Delhi High Court
P.S. Bedi vs The Project & Equipment Corporation Of ... on 20 February, 1994
Equivalent citations: 1994IIAD(DELHI)937, AIR1994DELHI255, 1994(28)DRJ680
JUDGMENT P.N. Nag, J.
(1) The plaintiff has Filed the suit for ejectment against the defendant from property known as flat No.9-B.Hansalaya Building. 1.5, Barakhamba Road, New Delhi-110001 and for recovery of Rs.4,26,560.00 on account of damages & mesne profits for use and occupation of the premises from the date of termination of the tenancy till the date of the suit and for mesne profits.
(2) The facts set out in the plaint are that the plaintiff is the owner of the properly knownasflatNo.9-B,Hansalaya Building, 15,BarakhambaRoad,NewDelhi-l 10001. The aforementioned premises, which has a covered area of 1333 sq. ft. on the 9th floor in Hansalaya Building, as marked "B" in the plan was let out by the plaintiff to the defendant as monthly tenant initially at the rate of Rs.5.50 per ft. per month i.e. Rs.7331.50 per month from 30.4.1976 on the terms reduced in writing vide registered lease dated 6.6.1977. vide Registered No.2261, book No-3816 on pages 84-87 dated23.6.1977. The said lease deed contemplated the tenancy for a period of three years commencing on 30.4.1977. The tenancy was thereafter extended twice, once unilaterally by the defendant and second time by mutual consent, each time for a period of three years in terms of the said lease deed. The rate of rent was increased with every renewal. During the first period of three years the rent was Rs.7331.50per month from 30.4.1977 to 29.4.1980 and the for the second period of renewal from 30.4.1980 till 29.4.1983 was Rs.8,431.22per month: and for the next period of renewal from 30.4.1983 till 29.4.1986 it was Rs.9,690.91 per month and for the period from 30.4.1986 till 29.4.1989, it wasRs.ll,143.88 per month. On the expiry of the period of tenancy w.e.f. 29.4.1986. the defendant negotiated for further renewal of the lease for a period of three years to which the plaintiff was not agreeable. The defendant, therefore, offered to give a solemn undertaking to vacate as soon as new Slate Trading Corporation Building was ready for occupation. The tenancy was then renewed for the last lime in June, 1986. subject to the undertaking of the defendant that it would vacate the said premises as soon as the new Stale Trading Corporation Building at Janpath would he ready for occupation. Such an undertaking was given in writing and communicated to the plaintiff by the letter of the defendant dated 29.7.1986. Although the State Trading Corporation Building was got completed around the middle of 1988 but the defendant did not honour its undertaking and did not vacate the said premises. The plaintiff vide her letter dated 19.12.1988 requested the defendant to honour its undertaking to vacate the said premises, which was not vacated. However, the defendant unilaterally in violation of the lease deed attempted to renew the tenancy vide its letter dated 6.1.1989 purporting to be a three months notice for the renewal of the tenancy in terms of clause 111(1) of the lease. The defendant could not unilaterally. without the due approval of the plaintiff, renew such lease. The tenancy came to an end by efflux of time on the midnight of 29.4.1989 as tenancy was not renewed by the plaintiff. The cheque dated 5.4.1989 sent by the defendant forRs.l 1,143.89 purporting to be rent for the month of April, 1989was returned by the plaintiff as the said cheque was beyond the period of the lease which had come to an end by efflux of time. Although the lease has already been terminated, the plaintiff byway of abundant caution served a notice dated 1.5.1989 on the defendant on 2.5.1989 terminating the tenancy and calling upon the defendant to hand over the peaceful vacant possession of the said premises by 29.5.1989. In spile of the service of the notice, the vacant peaceful possession was not handed over by the defendant to the plaintiff and hence the suit for ejectment.
(3) According to the plaintiff, the defendant is also liable to pay to the plaintiff damages for use and occupation of the said premises at the rate prevailing in the market at the time of wrongful use and occupation from 29.4.1989 till the date of handing over peaceful vacant possession. The prevailing market rate of another flat in the adjoining building is about Rs.32.00 per sq.ft-per month and the damages claimed by the plaintiff at the rate ofRs.32.00 persq.ft.permonthfor 10 months from 30.4.1980 till the date of the suit is Rs.4,26.560.00 . The plaintiff reserves his right to ask for further damages at the market rate prevailing during the pendency of the suit. According to the plaintiff that with effect from 1.12.1988, Delhi Rent Control Act does not apply to the premises and the defendant is not under any statutory protection against ejectment under the aforementioned Rent Act.
(4) In its written statement, the defendant has admitted the lease dated 6.6.1977. It has been denied that the tenancy beyond 30.4.1980 was unilaterally extended by the defendant. According to the defendant, the tenancy was mutually renewed from time to time as per the terms of the lease deed dated 6.6.1976, which is a duly registered document. Ii has been admitted that immediately on the expiry of the period of the said lease with effect from 29.4.1986, the defendant had negotiated for extension for a further period of three years. According to the defendant, the true facts are that prior to 1977 the defendant was housed Along with the State Trading Corporation of India Ltd. (STC) at Chanderlok Building, 36, Janpath, New Delhi. The defendant shifted from their premises at Chanderlok Building to Hansalaya Building, 15, Barakhamba Road,New Delhi and hired 19 flats on different floors i.e. 8th, 9th, 13th and 14th floors from the different flat owners/landlords. including the plaintiff. Although the defendant was getting assurance from its then holding co. State Trading Corporation that as and when the new Stc building which was under construction would be completed, the defendant also be provided space which position Slate Trading Corporation main p7' tained till December 1989. The State Trading Corporation moved from Chanderlok Building, 36 Janpath, New Delhi, to their newly constructed building sometime in early 1990 and subsequently they found that the space in new building was not adequate/sufficient to accommodate their own staff and. therefore. the Stc expressed their inability to allocate the agreed space for the defendant. On the basis of this assurance by the Stc, the plaintiff was given written undertaking as mentioned vide letter dated29.7.1986, However,the defendant is still making its efforts to get the space allotted in the new building by the STC.
(5) The completion of the State Trading Corporation around middle of 1988 having been denied and according to the defendant the State Trading Corporation has shifted to its new building only in the early part of 1990. The defendant is continuing to stay in the premises with the mutually agreed lease agreement dated 6.8.1986 thereby the plaintiff had agreed to allow the tenant to continue in the premises on the payment of increase rent at Ks.8.36 per sq. ft. per month and enhanced rent is being paid by the defendant. The defendant has spent considerable expenses towards maintenance and towards interior designing, decoration of the premises etc. and the plaintiff is now seeking to take advantage of the amendment in the Delhi Rent Control Act which is ultra vires of the Constitution and even otherwise the plaintiff in the facts of the case is estopped from recovering possession. No doubt, according to the defendant, they have conveyed vide letter dated 6.1.1989 to extend the lease for a further period of three years with 5% increase in rent with effect from 30.4.1989, as per the terms of the-lease dated 6.6.1977 vide clause 111(1). It is denied that the action of the defendant was unilateral and without the knowledge of the plaintiff. The termination of the tenancy by efflux of time on the midnight of 29.4.1989 is also denied and according to the defendant the tenancy is contractual and the premises is being occupied in terms of clause 111(1) of the lease deed. According to the defendant, the terms of the lease deed provide that the premises would be available to the defendant for an indefinite terms and formal periodic renewals after three years would be effected with increase in rental at 15%, the other terms and conditions remaining the same. The defendant has also vide letter dated 23.5.1989 in response to the letter dated 1.5.1989 from the plaintiff refuted the demand and threat for vacation. According to the defendant, it is not liable to pay damages for the use and occupation of the premises at the rate of Rs.50.00 per sq. ft. per month with effect from 29.4.1989 till the date of handing over of the actual possession. Such a demandofRs..50.00 per sq. ft. per month is wholly unreasonable, arbitrary, whimsical, illegal and without authority of law.
(6) This Court on 7.8.1991 framed the following issues:-
1. Whether the movement of the defendant from the premises in question depends upon the decision to be taken by its holding company Bharat Business International Limited? If so, whether such a defense is tenable in law?
2.Whether there is any mutually agreed lease agreement dated August 6,1986? If so, whether the defendant is continuing to stay in the premises on the basis of such alleged mutually agreed lease agreement dated August 6,1986?
3Whether the letter dated January 6, 1989, sent by the defendant was not unilateral and was within the knowledge of the plaintiff? If so, to what effect?
4.Whether the tenancy of the defendant came to an end by effluxoftlmeonthemidnightofApril29,andApril30,l9'89?
5.Whether it was ever agreed between the parties that the premises in question would be available to the defendant for an in- definite term on formal periodical renewal every three years with an increase in rental at 15%, the other terms and conditions remaining the same?
6.Whether the notice dated May 1, 1989, was illegal, unwarranted, without the authority of law and thus, cannot be acted upon?
7.Whether the defendant is not entitled ejectment from the premises?
8.Whether the plaintiff is entitled to damages/manse profits for use and occupation of the premises? If so, at what rate and fur what period?
9.Relief.
(7) As agreed by learned counsel for the parties, the evidence in this case was recorded on commission. I have heard learned counsel for the parties and perused the evidence on record. My findings on the issues are as under.
(8) Issue NO.1 "1. Whether the movement of the defendant from the premises in question depends upon the decision to be taken by its holding company Bharat Business International Limited? If so, whether such a defense is tenable in law?"
(9) On this issue no arguments were addressed or pressed by counsel for the defendant. Moreover according to the testimony of Shri Krishan, Dw 2, decision to vacate the premises in question is not dependent upon the decision of M/s Bharat Business Inter- national Limited(for short BBIL)as Bbil itself does not exist any more and that defendant has become an independent Corporation. This also Finds support from the deposition of Dw 1 who clearly states that the defendant Corporation is an independent Corporation for the last about three years. Therefore, this issue is decided against the defendant and in favor of the plaintiff.
(10) Issue N0.2
"2.Whether there is any mutually agreed lease agreement dated August 6, 1986? If so.whether the defendant is continuing to stay in the premises on the basis of such alleged mutually agreed lease agreement dated August 6.1986?
(11) I have examined various documents. No agreement dated 6.8.1986 has been placed on record by the defendant nor is any oral evidence available on this plea. In fact at the time of argument no serious attempt was made by the learned counsel for the defendant to substantiate Issue No.2 and. therefore, this Issue No.2 is decided against the defendant and in favor of the plaintiff.
(12) Issue N0.3 "3.Whether the letter dated January 6. 1989, sent by the defendant was not unilateral and was within the knowledge of the plaintiff? If so, to what effect?
(13) No doubt the defendant has written a letter to the plaintiff for renewal of lease of the suit premises in terms of Clause 111(1) of the lease deed, but mere exercise of the option by the defendant for renewal of lease does not automatically result into the renewal of the lease deed. In this connection Clause 111(1) of the lease deed is very material and is reproduced below:
"III.IT Is Hereby Mutually Agreed As FOLLOWS: 1. That if the Lessee shall be desirous uf having the lease renewed for a further term of three years,the Lessee shall. not less than three months before the expiration of the term of the lease hereby granted give to the Lesser a notice in writing of such intention and the Lesser shall grant fresh lease of the demised premises for a further period of three years with an increase of 15% in the monthly rent, other terms and conditions remaining the same. Any further renewal shall be on such terms and conditions as may be mutually agreed upon for which the Lessee shall give 3 months notice before the expiration of the renewed term to the Lesser. In the event of failure of negotiations for further renewal of term lease within the above said notice period of three months, the Lessee shall hand over the vacant possession of the demised premises to the Lesser after the expiry of the renewed period of lease."
According to this Clause for the First renewal of lease for a term of three years. the option/right shall be of the defendant and further renewals of lease thereafter will depend upon the mutual agreement entered into between the parties. No mutual agreement on behalf of the plaintiff has been shown by the defendant for renewal of the lease deed for a further period of three years w.e.f. January 1989. The letter dated 6.1.1989 written by the defendant to the plaintiff for renewal of further term of three years. was never agreed to by the plaintiff which is apparent from their testimony. On the other hand, Shri P.K.Anand, Dw I, who was working as Deputy Manager (Admn.) of the defendant Company has clearly testified that there is no mutually agreed agreement for continuance of tenancy after April, 1989. Shri Krishan Lal, Dw 2, has deposed in his statement that when the defendant gaveanoticedated6.1.1989,Ext.P-5, for the renewal of the lease, the plaintiff asked the defendant to vacate as she needed the premises for a clinic etc. Therefore, it is apparent that the letter dated 6.1.1989, containing the option of the defendant for renewal of the lease for three years, written by the defendant was never agreed to by the plaintiff. On the other hand, according to the witnesses of the defendant. Dw I and Dw 2 themselves, as discussed above, the plaintiff never agreed to the renewal of such lease and, therefore, in terms of the lease, no tenancy was created/extended after April, 1989. The fact of this non-renewal of the lease, therefore, is that the lease stands terminated in terms of the lease deed.
(14) Letter dated 6.1.1989, Ext. P-5 was written by the defendant to the plaintiff unilaterally for renewal of the lease which finds support from the statement of Shri Krishan Lal, Dw 2, who during his examination-in-chief on 26.2.1993 has stated as under:
"WE did not ask the plaintiff before sending notice dated 6.1.1989, Ext. P-5, as we have never been asking her."
In view of this categorical statement of Shri Krishan Lal. Dw 2, it is obvious that the letterdated6.1.1989wassentunilaterally and inviewofClauselll(l)ofthelease deed, Ext. P-1, which provides for subsequent renewals by mutual agreement only, this issue is decided in favor of the plaintiff and against the defendant and accordingly it is held that this letter dated 6.1.1989, Ext. P-5, was sent by the defendant to the plaintiff unilaterally and as such is decided in favor of the plaintiff and against the defendant.
(15) Issue N0.4 & 5 "4.Whether the tenancy of the defendant came to an end by efflux of time on the midnight of April 29 and April 30,1989?"
"5.Whether it was ever agreed between the parties that the premises in question would be available to the defendant for an indefinite term on formal periodical renewal every three years with an increase in rental at 15%, the other terms and conditions remaining the same?"
(16) Issue Nos. 4 & 5 are interconnected and can be disposed of together.
(17) In respect of these two issues, both the parties have relied upon Ext. P-1, the lease deed. Counsel for the defendant has submitted that under the terms of the lease the defendant has every right to occupy the suit premises and the same will always he available to him for indefinite term on formal periodical renewal every three years with an increase in rental at 15%, the other terms and conditions remaining the same.
(18) On the other hand.Mr. Amit Chadha.counsel for the plaintiff.submitted that the tenancy has come to an end by efflux of time on the midnight of 29th and 30th April. 1989.
(19) I have examined the document. Ext. P-1, relied upon by both the parties (20) The lease deed, Ext. P-l. was granted to the defendant by the plaintiff w.e.f. 30.4.1977 for an initial period of three years. In other words, the initial term of three years of lease came loan end on 29.4.1980. For first renewal of the lease for a further period of three years w.e.f. 30.4.1980 an option and an unilateral right was conferred on the defendant by the terms of the lease deed. Ext. P-l. Such an option/right was exercised by the defendant and consequently the lease deed was further renewed for a period of three years w.e.f. 30.4.1980 to 29.4.1983. However, for further renewal, no unilateral right. under the terms of Ext. P-l, has been given to the defendant. Such further extension of lease for a further period of three years depends upon mutual agreement between the parties on such terms and conditions as they may settle among themselves; and the defendant was required to give three months' notice before the expiration of new extended term of lease expressing its desire for such renewal. In case, such further renewal does not take place, the lessee is required to hand over the vacant possession of the demised premises to the Lesser after the expiry of new extended period of lease. Again, the defendant sought renewal w.e.f. 30.4.1983 but the plaintiff did not agree. However, the defendant gave an undertaking dated 29.4.1986, Ext. P-3, to the effect that they would vacate the premises as soon as the new Stc building at Janpath was ready for occupation by them. The Stc building was expected to be ready by June, 1988. The plaintiff, therefore, wrote a letter to the defendant dated 19.12.1988 (ExLPW 1/2) requesting him to hand over vacant and peaceful possession of the premises to him in terms of the undertaking contained in Ext. P-3, after the expiry of the lease period, i.e., 29.4.1989 in accordance with the provisions of the lease deed. In other words, the plaintiff through letter Ext. Public Witness 1/2 has extended the lease period up to 29.4.1989 by mutual consent. However, thereafter, there is no mutual agreed agreement for continuation of the lease after 29.4.1989. On the other hand, as discussed earlier under Issue No.3, the plaintiff never agreed to extend the lease beyond 29.4.1989. Therefore it must be held that the lease was not renewed after 29.4.1989 and the tenancy of the defendant came to an end by efflux of time on 29.4.1989.
(21) Next contention of the learned counsel for the defendant that the lease was for indefinite term on formal periodical renewal every three years with an increase in rental at 15%, the other terms and conditions remaining the same, is completely without any force as I do not find anything to this effect in the lease deed. It is needless to repeat that the terms of the lease deed are very clear that after the lease was granted, only one option/unilateral right has been conferred on the defendant for the renewal of the lease deed for a further period of three years and thereafter the term lease deed could only be extended by mutual agreement on terms and conditions to be settled between the parties. In this case, as has been held above, the lease term was extended up to 29.4.1989-First renewal was at the option and unilateral right of the defendant, second and third renewals were by mutual agreement. But, after 29.4.1989 there has been no mutual agreement or consent between the parties for extension of lease period. Therefore, the tenancy has come to an end by efflux of time on 29.4.1989.
(22) The question whether the lease deed, Ext. P-l, is for indefinite term on formal periodical renewal every three years with an increase in rental at 15%, the other terms and conditions remaining the same, depends upon the terms of the lease and there can be no tenancy for an indefinite period when the clause of the lease puts restrictions for extension for indefinite period. In a similar case reported as Ved Prakash Khullar & Others v. MIs Genelec Ltd. { 1993(1) Delhi Lawyer 258}, Arun Kumar, j. has held, with which I am in agreement, that the tenancy of the defendant cannot be for an indefinite period in terms of the lease deed when it specifically restricts for one period.
(23) In the light of above Issues No.4 & 5 are, therefore, decided in favor of the plaintiff and against the defendant.
(24) Issue N0.6
"6.Whether the notice dated May 1, 1989, was illegal, unwarranted, without the authority of law and, thus, cannot be acted upon?"
(25) Counsel for the defendant submitted that the notice dated 1.5.1989, Ext. Public Witness l/ 3, issued by counsel for the plaintiff to the defendant terminating the tenancy is not in accordance with law and therefore, the tenancy has not been terminated lawfully. According to him, the tenancy has not been terminated vide Ext.PW 1/3 but the defendant by this notice has been asked to hand over the vacant possession of the suit premises by 29.5.1989.
(26) I regret I am unable to accept the contention of learned counsel for the defendant. Having regard to overall contents of the whole notice, to me it is very clear that the tenancy stands duly terminated and the defendant has rightly been asked to hand over the vacant possession of the premises in dispute. However.it is not necessary to determine the validity of the notice in the present facts and circumstances of the case, as already discussed and held above, the tenancy of the defendant stood terminated by efflux of time on 29.4.1989 and the defendant is not entitled to a statutory notice under Section 106 of the Transfer of Property Act. I am fortified in taking this view by a decision reported as Pooran Chand v.Motilal and others .
(27) Issue N0.7 "7. Whether the defendant is not entitled ejectment from the premises?"
(28) As already discussed under Issues No.4 & 5 that tenancy has come to an end by efflux of time and the terms of lease do not confer any permanent tenancy rights in the defendant and. therefore, in my opinion the defendant is liable to be ejected.
(29) However, counsel for the defendant strenuously urged that the plaintiff has no title to this property and, therefore, she has no locus standi to file this suit. There is no dispute that the lease deed, Ext. P-l, was entered into between the plaintiff and the defendant. It specifies certain terms and conditions. There is further no dispute that the defendant has been paying rent to the plaintiff and the plaintiff was accepting the same till 29.4.1989. In such a situation the landlady can always terminate tenancy and institute the suit fore viction. The tenant cannot challenge the title of the landlord under Section 116 of the Evidence Act. In Sri Ram Pasrichav.Jagannath and others the Supreme Court has held that it is only the landlord who can terminate the tenancy and institute the suit for eviction. The tenant in such a suit is estopped from questioning the title of the landlord under Section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant. Similar view has been expressed by the Supreme Court in Atyam Veerraju and others v.PechettiVenkanna and others . This contention of the learned counsel for the defendant has no force.
(30) Next submission of learned counsel for the defendant was that the suit is not main- tainable under the general law or under the Transfer of Property Act as the parties are covered under the provisions of Delhi Rent Control Act, 1958 and the defendant can only be ejected under the Delhi Rent Control Act.
(31) This argument of learned counsel is also not tenable. Clause 3(c) has recently been added by Act 57 of 1988 to the effect that the Delhi Rent Control Act will not apply. whether residential or not. whose monthly rent exceeds three thousand and five hundred rupees. There is no dispute that this amendment has come into force w.e.f. 1.12.1988. \nMrs.NirmaljitArorav. Mis Bharat Steel Tubes Ltd. (1991(l)DelhiLawycr 183} the question arose for consideration was whether Section 3(c) inserted by Act 57 of 1988 has retrospective operation. In that connection, a Division Bench of this Court has held as under:-
"WE are clearly and firmly of the opinion that Section 3(c) is only prospective in character and has no retrospective operation, and as such, it will not apply to the pending actions and proceedings. The pending actions and proceedings shall continue to be governed by the Rent Act as if in respect of the pending matters. Section 3(c) is not on the statute book. We express that Section 3(c) has operation prospectively, w.e.f. 1.12.88, it would mean that Section 3(c) would apply from 1.12.88 and in that event, if the rent of the premises exceeds Rs.3,500.00 p.m.. the provisions of Section 3(c) would apply and as such the Rent Act would have no application to such premises. This is the necessary result of the prospective operation of Section 3(c). It cannot be said that if Section 3(c) is applied from 1.12.88, it will still be retrospective as it would apply to existing tenancies of the premises fetching rent exceeding Rs.3,500.00 ."
Admittedly in the present case the rent of the demised premises is more than Rs.3.500.00 p.m. and. therefore, the amendment by way of Section 3(c) would apply in the present case and consequently the Delhi Rent Control Act, 1958 would not be applicable. I, therefore, hold that the Civil suit is maintainable. This position has been followed by this court consistently. In State Bank of India v.Shri Ashok Kumar Gupta and' another {1992(1) Delhi Lawyer}. following the decision in Mrs. Nirmaljit Arora (supra), the Division Bench of this Court has held that a civil court would have jurisdiction to try a suit for ejectment of tenant in respect of the premises whose monthly rent exceeds Rs.3,500.00 .
(32) In the light of the above. Issue No.7 is decided in favor of the plaintiff and against the defendant.
(33) Issue N0.8 "8.Whether the plaintiff is entitled to damages/manse profits for use and occupation of the premises? If so. at what rate and for what period?"
(34) The plaintiff in the suit has claimed damages/manse profits at the rate ofRs.32.00 persq. ft. per month from the date of the suit till handing over of peaceful vacant possession as also the sum ofRs.4,26,560.00 as damages/manse profits for a period of 10 months from May 1989toFcbruary, 1990.
(35) As already held, the tenancy of the defendant has come to an end by efflux of time on 29.4.1989andin such circumstances the occupation of the premises by the defendant on or after that date has become contumacious and without any authority of law and the plaintiff would as such he entitled to damages/manse profits for useand occupation of the premises.
(36) In Shyam Charan v.SheojiBhai and another it has been held that after the termination of tenancy the occupant becomes unauthorised and wrongful and decree for damages can be passed against the defendant. In L. Bhagwan Das Mengi v. Union of India (AIR 1961 J&K39) it has been held that where the tenant after the expiry of the lease remains in occupation of the premises in spite of the fact that the landlord served a notice on him to vacate and warned him that if he remains in occupation he will have to pay a specified sum as damages for wrongful use and occupation of the building, the defendant tenant will be liable to pay that amount provided it is not penal and unconscionable. In Bakshi Sachdev(D) by L.Rs.v. Concord (1) (1993 Rlr 563). Arun Kumar.J. has held that the damages and mesne profits can be granted at a higher rate than the agreed rate of rent after the expiry of the tenancy and in that case after taking judicial notice of the fact of phenomenal rise in rents in Delhi and particularly in posh colonies like where the property in suit was located, higher rate of damages/manse profits was awarded by the court. In this connection Union of India and another v. Wing CommanderR.R.Hingorani may also be referred to.
(37) Next question that arises for consideration would be at what rate the damages/ mesne profits should be awarded in favor of the plaintiff and against the defendant. In this case the defendant has not vacated the premises in spite of legal notice and also particularly when the period of lease was not renewed by the plaintiff. The defendant has occupied the premises without any authority of law, therefore, the plaintiff is entitled to damages/manse profits at the market rate provided the same is not penal and unconscionable.
(38) The plaintiff has produced evidence about the market rate of rent prevailing in that area at the relevant time, i.e., in 1989 whereas the defendant has not produced any evidence at all. The plaintiff appearing as Public Witness 1 in her statement has specifically staled in cross-examination that the market rate of rent of similar premises in the year 1989 was about Rs.32.00 per sq. ft. She has also in this context proved a document dated 19.6.1985. Exi. Pw 1/4. Shri P.C.Bedi.PW 2, has also deposed about the market rent of the premises. He has brought certain lease deeds dated 22.8.1989 (Mark A) showing the rent for the relevant period. Document mark A dated 22.8.1989 produced during cross-examination of Public Witness 2 is in respect of 8th floor of Hansalaya building for a flat of 1333 sq. ft. and the rate of rent has been shown at Rs.27 per sq. ft. from 22.8.1989 to 21.8.1992. This document, however. cannot be taken into consideration as it has not been exhibited. However, having regard to the oral evidence of Public Witness s I &2, the document Ext.PW 1/4 and the phenomenal rise in rents in Delhi and particularly in the area where the property in Suit is located, in my opinion it would be just and equitable to fix the market rate of rent for the demised premises at the rate ofRs.25.00 per sq. ft. which such premises might have fetched on 30.4.1989.
(39) In view of the law already discussed above it becomes evident that after the expiration of the tenancy and in spite of legal notice dated 1.5.1989 if the defendant does not vacate the premises, he is liable to pay the market rent as damages/manse profits for use and occupation of the demised premises the damages can be paid at the market rent demanded in the notice provided the same is not penal or unconscionable. Although in the notice the market rate of rent has been claimed at the rate of Rs.50.00 sq.ft. per month but the same cannot be awarded as damages as it is not warranted on the basis of evidence and documents placed on record. However, the plaintiff would be entitled to damages at the rate ofRs.25.00 per sq. ft. per month as discussed hereinbefore.
(40) In the suit the plaintiff has claimed a sum of Rs.4,26,560.00 at the rate of Rs.32.00 per sq. ft. as damages for use and occupation by the defendant for a period of 10 months from May 1989 to February 1990. The market rate of rent at the rate ofRs.25.00 per sq. ft. for 1333 sq. ft. for 10 months comes tors.3.33.250.00 . I.therefore.hold that the plaintiff is entitled to recover a sum ofRs.3,33,250.00 as an amount of damages for use and occupation of the demised premises, from May 1989 to February, 1990. The plaintiff will also be entitled to damages/manse profits at this rate ofRs.25.00 per sq. ft. from the date of suit till the dale of handing over of vacant possession of the premises. Any payment made during the pendency of the suit for this period on account of rent will be liable to be adjusted in this amount.
(41) In view of what is discussed above, I, therefore, pass a decree (i) for ejectment against the defendant from the suit premises', (ii) for recovery ofRs.3,33,250.00 towards damages and mesne profits for use and occupation of the demised premises calculated at Rs.25.00 per sq. ft. per month for 1333 sq. ft. for the period from May 1989 to February. 1990: and(iii)forpendentelite and future damages and mesne profits for use and occupation of the demised premises calculated at Rs.25.00 per sq. ft. per month from the date of suit till handing over of vacant possession to the plaintiff by the defendant. The plaintiff shall also be entitled to costs in this suit.