JUDGMENT
Swatanter Kumar, J.
1. By this judgment, we will dispose of the above-mentioned three appeals as all of them give rise to common question of fact and law. For the purposes of brevity, we would be referring to the facts of RFA 565/2005.
2. The plaintiff/respondent in this appeal had filed a suit for possession against the defendant in relation to three different flats bearing No. 505, 506 and 507 on the fifth floor of multi-storeyed building known as ‘Rattan Jyoti’ situated at 18, Rajendra Place, New Delhi. All these flats were leased out to the appellant on different rates. Flat No. 507 measuring about 642 sq. feet was initially let out to the appellant by a registered lease deed dated 03.01.1979 for a initial period of 3 years at a monthly rent of Rs. 2,985.30/- besides service charges and other facilities @ 0.22 per square feet. The rent was lastly paid for the month of June, 2002 @ Rs. 7,040/- in addition to other charges on 05.06.2002. The respondent had terminated the tenancy and asked the appellant to vacate the premises vide notice 28.05.2002. The notice was not replied to nor the premises were vacated which resulted in filing and institution of the present suit for recovery of mesne profits/damages @ 70/- per sq. feet with interest @ 18% per annum. The suit was contested by the appellant on various grounds. However, the learned trial court vide its judgment and decree dated 23.5.2005 decreed the suit of the plaintiff for recovery of damages/mesne profits for the use and occupation of the premises @ Rs. 70/- per square feet per month from July, 2002 to March, 2005 with interest @ 8% per annum.
3. It is not in dispute that the possession of the premises had been handed over on 08.04.2005 and as even recorded by the trial court. As such, the relief of possession did not survive for consideration before the trial court. The present appeal has been preferred by the appellant limited to the question of grant of damages in the above said term in all the appeals.
4. During the course of arguments, the learned Counsel appearing for the parties upon instructions from their respective clients agreed that the damages awarded by the learned trial court @ Rs. 70/- per square feet could be modified and altered and the respondent in these appeals be permitted to recover the damages @ 45/- per square feet. The arguments raised by the learned Counsel appearing for the appellant that the finding recorded by the trial court while awarding damages @ Rs. 70/- per square feet is based on no evidence and in fact is based on conjecture, thus, is inconsequential in view of the stand taken by the respondent before the court.
5. CM 11029//2005 in RFA 565/2005, CM 11035/2005 in RFA 567/2005 and CM 11040/2005 in RFA 568/2005 are the applications filed under Order 41 Rule 27 of the CPC seeking leave to lead additional evidence. These applications do not survive in view of the stand taken by the respondent.
6. As afore-noticed, with the consent of the learned Counsel appearing for the parties, the decree of the trial court is modified to the extent that the respondent in these appeals would be entitled to recover damages for the use and occupation of all the three flats @ Rs. 45/- per square feet in place of Rs. 70/- per square feet.
7. The appeals are thus disposed of by modifying the decree of the trial court in the above terms while leaving the parties to bear their own costs. 8. The appeals and CM 11029//2005 in RFA 565/2005, CM 11035/2005 in RFA 567/2005 and CM 11040/2005 in RFA 568/2005 are finally disposed of.