* IN THE HIGH COURT OF DELHI
Judgment reserved on : October 15, 2008
% Judgment delivered on : November 04, 2008
+ RFA 358/2004
SMT.RAM CHAMELI KOHLI (SINCE DECEASED) THRU' LRs
..... Appellants
Through: Mr.Subhash Chand, Adv.
VERSUS
M/S. NATIONAL BOOK TRUST OF INDIA ...Respondent
Through: Mr.B.K.Satija, Adv.
CORAM:
Hon'ble Mr.Justice Pradeep Nandrajog
Hon'ble Mr.Justice J.R. Midha
1. Whether reporters of local papers may be allowed
to see the judgment?
2. To be referred to the Reporter or not?
3. Whether judgment should be reported in Digest?
: PRADEEP NANDRAJOG, J.
1. Smt.Ram Chameli Kohli, the predecessor-in-interest
of the appellants has been awarded mesne profits
@Rs.35,000/- per month with effect from 17.5.2000 till the
date respondent vacated the tenanted premises bearing
Municipal No.A-4, Green Park (Main), New Delhi.
2. The tenancy commenced in the year 1978. The
rent initially agreed was Rs.5,000/- per month subsequently
enhanced to Rs.5,500/- per month.
3. On 27.1.2000, vide Ex.DW-3/4, the tenant i.e. the
RFA 358/2004 Page 1 of 11
respondent offered to increase the rent to Rs.17,030/- per
month with effect from 17.2.2000 which offer was not
accepted by Smt.Ram Chameli Kohli who demanded rent to be
increased to Rs.1,75,000/- per month. The tenant did not
accept the same resulting in the tenancy being determined
vide notice dated 30.3.2000 with effect from 16.5.2000. Suit
for ejectment and mesne profits was filed thereafter.
4. The possession of the tenanted property was
handed over during the pendency of the suit and hence the
only issue decided vide impugned judgment and decree dated
26.3.2004 is the determination of mesne profits for the reason
it stood established that there existed a landlord-tenant
relationship, that the property was not protected by the Rent
Control Legislation and that the tenancy stood determined.
5. Smt.Ram Chameli Kohli sought computation of
mesne profits with reference to the lease agreements
pertaining to property bearing Municipal No.S-18 Green Park
(Main) which was let out vide lease deed Ex.PW-2/1 and
property bearing Municipal No.A-9A, Green Park (Main) let out
vide Ex.PW-5/B and Ex.PW-5/C.
6. National Book Trust of India, respondent/tenant,
urged that the said lease deeds could not be relied upon for
the reason rents of similar and comparable properties alone
can be considered while determining what could be the fair
RFA 358/2004 Page 2 of 11
market rent fetched for the property in dispute. It was urged
that the tenanted premises were built in the year 1966 and
were under the tenancy of the tenant since 1978 and no
repairs whatsoever were carried out in the property resulting
in the same being rendered near dilapidated; plaster having
peeled off from the walls and cracks having developed in the
RCC structures. As against that, property No.S-18, Green Park
(Main) and A-9A Green Park (Main) were recently constructed
properties with granite flooring, fancy fittings, central air-
conditioning, lifts etc.
7. Learned Trial Judge has noted that the 2 buildings
in respect whereof comparison was sought to be made were
indeed recent constructions having granite flooring and having
modern amenities. The building bearing No.A-9A Green Park
(Main) was having central air-conditioning, power back-up and
a lift. Learned Trial Judge also noted that the front fascia of
the said building was of glass i.e. an ultra modern technology
was used in constructing the building. With respect to the
photographs of the suit property Ex.PW-1/1 to Ex.PW-1/4
negatives whereof were cumulatively proved as Ex.PW-1/5, the
learned Trial Judge noted that the suit property required
massive reconstruction and repairs, having developed cracks,
seepage, peeling off of the plaster etc.
8. The learned Trial Judge has concluded the
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discussion after noting the afore-noted evidence in paras 13,
14 and 15 of the impugned decision which reads as under:-
“13. In order to determine the mesne profits
of the premises, the Court has to keep into mind
the several factors:-
i) The nature of use and occupation to which the
building can be put;
ii) The amenities provided by the landlord in the
building;
iii) Location of the building, age of the building,
condition of the building;
iv) The rent of similar of the building in the same
area in which similar facilities were provided;
v) The area of premises.
In the present case, it is undisputed that the
premises can be used only for residential purposes
and it can not be put to commercial use as A-9A
and S-18. It is also undisputed that the building in
question was 40 years old and had never been
repaired. The landlady had been living abroad and
the premises had been under tenancy of the
defendant for more than 20 years.
14. The photographs filed on record of the
premises show that one of the column of the
building had developed wide cracks. It is stated by
the counsel for the plaintiff that the column
appearing in photograph was not a load bearing
column and it was a column in the garage block and
not in the main building. It has been testified by
the defendant witness that plaster of the walls even
in the main block was peeled off, due to seepage.
The building was not in a fit condition for residential
purposes. The testimony of the defendant witness
is further fortified by his testimony that after the
premises was got vacated it was put to extensive
repairs and renovation. Defendant examined
witness who had taken photographs of the building
to show that the building was put under repairs and
renovation. These photographs of the buildingRFA 358/2004 Page 4 of 11
which have not been denied show that immediately
after getting it vacated, plaintiff had put the
building under extensive repairs. It is testified that
the extensive repairs have been done inside the
building also. I consider that plaintiff has
successfully proved that the condition of the
building was not comparable with the other
buildings of which plaintiff placed on record lease
deeds. Plaintiff has not placed on record lease
deed of any residential building, nor of any equally
old building having similar facilities. It is well
recognized that rent changes from building to
building depending upon the facilities provided,
type of construction. The lease deeds of the
building placed on record by the plaintiff can not be
looked into for determining damages. I consider
that the lease deed placed on record by the
defendant of the adjoining premises is more
appropriate for comparison. The adjoining building
A-5, Green Park, New Delhi is of the similar nature
and the plot area is also same. However covered
area of building in A-5 under the tenancy of the
defendant is 11400 sq.ft. The building comprises of
basement and two and half storied. This building is
under tenancy of defendant since 1969. The
defendant witness has also deposed that another
building A-15, Green Park Extn. was under
defendant’s tenancy and the rent was Rs.15,450/-
p.m. He further deposed that first floor of this
property was taken on rent in the year 1979 at the
rate of Rs.4700/- p.m. and thereafter rent was
increased. He could not admit or deny if the plot
area of this building was 500 sq.yds. The defendant
admitted that after vacating A-4 Green Park Extn.,
they have been shifted to F-79, Green Park Extn.,
New Delhi and the covered area of the property of
F-79 and A-4 was equal. He stated that in F-79, the
rent being paid by the defendant was Rs.1,10,000/-.
15. Looking into the facts and circumstances
and looking into the fact that suit premises had not
been repaired for the last 20 years and its
construction was very bad and after getting
vacated it was got repaired by landlady from
outside and inside. I consider the mesne profits
and damages of the premises have to be
determined looking into account all these factors.
The premises was not having any of the attributesRFA 358/2004 Page 5 of 11
of the premises of which plaintiff produced lease
deeds. For determining its mesne profits, it can be
reasonably compared to adjoining premises A-5. I
consider that the appropriate mesne
profits/damages of this property would be
Rs.35,000/- p.m. as rent in the adjoining property
having 3000 sq.ft. more covered area was
Rs.42,998/-. I, therefore, hold that defendant was
liable to pay mesne profits and damages w.e.f.
17.05.2000 @Rs.35,000/- p.m. upto the period
when it was vacated. The decree sheet be
prepared subject to plaintiff’s filing court fee on the
remaining amount of damages. The defendant
shall be given adjustment of the amount already
paid under the orders of the Court.”
9. It may be noted that there is a reference to
property No.F-79 Green Park Extension, New Delhi in para 14
of the impugned decision. Learned Trial Judge has noted that
the said property was taken on rent by the defendant at a
monthly rent of Rs.1,10,000/-. It appears that the said fact has
entered the judgment due to submissions being made in
relation thereto for the reason we do not find any evidence
pertaining to the lease of said property on the record of the
learned Trial Judge.
10. Learned counsel for the appellants urged that the
learned Trial Judge erred in holding that the subject property
was a residential property for the reason admittedly the
defendant i.e. the tenant was using it for an office purpose i.e.
a non-residential use and that the purpose of letting was not
residential, thus, learned counsel urged that while determining
the mesne profits rental of commercial properties was good
RFA 358/2004 Page 6 of 11
evidence required to be considered by the learned Trial Judge.
11. The argument is impressive at the first blush for the
reason, indeed, the suit property was not let out for a
residential purpose, though located in a residential colony with
the prescribed user being residential. However, save and
except obtaining a technical victory on the point, the appellant
hardly succeeds for the reason comparative rental has to be
with reference to comparable buildings. The comparison of
buildings has to be with reference to the amenities provided
by the landlord, the nature of construction of a building, the
age of the building and the condition thereof.
12. Admittedly, property bearing Municipal No.S-18
Green Park (Main) and A-9A Green Park (Main) were recent
ultra modern constructions. The nature of construction of the
properties as disclosed in the evidence makes it clear that
though constructed on residential plots the buildings were
raised intended to be used for commercial purpose. In fact,
building bearing Municipal No.A-9A Green Park (Main) has a
glass fascia seldom to be ever seen in a residential building
and normally to be seen in commercial buildings. The granite
flooring, installation of lifts and power back-up as also central
air-conditioning renders the said building completely non-
comparable with the instant building. Same would be the
position qua the suit property and S-18 Green Park (Main).
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Even that building has an ultra modern finish. The suit
property was constructed way back in the year 1966 and since
1978 was never renovated resulting in the building being
rendered near dilapidated with seepage, plaster peeling off,
walls and RCC structures developing cracks. Thus, the rent
deeds pertaining to property bearing Municipal No.S-18, Green
Park (Main) cannot be treated as good evidence to determine
the fair market value of the suit property.
13. The learned Trial Judge has awarded mesne profits
@Rs.35,000/- per month. The respondent has not filed any
cross-objections nor a cross appeal and hence the said finding
qua the respondent has attained finality.
14. Learned Trial Judge has determined the mesne
profits probably on his personal knowledge of rents increasing
in Delhi.
15. In the decision reported as 1002 (2003) DLT 215
Hari Singh vs. S.S.Jogi, a Division Bench of this Court held that
no presumptive findings pertaining to mesne profits can be
rendered and that the same has to be determined with
reference to evidence led about prevailing market rent in the
area with reference to similar and comparable properties.
Another Division Bench of this Court, in the decision reported
as 122 (2005) DLT 629 National Radio & Electronic Co. Ltd. vs.
Motion Picture Association, observed as under:-
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“34. Judicial notice is taken of only such facts of
which there can be only one view. In the light of
the aforesaid position in law, there can be no
manner of doubt that so far as the increase of rent
is concerned, judicial notice can be taken of a fact
that over a certain period rents generally have
arisen. However, so far as quantification of the rate
at which the increase has actually taken place, a
finding can be arrived at only on the basis of legal
evidence and material establishing the actual rates
at which properties have been let over the period
and comparison of such properties with the
property which is the subject matter of the lis.
Rents may vary based on location of properties,
nature of construction, period of construction,
purpose/user for which the premises are let,
variation between demand for tenanted premises
and availability of premises and even factors
relating to the position of the economy. Therefore,
while a learned trial Judge may be justified in taking
judicial notice of the fact that rents have risen over
a certain period of time in the area in question, it
would be incumbent upon a person laying a claim of
entitlement to mesne profits to prove the same by
cogent and reliable evidence in accordance with
law.
As has been noticed in the judicial
pronouncements noticed hereinabove, the evidence
may include documentary evidence relating
tenancies of properties in the area which can be
summoned from the office of the Sub-Registrar or
by examination of property dealers, oral testimony
of the parties to the litigation and persons in the
trade of real estate, other property owners.
35. The defendant/tenants is entitled to know not
only the landlord’s claim but also the extent to
which the same stands established. The defendant
has a legal right to an opportunity to prove the
contrary.
36. ……………………….
37. …………………………
38. In this background of the factual position and
the law, despite taking judicial notice of the factRFA 358/2004 Page 9 of 11
that rentals have generally increased in Delhi there
was no material at all on which the claim of the
plaintiff could have been granted by the learned
trial Judge.
We find that the learned trial Judge has
observed that it could take judicial notice of the
prevalent market rates of rent of different areas in
Delhi as the “Court has routinely been deciding”
similar suits of mesne profits and damages in
respect of different areas.
39. We have manner of doubt that observation
are totally contrary to the settled position in law.
The extent to which the rents are actually rising in
specific areas has to be proved as a statement of
fact in every case. A party would need to lead
evidence in respect of the period over which the
rental has increased and also the percentage for
which it has increased in order to enable a Court to
arrive at a finding of the actual prevalent market
rate of rent at the given point of time with regard to
a particular property. A finding of fact in a litigation
binds only the parties to the lis.”
16. Considering that in the instant case there is no
evidence regarding the rent of similar and comparable
buildings for the period in question, coupled with the fact that
the suit property was an old construction and due to lack of
proper maintenance had considerably deteriorated, we are of
the opinion that the mesne profits awarded by the learned
Trial Judge are fair and proper requiring no interference in
appeal.
17. The appeal is dismissed.
18. No costs.
19. For unexplainable reasons, in spite of there being
no cross-objections from the side of the respondent, the
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decretal amount was directed to be deposited in this Court.
The same has been invested in a fixed deposit.
20. We direct that the amount lying in deposit be paid
over to the legal heirs of the appellant in equal proportion.
PRADEEP NANDRAJOG, J.
J.R. MIDHA, J.
November 04, 2008
dk
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