Avery India Ltd v. Nirmal Kumar Jain and Anr

RAJIV SAHAI ENDLAW, J. AUGUST 10, 2018 Mp/pp

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 10th August, 2018 + RSA 148/2017, CM No.20020/2017 (for stay), CM No.20021/2017 and CM No.20022/2017 (both for exemption) and CM No.20023/2017 (for extension of time to file deficient court fee). AVERY INDIA LTD. ..... Appellant Through: Mr. B. Mohan, Adv with Mr. P.R. Bahl, Mr. Raghav Gupta and Mr. Siddharth Aggarwal, Advs. Versus NIRMAL KUMAR JAIN AND ANR ..... Respondents Through: Mr. V.K. Srivastava, Mr. B. B. Jain and Mr. Abhay Jain, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 16th February, 2017 in RCA 21/14/13 (New No.60786/16) of the Court of Additional District Judge-03 (West)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellant against the judgment and decree [dated 28th February, 2013 in Suit No.537/2002 of the Court of Additional Civil Judge (West)] allowing the suit filed by the two respondents/plaintiffs for ejectment of the appellant/defendant from the ground floor of house No. XI/4234 situated at 1-Ansari Road, Daryaganj, New Delhi-110002 and for recovery of mesne profits. 2. The Second Appeal came up first before this Court on 24th May, 2017 when the senior counsel then appearing for the appellant/defendant stated that the appellant/defendant had already vacated the premises, for ejectment of the appellant wherefrom decree had been passed by the Suit Court and the First Appellate Court, and the claim in the Second Appeal was confined only to the decree insofar as for recovery of mesne profits. 3. Notice of the appeal was issued, though without indicating the substantial question of law if any arising but recording the contention of the senior counsel then appearing for the appellant that the First Appellate Court, in violation of Section 105(1) of the CPC, held itself not entitled to interfere with the order of the Suit Court closing the right of the appellant/defendant of cross examination of PW2 and PW3. While issuing notice, subject to the appellant depositing 50% of the decretal amount in this Court less the amount already paid during the pendency of the suit and the appeal, the recovery of the balance decretal amount from the appellant was stayed and the Trial Court record requisitioned. 4. The counsel for the appellant/defendant and the counsel for the respondents/plaintiffs have been heard. 5. During the hearing, on enquiry by the counsel for the appellant/defendant whether the appeal was being finally heard, the counsel was informed that if after hearing the counsels, the appeal was found to entail any substantial question of law, then the counsels will be informed of the same and it will be enquired from them whether they needed adjournment for addressing on the said substantial question of law; however if on hearing, no substantial question of law was found to arise, the question of entertaining the appeal would not arise. 6. The Suit Court record and the First Appellate Court record requisitioned in this court have been perused. 7. The respondents/plaintiffs, on 1st October, 1993 instituted the suit, from which this appeal arises, pleading (as per amended plaint verified on 14th December, 1998) : i. that the appellant/defendant was a month to month tenant under the respondents/plaintiffs on the ground Floor of property No. XI/4234 situated at 1-Ansari Road, Daryaganj, New Delhi at a rent of Rs.5500/- per month; ii. that the tenancy of the appellant/defendant was terminated vide notice dated 22nd June, 1993; iii. that the appellant/defendant was liable to pay damages/mesne profits at the rate of Rs.71830.20p per month w.e.f. 1st August, 1993 to 30th September, 1993; iv. that since the filing of the suit, the prevalent letting value of the premises had increased multifold and was at the rate of Rs.67.50p per sq. ft. per month and the appellant/defendant was liable to pay future mes