Delhi High Court
Sh.Subhash Chander Vohra vs Sh. Hans Raj & Ors. on 28 September, 2010
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment : 28th September, 2010
+ RSA No.389/2006 CM No.16362/2006 , 16363/2006 &
7884/2007
SH.SUBHASH CHANDER VOHRA
...........Appellant
Through: Mr.S.C.Singhal, Advocate for
the appellant.
Versus
SH. HANS RAJ & ORS. ..........Respondents
Through: Mr.S.K.Bhalla, Advocate for the
respondent.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.(Oral)
CM No.16362/2006 (for exemption)
Allowed subject to just exceptions.
R.S.A.No.389/2006 & CM No.16363/2006 (for stay) &
7884/2007( u/S 151 CPC for modification)
1. This second appeal has impugned the judgment and decree
dated 7.11.2006 which had endorsed the finding of the Trial Judge
dated 29.1.2003 whereby while deciding issue no.5, plaintiff had
been granted damages/mesne profits @ Rs.5000/- per month.
2. Contention before this Court is that this was an arbitrary
exercise of the power by the two Courts below based on surmises
and conjectures with no evidence before the said Courts. It is
pointed out by learned counsel for the appellant that the judgment
RSA No.389/2006 Page 1 of 4
relied upon in the impugned judgment as noted in para 10 would
not apply to the facts of the instant case. It is pointed out that in
this case the rental of the suit property was Rs.160/- per month
whereas damages had been awarded in the sum of Rs.5000/- per
month; even if the ratio of the judgment in the said case i.e. the
case of S.Kumar Vs. G.R. Kathpalia 1999 (1) RCR 305 is applied in
its correct perspective the finding on this score is a perverse
finding. In that case rental of the suit property was Rs.4000/- and
damages had been awarded at six times the said amount i.e. at the
rate of Rs.25,000/- per month. In this case damages awarded @
Rs.5000/- per month are exorbitant keeping in view the fact that
the rental was Rs.160/- per month; this being a case of no evidence
interference is called for by the second appellant Court. This has
raised a substantial question of law.
3. Admittedly the possession of the suit property has been
handed back to the plaintiff.
4. Issue no.5 is relevant for the disposal of this appeal which
reads as follows:
"Whether the pltff is entitled to a decree for damages, if so, at
what rate and for which period? OPP
5. The finding on this issue reads as follows:
"15. ISSUE NO.5:
The onus to prove this issue was upon the pltff. It was
stated by the pltff in his defence that if the property is rent out it
can fetch a rent of Rs.5000/- per month. Apart from pltff Shri Ram
Nath also deposed in favour of pltff and confirmed that the
property can fetch rent @ Rs.5000/- per month.
16. The witness was cross-examined and he stated that he has
let out the property No.179, West Patel Nagar @ Rs.2600/-. The
witness has denied to have any knowledge of L & D.O. Rates. It is
stated that he let out the property around 7 years ago and the
suggestion that property can fetch rent not more than Rs.500/- to
Rs.1000/- was denied. In the cross-examination of deft the witness
RSA No.389/2006 Page 2 of 4
denied for the want of knowledge that rate of rent in West Patel
Nagar is around Rs.5000/- though he admitted that rate of rent in
West Patel Nagar is very high. There was no contradiction to this
effect in the examination of deft and in the absence of any
effective rebuttal on this examination I hold that pltff in
preponderance of probabilities has established that the rate of
rent is around Rs.5000/- per month. Accordingly the pltff is
entitled to the relief of damages as prayed for."
6. Trial Judge had relied upon the testimony of the plaintiff as
also of the second witness Ram Nath; defendant had also in his
cross-examination admitted that the rate of rent in the vicinity i.e.
in the West Patel Nagar is very high.
7. The first Appellate Court had dealt with this aspect in paras
10,11, and 12.
8. There is no dispute to the proposition that the Court can
take judicial notice of prevailing rent in the market to arrive at a
finding about the mesne profits to be awarded to the concerned
person. It is also a matter of common knowledge of which judicial
notice can be taken that the rental values have increased over the
years and the escalation in property prices has been manifold.
Two witnesses had come into witness box on behalf of the plaintiff
to adduce evidence on this score. Suit property had been let out
in the year 1977; i.e. the property bearing no.U-61-62, West Patel
Nagar on the first floor at an initial rental of Rs.160/- per month.
The impugned judgment had considered and rejected the
arguments of the appellant that as per the price index the rental
could only be enhanced to Rs.593/-; impugned judgment had noted
the unrebutted evidence of the plaintiff balanced with no evidence
on the part of the defendant coupled with the judicial notice of the
rise in the price of properties, also keeping in view the fact that
RSA No.389/2006 Page 3 of 4
this property was located in a prima commercial locality i.e. Patel
Nagar which has a high commercial value; the damages awarded
at Rs.5000/- per month was fair and equitable. These findings are
based on fair and a judicious exercise of discretion of both the
Courts below. No question of law much less any substantial
question of law has arisen. The appeal as also the pending
applications are dismissed.
INDERMEET KAUR, J.
SEPTEMBER 28, 2010
nandan
RSA No.389/2006 Page 4 of 4