Delhi District Court
Iqbal Mohd vs Nazakat Hussain on 8 October, 2024
CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain
In the Court of Ms. Neetu Nagar, Judge Small Causes Court cum
Additional Senior Civil Judge cum Guardian Judge, South East
District, Saket Courts, New Delhi
Civil Suit No. : 1030/2022
CNR No. : DLSE03-001569-2022
In the matter of:
Iqbal Mohd.
S/o Gulam Mohd.
R/o 1489, Gali Hakim Ajmal Khan,
Oasim Jaan Street, Delhi-110006.
... Plaintiff
VERSUS
Nazakat Hussain
S/o Shribabu Khan
R/o 337-C/62, Muradi Road, Batla House, Jamia Nagar
Okhla, New Delhi- 110025 ... Defendant
*******
Date of Institution : 11.07.2022
Final arguments heard on : 07.10.2024
Judgment pronounced on : 08.10.2024
Decision of the suit : Decreed
*******
SUIT FOR POSSESSION, RECOVERY OF RENT AND
DAMAGES/MESNE PROFITS AND PERMANENT
INJUNCTION.
*******
Digitally
(Neetu Nagar) signed by
NEETU
JSCC-ASCJ-GJ/South East NEETU NAGAR
Delhi: 08.10.2024 Page 1 of 29 NAGAR Date:
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CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain
JUDGMENT
1. Vide this judgment, I shall dispose of the present suit filed by Mr. Iqbal Mohd. (hereinafter referred to as the "plaintiff") against Mr. Nazakat Hussain (hereinafter referred to as the "defendant") for possession two rooms set at first floor ("A" right side portion) forming part of property no. 337-C/62, Batla House, Okhla, New Delhi (hereinafter referred to as the "suit property"), for recovery of arrears of rent to the tune of Rs. 63,888/- along with pendentelite and future interest @ 15% per annum and damages/mesne profits at the rate of Rs. 10,000/- per month with interest @ 15% per annum along with permanent injunction restraining the defendant from sub-letting, assigning and parting with portion of the suit property.
PLAINT
2. It is stated in the plaint that the plaintiff is the owner/landlord of property bearing No. 337-C/62, Batla House, Okhla, New Delhi-110020. The defendant was inducted as a tenant in respect of suit property as shown in red colour in the site plan at a monthly rent of Rs. 4,000/- per month excluding electricity, water and other charges, for residential purposes vide Rent Agreement dated 07.06.2008.
2.1 It is further submitted that the tenancy of defendant has already expired by efflux of time. It is averred that fresh rent Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR NAGAR Date:
JSCC-ASCJ-GJ/South East 2024.10.08 16:20:44 Delhi: 08.10.2024 Page 2 of 29 +0530 CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain agreement dated 04.09.2016 was handed over to the defendant for his signature but the defendant kept the same with him. The plaintiff got issued a notice dated 07.10.2016 thereby calling upon the defendant to execute a fresh agreement and on continu- ous persuasion, the defendant signed the same only on 01.01 2019 i.e. after the efflux of eleven months. 2.2 It is asserted that the defendant is a habitual defaulter in making the payment of rent and lastly paid the rent for the month of June and July 2021 at the rate of Rs. 5,324/- p.m. on 14.02.2022 and thereafter again stopped making the payment of rent month by month.As per mutual understanding, the defendant was also liable to enhance the rent by 10% w.e.f. August 2020 but the defendant failed to do so. Hence, the defendant is liable to pay a sum of Rs. 63,888/- (Rupees sixty three thousand eight hundred and eighty eight only) towards arrears of rent w.e.f. 1st August 2021 till July 2022 alongwith interest @15% p.a. 2.3 It is further submitted that the plaintiff got issued a le-
gal notice dated 24.05.2022 to the defendant thereby terminating the tenancy as provided under Section 106 of Transfer of Prop- erty Act and calling upon the defendant to pay the entire arrears of rent with interest and to vacate the suit property by the mid- night of 10 June 2022, otherwise, the defendant shall be liable to pay damages at the rate of Rs. 10,000/- per month. The said no- tice was duly served upon the defendant but the defendant failed Digitally signed by NEETU NEETU NAGAR NAGAR Date:
2024.10.08 (Neetu Nagar) 16:20:47 JSCC-ASCJ-GJ/South East +0530 Delhi: 08.10.2024 Page 3 of 29 CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain to comply with the same. On 03.07.2022, the plaintiff requested the defendant to pay entire arrears and to vacate the suit property but the defendant flatly refused to do so rather threatened the plaintiff that he will sublet, assign and/or part with the possession of the suit property to some third party illegally and unlawfully against huge premium. Hence, the present suit.
SUMMONING OF DEFENDANT AND CHAIN OF SUBSEQUENT EVENTS
3. Upon receipt of the plaint, summons of the suit for settlement of issues were issued to the defendant vide order dated 14.07.2022. Summons were returned as served by way of affixation on 03.09.2022. Since the defendant failed to appear and file written statement, the defendant was proceeded against ex-parte on 13.10.2022. An application under Order IX Rule 7 CPC for setting aside ex parte order dated 13.10.2022 was moved and same was allowed vide order dated 19.12.2022. Written statement was filed on 19.01.2023.
WRITTEN STATEMENT
4. Written statement was filed on behalf of the defendant wherein preliminary objections have been taken on the ground of lack of cause of action; lack of maintainability, not come with clean hands; not properly valued etc. On merits, it is Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
2024.10.08 16:20:51 JSCC-ASCJ-GJ/South East +0530 Delhi: 08.10.2024 Page 4 of 29 CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain submitted that the plaintiff has given misinformation about the property in question.
4.1 It is submitted that in the month of July 2000, the defendant was inducted as a tenant in the suit property on a monthly rent of Rs. 2000/- excluding electricity and water charges. However, no rent agreement has been executed between the parties. It is averred that at the time of commencing the tenancy, the plaintiff took the signature of the defendant on some blank papers as security and the same are false and misused by the plaintiff. Since the inception of the tenancy, the defendant is regularly paying the agreed rent @ Rs. 2000/- per month to the plaintiff. However, the plaintiff wants to enhance the rent from Rs.2000/ - to Rs.5000/-. As such, the plaintiff has filed the present suit to pressurize the defendant for increasing of rent. 4.2 It is averred that there was an oral tenancy and no rent agreement has been executed between the plaintiff and the defen- dant.
4.3 It is further stated that due to Covid-19, the financial position of the defendant became worse. The defendant has paid rent to the plaintiff @ Rs. 2000/- per month till August 2022.
Thereafter, the plaintiff has not accepted the rent of Rs.2000/- from the defendant and asked the defendant to pay enhanced rent of Rs.5000/- instead of Rs.2000/- per month in order to pressur- ize him. It is further submitted that no notice has been received Digitally signed by NEETU NEETU NAGAR NAGAR Date:
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by the defendant. Rest of the contentions of the plaint have been denied in toto and it has been prayed for dismissal of the suit.
REPLICATION
5. Replication was not filed on behalf of the plaintiff. 5.1 Further, order dated 17.08.2023 was passed on application moved on behalf of the plaintiff under Order XXXIX Rule 10 CPC and Order XV-A CPC vide which it was observed as under:
"7. Having considered aforesaid and the fact that the tenancy inter-se the parties is not disputed by the Defendant who is continuing to occupy the suit property, the Defendant is hereby directed to de- posit Rs. 5,324/- monthly in the account of the Plaintiff, by clearing arrears at the said rate from August 2022 till the date of finalization of suit within two weeks from today, with further transfers at the like rate monthly, till the pendency of the suit. The needful be done in compliance on furnish- ing of the bank account details of the Plaintiff on affidavit for obviating any scope for lack of clarity towards compliance. Application is disposed of in the above terms."
Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
2024.10.08 JSCC-ASCJ-GJ/South East 16:21:03 Delhi: 08.10.2024 Page 6 of 29 +0530 CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain 5.2 Since the defendant failed to comply with the order dated 17.08.2023, the defence of the defendant was struck off vide order dated 21.09.2023. An application was moved under section 151 CPC for recalling order dated 21.09.2023. However, the said application was also dismissed vide order dated 14.03.2024.
5.3 Since the defence of the defendant had been struck off, hence the issues were not framed.
EVIDENCE OF PLAINTIFF
6. The plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A and relied upon the following documents:-
Exhibit Document Ex. PW1/1 Site plan
Ex. PW1/2 and Ex. Copy of Rent Agreements PW1/3 (OSR) Ex. PW1/4 (colly) Rent receipt dated 14.02.2022 Ex. PW1/5 Copy of notice dated 07.10.2016 Ex. PW1/6 (colly) WhatsApp messages exchanged between the plaintiff and the defendant Digitally signed by NEETU NEETU NAGAR NAGAR Date:
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Ex. PW1/7 (colly) Statement of account of the plaintiff
w.e.f. 11.04.2014 to 30.09.2021
Ex. PW1/8 and Ex. Office Copy of legal notice dated PW1/9 24.05.2022 and postal receipts Ex. PW1/10 Certificate under section 65-B of Indian Evidence Act 7.1 PW1 was duly cross-examined on behalf of the defendant. Plaintiff has not examined any other witness. Thereafter, evidence on behalf of the plaintiff was closed vide order dated 05.09.2024.
EVIDENCE OF DEFENDANT
8. No evidence has been led by defendant as the defence was struck off.
ARGUMENTS
9. Arguments were heard on behalf of both the parties. Written submissions were also filed on behalf of the defendant. This court has carefully perused the evidence on record in light of the pleadings of the parties and considered the submissions of the learned counsel for both the parties including the written submissions filed on behalf of the defendant. Both the counsel Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
2024.10.08 16:21:12 JSCC-ASCJ-GJ/South East +0530 Delhi: 08.10.2024 Page 8 of 29 CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain have argued as per their respective cases, hence, their arguments are not being reproduced for the sake of brevity and shall be dealt hereinafter.
APPRECIATION AND FINDINGS
10. Before appreciation of evidence and deciding the case, the position of law as settled is that the onus of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims on preponderance of probability against the defendant. As per the principles of Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A per- son who asserts a particular fact is required to affirmatively es- tablish it. The Hon'ble Supreme Court in R.V.E. Venkatachala Gounder Versus Arulmigu Viswesaraswami & V.P. Temple & another, VI (2003) SLIT 307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if consid- ering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, un- der the circumstances of a particular case, to act upon the suppo- sition that it exists.
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11. It was observed in A. Raghavamma & another Versus Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence.
12. Keeping the above legal position in mind, let us proceed further.
13. The factum of tenancy between the parties to the present suit has been admitted. It is averred on behalf of the plaintiff that the rent was earlier to the tune of Rs. 4,000/- which was later en- hanced to Rs.5,324/- On the contrary, it is urged on behalf of the defendant that the rate of rent was Rs. 2,000/- per month since the inception of tenancy.
14. The Plaintiff in support of his claim has relied upon the copy of the Rent Agreements dated 04.09.2016 Ex. PW1/2 and Ex. PW1/3 along with the rent receipts Ex. PW1/4. Perusal of the rent receipts show that they particularly relate to the period post July 2017 reflecting the rate of rent to be Rs. 5,324/- as claimed. The Plaintiff has also highlighted during the course of arguments that certain transfers through account were made by the Defen- dant pointing out various entries dated 31.08.2019, 16.09.2019, 19.10.2019, 20.11.2019, 21.01.2020, 19.02.2020, 21.03.2020, 02.09.2021, 12.07.2021 and 24.03.2021 amongst other entries to Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
2024.10.08 JSCC-ASCJ-GJ/South East 16:21:23 +0530 Delhi: 08.10.2024 Page 10 of 29 CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain highlight that the payment was being transferred by the Defen- dant towards the rental dues at the claimed rate of Rs. 5,324/- per month. The first rent agreement was executed on 07.06.2008 for a period of 11 months i.e. from 01.06.2008 to 30.04.2009 at the rate of rent of Rs. 4,000/- per month. Perusal of second lease agreement dated 04.09.2016 further shows that it was also exe- cuted only for 11 months i.e. commencing from 01.06.2016 to 30.04.2017 at the rate of rent of Rs. 4,840/-. A perusal of copies of rent receipts Ex. PW1/4 issued pursuant to the execution of the last Rent Agreement shows that the rate of rent was Rs. 4,840/-
initially and thereafter since September 2017, the same was en- hanced to Rs. 5,324/-. From a perusal of rent receipt dated 14.02.2022, it is clear that rate of rent is Rs. 5,324/- from 01.06.2021 to 31.07.2021. The said documents have been duly proved. The Plaintiff has also proved his Bank Account State- ment pointing out entries of bank account transfers of rent at the claimed enhanced rate of Rs. 5,324/-. The defendant however failed to prove that the rate of rent is Rs.2,000/- as asserted by the defendant. Hence, the plaintiff has been able to prove the rate of rent at the rate of Rs. 5,324/- per month. There is nothing on record to prove that the defendant paid the rent commencing from August 2022 till date. Hence, the plaintiff is entitled to rent since August 2022 till termination of tenancy i.e. till May 2022.
Digitally signed by NEETU NEETU NAGAR NAGAR Date:
2024.10.08 (Neetu Nagar) 16:21:29 JSCC-ASCJ-GJ/South East +0530 Delhi: 08.10.2024 Page 11 of 29 CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain Notably, due to non payment of rent, the defence of the defen- dant has been struck off.
15. The next prime question for adjudication in the present suit is whether the defendant in the present case is in unauthorized occupation of the suit property or not. Admittedly, the tenancy stood terminated as per Ex.PW1/3 which is the last executed rent deed between the plaintiff and the defendant. Upon determination of a lease by efflux of time, all rights, title and in-
terest of the lessee under the lease, cease to exist, and the lessee is bound to put the lessor into possession of the property. If the lessee continues to remain in possession of the property, without the consent of the lessor, such possession becomes wrongful from the date of the termination of the lease.
16. Let us now see the consequences of retaining pos- session of premises subsequent to determination of lease by ef- flux of time. Section 108 (q) of the Transfer of Property Act pro- vides that, upon determination of a lease, the lessee is obligated to put the lessor in possession of the property, even if there is no express covenant in the contract. When a lease comes to an end by efflux of time, or by notice of termination, or if there be a breach and the lessee's rights are forfeited, the lessee becomes a 'tenant at sufferance', and it becomes the duty of the lessee under Section 108 (q) of the Transfer of Property Act to restore posses- sion to the lessor forthwith. Further Section 116 of the Transfer Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
2024.10.08 JSCC-ASCJ-GJ/South East 16:21:35 Delhi: 08.10.2024 Page 12 of 29 +0530 CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain of Property Act states that, continuance of possession of the property by the lessee after expiration of the term of the lease, coupled with acceptance of rent by the lessor or implied assent provided by the lessor towards the lessee continuing to remain in possession of the property, in the absence of an agreement to the contrary, brings into existence a statutory tenancy from month to month (in case of an immovable property) as contemplated under Section 116 of the Act. The said concept is more popularly rec- ognized as 'Tenancy by Holding Over'. Notwithstanding the con- cept of 'Tenancy by Holding Over', in the event a lessee contin- ues to retain possession of a property, without the consent (whether implied or explicit) from the lessor, such retention of possession is unlawful, and the concept is recognized as 'Ten- ancy at Sufferance'.
17. The Hon'ble Supreme Court of India in the matter of R.V. Bhupal Prasad vs State Of Andhra Pradesh & Ors. (1995) 5 SCC 69813, explained the concept of Tenant at Sufferance as fol- lows:
"8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it wrongly after the termination of the term or ex- piry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully con- tinues in possession after the extinction of a law-
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ful title. There is little difference between him and a trespasser. In Mulla's Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at suf- ferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been de- scribed as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that ti- tle has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus : The act of holding over after the expiration of the term does not necessar- ily create a tenancy of any kind. If the lessee re- maining in possession after the determination of the term, the common law rule is that he is a ten- ant on sufferance. 'The expression "holding over"
is used in the sense of retaining possession. A dis- tinction should be drawn between a tenant contin- uing in possession after the determination of the Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
2024.10.08 JSCC-ASCJ-GJ/South East 16:21:46 +0530 Delhi: 08.10.2024 Page 14 of 29 CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain lease, without the consent of the landlord and ten- ant doing so with the landlord's consent. The for- mer is called a tenant by sufferance in the lan- guage of the English Law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere ten- ant at sufferance. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determi- nation of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the ter- mination of the tenancy, his possession is juridi-
cal." (emphasis supplied)
18. The Hon'ble Supreme Court of India, in the matter of Raptakos Brett And Co. Ltd v. Ganesh Property decided on 8 th September 1998, said that, 'in view of the aforesaid settled legal position, it must be held that on the expiry of the period of lease, the erstwhile lessee continues in possession because of the law of Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
2024.10.08 JSCC-ASCJ-GJ/South East 16:21:52 +0530 Delhi: 08.10.2024 Page 15 of 29 CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain the land, namely that the original landlord cannot physically throw out such an erstwhile tenant by force. He must get his claim for possession adjudicated by a competent court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession.' (Emphasis Supplied)
19. Harking back, the tenancy in the present case ex-
pired by efflux of time in the year 2017. However, the landlord kept on accepting the rent from the tenant. Hence, it is a case of tenant holding over with the consent of landlord. The tenancy has to month to month in view of Section 116 of the Transfer of Pro- prety Act. Meaning thereby that tenancy in the present case has terminated by notice of termination dated 24.05.2022. PW-1 de- posed that legal notice dated 24.05.2022 Ex. PW1/8 was issued to the defendant and was duly served on the defendant. More- over, copy of postal receipt Ex. PW1/9 is also on record. It is averred on behalf of the defendant that no notice has been served.
20. It is pertinent to reproduce section 27 of General clauses Act which is as under :-
"Section-27--Meaning of service by post--where any central Act or Regulation made after the commencement of this Act authorizes or requires Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
JSCC-ASCJ-GJ/South East 2024.10.08 16:21:59 Delhi: 08.10.2024 Page 16 of 29 +0530 CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post."
21. In the case titled as K. Bhaskaran vs. Sankaran Vaidhyan Balan 1999 A.I.R SC 3762, the Hon'ble Supreme court observed :-
"The principle incorporated in section 27 can profitably be imported in a case where the sender has dispatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service."
22. Further, section 114 of Indian Evidence Act, 1972 Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
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"114: Court may presume existence of certain facts. That the court may presume existence of any fact which it thinks likely to have happened, regard being head to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations:
The court may presume-
(a)...
XXXXXXX
(f) That the common course of business has been followed in particular cases; -
XXXXXXXX but the court shall also have regard to such facts as the following, in considering whether such maxim do or do not apply to the particular case before it:-
XXXXXXXXX As to illustration (f): The question is whether a letter was received. It is shown to have been posted, but the usual course of the Digitally signed by NEETU (Neetu Nagar) NEETU NAGAR NAGAR Date:
JSCC-ASCJ-GJ/South East 2024.10.08 16:22:11 Delhi: 08.10.2024 Page 18 of 29 +0530 CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain post was interrupted by disturbances;......
23. It is well settled law that this presumption is a rebuttable presumption. If there is any such circumstance weakening such presumption, it cannot be ignored by the court.
24. I have carefully and minutely gone through the record which shows that the defendant has merely made the bald averments in respect of non receiving of such termination notice given by the plaintiff but has done nothing to prove it. It was the duty of the defendant to prove that he was not served by such notice, but he failed to rebut the evidence and documents of plaintiff in respect of termination notice. Mere denial by the tenant does not rebut presumption raised under section 114 (f) of Indian Evidence act. The tenant must produce some other evidence to show that the usual course of the post was interrupted by disturbances. He must prove other circumstances to show that the notice never reached the addressee. As such, service of termination notice under section 106 of Transfer of Property Act stands duly proved. Therefore, the notice is deemed to have been served upon the defendant. The present defendant is in wrongful possession of the suit property since June 2022 as admittedly no new lease deed has been executed between the plaintiff and the defendant thereafter and the plaintiff has not consented to any tenancy. Hence, it is now required to adjudicate the Digitally signed by NEETU NEETU NAGAR NAGAR Date:
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damages/mesne profits to which the plaintiff becomes entitled.
25. Before proceeding further, let us first discuss about the legal position regarding mesne profits. Section 2(12) of the CPC defines the mesne profits of property as meaning those profits which the person in wrongful possession of such property actually received or might with ordinary diligence would have re- ceived therefrom, together with interest on such profit. Thus, what is to be the rate of mesne profits, is to be determined by evi- dence and is not a matter of contract.
26. The Hon'ble Delhi High Court in case titled as Smt. Santosh Arora & Ors vs Sh. M.L. Arora on 13 May, 2014[AIR 2015 (NOC) 58 (DEL.)] has observed with regard to mesne prof- its as follows :
"19. The true legal position may be summed up as under:-
A. The cause of action for a relief of recovery of mesne profits is separate and distinct from a cause of action for the relief of possession (See Gurudwara Baba Zorawar Singh and Baba Fateh Singh Ji Regd. Society Vs. Shri Pi- ara Singh and Sons 141 (2001) DLT 228 (DB), Shri Prem Singh Verma Vs. Girdhari Lal Dhara MANU/DE/ 2207/2008 (DB), S. Santokh Singh Vs Gurbux Singh MANU/DE/0704/2001 (DB) & Syndicate Bank Vs. Raj Kumar Tanwar 154(2008) DLT 230(DB)).
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B. Thus even if in a suit for recovery of possession of im- movable property, the relief of mesne profits has not been claimed, a second suit lies for recovering mesne profits for the period subsequent to the filing of the suit for recovery of possession; of course for the recovery of mesne profits as far as within limitation. Reference in this regard can be made to Shiv Kumar Sharma Vs. Santosh Kumari (2007) 8 SCC 600.
C. However a claim for mesne profits for the period prior to the institution of the suit for recovery of possession ac- cording to Channappa Girimalappa Jolad Vs. Bagalkot Bank AIR 1942 Bom 338 (DB) has to be made along with the suit for recovery of possession and cannot be made subsequent to the filing of the suit for recovery of posses- sion but according to the majority judgment of the Full Bench of the Punjab & Haryana High Court in Sadhu Singh Vs. Pritam Singh AIR 1976 P&H 38 the same can be made by a separate suit as well.
D. Order 20 Rule 12 of the CPC requires the Court, in a suit for recovery of possession of immovable property and for rent or mesne profits, to, besides passing decree for possession, also pass a decree for mesne profits or direct an enquiry as to such mesne profits, for the period prior to the institution of the suit if claimed and if within limitation Digitally signed by NEETU NEETU NAGAR NAGAR Date:
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on the date of institution of the suit, and for the period, from the date of institution of the suit until delivery of pos- session.
E. The Supreme Court in R.S. Madanappa Vs. Chan- dramma AIR 1965 SC 1812 & Bhagwati Prasad Vs. Shri Chandramaul AIR 1966 SC 735 has held that where in a suit for recovery of possession a claim for recovery of mesne profits for the period till the date of institution of the suit is made, even if no claim / prayer for recovery of future mesne profits from the date of institution of the suit till the date of delivery of possession is made, Order 20 Rule 12 mandates the Court to direct such an enquiry into future mesne profits.
F. The reason for the aforesaid is not hard to fathom; the intent is to avoid multiplicity of suits for mesne profits for successive period after the date of the institution of the suit; each of such suits would have to be filed for recovery of mesne profits for a maximum period of three years, to avoid the defence of the claim for mesne profits having be- come barred by time.
G. No claim for mesne profits can be allowed without first finding the defendant being in unauthorized occupation of the premises, as is evident from definition thereof in Sec- tion 2(12) of CPC."Digitally signed by NEETU
NEETU NAGAR Date:
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27. As far as future mesne profit are considered, the Hon'ble Supreme Court in Gopalakrishna Pillai Vs. Meenakshi Ayal AIR 1967 SC 155 has held as follows:-
" With regard to future mesne profits, the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the insti- tution of the suit.."
28. Reference can also be made to the observations of the Hon' ble Supreme Court in M/s. Marshall Sons & Co. (I) Ltd. vs. M/s. Sahi Oretans (P) Ltd. (1999) 2 SCC 325 wherein it was observed as follows:
"...because of the delay unscrupulous parties to the proceedings take undue advantage and person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications; even after obtaining a decree for possession of immovable property, its execution takes long time; in such a situation, for protecting the interest of the judgment creditor, it is necessary to pass appropriate order so that reason- able mesne profits which may be equivalent to the market rent is paid by a person who is holding over the property".
Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
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29. At this stage ,it is also profitable to quote Order XX Rule 12 CPC which is relevant here and reads as under:
"12. Decree for possession and mesne profit.- (1) Where a suit is for recovery of possession of im- movable property and for rents or mesne profits, the parties shall, in addition to adducing evidence in the Court of first instance, as to their right to possession, adduce evidence also in regard to the rents or mesne profits for the period prior to the institution of the suit (if any claimed), up to the date of commencement of trial and the said Court shall, irrespective of whether a decree for posses- sion is passed or not, record findings as to the rent or mesne profits that may be payable to the plain- tiff for the aforesaid period, in the event of a de- cree for possession being passed..
(2) The Court may pass a decree.-
(a) for possession of the property;
(b) for the rents or mesne profits which have ac-
crued on the property during the period prior to the institution of the suit up to the date of commence- ment of trial;
Digitally
signed by
NEETU
NEETU NAGAR
(Neetu Nagar) NAGAR Date:
2024.10.08
16:22:39
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(c) directing an inquiry into the rents or mesne profits from the date of commencement of trial un- til,
(i) the delivery of possession to the decree holder; or
(ii) the relinquishment of possession by the judg- ment debtor with notice to the decree holder through the Court or
(iii) the expiration of three years from the date of the decree whichever event first occurs.
(3) Where an inquiry is directed under clause (c) of sub-rule (2), a final decree in respect of the rents or mesne profits, shall be passed in accordance with the result of such inquiry.
(4) Where an appellate Court orders an inquiry as stated in clause (c) of sub rule (2), it may direct the Court of first instance to make the inquiry and in every case, the Court of first instance may, of its own accord and shall, whenever moved to do so by the decree holder, inquire and pass a final decree.
(5) A decree may be partly preliminary and partly final and there may be more than one preliminary decree and more than one final decree."
30. Having regard to the definition of mesne profits and the legal position as discussed above in Section 2(12) of the Code of Civil Procedure,1908, it is apparent that mesne profits are Digitally signed by NEETU NEETU NAGAR (Neetu Nagar) NAGAR Date:
2024.10.08 JSCC-ASCJ-GJ/South East 16:22:45 +0530 Delhi: 08.10.2024 Page 25 of 29 CS SCJ 1030/2022 Iqbal Mohd. Vs. Nazakat Hussain something which a Plaintiff cannot evaluate and which it is solely for the court to determine on the evidence before it.
31. In order to prove the mesne profits, the plaintiff ex- amined himself as PW-1 and deposed on the lines of the plaint. However, no evidence has been led on behalf of the plaintiff to prove that the rent of the similarly situated properties in the area where the suit property is located are having the rent of Rs. 10,000/- per month as alleged. No property dealer to corroborate the prevalent rate has been examined by the plaintiff. There is nothing on record to substantiate if the plaintiff ever made any consultation with any property dealer. The assertion of the plain- tiff as regards the rate of rent @ Rs 10,000/- of similarly situated properties as mentioned in the plaint, thus was without any basis. Hence, the plaintiff failed to prove if similar property under simi- lar circumstances situated in the same locality is fetching market rent @ 10,000/- per month as claimed in the plaint.
32. However, since the defendant has not vacated the suit property despite termination of the tenancy by dint of notice of termination, therefore, he is liable to pay damages/ mesne profits for wrongful possession of the suit property. The mesne profits thus can be awarded on the basis of the rent which was last paid by the defendant i.e. Rs. 5,324/- per month to be calcu- lated since June, 2022.
Digitally
signed by
NEETU
NEETU NAGAR
(Neetu Nagar) NAGAR Date:
2024.10.08
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33. Vide order dated 14.07.2022, the learned predeces- sor has allowed the application filed by the plaintiff under Order 39 Rule 1 and 2 CPC and restrained the defendant from sub-let- ting or creating third party rights in respect of the suit property till NDOH. The said position did not change during the entire trial. Hence, the plaintiff is also entitled to the relief of permanent injunction restraining the defendant from sub letting and/or part- ing with the possession of the suit property or from creating any third party interest therein as the defendant being a tenant whose tenancy has been determined has no right to do so. Otherwise also clause 5 of the lease deed dated 04.09.2016 executed be- tween the plaintiff and the defendant clearly stipulated that the defendant cannot sublet the said demised premise in part or in full to anybody else without written permission of the court. The plaintiff is also entitled to the possession of the suit property. The plaintiff thus has proved his case beyond preponderance of prob- abilities.
RELIEF
34. In view of my findings and observations, the suit of the plaintiff is decreed with costs in favour of the plaintiff and against the defendant in the aforesaid terms. The defendant is hereby directed to vacate the suit property within two months of the passing of the decree.
Digitally
signed by
NEETU
NEETU NAGAR
(Neetu Nagar) NAGAR Date:
2024.10.08
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35. The plaintiff is also entitled to recover the rent @ Rs. 5,324/- per month since August 2021 till expiration of the tenancy i.e. till May 2022 totalling to Rs. 53,240/- (calculated at the rate of Rs. 5,324/- per month for 10 months) along with inter- est @ 6% per annum on the amount due. Further, the ends of jus- tice would be met if the plaintiff is awarded pre suit and pendente lite damages/mesne profits at the rate of Rs. 5,324/- per month since June 2022 till the date of decree and future damages/ mesne profits at the same rate from the date of decree till the date of handing over of the vacant possession of the suit property or the relinquishment of possession by the defendant with notice to the plaintiff through the Court or the expiration of three years from the date of the decree whichever event first occurs. The defen- dant has to clear the entire pre-suit and pendente-lite damages / mesne profit since June 2022 till the date of decree within two months of the passing of the decree in the present suit along with interest @ 6% per annum on the amount due neither penal nor unconscionable. Further, future interest @ 6% per annum on the amount due shall serve the ends of justice.
36. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendant restraining the defendant from sub letting, parting with the possession of the suit property to any third person or from creating any third party in- terest in the suit property.
NEETU
(Neetu Nagar) NAGAR
JSCC-ASCJ-GJ/South East Digitally signed by
NEETU NAGAR
Delhi: 08.10.2024 Page 28 of 29 Date: 2024.10.08
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37. Decree sheet be prepared accordingly. The decree qua pendentelite damages/ mesne profits shall not be prepared till balance court fee on the amount is paid. The amount already de- posited on behalf of the defendant as rent, if any, is to be de- ducted / adjusted from the amount of rent/mesne profits. There- after, file be consigned to record room.
Digitally
signed by
Announced in the open NEETU
NEETU NAGAR
court today i.e. 08.10.2024 NAGAR Date:
2024.10.08
16:23:10
(This judgment contains 29 pages +0530
signed by the undersigned)
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Saket Courts: New Delhi
(Neetu Nagar)
JSCC-ASCJ-GJ/South East
Delhi: 08.10.2024 Page 29 of 29