ORDER
D.K. Jain, J.
1. This application, under section 151 of the Code of Civil Procedure, for fixing an interim amount as damages/mesne profits payable to the plaintiff, with direction to the defendant to pay the same every month to him, has been filed by the plaintiff in his suit for recovery of possession, mesne profits/compensation and injunction etc. in the following circumstances:
2. The plaintiff is the owner of a commercial property, bearing no.B-59/1, Naraina Industrial Area, Phase-II, New Delhi. According to him the defendant had taken a portion of the said property, shown “Green” in the plan attached with the plaint, on 26 May 1980 and later on 1 May 1981, each time for a period of 11 months, at a rental of Rs.4,500/- per month. His case is that the defendant, in or about the year 1983, encroached upon the other portion of the property, in area app. 3193 square feet, detailed in para 8 of the plaint and shown “red” in the plan, where the defendant unauthorisedly made some constructions also in the form of Mezzanine in the
said portion; the plaintiff by notice terminated the defendant’s tenancy regarding the demised premises and the defendant having not vacated it, he filed a suit (Suit No.384/89) for recovery of possession with the District Judge at Delhi, reserving his right to take appropriate action for possession, compensation etc. separately qua the portion of the property encroached upon; the said suit was contested by the defendant, inter alia on the plea that the entire property, comprising of both the green and red portions had infact been rented out to them, no portion was encroached upon and the notice to vacate the demised portion was illegal and the suit as
framed was not maintainable for a part of the tenancy. Plaintiff’s case, further, is that after trial, the learned Additional District Judge, rejecting the defendant’s pleas in defense decided the contention regarding non-maintainability of the suit in his favour and decreed the suit on 23 April 1993 and the plaintiff thereafter served a notice on 19 May 1993, calling upon the defendant to pay damages/mesne profits and also to vacate the said encroached portion and on his failure to comply, plaintiff filed the present suit (Suit No.519/94) for possession of the portion encroached upon and recovery of Rs.16,72,992/- as damages/mesne profits with mandatory injunction etc., along with the present application, inter alia, stating that he is being deprived of not only possession of the property but also compensation/mesne profits regarding the same and he is thus suffering losses; he is 80 year old and has no substantial means of income; that the
judgment in the earlier suit No.384/89, wherein his contention regarding letting out only a part of the building to the defendant and latter’s encroaching upon the other portion has been upheld and defendant’s plea in defense has been rejected but the matter now is in appeal (RFA No.507/93), which is pending; the litigation is being prolonged and is likely to take
long and, therefore, to relieve hardship on the plaintiff, the court may fix an interim amount as damages/mesne profits and direct the defendant to pay the same to him.
3. Both the suit and the application are opposed by the defendant mainly on the plea that these are not maintainable as the matters being the basis of this suit and the application were directly and substantially in issue in the former suit no.384/89; the instant suit has been filed on the basis of judgment in the former suit, which is under appeal, wherein, by order
dated 16 July 1993, the operation of the said judgment/order dated 23 April 1993 has been stayed, no case for interim payment of mesne profits etc. exists and the application being meritless is liable to be dismissed.
4. I have heard Mr. Jagmohan Sabharwal, learned counsel for the plaintiff and Mr.Prag Tripathi for the defendant.
5. It is too obvious that the relief claimed in this suit, and as a corollary in the application filed with it, is based on the plaintiff’s self same basic plea taken and countered in the earlier suit no.384/89, namely the plaintiff claiming and the defendant countering that the demised premises constituted only the “green” portion shown in the plan filed in that suit and the defendant had encroached upon the other portion shown in “red”. The sub-stratum of the said suit only was the green portion demised under the two licence deeds and the right to file independent suit qua the “red” portion was reserved by the plaintiff in that suit.
6. The defendant on the contrary had claimed that both the green and red portions put together had been demised to him by the plaintiff, there was no question of any encroachment, none was made and the plaintiff’s notice terminating the tenancy being confined only to part of the demised property (green portion) was bad in law; the tenancy having not been validly terminated the said suit was not maintainable. On the basic stands of the parties, affecting the maintainability of that suit the following issue no.IV was framed :-
“Whether the suit is not maintainable in the present form?”
7. The learned Additional District Judge, after trial, agreed with the plaintiff and rejecting the defendant’s stand held in his judgment, dated 23 April 1993, decreeing the suit, that only the “green” portion had been demised to the defendant; the remaining “red” portion did not form part of the tenancy and thus, the notice terminating the tenancy was lawful and the
suit was maintainable. Now the plaintiff has filed the instant suit for possession of the “red” portion allegedly encroached upon by the defendant and for mesne profits/damages for illegal occupation of the same. The basis of this suit is the self same stand on which plaintiff’s earlier suit was based. The basic plea in resistance of the two suits is again the same. The judgment in the former suit, disposed of on 23 April 1993, is under appeal and cannot be taken as of now as “Final”. However, that being the former suit, the final decision in that suit, heard and decided, might ultimately operate res judicata, directly affecting the very foundation of the present
suit. The present suit is yet at a preliminary stage and after completion of pleadings, is fixed for filing documents and their admission/denial. It is too early to form even a prima facie view on the contention raised herein for granting the relief sought in the application. On the basis of the decision in the former suit – now under appeal, it cannot presently be assumed that the stand of the plaintiff is infallible. Equities of the case, thus, do not call for making an interim order sought for. It is pertinent to note that the plaintiff, as per averments in para 7 of the plaint in the present suit, claims to have learnt about the alleged encroachment by the defendant in the year 1983 but chose to keep mum till after the decision in the former suit, when, for the first time, by notice dated 19 May 1993, he claims to have called upon the defendant to deliver back the possession of the “encroached portion” and damages for its illegal occupation all the while. For reasons best known to the plaintiff he did not ask for any additional rent/compensation for the extra portion, which he alleges to have been occupied by the defendant, for ten long years, particularly when he himself is in occupation of a portion of the subject
property.
8. It is no doubt true that hearing in RFA 507/93 is likely to take time. If, as it appears, it works hardship on the 80 year old plaintiff, stated as having no substantial income, perhaps he could move for expediting hearing of the appeal.
9. For all these reasons, as the matter stands, I see no ground to grant the relief sought for in the application, which is accordingly dismissed.