Sh. R.S. Jaiswal and Another vs Sh. Bakshish Singh

Valmiki J Mehta, J.—This case has been on the ''Regular Board'' of this Court since 17.1.2011. Today, it is effective item No. 10. Although it is 2.50 P.M. nobody has chosen to appear for the Respondent. I have therefore after hearing the counsel for the Appellants perused the record and am proceeding to dispose of the appeal.

The facts of the case are that the Appellants/Plaintiffs filed the suit for possession and damages on 3.4.1996 against the Respondent/Defendant with respect to a portion of the premises on the ground floor of the property bearing No. 231/D-14, Sector-VIII, Rohini, Delhi. The site plan of the premises was filed with plaint and has been exhibited as Ex.PW1/1. The Appellants claimed that Defendant was a mere licencee in the premises for a period of two months without any charges and who failed to vacate the premises even after the service of notice dated 7.2.1996 and therefore the subject suit was filed. Though the Defendant originally appeared and contested the suit on the ground that he is a tenant at Rs. 1600/- per month, subsequently, on the failure of the Respondent/Defendant to deposit the charges as ordered by the Court his defence was struck of and he was proceeded exparte. I may note that the Respondent/Defendant had also filed two petitions before the Additional Rent Controller under the Delhi Rent Control Act, 1958. The first petition was for fixation of the standard rent and second was for recovery of the alleged excess rent paid. Both these petitions have been dismissed now by the orders dated 23.10.1999 and 17.11.1999 of the ARC holding that the premises are not covered under the Delhi Rent Control Act, 1958 because they are new premises for which there is an exemption for a period of ten years for application of the Rent Act.

The trial Court has dismissed the subject suit on the ground that the Appellant failed to prove the ownership of the property because only a photocopy of the original perpetual lease deed was filed which has been marked as Mark A. Quite clearly this finding of the trial Court is illegal and perverse because if the Defendant himself laid a case that he was a tenant, the ownership of the Appellants/Plaintiffs could not be disputed as per Section 116 of the Evidence Act, 1872. In any case, the Appellants entered into the witness box and proved their case and there is no evidence in rebuttal of the Respondent/Defendant and therefore there was no reason to disbelieve the testimony of the Appellants/Plaintiffs. I may note that the Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Another, . has held that merely because a document is a photocopy cannot mean that the same would not be treated as evidence and the same can be exhibited unless there is objection to the exhibition of the document by the opposite party. In the present case, there was no valid objection to the exhibition because the defence of the Defendant was struck off. In any case, as I have already stated above, the Respondent is estopped from challenging the ownership of the suit premises. So far as the issue of the rate of mesne profits is concerned, I note that the claim of the Appellants was for Rs. 2,000/- originally and then Rs. 4,000/-. Since, there is no evidence on record except the oral statement of the Plaintiffs, I find that the damages/mesne profits/charges for use and occupation of the premises should be fixed @ Rs. 1600/- per month till the date of filing of the suit (being the rate of rent admitted by the Respondent/Defendant) and thereafter at Rs. 3,000/- per month pendente lite and future till possession is handed over taking note of the fact that Court is entitled to draw a judicial presumption of increase of rent in terms of Sections 57 and 114 of the Evidence Act, 1872. This is also the ratio of the decision of a Division Bench of this Court in the case of S. Kumar v.G.R. Kathpalia 1999 RLR 114.

I also deem it fit that the Respondent should pay interest @ 6% per annum on the mesne profits for arrears of mesne profits and future mesne profits and the interest will be payable with respect to each month''s mesne profits from 30th of the month for which the mesne profits are payable.

In view of the above, the appeal is accepted. The impugned judgment and decree is set aside. The suit of the Plaintiffs for possession of the suit premises shown in the site plan Ex.PW1/1 marked in red being part of property 231/D-14, Sector-VIII, Rohini, Delhi is decreed alongwith mesne profits @ Rs. 1600/- per month till filing of the suit and thereafter @ Rs. 3,000/- per month pendente lite and future till the possession is handed over to the Appellants. The Appellants will also be entitled to interest @ 6% per annum till realisation simple for each month''s mesne profits and which interest will be payable from the end of the month for which the present profits are payable. Decree sheet be prepared. Trial Court record be sent back.