Bhagwan Kishan Gupta v. Rani Gupta

RAJIV SHAKDHER, J OCTOBER 28, 2010 yg

*IN THE HIGH COURT OF DELHI AT NEW DELHI + CS(OS) No. 2820/1998 Judgment delivered on : 28.10.2010 Shri Bhagwan Kishan Gupta ..... Plaintiff Through: Mr.Ajay Talesara, Adv. Versus SMT. RANI GUPTA & ORS. ..... Defendants Through: None CORAM: HON'BLE MR. JUSTICE RAJIV SHAKDHER 1. Whether the Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to Reporters or not ? No 3. Whether the judgment should be reported in the Digest ? No Rajiv Shakdher, J. (Oral) 1. This is a suit filed for partition, permanent injunction and recovery of damages / mesne profits. I am informed by Mr. Talesara, the learned counsel for the plaintiff, that as regards the reliefs sought in the suit with regard to the partition and permanent injunction, the same need not detain the court, as the contesting defendants herein, had instituted a parallel suit being CS(OS) 1367/1998 entitled Sh. Ram Kishan Gupta Vs. Smt. Rani Gupta & Ors., wherein this court proceeded to pass a preliminary decree vide judgment and decree dated 23.03.2006. I am also informed that the said matter was carried in an appeal by the plaintiff, which was, in the first instance, dismissed in limine by a Division Bench of this Court vide order dated 23.05.2006. Being aggrieved, the plaintiff preferred a Special Leave Petition whereby, the Supreme Court remanded the matter to the Division Bench vide order dated 27.04.2007 passed in SLP No.12350/2006. Pursuant to the order of the Supreme Court, the Division Bench passed a detailed order and dismissed the appeal of the plaintiff vide order, dated 20.12.2007. Once again, the plaintiff carried the matter in appeal to the Supreme Court. The Supreme Court by a reasoned order dated 25.02.2009 passed in Civil Appeal no.1186/2009 dismissed the appeal of the plaintiff herein. Not being satisfied, the plaintiff preferred a review petition in the Supreme Court against the aforesaid dismissal of his civil appeal. The review petition also suffered the same fate, and was thus dismissed by the Supreme Court on 20.10.2009. 2. Consequent thereto, a Single Judge of this court vide order dated 15.12.2009 passed a final decree in the aforementioned suit. I am informed by Mr. Talesara that three review petitions have been preferred against the final judgment and decree dated 15.12.2009. The review petitions filed by the plaintiff and defendant no.3 (i.e., Sh. Bal Kishan Gupta) are numbered as RA-6 & 7/2010, respectively; while the review petition filed by defendant no.6 (i.e., Sh. Gopal Krishan Gupta) is numbered as RA-69/2010. 3. In the background of the aforesaid circumstances, the only prayer which survives in the captioned suit is with regard to the damages/mesne profits, which have been sought for by the plaintiff apart from relief of partition. 3.1 It is pertinent to note, at this stage, that vide order dated 23.03.2006 after noticing the fact that a preliminary decree has passed amongst the parties herein, the court framed the following issues with respect to the only outstanding issue, that is, mesne profits :- (i) Whether the plaintiff is entitled to any mesne profits as claimed by him? OPP (ii) Reliefs 4. The parties have filed their affidavits of evidence with respect to the issues obtaining between them. 4.1 In so far as the plaintiff is concerned, he examined himself as a witness. In respect of the issue at hand, the plaintiff alluded to the following:- (i) The plaintiff testified that defendant nos.1 to 3 had deprived him of the right to use atleast one of the two kitchens existing on the ground floor, and thereby he had to incur, on account of mesne profits, an expenditure of Rs.300/- per day. In respect of the excess area occupied by defendant nos.1 & 2 on the ground floor, a compensation in the sum of Rs.2,000/- per day was sought. This was the amount that had been claimed at the stage of institution of the suit. At the stage of evidence, according to the plaintiff, the damage had escalated to approximately Rs.3,000/