Ajit Gogna v. Jitender Gogna & Ors.

2018. In the normal course of events, the defendant No.1, even if till then had not informed the counsel of the incident alleged of 24th / 25th March, 2017, would have immediately informed the counsel of the said incident and the counsel on or before the next date of hearing i.e. 23rd January, 2018 would have pleaded / argued the factum of loss of the original. Not only was the same not done but on 31st January, 2018, the counsel for the defendant No.1 stated that he was not aware of the whereabouts of the original and that the original must be with the defendant No.1.

16. Significantly, even after 31st January, 2018, when the counsel for the defendant No.1 claims to have become aware for the first time of the incident dated 24th / 25th March, 2017, no application was filed by 7th February, 2018 i.e. the last date ordered for production of original Will, before this Bench, to contend that the defendant No.1 would be proving the Will by secondary evidence. On the contrary, the defendant No.1 chose to prefer an appeal to the Division Bench and obtain an interim stay of recording of evidence in the suit and owing whereto the proceedings in the suit remained stayed from 23rd March, 2018 till 12th October, 2018 i.e. for nearly six months, derailing the recording of evidence in the suit and showing the intent of the defendant No.1 to, by adopting some mode or other, delay the disposal of the suit and thereby perpetuate his possession of the flat in which his seven siblings are also claiming a share.

17. Be that as it may, when this Review Petition came up before this Bench for the first time on 10th December, 2018, realising that the trial in the suit has been so delayed, while adjourning the hearing of this Review Petition to today, it was ordered that the trial in the suit may proceed, without prejudice to the outcome of the Review Petition and trial has so commenced and is underway. It was felt that now that the defendant no.1 has taken a stand qua original Will, the recording of evidence should not be delayed. The other aspect, of mesne profits, was / is not relevant for purposes of the trial.

18. The senior counsel for the defendant No.1 states that review of the order dated 31st January, 2018 is sought on two aspects. Firstly, on the entitlement of the defendant No.1 to prove the Will by leading secondary evidence and secondly to the extent that the same makes the defendant No.1 liable, in the event of failing in the suit, to mesne profits at the rate of Rs.40,000/- per month and further provides that the same will be deducted from the share of the defendant No.1 in the flat.

19. As far as the first of the aforesaid two grounds is concerned, as aforesaid, trial has already been ordered to proceed without prejudice and since now it is the plea of the defendant No.1 that the original Will is not available and is required to be proved by secondary evidence, it is ordered that the defendant No.1 may prove the document claimed to be the Will, in accordance with law and at the time of adjudication, the conduct as detailed aforesaid of the defendant No.1 shall be taken into consideration.

20. As far as the second of the aforesaid grounds on which review is sought is concerned, the senior counsel for the defendant No.1 has argued, by handing over a compilation of as many as nine judgments and to which no reference even was made during the hearing on 31st January, 2018. What is desired by the defendant No.1, is re-hearing and which is beyond the domain of review. However since the Division Bench has desired that the Review Petition be decided in accordance with law, I am, notwithstanding the hearing being in the nature of a re-hearing and beyond the scope of review, proceeding to deal with the said aspect.

21. The senior counsel for the defendant No.1, on the proposition that “mesne profits cannot be claimed against the co-owner in a suit for partition” referred to judgments out of the aforesaid nine judgments i.e. Babburu Basavayya Vs. Babburu Guravayya AIR 1951 Mad 938, Udekar Vs. Chandra Sekhar Sahu AIR 1961 Ori 111, Nand Kishore Prasad Singh Vs. Parmeshwar Prasad Singh MANU/BH/0221/1934, Shambhu Dayal Khetan Vs. Motilal Murarka AIR 1980 Pat 106, Muhammed Haneefa Rowther Vs. Sara Umma AIR 1991 Ker 94, Neety Gupta Vs. Usha Gupta MANU/DE/4283/2018 and Om Pratap Soni Vs. Rana Pratap Soni 2006 (128) DLT 410. It is argued that in a suit for partition, as the present one is, no mesne profits, as under Rule 12 of Order XX of the Code of Civil Procedure, 1908 (CPC) are to be awarded and only accounts can be gone into, as provided under Rule 18 of Order XX. It is further contended that since the accounts are to be gone into in the event of a decree for partition being passed, the quantum could not have been determined as was done in the order dated 31st January, 2018. The senior counsel for the defendant No.1 has also referred to National Radio & Electronic Co. Ltd. Vs. Motion Pictures Association 2005 (122) DLT 629 and Sushil Kumar Sahni Vs. Umesh Kumar Sahni 2018 SCC OnLine Del 10305 to contend that rate of mesne profits has to be enquired into by leading evidence.

22. I have considered the contentions.

23. Rule 12 of Order XX of the CPC empowers the Court, where the suit is for recovery of possession of immoveable property and for rent or mesne profits, to pass a decree, a) for possession; b) for rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent; c) for mesne profits or directing an inquiry as to such mesne profits; and, d) directing an inquiry as to rent or mesne profits from the institution of the suit until delivery of possession.

24. Rule 18 of Order XX of the CPC empowers the Court, where passes a decree for partition of property or for separate possession of share therein, to, insofar as the decree relates to immoveable property and if partition or separation cannot conveniently be made without further inquiry, pass a preliminary decree declaring the rights of several parties interested in the property and giving further directions as may be required.

25. During the hearing on this Review Petition on 10th December, 2018 itself and as recorded in the order of that date, attention of the senior counsel for the defendant No.1 was drawn to Seth Girdhari Lal Vs. Seth Gaja Nand ILR (1974) I Del 864, Sita Kashyap Vs. Harbans Kashyap 2011 (123) DRJ 52 and Neety Gupta supra on the aspect of award of mesne profits in partition suit.

26. As far as the distinction sought to be made out between Rules 12 and 18 of Order XX of the CPC is concerned, the need to discuss in detail is not felt, since the senior counsel for the defendant No.1 also has referred to the dicta of the Division Bench of this Court in Neety Gupta supra, of which mention was made in order dated 10th December, 2018, laying down, (i) that in the case of a partition suit, it is Rule 18 that specifically applies; (ii) that the right to receive a share in mesne profits is a consequence of partition of the property; and, (iii) that at the stage of sub-rule (2) of Rule 18 of Order XX, the Court can give directions as may be required and which would include directions for payment of mesne profits. Finding in the facts of that case that one of the parties who had only 1/5th share, was in exclusive possession of the property, other parties who had remaining share, were held entitled to claim mesne profits of their respective share. It was also observed that the amount could only be quantified on proper inquiry.

27. As would become obvious, the distinction sought to be drawn by senior counsel for defendant no.1 / review applicant is irrelevant for present purposes. In view of the aforesaid judgment of the Division Bench of this Court, the senior counsel for the defendant No.1 can not contend that the defendant No.1, even if fails in his defence, of the deceased sibling having left a Will bequeathing the flat aforesaid in exclusive favour of defendant no.1, would not be liable to compensate the plaintiff and others of the benefit which the defendant no.1 has enjoyed, by exclusive possession of the flat and which obviously is to the prejudice of the plaintiff and others. Had the defendant no.1 been not in occupation of the flat, the plaintiff, during the pendency of this suit could have applied for letting out of the flat and the rent to be accumulated for the benefit of either all the parties or the defendant no.1 alone, depending on the proof by defendant no.1 of the alleged Will. If there is no Will, one of the co-sharers, by exclusively occupying the flat, cannot deprive others of benefit of their respective shares, till final adjudication. Holding so would encourage a co-sharer to exclusively occupy property in which others have a share and then to contest the claim of others taking all sorts of pleas, thereby delaying the adjudication of claim of others and in the interregnum reap benefit / advantage of exclusive use of property and in the end also, inspite of losing, still getting his share. This would encourage dishonesty in action and in Courts. It cannot be lost sight of that owing to overloaded dockets of Courts, the Courts rarely take action for taking pleas ultimately found false / frivolous.

28. That leaves only the aspect of quantum.

29. I have enquired from the senior counsel for the defendant No.1 that even if the defendant No.1, at the time of filing the written statement, notwithstanding the plaintiff having expressly pleaded the letting value of the flat to be at the rate of Rs.40,000/- per month, did not know the letting value and even if the defendant No.1, on 31st January, 2018 also did not know the letting value, at least now when the said question is in the fore, should tell, what is the letting value of the subject flat which is disclosed to be a three bedroom flat. The senior counsel for the defendant No.1 states that he has “no knowledge of letting value”. Since the contention of the senior counsel of the defendant No.1 during the hearing of this Review Petition on 10th December, 2018, with respect to the statement (of the counsel for the defendant No.1 during the hearing on 31st January, 2018 qua the whereabouts of the original Will) i.e. “I am not aware, it must be with the client” was, that “it was a loose statement”, it has been doubly made sure from the senior counsel for the defendant No.1 that he now means that the defendant No.1 even now has no knowledge of letting value of the flat and the senior counsel for the defendant No.1 confirms.

30. In my opinion, the principle that a person cannot be compelled to depose against himself and/or cannot be compelled to self-incriminate, as enshrined under Article 20 of the Constitution of India, applicable to criminal prosecution, is not applicable to civil law. In Maqbool Hussain Vs. State of Bombay AIR 1953 SC 325, it was held that having regard to the whole background of Article 20, in order that the protection thereof be invoked by a citizen, there must have been a prosecution and punishment in respect of the same offence before a court of law or a tribunal, required by law to decide the matter in controversy judicially on evidence on oath, which it must be authorized by law to administer; the proceedings therein contemplated are of the nature of criminal proceedings. This was reiterated in Raja Narayanlal Bansilal Vs. Maneck Phiroz Mistry AIR 1961 SC 29. Reference may lastly be made to Sharda Vs. Dharmpal (2003) 4 SCC 493 unequivocally holding that a party to a civil litigation is not entitled to constitutional protection under Article 20 of the Constitution of India; that the Civil Court, although may not have any specific provisions in the Code of Civil Procedure and the Evidence Act, has an inherent power in terms of Section 151 CPC to pass all orders for doing complete justice to the parties.

31. Civil law does not confer on a litigant a right to remain silent, putting the onus on the opposite party to prove. On the contrary, the procedure relating to civil disputes as contained in the CPC expressly requires pleadings to be specific and also provides for deemed admission of what is not specifically not denied. Civil law further provides, for serving interrogatories which the parties at whom interrogatories are directed can be compelled to answer and if refuse to answer, for deeming of admissions and/or drawing of adverse inference. Thus, it was / is not open to the defendant No.1 to, simply deny the averment in the plaint of the rate of letting value at Rs.40,000/- per month, without stating that if the letting value is not Rs.40,000/-, how much it is. No such right of silence and/or “no knowledge” was available while filing the written statement or on 31st January, 2018 or today.

32. This is more so, considering the nature of the property, which is a flat constructed by Delhi Development Authority in a colony having thousands of identical flats and a large number of which, at any given point of time are let out. With respect to such identical / similar flats situated in colonies developed by the same agency / person, it cannot be said that the defendant No.1, inspite of residing in one of the flats along with his family members, is not aware of the letting value thereof. An evasive denial of a fact alleged in the plaint would be deemed to be admitted under Order VIII Rule 3 and Rule 5 of the CPC. Reference in this regard can be made to Badat & Co. Vs. East India Trading Co. AIR 1964 SC 538, Sushil Kumar Vs. Rakesh Kumar AIR 2004 SC 230 and Jaspal Kaur Cheema Vs. Industrial Trade Links AIR 2017 SC 3995. It was held in Badat & Co. that though in the matter of mofussil pleadings, such laxity in the pleadings may be tolerated but not on the Original Side of the Bombay High Court, pleadings wherein are drafted by trained lawyers bestowing serious thought with precision. It was further held that the laxity in pleadings should not be allowed to help a party, who designedly makes vague denials and thereafter seeks to rely upon them for non-suiting the plaintiff. Reference with approval was made to Tildesley Vs. Harper (1878) 10 Ch.D. 393 where the averment in the plaint, that the lease had been granted on account of certain sum received from the lessee as bribe, in the written statement though it was denied that sum had been given but no denial of bribe having been given was found and it was held that the giving of bribe was not sufficiently denied and it must be deemed to have been admitted. I may state that similarly, pleadings on the Original Side of this Court are drafted by Advocates skilled in the art and for hefty fees and the only inference from the refusal till date of the letting value of the flat is that the defendants are not in a position to deny the letting value to be Rs.40,000/- per month and / or that the defendants are refusing to admit, to avoid determination of mesne profits at the said rate. The further inference is, that the defendant No.1, if were to be compelled to give an answer, would have no option but to ether admit the letting value as pleaded by the plaintiff or disclose letting value to be at a higher rate.

33. In Hindustan Paper Corporation Vs. Kanta Manocha 2013 SCC OnLine Del 4232 adverse inference was drawn against the defendant that had the defendant disclosed the rent of the alternative accommodation taken after vacating the subject accommodation, it would have become apparent that the claim of the plaintiff for mesne profits at the rate of Rs.50,000/- per month for a much larger accommodation and in an elite colony was justified. Similarly, in S&G Company Vs. Indica Trades Pvt. Ltd. MANU/DE/2218/2013 it was held that once the defendant in the written statement had taken a specific plea that the premises adjoining to the premises subject matter of that suit had been let out at a rent of Rs.10.65 paise per sq.ft. per month, it was incumbent upon the plaintiffs to specifically deal therewith and having not done the same, could not claim mesne profits in excess of Rs.10.65 paise per sq. ft. per month. In Naseemuddin Vs. Babita Rani MANU/DE/3899/2013 adverse inference was drawn from the defendant not cross-examining the plaintiff on the statement in the examination-in-chief as to the rate of letting value. Yet again in Kishan Dubey Vs. Mukesh Gupta MANU/DE/2909/2018, it was held that the defendant in its written statement to the plea in the plaint of the letting value of the premises being Rs.12,000/- per month, having not taken a plea that the prevalent letting value was anything less than Rs.12,000/- as claimed, could not challenge the award of mesne profits at the said rate. Mention may finally be made of Vasdev Brothers Vs. Estate Officer, ITDC Ltd. 2018 SCC OnLine Del 12100 where also adverse inference was drawn from the respondent not controverting the statement as to the rate of prevalent letting value.

34. The counsel for the plaintiff even today reiterates that the plaintiff is willing to deposit in this Court Rs.40,000/- per month, to be distributed, depending upon the outcome of the case, if the defendant No.1 were to vacate the flat and the plaintiff permitted to either occupy the same or to let out the same for such period as may be deemed appropriate by this Court.

35. The counsel for the plaintiff has raised another very valid argument. It is argued that mesne profits are to be determined by making an inquiry, scope whereof is different from recording of evidence. It is contended that during the hearing on 31st January, 2018 as well as today, what has been done, qualifies as an inquiry and once the inquiry has been made, there is no bar to the Court fixing the rate of mesne profits, for which the defendant No.1 would be liable in the event of failing in the suit. The counsel for the plaintiff has also referred to Sita Kashyap supra holding that it is the duty of the Court in a suit for partition to make an inquiry into profits, even if there were no claim for profits, so as to balance equities between the parties. It was further held that a party which is occupying a portion larger than it ought to be occupying considering his share, ought to be directed to pay to the other/s whose share, he is occupying for the same.

36. The counsel for the defendant No.2 also in this regard, argues (i) that there is a specific plea as to the present letting value in the plaint and only a bare denial thereof in the written statement of defendant no.1 and that Order VIII Rule 5 of the CPC applies; (ii)under Section 165 of the Evidence Act, 1872 also, the Court can always ask questions and record answers; (iii) that the Court is entitled to ask about the prevalent letting value; (iv) that it is not as if the defendant No.1 was residing in the flat along with the deceased brother; it is the admitted case of the defendant No.1 also that he occupied the flat after the demise of the brother; (v) that while the defendant No.1 pleads that he occupied the flat on account of the same having been bequeathed exclusively to him, it is the case of others that he occupied the flat illegally and complaint of such trespass was also lodged; (vi) that the story now set up, of loss of Will, is a “cock and bull story” and that it was incumbent on the defendant No.1 to produce the Will in this Court along with his written statement and having chosen not to do so, has to suffer the consequences; and, (vii) that the alleged attesting witnesses to the Will have not even been named in the list of witnesses filed by the defendant No.1 and the defendant No.1 is abusing the process of law.

37. Undoubtedly, for determination of mesne profits, law provides for an „inquiry‟, as distinct from „adjudication‟, as on other issues. Such inquiry is generally relegated to a Commissioner. Merit is found in the contention of the counsel for the plaintiff and the counsel for the defendant No.2, of „inquiry‟ being subject to a less formal procedure than provided for recording of evidence and the proceedings as held on 31st January, 2018 and today, qualifying as an inquiry.

38. Black‟s Law Dictionary (Eighth Edition), defines “inquiry” as fact finding; a request for information. Mitra‟s Legal and Commercial Dictionary (Sixth Edition) also defines “inquiry” as examination into facts; exploration; interrogation; probe; search for information and refers to Kingam Savaranna Vs. State AIR 1957 AP 472 and R.P. Kapoor Vs. Pratap Singh Kairon AIR 1966 All 66 holding that an inquiry is something different from trial and the term „inquiry‟ does not include a trial but only refers to a judicial inquiry into the matter. Though I have been unable to find any judgment on the scope of inquiry into mesne profits save Sandeep infra but find (i) Kathiroor Service Cooperative Bank Ltd. Vs. Commissioner of Income Tax (CIB) (2014) 14 SCC 352, after considering the definition of „inquiry‟ in various dictionaries and encyclopedia, in relation to Section 133(6) of the Income Tax Act, 1961 holding that the inquiry therein pertained in relation to such points or matters which the assessing authority issuing notice requires and information of general nature can be called for inquiring names and address of depositors who held deposits above a particular sum was permissible; (ii) K.R. Rama Iyer Vs. The State MANU/PH/0149/1951 holding that the term „inquiry‟ does not necessarily mean examination of witnesses; (iii) State of Bombay Vs. Shivabalak Gaurishankar Dube AIR 1965 SC 61, in the context of Section 65 read with Section 83 of the Bombay Tenancy & Agricultural Lands Act, 1948, holding that since the manner of conducting inquiry had not been prescribed, the manner of inquiry was left to the discretion of the authority vested therewith; (iv) Sandeep Vs. Fateh Singh MANU/PH/2008/2016 also, in the context of Order XX Rule 12 of the CPC holding that the purpose of holding inquiry is to ascertain reasonable rate of mesne profits and no specific form of inquiry has been prescribed under Order XX Rule 12 of the CPC and ascertainment of the rate of mesne profits on the basis of evidence / material brought on record will also amount to an inquiry; (v) Jamunabai Motilal etc. Vs. State of Maharashtra AIR 1978 Bom 200 (DB) to have held that the meaning of the word „inquiry‟ used in any statute is to be understood in the context of that given statute; (vi) Avinash Ganpatrao Shegaonkar Vs. Jayawant 2010 SCC OnLine Bom 481 to have in the context of Section 47 of the Bombay Public Trusts Act, 1950 held, that inquiry is something short of a trial and the only requirement is to hear both the parties.

39. I may add that the said requirement of inquiry i.e. of hearing both the parties, has been complied with in the present case.

40. Else, with respect to determination of mesne profits, it has been held in Udayan Sinha Vs. Fertilizers & Chemicals Travancore 2016 SCC OnLine Del 3247, Madhvi Singh Vs. Pavik Lifestyle Ltd. 2016 (232) DLT 11 (SLP(C) No.32071/2016 preferred whereagainst was dismissed vide order dated 11th November, 2016), Consep India Pvt. Ltd. Vs.

CEPCO Industries Pvt. Ltd. 2010 SCC OnLine Del 1349, Sakata Inx (India) Ltd. Vs. Pooja Aggarwal 2012 SCC OnLine Del 916 (SLP(C) No.17896/2012 preferred whereagainst was dismissed vide order dated 12th October, 2012), Inder Sain Bedi Vs. Chopra Electricals 2012 SCC OnLine Del 5180 and Chander Kirti Rani Tandon Vs. VXL Lodging N. Boarding Services Pvt. Ltd. (2013) 197 DLT 266 that computation of mesne profits of residential properties entails some element of genuine, intelligent and honest guess work. In M.R. Sahni Vs. Doris Randhawa AIR 2008 Del 110 (SLP(C) No.13820/2008 preferred whereagainst was dismissed vide order dated 26th October, 2010), it was held that there is an element of guess work and it was further held that as long as there is some evidence to sustain the same, the finding cannot be faulted. Mention may also be made of Nina International Pvt. Ltd. Vs. Saraswati Industrial Syndicate Ltd. (1999) 78 DLT 524 on the manner of making such judicial guess work and of Suman Verma Vs. Sushil Mohini Gupta 2013 SCC OnLine Del 5081 dealing with National Radio & Electronic Co. Ltd. supra.

41. Considering all the aforesaid, it cannot be said that the „inquiry‟ envisaged in law, has not been made before directing that the defendant no.1, in the event of failing in his defense, will be liable for mesne profits at the rate of Rs.40,000/- per month, less his share therein.

42. I am even otherwise of the view that judgments of yesteryears, when Courts were approached for adjudication of bona fide disputes, fall short in today‟s day and age when Courts are increasingly being approached, not for resolution / adjudication of any bona fide disputes but to abuse their process, to defer the judgment day. If the Courts pedantically treat themselves as bound by judgments of an era which no longer exists, they would fail to deliver the objective of their very existence. This suit itself is pending since July, 2016 and notwithstanding the issues having been framed on 31st January, 2018, no substantial progress has been made in the trial. The defendant No.1 is found to have tendered his affidavit by way of examination-in-chief into evidence on 25th February, 2019, for which date the counsel for the defendant no.1, though should have summoned the record of the complaint dated 25th March, 2017 claimed to have been made, did not summon the same and after partly tendering the affidavit into evidence, sought adjournment. The same again shows that the defendant No.1 / his counsels are using every trick of the trade to cause delay, as earlier also mentioned. The Courts today have to evolve methods and procedures to deal with such litigants. If the Courts do not do so, the defendant No.1, even if ultimately loses the suit, having managed to exclusively use the flat now for five years, by delaying the trial, will continue to use the same for may be another five to ten years and would emerge a winner. If an issue as to mesne profits were to be framed, as is the want of the defendant No.1, again the process of examining witnesses thereon would begin. When the plaintiff today itself is willing to give an undertaking to this Court to deposit the amount of Rs.40,000/- per month if put in possession, I see no reason why condition as put on defendant no.1, should not be sustained. As aforesaid, the defendant No.1, if had not come prepared for the same on 31st January, 2018, at least now should have come prepared to give his offer. On the contrary, the defendant No.1 is choosing to rely on doctrine of onus of proof and which itself in Murugesam Pillai Vs. Manickavasaka Desika Gnana Sambandha Pandara Sannadhi AIR 1917 PC 6, Gopal Krishnaji Ketkar Vs. Mahomed Haji Latif AIR 1968 SC 1413 and Citi Bank N.A. Vs. Standard Chartered Bank AIR 2003 SC 4630 has been held to be an abstract doctrine which cannot be stretched to illogical conclusions and which in any case loses its value at the final stage. Framing an issue at this stage, in the circumstances, would only amount to yielding to the desire of the defendant No.1 to use the process of this Court for perpetuating his possession of the flat. Had the conduct of the defendant No.1 been bona fide, he himself would have been interested in expeditious disposal of the suit, to enable him to have a clean title to the flat and deal with the flat as may be his desire.

43. I therefore do not find any ground to review the order dated 31st January, 2018 to the extent it makes the defendant No.1 liable, in the event of failing in the suit, for mesne profits at the rate of Rs.40,000/- per month.

44. Resultantly, this Review Petition is dismissed.