IN THE HIGH COURT OF DELHI AT NEW DELHI

RFA, Delhi High Court, mesne profits, tenancy termination, TPA, CPC, co-owner, interest rate, lease dispute

21 Sep, 2026
Listen in 02:13 mins | Read in 106:30 mins

U E Trade Corporation (India) Pvt LTD Vs. Dr Bhupesh Mangla

Delhi High Court RFA 566/2016

Link copied!

Case Background

As per case facts, the appellant, a tenant, leased premises from the respondent, who was a co-owner and Receiver. Disputes arose when another co-owner claimed rights, leading to the appellant ...

Bench

Applied Acts & Sections

Section 96 The Code of Civil Procedure, 1908

Hello! How can I help you? 😊

Disclaimer: We do not store your data.

Document Text Version

RFA 566/2016 Page 1 of 71

$~1

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 26

May, 2026

Pronounced on: 21

September, 2026

+ RFA 566/2016 & CM APPL. 31913/2022

U E TRADE CORPORATION (INDIA) PVT LTD .....Appellant

Through: Mr. Debesh Panda with Ms. Anauntta

Shankar and Mr. Ruchir Joshi,

Advocates.

(M): 9892587304

Email: anauntla@adpchambers.in

versus

DR BHUPESH MANGLA .....Respondent

Through: Ms. Manisha Singh, Advocate.

(M): 9811941496

Email:

manishasingh2501@yahoo.com

CORAM:

HON'BLE MS. JUSTICE MINI PUSHKARNA

JUDGMENT

MINI PUSHKARNA, J.

INTRODUCTION:

1. The present Regular First Appeal (“RFA”) has been filed under

Section 96 read with Order XLI of the Code of Civil Procedure, 1908

(“CPC”), thereby, challenging the judgment and decree dated 30

October,

2015, (“impugned judgment”) passed by the Court of Additional District

Judge-06 (West), Tis Hazari Courts, Delhi, in CS 694/2014 (Old 18/2007),

RFA 566/2016 Page 2 of 71

titled as “Dr. Bhupesh Mangla, through Dr. Vivek Mangla Versus UE Trade

Corporation (India) Ltd.”. By way of the impugned judgment, the Trial

Court allowed the said suit for possession, recovery of arrears of rent and

damages/mesne profits, along with interest and cost of the suit, in respect of

the property bearing no. Flat no. 913, Arunachal Building, Barakhambha

Road, New Delhi – 110001 (“subject premises”).

2. The respondent/plaintiff had initiated the civil suit, seeking the

following reliefs:

(a) Rs. 4,74,400/- as mesne profits from 01

June, 2006, till 24

January,

2007;

(b) Rs. 11,17,039/- as arrears of rent from 01

February, 2004, till 02

November, 2006, @ Rs. 20,125/- per month with interest of 18% p.a.;

November, 2006, till 24

January, 2007;

(d) mesne profits @ Rs. 2,000/- per day and loss of rent @ Rs. 20,125/-

per month till the peaceful and vacant possession of the subject

premises is handed over to the respondent/plaintiff by the

appellant/defendant;

(e) future interest of 18% p.a. on the amount claimed herein above from

the date of filing of suit till the date of realization;

(f) mandatory injunction directing the appellant/defendant to handover

the vacant and peaceful possession of the subject premises to the

respondent/plaintiff and get the electricity load, in respect thereof,

restored to the original load;

RFA 566/2016 Page 3 of 71

(g) and interim injunction in favour of the respondent/plaintiff restraining

the appellant/defendant from alienating, parting with possession or

subletting the subject premises.

3. The Trial Court vide the impugned judgment has awarded the

following reliefs in favour of the respondent/plaintiff:

I. Arrears of rent for the period from June, 2005, till 02

November,

2006 @ Rs. 20,125/- per month along with interest @ 9 % per annum.

II. Damages/mesne profits for the period from 03

November, 2006, till

December, 2006 @ Rs. 51,000/- per month.

III. Damages/mesne profits for the period from 01

January, 2007, till 31

December, 2007 @ Rs. 80,125/- per month.

IV. Damages/mesne profits for the period from 01

January, 2008, till 31

December, 2008 @ Rs. 80,125/- per month.

V. Damages/mesne profits for the period from 01

January, 2009, till 31

December, 2009 @ Rs. 71,875/- per month.

VI. Damages/mesne profits for the period from 01

January, 2010, till

February, 2010 @ Rs. 71,875/- per month.

VII. Interest for the period from date of filing of the suit till future period

till its realization, @ 9% p.a.

VIII. Cost of suit in favour of the respondent/plaintiff, @ Rs. 54,897/-.

4. In view thereof, the present appeal has been filed.

FACTUAL MATRIX:

5. The facts relevant for adjudication of the present appeal, as culled out

from the record, are as follows:

5.1. The appellant/defendant is the subsidiary of U.E. Trade Corporation

Pte Ltd, Singapore.

RFA 566/2016 Page 4 of 71

5.2. The respondent/plaintiff is one of the landlords/joint co-owners of the

subject premises, and was appointed as a Receiver in respect of the subject

premises vide order dated 15

October, 1999, by the Additional District

Judge, Delhi, in CS 46/2006 (Old 146/1995). i.e., the partition suit qua the

subject premises.

5.3. The respondent/plaintiff asserts that the appellant/defendant

approached him vide letter dated 03

September, 2003, to seek the subject

premises on rent. Thereafter, the parties entered into a lease deed dated 02

December, 2003.

5.4. The said lease deed was for a term of 03 years, from 03

November,

2003 to 02

November, 2006 at the monthly rent of Rs. 20,125/-. The

security of Rs. 60,375/- was paid by the appellant/defendant to the

respondent/plaintiff, along with advance rent as equivalent to three months’

rent, which was deductible in first 12 equal instalments during the period of

lease.

5.5. The appellant/defendant paid Rs. 1,15,787/- to the Arunachal

Apartment Owners Association being outstanding dues for the subject

premises, and also Rs. 11,500/- towards the lift replacement charges.

5.6. In 2006, one Sh. Rohit Mangla visited the office of the appellant and

claimed himself as one of the co-owners in the subject premises. Around

that time, the appellant was informed about the pending suit for partition in

respect of the subject premises. The appellant addressed letters dated 28

March, 2006, and 17

April, 2006, to the respondent seeking clarification

and information about the said partition suit.

5.7. On 17

April, 2006, the respondent sent a legal notice to the

appellant, terminating the tenancy of the appellant/defendant on the ground

RFA 566/2016 Page 5 of 71

that the appellant/defendant had deliberately not paid the rent after making

the initial payment of Rs. 60,375/-. Further, the appellant/defendant was also

called to hand over the vacant and peaceful possession of the subject

premises.

5.8. The appellant/defendant replied to the said legal notice vide reply

dated 25

April, 2006, whereby, the appellant put the respondent to notice

that the earlier notice sent by the respondent did not amount to termination

of lease, and that the appellant continued to be the contractual tenant in the

subject premises. It was further stated in the said reply that the

appellant/defendant had made various requests to seek the updated status of

the civil suit, whereby, the respondent was appointed as a Receiver.

Moreover, the appellant stated that it was ready to deposit the rent in Court

or to the respondent, provided he satisfied the appellant qua no objections

from other co-owners in receiving rent.

5.9. On 02

September, 2006, the appellant sent a legal notice to the

respondent thereby stating that it wanted to handover the peaceful and

vacant possession of the subject premises by 02

November, 2006. Further,

vide the said letter, the appellant called upon the respondent to settle all

accounts and receive the possession of the premises. Upon failure to do the

same, the appellant would be constrained to deposit the keys of the subject

premises before the Court.

5.10. The appellant moved two applications in the partition suit being CS

46/2006. One application was moved under Order I Rule 10 of the CPC,

seeking impleadment of the appellant in the said partition suit. The other

application was moved under Section 151 of the CPC, seeking permission to

RFA 566/2016 Page 6 of 71

handover the possession of the subject premises by depositing the keys of

the subject premises in the Court itself, forthwith.

5.11. Thereafter, a legal notice dated 31

October, 2006, was issued by the

respondent to the appellant for payment of Rs. 2,000/- per day as damages

for the unauthorized use and occupation of the subject premises w.e.f. 01

June, 2006, till the subject premises was vacated and handed over to the

respondent.

5.12. In 2007, suit was instituted by the respondent seeking mandatory and

interim injunction, possession, recovery of rent with interest, loss of rent

along with mesne profits from the appellant.

5.13. The appellant sought to deposit the keys of the subject premises on

September, 2008, however, the respondent’s counsel sought time to

inspect the subject premises on the ground that the respondent resided

abroad.

5.14. It was subsequently recorded before the Trial Court vide order dated

July, 2009, that the appellant had shifted its office to a new address, i.e.,

814, Inder Prakash Building, Barakhamba Road, Connaught Place, New

Delhi.

5.15. On 24

November, 2009, the respondent refused to accept the keys

of the subject premises on the ground that the appellant had not cleared all

dues. During the pendency of the civil suit, as recorded vide order dated 03

February, 2010, the appellant had submitted that he is ready to handover the

possession of the subject premises to the respondent, and the keys of the

vacant subject premises were handed over to the respondent.

5.16. Sh. Rohit Mangla had also filed an application under Order I Rule

10 of the CPC, seeking impleadment in the civil suit filed by the respondent,

RFA 566/2016 Page 7 of 71

thereby, placing material facts on record as to co-ownership of the subject

premises and circumstances leading to the filing of the partition suit where

the respondent was appointed Receiver. However, the said application was

dismissed by the Trial Court vide order dated 06

April, 2011.

5.17. The Trial Court vide order dated 16

May, 2011, framed issues in the

suit, as follows:

“xxx xxx xxx

1. Whether the suit has been signed or duly verified by the

authorized person? OPD

2. Whether the suit is bad for non-joinder or mis-joinder of

parties? OPD

3. Whether the relief claimed for possession is not maintainable

in the form of Mandatory Injunction? OPD

4. Whether the plaintiff is entitled for Mandatory Injunction i.e.

for recovery as possession, as prayed for? OPP

5. Whether the plaintiff is entitled for mesne profits w.e.f. 1.6.06

to 24.1.07 to the tune of Rs. 4,74,400/-, as prayed for? OPP

6. Whether the plaintiff is entitled for arrears of rent w.e.f.

1.2.04 to 2.11.06 @ Rs. 20,125/- per month coming to Rs.

11,17,039/-, as prayed, for? OPP

7. Whether the plaintiff is entitled for loss of rent to the tune of

Rs. 55,175/- w.e.f. 3.11.06 to 24.1.07, as prayed for? OPP

8. Whether the plaintiff is entitled for mesne profits, as prayed

for? OPP

9. Whether the plaintiff is entitled for any interest, if so, at what

time and for what period?

xxx xxx xxx”

5.18. Vide order dated 16

November, 2011, the Trial Court, upon an

application filed by the respondent under Order XIV Rule 5 of the CPC read

with Section 151 of the CPC, deleted the issues in respect of the claim of

possession of the subject premises, i.e., issue nos. 3 and 4. It was done in

RFA 566/2016 Page 8 of 71

view of the fact that the appellant had already handed over the possession of

the subject premises to the respondent.

5.19. The Trial Court vide the impugned judgment and decree, granted the

respondent, arrears of rent, damages/mesne profits in respect of the subject

premises.

SUBMISSIONS BY THE APPELLANT /DEFENDANT:

6. Before this Court, the appellant/defendant has raised the following

contentions:

6.1. The lease deed dated 02

December, 2003, between the parties,

reflects that the respondent executed it on behalf of himself and all co-

owners.

6.2. The respondent never disclosed the fact that he was appointed

Receiver of the suit premises.

6.3. The respondent failed to produce any document proving his assertion

of him being appointed Receiver. He conceded that Smt. Usha Mangla, Sh.

Rohit Mangla, Sh. Vivek Mangla and Sh. Gaurav Mangla, were co-owners

in the subject premises.

6.4. The respondent first stated that Sh. Rohit Mangla was not the plaintiff

in earlier suit for partition, but later contradicted his statement that Sh. Rohit

Mangla had filed the suit for partition. He conceded that he was directed by

the Court, as a Receiver, to deposit the amounts received towards rent in a

separate bank account, however, nowhere has it been stated that he actually

did that.

6.5. The respondent conceded that a new Receiver had been appointed by

the Court, however, in the same breath, he voluntarily stated that the said

order was under challenge. He accepted that in the earlier order passed

RFA 566/2016 Page 9 of 71

appointing him as Receiver, it was stated that once another Receiver was

appointed, his Receivership would come to an end.

6.6. The appellant’s witness deposed, inter-alia, that the respondent never

disclosed that Sh. Rohit Mangla was one of the co-owners of the subject

premises, or that the suit for partition of the subject premises was pending.

Further, there was no electricity connection for 03 months, when the

property was initially let out to the appellant, and no rent was payable till the

facility of electricity was made available.

6.7. The appellant had addressed two legal notices dated 28

March, 2006,

and 17

April, 2006, the conjoint reading of which proves that the

respondent was aware that, firstly, the appellant was accosted by Sh. Rohit

Mangla, and secondly, Sh. Rohit Mangla brought to light the order dated

October, 1999, as per which, the receivership of the respondent was

temporary.

6.8. It is evident that as a counterblast to the said notices, the respondent

issued the notice dated 17

April, 2006, whereby, he sought to terminate the

lease. Further, the said notice remains silent on receivership of the

respondent, and therefore, the respondent only terminated the lease in his

capacity as a co-owner.

6.9. The appellant, in the correspondences prior to 2006, had made it clear

that it wanted to continue as a tenant and pay rent, provided it got discharge

of liability from the other co-owners. In September, 2006, the appellant

finally elected to surrender the lease and put the same to notice of the

respondent. The appellant also made it clear that it wanted to hand over the

keys on expiry of the lease, albeit to the correct person.

RFA 566/2016 Page 10 of 71

6.10. Nowhere in the correspondence exchanged before 24

January,

2007, has Sh. Rohit Mangla wanted the tenancy to be terminated, but was

only asking that the rent should be paid to him. In contrast, the respondent

wanted to terminate the lease, vide Notice dated 17

April, 2006. In

response, the appellant replied vide notice dated 25

April, 2006, wherein,

he had taken a clear stand that the respondent’s notice did not terminate the

tenancy and the respondent had no right to terminate the same.

6.11. The other co-owners of the subject premises were put to notice by

way of two applications filed in the suit for partition. However, not a single

co-owner sent a notice under Section 106 of the Transfer of Property Act,

1882 (“TPA”) for termination of the lease. The other co-owners did not

even seek to participate in the suit filed by the respondent, except Sh. Rohit

Mangla, who filed an impleadment application.

6.12. It is a settled principle that when there are inter se disputes between

the co-owners, one co-owner cannot be presumed to have agency on behalf

of the others, and it has to be proved. The respondent conceded about the

existence of the other co-owners, viz. Smt. Usha Mangla, Sh. Rohit Mangla,

Dr. Vivek Mangla and Sh. Gaurav Mangla. He also conceded that he had let

out the subject premises on behalf of all the co-owners though he has no

authority specifically for the subject premises, and had GPAs from Dr.

Vivek Mangla, Sh. Gaurav Mangla and Smt. Usha Mangla to act on their

behalf.

6.13. The actions of Sh. Rohit Mangla directly struck at Clause 12 of the

lease deed dated 02

December, 2003, by way of which the respondent was

bound to ensure to the appellant a peaceful and uninterrupted use and

enjoyment of the subject premises during the term of the lease.

RFA 566/2016 Page 11 of 71

6.14. The respondent in his own plaint had relied upon the appellant’s

legal notice dated 17

April, 2006, his own notice dated 17

April, 2006,

and the response of the appellant dated 25

April, 2006, and 02

September,

2006. Once these facts were undisputed, the respondent had the burden to

establish: (i) the suit was validly instituted, and (ii) the legal notice dated

April, 2006, validly terminated the lease deed.

6.15. The Trial Court, on the first aspect of valid institution of suit had the

benefit of the independent stand of Sh. Rohit Mangla, who had demonstrated

in his impleadment application that in the suit filed against the previous

tenant, he had been arrayed as a party, and that the respondent’s receivership

was only temporary. None of these facts were disputed by the respondent.

Additionally, the appellant had also pleaded non-joinder of necessary

parties.

6.16. Thus, the Trial Court was bound to decide them strictly as per the

evidence on record, and applicable law. The Trial Court could not have

proceeded on the basis that the respondent had agency on behalf of all co-

owners. The said contention goes to the heart of this case because unless

proven that the lease was validly terminated vide notice dated 17

April,

2006, no relief could be granted. Additionally, in view of the inter-se

disputes, the said question could not be decided behind the back of the other

co-owners.

6.17. Once the respondent failed to prove in the suit that he validly

terminated the lease, his act of issuance of the notice dated 17

April, 2006,

constituted breach, and therefore, no relief could be granted to the

respondent. The Trial Court failed to consider that the respondent was in

knowledge at the time of letting out the subject premises that Sh. Rohit

RFA 566/2016 Page 12 of 71

Mangla was the co-owner. Furthermore, the respondent had no authority

from Sh. Rohit Mangla to act on his behalf.

6.18. The Trial Court has failed to consider that without hearing the other

co-owners, the suit itself was not maintainable. The law on non-joinder of

parties is clear, and the same renders a suit bad in law. One co-owner/co-

landlord is not entitled on his own, to terminate the tenancy in face of

disputes with other co-owners. Once disputes exist, agency cannot be

presumed and all the co-owners must be joined in a suit against the tenant

for recovery of possession and mesne profits.

6.19. The Trial Court has overlooked the fact that the respondent

conceded in the cross-examination that Sh. Rohit Mangla did not give any

attorney to Dr. Vivek Mangla, who lodged the plaint. The respondent was

also unable to prove that authorization was given by Smt. Usha Mangla and

Sh. Gaurav Mangla to Dr. Vivek Mangla, as he did not produce the GPAs

given by them.

6.20. The contents of the notice dated 17

April, 2006, cannot be

improved upon post facto and it is matter of record that it does not even

whisper as to receivership of the respondent. Thus, the respondent’s later

submission about validly terminating the lease in capacity of being the

Receiver, which vested him agency on behalf of the other co-owners, cannot

be accepted.

6.21. The Trial Court was bound to decide the question regarding the

receivership status of the respondent, as per law. The receivership was not

admitted by the appellant and even the respondent did not set up a case in

the plaint and there are no pleadings to this effect. Therefore, no question of

RFA 566/2016 Page 13 of 71

looking at any evidence, much less entertaining the multifarious submissions

of the respondent even arise.

6.22. In an order dated 04

September, 2013, passed by this Court in FAO

347/2010, relied upon by the respondent during final arguments, nowhere

has it been mentioned that the respondent shall be taken as the Receiver, as

of 17

April, 2006, with retrospective effect.

6.23. It is undisputed that the said order was passed when the cross-

examination of the respondent was still underway. However, the contents of

the said order were not even sought to be introduced in re-examination as

per Section 138 of the Indian Evidence Act, 1872 (“Evidence Act”). No

reliance can be placed on the said order dated 04

September, 2013, which

the respondent sought to slip in after conclusion of final arguments before

the Trial Court. Even the Trial Court has not relied on it, and no application

for taking the same on record or for leading additional evidence has been

filed.

6.24. The Trial Court completely failed to consider the facts that the

appellant had elected as of 02

September, 2006, to surrender the lease on

its expiry by handing over the keys, which attracted Section 108(q) of the

TPA. The appellant also had filed an application under Section 151 of the

CPC, in the partition suit filed by Sh. Rohit Mangla, in 2006, prior to the

expiry of the lease deed to deposit the keys to all the co-owners.

6.25. The parties have laid foundation of the issue of Section 108(q) of the

TPA in their pleadings, and also led evidence which would be germane to

the adjudication in terms of Section 108(q) of the TPA, therefore, the non-

framing of an issue on that aspect will not stand in the way of Court

deciding the present appeal.

RFA 566/2016 Page 14 of 71

6.26. It is a matter of record that numerous attempts were made by the

appellant to hand over the keys as it is borne out of the order dated 10

September, 2008, and later orders of the Trial Court, that whenever it sought

to handover the keys to the respondent in Court, the same was avoided. It

was recorded in the order dated 24

November, 2009 of the Trial Court, that

the respondent refused to accept the keys on the ground that the appellant

had not cleared pending dues. Finally, keys were accepted by the respondent

in Court on 03

February, 2010, and it was done despite no change in

circumstances.

6.27. Thus, the Trial Court erred in awarding damages for the period

beyond 02

November, 2006, without so much as even considering the

settled principles of law on Section 108(q) of the TPA. It is a settled

principle that the findings in the orders can be relied on by the Court as

being judicial admissions.

6.28. In the cross examination, the DW-1, stood firm and stated that the

possession of the subject premises was handed over to the respondent on

November, 2006, as an application was moved in the suit for partition

qua the subject premises. However, the respondent and Sh. Rohit Mangla,

kept on delaying the said proceeding, even though the Court was informed

that the appellant had removed all articles from the subject premises and it is

lying vacant, and had not been used after 02

November, 2006.

6.29. The real question to be considered is the intention of the parties and

whether the lessee either expressed or manifested to vacate the premises.

The lessee has no further duty such as approaching a Court or taking further

steps other than intimating the landlord about its intention to hand over

possession.

RFA 566/2016 Page 15 of 71

6.30. The respondent urged that the possession could not have been

accepted by him till certain contractual pre-conditions were met. However,

the very fact that the possession was accepted on 03

February, 2010,

without any change in circumstances, provides a complete answer. Such

case was never set up in the plaint, nor was any such oral submission ever

urged.

6.31. The Trial Court failed to consider Section 111 of the TPA which lists

an exhaustive set of circumstances wherein a lease of immovable property

can be determined. Section 111(a) provides for determination of a lease by

efflux of time, while Section 111(f) provides for implied surrender. The

respondent had illegally refused to accept the keys of the subject premises.

In any event, without prejudice, such action on part of the respondent

constituted a breach of lease. Thus, grant of relief without addressing the

said fundamental issue, demonstrates perversity.

6.32. The Trial Court has erred in granting mesne profits to the respondent

in view of the evidence on record qua handing over the keys of the subject

premises and Section 108(q) of the TPA read with Section 111 of the TPA.

At best, only arrears of rent as of 02

November, 2006, could have been

decreed in the facts of the present case but nothing more.

6.33. There is a cardinal difference between mesne profits and arrears of

rent as is borne from Order XX Rule 12 of the CPC, which has been

overlooked by the Trial Court.

6.34. No guess work can be used for ascertaining rent and in this case, by

application of Section 108(q), only arrears of rent require computation, on

which there is no quarrel that the sum shall be Rs. 20,125/- per month.

RFA 566/2016 Page 16 of 71

6.35. The Trial Court failed to consider that the case of the respondent is

based on mutually destructive pleas. Clause 16 of the lease deed provides

that the respondent would be entitled to mesne profits at the rate of Rs.

2,000/- per day for the period of overuse of the subject premises in case of

no extension of the term of lease. However, the respondent sought mesne

profits at Rs. 2,000/- along with loss of rent. This is contrary to the contract

between the parties and it would amount to rewriting of the terms agreed.

Thus, by way of the impugned judgment the Trial Court has rewritten the

terms of the contract, which is wholly perverse.

6.36. The Trial Court has erroneously awarded mesne profits taking into

consideration the lease deeds, whose certified copies were placed on record,

but were not proved in accordance with law. The respondent was not the

author of the said lease deeds, and it is a settled law that the contents of a

document remain hearsay until the actual author is produced for cross

examination.

6.37. The officer from the Sub-Registrar’s office, in her cross-

examination, conceded that she does not know the author of the lease deeds

and has not seen them signing in her presence, nor does she recognize their

signatures; and that she has not even compared the documents with the

summoned record and is not aware of their genuineness or authenticity of

lease deeds.

6.38. The appellant had already removed all its goods from the premises in

dispute by 02

November, 2006, and the subject premises are lying vacant

and have not been used ever since. The burden to prove that the appellant

was in possession of the subject premises was on the respondent, and it

cannot be shifted on the appellant.

RFA 566/2016 Page 17 of 71

6.39. In respect of the subject premises, which was let out @ Rs. 35/- per

square feet, being unfurnished, the Trial Court has awarded mesne profits at

Rs. 89/- per square feet for the period of November, 2006 to December,

2006, relying on the lease that on the fact of it confirms that it is for a

furnished apartment. The lease rent in all other leases is higher than Rs. 89/-

per square feet, thus, the respondent stands unjustly enriched from the

impugned judgment and decree.

6.40. The appellant has sought to place on record two documents through

CM APPL. 31913/2022, viz. legal notice dated 28

March, 2006, and letter

dated 09

March, 2006 of the appellant to the Estate Manager of the

building where the subject premises is situated. The notice dated 28

March,

2006, stands cross referenced in most of the documents on the Trial Court

Record, including legal notice dated 17

April, 2006, and its contents are

also consistent with the notice dated 17

April, 2006. Further, it has been

recorded in the letter dated 09

March, 2006, that the owners of the subject

premises are Smt. Usha Mangla and others.

6.41. The impugned judgment itself records that rent was paid till the

month of May, 2005, and therefore, only the rent for the period from June,

2005, to October, 2006, has to be paid by the appellant, which may be

adjusted out of the sums deposited with this Court, while the remaining sum

be refunded to it, with interest charged till date.

SUBMISSIONS BY THE RESPONDENT /PLAINTIFF:

7. Per contra, the submissions put forth by the respondent, are as

follows:

7.1. It is an admitted case of the appellant that the respondent is a co-

owner of the subject premises and that the subject premises was let out to

RFA 566/2016 Page 18 of 71

the appellant by the respondent. Further, it is also a settled principle that a

suit for possession of a property let out by one of the co-owners can be

instituted by a co-owner.

7.2. The respondent was appointed as Receiver in respect of the subject

premises vide order dated 15

October, 1999, in CS 46/2006 by the Trial

Court. The said order was in operation when the present suit was instituted

in the year 2007, as is evident from the averments in the application for

impleadment filed by Sh. Rohit Mangla.

7.3. The said order was modified during the pendency of the said suit vide

order dated 17

March, 2010, passed by the Trial Court, in CS 46/2006, and

against which an appeal being FAO 347/2010 was preferred by the

respondent. In the said appeal, this Court vide order dated 04

September,

2013, specifically directed that the respondent will continue to pursue the

civil suit, being CS 694/2014, before the Trial Court.

7.4. There has been no dispute or challenge made by any of the co-owners

to the civil suit. Even Sh. Rohit Mangla had sought impleadment and not

dismissal of the suit filed by the respondent herein.

7.5. Sh. Rohit Mangla only raised concern about the rental amount being

received and accounted for by the respondent in the wake of the on-going

suit for partition.

7.6. The vacant and peaceful possession of the subject premises was only

handed over to the respondent on 03

February, 2010, and therefore, the

appellant is liable to pay mesne profits till 03

February, 2010. Prior thereto,

the appellant merely put a pretense to offer possession on 02

November,

2006, as it still was in possession of the subject premises.

RFA 566/2016 Page 19 of 71

7.7. The appellant, from the first date of putting appearance in the suit for

possession on 22

March, 2007, neither offered vacant possession nor took

any steps to get the property inspected by a local commissioner and to

deposit the keys in Court.

7.8. The appellant was admittedly in the subject premises, as is evident

from the address mentioned in the written statement filed by it in the civil

suit being CS 694/2014. Even as per the statement of the Authorized

Representative of the appellant, recorded by the Trial Court on 27

July,

2009, it had shifted premises in 2009. Even, on that date, no offer was made

to hand over the possession.

7.9. The evidence in the matter was led by the appellant in 2014. No such

alleged offer recorded in the Court order was ever put to the respondent

during cross-examination and the appellant has not even referred to the said

orders in evidence. Even the issues were framed on 2011, wherein, liability

to pay mesne profits was specifically framed and it was within the

appellant’s knowledge the case it had to meet. The reliance on the order

sheets is only an attempt to fill in the lacunae in the case of the appellant.

7.10. Without prejudice to the aforesaid, the offer for deposit of keys was a

conditional offer subject to accounting of the cost incurred by the appellant

towards renovation in the subject premises. To avoid the payment of mesne

profits, the burden of proof is upon the tenant to prove handing over of

peaceful vacant title to landlord, which the appellant has failed to discharge.

7.11. Order XX Rule 12 of the CPC shows that it does not bar a suit for

arrears of rent as well as for mesne profits, which are routinely granted by

Courts. Sub sections of Rule 12 provide for both mesne profits and rent, and

there is no mention of ‘or’ between sub clause (b) and (ba) of Order XX

RFA 566/2016 Page 20 of 71

Rule 12 of the CPC. The direction of enquiry for rent and mesne profits

provided in sub clause (b) and (ba) of Order XX Rule 12 of the CPC, is

optional as the same is proceeded by ‘or’.

7.12. There is no merit in the appellant’s contention that the subject

premises was without electricity for a period of 03 months and any

adjustments be made for the same.

7.13. In the present case, the mesne profits have been granted on the basis

of rate of damages mentioned in the lease deed executed between the parties,

in accordance with Section 73 and 74 of the Indian Contract Act, 1972

(“ICA”). Moreover, the respondent had led unimpeached evidence by filing

and proving registered lease deeds of similar properties to which there was

neither any cross examination nor any contrary evidence led by the

appellant.

7.14. It is the admitted case of the appellant that the respondent can only

claim damages @ Rs. 2,000/- per day as stipulated in Clause 16 of the lease

deed dated 02

December, 2003. Wherever the calculation of the mesne

profits on the basis of computation @ Rs.2,000/- per day + monthly rent of

Rs. 20,125/- was higher than the rent prescribed in the lease deed of

comparable premises situated in the same building, the Trial Court has

computed the same at Rs. 2,000/- per day, as sought by the appellant herein.

In case, the contention of the appellant is accepted, the respondent is entitled

to higher mesne profits.

7.15. The appellant has failed to lead any evidence as regards the rental

value prevailing in similarly situated premises. The appellant further failed

to cross-examine the respondent with respect to the same. In cases for mesne

RFA 566/2016 Page 21 of 71

profits, certified copies of registered lease deeds are routinely relied upon by

this Court in assessing mesne profits.

7.16. As an Appellate Court, judgment and decree of the Trial Court can

only be interfered with if the view taken by the Trial Court is perverse or

illegal. Merely because two views are possible, and one acceptable view has

been taken, it would not mean that the Court has the power to interfere in

appeal.

PROCEDURAL HISTORY:

8. Before adverting to the analysis and findings in the present appeal, it

is to be noted that the present appeal was first listed before this Court on 09

August, 2016, whereby, time was granted to the appellant in order to enable

him to examine the case before making submissions. This Court vide order

dated 29

August, 2016, had granted further time to the appellant to deposit

the decretal amount (erroneously referred to as the court fees).

9. However, vide order dated 21

September, 2016, it was clarified that

in the order dated 29

August, 2016, it shall be read as “decretal amount”

instead of “court fees”. Further, by way of the same order, this Court

dismissed the present appeal on the grounds of non-prosecution, as neither

the appellant appeared before this Court nor was the decretal amount

deposited.

10. By way of order dated 15

November, 2017, notice was issued in the

appellant’s application being CM 40893/2017 seeking restoration of the

present appeal.

11. This Court vide order dated 08

August, 2018, issued Contempt

Notice to Mr. Rajinder Rana, director of the appellant-company, for not

complying with this Court’s orders dated 07

May, 2018, and 28

May,

RFA 566/2016 Page 22 of 71

2018, whereby, directions were given to the appellant-company to place on

record the contact details, E-mail addresses, assets and bank account details

of its directors, viz. Mr. Rajender Kumar and Mr. Tan Chee Keong Roy; and

to deposit Rs. 15 Lacs with the Registrar General of this Court, within a

period of 06 weeks, respectively.

12. Further, by way of order dated 29

April, 2019, the respondent’s

application being CM 20139/2019, seeking attachment of the bank account

of the appellant-company was allowed. Thus, the bank account bearing no.

00030330001864, maintained by the appellant-company at HDFC Bank,

Kasturba Gandhi Marg, Delhi Branch, was attached till the next date of

hearing. Further, vide order dated 09

August, 2019, the said attachment was

continued till further orders.

13. Vide order dated 24

July, 2019, the appellant was directed to deposit

Rs. 40 Lacs with this Court, out of which Rs. 25 Lacs was to be deposited

with the Court and Rs. 15 Lacs was to be attached directly from the bank

account of the appellant-company. This order was challenged by the

appellant-company by way of a Special Leave Petition (Civil) (“SLP(C)”)

bearing no. 1833/2019, which was dismissed vide order dated 02

August,

2019, by the Supreme Court.

14. By way of order dated 26

August, 2019, this Court allowed the

appellant’s application being CM APPL 37969/2019, seeking directions to

the Branch Manager, HDFC, Kasturba Gandhi Marg, Delhi Branch, to credit

in the appellant’s account Rs. 25 Lacs deposited by the appellant with the

HDFC Bank, and further make a Fixed Deposit Receipt (“FDR”) of Rs. 40

Lacs in favour of the Registrar General of this Court. It was further directed

that subject to filing of the said FDR, the bank account of the appellant-

RFA 566/2016 Page 23 of 71

company shall be de-attached. The said FDR was deposited on 18

September, 2019.

15. Pursuant to the respondent’s application, being CM APPL.

44808/2019, seeking release of the said FDR in favour of respondent, this

Court vide order dated 12

February, 2020, released the FDR of Rs. 40 Lacs

in favour of the respondent, in view of one Mr. Sanjay Mahindru furnishing

a surety of Rs. 40 Lacs vide Suvidha Fixed Deposit dated 01

February,

2020, issued by the IDBI Bank, Uttam Nagar Branch, Delhi, issued in his

favour.

16. This Court vide order dated 29

March, 2022, permitted the

restoration of the present appeal, subject to the appellant depositing Rs. 25

thousand in favour of Delhi High Court Legal Services Committee.

17. Vide order dated 21

July, 2022, notice was issued in issued in CM

APPL. 31913/2022 filed by the appellant under Order XLI Rule 27 of the

CPC, seeking permission to place additional documents on record.

18. By way of order dated 11

August, 2023, this Court directed the

appellant to further deposit a sum of Rs. 25 Lacs with the Registry of this

Court, within 08 weeks, subject to which the execution of the impugned

decree shall be stayed. Further, vide order dated 19

October, 2023, the

appellant’s application for extension of time was disposed of with directions

to deposit the said amount with the Registry of this Court the next day, i.e.,

October, 2023, pursuant to which the execution of the impugned decree

shall remain stayed.

FINDINGS AND ANALYSIS:

19. I have heard learned counsels for both the parties and have perused

the record.

RFA 566/2016 Page 24 of 71

20. At the outset, it is noted that no arguments were advanced on behalf

of the appellant before the Trial Court in respect of issue nos. 01 and 02.

Therefore, considering the documents on record, the Trial Court decided the

said issues in favour of the respondent and against the appellant, thereby,

holding that the suit was signed and duly verified by an authorized person,

and further that the suit was not bad for non-joinder or mis-joinder of any

party.

21. It is also noted that issue nos. 03 and 04 were deleted vide order dated

November, 2011, upon an application made by the respondent/plaintiff

under Order XIV Rule 5 of the CPC seeking deletion of the said issues. The

said issues were deleted in view of the fact that on 03

February, 2010, the

appellant had handed over the possession and keys of the vacant subject

premises to the respondent, therefore, rendering the said issues pertaining to

recovery of possession, infructuous.

22. The parties have advanced comprehensive arguments before this

Court on issue nos. 05 to 08. Issue no. 05 pertains to mesne profits for the

period from 01

June, 2006, to 24

January, 2007. Issue no. 06 is in respect

of the arrears of rent for the period from 01

February, 2004, till 02

November, 2006. Issue no. 07 pertains to prayer towards loss of rent for the

period from 03

November, 2006 to 24

January, 2007. Finally, issue no. 08

is with respect to entitlement of the respondent/plaintiff for mesne profits.

23. The Trial Court has taken up the issues together on the ground that the

said issues were interconnected, i.e., finding on one issue would have

bearing upon other issue and vice versa. Arguments were also advanced qua

issue no. 9, which pertains to entitlement of interest.

RFA 566/2016 Page 25 of 71

Title Of The Respondent Over The Subject Premises And Maintainability

Of The Suit:

24. The case set up by the appellant is that the respondent had never

disclosed the fact that he was appointed as a Receiver in respect of the

subject premises. Furthermore, without hearing the other co-owners, the suit

filed by respondent was not maintainable. It has been argued that once

disputes exist between co-owners, agency cannot be presumed and all the

co-owners must be joined in a suit against the tenant for recovery of

possession and mesne profits.

25. In this regard, it is to be noted that the respondent was appointed as a

Receiver in respect of the subject premises vide order dated 15

October,

1999, in the partition suit between the respondent and other family members,

and the said order was in operation at the time of filing of the suit by the

respondent in the year 2007. The said order was only modified during the

pendency of the suit on 17

March, 2010, and the same was challenged by

the respondent in FAO 347/2010.

26. By way of order dated 04

September, 2013 passed by this Court in

FAO 347/2010, the respondent was directed to pursue the suit filed by him.

Significantly, there has been no objection by other co-owners to the

institution of suit filed by the respondent seeking recovery of possession and

other reliefs. Admittedly, the said co-owners were in the knowledge of the

suit filed by the respondent, when the appellant herein moved an application

for impleadment in the partition suit of the co-owners and for deposit of

keys of the suit property. Even Sh. Rohit Mangla, one of the co-owners who

had filed application for impleadment in the present suit, had sought reliefs

qua payment of rent only.

RFA 566/2016 Page 26 of 71

27. Furthermore, it is to be noted that the objection raised by the appellant

in this regard is covered under issue no. 02 framed by the Trial Court.

However, the said issue was neither pressed nor argued by the appellant.

Moreover, the appellant’s application seeking similar relief was also

dismissed by the Trial Court on 03

September, 2013.

28. The appellant admittedly entered into the lease deed dated 02

December, 2003 with the respondent, paid rent and other charges to him for

a substantial period and enjoyed uninterrupted possession under the lease for

years without repudiating his title. Section 116 of the Evidence Act

precludes a tenant from denying, during the continuance of the tenancy, the

title of the person from whom he accepted the property.

29. It is settled law that in a suit for possession by landlord, the question

of title is irrelevant. Reference in this regard, may be made to the judgment

in the case of Sanjay Singh Versus Corporate Warranties Pvt. Ltd., 2013

SCC OnLine Del 3535, wherein, it has been held as follows:

“xxx xxx xxx

28. Though the counsel for the appellant/defendant has not urged,

but the defence in the written statement to title of the

respondent/plaintiff and of Sh. A.K. Rangaswami and of the

appellant/defendant having not attorned to respondent/plaintiff as

landlord, is also meritless. It has been held in Nalakath Sainuddin v.

Koorikadan Sulaiman, (2002) 6 SCC 1, Mahendra Raghunathdas

Gupta v. Vishwanath Bhikaji Mogul, (1997) 5 SCC 329 and Mohar

Singh v. Devi Charan, (1988) 3 SCC 63 that on transfer of tenanted

premises by the landlord, the transferee automatically becomes the

landlord of the tenant by operation of law and the coming into being

of the relationship of landlord and tenant between the transferee and

tenant is not dependent upon any overt act on the part of the tenant.

Similarly, it is the settled position in law that in a suit between

landlord and tenant, it is only the title as landlord which is relevant

and not the title as owner. As far back as in Sri Ram Pasricha v.

Jagannath, (1976) 4 SCC 184 it was held that under the general

RFA 566/2016 Page 27 of 71

law, in a suit between landlord and tenant, the question of title to

the leased property is irrelevant. Recently also, in State of Andhra

Pradesh v. D. Raghukul Pershad, (2012) 8 SCC 584 : (2012) 4 SCC

(Civ) 555 it was held that relief of eviction of a tenant is not based

on the title of the landlord to the leased premises and even if an

averment to the said effect, of landlord being owner, is made in the

plaint, as long as no relief of declaration of title is claimed and

only the relief of eviction of tenant on the ground that lease has

come to an end is claimed, the Court is not called upon to decide

the question of title.

xxx xxx xxx”

(Emphasis Supplied)

30. It is undisputed that the respondent is a co-owner of the suit property

and the suit property was let out to the appellant by the respondent. It is

equally settled law that suit for possession of property let out by one of the

co-owners can be instituted by a co-owner. In this regard, reference is made

to the decision in the case of India Umbrella Manufacturing Co. and

Others Versus Bhagabandei Agarwalla (Dead) by LRs. Savitri Agarwalla

(Smt) and Others, (2004) 3 SCC 178, wherein, the Supreme Court has held

that one of the co-owners can file a suit for eviction of a tenant in the

property generally owned by the co-owners, unless it is shown that the co-

owners were not agreeable to eject the tenant. The relevant portion of the

said judgment, reads as under:

“xxx xxx xxx

6. Having heard the learned counsel for the parties we

are satisfied that the appeals are liable to be dismissed. It is

well settled that one of the co-owners can file a suit for eviction

of a tenant in the property generally owned by the co-owners.

(See Sri Ram Pasricha v. Jagannath [(1976) 4 SCC 184]

and Dhannalal v. Kalawatibai [(2002) 6 SCC 16], SCC para

25.) This principle is based on the doctrine of agency. One co-

owner filing a suit for eviction against the tenant does so on his

own behalf in his own right and as an agent of the other co-

RFA 566/2016 Page 28 of 71

owners. The consent of other co-owners is assumed as taken

unless it is shown that the other co-owners were not agreeable

to eject the tenant and the suit was filed in spite of their

disagreement. In the present case, the suit was filed by both the

co-owners. One of the co-owners cannot withdraw his consent

midway the suit so as to prejudice the other co-owner. The suit

once filed, the rights of the parties stand crystallised on the

date of the suit and the entitlement of the co-owners to seek

ejectment must be adjudged by reference to the date of

institution of the suit; the only exception being when by virtue

of a subsequent event the entitlement of the body of co-owners

to eject the tenant comes to an end by act of parties or by

operation of law.”

xxx xxx xxx”

(Emphasis Supplied)

31. Accordingly, the impleadment of all co-owners is not a prerequisite

for filing an eviction petition against the tenant. And eviction suit against

tenant can be legally maintained by one co-owner alone.

32. The judgment in the case of Nanalal Girdharlal and Another Versus

Gulamnabi Jamalbhai Motorwala and Others, 1972 SCC OnLine Guj 12,

relied upon by the appellant is clearly distinguishable and does not apply to

the facts and circumstances of the present case. The said judgment only

holds that where the premises have been let out by all co-owners, it can be

terminated only by all co-owners, which is not the position in the present

case. In the present case, lease was granted only by the respondent.

33. Similarly, the judgment in the case of Abdul Hamid Versus

Bhuwaneshwar Prasad, 1952 SCC OnLine MP 125, relied by the appellant

is distinguishable. In the said case, tenancy was given jointly by all co-

owners. Thus, the Court held that where relation of joint landlord continues,

tenancy cannot be put to an end except by all lessors. On the contrary, in the

RFA 566/2016 Page 29 of 71

present case, tenancy was given by the respondent both as a co-owner and a

receiver.

34. As regards the dispute raised qua the title of the respondent, it is

worthy to note the decision of the Supreme Court in Jaspal Kaur Cheema

and Another Versus Industrial Trade Links and Others, (2017) 8 SCC

592, wherein, it has been held that the tenant who has been let into

possession cannot deny his landlord’s title, however, defective it may be, so

long as he has not openly restored possession by surrender to his landlord.

The relevant excerpts of the said judgment, are reproduced as under:

“xxx xxx xxx

9. Now, the question is whether it is permissible for the

respondent tenant to deny his landlord's title having regard to

Section 116 of the Evidence Act. Section 116 of the Evidence Act

reads as under:

“116. Estoppel of tenant; and of licensee of person in

possession.—No tenant of immovable property, or person

claiming through such tenant, shall, during the continuance

of the tenancy, be permitted to deny that the landlord of such

tenant had, at the beginning of the tenancy, a title to such

immovable property; and no person who came upon any

immovable property by the licence of the person in possession

thereof, shall be permitted to deny that such person had a title

to such possession at the time when such licence was given.”

10. Section 116 deals with estoppel of a tenant founded upon

contract between the tenant and his landlord. It enumerates the

principle of estoppel which is merely an extension of principle

that no person is allowed to approbate and reprobate at the

same time. The tenant who has been let into possession cannot

deny his landlord's title. In Bilas Kunwar v. Desraj Ranjit

Singh [Bilas Kunwar v. Desraj Ranjit Singh, 1915 SCC

OnLine PC 34 : (1914-15) 42 IA 202 : AIR 1915 PC 96] , it was

held that a tenant who has been let into possession cannot deny

his landlord's title, however, defective it may be, so long as he

has not openly restored possession by surrender to his

landlord.

RFA 566/2016 Page 30 of 71

11. The principle of estoppel arising from contract of tenancy

is based upon the principle of law and justice that a tenant who

could not have got possession but for a contract of tenancy

admitting the right of the landlord, should not be allowed to

put his landlord in some inequitable situation taking undue

advantage of the position that he got and any probable defect

in the title of his landlord. This Court in Bansraj Laltaprasad

Mishra v. Stanley Parker Jones [Bansraj Laltaprasad

Mishra v. Stanley Parker Jones, (2006) 3 SCC 91] has

enumerated the policy underlying Section 116 as follows: (SCC

p. 96, paras 13-15)

“13. The underlying policy of Section 116 is that where a

person has been brought into possession as a tenant by the

landlord and if that tenant is permitted to question the title of the

landlord at the time of the settlement then that will give rise to

extreme confusion in the matter of relationship of the landlord

and tenant and so the equitable principle of estoppel has been

incorporated by the legislature in the said section.

14. The principle of estoppel arising from the contract of

tenancy is based upon a healthy and salutary principle of law and

justice that a tenant who could not have got possession but for his

contract of tenancy admitting the right of the landlord should not

be allowed to launch his landlord in some inequitable situation

taking undue advantage of the possession that he got and any

probable defect in the title of his landlord. It is on account of

such a contract of tenancy and as a result of the tenant's entry

into possession on the admission of the landlord's title that the

principle of estoppel is attracted.

15. Section 116 enumerates the principle of estoppel which

is merely an extension of the principle that no person is allowed

to approbate and reprobate at the same time.”

12. In S. Thangappan v. P. Padmavathy [S. Thangappan v. P.

Padmavathy, (1999) 7 SCC 474] , this Court has held that

Section 116 puts an embargo on a tenant of an immovable

property, during the continuance of his tenancy to deny the

title of his landlord at the beginning of his tenancy, however

defective the title of such landlord could be.

xxx xxx xxx”

(Emphasis Supplied)

RFA 566/2016 Page 31 of 71

35. It is equally true that a tenant cannot take any benefit of the litigation

between co-owners, including, the landlord of the property to deny the

rightful due of the landlord. Reference in this regard be made to the

judgment in the case of Chemons India Pvt. Ltd. Versus Vijay Singh

Sandhu, 2013 SCC OnLine Del 3733, wherein, it has been held as follows:

“xxx xxx xxx

15. The only serious contention urged by the counsel for the

appellant /defendant is of the suit for ejectment/arrears of

rent/mesne profits instituted by the respondent/plaintiff who was

only one four heirs left by Lt. Col. G.M.S. Sandhu who had let out

the property to the appellant/defendant, being not maintainable.

The counsel for the appellant / defendant has argued that the

judgments of the Supreme Court and this petitions under various

Rent Control the landlords to be entitled to institute a petition for

eviction of the tenant under the said Rent Control legislations would

have no application to a civil suit for ejectment after determination

of tenancy under Section 106 of the Transfer of Property Act.

16. The aforesaid contention also of the counsel for the

appellant / defendant is not in consonance with the judgment of the

Supreme Court in India Umbrella Manufacturing Co. v.

Bhagabandei Agarwalla 2004 (3) SCC 178, applying the same

principle to a civil suit also for eviction of tenant. It was held to be

well settled that one of the co-owners can file a suit for eviction of

a tenant in the property generally owned by the co-owners. The

principle was held to be based on the doctrine of agency - one co-

owner filing a suit for eviction against the tenant was held to be

doing so on his own behalf in his own right and as an agent of

other co-owners was assumed as taken unless it was shown that the

other co-owners were not agreeable to eject the tenant and the suit

was filed in spite of their disagreement.

17. A Division Bench of this Court in Mercury Travels (India)

Ltd. Shri Mahabir Prasad 89 (2001) DLT 440 held that even where

there- is litigation between the legal heirs of the deceased landlord,

the tenant cannot take any advantage thereof and the said

litigation does not preclude some of the heirs from filing ejectment

suit till the inter se litigation is given a quietus. Another Division

Bench in Smt. Krishna Prakash v. Dilip Harel Mitra Chenoy AIR

2002 Delhi 81: 2003 (71) DRJ 770(DB) held that the principle laid

RFA 566/2016 Page 32 of 71

down by the Supreme Court in eviction suits filed under various

Rent Control legislations can equally be applied in general law in a

suit for recovery of possession/ejectment. Similarly Mr. Zulfiquar

Ali Khan v. J.K. Helene Curtis Ltd. AIR 2002 Delhi 2002 (62) DRJ

442 also it was held that there is hardly a distinction between a suit

for eviction and recovery of possession against a tenant after

determination of tenancy and a co-owner alone is entitled to

determine the tenancy and maintain a suit for eviction of tenant

after determination of tenancy.

xxx xxx xxx”

(Emphasis Supplied)

36. In light of the foregoing, it is manifest that the tenant, i.e., the

appellant, is precluded from raising a question as to the title of the landlord,

i.e., the respondent, who is a co-owner in the subject premises. Therefore,

there is no infirmity with findings of the learned Trial Court with regard to

maintainability of the suit by the respondent.

Lease Deed Was Validly Terminated:

37. The case set up by the appellant in respect of the termination of the

lease deed dated 02

December, 2003, is centered around the contention

that a co-owner is not entitled to terminate a lease deed in respect of the co-

owned property, and therefore, in the present case, the respondent vide

notice dated 17

April, 2006, has not validly terminated the lease deed dated

December, 2003.

38. The appellant has also put forth that vide its notice dated 25

April,

2006, it had informed the respondent that the lease deed did not stand

terminated and the appellant continued to be the contractual tenant. Further,

neither had the appellant replied to the said notice nor had taken any steps

towards recovery of possession of the subject premises.

RFA 566/2016 Page 33 of 71

39. In this context, the question arises before this Court as to whether the

lease deed dated 02

December, 2003, was validly terminated by the

respondent.

40. It is pertinent to refer to Section 111 (g) of the TPA, the relevant

portion of which, reads as under:

“xxx xxx xxx

111. Determination of lease.—A lease of immoveable property

determines—

(a) by efflux of the time limited thereby;

(b) where such time is limited conditionally on the happening of

some event—by the happening of such event;

or his power to dispose of the same extends only to, the

happening of any event—by the happening of such event;

(d) in case the interests of the lessee and the lessor in the whole

of the property become vested at the same time in one person

in the same right;

(e) by express surrender; that is to say, in case the lessee yields

up his interest under the lease to the lessor, by mutual

agreement between them;

(f) by implied surrender;

(g) by forfeiture, that is to say, (1) in case the lessee breaks an

express condition which provides that, on breach thereof,

the lessor may re-enter [***]; or (2) in case the lessee

renounces his character as such by setting up a title in a

third person or by claiming title in himself; [or (3) the

lessee is adjudicated an insolvent and the lease provides

that the lessor may re-enter on the happening of such

event]; and in [any of these cases] the lessor or his

transferee [gives notice in writing to the lessee of] his

intention to determine the lease;

(h) on the expiration of a notice to determine the lease, or to

quit, or of intention to quit, the property leased, duly given

by one party to the other.

xxx xxx xxx”

(Emphasis Supplied)

RFA 566/2016 Page 34 of 71

41. In view of the above, termination of a lease by forfeiture, as done in

the present case, has been enumerated as possible ground for termination of

lease deed. In case, the lessee breaks an express condition of the lease,

which provides that on breach thereof, the lessor may re-enter and also give

notice in writing to the lessee of his intention to determine the lease.

42. In the present case all of the aforesaid conditions have been met.

Firstly, it is important to note the mandate of Clause 14 and 15 of the lease

deed dated 02

December, 2003, which read as under:

“xxx xxx xxx

xxx xxx xxx”

43. It is a matter of record that the respondent had sent the legal notice

dated 17

April, 2006, to the appellant intimating the termination of the

lease deed dated 02

December, 2003, on account of non-payment of rent

since the initial payment of security deposit.

44. The appellant sought to justify its non-payment of rent on the ground

that Sh. Rohit Mangla, a co-owner of the suit property, had approached the

RFA 566/2016 Page 35 of 71

appellant asserting his own rights and had disclosed the pendency of a

partition suit, to which respondent was a party. In its notice dated 17

April,

2006 to the respondent, the appellant stated that it would have no hesitation

in depositing rent, once it received a discharge of liability from the other co-

owners. The appellant reiterated in its reply dated 25

April, 2006 that it was

willing to deposit rent with the Court once the respondent’s entitlement,

undisputed by other co-owners, was established.

45. The said contentions raised by the appellant are fundamentally

flawed. Firstly, a tenant confronted with a genuine doubt as to whom rent is

payable, is not without a remedy. He may deposit the rent with the Court in

case of such doubts. Further, a stated willingness to deposit rent expressed

only in correspondence and never acted upon, does not by itself suspend the

obligation to pay.

46. Therefore, in the present case, there is a valid notice, a breach of an

express term, the breach of which as per Clause 14 of the lease deed, allows

the lessor to re-enter. A written notice dated 17

April, 2006, was issued to

the appellant expressing the respondent’s intention to determine the lease.

Therefore, it is evident that the lease deed was terminated in line with the

mandate of Section 111(g) of the TPA.

47. Further, it is important to note that in a catena of judgments,

including, in India Umbrella Manufacturing (supra), it has been held that

one co-owner filing a suit for eviction against the tenant does so on his own

behalf in his own right and as an agent of the other co-owners. The consent

of other co-owners is assumed as taken, unless it is shown that the other co-

owners were not agreeable to eject the tenant and the suit was filed in spite

of their disagreement. Applying the same principle to termination of lease

RFA 566/2016 Page 36 of 71

deed in the present case, it is inescapable inference that the respondent,

being a co-owner, can validly terminate a lease deed in respect of the subject

premises.

48. In the present case, the appellant had filed miscellaneous applications

in the suit for partition, being CS 46/1995, between the respondent and other

family members, which included the other co-owners of the subject

premises. Therefore, the said co-owners were in notice of the suit filed by

the respondent herein against the appellant for seeking possession of the suit

premises and other reliefs. However, despite being in notice, none of the co-

owners sought to intervene in the said suit, barring Sh. Rohit Mangla, who

attempted to intervene but only qua the payment of rent and did not question

the termination of the lease deed in respect of the appellant.

49. It is important to note that it is the admitted case of the appellant that

the lease deed dated 02

December, 2003, was executed by it with the

respondent. Furthermore, the lease deed itself enumerates that the

respondent has enacted the said lease on behalf of all the co-owners.

Therefore, the appellant, who was in notice of the existence of the other co-

owners qua the subject premises, cannot choose a landlord of its choice from

the co-owners, and state that the termination of the lease deed was invalid, in

view of there being no similar objections raised by any other co-owner qua

the termination of the lease deed dated 02

December, 2003.

50. The contention raised by the appellant in this regard, is accordingly

rejected.

RFA 566/2016 Page 37 of 71

Possession Of The Subject Premises Was Handed Over To The

Respondent On 03

February, 2010:

51. The appellant has put forth its case that the possession of the subject

premises was handed over to the respondent on 02

November, 2006, i.e.,

upon the expiration of the term of lease deed, and the subject premises has

been lying vacant thereafter. It has been averred that the Trial Court has

ignored Section 108(q) of the TPA read with Section 111 of the TPA, and

has erroneously granted mesne profits to the respondent.

52. The appellant has also put forth that the burden to establish that the

appellant is in occupation of the subject premises was on the respondent and

it could not be shifted on the appellant. The appellant contends that it did not

have any further responsibility to approach the Court rather than just

informing the landlord, i.e., the respondent, about its intention to hand over

possession of the subject premises.

53. In regards to the aforesaid contention, two questions arise for

adjudication before this Court, viz. (i) Whether the appellant has handed

over the vacant and peaceful possession of the subject premises to the

appellant on 02

November, 2006, and if the Trial Court has erred in

recording that the same was handed over on 03

February, 2010; (ii)

Whether the Trial Court has erred in granting mesne profits to the

respondent ignoring the provisions of Section 108(q) read with Section 111

of the TPA.

54. In reference to the first issue, i.e., whether the appellant had handed

over the vacant and peaceful possession of the subject premises on 02

November, 2006, and if the Trial Court has erred in recording that the same

was handed over on 03

February, 2010, it is pertinent to consider the

RFA 566/2016 Page 38 of 71

decision of this Court in Sky Land International Pvt. Ltd. Versus Kavita P.

Lalwani, 2012 SCC OnLine Del 3082, whereby, it has been held that

Section 108(q) read with Section 111 of the TPA mandates an obligation to

be placed on the tenant to restore the possession of the demised premises to

the landlord, after the expiration of a lease. The relevant excerpts of the said

judgment read as under:

“xxx xxx xxx

Duty of a Tenant under Section 108(q) read with

Section 111 of Transfer of Property Act, 1882

13. Under Section 108(q) of Transfer of Property Act, 1882, it

is the statutory obligation of the lessee to restore the possession

of the leased property to the lessor on determination of the

lease. Section 108(q) of Transfer of Property Act, 1882 is

reproduced hereunder:

“Section 108. Rights and liabilities of lessor and lessee.—

In the absence of a contract or local usage to the contrary,

the lessor and the lessee of immoveable property, as against

one another, respectively, possess the rights and are subject to

the liabilities mentioned in the rules next following, or such of

them as are applicable to the property leased:

A. - Rights and Liabilities of the Lessor.

(a) to (c) xxx xxx xxx

B. - Rights and Liabilities of the lessee.

(d) to (p) xxx xxx xxx

(q) on the determination of the lease, the lessee is bound

to put the lessor into possession of the property.”

14. In Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7

SCC 184 : AIR 1998 SC 3085, the Supreme Court held that

when a lease comes to an end by efflux of time, or by notice of

termination, or if there be a breach and the lessee’s rights are

forfeited, the lessee becomes a tenant at sufferance, and it

becomes the duty of the lessee under Section 108(q) of the

Transfer of Property Act to restore possession to the lessor

forthwith. The Supreme Court held as under:

RFA 566/2016 Page 39 of 71

“22. …Under law the erstwhile landlord is entitled to

restoration of possession by enforcement of statutory

obligation of the erstwhile tenant as statutorily imposed on

him under Section 108(q) read with Section 111(a) of the

Property Act…”

xxx xxx xxx

20. In Pakistan International Airlines v. Abaskar Constructions

(P) Ltd., this Court held as under:

“21. Law is clear. If a lease is evidence by a contract in

writing, as in the instant case, the duration of the lease

would be as per the contract and at the expiry of the lease

period, as per contract the lease expires by efflux of time.

Expiry of lease by efflux of time results in the

determination of the relationship between the lessor and

the lessee and since the lease expires under the contract by

efflux of time, no notice of determination of the lease is

required.

22. The mandate of Clause ‘q’ of Section 108 of the

Transfer of Property Act 1882 is that on the expiry of the

lease the lessee is bound to hand over possession of the

leased premises to the lessor and therefore the lessor would

be entitled to maintain an action to compel the lessees to

abide by the mandate of Clause ‘q’ of Section 108 of the

Transfer of Property Act 1882.

23. A person who enters upon the property of another

without authority of law is a trespasser. It could be argued

that the very next moment after the period of lease stands

expired, the act of entering upon property by the tenant is

an act of trespass. But law says ‘No’. A lessee who

continues in possession after expiry of the lease, without

the consent of the lessor or without any agreement between

the parties or in disagreement with the lessor, is treated in

law as a tenant by sufferance…..

xxx xxx xxx

(Emphasis Supplied)

55. Having regard to the settled position, the appellant was under the

obligation to restore the vacant and peaceful possession of the subject

RFA 566/2016 Page 40 of 71

premises to the respondent, upon the determination of the lease deed dated

December, 2003, and failure to do the same makes the appellant a

tenant at sufferance qua the subject premises.

56. It is to be noted that the appellant neither ever took any steps to

deliver the vacant and peaceful possession of the subject premises to the

respondent, nor did the appellant ever sought to deposit the keys of the

subject premises in Court. Contrary to the stand of the appellant, the

affidavit dated 21

March, 2007, adduced by the appellant with its written

statement filed before the Trial Court states its address as that of the subject

premises.

57. Even as per the statement of the Authorized Representative of the

appellant, recorded by the Trial Court vide order dated 27

July, 2009, the

appellant had shifted its premises only in the year 2009. Further, even on

that date no offer was made to hand over the possession of the subject

premises to the respondent by the appellant.

58. It is also to be noted that the appellant has failed to lead any evidence

to prove that the subject premises was lying vacant, especially, when the

same was disputed by the respondent.

59. At this stage reference may be fruitfully made to the judgment in the

case of M. C. Chockalingam and Others Versus V. Manickavasagam and

Others, (1974) 1 SCC 48, wherein, Supreme Court has held that law in

general prescribes and insists upon an inquiry into the conduct of the parties.

Further, in case a tenant/lessee continues with the possession of the property

without the consent of the landlord, such tenant/lessee would be liable to pay

mesne profits. The relevant portion of the said judgment reads as under:

RFA 566/2016 Page 41 of 71

“xxx xxx xxx

16. Law in general prescribes and insists upon a specified

conduct in human relationship or even otherwise. Within the

limits of the law, courts strive to take note of the moral fabric

of the law. In the instant case, under the terms of the lease, the

property had to be handed over to the lessor. Besides under

Section 108(q) of the Transfer of Property Act, on the

determination of the lease, the lessee is bound to put the lessor

into possession of the property. Since the landlord has not

assented to the lessee’s continuance in possession of the

property, the lessee will be liable to mesne profits which can

again be recovered only in terms of his wrongful possession.

Under Section 5(1) of the Act, the licensing authority in deciding

whether to grant or refuse a licence has regard, amongst others,

to the interest of the public generally. Public interest is,

therefore, also involved in granting or refusing a licence. That

being the position, the expression ‘lawful possession’ in Rule 13

assumes a peculiar significance of its own in the context of the

provisions of the Act. Hence in any view of the matter possession

of the respondents on the expiry of the lease is not lawful

possession within the meaning of Rule 13. The High Court is,

therefore, not correct in its interpretation of Rule 13. The Board

of Revenue in appeal was, on the other hand, right in interfering

with the order of the licensing authority and the learned Single

Judge of the High Court rightly refused to interfere with the

order of the Board under Article 226 of the Constitution.

xxx xxx xxx”

(Emphasis Supplied)

60. Thus, it is necessary for this Court to scrutinize the conduct of the

parties in the present matter. Section 108(q) of the TPA obliges the lessee on

determination of the lease to put the lessor into possession of the property.

This entails an actual and unconditional vacation of the premises coupled

with a clear communication calling upon the landlord to take possession.

However, in the present case, it is evident that the appellant never actually

offered the vacant and peaceful possession of the subject premises to the

RFA 566/2016 Page 42 of 71

respondent, and only attempted to seek shelter behind expressions of

offering keys of the subject premises to the respondent.

61. The appellant, in 2006, had filed two applications in CS 46/2006, i.e.,

the suit for partition between the respondent and other family members,

seeking impleadment therein and also the permission to handover the

possession of the subject premises by way of depositing the keys before the

Trial Court. However, it is important to note here that firstly, this offer was a

conditional offer subject to payment of Rs. 3,20,424/- claimed by the

appellant from the respondent. Secondly, the said application was preferred

during the currency of the term of the lease deed, when the appellant was

admittedly in possession of the subject premises.

62. Significantly, the appellant never filed any such application before the

Trial Court in the CS 694/2014, i.e., the civil suit filed by the respondent

herein which culminated in the impugned judgment and decree. The said

civil suit was filed in the year 2007, and till 03

February, 2010, i.e., when

the possession was actually transferred to the respondent, as recorded by the

Trial Court, no such application was preferred by the appellant.

63. Furthermore, in the affidavit dated 21

March, 2007, appended to the

written statement, appellant had mentioned its address as that of the subject

premises. This Court is cognizant that the said affidavit cannot be used as

evidence for the purpose of determining possession of the appellant over the

subject premises, however, it cannot be discounted as a valid contradiction

in the case set up by the appellant before the Trial Court as well as this

Court. The relevant portion of the said affidavit is reproduced as under:

RFA 566/2016 Page 43 of 71

“

xxx xxx xxx”

64. The appellant, for the first time post institution of the civil suit, on

September, 2008, expressed its willingness to hand over the keys to the

respondent. In response, the respondent stated that he would like to inspect

the subject premises, however, there was no follow up on the said purpose,

and the civil suit proceeded further. The said plea was not pressed by the

either of the parties thereafter.

65. Subsequently, on 24

November, 2009, the appellant again offered

keys to the respondent, however, the same was rejected by the respondent on

account of pending clearance of dues. It is pertinent to note that the said

offer merely pertained to keys and in no manner whatsoever did the

appellant contend that the same would amount to the transferring of the

vacant and peaceful possession of the subject premises to the respondent.

66. Finally, on 03

February, 2010, the possession of the subject premises

was transferred to the respondent by the appellant, as recorded by the Trial

Court.

67. It is also important to note that the appellant never led any evidence to

the effect that the subject premises had been vacated on 02

November,

2006, and that the same was lying vacant ever since. The letter dated 02

September, 2006 was at best a prospective offer to vacate with effect from

RFA 566/2016 Page 44 of 71

the date on which the original lease term happened to expire. There is

nothing on record to show that it was accompanied or followed by actual

vacation of the suit property.

68. In this regard, it is imperative to consider the decision of the Madras

High Court in the case of Balasubramania Iyer Versus Subbiah Thevar

and Another, 1963 SCC OnLine Mad 345, wherein, it has been held that it

is well settled that when a suit is filed by a landlord to recover arrears of rent

due from a tenant who was inducted into possession in pursuance of the

lease, the burden is clearly upon the lessee to allege and prove that during

the currency of the lease and for the period for which rent was claimed, he

had delivered possession of the property back to the lessor. The relevant

portion of the said judgment, reads as under:

“xxx xxx xxx

When a suit is filed by a landlord to recover arrears of rent due

from a tenant who was inducted into possession in pursuance

of the lease, the burden is clearly upon the lessee to allege and

prove that during the currency of the lease and for the period

for which rent was claimed, he had delivered possession of

property back to the lessor. Unless such redelivery of

possession of the property to the lessor is established, the

tenant will clearly be liable for arrears of rent. Learned

Counsel for the respondent however contends that this position

under the general law will not apply to a tenant who is governed

by Madras Act XXIV of 1956. He contends that under S. 3 (9) it

is enough if the tenant sends a notice to his landlord that on

account of the Sub-leses granted by the tenant he is not liable to

pay the rent. There is no force in this contention. From a reading

of S. 3 (9) it is clear that if a tenant desires to get the benefit of

that provision he must establish that he has inducted certain sub-

tenants into his lands, and that those sub-tenants were not only

entitled to the benefits of Madras Act XXIV of 1956 but they had

also actually claimed those benefits and that as a consequence

thereof there has been a reduction in the rent payable to the

main tenant by the sub-tenants. In my opinion, both these

RFA 566/2016 Page 45 of 71

conditions must be concurrently satisfied; (a) that the sub-

tenants be entitled to the benefits of the Act and (b) that the sub-

tenants actually claimed the benefits, after availing themselves of

the provisions of the Act resulting in a reduction of the rent that

was originally stipulated by the main tenant. The evidence in this

case does not satisfy either of the two conditions. None of the

sub-lessees had been examined in this case. No evidence has

been adduced as to the rent originally stipulated or as to which

of the sub-lessees claimed the benefit of the Act, and whether

there had been any consequent reduction in the rent payable by

them. On the facts of the instant case I have no doubt that S. 3(9)

does not help the first defendant in any manner.

xxx xxx xxx”

(Emphasis Supplied)

69. It is evident that the appellant has failed to discharge the onus placed

on itself to prove that the subject premises was actually vacated after 02

November, 2006. On the contrary, the Trial Court’s finding is that the

appellant continued to be connected with the suit property until it shifted its

corporate address in July, 2009 and that formal actual possession was

restored to the respondent only in Court on 03

February, 2010. The

appellant’s application to offer keys in the suit for partition, and not in the

present case, cannot constitute a tender of possession made by the appellant

to the respondent in respect of the present tenancy.

70. Considering all the facts and circumstances of the present case and

applying the test of preponderance of probabilities, the probabilities lean

strongly in favour of the respondent to the effect that the possession over the

subject premises was only handed over to him on 03

February, 2010, and

not on 02

November, 2006, as contended by the appellant.

71. On careful consideration of the rival contentions of the parties and

applying the well-settled principles of law, this Court is of the view that the

vacant and peaceful possession of the subject premises was only delivered to

RFA 566/2016 Page 46 of 71

the respondent on 03

February, 2010, as has been recorded in the order of

the same date by the Trial Court.

72. The Court now deals with the second issue, i.e., whether the Trial

Court has erred in granting mesne profits to the respondent ignoring the

provisions of Section 108(q) read with Section 111 of the TPA.

73. In this regard reliance may be made to the decision in the case of

MEC India Pvt. Ltd. Versus Lt. Col. Inder Maira & Ors., 1999 SCC

OnLine Del 422, whereby, it has been held that the status of a lessee whose

lease has expired and whose continuance is not assented to by the landlord,

is that of a tenant at sufferance. It has further been held that such

tenant/lessee would be liable to pay mesne profits for the use and occupation

of the property. Applying the same to the facts of the present case, the

appellant is a tenant at sufferance in respect of the subject premises, and

liable to pay mesne profits. The relevant paragraphs of the said judgment are

reproduced as under:

“xxx xxx xxx

45. Section 108(q) thus ensures that a lessee continues to be

liable to the lessor till possession has been actually restored to

the lessor and a semblance of relationship subsists till that

contingency takes place. His continuing in possession is

expressive of his continuing stand that the tenancy, in whatever

form, continues. It is said that he does not hold it adversely to

the landlord only till he has unequivocally renounced his status

as a tenant and asserted hostile title, but even that appears to be

doubtful, for in law his possession remains permissive till it has

been actually restored to the landlord.

46. In law there is presumption in favour of the continuity of the

tenancy and against the possession of the tenant becoming

adverse. Furthermore, the doctrine of tenant estoppel, which

continues to operate even after the termination of the tenancy,

debars a tenant who had been let into possession by a landlord,

RFA 566/2016 Page 47 of 71

from disputing the latter’s title or pleading adverse possession,

without first openly and actually surrendering possession of

the tenanted premises and restoring them to the landlord.

47. A tenant who upon determination of the tenancy does not

deliver up possession to the landlord as required by Section

108(q), cannot be heard to say that he is not a tenant—be he

one at sufferance or be he one from month-to-month.

Therefore, unless the landlord is actually put into possession,

the premises remain under a tenancy, which unless assented to

by the landlord, has the character of one at sufferance.

48. Thus, a tenant at sufferance is one who wrongfully

continues in possession after the extinction of a lawful title and

that a tenancy at sufferance is merely a legal fiction or device

to avoid continuance in possession from operating as a

trespass. A tenant remaining in possession of the property after

determination of the lease does not become a trespasser, but

continues as a tenant at sufferance till possession is restored to

the landlord. The possession of an erstwhile tenant is juridical

and he is a protected from dispossession otherwise than in due

course of law. Although, he is a tenant, but being one at

sufferance as aforesaid, no rent can be paid since, if rent is

accepted by the landlord he will be deemed to have consented

and a tenancy from month-to-month will come into existence.

Instead of rent, the tenant at sufferance and by his mere

continuance in possession is deemed to acknowledge both the

landlord’s title and his (tenant’s) liability to pay mesne profits

for the use and occupation of the property.

49. To sum up the legal position or status of a lessee whose

lease has expired and whose continuance is not assented to by

the landlord, is that of a tenant at sufferance. If, however, the

holding over has been assented to in any manner, then it

becomes that of a tenant from month -to-month.

Similar, i.e. from month-to-month, is the status of a lessee who

comes into possession tinder a lease for a period exceeding one

year but unregistered. He holds it not as a lessee for a fixed

term, but as one from month-to-month or year-to-year

depending on the purpose of the lease. If upon a tenant from

month-to-month (or year-to-year) and in either of the aforesaid

two contingencies, a notice to quit is served, then on the expiry

of the period, his status becomes of a tenant at sufferance.

RFA 566/2016 Page 48 of 71

Waiver of that notice, or assent in any form to continuation

restores to him his status as a tenant from month-to-month, but

capable, of once again being terminated with the expiry of any

ensuing tenancy month.

xxx xxx xxx”

(Emphasis Supplied)

74. Further, reference may also be made to the decision of the Supreme

Court in the case of Bijay Kumar Manish Kumar HUF Versus Ashwin

Bhanulal Desai, (2024) 8 SCC 668, wherein, it has been held that in any of

the situations of termination of lease deed, be it by way of determination,

termination, forfeiture, or expiration, the mesne profits would be payable as

the rights of the lessee/tenant stand extinguished or in certain cases

metamorphosed into weaker iteration of their former selves. The relevant

excerpts of the said judgment read as under:

“xxx xxx xxx

29. While the abovestated position is generally accepted, it is

also within the bounds of law, that a tenant who once entered

the property in question lawfully, continues in possession after

his right to do so stands extinguished, is liable to compensate

the landlord for such time period after the right of occupancy

expires. In this regard, we may refer to Indian Oil Corpn.

Ltd. v. Sudera Realty (P) Ltd. [Indian Oil Corpn. Ltd. v. Sudera

Realty (P) Ltd., (2023) 16 SCC 704 : 2022 SCC OnLine SC

1161] , wherein this Court in SCC para 81 observed as under:

81. A tenant continuing in possession after the expiry

of the lease may be treated as a tenant at sufferance, which

status is a shade higher than that of a mere trespasser, as in

the case of a tenant continuing after the expiry of the lease,

his original entry was lawful. But a tenant at sufferance is

not a tenant by holding over. While a tenant at sufferance

cannot be forcibly dispossessed, that does not detract from the

possession of the erstwhile tenant turning unlawful on the

expiry of the lease. Thus, the appellant while continuing in

RFA 566/2016 Page 49 of 71

possession after the expiry of the lease became liable to pay

mesne profits.”

30. It is to be noted that the Court in Sudera Realty [Indian Oil

Corpn. Ltd. v. Sudera Realty (P) Ltd., (2023) 16 SCC 704 :

2022 SCC OnLine SC 1161] observed that mesne profits

become payable on continuation of possession after “expiry” of

lease. In our considered view, the effect of the words

“determination”, “expiry”, “forfeiture” and “termination”

would, subject to the facts applicable, be similar i.e. when any

of these three words are applied to a lease, henceforth, the

rights of the lessee/tenant stand extinguished or in certain

cases metamorphosed into weaker iteration of their former

selves. Illustratively, Burton’s Legal Thesaurus, 3rd Edn.

suggests the following words as being similar to “expire” —

cease, come to an end; “determine” is similar to — come to a

conclusion, bring to an end; “forfeiture” is similar to —

deprivation/destruction of a right, divestiture of property; and

“terminate” is similar to — bring to an end, cease, conclude.

Therefore, in any of these situations, mesne profits would be

payable.

xxx xxx xxx”

(Emphasis Supplied)

75. Thus, under the established legal framework, when a tenant fails to

handover the vacant and peaceful possession of the subject premises to the

landlord, the said tenant bears clear liability to pay mesne profits for the

period of possession after the termination of such lease.

76. Considering the foregoing discussion, this Court is of the view that

there is no infirmity with the decision of the Trial Court in the impugned

judgment to grant mesne profits to the respondent. Therefore, no

interference by this Court is warranted to the impugned judgment and decree

to this effect, and the challenge of the appellant to this effect, is thus,

rejected.

RFA 566/2016 Page 50 of 71

The Mesne Profits/Arrears Of Rent Were Duly Awarded:

77. It is the case of the appellant that the Trial Court has overlooked the

difference between mesne profits and arrears of rent as is borne from Order

XX Rule 12 of the CPC, and has failed to consider that the case of the

respondent is based on mutually destructive pleas. Clause 16 of the lease

deed dated 02

December, 2003, provides that the respondent would be

entitled to mesne profits at the rate of Rs. 2,000/- per day for the period of

overuse of the subject premises in case of no extension of the term of lease.

However, the respondent had sought mesne profits at Rs. 2,000/- along with

loss of rent.

78. The appellant contends that the awarding of the same is contrary to

the lease deed between the parties and it would amount to rewriting of the

terms agreed. Thus, the by way of the impugned judgment the Trial Court

has rewritten the terms of the contract, which is wholly perverse.

79. Per contra, it is the case of the respondent that Order XX Rule 12 of

the CPC does not bar a suit for arrears of rent as well as for mesne profits,

which are routinely granted by Courts. Sub sections of Order XX Rule 12 of

the CPC provide for both mesne profits and rent, and there is no mention of

‘or’ between sub clause (b) and (ba) contained therein. The direction of

enquiry for rent and mesne profits provided in sub clause (b) and (ba) of

Order XX Rule 12 of the CPC is optional as the same is proceeded by ‘or’.

80. In this regard, it is pertinent to refer to Order XX Rule 12 of the CPC,

which reads as under:

“xxx xxx xxx

12. Decree for possession and mesne profits.—(1) Where a suit

is for the recovery of possession of immovable property and for

rent or mesne profits, the Court may pass a decree—

RFA 566/2016 Page 51 of 71

(a) for the possession of the property;

[(b) for the rents which have accrued on the property

during the period prior to the institution of the suit or

directing an inquiry as to such rent;

(ba) for the mesne profits or directing an inquiry as to

such mesne profits;]

institution of the suit until—

(i) the delivery of possession to the decree-holder,

(ii) the relinquishment of possession by the judgment-

debtor with notice to the decree-holder through the

Court, or

(iii) the expiration of three years from the date of the

decree, whichever event first occurs.

(2) Where an inquiry is directed under clause (b) or clause

(c), a final decree in respect of the rent or mesne

profits shall be passed in accordance with the result of

such inquiry.

xxx xxx xxx”

(Emphasis Supplied)

81. It is significant to note that the Trial Court has only granted mesne

profits/damages based on its own independent calculations on the basis of

certified copies of the lease deeds adduced by the respondent for the

respective periods from the year 2006 till 2010.

82. The Trial Court while awarding damages/mesne profits, has merely

ensured that while calculating the amount for damages/mesne profits, the

said amount does not exceed what has been sought by the respondent, i.e.,

Rs. 2,000/- per day along with the monthly rent of the subject premises, i.e.,

Rs. 20,125/-, which computes to be Rs. 80,125/-. It has rightly been held by

the Trial Court that no relief can be granted for more than what has been

sought.

RFA 566/2016 Page 52 of 71

83. In this regard, it is important to note Section 2 (12) of the CPC, which

provides the definition of mesne profits, and reads as under:

“xxx xxx xxx

(12) “mesne profits” of property means those profits which the

person in wrongful possession of such property actually

received or might with ordinary diligence have received

therefrom, together with interest on such profits, but shall not

include profits due to improvements made by the person in

wrongful possession;

xxx xxx xxx”

(Emphasis Supplied)

84. The above provision has been interpreted in various judgments that

ordinarily the mesne profits which a landlord is entitled against a tenant who

continues to stay in the tenanted premises after the termination of the

tenancy, is the amount which the premises can fetch if let out on rent during

the period of its illegal occupation by the tenant.

85. In this regard, this Court in the case of M/s. M.C. Agrawal Huf

Versus M/s. Sahara India & Ors., 2011 SCC OnLine Del 3715, has held

that when damages due to breach of contract can be proven, a Clause

awarding liquidated damages does not apply. Furthermore, in the case of

mesne profits, the rent which could have been earned during the period of

illegal occupation, can easily be proved through leading evidence as regards

the rent of similar premises within the locality. Thereafter, considering the

same, Courts award mesne profits to the landlord. The relevant excerpts

from the said judgment, read as under:

“xxx xxx xxx

4. The entitlement of a landlord to claim mesne profits from a

tenant who is in illegal possession of the premises after the

tenancy is terminated, is governed by Section 2(12) of Civil

RFA 566/2016 Page 53 of 71

Procedure Code, 1908 (CPC) and which defies mesne profits as

under:

“Section 2(12) “mesne profits” of property means

those profits which the person in wrongful possession of

such property actually received or might with ordinary

diligence have received therefrom, together with interest on

such profits, but shall not include profits due to

improvements made by the person in wrongful possession.”

5. The above provision has been interpreted in various

judgments that ordinarily the mesne profits which a landlord is

entitled against a tenant who continues to stay in the tenanted

premises after the termination of the tenancy is the amount

which the premises can fetch if let out on rent during the

period of its illegal occupation by the tenant.

6. A clause in a lease deed that if a tenant stays in the premises

after the expiry of the lease period or termination of the tenancy,

then, the penalty/damages at double the market rate are payable

would be ex facie violative of provision of Section 74 of

the Contract Act, 1872 being a clause interrorem. Right from

the Constitution Bench decision of the Supreme Court in the

case of Fateh Chand v. Balkishan Das, 1963 SCC OnLine SC

49: AIR 1963 SC 1405 it has been held that where on account

of breach of contract damages can be proved, then, there

cannot be any validity of a clause which gives liquidated

damages. What is the rent which the premises can fetch during

the period of the illegal occupation by the erstwhile tenant is a

fact which can be easily proved in a suit for possession and

mesne profits against the tenants by leading evidence with

respect to rents of similar premises within the locality. The

Court, on considering such evidence, with respect to rent of

similar premises thereafter awards mesne profits to the

landlord. It is only in cases where the damages/mesne profits

cannot be proved in a court of law, and one of which contract

was the subject matter of the decision of the Supreme Court in

the case of O.N.G.C. v. Saw Pipes Ltd., (2003) 5 SCC 705, then,

in such cases liquidated damages as fixed by the contract would

become payable. The Supreme Court in the case

of O.N.G.C. (supra) has referred to a ……………

xxx xxx xxx”

(Emphasis Supplied)

RFA 566/2016 Page 54 of 71

86. Therefore, in the present case, Clause 16 of the lease deed dated 02

December, 2003, cannot be construed as a bar to recovering mesne profits.

The Trial Court has computed the mesne profits based on the rental value of

other similar premises located in the same building as the subject premises.

The respondent had placed on record certified copies of lease deeds of

premises situated in the same building as the subject premises, which have

been considered by the Trial Court as evidence to calculate the mesne

profits.

87. The appellant has also averred that undue reliance has been put on the

certified copies of the lease deeds produced by the respondent, which have

not been proved in accordance with the law. The contents of a document

remain hearsay, unless actual author is cross examined.

88. It is also the case of the appellant that the Trial Court has

mechanically relied upon the lease deeds produced by the respondents for

the quantum of mesne profits, without carrying out the exercise of

segregation as to which of the lease pertained to furnished or unfurnished

premises.

89. Therefore, another question arising before this Court is that whether

the Trial Court has rightly placed reliance on the certified copies of lease

deeds of premises in the same building as the subject premises, submitted by

the respondent.

90. In this regard, the Supreme Court, in the case of Appaiya Versus

Andimuthu Alias Thangapandi and Others, (2024) 19 SCC 602, has held

that upon a conjoint reading of Section 65(e), 74, 74 (2), 77, 79, 57 and 57

(5) of the Evidence Act, the certified copy of a registered sale deed is

RFA 566/2016 Page 55 of 71

admissible in evidence for the purpose of proving the contents of the said

original document. The relevant excerpts of the said decision, are as follows:

“xxx xxx xxx

32. Having regard to all the aforesaid circumstances and in the

light of the various provisions of the Evidence Act mentioned

hereinbefore we will firstly consider the question whether the

appellant-plaintiff had succeeded in proving the contents of Ext.

A-1. Going by Section 65(e) when the original of a document is

a public document within the meaning of Section 74, secondary

evidence relating its original viz. as to its existence, condition

or contents may be given by producing its certified copy. Ext.

A-1, indisputably is the certified copy of Sale Deed No.

1209/1928 dated 27-8-1928 of SRO, Andipatti. In terms of

Section 74(2) of the Evidence Act, its original falls within the

definition of public document and there is no case that it is not

certified in the manner provided under the Evidence Act. As

noticed hereinbefore, the sole objection is that what was

produced as Ext. A-1 is only a certified copy of the sale deed

and its original was not produced in evidence. The hollowness

and unsustainability of the said objection would be revealed on

application of the relevant provisions under the Evidence Act

and the Registration Act, 1908. It is in this regard that Sections

77 and 79 of the Evidence Act, as extracted earlier, assume

relevance. Section 77 provides for the production of certified

copy of a public document as secondary evidence in proof of

contents of its original. Section 79 is the provision for

presumption as to the genuineness of certified copies provided

the existence of a law declaring certified copy of a document of

such nature to be admissible as evidence. When that be the

position under the aforesaid provisions, taking note of the fact

that the document in question is a registered sale deed, falling

within the definition of a public document, the question is

whether there exists any law declaring such certified copy of a

document as admissible in evidence for the purpose of proving

the contents of its original document. Sub-section (5) of

Section 57 of the Registration Act is the relevant provision that

provides that certified copy given under Section 57 of the

Registration Act shall be admissible for the purpose of proving

the contents of its original document. In this context it is to be

noted that certified copy issued thereunder is not a copy of the

RFA 566/2016 Page 56 of 71

original document, but is a copy of the registration entry which

is itself a copy of the original and is a public document under

Section 74(2) of the Evidence Act and sub-section (5) thereof,

makes it admissible in evidence for proving the contents of its

original. There is no case that foundation for letting in

secondary evidence was not laid and as noted earlier, both the

trial court and the first appellate court found it admissible in

evidence. Thus, the cumulative effect of the aforementioned

sections of the Evidence Act and Section 57(5) of the

Registration Act would make the certified copy of Sale Deed

No. 1209/1928 dated 27-8-1928 of SRO, Andipatti, produced as

Ext. A-1 admissible in evidence for the purpose of proving the

contents of the said original document. When this be the

position in the light of the specific provisions referred

hereinbefore under the Evidence Act and the Registration Act,

we have no hesitation to hold that the finding of the High Court

that the certified copy of Ext. A-1 owing to the failure in

production of the original and proving through an independent

witness is inadmissible in evidence, is legally unsustainable. In

the other words, the acceptance of the admissibility of Ext. A-1

found in favour of the appellant-plaintiff by the trial court and

confirmed by the first appellate court was perfectly in tune with

the provisions referred hereinbefore and the High Court had

committed an error in reversing the finding regarding the

admissibility of Ext. A-1.

xxx xxx xxx”

(Emphasis Supplied)

91. Considering the aforesaid judgment, the sale deeds and lease deeds

pertain to similar aspects of law, and therefore, the irrefutable inference is

that the certified copies of the lease deeds produced before the Courts can be

used and read into evidence.

92. The certified copies of registered lease deeds are public documents

within the meaning of Section 74 of Evidence Act, and are admissible by

virtue of Section 65(e) and (f) and Section 77 of the Evidence Act. Such

certified copies can be produced to prove the contents of the originals

RFA 566/2016 Page 57 of 71

without the necessity of separately proving execution by calling the

executants. Furthermore, PW-2, an official of the office of the Sub-Registrar

has deposed that she has compared the certified copies with the original

registers maintained in that office and found them to correspond.

93. Therefore, the Trial Court has rightly relied upon the certified copies

of the lease deeds as submitted by the respondent for the purpose of

computation of mesne profits.

94. Further, as regards the issue regarding the submission of lease deeds

being not of similarly situated premises as the subject premises, reliance is

placed on the decision of this Court in the case of Hindustan Motors Ltd.

Versus Seven Seas Leasing Ltd., 2018 SCC OnLine Del 11391, wherein, it

has been held that some amount of honest guesswork is always involved in

the calculation of mesne profits and rent of similar premises has to be taken

into consideration for the said calculation. An interest of 9% p.a., as it is in

the present case, was also upheld as reasonable. The relevant portions of the

said judgment, read as under:

“xxx xxx xxx

5. A reading of the aforesaid paragraphs show that the trial

court has relied upon the evidence led by PW 2 with respect to

the premises in the same area and on the basis of the rent paid

by the tenant M/s. Tirupati Services Ltd., the mesne profits

have been calculated. I may note that some amount of honest

guess work is always involved in calculation of mesne profits

and therefore once rent is taken of similar premises situated in

the same area, I do not find any illegality in the impugned

judgment awarding mesne profits at Rs 75 per square feet, per

month for the ground floor and Rs 65 per square feet, per

month for the mezzanine floor.

6. The definition of mesne profits, contained in

Section 2(12) CPC, provides that mesne profits include the

interest payable on mesne profits. Therefore, the trial court has

RFA 566/2016 Page 58 of 71

committed no illegality in awarding reasonable rate of interest

of 9% per annum on the decretal amount

towards mesne profits.

7. I fail to understand the attitude of tenants who despite

termination of the tenancy, insist on continuing possession of the

tenanted premises, and thereafter, come shouting to courts

seeking reduction of mense profits, whereas, if the occupation of

premises were not convenient and the mesne profits were not to

be paid, then why would the tenants not immediately vacate, as

per time period provided in law, on receiving the notice of

termination of tenancy. There is no inherent right in citizens of

this country, who are tenants, to violate the law by overstaying

in the premises where the tenancy stands terminated.

xxx xxx xxx”

(Empasis Supplied)

95. In like manner, reference may also be made to the decision in the case

of Food Corporation of India Versus Sarvshri Bal Karan Singh & Ors.,

2011 SCC OnLine Del 5206, wherein, this Court, while further enumerating

the principle that some guesswork is involved qua computation of mesne

profits, has held that a civil case is decided on preponderance of

probabilities and merely because two views are possible, unless the view

taken by the Trial Court is perverse or causes grave injustice, the Appellate

Court cannot interfere. The relevant excerpt of the said judgment reads as

under:

“xxx xxx xxx

6. I may note that there is no challenge to these lease deeds, Ex.

PW 2/1 and Ex. PW 4/1 on the ground that these lease deeds are

bogus or fabricated documents or that the same were not acted

upon by the concerned parties. It is also relevant to note that

some amount of honest guesswork is always entailed when

mesne profits have to be calculated and which mesne profits

are basically rents of similar premises in the vicinity/area. The

trial court, therefore considering the two lease deeds, which

were for the same area of Nehru Place granted the mesne profits

RFA 566/2016 Page 59 of 71

at Rs 40 per square feet per month. A civil case is decided on

balance of probabilities, and merely because two views are

possible, unless the view taken by the trial court is perverse or

causes grave injustice, this Court will not interfere in appeal. I

do not find any perversity or illegality causing injustice in the

impugned judgment.

xxx xxx xxx”

(Emphasis Supplied)

96. Therefore, the Trial Court in computing the mesne profits based on

the lease deeds of similar premises has taken a valid view. It is to be noted

that the premises of which the certified copies of lease deeds were put forth

by the respondent, were located in the same building as the subject premises,

and therefore have a direct connection and similarity with the subject

premises. Furthermore, it is next to impossible to draw parallels and

comparisons to an exactly identical premises, and therefore, a perfect

comparison becomes extremely painstaking, if not impossible. The Court

has to reason its way through such comparative computation of mesne

profits.

97. Considering the said practical limitation, the Courts have laid down

that some reasonable guesswork is permissible while computing the mesne

profits, as long as it is based on evidence. In terms of the law as laid down in

a catena of judgments, it is evident that assessment of mesne profits is

inherently an exercise in estimation rather than one demanding proof to a

mathematical certainty.

98. In the present case, the Trial Court awarded actual comparable figure

of Rs. 51,000/- per month for the year 2006. Further, for the years 2007 and

2008, the rentals of the comparable properties would indicate approximately

Rs. 89,320/- and 97,750/-, respectively. However, the said amount was not

RFA 566/2016 Page 60 of 71

applied by the Trial Court, which instead capped the award at a lower

amount of Rs. 80,125/- per month, considering Clause 16 of the lease deed.

For the years 2009 and 2010, the Trial Court awarded an amount of Rs

71,875/-, relying upon certified copy of a lease deed for the year 2009, by

holding that the rate of rent in the month of January 2010, may be similar as

compared to the year 2009.

99. It is therefore noted that in the present case, the Trial Court has

relied upon the certified copies of the lease deeds of premises located in the

same building as that of the subject premises, and there is no perversity with

the said approach.

100. It is also important to note that no evidence has been led by the

appellant before the Trial Court to challenge the computation of prevailing

market rate claimed by the respondent for the purpose of grant of mesne

profits. The appellant itself failed its onus to disprove the market rate put

forth by the respondent before the Trial Court, and therefore, it cannot be

allowed to challenge the same at this stage. The appellant led no evidence

with regard to what a fair, unfurnished-equivalent rent for the relevant

period would have been.

101. Furthermore, it is to be noted that the Trial Court has awarded for

each year, the lower of the rate between the contractually stipulated rate and

the rate independently indicated by the comparable rentals. The Trial Court

assessed the mesne profits year-wise on comparable rentals, subject to

Clause 16 of the lease deed as an upper limit. Therefore, the contention that

the sum awarded by the Trial Court amounted to a penalty or exemplary

damages, is without any merits and liable to be rejected.

RFA 566/2016 Page 61 of 71

102. Therefore, no interference is warranted by this Court upon the said

challenge, and therefore, the said challenge fails.

The Interest Is Validly Awarded By The Trial Court:

103. The appellant has raised the ground that Trial Court has also erred in

awarding interest @ 9 % p.a., which is excessive in the facts and

circumstances of the present case. At best, only 6 % may be awarded as

there are genuine inter se disputes between the parties. Further, on arrears of

rent, the respondents cannot be better off than how the rent would have

earned interest, if kept in a bank account.

104. In this regard, it is significant to refer to Section 34 of the CPC,

which pertains to the grant of interest. The Section reads as follows:

“xxx xxx xxx

34. Interest.

(1) Where and in so far as a decree is for the payment of money,

the Court may, in the decree, order interest at such rate as the

Court deems reasonable to be paid on the principal sum

adjudged, from the date of the suit to the date of the decree, in

addition to any interest adjudged on such principal sum for any

period prior to the institution of the suit, [with further interest at

such rate not exceeding six per cent, per annum, as the Court

deems reasonable on such principal sum], from the date of the

decree to the date of payment, or to such earlier date as the

Court thinks fit.”

xxx xxx xxx”

105. A bare reading of Section 34 of the CPC indicates the power of

Courts to award interest and such power is a discretionary exercise. In this

regard, it is imperative to note the decision of the Apex Court in the case of

Tomorrowland Limited Versus Housing and Urban Development

Corporation Limited and Another, (2025) 4 SCC 19, whereby, it has been

held that the power of awarding interest under Section 34 of the CPC is a

RFA 566/2016 Page 62 of 71

discretionary exercise dehors of the contract between the parties. This

discretion must reflect a balanced approach, grounded in reason, and guided

by the objective of equity. The relevant paragraphs of the said decision, read

as under:

“xxx xxx xxx

48. It is trite law that under Section 34 CPC, the award of

interest is a discretionary exercise steeped in equitable

considerations. The law in this regard has been succinctly

discussed in the Constitution Bench judgment of this Court

in Central Bank of India v. Ravindra [Central Bank of

India v. Ravindra, (2002) 1 SCC 367 : (2001) 107 Comp Cas

416] , which states : (SCC p. 404, para 55)

“55. … (8) Award of interest pendente lite or post-

decree is discretionary with the Court as it is essentially

governed by Section 34 CPC dehors the contract between the

parties. In a given case if the court finds that in the principal

sum adjudged on the date of the suit, the component of

interest is disproportionate with the component of the

principal sum actually advanced, the court may exercise its

discretion in awarding interest pendente lite and post-decree

interest at a lower rate or may even decline to award such

interest. The discretion shall be exercised fairly, judiciously

and for not arbitrary or fanciful reasons.”

49. There is no gainsaying that the power to award interest

ought to be exercised judiciously, aligning with equitable

considerations and also ensuring neither undue enrichment

nor unfair deprivation. Courts are duty-bound to assess the

facts and circumstances of each case, applying the principles of

fairness and justice. This discretion must reflect a balanced

approach, grounded in reason, and guided by the overarching

objective of equity.

xxx xxx xxx

57. We are conscious of the fact that as a general principle, in

commercial disputes, the award of interest pendente lite or

post-decree is typically granted as a matter of course. This is

because such interest serves to compensate the aggrieved party

for the time value of money that was due but withheld during

RFA 566/2016 Page 63 of 71

the legal process. It reflects an established norm aimed at

ensuring fairness and equity in commercial transactions.

xxx xxx xxx”

(Emphasis Supplied)

106. Further, reference may also be made to the decision of a Division

Bench of this Court in the case of J.K. Lakshmi Cement Limited Versus

Master Avishkar Prakash and Others, 2024 SCC OnLine Del 8335,

whereby, this Court was of the view that the award of 9% interest on the

mesne profits awarded to the respondent, is reasonable. The relevant

excerpts read as under:

“xxx xxx xxx

34. Thus, the finding with respect to the prevailing rate, based on

the lease agreements presented during the trial, is also a finding

of fact and, therefore, does not raise any substantial question of

law. Moreover, the finding of fact is not based on an error or

misreading of law so as to give rise to any question of law.

35. Furthermore, so far as the argument with respect to the

award of 9% interest p.a. on the recoverable amount is

concerned, the same also deserves to be rejected. In the face of

the settled proposition of law that the interest forms an integral

part of the mesne profits, it could be observed that once the

court awards mesne profits, the interest accruing thereon has

to be allowed as a necessary corollary thereof in the

computation of the mesne profits itself. A tenant cannot be

permitted to urge that mesne profits, which in fact, ought to

have been paid years ago, should not bear any interest. In this

regard, reference may be made to the ratio laid down in paras

64 and 65 of Consep India (P) Ltd. v. CEPCO Industries (P)

Ltd. wherein, this Court, after examining the decision of the

Supreme Court in State Bank of Bikaner and Jaipur v. I.S.

Ratta observed as under : (Consep India (P) Ltd. case, SCC

OnLine Del paras 64 and 65)

“64. As regards the claim for interest on mesne profits,

in I.S. Ratta case, relying upon the judgment of the Supreme

Court in Mahant Narayana Dasjee Varuv. Board of

RFA 566/2016 Page 64 of 71

Trustees, the Tirumalai Tirupathi Devasthanam, it was held

that interest is an integral part of the mesne profits and,

therefore, the same has to be allowed in the computation of

mesne profits itself. Paras 16 to 18 of the said judgment are

apposite and are reproduced hereunder : (I.S. Ratta case,

SCC OnLine Del paras 17-20)

xxx xxx xxx

18. The aforesaid issue is no longer res integra that

interest on mesne profits could be paid. The next

question, therefore, would be as to what would be the

appropriate rate of interest. The learned trial court has

awarded 16.5% p.a., interest on the rent. In the aforesaid

case decided by the Supreme Court 6% interest was held

to be a reasonable interest. In the said case it was held

that : (Mahant Narayana Dasjee Varu case, SCC OnLine

SC para 26)

“In any event, if the trial court in its discretion awarded

interest at 6 per cent, and that is admittedly not per se an

unreasonable rate, there was no compelling equity in the

Mahant to justify interference with that discretion.”

19. Considering the facts and circumstances of the case

we consider that direction to pay interest @ 16.5% p.a was

on the higher side. We, in the facts and circumstances of

the case, deem it proper to fix the rate of interest payable

by the appellant to the respondents towards the arrears of

mesne profits from the date of decree till the date of

possession at 12% p.a. ordered accordingly. The amount

paid in excess shall be returned by the respondents to the

appellant, failing which security furnished for restitution

shall be enforced and the amount which is lying with the

trial court amounting to Rs 40 lakhs and TDS amount of

Rs 5 lakhs shall be returned to the appellant.

20. The appeal stands disposed of in terms of the aforesaid

order.’

65. In the facts and circumstances, the learned trial court, in

my view, has rightly held that the respondent is entitled to

mesne profits at the rate of Rs 50 per sq ft per month i.e. Rs

45,000 per month with effect from the month of November

2005 till the vacation of the tenanted premises. As held by the

RFA 566/2016 Page 65 of 71

Division Bench in the RFA No. 20 of 2016 p. 41 of 42 I.S.

Ratta case, interest is liable to be awarded on mesne profits.

The only question, therefore, which remains to be considered is

what would be the appropriate rate of interest on the mesne

profits awarded by the learned trial court. The learned trial

court has awarded 12% p.a. interest on the rent. Considering

the facts and circumstances of the case, it is deemed

appropriate to fix the rate of interest payable by the appellant

to the respondent towards the arrears of rent and mesne profits

@ 9% p.a. throughout.”

36. In the present case, the trial court, in its discretion, has

awarded simple interest of 9% p.a. towards the arrears of

mesne profits. In the facts of the present case, the grant of

interest at the rate of 9% p.a. can neither be termed as arbitrary

nor exorbitant. Thus, this Court does not find any reason to

interfere with this discretion of the trial court.

xxx xxx xxx”

(Emphasis Supplied)

107. It would also be instructive to note the decision of this Court in the

case of M/s. P.E.C. Limited. Versus Sh. Samir Prakash & Another, 2011

SCC OnLine Del 2847, whereby, this Court has held that the Appellate

Court cannot interfere with the judgment and decree of the Trial Court

merely because two views are possible and one acceptable view has been

taken by the Trial Court. Furthermore, the Court also upheld grant of interest

on mesne profits. The relevant portions of the said judgment, read as under:

“xxx xxx xxx

7. On the aspect that no rate of interest should be awarded on

mesne profits, the argument is without any basis. This issue

was recently dealt with by me while deciding a batch of RFA

Nos. 209/2011 to 213/2011 decided on 18-5-2011 and para 2 of

which judgment reads as under:

“2. So far as the relief claimed by the appellant that no

interest should at all be payable, I find that the prayer is

misconceived because to the extent monies/amounts are not

RFA 566/2016 Page 66 of 71

paid when due to a due person, the same results in a loss to

the person entitled to such monies towards interest which

would have been earned if the monies would have been paid

on time to the person. Looking at the aspect in another

manner since the monies remained in the pocket of the

appellant it would have earned interest on these amounts

and thus it is logical that they return such benefit to the

respondent/landlord. That interest ought to be paid on the

arrears of rent is also now statutorily recognized vide Section

26 of the Delhi Rent Control Act, 1958 wherein, the rate of

interest of 15% per annum is payable on the arrears of rent.

The Supreme Court has also been granting interest on the

arrears of rent/mesne profits which are decreed and one

such judgment is the decision in the case of Indian Oil

Corporation v. Saroj Baweja, (2005) 12 SCC 298.

Accordingly, considering the provision of Section 26 of the

Delhi Rent Control Act and the decision in the case of Indian

Oil Corporation (supra), I find that the trial court was

completely justified in granting interest on that portion of

the rent which was not paid on the respective due dates.”

Accordingly, there is no merit in the argument as urged on

behalf of the counsel for the tenant company that no mesne

profits should be awarded on the arrears of mesne profits.

8. As an appellate court, I can interfere with the judgment and

decree of the trial court only if the view as taken by the trial

court is illegal or perverse. Merely because two views are

possible and one acceptable view is taken by the trial court and

which view itself is based upon balancing the entire evidence,

led by both the parties in the case, would not mean that this

Court has power to interfere in appeal.

xxx xxx xxx”

(Emphasis Supplied)

108. In view of the aforementioned, the Trial Court was well within its

power and discretion to award the interest @ 9 % p.a. on the mesne

profits/damages. The view taken by the Trial Court does not appear to be

perverse or illegal and therefore does not warrant intervention by this Court.

RFA 566/2016 Page 67 of 71

The challenge of the appellant on the rate of interest is, therefore, not

tenable.

CM APPL. 31913/2022 (For Bringing On Record Additional Documents)

109. The appellant has sought to place on record two documents through

CM APPL. 31913/2022, viz. legal notice dated 28

March, 2006, and letter

dated 09

March, 2006, of the appellant to the Estate Manager of the

building where the subject premises is situated.

110. It is put forth by the appellant that the notice dated 28

March, 2006,

stands cross referenced in most of the documents on the Trial Court Record,

including, legal notice dated 17

April, 2006, and the contents of which are

also consistent with the notice dated 17

April, 2006.

111. The appellant has contended that the question to be considered is not

the relevancy of the issue at hand or whether the appellant had the

opportunity for adducing such evidence at an earlier stage or not, but it

depends on whether or not the Appellate Court requires such evidence

sought to be adduced to enable it to pronounce judgment or for any other

substantial cause.

112. On the aspect of additional evidence, reference may be made to the

decision of the Supreme Court in the case of Gobind Singh and Others

Versus Union of India and Others, (2026) 4 SCC 130, where it has been

held that additional evidence can only be allowed at the stage of first appeal

in three circumstances, viz. (i) where court which passed the decree has

refused to admit such evidence, (ii) where party seeking to adduce such

evidence establishes that, notwithstanding the exercise of due diligence, it

was not within their knowledge or could not have been produced at the time

when the decree was passed, (iii) the appellate court itself requires it to

RFA 566/2016 Page 68 of 71

pronounce judgment or any other substantial cause. The relevant portions of

the said judgment read as under:

“xxx xxx xxx

20. Rule 27, being couched in negative terms, makes it

abundantly clear that parties to an appeal are not entitled to

adduce additional evidence, whether oral or documentary, save

and except in the circumstances expressly enumerated therein.

The provision contemplates only three eventualities in which

additional evidence may be permitted: first, where the court

which passed the decree has refused to admit evidence which

ought to have been admitted; second, where the party seeking

to adduce such evidence establishes that, notwithstanding the

exercise of due diligence, the evidence was not within its

knowledge or could not have been produced at the time when

the decree under appeal was passed; and third, where the

appellate court itself requires any document to be produced or

any witness to be examined in order to enable it to pronounce

judgment or for any other substantial cause.

21. Accordingly, it is only upon satisfaction of any of the

aforesaid three contingencies that an application under Order

41 Rule 27 CPC can be entertained. Sub-rule (2) of the said

provision further mandates that where the appellate court

forms an opinion that additional evidence is required to be

admitted, it must record the reasons for such admission. While

elucidating the scope and object of Order 41 Rule 27CPC, this

Court, in Union of India v. Ibrahim Uddin [Union of

India v. Ibrahim Uddin, (2012) 8 SCC 148 : (2012) 4 SCC (Civ)

362], undertook an exhaustive analysis of the provision. The

relevant extract is reproduced hereinafter: (SCC pp. 167-68,

paras 36, 38 & 41)

“36. The general principle is that the appellate court

should not travel outside the record of the lower court and

cannot take any evidence in appeal. However, as an

exception, Order 41 Rule 27 CPC enables the appellate court

to take additional evidence in exceptional circumstances.

The appellate court may permit additional evidence only and

only if the conditions laid down in this Rule are found to

exist. The parties are not entitled, as of right, to the

admission of such evidence. Thus, the provision does not

RFA 566/2016 Page 69 of 71

apply, when on the basis of the evidence on record, the

appellate court can pronounce a satisfactory judgment. The

matter is entireBaly within the discretion of the court and is to

be used sparingly. Such a discretion is only a judicial

discretion circumscribed by the limitation specified in the

Rule itself. …

* * *

38. Under Order 41 Rule 27CPC, the appellate court has

the power to allow a document to be produced and a witness

to be examined. But the requirement of the said court must

be limited to those cases where it found it necessary to

obtain such evidence for enabling it to pronounce judgment.

This provision does not entitle the appellate court to let in

fresh evidence at the appellate stage where even without

such evidence it can pronounce judgment in a case. It does

not entitle the appellate court to let in fresh evidence only for

the purpose of pronouncing judgment in a particular way. In

other words, it is only for removing a lacuna in the evidence

that the appellate court is empowered to admit additional

evidence. …

* * *

41. The words “for any other substantial cause” must be

read with the word “requires” in the beginning of the

sentence, so that it is only where, for any other substantial

cause, the appellate court requires additional evidence, that

this Rule will apply e.g. when evidence has been taken by the

lower court so imperfectly that the appellate court cannot

pass a satisfactory judgment.”

xxx xxx xxx

23. In State of Karnataka v. K.C. Subramanya [State of

Karnataka v. K.C. Subramanya, (2014) 13 SCC 468: (2014) 5

SCC (Civ) 725], the appellants therein had moved an application

before the appellate court under Order 41 Rule 27CPC seeking

leave to produce a map of the area to establish that the disputed

land constituted a public road. This Court, while affirming the

High Court's decision [State of Karnataka v. K.C. Subramanya,

2011 SCC OnLine Kar 4754] to reject the said application, held

as follows: (SCC p. 469, paras 4-5)

RFA 566/2016 Page 70 of 71

“4. … On perusal of this provision, it is unambiguously

clear that the party can seek liberty to produce additional

evidence at the appellate stage, but the same can be

permitted only if the evidence sought to be produced could

not be produced at the stage of trial in spite of exercise of

due diligence and that the evidence could not be produced as

it was not within his knowledge and hence was fit to be

produced by the appellant before the appellate forum.

5. It is thus clear that there are conditions precedent

before allowing a party to adduce additional evidence at the

stage of appeal, which specifically incorporates conditions to

the effect that the party in spite of due diligence could not

produce the evidence and the same cannot be allowed to be

done at his leisure or sweet will.”

(emphasis supplied)

24. This Court in K.C. Subramanya [State of Karnataka v. K.C.

Subramanya, (2014) 13 SCC 468: (2014) 5 SCC (Civ) 725] thus

categorically held that unless the requirements stipulated

under Order 41 Rule 27 CPC are strictly satisfied, a party

cannot be permitted to adduce additional evidence at the

appellate stage. Such permission cannot be granted as a matter

of course, nor can additional evidence be introduced at the

whim or convenience of a litigating party.

xxx xxx xxx

26. The procedural framework under Order 41 CPC makes it

abundantly clear that an appeal is ordinarily to be decided on

the evidence adduced before the trial court. The appellate court

is not expected to embark upon a fresh fact-finding exercise or

permit production of additional evidence as a matter of routine.

Where the appellate court is satisfied that the material already

available on record is sufficient to enable it to pronounce

judgment, it is well within its jurisdiction to confine its

consideration to the evidence forming part of the record of the

courts below.

xxx xxx xxx”

(Emphasis supplied)

RFA 566/2016 Page 71 of 71

113. However, in the present case, it is not requirement of this Court to

consider the said additional documents, sought to be placed on record by the

appellant, for the purpose of adjudication of the present appeal. Furthermore,

it is also not the case of the appellant that the Trial Court has refused to

admit the said documents as evidence before itself, or that the said

documents were not within their knowledge and could not be produced

before the Trial Court. Thus, evaluating the facts against the aforesaid legal

principle, the three pre-conditions enumerated for the application of Order

XLI Rule 27 of the CPC, do not meet in the present case.

114. Accordingly, the present application is dismissed.

CONCLUSION:

115. In view of the detailed discussion hereinabove, issue nos. 05 to 09,

i.e., in respect of the respondent’s entitlement to mesne

profits/damages/arrears of rent and interest, have rightly been granted in

favour of the respondents.

116. No merit is found in the present appeal. This same is accordingly

dismissed.

MINI PUSHKARNA

(JUDGE)

SEPTEMBER 21

, 2026

C/KR/SK/AK

Reference cases

Nalakath Sainuddin Vs. Koorikadan Sulaiman

mins | 0 | 08 Jul, 2002

Description

Legal Notes

Add a Note....

U E Trade Corporation (India) Pvt LTD Vs. Dr Bhupesh Mangla

Case Background

Bench

Applied Acts & Sections

Reference cases

Nalakath Sainuddin Vs. Koorikadan Sulaiman

Description

Legal Notes

Advance Search Tool