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2007 DIGILAW 456 (DEL)

SH. RAM KUMAR AND SONS v. SHARDA RANI

2007-03-01

H.R.MALHOTRA, SWATANTER KUMAR

body2007
SWATANTER KUMAR, J. ( 1 ) SHARDA Rani filed a suit for possession of mesne profits in relation to the premises i. e. Shop no. X-439, Gali No. 8, Ram Nagar, Gandhi Nagar, Delhi. According to her she was the owner/landlord of the said premises which were leased to M/s. Ram Kumar and Sons on a monthly rent of Rs. 200/- exclusive of all other charges. The said defendant had sublet the premises in favour of defendant no. 2, M/s. Crozoline CMS International in June'02 at a monthly rent of rs. 5000/- per month. The defendant no. 2 was unauthorised occupant of the shop and he had no legal right to keep the possession. The plaintiff-respondent no. 1 in the appeal averred that she had approached the defendant to hand over vacant and peaceful possession of the premises in dispute and that the tenancy of defendant no. 1 was terminated vide notice dated 21. 9. 2002. It was further stated that the defendants, being in unauthorised possession of the premises were liable to pay damages @ Rs. 10,000/- per month till the date of the institution of the suit and she also prayed for a decree for mesne profit with effect from 11. 11. 2002 at the same rate. The suit was contested on merits by defendant no. 1 as the defendant no. 2 in the suit refused to accept the service of notice and was proceeded ex-parte vide orders of the court dated 21. 1. 2003. The said defendant no. 1/appellant in the present suit had raised various objections as well as contested the suit on merits. According to the said appellant, the Court had no jurisdiction to entertain and decide the suit as there was a relationship of landlord and tenant between the parties and the appellant was entitled to the protections under the provisions of the Delhi Rent control Act. It was denied that the appellant had sublet, assigned or parted with the possession of the shop and it was also denied that they were receiving a sum of Rs. 5000/- per month. ( 2 ) THE learned Trial Court framed three issues and vide judgment and decree dated 9. 9. 2004, the Court passed a decree for possession and mesne profits @ Rs. 7500/- per month with effect from 11. 11. 2002 till vacation of the suit premises along with interest @ 12% per annum. 5000/- per month. ( 2 ) THE learned Trial Court framed three issues and vide judgment and decree dated 9. 9. 2004, the Court passed a decree for possession and mesne profits @ Rs. 7500/- per month with effect from 11. 11. 2002 till vacation of the suit premises along with interest @ 12% per annum. Against this judgment and decree of the learned Trial Court, the appellant has preferred the present appeal. The appellant had filed an application being CM No. 580/2005 praying for stay of the judgment and decree passed by the learned Trial Court. ( 3 ) DURING the pendency of the appeal the respondent also filed an application being CM No. 11309/2005 under Order 39 Rule 10 read with Section 151 of the Code of Civil Procedure for issuance of directions to the appellant to pay the damages/mesne profits for use and occupation of the premises @ rs. 10,000/- per month in relation to the demised premises. ( 4 ) THE Court vide its order dated 14. 1. 2005, while issuing notice on CM no. 580/2005 to the other side, had stayed the operation of the impugned judgment and decree. Vide order dated 6. 5. 2005, the Court continued the interim order. We have heard the learned counsel for the parties on both these applications. ( 5 ) THE appellant has suffered a decree for possession and mesne profits. The learned Trial Court had framed a specific issue on the liability and quantum of mesne profits/damages for the use and occupation of the premises. The learned Court after appreciating the evidence produced by the parties on record on this issue came to the conclusion that the appellant was liable to pay mesne profits at the rate of Rs. 7500/- per month along with interest @ 12%. The Court also placed emphasis on Ex. PW1/5, the notice served upon the appellant by the respondent, making allegations of subletting and receiving rent/damages @rs. 5000/- per month. This notice was not replied to and thus, the Court drew adverse inference against the appellant. Reliance was also placed upon the statement of Mr. Subodh Rajput, DW1, who in his cross-examination stated that he was doing the business of readymade garments from the suit premises and telephone connection had been installed in the name of Mr. Chander Mohan Sharma who is the proprietor of M/s. Crozo Line, CMS International. Reliance was also placed upon the statement of Mr. Subodh Rajput, DW1, who in his cross-examination stated that he was doing the business of readymade garments from the suit premises and telephone connection had been installed in the name of Mr. Chander Mohan Sharma who is the proprietor of M/s. Crozo Line, CMS International. Certainly, the evidence led by the parties as well as the reasoning given by the learned trial court is subject matter of the present appeal and would have to be gone into and decided by the Court while disposing of the appeal on merits. The claim of the applicant/respondent for claiming Rs. 10,000/- per month on account of damages for the use and occupation of the premises is ex facie unreasonable and without any basis. The appellant has raised an arguable issue. It is not the stage for the Court to determine the merits of these contentions but the court has to strike a balance, as the appellant has been enjoying possession of the premises under the protection of the court orders for a considerable time and had in fact not paid any rent/damages for the use and occupation of the said premises. The unconditional interim order, thus, cannot be permitted to continue unconditionally. Such continuation would be opposed to any principle of equity. As of today, the appellant is an unauthorised occupant and he cannot continue to enjoy the property without making any payment. Even if for the sake or arguments it is taken to be correct that the appellant is not getting Rs. 5000/-per month from the alleged sub-tenant, even then he has to pay, if not the present market rent/damages for the use and occupation of the premises, at least a reasonable amount which would balance the rights and obligations of the parties in the present appeal. ( 6 ) IN our considered view, the interest of justice would demand that the appellant should pay at least a sum of Rs. 3500/- per month on account of damages for the use and occupation of the premises. The arrears with effect from 14. 1. 2005 at this rate should be paid within a period of two months from today and the appellant should also continue to pay damages at the same rate, month to month, till the final disposal of the appeal. 3500/- per month on account of damages for the use and occupation of the premises. The arrears with effect from 14. 1. 2005 at this rate should be paid within a period of two months from today and the appellant should also continue to pay damages at the same rate, month to month, till the final disposal of the appeal. ( 7 ) HOWEVER, any observations made in this order are without prejudice to the rights and contentions of the parties. Both the CM Nos. 580/2005 and 11309/2005 stands disposed of accordingly, while leaving the parties to bear their own costs.