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2017 DIGILAW 4165 (DEL)

Vijay Pal Singh v. Bharat Bhushan Gulati

2017-10-27

VALMIKI J.MEHTA

body2017
JUDGMENT : VALMIKI J. MEHTA, J. 1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/defendant/tenant in the suit impugning the concurrent judgments of the courts below; of the Trial Court dated 21.11.2016 and the First Appellate Court dated 4.7.2017; by which the courts below have decreed the suit to the extent of relief of arrears of rent from April, 2014 till June, 2015 and has also granted mesne profits at Rs.15,000/-per month from July, 2015 till the appellant/tenant vacated the suit premises. 2. On the aspect of grant of mesne profits, it is argued by the appellant/defendant, who appeared in person and who is an Advocate, that the mesne profits could only be granted pendente lite and till delivery of possession and not prior to the filing of the suit. The argument urged on behalf of the appellant/defendant is completely misconceived because mesne profits are granted on termination of tenancy and when the legal entitlement of the person to stay in the tenanted premises as a tenant comes to an end. Once tenancy comes to an end then charges which are payable are mesne profits as per Section 2(12) CPC. Therefore, the argument that mesne profits cannot be granted prior to filing of the suis misconceived and is rejected noting that as per limitation mesne profits can be granted up to three years prior to the filing of the suit . I may also note that the case of the respondent/plaintiff/landlord was that the tenancy was terminated with effect from 30th June, 2015 inasmuch as the appellant/defendant/tenant had agreed to vacate on 30.6.2015, and since that was not done, the period after 30th June, 2015 is the period of illegal possession of the suit premises by the appellant/defendant. The first argument of the appellant/defendant is therefore rejected. 3. The second argument which is urged on behalf of the appellant/defendant is that the courts below have erred in granting arrears of rent at the admitted rate of Rs.10,500/-per month from April 2014 till June 2015 inasmuch as the undertaking dated 11.4.2016 filed by the appellant/defendant before the SHO, and which document is relied upon by the respondent/plaintiff himself as document Ex.PW2/3 (colly), the appellant/defendant had stated in this document Ex.PW2/3 (colly) that rent was paid till 30.6.2015 except balance of Rs.21,000/-. It is argued that this undertaking once is used for holding illegal occupation of the appellant/defendant from July, 2015 then the same argument has to be read as a whole and not in part. 4. Though the argument of the appellant/defendant did carry some weight at the first blush, however, it is seen that the court below has relied upon the bank pass-books not only of the respondent/plaintiff but also of the appellant/defendant himself and which pass-books showed that rent which was payable was being paid by the cheque and such payment of rents by cheques was only till March, 2014. The relevant bank transactions were as per the passbooks; Ex.PW1/5 being of the respondent/plaintiff and Ex.DW1/5 being of the appellant/defendant. I may note that the appellant/defendant thereafter in desperation took a plea that the rent has been paid after March, 2014 in cash, however, no such plea was taken in the written statements besides the fact that no proof whatsoever has been filed of payment of cash including any receipt of payment allegedly made in cash, and accordingly, the courts below were justified in believing the plea that arrears of rent were due from April, 2014. 5. Lastly it was argued on behalf of the appellant/defendant that courts below have erred in granting mesne profits of Rs.15,000/-however, once again there is no substance in this argument for two reasons. Firstly, the admitted rate of rent of Rs.10,500/-was fixed in the year 2012 and mesne profits which are calculated are from July, 2015, i.e, about more than three years later. This aspect has also to be taken with the fact that the appellant/defendant himself admitted that when he took alternative premises in the year 2015 at a distance of just half a kilometer and that he has paid Rs.15,000/-for that alternative premises, and therefore this figure of Rs. 15,000/-has been taken by the courts below as the rate of mesne profits for the suit premises, and with respect to which I do not find any illegality whatsoever. 6. No such substantial question of law arises. Dismissed.