Delhi High Court
Ajit Gogna vs Jitender Gogna & Ors on 27 February, 2019
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 27th February, 2019.
+ CS(OS) 346/2016
AJIT GOGNA .... Plaintiff
Through:
Mr. Sunil Lalwani, Adv.
Versus
JITENDER GOGNA & ORS ......Defendants
Through: Mr. Sanjeev Sindhwani, Sr. Adv. with
Mr. Siddharth Aggarwal, Adv. for
D-1.
Mr. Sanjeev Sahay and Ms. Prerna
Sharma, Advs. for D-2.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
Review Petition No.439/2018 & IA No.16862/2018 (u/S 151 CPC) of the
defendant No.1
1. Review, after disposal vide order dated 18th October, 2018 of
FAO(OS) No.51/2018 preferred thereagainst with the following order:
"5. Having heard the learned counsel for the parties, this
court is of the view that appropriate for the appellant is to file
an appropriate application before the learned Single Judge
seeking review of the impugned order on the grounds as urged
by the learned Sr. Counsel for the appellant today before us.
If such a review application is filed before the learned
Single Judge within a period of one month from today, the same
shall be decided by the ld. Single Judge in accordance with
law.",
is sought by the defendant no.1 of the order dated 31st January, 2018,
a) granting liberty to plaintiff to apply for decree forthwith if the defendant
no.1 failed to produce the original Will, proof whereof is the only issue
framed in the suit; and, b) directing, that in the event of the defendant No.1
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failing in the suit for partition of flat bearing No.8050, Pocket-II, Sector-B,
Vasant Kunj, New Delhi, will be liable for mesne profits for use and
occupation thereof calculated @ Rs.40,000/- per month, from the date of
institution of the suit till the date of sale of the property, minus the share of
the defendant No.1 in the said mesne profits, and that the said amount shall
be deducted out of the share of the defendant No.1 in the sale proceeds of the
property.
2. The Division Bench, vide the order dated 12th October, 2018 having
disposed of the appeal with a direction that this Review shall be decided in
accordance with law, it is deemed appropriate to give a background.
3. The plaintiff has instituted this suit claiming that the flat aforesaid
belonged to the brother, of the plaintiff and the seven defendants, who died
intestate in the year 2010, leaving the plaintiff and the seven defendants as
his natural heirs and the plaintiff and the seven defendants each, thus have
1/8th undivided share each in the said flat.
4. Considering the size of the flat, it is a foregone conclusion that the
same cannot be partitioned by metes and bounds in eight portions and the
final decree for partition, if any with respect thereto, has to be of sale of the
flat and of distribution of the sale proceeds.
5. It is further the plea in the plaint, (i) that the relationship of the
deceased brother was cordial with all the brothers and sisters; (ii) that after
the death of the deceased brother, the flat, with the consent of the plaintiff as
well as the defendants, was being looked after by Nikhil Gogna, son of the
plaintiff; (iii) that during the period from October, 2014 to February, 2016,
the defendant No.1 along with his son defendant No.1(A) forcibly entered
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and occupied the said flat, taking advantage of the fact that during the said
time Nikhil Gogna, on account of his mother‟s ill-health, was not able to
regularly visit the subject flat; (iv) that the defendant No.1 and his son
defendant No.1(A), after so forcibly entering the flat, are resisting the entry
and denying ownership of the other brothers and sisters; and, (v) that the
prevalent letting value of the flat is Rs.40,000/- per month and the plaintiff,
in proportion to his 1/8th share, is entitled to Rs.5,000/- per month with
respect to the mesne profits of the said flat.
6. Only the defendant No.1 has contested the suit. The defendant No.2
has filed a written statement supporting the plaintiff and the defendants No.3
to 7 have not appeared and have been proceeded against ex-parte. The
defendant no.1(A) who is the son of the defendant no.1, has also neither
appeared nor filed written statement.
7. The defendant No.1, in his written statement pleaded (a) that the
deceased brother executed his last Will dated 28th October, 2009 in respect of
his estate and by virtue of the said Will, the flat aforesaid stands bequeathed
to the defendant No.1 and the defendant No.1 has become the exclusive
owner of the property; (b) that the relationship of the plaintiff with the
deceased brother was not cordial but strained; (c) that Nikhil Gogna, after the
demise of the deceased brother was not looking after and not taking care of
the flat; (d) that the flat has been in possession of the defendant No.1 since
after the death of the deceased brother who was the owner thereof; (e) that
the son of the defendant No.1 i.e. defendant No.1(A) never claimed to be the
owner of the property; (f) that the plaintiff never claimed any ownership
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rights over the flat; and, (g) that neither the plaintiff nor any of the
defendants No.2 to 7 have any share in the flat.
8. In response to para 17 of the plaint, where the plaintiff pleaded the
letting value of the flat to be Rs.40,000/- per month, the defendant No.1
merely pleaded that the letting value was not Rs.40,000/- per month and the
said figure was excessive. However, the defendant No.1 did not plead that if
not Rs.40,000/- per month, what was the letting value of the subject flat.
9. It was in the aforesaid state of pleadings, that the suit came up for
framing of issues on 31st January, 2018.
10. Finding that the contest by the defendant No.1 to the claim for
partition was only on the ground of a Will in his favour and it being the
contention of the counsel for the plaintiff that original of the Will had not
been produced, the whereabouts of the original Will were enquired from the
counsel for the defendant No.1. The counsel for the defendant No.1 stated,
"I am not aware, it must be with the client".
11. I may highlight that the defendant No.1, neither in the written
statement nor in any other application or pleading, pleaded that the original
Will was not in possession of defendant No.1 or that the defendant no.1
would be proving the Will otherwise than by producing the original.
12. It is not as if the factum of original Will having not been produced by
defendant no.1, who was / is propounding the same, was not brought to the
attention of counsel for defendant no.1. The order dated 18th December, 2017
records the contention of the counsel for the plaintiff that the plaintiff was
unable to do admission/denial of documents, without the defendant No.1
producing the originals. The Joint Registrar on that date directed the parties
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to bring the originals of the documents on the next date of hearing.
However, on the next date of hearing, the counsels submitted that there were
no documents for admission/denial.
13. It was in this state of affairs that it was directed on 31st January, 2018
that the original Will be produced and if the original Will is not produced,
the plaintiff may apply to the Court for decree forthwith. Without the
defendant no.1 wanting to produce original Will and without the defendant
no.1 pleading / stating that he was not in possession of original and will be
proving the Will by secondary evidence, there was no need for parties to go
to trial on sole issue qua proof of Will, burden whereof was / is on the
defendant no.1.
14. From a reading of the order dated 12th October, 2018 supra of the
Division Bench, it transpires that it was the contention of the defendant No.1
before the Division Bench that Section 237 of the Indian Succession Act,
1925 permits the defendant No.1 to, in the absence of primary evidence,
produce secondary evidence. The defendant No.1, in this Review Petition,
for the first time before this Bench, has pleaded (i) that on 24th March, 2017,
the defendant No.1 visited his office at the rear portion of the ground floor of
property No.107/1, Samman Bazar, Bhogal, New Delhi when he found
another lock hanging in steel chain on the handles of the glass door whereas
the Ozone (brand) make lock fittings of the defendant No.1 on the glass
door at bottom were missing; (ii) that the front portion of the said ground
floor is in possession of Nikhil Gogna, son of the plaintiff, and the plaintiff
admitted having done so to prevent the defendant No.1 from visiting his
office; (iii) that the original Will of the deceased brother was lying in one of
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the folders in the said office and the defendant No.1 on coming to know of
the said fact, filed a complaint dated 25th March, 2017 in Police Post
Jangpura, Police Station Hazrat Nizamuddin, New Delhi; (iv) that the
defendant No.1 did not inform his counsel about the said fact and hence on
31st January, 2018, the counsel for the defendant No.1 was unaware of the
said fact; (v) that a copy of the complaint was annexed with FAO(OS)
No.51/2018 and on the said complaint, FIR No.75 dated 17th March, 2018
has been registered; and, (vi) that the defendant No.1 is entitled to prove the
said Will as per the provisions of Section 65 of the Evidence Act, 1872 and
Section 237 of the Indian Succession Act.
15. I may again highlight that the direction contained in the order dated
18th December, 2017 of the Joint Registrar as aforesaid, was for production
of the original documents and was of after 24th / 25th March, 2017, of which
date explanation with respect to the original is pleaded for the first time in
this Review Petition before this Bench. It is expected that the counsel for the
defendant No.1 would have intimated the defendant No.1 of the direction
dated 18th December, 2017 for production of the originals on 23rd January,
2018. In the normal course of events, the defendant No.1, even if till then
had not informed the counsel of the incident alleged of 24 th / 25th March,
2017, would have immediately informed the counsel of the said incident and
the counsel on or before the next date of hearing i.e. 23rd January, 2018
would have pleaded / argued the factum of loss of the original. Not only was
the same not done but on 31st January, 2018, the counsel for the defendant
No.1 stated that he was not aware of the whereabouts of the original and that
the original must be with the defendant No.1.
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16. Significantly, even after 31st January, 2018, when the counsel for the
defendant No.1 claims to have become aware for the first time of the
incident dated 24th / 25th March, 2017, no application was filed by 7th
February, 2018 i.e. the last date ordered for production of original Will,
before this Bench, to contend that the defendant No.1 would be proving the
Will by secondary evidence. On the contrary, the defendant No.1 chose to
prefer an appeal to the Division Bench and obtain an interim stay of
recording of evidence in the suit and owing whereto the proceedings in the
suit remained stayed from 23rd March, 2018 till 12th October, 2018 i.e. for
nearly six months, derailing the recording of evidence in the suit and
showing the intent of the defendant No.1 to, by adopting some mode or
other, delay the disposal of the suit and thereby perpetuate his possession of
the flat in which his seven siblings are also claiming a share.
17. Be that as it may, when this Review Petition came up before this
Bench for the first time on 10th December, 2018, realising that the trial in the
suit has been so delayed, while adjourning the hearing of this Review
Petition to today, it was ordered that the trial in the suit may proceed,
without prejudice to the outcome of the Review Petition and trial has so
commenced and is underway. It was felt that now that the defendant no.1
has taken a stand qua original Will, the recording of evidence should not be
delayed. The other aspect, of mesne profits, was / is not relevant for
purposes of the trial.
18. The senior counsel for the defendant No.1 states that review of the
order dated 31st January, 2018 is sought on two aspects. Firstly, on the
entitlement of the defendant No.1 to prove the Will by leading secondary
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evidence and secondly to the extent that the same makes the defendant No.1
liable, in the event of failing in the suit, to mesne profits at the rate of
Rs.40,000/- per month and further provides that the same will be deducted
from the share of the defendant No.1 in the flat.
19. As far as the first of the aforesaid two grounds is concerned, as
aforesaid, trial has already been ordered to proceed without prejudice and
since now it is the plea of the defendant No.1 that the original Will is not
available and is required to be proved by secondary evidence, it is ordered
that the defendant No.1 may prove the document claimed to be the Will, in
accordance with law and at the time of adjudication, the conduct as detailed
aforesaid of the defendant No.1 shall be taken into consideration.
20. As far as the second of the aforesaid grounds on which review is
sought is concerned, the senior counsel for the defendant No.1 has argued,
by handing over a compilation of as many as nine judgments and to which
no reference even was made during the hearing on 31 st January, 2018. What
is desired by the defendant No.1, is re-hearing and which is beyond the
domain of review. However since the Division Bench has desired that the
Review Petition be decided in accordance with law, I am, notwithstanding
the hearing being in the nature of a re-hearing and beyond the scope of
review, proceeding to deal with the said aspect.
21. The senior counsel for the defendant No.1, on the proposition that
"mesne profits cannot be claimed against the co-owner in a suit for partition"
referred to judgments out of the aforesaid nine judgments i.e. Babburu
Basavayya Vs. Babburu Guravayya AIR 1951 Mad 938, Udekar Vs.
Chandra Sekhar Sahu AIR 1961 Ori 111, Nand Kishore Prasad Singh Vs.
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Parmeshwar Prasad Singh MANU/BH/0221/1934, Shambhu Dayal
Khetan Vs. Motilal Murarka AIR 1980 Pat 106, Muhammed Haneefa
Rowther Vs. Sara Umma AIR 1991 Ker 94, Neety Gupta Vs. Usha Gupta
MANU/DE/4283/2018 and Om Pratap Soni Vs. Rana Pratap Soni 2006
(128) DLT 410. It is argued that in a suit for partition, as the present one is,
no mesne profits, as under Rule 12 of Order XX of the Code of Civil
Procedure, 1908 (CPC) are to be awarded and only accounts can be gone
into, as provided under Rule 18 of Order XX. It is further contended that
since the accounts are to be gone into in the event of a decree for partition
being passed, the quantum could not have been determined as was done in
the order dated 31st January, 2018. The senior counsel for the defendant No.1
has also referred to National Radio & Electronic Co. Ltd. Vs. Motion
Pictures Association 2005 (122) DLT 629 and Sushil Kumar Sahni Vs.
Umesh Kumar Sahni 2018 SCC OnLine Del 10305 to contend that rate of
mesne profits has to be enquired into by leading evidence.
22. I have considered the contentions.
23. Rule 12 of Order XX of the CPC empowers the Court, where the suit
is for recovery of possession of immoveable property and for rent or mesne
profits, to pass a decree, a) for possession; b) for rents which have accrued
on the property during the period prior to the institution of the suit or
directing an inquiry as to such rent; c) for mesne profits or directing an
inquiry as to such mesne profits; and, d) directing an inquiry as to rent or
mesne profits from the institution of the suit until delivery of possession.
24. Rule 18 of Order XX of the CPC empowers the Court, where passes a
decree for partition of property or for separate possession of share therein, to,
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insofar as the decree relates to immoveable property and if partition or
separation cannot conveniently be made without further inquiry, pass a
preliminary decree declaring the rights of several parties interested in the
property and giving further directions as may be required.
25. During the hearing on this Review Petition on 10 th December, 2018
itself and as recorded in the order of that date, attention of the senior counsel
for the defendant No.1 was drawn to Seth Girdhari Lal Vs. Seth Gaja Nand
ILR (1974) I Del 864, Sita Kashyap Vs. Harbans Kashyap 2011 (123) DRJ
52 and Neety Gupta supra on the aspect of award of mesne profits in
partition suit.
26. As far as the distinction sought to be made out between Rules 12 and
18 of Order XX of the CPC is concerned, the need to discuss in detail is not
felt, since the senior counsel for the defendant No.1 also has referred to the
dicta of the Division Bench of this Court in Neety Gupta supra, of which
mention was made in order dated 10th December, 2018, laying down, (i) that
in the case of a partition suit, it is Rule 18 that specifically applies; (ii) that
the right to receive a share in mesne profits is a consequence of partition of
the property; and, (iii) that at the stage of sub-rule (2) of Rule 18 of Order
XX, the Court can give directions as may be required and which would
include directions for payment of mesne profits. Finding in the facts of that
case that one of the parties who had only 1/5th share, was in exclusive
possession of the property, other parties who had remaining share, were held
entitled to claim mesne profits of their respective share. It was also observed
that the amount could only be quantified on proper inquiry.
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27. As would become obvious, the distinction sought to be drawn by
senior counsel for defendant no.1 / review applicant is irrelevant for present
purposes. In view of the aforesaid judgment of the Division Bench of this
Court, the senior counsel for the defendant No.1 can not contend that the
defendant No.1, even if fails in his defence, of the deceased sibling having
left a Will bequeathing the flat aforesaid in exclusive favour of defendant
no.1, would not be liable to compensate the plaintiff and others of the benefit
which the defendant no.1 has enjoyed, by exclusive possession of the flat
and which obviously is to the prejudice of the plaintiff and others. Had the
defendant no.1 been not in occupation of the flat, the plaintiff, during the
pendency of this suit could have applied for letting out of the flat and the rent
to be accumulated for the benefit of either all the parties or the defendant
no.1 alone, depending on the proof by defendant no.1 of the alleged Will. If
there is no Will, one of the co-sharers, by exclusively occupying the flat,
cannot deprive others of benefit of their respective shares, till final
adjudication. Holding so would encourage a co-sharer to exclusively occupy
property in which others have a share and then to contest the claim of others
taking all sorts of pleas, thereby delaying the adjudication of claim of others
and in the interregnum reap benefit / advantage of exclusive use of property
and in the end also, inspite of losing, still getting his share. This would
encourage dishonesty in action and in Courts. It cannot be lost sight of that
owing to overloaded dockets of Courts, the Courts rarely take action for
taking pleas ultimately found false / frivolous.
28. That leaves only the aspect of quantum.
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29. I have enquired from the senior counsel for the defendant No.1 that
even if the defendant No.1, at the time of filing the written statement,
notwithstanding the plaintiff having expressly pleaded the letting value of
the flat to be at the rate of Rs.40,000/- per month, did not know the letting
value and even if the defendant No.1, on 31st January, 2018 also did not
know the letting value, at least now when the said question is in the fore,
should tell, what is the letting value of the subject flat which is disclosed to
be a three bedroom flat. The senior counsel for the defendant No.1 states
that he has "no knowledge of letting value". Since the contention of the
senior counsel of the defendant No.1 during the hearing of this Review
Petition on 10th December, 2018, with respect to the statement (of the
counsel for the defendant No.1 during the hearing on 31 st January, 2018 qua
the whereabouts of the original Will) i.e. "I am not aware, it must be with the
client" was, that "it was a loose statement", it has been doubly made sure
from the senior counsel for the defendant No.1 that he now means that the
defendant No.1 even now has no knowledge of letting value of the flat and
the senior counsel for the defendant No.1 confirms.
30. In my opinion, the principle that a person cannot be compelled to
depose against himself and/or cannot be compelled to self-incriminate, as
enshrined under Article 20 of the Constitution of India, applicable to
criminal prosecution, is not applicable to civil law. In Maqbool Hussain Vs.
State of Bombay AIR 1953 SC 325, it was held that having regard to the
whole background of Article 20, in order that the protection thereof be
invoked by a citizen, there must have been a prosecution and punishment in
respect of the same offence before a court of law or a tribunal, required by
law to decide the matter in controversy judicially on evidence on oath, which
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it must be authorized by law to administer; the proceedings therein
contemplated are of the nature of criminal proceedings. This was reiterated
in Raja Narayanlal Bansilal Vs. Maneck Phiroz Mistry AIR 1961 SC 29.
Reference may lastly be made to Sharda Vs. Dharmpal (2003) 4 SCC 493
unequivocally holding that a party to a civil litigation is not entitled to
constitutional protection under Article 20 of the Constitution of India; that
the Civil Court, although may not have any specific provisions in the Code
of Civil Procedure and the Evidence Act, has an inherent power in terms of
Section 151 CPC to pass all orders for doing complete justice to the parties.
31. Civil law does not confer on a litigant a right to remain silent, putting
the onus on the opposite party to prove. On the contrary, the procedure
relating to civil disputes as contained in the CPC expressly requires
pleadings to be specific and also provides for deemed admission of what is
not specifically not denied. Civil law further provides, for serving
interrogatories which the parties at whom interrogatories are directed can be
compelled to answer and if refuse to answer, for deeming of admissions
and/or drawing of adverse inference. Thus, it was / is not open to the
defendant No.1 to, simply deny the averment in the plaint of the rate of
letting value at Rs.40,000/- per month, without stating that if the letting value
is not Rs.40,000/-, how much it is. No such right of silence and/or "no
knowledge" was available while filing the written statement or on 31st
January, 2018 or today.
32. This is more so, considering the nature of the property, which is a flat
constructed by Delhi Development Authority in a colony having thousands
of identical flats and a large number of which, at any given point of time are
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let out. With respect to such identical / similar flats situated in colonies
developed by the same agency / person, it cannot be said that the defendant
No.1, inspite of residing in one of the flats along with his family members, is
not aware of the letting value thereof. An evasive denial of a fact alleged in
the plaint would be deemed to be admitted under Order VIII Rule 3 and Rule
5 of the CPC. Reference in this regard can be made to Badat & Co. Vs. East
India Trading Co. AIR 1964 SC 538, Sushil Kumar Vs. Rakesh Kumar
AIR 2004 SC 230 and Jaspal Kaur Cheema Vs. Industrial Trade Links AIR
2017 SC 3995. It was held in Badat & Co. that though in the matter of
mofussil pleadings, such laxity in the pleadings may be tolerated but not on
the Original Side of the Bombay High Court, pleadings wherein are drafted
by trained lawyers bestowing serious thought with precision. It was further
held that the laxity in pleadings should not be allowed to help a party, who
designedly makes vague denials and thereafter seeks to rely upon them for
non-suiting the plaintiff. Reference with approval was made to Tildesley Vs.
Harper (1878) 10 Ch.D. 393 where the averment in the plaint, that the lease
had been granted on account of certain sum received from the lessee as
bribe, in the written statement though it was denied that sum had been given
but no denial of bribe having been given was found and it was held that the
giving of bribe was not sufficiently denied and it must be deemed to have
been admitted. I may state that similarly, pleadings on the Original Side of
this Court are drafted by Advocates skilled in the art and for hefty fees and
the only inference from the refusal till date of the letting value of the flat is
that the defendants are not in a position to deny the letting value to be
Rs.40,000/- per month and / or that the defendants are refusing to admit, to
avoid determination of mesne profits at the said rate. The further inference
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is, that the defendant No.1, if were to be compelled to give an answer, would
have no option but to ether admit the letting value as pleaded by the plaintiff
or disclose letting value to be at a higher rate.
33. In Hindustan Paper Corporation Vs. Kanta Manocha 2013 SCC
OnLine Del 4232 adverse inference was drawn against the defendant that
had the defendant disclosed the rent of the alternative accommodation taken
after vacating the subject accommodation, it would have become apparent
that the claim of the plaintiff for mesne profits at the rate of Rs.50,000/- per
month for a much larger accommodation and in an elite colony was justified.
Similarly, in S&G Company Vs. Indica Trades Pvt. Ltd.
MANU/DE/2218/2013 it was held that once the defendant in the written
statement had taken a specific plea that the premises adjoining to the
premises subject matter of that suit had been let out at a rent of Rs.10.65
paise per sq.ft. per month, it was incumbent upon the plaintiffs to specifically
deal therewith and having not done the same, could not claim mesne profits
in excess of Rs.10.65 paise per sq. ft. per month. In Naseemuddin Vs.
Babita Rani MANU/DE/3899/2013 adverse inference was drawn from the
defendant not cross-examining the plaintiff on the statement in the
examination-in-chief as to the rate of letting value. Yet again in Kishan
Dubey Vs. Mukesh Gupta MANU/DE/2909/2018, it was held that the
defendant in its written statement to the plea in the plaint of the letting value
of the premises being Rs.12,000/- per month, having not taken a plea that the
prevalent letting value was anything less than Rs.12,000/- as claimed, could
not challenge the award of mesne profits at the said rate. Mention may
finally be made of Vasdev Brothers Vs. Estate Officer, ITDC Ltd. 2018
SCC OnLine Del 12100 where also adverse inference was drawn from the
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respondent not controverting the statement as to the rate of prevalent letting
value.
34. The counsel for the plaintiff even today reiterates that the plaintiff is
willing to deposit in this Court Rs.40,000/- per month, to be distributed,
depending upon the outcome of the case, if the defendant No.1 were to
vacate the flat and the plaintiff permitted to either occupy the same or to let
out the same for such period as may be deemed appropriate by this Court.
35. The counsel for the plaintiff has raised another very valid argument. It
is argued that mesne profits are to be determined by making an inquiry,
scope whereof is different from recording of evidence. It is contended that
during the hearing on 31st January, 2018 as well as today, what has been
done, qualifies as an inquiry and once the inquiry has been made, there is no
bar to the Court fixing the rate of mesne profits, for which the defendant
No.1 would be liable in the event of failing in the suit. The counsel for the
plaintiff has also referred to Sita Kashyap supra holding that it is the duty of
the Court in a suit for partition to make an inquiry into profits, even if there
were no claim for profits, so as to balance equities between the parties. It
was further held that a party which is occupying a portion larger than it
ought to be occupying considering his share, ought to be directed to pay to
the other/s whose share, he is occupying for the same.
36. The counsel for the defendant No.2 also in this regard, argues (i) that
there is a specific plea as to the present letting value in the plaint and only a
bare denial thereof in the written statement of defendant no.1 and that Order
VIII Rule 5 of the CPC applies; (ii)under Section 165 of the Evidence Act,
1872 also, the Court can always ask questions and record answers; (iii) that
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the Court is entitled to ask about the prevalent letting value; (iv) that it is not
as if the defendant No.1 was residing in the flat along with the deceased
brother; it is the admitted case of the defendant No.1 also that he occupied
the flat after the demise of the brother; (v) that while the defendant No.1
pleads that he occupied the flat on account of the same having been
bequeathed exclusively to him, it is the case of others that he occupied the
flat illegally and complaint of such trespass was also lodged; (vi) that the
story now set up, of loss of Will, is a "cock and bull story" and that it was
incumbent on the defendant No.1 to produce the Will in this Court along
with his written statement and having chosen not to do so, has to suffer the
consequences; and, (vii) that the alleged attesting witnesses to the Will have
not even been named in the list of witnesses filed by the defendant No.1 and
the defendant No.1 is abusing the process of law.
37. Undoubtedly, for determination of mesne profits, law provides for an
„inquiry‟, as distinct from „adjudication‟, as on other issues. Such inquiry is
generally relegated to a Commissioner. Merit is found in the contention of
the counsel for the plaintiff and the counsel for the defendant No.2, of
„inquiry‟ being subject to a less formal procedure than provided for
recording of evidence and the proceedings as held on 31st January, 2018 and
today, qualifying as an inquiry.
38. Black‟s Law Dictionary (Eighth Edition), defines "inquiry" as fact
finding; a request for information. Mitra‟s Legal and Commercial Dictionary
(Sixth Edition) also defines "inquiry" as examination into facts; exploration;
interrogation; probe; search for information and refers to Kingam Savaranna
Vs. State AIR 1957 AP 472 and R.P. Kapoor Vs. Pratap Singh Kairon AIR
R.P. No.439/2018 in CS(OS) 346/2016 Page 17 of 22
1966 All 66 holding that an inquiry is something different from trial and the
term „inquiry‟ does not include a trial but only refers to a judicial inquiry
into the matter. Though I have been unable to find any judgment on the
scope of inquiry into mesne profits save Sandeep infra but find (i) Kathiroor
Service Cooperative Bank Ltd. Vs. Commissioner of Income Tax (CIB)
(2014) 14 SCC 352, after considering the definition of „inquiry‟ in various
dictionaries and encyclopedia, in relation to Section 133(6) of the Income
Tax Act, 1961 holding that the inquiry therein pertained in relation to such
points or matters which the assessing authority issuing notice requires and
information of general nature can be called for inquiring names and address
of depositors who held deposits above a particular sum was permissible; (ii)
K.R. Rama Iyer Vs. The State MANU/PH/0149/1951 holding that the term
„inquiry‟ does not necessarily mean examination of witnesses; (iii) State of
Bombay Vs. Shivabalak Gaurishankar Dube AIR 1965 SC 61, in the
context of Section 65 read with Section 83 of the Bombay Tenancy &
Agricultural Lands Act, 1948, holding that since the manner of conducting
inquiry had not been prescribed, the manner of inquiry was left to the
discretion of the authority vested therewith; (iv) Sandeep Vs. Fateh Singh
MANU/PH/2008/2016 also, in the context of Order XX Rule 12 of the CPC
holding that the purpose of holding inquiry is to ascertain reasonable rate of
mesne profits and no specific form of inquiry has been prescribed under
Order XX Rule 12 of the CPC and ascertainment of the rate of mesne profits
on the basis of evidence / material brought on record will also amount to an
inquiry; (v) Jamunabai Motilal etc. Vs. State of Maharashtra AIR 1978
Bom 200 (DB) to have held that the meaning of the word „inquiry‟ used in
any statute is to be understood in the context of that given statute; (vi)
R.P. No.439/2018 in CS(OS) 346/2016 Page 18 of 22
Avinash Ganpatrao Shegaonkar Vs. Jayawant 2010 SCC OnLine Bom 481
to have in the context of Section 47 of the Bombay Public Trusts Act, 1950
held, that inquiry is something short of a trial and the only requirement is to
hear both the parties.
39. I may add that the said requirement of inquiry i.e. of hearing both the
parties, has been complied with in the present case.
40. Else, with respect to determination of mesne profits, it has been held in
Udayan Sinha Vs. Fertilizers & Chemicals Travancore 2016 SCC OnLine
Del 3247, Madhvi Singh Vs. Pavik Lifestyle Ltd. 2016 (232) DLT 11
(SLP(C) No.32071/2016 preferred whereagainst was dismissed vide order
dated 11th November, 2016), Consep India Pvt. Ltd. Vs. CEPCO Industries
Pvt. Ltd. 2010 SCC OnLine Del 1349, Sakata Inx (India) Ltd. Vs. Pooja
Aggarwal 2012 SCC OnLine Del 916 (SLP(C) No.17896/2012 preferred
whereagainst was dismissed vide order dated 12th October, 2012), Inder
Sain Bedi Vs. Chopra Electricals 2012 SCC OnLine Del 5180 and Chander
Kirti Rani Tandon Vs. VXL Lodging N. Boarding Services Pvt. Ltd. (2013)
197 DLT 266 that computation of mesne profits of residential properties
entails some element of genuine, intelligent and honest guess work. In M.R.
Sahni Vs. Doris Randhawa AIR 2008 Del 110 (SLP(C) No.13820/2008
preferred whereagainst was dismissed vide order dated 26 th October, 2010),
it was held that there is an element of guess work and it was further held that
as long as there is some evidence to sustain the same, the finding cannot be
faulted. Mention may also be made of Nina International Pvt. Ltd. Vs.
Saraswati Industrial Syndicate Ltd. (1999) 78 DLT 524 on the manner of
making such judicial guess work and of Suman Verma Vs. Sushil Mohini
R.P. No.439/2018 in CS(OS) 346/2016 Page 19 of 22
Gupta 2013 SCC OnLine Del 5081 dealing with National Radio &
Electronic Co. Ltd. supra.
41. Considering all the aforesaid, it cannot be said that the „inquiry‟
envisaged in law, has not been made before directing that the defendant no.1,
in the event of failing in his defense, will be liable for mesne profits at the
rate of Rs.40,000/- per month, less his share therein.
42. I am even otherwise of the view that judgments of yesteryears, when
Courts were approached for adjudication of bona fide disputes, fall short in
today‟s day and age when Courts are increasingly being approached, not for
resolution / adjudication of any bona fide disputes but to abuse their process,
to defer the judgment day. If the Courts pedantically treat themselves as
bound by judgments of an era which no longer exists, they would fail to
deliver the objective of their very existence. This suit itself is pending since
July, 2016 and notwithstanding the issues having been framed on 31st
January, 2018, no substantial progress has been made in the trial. The
defendant No.1 is found to have tendered his affidavit by way of
examination-in-chief into evidence on 25th February, 2019, for which date
the counsel for the defendant no.1, though should have summoned the record
of the complaint dated 25th March, 2017 claimed to have been made, did not
summon the same and after partly tendering the affidavit into evidence,
sought adjournment. The same again shows that the defendant No.1 / his
counsels are using every trick of the trade to cause delay, as earlier also
mentioned. The Courts today have to evolve methods and procedures to deal
with such litigants. If the Courts do not do so, the defendant No.1, even if
ultimately loses the suit, having managed to exclusively use the flat now for
R.P. No.439/2018 in CS(OS) 346/2016 Page 20 of 22
five years, by delaying the trial, will continue to use the same for may be
another five to ten years and would emerge a winner. If an issue as to mesne
profits were to be framed, as is the want of the defendant No.1, again the
process of examining witnesses thereon would begin. When the plaintiff
today itself is willing to give an undertaking to this Court to deposit the
amount of Rs.40,000/- per month if put in possession, I see no reason why
condition as put on defendant no.1, should not be sustained. As aforesaid,
the defendant No.1, if had not come prepared for the same on 31 st January,
2018, at least now should have come prepared to give his offer. On the
contrary, the defendant No.1 is choosing to rely on doctrine of onus of proof
and which itself in Murugesam Pillai Vs. Manickavasaka Desika Gnana
Sambandha Pandara Sannadhi AIR 1917 PC 6, Gopal Krishnaji Ketkar
Vs. Mahomed Haji Latif AIR 1968 SC 1413 and Citi Bank N.A. Vs.
Standard Chartered Bank AIR 2003 SC 4630 has been held to be an
abstract doctrine which cannot be stretched to illogical conclusions and
which in any case loses its value at the final stage. Framing an issue at this
stage, in the circumstances, would only amount to yielding to the desire of
the defendant No.1 to use the process of this Court for perpetuating his
possession of the flat. Had the conduct of the defendant No.1 been bona
fide, he himself would have been interested in expeditious disposal of the
suit, to enable him to have a clean title to the flat and deal with the flat as
may be his desire.
R.P. No.439/2018 in CS(OS) 346/2016 Page 21 of 22
43. I therefore do not find any ground to review the order dated 31st
January, 2018 to the extent it makes the defendant No.1 liable, in the event
of failing in the suit, for mesne profits at the rate of Rs.40,000/- per month.
44. Resultantly, this Review Petition is dismissed.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 27, 2019 „bs/gsr‟..
(Corrected & released on 12th March, 2019) R.P. No.439/2018 in CS(OS) 346/2016 Page 22 of 22