JUDGMENT
H.R. Malhotra, J.
1. This appeal arises out of the judgment rendered by the trial court dated 30.8.1997 whereby the suit of the plaintiffs/appellants for recovery of possession of the first floor of 8, Ishwar Nagar (East), Mathura Road, New Delhi was dismissed as also the claim of the plaintiff for damages was turned down.
2. The claim of the plaintiffs for damages/mesne profits was also turned down by the same judgment.
3. Feeling dissatisfied with the impugned judgment dated 30.8.1997, the appellants have preferred the appeal.
4. It is necessary for us to narrate the facts of the case as set out by the plaintiffs/appellants in their plaint.
5. The appellants let out the entire first floor of Premises bearing No.8, Ishwar Nagar (East), Mathura Road, New Delhi and servant quarter above the garage to the defendant/respondent on a monthly rent of Rs.4000/- and executed the lease deed on 24.4.1984 which was got registered on 3.5.1984. The lease deed was for a period of three years commencing from 3.5.1984 and ending on 2.5.1987.
6. According to the plaintiffs/appellants, the tenancy came to an end on 2.5.1987 by efflux of time but the defendant/respondent did not vacate the premises necessitating the appellants to serve the legal notice against the defendant/respondent.
7. Though, according to the appellants tenancy came to an end by efflux of time, yet by way of abundant precaution, the appellants served legal notice upon the defendant on 13.9.1989 by registered post and respondent was called upon to vacate and deliver the vacant possession of the premises to the appellant, but the defendant did not do so and continued in unauthorised possession despite service of notice on them, nor did they pay mesne profits for use and occupation of the suit premises, thus necessitating the appellants to institute suit against them seeking recovery of possession of the demise premises besides charges for use and occupation at the rate of 4,000/- p.m.
8. Defendant/respondent contested the suit denying the claim of the appellants on merits as well as by taking few preliminary objections to the maintainability of the suit including challenging that the provisions of Delhi Rent Control Act were ultra vires and unconstitutional, the suit premises being not within the ambit of Delhi Rent Control Act, rent being more than 3,500/-. Defendant/respondent also assailed the notice of termination of tenancy on the ground inter alia that the appellants have waived their right to seek possession of the disputed premises after having received rent from them for the period subsequent to the termination of tenancy.
9. On merits, the defendant though admitted that the lease deed was executed between them and it was only for a period of three years but simultaneously stated that the understanding between the parties was that the defendant/respondent would continue to remain in occupation of the premises in dispute till such time he continued to pay rent to the plaintiffs/appellants regularly. According to the defendants the tenancy was perpetual and, therefore, the plaintiffs/appellants have no right to terminate the tenancy of the defendant.
10. The defendant/respondent also denied the service of legal notice on them and further stated that it was not validly terminated. These are the only objections which defendant/respondent raised before the trial court.
11. The appellants have filed replication reiterating what was averred by them in the plaint and repudiating the allegation made in the written statement. The trial judge on the basis of the pleadings framed the following issues.
1. Whether the suit is bad being for eviction of the partial tenancy? OPD.
2. Whether the lease stood determined by efflux of time as pleaded in the plaint in terms of the lease-deed between the parties. If so the effect? OPP.
3. Whether a notice of termination of tenancy was required to be given as pleaded in the written-statement. If so, the effect? OPD.
4. If issue no.3 is proved in the affirmative, whether the tenancy of the defendant was lawfully terminated by a valid notice? OPP.
5. Whether the plaintiff had waived his right to claim possession as pleaded in the written-statement? OPD.
6. Whether the defendant is entitled to any mesne profits. If so, at what rate and for what period?
7. Relief.
12. The appellant examined himself besides examining Sh.Vimal Goel, Advocate who proved the service of legal notice on defendant/respondent. Whereas defendant/respondent examined himself as DW-3 but did not present himself for cross-examination despite numerous opportunities given to him. He however, examined three bank officials to show that even after the termination of tenancy, the plaintiffs/appellants used to receive rent from the defendant/respondent by way of cheques.
13. Since the defendant/respondent did not present himself for cross-examination, therefore, after giving several opportunities, the trial judge passed the following order on 25.9.1996.
The defendant should come present on the next date of hearing along with original registration certificate of the company as ordered on the previous date of hearing. If the defendant does not come present on the date fixed his evidence shall not be read. Now to come up for cross-examination of DW-3 on 6.11.1996″
14. Despite this, the defendant/respondent did not come forward for being cross-examined by the appellants/plaintiffs and finally the case was posted for final arguments on 13.1.1997.
15. We have heard learned counsel appearing for the appellants as also learned counsel for the respondent. We have also carefully perused the trial court record including the evidence led by both the parties, oral and documentary. We have also gone through the impugned judgment.
16. At the threshold we may mention that the plaintiff/appellant filed two separate suits for possession and mesne profits against the respondent because of there being two tenancies one in relation to ground floor of the demise premises and another of the first floor. Trial court had dealt with the two suits separately and had rendered two separate judgments in each case, therefore, necessity arose for the plaintiff/appellant to prefer two appeals against each of the impugned judgments which appeals were registered as RFA No.35/98 and RFA No.36/98. Ttherefore, we have dealt with these two appeals separately. Though, pleas taken in both the appeals were alike in nature as issues framed in both the suits were exactly similar, controversy being the same in both the suits. We may point out that in S.No.546/90, the defendant/respondent was examined as DW-4 and he was also subjected to detailed cross-examination whereas in S.No.545/90, out of which this instant appeal arose, the defendant/respondent presented himself for the purposes of examination-in-chief only but did not come forward for cross-examination despite various opportunities afforded to him and finally the trial court closed his evidence on 6.11.96 as the court on the earlier date i.e. 25.9.1996 specifically ordered that if the defendant/respondent did not turn up for the purposes of cross-examination, his evidence shall not be read. Despite such order defendant did not turn up for his cross-examination and, therefore, for all purposes, his evidence was shut and was not to be read.
17. We may state that the defendant/respondent did not appeal that part of the order and, therefore, it is taken that defendant/respondent did not lead any evidence in support of his defense as taken in the written statement. On the contrary, the plaintiff/appellant proved his case in entirety as pleaded in the plaint by examining himself and by producing other witnesses as detailed above, testimonies of which have been discussed in detail while dealing with the RFA No.35/98. Since detailed reasons have been incorporated in RFA No.35/98, therefore, we deem it fit not to make repetition of such discussion in this appeal as this appeal is akin to the appeal bearing No.35/98.
18. For the detailed reasons as given in RFA No.35/98, this appeal is also to be decided in favor of the appellant. The case of the appellant in the instant appeal rest on better footing as in this case, it was ordered by the trial court that evidence of the defendant shall not be read as the defendant/respondent did not present himself for the purposes of being cross-examined and, therefore, the defense taken by the defendant/respondent in the written statement in this case is of no avail.
19. We adopt the same decision in the instant appeal as well as rendered in RFA No.35/98, issues involved in both the cases being exactly similar and so the controversy, excepting that in RFA No.35/98, the premises in dispute were situated in ground floor whereas in RFA No.36/98 the premises were situated on the first floor and, therefore, for that reason, some distinction has to be made for the purposes of assessing mesne profits.
20. In RFA No.35/98, we had assessed the mesne profits at the rate of Rs.20,000/- p.m in case the appellant did not vacate the premises within one month from today. While taking judicial notice of the fact that the rental value of the first floor is little lower than that of the ground floor, therefore, we hold that the appellant shall be entitled for mesne profits at the rate of Rs.18,000/- p.m. till possession is delivered to him.
21. With these findings, we allow the appeal and set aside the impugned judgment of the trial court.