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2001 DIGILAW 265 (DEL)

SNEH LATA JAIN v. SUMAT PARKASH JAIN

2001-03-02

A.K.SIKRI

body2001
A. K. SIKRI ( 1 ) THIS revision is preferred by the plaintiffs/ petitioners under Section 115 of the code of Civil Procedure against Order dated 12/5/1995 passed by learned additional District Judge, Delhi in Suit No. 847 of 1993. The material facts for the dispose of deciding this Revision Petition are that petitioners are claiming ownership the premises bearing No. X/2817, land measuring 144 sq. yds. out of Khasra 211 and 212, situated in Gali No. 5, Raghubarpura No. 2, Gandhi Nagar, Delhi - 00031. A portion in the said property is in possession of the defendants/ respondents herein. Plaintiffs have filed a Suit for declaration, recovery of possession paid for Rs. 12,000. 00 as damages for use and occupation of the disputed premises by the defendants. The said Suit is pending before the Trial Court. It may be mentioned that defendant no. 1 is the real brother of plaintiff no. 1. Defendants 1 and 2 are husband and wife. Defendants filed separate written statements. Defendants no. 1 claims to be tenant in the disputed portion of the premises at a monthly rent of rs. 500. 00. On the other hand, stand of the defendant no. 2 is that she was one of the co- sharers having 1/5th share in the property in question. It may be mentioned that as per plaintiffs this share was relinquished by her in favour of Shri Subodh Kumar Jain vide Power of Attorney dated 23/3/1991 and on the basis of this Power of attorney, sale deed has been executed in favour of plaintiff no. 5. The defendant no. 2 is challenging the said Power of Attorney and resultantly the sale deed in favour of plaintiff no. 1 on the basis of the said Power of Attorney. ( 2 ) DURING the pendency of this Suit plaintiffs moved an application under Section 151 of the Code of Civil Procedure praying that defendants be directed to pay damages/mesne profits Rs. 3000. 00 per month during the pendency of the Suit which should be calculated from the date of presentation of the plaint. This application was resisted by defendant no. 1 on the ground that he is a tenant at a monthly rent of rs. 500. 00 only and therefore defendants are not required to pay more than Rs. 500. 00. 3000. 00 per month during the pendency of the Suit which should be calculated from the date of presentation of the plaint. This application was resisted by defendant no. 1 on the ground that he is a tenant at a monthly rent of rs. 500. 00 only and therefore defendants are not required to pay more than Rs. 500. 00. By the impugned Order dated 12/5/1995 learned Additional District Judge has directed the defendants to pay damages/use and occupation charges Rs. 750. 00 per month to the plaintiff from the date of filing of the Suit upto date of passing of the said order within a period of three months from the date of Order with further directions that defendants should continue to pay this amount at the same rate by the first week of each English calender month. The Order was made without prejudice to the rights of the parties and subject to the final outcome of the main Suit. The plaintiffs being not satisfied with the quantum awarded by the Trial Court have preferred the instant revision Petition. ( 3 ) LEARNED counsel for the petitioner argued that the Trial Court has himself taken note of contradictory stand taken by defendants 1 and 2 in their respective written statements and therefore the stand of the defendant 2 that he was a tenant at a monthly rent of Rs. 500. 00 should not have been believed by the learned Trial Court. He further argued that there was no basis given by the Trial Court in the impugned Order for fixing the rate of damages Rs. 750. 00 per month. His submission was that the disputed portion of the property in occupation of the defendants consisted of four rooms for which Rs. 750. 00 per month was quite inadequate. On the other hance learned counsel for the respondents argued that by taking a prima facie view the Trial court has made an interim arrangement fixing Rs. 750. 00 as damages/use and occupation charges payable per month and the discretion exercised by the Trial court should not be interfered with by this Court in its revisionary jurisdiction more so when the Order was without prejudice to the rights of the parties and subject to the final outcome of the main Suit. ( 4 ) I have considered the submission of both the counsel and have also gone through the records. ( 4 ) I have considered the submission of both the counsel and have also gone through the records. The learned Trial Court has relied upon letters dated 20/4/1992 and 7/8/1990 written by father-in-law of plaintiff no. 1 to the defendant no. 1. A perusal of these letters show that he is treating defendant no. 1 as tenant and has demanded payment of rent from him. Although learned counsel for the petitioners argued that these letters should not have been relied upon as father-in-law of plaintiff no. 1 is not the owner/co-owner of the property in question and therefore could not have written such letters, keeping in view the relationship between the parties as well as the fact that the writer of these letters is head of the plaintiff s family, for the purpose of taking a prima facie view it was permissible for the Trial court to take into consideration these letters. It is stated at the cost of repetition that at this stage only a prima facie view is taken by the Trial Court and that too subject to final outcome in the main Suit. Trial Court has categorically observed that nothing in this impugned Order would tantamount to an expression of an opinion on the merits of the case. The Trial court was, therefore, justified in proceeding to pass an Order on this basis. ( 5 ) HOWEVER, I agree with the learned counsel for the petitioners that no basis for fixing the amount at Rs. 750. 00 per month is stated in the impugned Order. Even a discretionary order has to have some basis. The defendant No. 1 has claimed that the rental of the premises is Rs. 500. 00 per month and no documentary proof existed in support of this plea. On the other hand, the plaintiffs do not admit that the defendant no. 1 is a tenant. A perusal of letter dated 7/8/1990 written by father-in-law of plaintiff no. 1 shows that he had demanded a rent of Rs. 1000. 00per month w. e. f. 1/01/1990. If the letter was to be relied upon by the defendant no. 1 for the purpose of showing that he was a tenant then he is bound by other contents of the letter as well including the rate of rent mentioned therein. 1 shows that he had demanded a rent of Rs. 1000. 00per month w. e. f. 1/01/1990. If the letter was to be relied upon by the defendant no. 1 for the purpose of showing that he was a tenant then he is bound by other contents of the letter as well including the rate of rent mentioned therein. Therefore, in the facts and circumstances of this case, I am of the opinion that it would be reasonable to direct the defendants/respondents to pay damages/use and occupation charges Rs. 1000. 00 per month from the date of filing of the plaint till the disposal of the Suit. The arrears may be paid within a period of two months from today. Needless to mention, this order shall be subject to the final outcome of the main Suit. The Revision Petition is disposed of accordingly. There shall be no order as to costs.