Delhi District Court
Smt. Laxmi Devi (Since Deceased On ... vs Cs No. 1115/16 Laxmi Devi & Ors. V. Shanti ... on 27 September, 2019
IN THE COURT OF SH. M.P. SINGH, ADDITIONAL DISTRICT JUDGE
03 (EAST), KARKARDOOMA COURTS, DELHI
CS. No. 1115/16
1. Smt. Laxmi Devi (since deceased on 30.03.2015)
W/o Late Kailash Nath Shukla
2. Sh. Onkar Nath Shukla
S/o Late Kailash Nath Shukla
R/o D101, Shivalik Nagar,
Bharat Heavy Electricals Ltd. (BHEL),
Haridwar, Uttrakhand
3. Sh. Deepak Shukla
S/o Late Kailash Nath Shukla
R/o D101, Shivalik Nagar,
Bharat Heavy Electricals Ltd. (BHEL),
Haridwar, Uttrakhand
4. Smt. Anita Sharma
W/o Sh. Ashok Kumar Sharma
R/o 26C, Mata Kamla Marg,
Kashmere Avenue, Amritsar, Punjab.
5. Smt. Sunita Sharma
W/o Sh. Ashok Sharma
R/o 67/19, Tyagi Road,
Dehradoon, Uttrakhand
6. Smt. Sudha Sharma
W/o Sh. Pradeep Kumar Sharma
R/o C200, Anand Vihar
Delhi110092
Plaintiffs through their attorney
Vishnu Dutt Dixit s/o Late Harish Chander Dixit,
R/o SD266, Tower Apartments,
Pitampura, Delhi ............. Plaintiffs
Versus
CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 1 of 18
1. Smt. Shanti Devi w/o Late Jagan Nath
R/o 105107, Guru Ram Dass Nagar,
Laxmi Nagar, Delhi 110092
2. Sh. Pravin Kumar Grover
S/o Late Jagan Nath
R/o 105107, Guru Ram Dass Nagar,
Laxmi Nagar, Delhi 110092
3. Sh. Dinesh Grover
S/o Late Jagan Nath
R/o 105107, Guru Ram Dass Nagar,
Laxmi Nagar, Delhi 110092
4. Sh. Neeraj Grover
S/o Late Jagan Nath
R/o 105107, Guru Ram Dass Nagar,
Laxmi Nagar, Delhi 110092
5. Smt. Rachna Bhalla
W/o Sh. Manoj Bhalla
R/o Him Garh Khari PartII,
Gurgaon, Haryana
6. Sh. Ashok Grover (died on 26.01.11, deleted vide order dt. 24.09.19)
Proprietor of Grover Commercial College
Plot No. 105, Main Bazar,
Laxmi Nagar, Delhi 110092
7. Sh. Rajni Kumar Garg
Proprietor Agarwal Hardware & Paints Store
Plot No. 105, Ram Dass Nagar,
Laxmi Nagar, Delhi 110092 ...............Defendants
SUIT FOR MESNE PROFITS/DAMAGES
Suit instituted on - 30.05.2012
Arguments concluded on - 26.09.2019
Judgment pronounced on - 27.09.2019
JUDGMENT
1. Section 2 (12), CPC defines mesne profits asunder: CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 2 of 18 "mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession.
2. Plaintiffs' case may now be taken note of: I) Late Kailash Nath Shukla (for short 'KNS') had purchased a piece of land measuring 221 sq. yards bearing no. 108, 109 and 110 in khsara no. 53/25 situate at Guru Ram Dass Nagar, Delhi - 31 (for short the 'suit property') from Dr. Balwant Singh vide a registered sale deed dt. 25.09.1956. He did not raise construction due to paucity of funds. He had only completed the foundation work, raised a boundary wall besides constructing a room at the said plot of land.
II) KNS could not look after plot as he was in service with Bharat Electricals Ltd., Haridwar. After his retirement, with intention to settle, he returned to Delhi, but he found that Sh. Jagan Nath (for short 'JN') along with defendants no.6 and 7 had raised illegal construction at his plot. JN was the husband of defendant no.1 and father of defendants no.2 to 5. Request of KNS to the defendants to hand over vacant possession of the plot was of no avail.
III) KNS then filed a suit for possession, which suit came to be dismissed by the Court of Ld. Civil Judge, Delhi vide judgment and decree dt. 21.07.2005. However, the verdict of Ld. Civil Judge came to be reversed in first appeal by the court of Ld. Additional District Judge, Delhi vide judgment and decree dt. 01.12.2007. Second appeal met its waterloo. Special Leave Petition (for short 'SLP') to the Apex Court was turned down vide order dt. 10.10.2011. A review petition was then CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 3 of 18 unsuccessfully filed before the High Court and SLP thereagainst to the Apex Court culminated in dismissal.
IV) During pendency of the previous litigation(s), KNS as also JN left this material world. Plaintiff no.1 was the widow of KNS and plaintiffs no.2 to 6 are his children.
V) Plaintiffs filed application for execution of the decree for possession.
The decree came to be executed on 05.06.2017 when plaintiffs took possession of the suit property through the court bailiff.
VI) Plaintiffs aver that the suit property is situate in a commercial locality and, as per the prevailing rentals in the area, it can fetch monthly rent of about Rs. 4,00,000/. Plaintiffs in this regard rely on a registered 'leave and license' deed dt. 28.07.2011 (Ex. PW2/1) executed by one Harjeet Singh in favour of one Ashutosh Vohra qua a ground floor shop measuring 13 feet x 40 feet in property no. L132, Vijay Chowk, Laxmi Nagar - 32 having 'license fee' of Rs. 1,35,000/ with provision of enhancement by 15% after every 03 years. Plaintiffs allege that they suffered losses due to illegal occupation of the suit property by the defendants.
VII) On these averments, plaintiffs seek damages/ mesne profits at the rate of Rs. 4 lacs per month from the defendants with effect from 01.05.2012 for unlawful occupation of the suit property till the date of its vacation.
3. During the course of proceedings, it transpired that defendant no.6 Ashok Grover had passed away on 26.01.2011. He stood deleted from this lis vide order dt. 24.09.2019.
CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 4 of 184. A joint written statement purporting to be that of defendants no.1 to 6 was filed on 28.07.2012. However this written statement bears the signatures and the supporting affidavits of only defendants no.1 to 5. Defendant no.6 Ashok Grover had passed away before filing of this suit (on 26.01.2011). Effectively, this written statement is thus on behalf of defendants no.1 to 5 only. Defendants no.1 to 5 state that Order II Rule 2, CPC bars the present suit inasmuch as no mesne profits had been claimed in the previous suit for possession; that plaintiffs are not entitled for mesne profits, as the defendants are not the licensees/tenants in the suit property; that late JN had raised no illegal construction over the suit property; that they had raised construction over their own property i.e. plots no. 105, 106 and 107 in khsara no. 53/25, Guru Ram Dass Nagar, Delhi32; that there were some demarcation problems with regard to the plots at the actual site; that suit is not properly valued for Court fee and jurisdiction. They seek dismissal of the suit.
5. Defendant no.7 filed his written statement on 07.09.2012. He states that late JN had inducted him as a tenant in 1980 in a godown measuring 10x12 feet approximately out of the entire plot area of 221 sq. yards at the rate of Rs. 65 per month; that he paid monthly rent to late JN during his lifetime and after his demise he paid the rent to late Shanti Devi (JN's wife and legal heir). He states that he took the godown on rent for running a shop elsewhere. According to him, monthly rental of a similar size property in the area would be Rs. 418/. He states that late KNS had never requested him to vacate the premises under his occupation. He states that the 'leave and license deed' being relied upon by plaintiffs pertains to some other property situated in commercial hub of LBlock, Laxmi Nagar and is far away from the suit property. He states that the suit is not properly valued for court fee and jurisdiction as the suit property is valued more than Rs. 48 lacs. He seeks CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 5 of 18 dismissal of the suit.
6. Plaintiffs in their replication reaffirmed and reiterated their averments as set out in their plaint and refuted those of the defendants as set out in their written statement.
7. Issues framed on 03.07.2014 are as follows:
1. Whether the suit is barred U/o 2 Rule 2 CPC? (OPD).
2. Whether the suit of without cause of action? (OPD)
3. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? (OPD)
4. Whether the plaintiffs are entitled to damages/mesne profits as prayed for? (OPP)
5. Relief.
8. Plaintiffs examined following witnesses: PW1 Onkar Nath Shukla. He is one of the plaintiffs.
PW2 Nitin, an official from the office of SubRegistrarVIII, Delhi. He was partly examinedinchief on 17.04.2015 and on which date he had brought the summoned record i.e. 'leave and license deed' dt. 28.07.2011 executed by Harjeet Singh in favour of one Ashutosh Vohra. On 17.04.2015 his remaining examinationinchief stood deferred at plaintiffs' counsel's request. But, he did not again enter the witness box.
PW2 Deepak Kashyap, an official witness from the office of Sub RegistrarVIII, Geeta Colony, Delhi. He proved the factum of registration of 'leave and license deed' dt. 28.07.2011 (Ex. PW2/1) executed by Harjeet Singh in favour of one Ashutosh Vohra qua a ground floor shop measuring 13 feet x 40 feet in property no. L132, CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 6 of 18 Vijay Chowk, Laxmi Nagar - 32 having 'license fee' of Rs. 1,35,000/ with provision of enhancement by 15% after every three (03) years.
PW3 Satish Kumar, an official witness from Record Room, Tis Hazari Courts. He appeared with the judicial file of suit no. 266/2011 tiled 'Laxmi Devi vs. Shanti Devi' and he exhibited the copy of order dt. 01.12.2007 passed by Ms. Asha Menon, the then Ld. ADJ, Delhi in regular civil appeal no. 44/2005 as Ex. PW3/1.
9. Defendants examined the following witnesses: DW1 Praveen Kumar Grover. He is one of the defendants.
DW2 Jagmohan, an official from Assessment and Collection Department, East Delhi Municipal Corporation. He entered the witness box with record of house tax assessment of property no. 105, 106 and 107, Guru Ram Dass Nagar, Delhi - 92. He deposed that as per the record for the period from 1975 to 2004 house tax was assessed in JN's name from 200405 to 201819 house tax was paid in the name of Shanti Devi Grover and for year 1971 house tax was paid in JN's name.
10. Arguments heard. Record perused.
11. Issuewise findings are as follows.
12. Issue no.1 - The issue is whether the suit is barred under Order II Rule 2 of CPC, onus to prove being on the defendants. Defendants' contention is that the plaintiffs, or their predecessorininterest, not having claimed the relief of mesne profits in the previous suit for possession, cannot now do so on account of the bar of Order II Rule 2 of CPC. However, it is the view of CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 7 of 18 this Court that Order II Rule 2 of CPC does not bar this suit. In State Bank of India vs. Gracure Pharmaceuticals Ltd., (2014) 3 SCC 595 it has been held, "Order 2 Rule 2, CPC, therefore, requires the unity of all claims based on the same cause of action in one suit. It does not contemplate unity of distinct and separate cause of action." In Syndicate Bank vs. Raj Kumar Tanwar, 154 (2008) DLT 230 it was observed, "Thus, the Code of Civil Procedure itself clarifies that an action for recovery of immovable property is a distinct cause of action visàvis a cause of action for a claim for mesne profits. If the two are different causes of action, the bar of Order 2 Rule 2 of the Code of Civil Procedure would obviously be not attracted." Full Bench of Punjab & Haryana High Court in Sadhoo Singh & Ors. Vs. Pritam Singh & Anr., AIR 1976 P&H 38 has held that Order II Rule 2 of CPC does not bar a subsequent suit for mesne profits. To similar effect are the following decisions: Full Bench decision of Ponnamal vs. Ramairda Aiyar & Ors., AIR 1915 Mad 912; Full Bench decision of Shankarlal Laxminarayan Rathi & Ors. vs. Gangabisen Maniklal Sikchi & Anr., AIR 1972 Bom 326; S. Harpreet Singh Chawla & Ors. vs. CEAT Ltd. & Ors., 134 (2006) DLT 378; Jayant Kumar Trehan vs. HDFC Bank Ltd., 218 (2015) DLT 756 and Venugopala & Ors. vs. Vasantha @ Subba Rao, AIR 2003 Kar 279. It is thus held that Order II Rule 2 of CPC does not bar the instant suit for mesne profits. This issue is answered against the defendants and in plaintiffs' favour.
13. Issue no.4 - The issue is whether the plaintiffs are entitled to damages/ mesne profits as prayed for, onus to prove being on the plaintiffs. The fact that the suit property was in fact plots no. 108, 109 and 110 and not plots no. 105, 106 and 107 has already been judicially determined in the previous lis in plaintiffs' favour. Such a finding of fact cannot be reagitated in this lis.
CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 8 of 18Further, the fact that the suit property (which was judicially determined to be plots no. 108, 109 and 110) belongs to the plaintiffs and/or their predecessor ininterest too cannot be a matter of recontest in this suit. The fact that late JN and/or his legal heirs was/were wrongly holding on to the property in question belonging to the plaintiffs / their predecessor-in-interest has also been judicially determined in the previous lis plaintiffs' favour and the same cannot be a matter of recontest once again. These are matters that cannot be reagitated and recontested and require no judicial determination once again.
14. Through DW2 Jagmohan (an official from Assessment and Collection Department, East Delhi Municipal Corporation), defendants sought to prove that plots no. 105, 106 and 107 in Guru Ram Dass Nagar, Delhi - 92 belonged to late JN. As per DW2's evidence, house tax had been paid from 1970s till 201819 in the name of late JN and / or Shanti Devi Grover. However, this evidence will not suffice to supplant the judicial determination in the previous lis that the suit property is actually plots no. 108, 109 and 110 and not plots no. 105, 106 and 107. The evidence of DW2 will also not efface the fact that in the previous lis it has been judicially determined that the suit property, which is actually plots no.108, 109 and 110, belonged to late KNS and after his demise it will now vest in his legal heirs / legal representatives. In any case, payment of revenue to the State, in the form of house tax, can ipso facto be no proof of title to an immovable property. Recovery of revenue / house tax is only for fiscal purpose and it does not of itself evidence proof of ownership of the immovable property. There are judicial decisions in the context of mutation entries to hold that mutation entries in revenue records are only for fiscal purpose and they only enable the State to collect the revenue and confer no title (Smt. Sawarni vs. Smt. Inder Kaur & Ors., AIR 1996 SC 2823) Therefore, to my mind, the evidence of DW2 is not of CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 9 of 18 much consequence in the present suit for mesne profits/ damages.
15. Ld. Counsel for defendants no.1 to 5 argued that defendants no.1 to 5 have been victims of circumstances. He submitted that late JN was owner of plots no.105, 106 and 107 with proper title documents, but as per the plaintiffs' case in the previous suit, their (defendants no.1 to 5) land/plots had been merged in the street. He submitted that presently, unfortunately, the defendants no.1 to 5 are neither left with any land/property of their own despite the fact that they are owners of plots no.105, 106 and 107 on paper. This argument is sans merit. The fact that the suit property is plots no.108, 109 and 110 and not plots no.105, 106 and 107 has already been judicially determined in the previous lis in plaintiffs' favour and this cannot be reagitated and recontested.
16. Ld. Counsel for defendants no.1 to 5 argued that the suit was time barred. He, in support of his arguments, relied upon the following observations out of the report of Balakrishna Savalram Pujari Waghmare & Ors. Vs. Shree Dhyaneshwar Maharaj Sansthan & Ors., AIR 1959 SC 798, "In dealing with this argument it is necessary to bear in mind that section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection, it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterised as continuing wrongs that section 23 can be invoked."
CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 10 of 1817. On the aspect of limitation, on the basis of the aforesaid Apex Court judgment, Ld. Counsel for defendants no.1 to 5 went on to argue that the evidence of DW2 proved that property in question had been in possession of JN and / or his legal representatives since 1970s onwards, and thus the instant lis filed in 2012, after 41 years, was time barred. Reliance on this judgment is misplaced. This is not a suit for possession, or for declaration, or for injunction. This is neither a suit based on continuing breach of tort or contract. This suit is only and only for mesne profits with effect from 01.05.2012. This suit, instituted on 30.05.2012, is clearly within time. Plaintiffs are certainly not asking for mesne profits starting from 1970s. To claim mesne profits with effect from 01.05.2012 the plaintiffs do not invoke section 22 of Limitation Act, 1963 (section 23 of Limitation Act, 1908). This argument is thus turned down.
18. It was also the argument of Ld. Counsel for defendants no.1 to 5 that principle of res judicata under section 11 of CPC barred the present suit. He submitted that in the execution petition of the previous round of litigation, the applications of the plaintiffs under Order XVIA of CPC seeking mesne profits from 18.04.1983 to 30.04.2012 had been dismissed vide order dt. 05.02.2016. It was pointed out that the executing Court had recorded that the High Court order in Execution Second Appeal had nowhere granted any amount prior to 13.05.2014 and that there was no question of arrears as nothing had been claimed in the suit on account of damages and there was no adjudication of mesne profits. The Order dt. 05.02.2016 constitutes no res judicata for the present suit. It does not satisfy the requirements of res judicata as contained in section 11 of CPC. The order dt. 05.02.2016 of Ld. Executing Court was not passed in a 'former suit'. Secondly, order dt. 05.02.2016 had neither 'heard and finally decided' the question of mesne CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 11 of 18 profits with effect from 01.05.2012 till vacation of the suit property. Thirdly, the question of mesne profits with effect from 01.05.2012 till vacation of the suit property was never in 'issue', much less 'directly and substantially in issue' between the parties in the execution petition. This argument is sans merit.
19. The question that now remains to be determined is the quantum of mesne profits. As per the plaintiffs, their predecessorininterest (KNS) had not raised construction due to paucity of funds and he had only completed the foundation work, raised a boundary wall besides constructing a solitary room at the plot of land measuring 221 sq. yards. Plaintiffs in support of their claim of mesne profits of Rs. 4 lacs per month rely on a 'leave and license deed' dt. 28.07.2011 (Ex. PW2/1) qua a ground floor shop measuring 13 feet x 40 feet in property no. L132, Vijay Chowk, Laxmi Nagar - 32 having 'license fee' of Rs.1,35,000/ with provision of enhancement by 15% after every three (03) years. However, this can be no yardstick to determine the mesne profits in this case. As per the plaintiffs themselves, the plot of land/suit property had no construction except boundary wall, a solitary room and completion of foundation work. There is no evidence from plaintiffs' side that the said solitary room had electricity/water connection(s). There is significant difference between the leave and license deed (Ex. PW2/1) of the shop at Vijay Chowk, Laxmi Nagar and the suit property. The Vijay Chowk shop has all the essential amenities and it has been well developed so that the same can be commercially exploited. But such is not the case in case of the suit property which is largely a vacant plot of land. The fact that there is a shopping mall some distance away can also be no determinative factor in assessment of mesne profits of the suit property which is essentially a vacant piece of land. As noted hereinabove, in terms of section 2 (12) of CPC profits CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 12 of 18 due to improvements made by the person in wrongful possession cannot be a determinative factor in assessment of mesne profits. Thus, the fact that the defendants raised a godown / two shops (DW1 Praveen Kumar Grover deposed that late JN had constructed two shops in the suit property and defendant no.7 in his pleadings stated that it had a godown) in the suit property will not assist the plaintiffs as it is an improvement made by late JN and/or his legal heirs. It is no doubt correct that mesne profits can be claimed for what the property could have been put to use with ordinary diligence. But, plaintiffs led no evidence to show as to what purpose the property, which was essentially a vacant piece of land, could have been put to use in order to earn profits. It also does appear from the submissions made on behalf of the plaintiffs as recorded in the Order dt. dt. 28.11.2014 of Hon'ble Delhi High Court passed in 'Shanti Devi vs. Laxmi Devi & Ors.', Ex. S.A. No. 3/2014 that the property is situated in a mixed neighbourhood of commercial and residential properties.
20. DW1 Praveen Kumar Grover, on the other hand, deposed that a shop in the suit property let out to defendant no.7 fetched a meagre monthly rent of Rs. 65/ initially and Rs.150/ subsequently. However, this is too low a figure and to my mind it is not a fair assessment of the mesne profits of a plot of size 221 sq. yards situated in Guru Dass Nagar of Laxmi Nagar area.
21. Therefore, the following important circumstances emerge on record on the aspect of determination of mesne profits: (a) that the suit property is 221 sq. yards with a boundary wall and one room, it is essentially a vacant piece of land, (b) that there is no evidence on record to show that there were water/electricity connection or other utilities viz., toilet/bathroom etc. set up/installed in the suit property by late KNS and/or the plaintiffs, and (c) as per the stand of the plaintiffs themselves the suit property is situated in a CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 13 of 18 mixed neighbourhood of commercial and residential properties.
22. Under the given circumstances, the question is what therefore should be the assessment of damages/ mesne profits, which is fair. Some clue in this regard can be had from the order dt. 28.11.2014 of Hon'ble Delhi High Court passed in Shanti Devi vs. Laxmi Devi & Ors., Execution Second Appeal No. 3/2014. This was a second appeal arising out of dismissal of objection application in the execution petition of the previous round of litigation. Order dt. 28.11.2014 is as follows: "CM No. 16904/2014 The present application has been filed by respondents no. 1 to 6 seeking deposit of damages for continued occupation of the suit premises, which according to them is unauthorised. The applicants claim an amount of Rs. 4.00 lacs per month as the prevailing market rent. The applicants would contend that in the vicinity of the suit premises, an area of 60 sq. yards has been leased out at Rs. 1.35 lacs per month. Therefore, on extrapolation of the said amount with the area of the suit premises. i.e. 221 sq. yards., it would be Rs. 4.00 lacs per month. However, the learned counsel for the respondents submits that the property whose documents are placed on record is a commercial premises situated at Vijay Chowk, which is a commercial hub, whereas the suit property is situated in the Laxmi Nagar market area. He submits that this an old construction in a dilapidated condition and would not fetch a rent of Rs. 4.00 lacs per month.
However it is also contended by the applicants that the said property is merely 400 meters away from the commercial hub and is situated in a mixed neighbourhood of commercial and residential properties. The nonapplicants/petitioner has admitted a rent of at least Rs. 25,000/ per month. Thus, upon factoringin the age and condition of the suit property with its proximity to the main commercial hub, this Court would deem an amount of Rs. 35,000/ per month as appropriate interim damages, which shall be deposited from the date the impugned order was stayed by this Court i.e. from 13.5.2014. The arrears of damages shall be deposited in this Court within four (4) weeks from today and shall be kept in a recurring fixed deposit receipt, initially for a period of six (6) months. Future amounts shall be deposited by the 15 th day of each Gregorian calendar month. All such recurring deposits too shall be kept in FDRs as aforesaid. These amounts shall be subject to final CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 14 of 18 adjudication of the petition.
The application is disposed off in the above terms Ex. S.A. No. 3/2014 At request of counsel for the parties, list on 30.1.2015"
23. Vide Order dt. 29.07.2015 in the present suit plaintiffs' application was disposed of with direction to the defendants to deposit interim damages from 01.05.2012 to 12.05.2014 at the rate of Rs. 35,000/ per month within one month to be kept in a recurring fixed deposit initially for a period of one year.
24. My view, under the given facts and circumstances, is that the quantum of damages/ mesne profits at the rate of Rs. 35,000/ per month as on 01.05.2012 is a fair assessment of mesne profits/damages. The aforesaid order of the Hon'ble Delhi High Court had assessed the 'interim damages' at Rs.35,000/ per month as on 28.11.2014 payable with effect from 13.05.2014. This Court is assessing the mesne profits/damages at the rate of Rs. 35,000/ per month with effect from 01.05.2012 till 30.04.2015. And, to this there can be enhancement of 15%, three (03) years later i.e. at the rate of Rs. 40,250/ per month with effect from 01.05.2015 till the vacation of the suit property (05.06.2017). Therefore, the assessment of this Court on the aspect of mesne profits/damages is as follows: (a) mesne profits/damages of Rs. 35,000/ per month with effect from 01.05.2012 till 30.04.2015, and (b) mesne profits / damages of Rs. 40,250/ per month with effect from 01.05.2015 till vacation of the suit property i.e. 05.06.2017.
25. Now the question is who should be liable to pay the damages / mesne profits. The defendants no.1 to 5 are of course liable to pay the same. They were in wrongful occupation of the suit property. They are also the legal heirs of late JN who had initially occupied the suit property wrongfully. However the defendant no.7, to my mind, is not liable to pay the same.CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 15 of 18
Defendant no.7 was only a 'tenant' of late JN/ legal heirs of late JN. It has come on record that he was inducted as a tenant by late JN. The plaintiffs do not dispute that defendant no. 7 was actually a tenant. However, what the plaintiffs say is that defendants no.1 to 5 and/or late JN used to take rent of Rs. 50,000/ from him. This is reflected from the following suggestion given to DW1 Praveen Kumar Grover, "It is wrong to suggest that I used to take rent of Rs. 50,000/ from defendant no. 7 Sajjan Kumar." Under the law, a landlord (in the instant case defendants no. 1 to 5 and/or late JN) continues to retain legal possession of tenanted premises although its actual possession, user and control may be with the tenant {Sadashiv Shyama Sawant v. Anita Anant Sawant, (2010) 3 SCC 385}. Given this legal position, I do not think that defendant no. 7 can be under liability to pay any damages/mesne profits to the plaintiffs.
26. This issue is summed up by holding as follows: (a) Defendants no. 1 to
5 are jointly and severally liable to pay mesne profits / damages to the plaintiffs at the rate of Rs. 35,000/ per month with effect from 01.05.2012 till 30.04.2015, (b) Defendants no. 1 to 5 are jointly and severally liable to pay mesne profits / damages to the plaintiffs at the rate of Rs. 40,250/ per month with effect from 01.05.2015 till vacation of the suit property i.e. 05.06.2017. This issue is accordingly decided.
27. Issue no.2 - The issue is whether the suit is without cause of action, onus to prove being on the defendants. The outcome of issue no. 4 a fortiori entails that the instant suit does have cause of action. This issue is answered against the defendants and in plaintiffs' favour.
28. Issue no.3 - The issue is whether the suit is not properly valued for the purpose of court fee and jurisdiction, onus to prove being on the defendants.
CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 16 of 18Plaintiffs 'claimed' relief of mesne profits at the rate of Rs. 4 lacs per month with effect from 01.05.2012. Plaintiffs valued the suit for court fee and pecuniary jurisdiction at Rs. 4 lacs and paid court fee of Rs. 6,248/ thereon. section 7 (i) of Courtfees Act, 1870 inter alia holds that in a suit for damages, the Court fee payable would be according to the amount 'claimed'. The 'claim' for the past mesne profits was for one month at the rate of Rs. 4 lacs per month. Consequenly, in view of section 7 (i) of Courtfees Act, 1870 the Court fee of Rs. 6,248/ paid on the 'claimed' past mesne profits is appropriate. Valuation of Rs.4 lakhs for the purposes of court fee is correct. In terms of section 8 of Suit Valuation Act 1887, the valuation of the suit for the purpose of jurisdiction at Rs.4 lakhs is also appropriate.
29. Insofar as the the future mesne profits (for the period after filing the suit till delivery of possession on 05.06.2017) the plaintiffs are liable to pay Court fee in terms of section 11 of Courtfees Act, 1870 on the mesne profits/damages actually awarded by this Court, failing which the decree shall not be executable. In the case of Smt. Santosh Arora & Ors. Vs. Sh. M. L. Arora, 2014 SCC OnLine Del 3005, there is an observation in paragraph 25 of the judgment which is as follows, "It is for this reason only that payment of Court fees of future mesne profits decreed is a condition to the execution thereof and is not to be paid at the time of institution of the suit." Therefore, on the future mesne profits (for the period after filing the suit till delivery of possession on 05.06.2017) the plaintiffs shall pay the Court fee in terms of section 11, Courtfees Act, 1870, else the decree shall not be executable. With these observations this issue stands disposed of.
30. Relief The following reliefs are granted: (a) Defendants no. 1 to 5 are jointly and severally liable to pay mesne profits / damages to the plaintiffs CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 17 of 18 at the rate of Rs. 35,000/ per month with effect from 01.05.2012 till 30.04.2015, (b) Defendants no. 1 to 5 are also jointly and severally liable to mesne profits / damages to the plaintiffs at the rate of Rs. 40,250/ per month with effect from 01.05.2015 till vacation of the suit property i.e. 05.06.2017,
(c) Costs of the suit is awarded to the plaintiffs, (d) On future mesne profits the plaintiffs shall pay Court fee in terms of section 11 of Courtfees Act, 1870, else the decree shall not be executable, and (e) the suit as against defendant no.7 is dismissed.
31. Decree sheet be drawn up. File be consigned to record room.
Digitally signed by MURARI MURARI PRASAD SINGH Location: Court PRASAD No.7, Karkardooma Announced in the open court SINGH Courts, Delhi Date: 2019.09.27 16:13:41 +0530 on 27.09.2019 (M. P. SINGH) ADJ3 (EAST) KKD COURTS DELHI/ 27.09.2019. CS No. 1115/16 Laxmi Devi & Ors. v. Shanti Devi & Ors. Page 18 of 18