- (1.) Aggrieved against the judgment and decree dated 16-3-2000 passed by the High Court of Delhi, in Regular First Appeal No. 507 of 1993 whereby the High Court has allowed the appeal by setting aside the judgment and decree passed by the District Judge (hereinafter referred to as 'the Trial Court') and dismissing the suit filed by the plaintiff/ appellant (hereinafter referred to as 'the appellant') has come up in this appeal.
(2.) Briefly stated the facts are : Appellant filed a suit seeking a decree for possession by ejectment of the defendant/ respondent (hereinafter referred to as 'the respondent') and for mesne profits/ damages from the date of institution of the suit with respect to a portion of property No. B-59/1, Naraina Industrial Area, Phase II, New Delhi, (hereinafter referred to as 'the suit property') as shown in red colour in the site plan Ex. P2. It was averred in the plaint that the Respondent had taken from the appellant one hall, three offices-cum-store room and toilets for workmen in the ground floor and two mezzanine halls on the mezzanine floor of the suit property shown in the red colour in the plan attached with the plaint. That the suit property had been taken by the respondent as a licencee in 1981 for a period of 11 months at a monthly licence fee of Rs. 4500/- and that respondent continued to remain in possession even after the expiry of the period of licence and claimed himself to be tenant of the suit property at a rent of Rs. 4,500/- per month and that appellant accepted the respondent as his tenant. It was also alleged in the plaint that respondent had made several unauthorised additions /alterations etc. which had been shown in the green colour in the plan attached with the plaint. Appellant did not claim possession in respect of unauthorised additions/alterations made by the respondent in the suit. (We were informed during the course of the arguments by the learned counsel for the parties that the appellant filed Suit No. 519 of 1994 for possession of the portion shown in the green colour in the plan attached with the plaint). That the appellant served a notice under Section 106 of the Transfer of Property Act (hereinafter referred to as 'the Act') dated 6-3-1989 terminating the tenancy of the tenanted premises w.e.f. 31-5-1989. It was mentioned in the notice that if according to the respondent the tenancy ended on any other date other than the last date of English calendar month then the respondent should treat its tenancy as terminated from the close of such a month of tenancy on the expiry of two months of the service of the notice. By the said notice, respondent was also notified that in case respondent does not comply with the said notice, respondent would be liable to pay damages/ mesne profits at the rate of Rs. 1,000/- per day which claim was without prejudice to the rights of the appellant to claim possession. That the contents of the reply to the notice were false and baseless. That the respondent did not vacate the suit property hence the suit was filed for possession. Appellant also prayed for a preliminary decree directing enquiry about the amount of damages/ mesne profits payable by the respondent in accordance with Order 20 Rule 12 of Code of Civil Procedure.
(3.) Respondent in his written statement took preliminary objection that the plaint was liable to be rejected as the appellant has not given any valuation in the plaint regarding relief of mesne profit. Another preliminary objection taken was that notice to quit served upon the respondent was bad in law as the date from which the tenancy was alleged to have been terminated had not been specified and that premises let out had not been duly identified. On merits, the respondent pleaded that the respondent was a tenant in respect of the suit property vide agreement dated 26-5-1980 which though described as a licence deed was in fact a rent note. Rate of rent of Rs. 4,500/- per month was not denied. In reply to para 2 of the plaint wherein the appellant had described the extent of accommodation let out to the respondent, respondent pleaded that the premises described in para 2 of the plaint was substantially correct. Respondent denied having made any unauthorised additions/ alternations and pleaded that the portion shown in green colour in the plan attached with the plaint alleged to have been unauthorisedly constructed by the respondent had in fact been let out as it is from the commencement of the tenancy in May 1980. It was stated that the shed in the rear and the mezzanine portion shown in the green colour in the plan attached with the plaint were in existence at the time of letting out of the premises as was clear from the rent agreement originally executed although the said portion had been scored off since the appellant did not want to mention the same as he was apprehensive of the trouble from the Municipal Corporation of Delhi. Liability to pay damages at the rate of Rs.1000/- per day was also denied.;