Bharat Heavy Electrical Ltd v. Badri Dass Abbi & Ors

RAJIV SAHAI ENDLAW, J. DECEMBER 03, 2015 "pp/gsr"

(Corrected and released on 24th December, 2015).

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 3rd December, 2015 + RFA No.137/2006 & CM No.5981/2013 (by way of cross appeal / cross objections) BHARAT HEAVY ELECTRICAL LTD. ..... Appellant Through: Mr. A.K. Roy, Adv. Versus BADRI DASS ABBI & ORS. ..... Respondents Through: Mr. Sandeep Sharma, Adv. for R-1 to 5. Mr. Sanjeev Mahajan, Adv. for R-6. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 impugns the judgment and decree dated 24th November, 2005 of the Court of Shri O.P. Gupta, Additional District Judge (ADJ), Delhi decreeing the suit No.247/2001 (Old No.4831/1991) of the respondents No.1 to 5/plaintiffs for recovery of mesne profits for use and occupation of property no.3, Panchsheel Shopping Complex, Panchsheel Colony, New Delhi jointly and severally against the appellant and the respondent no.6 National Building Construction Corporation Limited (NBCC) in the sum of Rs.19,43,040/-. 2. Notice of the appeal was issued. The respondent no.6 NBCC upon service of the notice filed CM No.5981/2006 by way of cross objections/cross appeal, notice whereof was also issued. 3. The counsel for the respondent no.6 NBCC on 28th April, 2006, in the absence of the counsel for the appellant or the counsel for the respondents no.1 to 5/plaintiffs, stated that the respondent no.6 NBCC had already paid half of the mesne profits to the decree holder and on the basis of that statement, execution in regard to further recovery of the amount was stayed. 4. Vide order dated 12th May, 2006 the cross objections preferred by the respondent no.6 NBCC were ordered to be heard along with the appeal. The appeal was admitted for hearing on 31st October, 2006 and pending further orders, the execution of the impugned judgment and decree was stayed. Upon application being filed by the respondents/plaintiffs no.1 to 5 for early hearing, the appeal was taken out of the category of 'Regulars' and listed for today for hearing. The counsel for the appellant, the counsel for the respondents no.1 to 5/plaintiffs and the counsel for the respondent no.6 NBCC have been heard. 5. On enquiry, it is informed, that the possession of the premises was delivered to the respondents No.1 to 5/plaintiffs on 26th April, 2001 and the mesne profits decreed vide the impugned judgment and decree are for the period from 1st November, 1989 to 26th April, 2001. 6. In view of the limited nature of challenge made before this Court, it is not deemed necessary to set out the pleadings, evidence and findings of the Trial Court thereon. 7. Suffice it is to state that it is the uncontroverted position that the appellant was a tenant in the subject premises and had sublet the said premises to the respondent no.6 NBCC. Though the appellant, in its written statement in the suit, raised a dispute with respect to the relationship of landlord with the respondents no.1 to 5/plaintiffs and an issue was framed thereon but the finding on the said issue is in favour of the respondents no.1 to 5/plaintiffs and is not under challenge now. Thus, as of today it is not in dispute that the appellant was a tenant under the respondents no.1 to 5/plaintiffs. 8. The only contention of the counsel for the appellant is that for the period for which mesne profits have been decreed, the appellant is not liable for mesne profits since the appellant had prior thereto with the consent of the respondents no.1 to 5/plaintiffs sublet the said premises to the respondent no.6 NBCC and for the subject period it was the respondent no.6 NBCC alone which was in occupation of the premises and was paying rent/charges to the respondents no.1 to 5/plaintiffs and thus the decree for mesne profits in so far as against the appellant is wrong and the decree ought to have been against the respondent no.6 NBCC only. 9. It is contended that the learned ADJ erred in passing the decree jointly and severally against the appellant and the respondent no.6 N