DELHI TRANSPORT CORPORATION v. M/S. YOUNG BUILDERS PVT. LTD.

1. Whether the Reporters of local papers may 4 be allowed to see the judgment? NO. 2. To be referred to Reporter or not? NO. 3. Whether the judgment should be reported in the Digest? No. % lUDGMENT (Oral) VIKRAMAIIT SEN. I.

1. These appeals pertain to property being the mezzanine of the first floor of property bearing no. 10 A, Atma Ram Mansion formerly known as Scindia House Building. According to the appellant before us 2010:DHC:12005-DB 1.e. DTC, the mezzanine forms part of the Ground Floor which had been taken on rent by the DTC initially from Sardar Sobha Singh. It appears that the respondent had purchased the suit property on 26.05.1989 and the sale deed was registered on 08.06.1989. The first lot of litigation was suit no. 63/1989 (old) being 1265/1989 filed by the respondent seeking perpetual injunction. In that suit, the following issues were framed:

1. Whether the property in dispute i.e. 700 jr Sq. Ft. space is in possession of the plaintiff and they are the owners of the same? If so its effect?

2. Whether the property in dispute forms part of the tenancy premises of the defendant no.l?

3. Whether the opening of door will cause any hindrance in the use of other tenancy portions of the defendant no.l.

4. Relief.

2. Thereafter the following issues were framed namely:

1. Whether the suit for Injunction is maintainable?

2. Whether the plaintiff is corporate body and plaint has been signed and verified and presented by the competent person.

3. Whether there ever existed opening in the outer wall of the stair case for entering in the disputed space measuring 700 sq. ft?

4. Whether the plaintiff has erected wall as alleged so to close its door opening in the disputed site of 700 Sq. Fts. If so when and to what effect?

3. By detailed judgment these issues were decided against the appellant/DTC by Sh. Rajiv Mehra, Civil Judge, Delhi on 12.11.1997. Learned counsel for the appellant has contended that an error has crept into the impugned judgment passed by MS. Manju Goel, ADJ, Delhi (as her ladyship then was), inasmuch as, it has been recorded that no appeal against the judgment has been filed. In fact, Appeal RCA No. 384/1997 had been filed; it was dismissed on 07.12.2002. Therefore, even though the statement that no appeal against the P judgment had been filed may be incorrect, no consequences in favour of the appellant/DTC flow from this incorrect recording.

4. As the DTC had continued in possession, the respondent filed suits for recovery of damages. These were Suit Nos. 20/1997 leading to RFA 138/2001 and Suit No. 490/1998 filed in the High Court of Delhi and decided in favour of the respondent by Shiv Narayan Dhingra, J. on 23.04.2008. The action in both the suits would be governed almost entirely by the decision in Suit No. 1265/1989 for perpetual injunction except for the quantum of damages. In this respect the claim of the respondent was for Rs. 10,000/- for the first year and Rs. 12,500/- for subsequent years. In the second suit it was for Rs. 12,500/-, escalated to Rs. 15,000/- per month. In the first suit the court has quantified damages of Rs. 10,000/- and in the second Suit of Rs. 15,000/-.

5. Learned counsel appearing for the DTC inter alia contends that for the period 01.08.1991 to 13.08.1993 damages ought not to have been decreed for the reason that there was an agreement // between the parties to the fact that damages for that period would not be claimed by the respondent before us. The admitted position is that no issue pertaining to this position now articulated before us has been framed in any of the proceedings and the document/agreement has not been filed. Undisputedly, therefore, this question cannot be raised.

6. After the decision. Suit No. 1265/1989 passed by Sh. Rajiv Mehra, Civil Judge, which came to be affirmed on the dismissal of appeal RCA 384/1997 by judgment dated 07.12.2002, the ownership of the respondent cannot be disputed. The principles of res judicata would immediately apply against the DTC. So far as the fixation of the quantum of damages/mesne profits are concerned, counsel for the appellant has not succeeded in any manner to show that they are exorbitant, such as would call for our interference.