the estimate of PW2A that such rate was estimated for the period, pertaining to the year 1999 or subsequent years or for the year, he came to the witness box to depose about his estimation. In the absence of any reasonable comparison of any similarly situated property of similar measurement, such valuation cannot be believed or relied, for the purpose of estimating the market rate.
40. Similarly, the valuation report of Sh.R.S. Yadav PW3A, is again not free from defects, as the report is based on the facts tendered by Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 22 the plaintiff, regarding the year of construction of the building for calculating the cost of construction. Also for the reason that for estimation of the rate of land, neither the government rates of the properties were taken into account nor the circle rate in the area, nor the amount for which the property was taken by the plaintiff on perpetual lease from the DDA. The magic score of cost of construction and land estimated in the report was not based on reasonable basis or on technical basis.
Thus, such report also cannot believed.
41. It is further observed that the estimation of the market rate of PW2A & 3A, have a great differential of such rate to the extent that even the difference of such rates per month is more than the monthly rental estimated by PW3A.
In these circumstances, none of the witnesses produced by the plaintiff, could lead any evidence, to produce the reasonable base for estimating the market rate for use and occupation of the suit premises for the period of 1999 to 2005.
42. The defendant's depositions proving the report of M/s Kaushik Estates is not proved in the Court and is based on the estimation of rental rate as per the ordinary increase of rate of rent as per terms of Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 23 lease and not more than that.
43. Thus, for deciding the market rate of the mesne profits/rent for the use and occupation of the suit premises by the defendant, the only basis left is the quantum meriuts i.e. quantum of market rate to be decided on the reasonable basis that was prevailing on the dates/period in question for such premises on the basis of its size, location, construction and the purpose of its use.
44. As nothing has been produced in evidence by either party for the purpose of comparison of the rates of the similarly situated properties, during the period under reference, I am constrained to make a reasonable estimation on the basis of principles of enhancement of rates of rent as per the analogous provisions of Delhi Rent Control Act, for the reasons that it is the admitted case of the plaintiff, that a limited tenancy under Section 21 of DRC Act was granted by the then ARC Sh. Rakesh Kapoor, at a point of time, which also gives a way to use the provisions for estimating the reasonable quantum of rates for use and occupation of the premises in question.
45. Admittedly the suit premises was on lease as per the written Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 24 lease deeds dated 23.03.1994 & 03.01.1994. Such lease deeds were having a provision of an increase of rent after every three years of its extension. The first lease deed has termed the rate of rent @Rs.10,000/ per month in the year 1988, such rate of rent was enhanced to Rs. 11,000/ per month in the year 1991, that is with an increase of @ 10% to the amount of Rs.10,000/ i.e. Rs.1,000/. Further the rate of rent was enhanced from Rs.11,000/ to Rs.13,225/ per month, in the year 1994, i.e. @ increased rate of 20% to Rs.11,000/ i.e. an adding of an amount of approximately Rs.2,200/ to Rs.11,000/. After 1994, it is being informed as per the evidence of the parties that certain letters Ex.DW1/2 to 7. were exchanged regarding the request for structural repairs in the premises as per the terms, but a notice terminating the tenancy was issued by the plaintiff to the defendant, on the basis of which by invoking provisions of Order 12 Rule 6 CPC a decree for eviction of the suit premises was passed and the possession was handed over accordingly.
46. Thus, it is clear that the defendant was in use and occupation during the pendency of the suit. As per record no application under Order 39 Rule 10 CPC was processed for the rent during pendency. Thus, the mesne profits for use and occupation of the premises in question, during such period, reasonably can be tuned as per the increased Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 25 rate of rent on the parameters provided in DRC Act, for the purpose of calculating the reasonable rate for use and occupation of such premises, as the plaintiff has failed to establish the prevalent market rate of the area during such period and the rate of use and occupation of the premises has to be ascertained as per the reasonable test of prudence for calculating such rent. It is made clear that the suit is not filed by invoking the provisions of DRC for the reasons that the property is not covered within the provisions of such Act, but it is also a matter of fact that the then ld. ARC has granted the limited tenancy under Section 21 of DRC Act to the defendant with respect to the premises in question.
47. Thus, the reasonable market rate of rent is being estimated as per the formula of estimating the lawful increase of rent as per Section 6 & 7 of DRC Act.
48. As per table 1 to Schedule 1, the rate enhanceable could be up to 8% for residential premises, if the construction of the suit property had taken place between January 1971 to 31st December, 1994. Admittedly the perpetual lease deed of the suit premises was taken by the plaintiff in the year 1970 and as it was leased out in the year 1988 as per first lease deed, the construction was falling between this period. Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 26
As per table II to Schedule I for the area more than 80 square meters and for the use and occupation of residential purpose the permitted enhancement could be only 100%.
49. Now the reasonable rate on merits on the above mentioned parameters and in the light of the lease deeds exhibited in the court, it would be appropriate to fix a rate @ Rs.20,000/ per month as charges for use and occupation of the suit premises with an increase of 10% per annum from 1999 to 2005.
Thus, it is estimated as reasonable rate as follows: Sl. Period Amount (in Rs.) No.
(i) 13.09.1999 to 12.09.2000 Rs.20,000/ X 12 = 2,40,000/ per annum
(ii) 13.09.2000 to 12.09.2001 Rs. 22,000/ X 12 = 2,64,000/ per annum (at the increase rate of 10%)
(iii) 13.09.2001 to 12.10.2002 Rs.24,200/X12 = 2,90,400/ per annum (at the increase rate of 10%)
(iv) 13.10.2002 to 12.10.2003 Rs.26620/X12 = 3,19,440/ per annum (at the increase rate of 10%)
(v) 13.10.2003 to 12.10.2004 Rs.29,280/X12 = 3,51,360/ per annum (at the increase rate of 10%)
(vi) 13.10.2004 to 06.10.2005 Rs.32,200/X13 = 4,18,600/ per annum (at the increase rate of 10%) Total = 18,83,800/ Thus issue no. vii is decided accordingly.
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50. Relief The suit of the plaintiff is decreed for an amount of Rs. 18,83,800/ against the defendant.
Accordingly, it is directed that :
(i) The plaintiff is entitled for the money decree for an amount of Rs.18,83,800/.
(ii) Interest @ 12% per annum (as per prevalent bank rate) on the decreetal amount, from the date of decree till its realization.
No orders as to costs.
Decree sheet be prepared accordingly.
File be consigned to R/Room.
Announced In the open Court (Dr. Archana Sinha)
30th March, 2011. Addl. District Judge,
Centl.04, Tis Hazari Courts,
Delhi. 30.03.2011
Suit No. 000280/08/96 Surinder Nath Vs. Continental Page No. 28