BATA INDIA LIMITED v. ANUPAM TOWER (P) LTD.

1. This first appeal is filed under Order 43 Rule 1 (d) CPC against the impugned order of the court below dated 24.8.2013 by which the application under Order 9 Rule 13 CPC filed by the appellant-defendant for setting aside the ex parte judgment and decree for mesne profits dated 6.6.2012 was dismissed.

2. The facts of the case are that the appellant was the tenant in the suit premises comprising of an area of 3825 sq. ft. on the second floor of the 2014:DHC:1516 property bearing no. 23-A Najafgarh Road, New Delhi. The rate of rent was more than Rs.3500/- and consequently the respondents/landlords filed a suit for possession and mesne profits in the civil court. In this suit two reliefs were claimed. First was of possession and second was of mesne profits and other related monetary reliefs.

3. So far as suit for possession was concerned, the same was decreed after contest, pursuant to an application which was filed by the respondents/landlords under Order 12 Rule 6 CPC. This judgment is dated 30.11.2010 whereby possession was decreed by the trial court in favour of the respondents/landlords against the appellant/tenant. This order was challenged in an appeal by the present appellant/tenant, but that challenge was not successful and the appeal was dismissed as not pressed by this Court on 23.2.2011 in RFA 117/2011. At the time of dismissal of the appeal since the appellant had claimed that it had right under a document for creation of fresh lease deed, and in respect to which a suit for specific performance was already filed, therefore liberty was given to pursue that suit and obtain appropriate orders. In sum and substance, the decree for possession against the appellant became final and the appellant thereafter surrendered possession of the suit premises.

4. Appellant/defendant thereafter stopped appearing in the suit wherein the issue remained of claim of mesne profits payable to the respondents/landlords after termination of the tenancy by means of notice dated 3.10.2000 and till the time the appellant-defendant vacated the possession of the suit premises.

5. Appellant-defendant however did not appear in the suit, and which as per it, was on account of a promise/assurance given by the respondents/landlords that the suit for mesne profits will be withdrawn. Appellant also claims that pursuant to this understanding, appellant also withdrew his suit for specific performance which it had filed whereby it was claiming a right of 31 years tenancy in the suit premises from the year 1985. Since the appellant/defendant stopped appearing in the suit, it was proceeded ex parte and an ex parte judgment dated 6.6.2012 was passed against the appellant/defendant for mesne profits.

6. Learned senior counsel for the appellant very vehemently argued before this Court that the fact that there was an assurance to the appellant from the respondents/landlords that respondent/plaintiff will not puruse the suit for mesne profits becomes clear from the order-sheets of the suit which show that the respondents-plaintiffs have taken adjournments for compromise, I, however, refuse to accept this argument inasmuch as, if there was an assurance surely, it would be too much to expect that such assurance which would have ramification of over a crore of rupees towards mesne profits would be only by an oral assurance. I also asked learned senior counsel for the appellant that whether the suit filed by the appellant/defendant for specific performance was withdrawn by recording a statement that the said suit is withdrawn because the respondents/landlords are not going to pursue their claim for mesne profits, however, nothing has been pointed out to me that the said suit of the appellant-defendant for specific performance was withdrawn by the appellant-defendant on the ground that there was an agreement /assurance that respondents/landlords would not claim mesne profits in the present suit.

7. The court below has dealt with the relevant aspects in paras 8 to 12 of the impugned order, and which read as under:-

8. I completely agree with the aforesaid observations of the court below. It must be noted that appellant is not an illiterate person or a rustic person. Appellant is a gargantuan multi-national company. It is not possible that the officials of appellant company, including its legal officials, would act on a so-called oral assurance of the respondents-landlords of not pursuing the suit of mesne profits which would have resulted in a money decree for over a crore of rupees.

9. Though it is not required, I may note that the decree for mesne profits has been passed in terms of the ex parte judgment and decree dated 6.6.2012 by making reference to various lease deeds which were filed and proved on behalf of the respondents-landlords. The relevant paragraphs of the judgment dated 6.6.2012 are not reproduced by me but suffice it to state that lease deeds were proved as Ex.PW1/1 to Ex.PW1/5 and the facts with respect to determination of mesne profits are mentioned in paras 28 to 32 of the judgment dated 6.6.2012. Paras 25 to 40 of the judgment accordingly gave a finding with respect to the mesne profits which would be payable by the appellant-defendant-tenant to the respondents/plaintiffs/landlords.