Delhi District Court
Alok Kumar Verma & Other vs Mr. Prem Kumar on 16 January, 2017
IN THE COURT OF MS. NEELOFER ABIDA PERVEEN,
ADDITIONAL DISTRICT JUDGE04, SOUTHEAST, SAKET
COURTS, NEW DELHI
Presiding Officer: Ms. NEELOFER ABIDA PERVEEN, ADJ.
CS No. 49/16
CIS No. 9688/16
Unique ID no. 02406C0020492015
In the matter of :
Alok Kumar Verma & Other
..... Plaintiffs
Vs
Mr. Prem Kumar
....... Defendant
Order
Vide this order, I shall dispose of an application u/o 6 Rule
17 filed by the plaintiffs on 20.02.2016 seeking amendment of the
plaint.
1.The plaintiffs seek to amend the prayer clause in order to add the relief in respect of mesne profits and damages for a sum of Rs. 33,28,000/ alongwith interest @ 18 percent on the ground that the plaintiffs while filing the present Suit for recovery of possession did not raise a claim for mesne profit as the Plaintiff hoped that good senses would prevail upon the Defendant and the Defendant would vacate the Suit Property on its own volition. In fact, the Defendant is CS No. 49/16 Alok Kumar Verma & Other Vs. Prem Kumar Page 1 of 10 making all efforts to delay the Suit and otherwise harass the Plaintiffs and their families. In view of the circumstances explained hereinabove and as permissible under the law, the Plaintiffs seeks to claim loss/damage due to illegal occupation of the Defendant of the Suit Property since July 2013 i.e. three years prior to this application by amending the Suit. The current market rent of the Suit Property is conservatively Rs. 23,000 per month, hence the Plaintiff has suffered loss/damage for a sum of Rs. 8,28,000/ due to illegal occupation of the Defendant of the Suit Property since July 2013 i.e. last three years prior to this application. The Plaintiff also desires to raise the claim of damages which accrued against the Defendant during pendency of this Suit due to illegal and improper usage by the Defendant of the Suit Property as well as common area/amenities of the concerned building. It is submitted that the concerned building of the Plaintiff has suffered substantial structural damages. Due to intentional improper usage of the Defendant water leaked from the Suit Property causing damage to the entire electricity wiring system of the Building. Left with no other option, the Plaintiff had to finally remove the entire wiring of the building and install a new wiring therein. Despite the change in wiring, the Defendant continue to use the systems improperly and the plaintiffs and their families with old mother and small children are living under fear of electrocution all the time. Walls of the stair case of the building and back wall of the Building is also damaged by the Defendant. The Defendant has also damaged the floor of the Suit Property, which is the terrace for the first floor of the building. In fact, the damages caused by the Defendant is so grave CS No. 49/16 Alok Kumar Verma & Other Vs. Prem Kumar Page 2 of 10 that it is difficult to quantify the same in terms of money. However, the Plaintiffs have conservatively estimated it at Rs. 10,00,000 (Rupees Ten Lakh only). Further, the Plaintiffs and their families including their old senior citizen and MES pensioner mother suffered mental and physical trauma due to the Defendant and his son & daughters' acts and conducts of various nature such as picking up fights on nonissues with the members of the family of the Plaintiffs and their old mother. In fact, on one such occasion the son and daughters of Defendant physically assaulted the wife of Plaintiff No.
2. Wife of Plaintiff No. 2 had to undergo immediate medical treatment and she had to be taken to hospital immediately. The incident was reported to the police and a DD entry was made by the police in this regard. In fact, the Plaintiffs and their families had to report to police about the misadventures of the Defendant on numerous occasions. The mother of the Plaintiffs had to be admitted to hospital due to mental and physical trauma suffered due to the Defendant & family. The Plaintiffs and their families are living under a constant threat from the Defendant and this is causing huge mental agony to the Plaintiffs. The 8, 4 and 2 year old children of the Plaintiff are also suffering due to the Defendant and his family as the children have to live in congested environment. The Defendant often misbehaves with the customers and also the employees of the Plaintiff. This has created a negative environment about the shop of the Plaintiffs resulting into huge business loss, which is solely attributable to the Defendant. The Plaintiffs therefore seek to claim damages on this count as well for a sum of Rs. 15,00,000/ (Rupees CS No. 49/16 Alok Kumar Verma & Other Vs. Prem Kumar Page 3 of 10 Fifteen Lakh only).
2. The amendment is opposed on the ground that the application is filed at the belated stage when the plaintiff no. 1 is undergoing cross examination only to delay the trial. The suit is false and the claim raised is beyond limitation. The plaintiff has failed to show as to why the plea could not be raised earlier despite due diligence.
3. I have heard the submissions of the Ld. Counsels and have gone through the record with their able assistance.
4. Brief facts necessary to be noted for the purposes of the present application as set out in the plaint are that the plaintiffs are brothers and are coowners of the Immovable Property consisting of Ground Floor, First Floor and Second Floor together with roof rights in Plot No. C556/1463, Wazir Nagar, Street No. 5, Kotla Mubarakpur, Opposite Defence Colony, New Delhi - 110003. The Plaintiffs inherited the Plot being C556/1463, Wazir Nagar, Street No. 5, Kotla Mubarakpur, Opposite Defence Colony, New Delhi - 110003 from their grandfather. In the year 1997, the Plaintiffs desired to reconstruct a building in their abovesaid plot of land being Plot No. C556/1463, Wazir Nagar, Street No. 5, Kotla Mubarakpur, Opposite Defence Colony, New Delhi - 110003. In and around January/February, 1997, the defendant was appointed by the plaintiffs to construct the building consisting of basement, ground floor and CS No. 49/16 Alok Kumar Verma & Other Vs. Prem Kumar Page 4 of 10 second floor within a reasonable period was later than 6 months. Somewhere in September, 1997, the defendant completed the building except for the second floor, as the plaintiffs were in desperate need, they shifted in the unfinished house Rs. 16 Lacs were paid to the defendant and defendant assured that he shall conclude the second floor and also build up a third floor, however, the defendant suddenly disappeared and remained untraceable for 10 years without constructing the second floor. In 2009, the defendant surfaced and on his entreaties, he was permitted to complete the second floor and stay for sometime over the second floor and he started paying licensee fee though irregularly. In March 2012, the defendant was asked to vacate in order to provide adequate space for the growing family needs of the plaintiffs, the defendant refused to vacate claiming to be owner of second floor.
5. The defendant has filed written statement raising the contention that plaintiffs and their mother had entered into an agreement dated 12.12.1996 with the defendant and the defendant had paid a sum of Rs. 3 Lakhs to the plaintiff. Vide the agreement, the plaintiffs and their mother agreed to get their old house demolished and a new house comprising of a basement, ground floor, first floor and second floor constructed by the defendant. The value of the plot was assessed at Rs. 70 lacs by mutual consent and the defendant was to construct the new building incurring all the expenses. The defendant also paid a sum of Rs. 3 lacs as advance to the plaintiffs. All the floors were to be sold jointly and after payment of the cost of CS No. 49/16 Alok Kumar Verma & Other Vs. Prem Kumar Page 5 of 10 plot (Rs. 70 lacs) to the plaintiffs, the cost of construction (incurred by the defendant), and Rs. 3 lacs (advance paid by the defendant to the plaintiffs) to the defendant, the remaining amount of sale proceeds was to be construed as profit and was to be divided equally between the plaintiffs on one hand and the defendant on the other. The defendant duly performed all his obligations under the agreement. The defendant duly constructed all floors, i.e. basement, ground floor, first floor and the second floor over the plot in question within the stipulated period of six months and in the month of May 1997, construction of all floors was complete in all respects. The plaintiffs and their mother requested the defendant to allow them to retain the basement, ground floor and first floor and to take second floor as owner alongwith rights in consideration of his investment, his share of the profits and his allowing the plaintiffs to retain basement, ground and first floor of the newly constructed house which the defendant agreed due to good relations between them. The plaintiffs sold the basement to the owner of M/s Saluja Timbers and received the entire sale consideration. The plaintiffs occupied the ground floor and first floor. The defendant became the owner in possession of the second floor alongwith roof rights. The plaintiffs executed and got registered a General Power of Attorney dated 26.05.1997 duly registered in favour of the defendant specifically authorizing the defendant to let out and sell/transfer the second floor. The plaintiffs also executed two separate wills dated 26.05.1997 duly registered in favour of the defendant for their respective shares in the second floor of the newly constructed house including land with all fittings, CS No. 49/16 Alok Kumar Verma & Other Vs. Prem Kumar Page 6 of 10 fixtures, structures and connections in question. Since May 1997, the defendant is in possession of the second floor of the house continuously. His ration card dated 21.11.2006 is of the same address. The electricity connection, water connection and telephone connection at the same address are in the name of the defendant.
6. The suit for recovery of possession came to be instituted on 20.07.2012. The application Under Order 6 Rule 17 is filed on 19.07.2016 i.e. after a lapse of 4 years. The claim towards recovery of mesne profit is a recurring cause of action and once the possession is unauthorized, every day's possession entitles the plaintiff to seek mesne profits for the unauthorized user and occupation of the property. Mesne profits are those profits which the person in wrongful possession of a property actually received or might with ordinary diligence have received therefrom. The right to recover mesne profit follows the unauthorized occupation. The plaintiff claims defendant to be in unauthorized occupation of the second floor of the property. The plaintiff claims himself to be the owner and the defendant disputes the ownership of the plaintiff over the second floor of the property.
7. Whether the defendant is in unauthorized possession or in lawful possession as owner can alone be determined upon taking of evidence of the parties. For the purposes of the present application, what is pertinent is that the plaintiff's claim that the defendant is in unauthorized possession and the plaintiffs were entitled to claim CS No. 49/16 Alok Kumar Verma & Other Vs. Prem Kumar Page 7 of 10 mesne profits towards unauthorized uses and occupation of the property, however, the plaintiffs failed to claim mesne profits at the institution of the suit for recovery of possession. Order 2 R 2 prescribes that the plaintiff shall include under the suit the whole of the claim as the plaintiff is entitled to make in respect of the cause of action and where the plaintiff is entitled to more than one relief in respect of the same cause of action and omits to sue for all such reliefs, he shall not afterwards sue for any such relief except with the leave of the Court. The plaintiff therefore is entitled to seek the relief of recovery of mesne profits but with the leave of the Court. In case, it is to be held that the defendant is in unauthorized possession the plaintiff, in the event of the dismissal of the application for amendment of the plaint in order to incorporate the relief of mesne profits, would not be entitled to recover any amount as mesne profits from the defendant thereby causing great prejudice to the claim of the plaintiff. For what period, the mesne profits would be recoverable and at what rate can only be determined upon the appreciation of the evidence of the parties. For the purposes of the present application seeking amendment in order to incorporate the relief of mesne profits, it is sufficient that mesne profits may be claimed by a person entitled to the possession from a person stated to be in unauthorized possession and same is recurring cause of action given right to recover mesne profit for each day that the unauthorized possession continues. As the plaintiff has himself restricted the claim for recovery of mesne profits for three years preceding the insitution of the application, I find that in the facts and circumstances to serve the CS No. 49/16 Alok Kumar Verma & Other Vs. Prem Kumar Page 8 of 10 ends of justice leave ought to be granted to the plaintiff to claim the relief of recovery of mesne profits as prayed for and the necessary foundational facts as sought to be brought on record as indicated in para no. 6 of the application are also to be allowed in view thereof. Further the plaintiff seeks to claim damages from the defendant for mental agony and harassment and damage to the proeprty which is grounded on acts and commissions subsequent to the filing of the suit. If any damage is caused to the property, the plaintiff is entitled to claim damages and as the cause of action accrued after the filing of the suit as stated in the application through dates are not mentioned, the leave is also granted to incorporate the relief of damages and the foundational facts. Upon the operation of the provisions of the limitation act, the period for which the mesne profits may be recovered may be restricted, however, that cannot operate as a fatal for allowing the plaintiff to incorporate the claim in respect of mesne profit and damages for unauthorized users and occupation of the premises.
8. In view thereof, the application is hereby allowed subject to cost of Rs. 3500/ to be paid to the defendant.
9. The plaintiffs are also directed to incorporate the paragraph pertaining to valuation and court fees in respect of the reliefs of mesne profits and damages. The amended plaint shall be taken on record only upon filing of deficient court fees.
CS No. 49/16 Alok Kumar Verma & Other Vs. Prem Kumar Page 9 of 1010. Nothing stated herein above, however, shall be deemed to be an expression of opinion on the merits of the claims of the parties. The observations contained herein shall have no bearing on the merits of the claim or the final outcome.
Pronounced in the open Court (Neelofer Abida Perveen) th on this 16 January, 2017. Addl. District Judge04, SouthEast, Saket Court, New Delhi.
CS No. 49/16 Alok Kumar Verma & Other Vs. Prem Kumar Page 10 of 10