Delhi District Court
Smt. Kanta Devi vs The Chief Post Master on 8 May, 2012
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IN THE COURT OF SHRI MAN MOHAN SHARMA
ADDITIONAL DISTRICT JUDGE (CENTRAL) 12
TIS HAZARI COURTS, DELHI.
Civil Suit No.: 93/09
Unique ID no. 02401C0462962007
Smt. Kanta Devi
W/o Sh. Bimal Parshad Jain
R/o A312/1, Derawal Nagar,
Delhi09 ....Plaintiff
Versus
1. The Chief Post Master
GPO Delhi110006.
2. Senior Suptd. of Post offices
Delhi North Division,
Delhi1100054.
3. S.P. M.
Post Office Sadar Thana Road,
Delhi110006. ....Defendants
Date of institution of the suit: 03.05.2007
Reserved for judgment on: 05.05.2012
Date of pronouncement of judgment: 08.05.2012
C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 1 of 21
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Suit for recovery of possession and mesne profits
JUDGMENT
1. The instant suit for recovery of possession and mesne profits has been filed by plaintiff on the following facts constituting her cause of action:
i) The plaintiff is the owner of the property bearing no.
5326/31, Basti Harphool Singh, Sadar Thana Road (Post Office Building), Delhi.
ii) A portion on the ground floor of the said property bearing n. 5326/31, Basti Harphool Singh, Sadar Thana Road, Delhi measuring 660 Sq. Ft. (approximately) as shown in red colour in the site plan attached had been let out to defendants by the plaintiff for the purpose of running a Post Office at a monthly rent of Rs. 5,100/ under a registered lease dated 03.06.2004 duly executed between the plaintiff and the defendants through defendant no. 2 for a period of five years w.e.f. 23.10.2001.
iii) The tenancy had been according to the English Calendar Month, commencing from 23rd day of each month and expiring C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 2 of 21 3 on 22nd of each following English Calender Month. The period of lease of five years has already expired on 22.10.06 by the efflux of time.
iv) The plaintiff wrote a letter dated 18.07.06 to the defendants whereby she intimated her intentions to get the suit property vacated from them by 22.10.06 unless the defendants were ready to execute a new lease deed at the then market rate of rent as prevalent in the neighbourhood building taken on lease by the Andhra Bank @ Rs. One lakh per month. This letter had been delivered in the office of defendant no. 2 on 20.07.06 but no reply had been sent by the defendants to the same till date meaning thereby the defendants were not interested in renewal of lease for any further period.
v) The tenancy of the defendants in terms of the Lease Deed dated 03.06.04 stood determined and terminated by efflux of time after the expiry of period of five years w.e.f. 22.10.06 U/s 111 of Transfer of Property Act. As such, the defendants have become illegal and unauthorised occupants of the aforesaid premises w.e.f. 23.10.06 onwards. They are liable to pay C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 3 of 21 4 damages/mesne profits @ Rs. 60,000/ w.e.f. 23.10.06 to the plaintiff i.e. at the prevalent market rate based on the prevailing monthly rent of such type of commercial premises in the vicinity of Sadar Bazar Thana Road, Delhi.
vi) The plaintiff has also served a legal notice dated 13.02.07 on the defendants whereby the defendants have been required to vacate the said premises and handover peaceful vacant possession of the said premises to her on or before 31.03.07 and also to pay damages/mesne profits for such illegal use and unauthorised occupation of the said premises @ Rs. 50,000/ per month as aforesaid but inspite of the receipt of the said legal notice of demand, the defendants have not replied to the same and also not paid damages at such rate to the plaintiff as required under the said notice.
vii) The above mentioned legal notice has been served upon the defendants under registered post AD and also under UPC. Copy of the said legal notice, postal receipts and AD cards are enclosed for perusal of the Hon'ble Court.
viii) After the expiry of the period of lease, the defendants C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 4 of 21 5 were required to pay damages/ mesne profits w.e.f. 23.10.06 qua the suit property at the prevalent market rate pf Rs. 60,000/ but the defendant have paid rent/damages at the agreed rate of Rs. 5,100/ per month thereafter upto 22.01.07 to the plaintiff and not the damages as required @ 60,000/ per month by the plaintiff from the defendants. As such, the defendants are now liable to pay the balance outstanding monthly damages i.e. Rs. 1,64,700/ w.e.f. 23.10.06 up to 22.10.07 and thereafter Rs. 60,000/ per month w.e.f. 23.01.07 to 22.04.07 amounting to Rs. 1,80,000/ upto the filing of the present suit and thereafter at the said rate of Rs. 60,000/ per month till vacant possession of the said premises is handed over by the defendants. Hence, finding no other alternative or efficacious remedy, plaintiff is compelled to file the present suit for the recovery of possession as well as to the claim arrears of damages and mesne profits for such illegal and unauthorised occupation of the said premises.
ix) The plaintiff now claims a total amount of Rs. 3,44,700/ as arrears of damages/mesne profits @ 60,000/ per month from the defendants in respect of the said premises w.e.f. 23.10.06 C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 5 of 21 6 onwards.
2. The defendants were served and they contested the suit by filing their written statement. As preliminary objections the defendants claimed that the present suit of the plaintiff was false and frivolous and filed only with a view to harass the defendants; the plaintiff herein has suppressed the material facts from the Court and as such the present suit is liable to be dismissed; there is no cause of action is favour of the plaintiff and against the answering defendant and as such the present suit is liable to be dismissed along with costs; the present suit of the plaintiff as framed and filed is not maintainable in the eyes of law as on the fact and thus the same deserves dismissal; the suit of the plaintiff is a gross abuse of process of law and is liable to be rejected; the suit of the plaintiff has not been properly valued for the purpose of the Court fee and jurisdiction and finally that the suit is false, frivolous and vexatious and the same is liable to be dismissed after awarding exemplary cost under section 35A.
3. On merits, the rate of rent and factum of tenancy has been admitted by the defendants. It is submitted that the tenancy is as old as 11.06.1954 at which time the rent was Rs. 204/ per month and it C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 6 of 21 7 has increased over the years. The factum of letter dated 18.07.06 of plaintiff is admitted and it is submitted that the case was referred to the CO, however, the rent as demanded by the plaintiff was found to be exceptionally high. The plaintiff was duly replied vide letter of defendant dated 27.09.06/03.10.06. The premises which the Andhra Bank is occupying is approximately 3500 sq. ft.and the premises occupied by defendant is 600 sq. ft. Thus there is no parity to claim rent @ Rs. 60,000/ per month for the suit property. The defendant is working for providing public services and is not in any profit making enterprise, therefore is not liable to pay damages as called for. The defendant made efforts to procure another space for shifting and floated a tender but no bids have been received. The public would be deprived of the Utility services if the suit is of the plaintiff is decreed.
4. Replication was filed by the plaintiff in which plaintiff denied the material averments of the written statement and reiterated the corresponding averments of the plaint.
5. Vide order dated 27.02.08, the suit of the plaintiff as to the relief of possession was decreed U/o 12 Rule 6 CPC. A challenge was made to the same by the defendant in RFA but with no success. C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 7 of 21 8
6. On the pleading of the parties, the following issues have been framed on 27.02.08 as under:
i). To what amount by way of damages/mesne profits is the plaintiff entitled to recover from defendants for use and occupation of the suit premises?
ii). Relief.
7. The plaintiff has examined two witnesses namely Sh. Anurag Jain as PW1 and Sh. Prem Prakash Grover as PW2. The defendants have examined Sh. S. A. Mujeed Basha as DW1, as their sole witness.
8. I have heard Sh. V. P. Diwan, Ld. Counsel for plaintiff and Sh. Sanjay Kuamr Aggarwal, Ld. Counsel for defendant. Plaintiff has filed the written arguments also. Despite opportunities afforded no written arguments have been filed by defendant and the opportunity was closed on 05.05.2012. During the course of arguments Ld. Counsel copiously referred to the pleadings and the evidence on record.
9. It has been submitted on behalf of plaintiff that after the passing C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 8 of 21 9 of the decree of possession, the same was challenged by defendant in RFA which was dismissed but time up to 31.01.09 for vacation of the suit property was granted by Hon'ble High Court of Delhi and it was further directed that the grant of time shall not affect the determination of mesne profits. The suit property was vacated on 31.01.2009. It is submitted that w.e.f. 23.10.06, the defendants became unauthorised occupants of the suit property and are liable to pay damages for use and occupation. Legal notice was served on 06.02.07 in which damages were claimed @ Rs. 50,000/ per month. PW1 has proved the various aspects and PW2 is the star witness and he has proved the lease deed of the Branch of Andhra Bank as Ex. PW 2/1 where the premises in question has been taken on rent by the Bank @ Rs. 72,265/ per month and area of the leased premises is 1720 sq. ft.
10. The plaintiff has relied upon the following citations:
i). Kalu Ram Vs. Sita Ram, 1980 RLR (N) 44 holding that if serious assertions are made in a notice to defendant who remains silent and ignores to reply an adverse inference can be drawn against him.
C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 9 of 21 10
ii). G.M. Enterprises Ltd. Vs. Shyam Ahuja Ltd. 2000 Rajdhani Law Reporter 278 citing that for determining the market rent of comparable properties of other areas may be considered.
iii). Phool Rani Trivedi Vs. Sh. Sheel Chjandra, 2004 Rajdhani Law Reporter 467 citing that if a tenant of a lease deed of a fixed duration does not quit on expiry then tenancy gets terminated by efflux of time.
11. Ld. Counsel for the defendants has refuted the stand of the plaintiff and argued that the case of the plaintiff is not proved and that it is not entitled to the relief and that the material on record is self speaking of the matter.
12. No other point has been argued or urged. No other case law has been cited.
13. I have considered the material on record and my issues wise findings are as under: Issue no.1: To what amount by way of damages/mesne profits is the plaintiff entitled to recover from defendants for use and C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 10 of 21 11 occupation of the suit premises?
14. As per section 2 (12) of the Code of Civil Procedure "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 there from, together with interest on such profits, but shall not include profits due to improvements made but the person in wrongful possession.
15. Thus the essential ingredients of mesne profits are:
(i). The person must be in the wrongful possession of property; and
(ii). He must actually have received or might with ordinary diligence have received there from such profits; but
(iii). Such profits shall not include profits due to improvements made by the person in wrongful possession.
16. PW1 has orally deposed about the facts of the case as pleaded in the plaint and his oral deposition is contained in his affidavit by way of examination in chief. PW1 is the SPA of the plaintiff and SPA is Ex. PW 1/1; site plan of the suit property is Ex. PW 1/ 2; Lease C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 11 of 21 12 deed dated 03.06.04 is MarkA; Ex. PW 1/ 3 is the letter dated 18.07.06 of plaintiff to defendant; reminder of same is Ex. PW 1/ 4; Ex. PW 1/5 and Ex. PW 1/6 are the letter as well as the envelope respectively received from the defendant. Legal notice dated 13.02.07 is Ex. PW 1/7 and the postal receipts, AD cards etc are Ex. PW 1/8 to Ex. PW 1/14.
17. In the cross examination PW1 he has been suggested that the premises occupied by Andhra Bank is about 3600 sq yds. which he has denied. PW1 admitted the suggestion that the plaintiff had not accepted the rent sent by defendants after the receipt of the intimation that his case was under consideration.
18. PW2 is the Senior Manager in the Andhra Bank, Sadar Thana Road Branch, Delhi. He has deposed about the premises bearing no. 5332/5375, Plot No. IV, located on Sadar Thana Road Delhi having been taken on rent by the Bank vide lease deed Ex. PW2/1. He stated in examination in chief that the said premises comprising of ground and first floor has been taken on lease by the Bank w.e.f. 25.05.2005 at a monthly rent of Rs. 72,265/. He further stated in his examination in chief the total leased area to be Rs. 1720 sq. ft. He also stated that C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 12 of 21 13 the suit property is situated at a distance of 50 ft. from the Bank's leased premises and that both are on the same side of the road.
19. In his cross examination, PW2 stated that the area of leased premises of the Bank to be Rs. 1700 sq. ft. both at ground and first floor. In his cross examination the Bank's building being situated on the main road has been reiterated.
20. DW1 has deposed in his examination in chief as per the stand taken by the defendants in their written statement. The liability to pay damages @ Rs. 60,000/ has been denied. The witness has also deposed that the defendant is in public service and can not be saddled with the damages as claimed by the plaintiff.
21. In his cross examination, DW1 stated that he had no occasion to visit the suit property where the Post Office had been functioning and also that he had no idea of the prevalent rate of rent in the vicinity. He also denied having any knowledge that the suit premises has been let out by plaintiff to ICICI Bank at a monthly rent of Rs. 96,000/. He also stated that he did not know if Andhra Bank had been paying Rs. One lakh per month as rent.
22. From the evidence on record, there is no challenge to the C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 13 of 21 14 deposition of PW 2 on the aspects that the suit property as well as leased premises of Andhra Bank are situated on the same side of the main road. This deposition of PW2 in examinationinchief has not been challenged in his cross examination. On the contrary, by an affirmative statement in his cross examination, the said statement has been cemented. No suggestion has been given to the witness PW2 that the suit property as well as leased premises of Andhra Bank are not at parity as far as location is concerned.
23. The witness DW1 has admitted in his cross examination that he had never visited the suit property and is also not aware of the rent fetched by the leased premises of Andhra Bank. Therefore, this stand of DW1 goes against the defendants to show that the witness is not conversant regarding the matter on which he has come to Court to depose in the Court.
24. However, the lack of knowledge regarding the plaintiff having let out the suit premises to ICICI Bank Ltd. after its vacation at a monthly rent of Rs. 96,000/ does not go against the witness or the defendant. Firstly these facts are not crystallized in the pleadings. Next, even otherwise these facts being in the special knowledge of the C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 14 of 21 15 plaintiff the onus was on her to prove this fact in accordance with Section 106 of the Evidence Act. Even the documents to show the same is also in power and possession of the plaintiff. Last but not the least, this fact has no bearing as in the present suit, the mesne profit have to be determined till 31.01.09 i.e. the date when the defendants vacated the suit property.
25. It is an admitted fact on record that the lease between the parties had expired on 23.10.2006 by efflux of time. There is no denial of this fact. On the other hand, this is the duly accepted position of the defendant who has taken a stand that the matter was referred to the higher ups and the rent as demanded by the plaintiff was considered to be exorbitant. Thus there is express as well a tacit admission of this fact. The factum of quit notice is also not in dispute. Though this notice is superfluous in view of the determination of tenancy by efflux of time, the notice does has a relevance on a different aspect viz. putting the defendants on notice of demand of mesne profits by the plaintiff.
26. As the defendants continued to retain the possession of the suit property despite determination of lease and the quit notice, their C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 15 of 21 16 possession is unauthorized thus liable to the mesne profits.
27. Now the next point for determination is the quantum of the mesne profits.
28. Whenever the Court is confronted with a question of determination of mesne profit, the scope of inquiry is to look for similarly situated properties and what rent they are fetching. Thus the Court has to see what rent the properties situated in the vicinity of the suit property are liable to fetch; whether those properties are comparable or similarly situated visavis the suit property; if there are any differentiating factors what effect they have on the rental value of the suit property. Besides the above, the Court has also to consider various other ancillary or incidental factors which may be relevant to a particular case.
29. In view of the evidence on record the moot question is whether the property which has been leased to the Andhra Bank, vide Ex. PW 2/1, can serve as a good guide and benchmark for determining the mesne profit. This document Ex. PW 2/1 is dated 20.06.2005. The leased property is measuring 1720 sq. ft. fetching a monthly rent of Rs. 72,265/ w.e.f. 25.05.2005 for three years i.e. up to 24.05.2008 C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 16 of 21 17 and thereafter a renewal of lease for another three years with increase of rent @ 15% over an above the last paid rent has been envisaged.
30. In the instant case, the suit property as well as the lease premises of the Andhra Bank are situated on the main road which is one and the same. The distance between them is only about 50 ft. The premises taken on rent by the Andhra Bank consists of ground floor and first floor whereas the suit property is only ground floor property. The premises of the Andhra Bank is about 1720 sq. ft. and the ground floor area is likely to be about 860 sq. ft. if it is presumed that the area on both the floors is the same. In this context, the ground floor area of the suit property is 660 sq. ft. Therefore, it compares well with the leased property of Andhra Bank. The Court with its experience of similar cases can take judicial notice that ground floor has more potency for commercial exploitation and therefore, likely to fetch more rent than the first floor or above floors. In this context, the total rental of Rs. 72,265/ as paid by Andhra Bank for premises consisting of ground floor and second floor can be considered in this perspective i.e. the ground floor portion might be fetching more share of the total rent than the first floor premises. However, there is no C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 17 of 21 18 material on record by which any intelligible differentia can be made. Therefore, the basic rate of rent on per square feet basis can be arrived at by dividing the total rent of Rs. 72,265/ by total leased area of 1720 sq. ft, as a rule of thumb.
31. The rate of rent as computed on per square ft. basis in view of Ex. PW2/1 comes to Rs. 42/ per square feet during the period 25.05.2005 to 24.05.2008. After 24.05.2008, it comes to Rs. 48/ per square feet for another three years.
32. If the defendants have chosen to retain the possession of the suit property despite being put to notice as to the claim of damages/mesne profits it has done so at its own risk and peril. No law has been cited before me that the defendants have to be afforded a different treatment than others for the reason that the defendant carries on the business of essential public services. There is no pleadings that the defendant is entitled to any adjustments on account of having made some improvements in the property.
33. The plaintiff has claimed damages/mesne profits @ Rs. 60,000/ per month w.e.f. 23.10.2006 to 22.04.2007 i.e. from the date of determination of tenancy by efflux of time till the date of filing of the C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 18 of 21 19 suit. The area of the suit property is 660 sq. ft. In view of the Ex. PW 2/1, the plaintiff is entitled to damages for use and occupation @ Rs. 42/ per square feet for 660 square feet of the suit property which comes to Rs. 27,720/ per month from 23.10.06 to 22.04.07. On the same parity of reasoning from 23.4.07 to 22.05.08 the plaintiff is entitled to damages for use and occupation @ Rs. 42/ per square feet for 660 square feet of the lease premises which comes to Rs. 27,720/ per month.
34. From 23.05.08 to 31.01.09, on parity with the increase as stipulated in Ex. PW2/1 damages for use and occupation @ Rs. 48/ per square feet for 660 square feet of the lease premises come to Rs. 31,680/ per month.
35. This issue is accordingly answered in favour of the plaintiff in the above terms.
36. Therefore, the suit of the plaintiff is decreed as under:
i) The plaintiff is awarded damages against defendant for use and occupation of the suit property comprised of property no. 5326/31, Basti Harphool Singh, Sadar Thana Road C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 19 of 21 20 (Post Office Building), Delhi, from 23.10.2006 to 22.05.2008 @ Rs. 42/ per square feet for 660 square feet i.e. @ Rs.
27,720/ per month. From 23.05.2008 to 31.01.2009 the plaintiff is awarded damages against defendant for use and occupation @ Rs. 48/ per square feet for 660 square feet i.e. @ Rs. 31,680/ per month.
ii) The plaintiff shall adjust any amount paid towards rent/damages by the defendant during the above said period from the total damages/use and occupation charges awarded.
iii) The plaintiff is also awarded interest @10% per annum on the above damages for use and occupation w.e.f. 23.10.2006 and the interest shall be calculated for each payment C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 20 of 21 21 from the date of its becoming due till the realization of the amount.
iv) Cost of the suit is also awarded in favour of the plaintiff.
37. The plaintiff shall be liable to pay the Court Fee on the consolidated value of the damages awarded from 23.10.2006 till 31.01.2009 as well as the interest which has accrued till the date of decree. The plaintiff is directed to pay the deficient Court fee within 15 days from today and thereafter the decree shall be drawn.
38. File, after necessary compliance, be consigned to the Records Room.
Announced in the Open Court today on this 8th day of May 2012 (MAN MOHAN SHARMA) ADJ (Central)12, Delhi C.S. 93/2009 Kanta Devi Vs. The Chief Post Master & Ors. Page 21 of 21