Delhi High Court (May 3, 2002) 2002 (TLS)127204 2002-AD (Del)-4-733 ANANT RAJ AGENCIES PROPERTIES Vs. State Bank of Patiala USHA MEHRA ( 1 ) APPELLANT has assailed the impugned judgment and decree by virtue of which he has been awarded damages Rs. 67,025/- P. A. for use and occupation of the 1st floor of his premises in occupation of the respondent/bank. Challenge is primarily on the ground that the learned trial court failed to take notice of the rise in the market rate from the date of institution of the suit till the date of decree. According to appellant, the trial court was competent to award damages for use and occupation more than what was claimed by the Appellant granting quantum of damages at the same rate for the period from the filing of the suit till the passing of decree or thereafter till delivery of possession is contrary to the well settled principle of law. ( 2 ). Facts are not in dispute that the respondent/bank was tenant on the first floor of the premises bearing No C 31/32, Connaught Place, New Delhi having a total covered area of1915 sq. ft. The tenanc was to commence from 8th April, 1981 for a period of 5 years at an agreed rent was Rs 21,065/- per month. Respondent had the option to get the tenancy renewed for another period of five years subject to 10% enhancement of rent. Option was duly exercised by the respondent/bank to renew the lease for another period of 5 years which was accepted by the appellant. Accordingly the lease was extended for another period of 5 years at an increased rent of Rs. 23,171. 50 paise per month. The lease period expired by efflux of time. Even otherwise, the tenancy was terminated vide a legal notice. While terminating the tenancy the appellant also claimed mesne profit at prevalent market rate for use and occupation of the premises. ( 3 ). Appellant filed suit in the year 1992 estimating the mesne profit/damages Rs. 35/- per sq. ft. claiming Rs. 67,025/- per month. By the impugned judgment the learned trial court granted the relief of mesne profit Rs. 67,025/- per month in favour of the appellant from the date of institution of the suit till the delivery of the possession along with interest 15% from the date of its becoming due. ( 4 ). 35/- per sq. ft. claiming Rs. 67,025/- per month. By the impugned judgment the learned trial court granted the relief of mesne profit Rs. 67,025/- per month in favour of the appellant from the date of institution of the suit till the delivery of the possession along with interest 15% from the date of its becoming due. ( 4 ). Appellant felt aggrieved, his main grievance as pointed out above revolves. around the fact that the trial court should have taken note that the suit kept pending for 8 years and during this period the rate of rent had increased manifold, therefore, ought to have granted mesne profit at higher rate during the pendency of the suit. In this regard he relied on the testimony of the property dealer, Sh. Raj Kumar Sharma (PW-2), who stated that prevalent market rent for such like premises was Rs. 115 - Rs. 150/- per sq. ft. He brought with him photo-copy of the lease deeds of similarly situated properties of the area to show the prevalent market rent during the relevant period. Mr. Vijay Kishan, counsel for the appellant therefore, contended that trial court ought to have taken judicial notice of the rise in the rate of rent and of the fact that there was enormous multifold increase throughout the country, particularly in the urban areas. Supreme Court in the case of D. C. Oswa/ Vs. V. K. Subbiah and others, AIR 1992 S. C. 184 observed as under; "however, it is well known fact that the amount of rent for various properties in and around Delhi has been rising staggeringly and we cannot see why such judicial notice could not be taken of the fact about such increase of rents in the premises in and around Delhi which is a city of growing importance being the capital of the country which is a matter of public history. " ( 5 ). In that case, according to Mr. Vijay Kishan, court took judicial notice of the increase of prices of land rapidly in the urban, areas in connection with the land acquisition matters. The Apex Court also took judicial notice of the fact of universal escalation of rent and even raised rent of disputed premises by taking such judicial recourse in D. C. Oswal s case (Supra ). ( 6 ). Mr. The Apex Court also took judicial notice of the fact of universal escalation of rent and even raised rent of disputed premises by taking such judicial recourse in D. C. Oswal s case (Supra ). ( 6 ). Mr. Vijay Kishan further contended that since the property is situated in Connaught Place area, thus similarly situated properties like in Kasturba Gandhi Marg and Barakhamba Road, the courts have been granting mesne profits Rs. 70/- per Sq. ft. and Rs. 60/- per Sq. ft. respectively. He, therefore, contended that instead of keeping the rent for all this period Rs. 30/- per Sq. ft. the court ought to have enhanced the rent on year to year basis. ( 7 ). Refuting these arguments, Mr. Vishnu Mehra appearing for the bank contended that the property in question cannot be compared with the properties in the cases of R. I. T. E. S. Ltd. Vs. I. M. Purl and others, in RFA No. 154/98 decided on 4th March, 1998; Roger Enterprises private Limited Vs. Renu Vaish, 1998 (44) DRJ, 322; Vinod Khanna and Others Vs. Bakshi sachdev (Deceased), 59 (1995) Delhi Law Times. 89; Rattan Arya etc. etc. Vs. State of tamil Nadu and another. AIR 1986 SC 1444 ; Nina International Private Ltd. Vs. Saraswati industrial Syndicate Ltd. , 1999 II AD (DELHI) 201; and D. C. Oswa/ Vs. V. K. Subbiah and others, AIR 1992 S. C. 184. In the case of Roger Enterprises Private Limited (Supra), the division bench was dealing with the property situated at Kasturba Gandhi Marg. In the case of R. I. T. E. S. , the court was dealing with a property situated at Barakhamba Road, New Delhi. Mr. Vishnu Mehra, therefore, contended that in those cases what was the condition of the properties is not known, therefore, those properties cannot be compared with the property in question hence rent can also not be compared. Nor from facts on record it can be assumed or presumed that accommodation in the premises in question is comparable with that of r. I. T. E. S. Ltd. (Supra) or Roger Enterprises (Supra ). The property in question is quite old and in a dilapidated condition which fact stood proved by the testimony of Raj Kumar Sharma (PW-2 ). He stated that the building is very old and in a dilapidated condition. The property in question is quite old and in a dilapidated condition which fact stood proved by the testimony of Raj Kumar Sharma (PW-2 ). He stated that the building is very old and in a dilapidated condition. This fact remained uncontroverted nor subjected to any cross-examination, therefore; in the absence of proving that the property in question and the ones in R. l. T. E. S. s case (Supra) as well as of Roger Enterprises Private Limited (Supra) cannot be compared nor similar Therefore, decision in those cases cannot be put in service nor the appellant can take any aid of the same. ( 8 ). Raj Kumar Sharma (PW-2) admittedly said that the building in question is very old and in a dilapidated condition which fact was never rebutted, therefore, in the absence of the same neither the location nor its conditions or for that matter its accommodation can be compared with the accommodation in the cases cited by the appellant. Therefore, unless the properties are comparable, it is difficult to appreciate that for use and occupation of the property in question same rent should be fixed which were assessed in the cases of r. I. T. E. S. and Roger Enterprise (p) Ltd. etc. ( 9 ). There is in fact no quarrel with the proposition that this court in similar other cases for similar properties and for similar period have been fixing the appropriate rate of mesne profits and even increased the mesne profit than what is being demanded. For that the appllent had to lay down the foundation which to our mind, the appellant has miserably failed to discharge. In the case of R. I. T. E. S. (Supra) the court while enhancing the mesne profit observed that the mesne profit claimed by the appellant in that case was Rs. 100/- per square feet from the date of the institution till delivery of possession. In the notice, the mesne profit was claimed Rs. 50/- per square feet, and further by the testimony proved the prevalent lent rate of at the relevant time in the area was Rs. 100/- per Sq. ft. Defendant had not led any evidence In that case, therefore, the court came to the conclusion that the plaintiff in that case had an advantage in as much as there was no rebuttal to the evidence led by the plaintiff. 100/- per Sq. ft. Defendant had not led any evidence In that case, therefore, the court came to the conclusion that the plaintiff in that case had an advantage in as much as there was no rebuttal to the evidence led by the plaintiff. Hence, awarded mesne profit (Pre-Suit) Rs. 50/- per Sq. ft. for the period from 1st July, 1994 to 31sf January, 1995 as claimed, but for the period during the pendency of the suit, the court assessed the mesne profit Rs. 60/- per Sq. ft. per month till the delivery of possession. ( 10 ). Appellant herein after filing the suit sought amendment of his plaint which was allowed. In the amended plaint mesne profit were claimed at Rs. 67,025/- per month. It worked out to be Rs. 35/- per Sq. ft. square feet which according to the appellant was the prevalent market rent at the time when the suit was filed in April. , 1991. By amendment rates were enhanced from Rs. 25/- to Rs. 35/- per Sq. ft. p. m. Hence, the testimony of Rakesh Kumar Sharma (PW- 2) that the prevalent market rate in the year 1991-92 was between Rs. 115/- to Rs. 130/- per month is contrary and in variance to his pleadings hence cannot be relied upon. In the legal notice dated 8th August, 1990, no mention of the prevalent market rate was made. In the pleadings prevalent rate was mentioned as Rs. 35/- per Sq. ft. Therefore, till the institution of the suit, the trial court rightly awarded the mesne profit Rs. 35/- per Sq. ft. However, since the suit kept pending from 15th April, 1991 till 8th January, 1999, we feel that the trial court ought to have taken into consideration the manifold increase of rents in the area in question. Taking this into consideration and also taking judicial notice of the increase of rent during the relevant time we assess that rate of use and occupation charges for the period from the filing of amended plaint till delivery of possession of the first floor of the premises in question, the bank shall pay at the rate of Rs. 50/- per Sq. ft. p. m. This we treat to be not only reasonable but also. appropriate rate to apply for the purposes of determining the mesne profit in this case. 50/- per Sq. ft. p. m. This we treat to be not only reasonable but also. appropriate rate to apply for the purposes of determining the mesne profit in this case. Decree of the trial court is accordingly modified to the extent that for mesne profit (pre suity the appellant will be entitled as decreed by the trial court but from the date of institution of the suit till delivery of possession, the respondent/bank shall pay Rs. 50/- per Sq. ft. per month. The appeal is dismissed subject to aforesaid modification in the decree of the trial court. Parties are left to bear their own cost in the appeal. --- *** --- .