Full Text
HIGH COURT OF DELHI
JUDGMENT
& 31482/2025 SH. SANJEEV KUMAR CHHATWAL .....APPELLANT
Through: Mr. Nishant Datta, Mr. Chirag Rathi, Mr. Kunal Sejwal and Mr. Dipesh Kashyap, Advs.
Through: Mr. Kshitij Mathur, Adv.
HON'BLE MR. JUSTICE AJAY DIGPAUL
1. This first appeal assails judgment and decree dated 5 March 2025 passed by the learned District Judge (Commercial Court) Delhi[1] in CS (COMM) 249/2024. The appellant was the defendant in the said suit and the respondent was the plaintiff.
2. The respondent, Mr. Pawan Kumar Bharara[2], instituted the “learned Commercial Court”, hereinafter “Pawan”, hereinafter aforesaid suit against the appellant, Mr. Sanjeev Kumar Chhatwal[3], claiming to be the sole and absolute owner of the property situated at the first floor in Municipal No. 1223-32, Pvt. No. F13, Ward No. XIV, Gali No. 11, Sadar Bazar, Delhi-1100064. Pawan claimed to have obtained ownership of the suit property vide sale deed dated 25 February 2022, executed by one Mr. Sudarshan Kumar Arora, erstwhile owner of the property.
3. It was alleged, in the plaint, that, after having obtained ownership of the suit property, Pawan felt unwell and was unable to attend to the suit property, during which time, Sanjeev trespassed and took possession of the suit property. Pawan issued a legal notice to Sanjeev on 22 June 2023, calling upon him to vacate the suit property and hand over vacant and peaceful possession thereof. On Sanjeev failing to do so, Pawan instituted CS (COMM) 249/2024 before the learned Commercial Court, seeking possession of the suit property along with damages and mesne profits to the tune of ₹20,000/- per month.
4. Sanjeev filed a written statement in which, it was contended that the suit was hit by Section 50 of the Delhi Rent Control Act,. Sanjeev claimed to be a lawful tenant in the suit property, vide rent agreement dated 7 June 2016, executed by one Ms. Usha Arora, late wife of Mr. Sudershan Kumar Arora, in the capacity of owner of the suit property. It was asserted that the tenancy for a rent of ₹500/per month was initially for a period of six months from 8 June 2016 to “Sanjeev”, hereinafter “suit property”, hereinafter 7 December 2016, which was, thereafter, periodically extended and never terminated by the landlord.
5. Sanjeev, therefore, claimed to continue to be a lawful tenant in respect of the suit property at a rent of ₹500/- per month. It was further asserted that rent was paid by Sanjeev till February 2022, whereafter no one came to collect the rent.
6. The learned Commercial Court framed the following issues as arising for consideration, thus: “1. Whether the defendant is a tenant in the suit property at the rent of Rs.500/- per month? (OPD)
2. Whether the suit of the plaintiff is barred under section 50 of the Delhi Rent Control Act? (OPD)
3. Whether the plaintiff is entitled for the relief of possession as prayed for? (OPP)
4. Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? (OPP)
5. Whether the plaintiff is entitled for recovery of Rs.20,000/per month from the defendant from 01.06.2023 till handing over the suit property by the defendant to the plaintiff? (OPP)
6. Relief.”
7. Before the learned Commercial Court, Pawan led the evidence of two witnesses. He examined himself as PW[1], and one Ms. Manju, Record Keeper in the office of the Sub Registrar, as PW[2].
8. Through his evidence as PW[1], Pawan proved the sale deed “the DRC Act”, hereinafter dated 25 February 2022 executed by Mr. Arora, as well as the legal notice dated 26 June 2023 along with its postal receipt evidencing delivery on Sanjeev. PW[2], Ms. Manju, as a Record Keeper in the office of the Sub Registrar, proved the sale deed dated 25 February 2022, as well as its registration. We deem it appropriate to reproduce the relevant part of the sale deed thus: “SALE-DEED This Sale Deed is made and executed at Delhi, on this 25/2/2021by Shri Sudershan Kumar Arora son of Late Shri Sewa Ram Arora resident of D-2A/13A, Janak Puri, Delhi-110058, hereinafter called the Vendor, (which expression shall mean and include the party, which also include their respective legal heirs, successors, attornies, legal representatives, administrators, executors, nominees and assigns), -: in favour of:- Shri Pawan Kumar Bharara son of Late Shri Ram Narain Bharara resident of C-170, Mansarover Garden, New Delhi- 110015, hereinafter called the Vendee, (which expression shall mean and include the party, which also include their respective legal heirs, successors, executors, attornies, representatives, administrators, nominees and assignees etc.) Whereas the vendor as mentioned above are the absolute and exclusive owner and in possession of the built up property comprising of one shop on the first floor without terrace roof rights, meas. 10 sqyds or say 8.361 sqmtrs. Part of property bearing Mpl. No. 1223-32, Pvt. No. F-13, Ward No. XIV, situated at Gali No. 11, Sadar Bazar, Delhi-110006, duly fitted with running rolling shutter and electric connection with other amenities provided therein, and the same is bounded as under:- East: Shop Pvt. No. F-14 West: Shop Pvt. No. F-12 North: Gali (Below) South: Common Passage With common rights to use the entrance through passage and stairs to reach over there, Hereinafter called the said property under sale. Facts of the property as follows:- Whereas Smt. Usha Rani wife of Shri Sudershan Kumar Arora resident of D-2A/13A, Janak Puri, Delhi-110058, had purchased the above said under sale i.e. the built up property comprising of one shop on the first floor without terrace roof rights, meas, 10 sqyds or say 8.361 sqmtrs. Part of property bearing Mpl. No. 1223-32, Pvt. No. F-13, Ward No. XIV, situated at Gali No. 11, Sadar Bazar, Delhi-110006, duly fitted with running rolling shutter and electric connection with other amenities provided therein, and the same is bounded as under:- East: Shop Pvt. No. F-14 West: Shop Pvt. No. F-12 North: Gali (Below) South: Common Passage With common rights to use the enterance through passage and stairs to reach over there, Hereinafter called the said property under sale, by way of purchase vide document of Sale Deed duly registered as No. 6017, in Book No. 1, Volume No. 2345, on pages 22 to 31, on 25.10.2007, in the office of the Sub Registrar, SD-I, Delhi executed by Shri Anll Dua s/o Late Shri Sat Pal Dua. And Whereas the said Usha Rani wife of Shri Sudershan Kumar Arora resident of D-2A/13A, Janak Puri, Delhi-110058, during his life time had executed a Will on 21/8/2017, entered and regd. vide No. 02/17 on with the Notary Public, Delhi namely Smt. Preeti Khattar, on 22/8/2017, in favour of the vendor who is her husband namely Shri Sudershan Kumar Arora son of Late Shri Sewa Ram Arora resident of D-2A/13A, Janak Puri, Delhi-110058 and she died on 30/9/2017, without revocation or cancellation of above said Will. Upon the death of his wife, by virtue of the said Will, the vendor has become the absolute, exclusive and sole owner of the above said property under sale in all manners. And Whereas in the light of facts and contents as mentioned above the vendor has become the absolute and exclusive owner of the same and he is fully competent to execute this sale deed. And Whereas at present the above said property is free from all sorts of encumbrances such as prior sale, mortgage, transfer, dispute, litigation, surety security, acquisition, notification, burdon, influence, attachment, court case, decree and other kinds of legal defects and flaws and the vendors have full power, good title, absolute owners, exclusive authority and unrestricted rights to sell, transfer and dispose off the same in all manners without any hitch or hindrance from any one else in full or any part thereof. ***** NOW THIS SALE DEED WITNESSETH AS UNDER:-
1. That in pursuance of the above said agreement and in total sale consideration of Rs.4,15,000/- (Rupees Four Lacs Fifteen Thousand Only) which the vendor has received in advance, prior to execution of this sale deed vide Ch. No. 001854 dt. 03.1.2022, for Rs. 1,50,000/-and Ch. No. 001855 dt. 03.1.2022, for Rs. 1,00,000/-, Ch. No. 001856 dt. 21.2.2022, for Rs. 1,00,000/-, all drawn on SBI, SB, Delhi-110006 & remaining Rs. 65,000/- in Cash from the vendee and hereby admits, accepts, confirms and acknowledges to have received all the sale consideration for the sale of above said property under sale and nothing remains due in balance out of total and agreed sale consideration amount before the registering authority.
2. That the vendor doth hereby sell, convey, transfer and assign by way of absolute sale of above said property under sale, i.e. the built up property comprising of one shop on the first floor without terrace roof rights, meas. 10 sqyds or say 8.361 sqmtrs. Part of property bearing Mpl. No. 1223-32, Pvt. No. F-13, Ward No. XIV, situated at Gali No. 11, Sadar Bazar, Delhi-110006, duly fitted with running rolling shutter and electric connection with other amenities provided therein and the said sold property more particularly as shown in RED Colour in the site plan enclosed herewith, alongwith all rights and titles of ownership in the sold property under sale, claims, interests, benefits, options, easements, privileges and appurtances thereof and to have and to hold the same unto the vendee, absolutely and forever.
3. That the actual vacant, physical and proprietary possession of the above said property under sale, has delivered and handed over to the vendee by the vendor on the spot and by executing this sale deed in favour of the vendee by the vendor, the title of ownership and possession become the legal and valid in all manners.
4. That all the dues, demands, arrears of previous house tax, have been paid and borne by the vendor upto the date of registration of this sale deed in respect of the above said property under sale and thereafter the same be paid by the vendee directly to the authority concerned.
5. That now the vendee shall be fully entitled, authorized and empowered to get the above said property under sale, mutated, substituted and transferred in their own name in the revenue records of MCD in house tax deptt. Or any other office or authority required on the basis of this sale deed or its copy thereof,
6. That now the vendee shall have also full rights to get transferred any electric or water or sewer connections so installed in the above said property under sale in his own name or new or fresh shall be got issued from the authority concerned.
7. That on the cost and request of the vendee, the vendor will do and execute all such acts, deeds and things which will be necessary for further to make the above said property under sale more perfectly to the vendee, his legal heirs or assigns without demanding or charging any consideration amount in future.
8. That the vendor hereby declare that he has left the above said property under sale with no rights, titles, interests, claims, shares or concern and also given up all kinds of benefits and options, and also the vendee has become the absolute and exclusive owner of the above said property under sale and also remain free to use, hold, enjoy, utilize, sell, transfer and dispose off the same in all manners without any hitch or hindrance from the vendor or any one else.
9. That the vendor hereby also assure to the vendee, that the above said property hereby sold or its any part thereof to be lost to the vendee on account of any legal defect in the vendor right to transfer the same or any other act or omission or any one also claims any title paramount to the vendor and litigation started, then the vendor shall be fully liable and responsible to Indemnity the same in person to compensate.
10. That the previous documents relating to the above said property have been delivered and handed over and given to the vendee by the vendor for the personal use and future records of the vendee at the time of execution of this sale deed. That all the cost of stamp papers including the duty for sale deed, App corporation tax, resignation fee or typing charges etc. have been paid and borne by the the vendee directly to the authorities concerned.
12. That the vendee is the fully satisfied with the title of ownership of the vendor and documents produced by the vendor and the documents as mentioned in this sale deed.
13. That the property under sale has never been declared or booked by MCD as 'unauthorized construction' till date, if the same is found to be unauthorized construction at any stage, the vendor and vendee shall be liable for all consequences.
14. That the vendor and vendee both the parties, as mentioned in this sale deed are the citizen of Republic of India.”
9. Sanjeev as the defendant examined himself as DW[1] and lead the evidence of Mr. Arora as DW[2]. As DW[1], Sanjeev proved the rent agreement dated 7 June 2016, as well as 12 rent receipts evidencing payment of rent, issued by Ms. Usha Arora. We deem it appropriate to reproduce the following paragraphs from the affidavit in evidence of DW[1] as well as the cross examination as under: “ DW-1: Sh. Sanjeev Kumar Chhatwal s/o Late Sh. Ram Chhatwal, aged about 52 years, c/o Shop no. 733, Gali no. 11, Sadar Bazar, Delhi-110006. On SA I tender my evidence by way of affidavit. The same is Ex.DW1/A. It bears my signature at point A and B. I rely upon the following documents:- Sr. No. Document Exhibit
2 Copy of rent receipts (12 receipts) issued by executed by Smt. Usha Arora in favour of defendant qua the suit property Ex. DW-1/2 (OSR) XXXXXX by Sh. Kshitiz Mathur, Counsel for plaintiff
1. I am presently residing at Road No. 7, House No. 47, East Punjabi Bagh, Delhi. I am doing the business of artificial flowers. I am aware about the facts of the present case. It is correct that the present suit is for the possession of a shop in property known as First Floor, Grover House.
2. I am in possession of only one shop on the first floor of Grover House. There are other shops also on the first floor of the Grover House. The shop was not bearing any number when I came in possession of the same and I am not aware about any number assigned to it.
3. My shop is shown at point A in the site plan already exhibited as Ex. PW-1/3. I am appearing before the court for the first time in the present case. I am not knowing any advocate Amit Yadav. I also do not know Sumit Bharara.
4. I am a tenant in the aforesaid shop i.e. the suit property. Smt. Usha Arora was the landlord. She used to issue rent receipt to me for the rent paid. There was a rent agreement between me and the landlord. I have filed the said agreement which is exhibited as DW1/1. I identify the signature of Smt Usha Arora at point A on the rent agreement Ex. DW-1/1. The rent used to be paid as and when the landlady or her husband visited the shop to collect the rent against the receipt. Vol. It was paid for four months or even six months.
5. I am not aware about the prevailing market rent of shop like the suit property in the area. It is wrong to suggest that the plaintiff is entitled for the relief claimed in the suit. It is wrong to suggest that I am a trespasser in the suit property. It is wrong to suggest that there is no rent agreement in respect of the suit property. It is wrong to suggest that the rent receipts are forged and fabricated. It is wrong to suggest that I had demanded Rs. 4 lakhs to vacate the suit property. I have neither appeared myself nor through any counsel in any pre institution mediation proceedings prior to the filing of the present suit. (concluded) RO&AC”
10. DW[2], Mr. Arora, did not file any affidavit in evidence. He was examined-in-chief and cross examined on 7 December 2024. The record of the examination-in-chief and cross examination of DW[2], as recorded on 7 December 2024, is as under: “CS (COMM) 249/24 PAWAN KUMAR BHARARAVS.
SANJEEV KUMAR CHHATWAL 07.12.2024 DW-2: Sh. Sudershan Kumar Arora s/o Sewa Ram Arora, aged about 72 years, r/o D-2 A/13-A, Janakpuri, New Delhi-58. On SA
1. At this stage, witness is shown the original rent agreement dated 07.06.2016, copy of which is already exhibited as Ex. DW- 1/1. The rent agreement Ex. DW-1/1 bears my signature at point X. I also identify the signature of my wife at point A on each page.
2. At this stage, witness is shown 12 original rent receipts, copy of which have already been exhibited as Ex. DW1/2. All the 12 rent receipts bear my signature at point A. XXXXX by Sh. Kshitiz Mathur, Counsel for plaintiff
3. At this stage, the witness is shown copy of the sale deed Ex. PW-1/2 (OSR). This sale deed was executed by me in favour of the/1 plaintiff. The sale deed bears my signature at point A on each page. (concluded)”
11. We also deem it appropriate to reproduce the following paragraphs from the rent agreement thus: “RENT AGREEMENT This Rent Agreement is made at Delhi on this 07.06.2016, between:-
1. Usha Arora wife of Shri Darshan Kúmar Arora, R/o D-2A/13A, Janak Puri, New Delhi-110058; hereinafter called the Landlord/Owner:
2. Sanjeev Chhatwal son of Late Shri Ram Chhatwal, R/o F/432, Karam Pura, New Delhi; hereinafter called the Tenant; WHEREAS the Tenant has taken from the Landlord One Godown on First Floor, Pvt. No.3, in premises No.1232, Grover House, Green Market, Sadar Bazar, Delhi-110006, on the monthly rental of Rs.500/- payable every month in advance as per English Calender Month. The rate of rent is admitted to be as standard rent by the tenant.
NOW THIS RENT AGREEMENT WITNESSETH AS UNDER:
1. That the physical possession of the tenanted premises is taken over by the tenant from the Landlord 08.06.2016, and therefore the tenancy will be deemed to have reckoned from the same date.
2. That the tenant will use the premises for godown purpose, and will not change the use thereof.
3. That the tenant will not sublet part with or assign the premises in any shape or manners.
4. That the tenant will not carry out any sort of alteration or addition in the tenanted premises.
5. That the electric and water charges will be paid by the tenant separately to the authorities concerned as per the bills.
6. That the annual white washing, painting etc. will be done by the tenant at his own costs and expenses.
7. That if the tenant may stop the payment of rent, then the landlord/owner will be free to initiate legal proceedings for the recovery of all the arrears of rent and to evict the tenant.
8. That the tenant will not do any act in contravention of the land and the civic authorities in the tenanted premises.
9. That while vacating the premises at any time in future the tenant will return the possession of the same to the landlord only and to none else.
10. That the tenure of this Agreement is for a fix period of 06 (Six) Months only, w.e.f. 08.06.2016 to 07.12.2016
11. That both the parties will remain free to revoke this agreement after serving one month notice to the other party.
12. That the tenant will do not any illegal work/business in the above said premises in any circumstances, and shall not keep any objectionable item in the said tenanted premises and if the tenant founds to do so that will be the sole responsibility of the tenant only.
13. That the tenant has provided to the landlord an interest-free security of Rs. 3,00,000/- (Rs. Three Lacs only), which shall be refundable without interest on the termination of the tenancy and return of the peaceful vacant possession of the tenanted premises.
14. That the legal heirs, executors, administrators and nominees of both the parties will also remain bound by all these terms and conditions.
12. Following the aforesaid recording of evidence, the learned Commercial Court proceeded to decide Issues 1, 2, and 5, as arising before it thus:
13. Counsel for defendant has argued that plaintiff has not disputed the rent agreement and rent receipts in the cross examination of DW-1 as well as DW-2. He further argued that no question was put to DW-2 Sudharshan Kumar Arora in his cross examination regarding determination of the tenancy which establishes that DW-1 is a lawful tenant in the suit property @ Rs. 500/- per month. Hence, the suit of the plaintiff is barred u/s 45 of Delhi Rent Control Act.
14. Counsel for plaintiff has vehemently argued that the defendant has failed to discharge the onus cast on him. He has argued that neither the rent receipts Ex. DW-1/2 nor the rent agreement mention the number of the suit property which is F-13. It was argued that the sale deed Ex. PW-1/1 specifically mention that Sh. Sudarshan Kumar Arora had sold shop bearing private no. F-13 situated in property bearing municipal no. 1223-32, Ward NO. 14 situated at Gali no. 11, Sadar Bazar, Delhi-110006. The site plan annexed with the suit property also shows shop no. F-13 to be the subject matter of the suit property. However, the rent agreement Ex DW-1/1 produced by the defendant pertains to godown on first floor bearing private no. 3 in premises no. 1232, Grover House, Green Market, Sadar Bazar, Delhi-110006 and the rent receipts Ex. DW-1/2 do not bear any shop number. Hence, the rent agreement Ex. DW-1/land rent receipt Ex. DW-1/2 do not prove that defendant was a tenant in the suit property bearing private no. F-13.
15. I have carefully perused the sale deed Ex. PW-1/2 as well as copy of the sale deed Ex. PW-2/A produced by PW-2 Manju from the office of Sub Registrar, Delhi. DW-2 Sudarshan Kumar Arora in his cross examination has also admitted the execution of the sale deed Ex. PW-1/2 in favour of plaintiff. The subject matter of sale in the sale deed is shop bearing private no. F-13. The plaintiff has also filed the present suit in respect of the same shop against the defendant. However, defendant in his WS or evidence has nowhere mentioned that he was inducted as a tenant in the suit property bearing private shop no. F-13. No site plan has also been filed by the defendant along with the WS in respect of the shop let out to him. In the entire WS, defendant has mentioned that he is a tenant in the suit property without mentioning the number of the shop in which he was inducted as a tenant.
16. The onus to prove the fact that defendant was inducted a tenant in the suit property i.e. F-13 was upon the defendant. He has not placed on record any document to show that he was inducted as a tenant in shop no. F-13 by Smt. Usha Arora. As already pointed out by the counsel for plaintiff, the rent receipts Ex. DW-1/2 do not mention any shop number at all whereas the rent agreement Ex. DW-1/1 specifically mention private shop no. 3 and not shop no. F-
13. Hence, there is nothing on record to establish that the rent agreement Ex. DW-1/1 and the rent receipts Ex. DW-1/2 are in respect of the suit property i.e. F-13. Perusal of the site plan Ex. PW-1/3 filed by the plaintiff is also of shop no. F-13. Although, defendant in his cross examination has deposed that shop the is shown at point A (i.e. shop no. F-13) in site plan Ex. PW-1/3, is his shop whereas shop no. F-3 is a different shop on the same floor after shop no. F-14, staircase, and balcony. Not only this, even though defendant examined DW-2 Sudarshan Kumar Arora to prove the rent receipts Ex. DW-1/2 and rent agreement Ex. DW- 1/1 but no question was put to him regarding the number of shop which was let out by his wife Smt. Usha Arora to the defendant. No clarification was also sought from DW-2 that shop number mentioned in the rent agreement Ex. DW-1/1 is not shop no. 3 but shop no. F-13 or that there was a typographical mistake in mentioning the shop number in the rent agreement Ex. DW.. 1/1. Hence, in the absence of any such clarification or explanation coming from DW-1 or DW-2, it cannot be said that there was typographical mistake in mentioning the shop number in rent agreement Ex. DW-1/1.
17. Therefore, in view of the aforesaid discussion, I am of the considered opinion that defendant has failed to establish that he was inducted as a tenant in the suit property i.e. shop no. F-13 by Smt. Usha Arora in the year 2016 at a monthly rent of Rs. 500/-. Once the defendant has failed to establish that he is a tenant in the suit property i.e. shop no. F-13, the question of suit being barred u/s 45 of DRC Act also does not arise. Hence, in my view the defendant has failed to discharge the onus cast on him. The issues are accordingly decided against the defendant and in favour of the plaintiff. ***** “Issue no. 5: Whether the plaintiff is entitled for recovery of Rs.20,000/- per month from the defendant from 01.06.2023 till handing over the suit property by the defendant to the plaintiff? (OPP)
28. The onus of proving this issue has been placed on the plaintiff. The plaintiff has claimed damages/mesne profits @ Rs.20,000/- per month from 01.06.2023 till realization of the possession of the suit property.
29. The plaintiff has not examined any witness in support of his claim that he is entitled for recovery of Rs.20,000/- per month from the defendant from 01.06.2023. Plaintiff in his affidavit Ex. PW- 1/A has simply stated that since defendant is in unauthorized occupation of the suit property. Hence, he is liable to pay mesne profits and damages @ Rs.20,000/- per month from 01.06.2023. The plaintiff has not examined any witness to show the prevailing rate of rent in the adjoining property nor he has placed any rent agreement/lease deed of the adjoining shop to show the prevalent market rent in the locality. Defendant in his cross examination has deposed that he is not aware about the prevailing market rent of the shop like the suit property in the area. In these circumstances, I am of the considered opinion that plaintiff has failed to show his entitlement of mesne profits/damages @ Rs.20,000/- per month.
30. However, the courts can always take judicial notice of the fact that the suit property is situated in a prominent commercial area having wholesale markets. In Bakshi Sachdev (D) by Lrs Vs. Concord[6]
(I) it was held that judicial notice of the fact that increase in rent in Delhi have occurred can be taken. Mesne profits or damages for use and occupation after termination of tenancy can be substantially more than the agreed rent. Hence, after taking into account the location of the suit property and the fact that the rents in Delhi have increased considerably during the last few years, I am of the considered opinion that the plaintiff can be compensated by awarding damages / mesne profits @ Rs.10,000/- per month from 01.06.2023 till realization of the possession of the suit property. The issue is accordingly decided in favour of the plaintiff and against the defendant.”
13. Following the aforesaid findings, the learned Commercial Court has issued a decree of possession and permanent injunction in favour of Pawan and against Sanjeev, in respect of the suit property situated at Municipal No. 1223-32, Pvt. No. F13, Ward No. XIV, situated in Gali No.11, Sadar Bazar, Delhi-110006, and has further granted damages / mesne profits @ ₹20,000/- per month from 1 June 2023 till handing over of vacant and peaceful possession of the suit property. The relief’s decreed by the Court are reproduced below: (1) 1993 RLR 563 “Relief.
31. In view of my findings on the issues hereinabove, suit is decreed in favour of the plaintiff and against the defendant. A decree of possession is passed in favour of plaintiff and against the defendant in respect of the suit property ie. shop bearing municipal no. 1223-32 private no. F-13, Ward NO. XIV, situated at Gali no. 11, Sadar Bazar, Delhi-110006 admeasuring 10 sq. yds (or 8.361 sq. mtrs) more specifically shown in red colour in the site plan Ex. PW-1/3. A decree of permanent injunction is passed in favour of the plaintiff and against the defendant and defendant, his successors, agents, heirs, nominees, assignees, attorneys etc. are perpetually restrained from selling, alienating, gifting mortgaging, sub-letting, parting with possession or creating any third party interest of any nature whatsoever in respect of the suit property i.e. shop bearing municipal no. 1223-32 private no. F-13, Ward NO. XIV, situated at Gali no. 11, Sadar Bazar, Delhi-110006 admeasuring 10 sq. yds (or 8.361 sq. mtrs) more specifically shown in red colour in the site plan Ex. PW-1/3. A decree of damages/mesne profits is passed in favour of plaintiff and against the defendant. Defendant is directed to pay to the plaintiff a sum of Rs. 20,000/- per month towards damages/mesne profits from 01.06.2023 till the date of handing over of vacant and peaceful possession of the suit property i.e. shop bearing municipal no. 1223-32 private no. F-13, Ward NO. XIV, situated at Gali NO. 11, Sadar Bazar, Delhi-110006 admeasuring 10 sq. yds (or 8.361 sq. mtrs) more specifically shown in red colour in the site plan Ex. PW-1/3 to the plaintiff. The plaintiff shall deposit deficient court fees, if any, within two weeks from today. Plaintiff shall also be entitled to the cost of the suit. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.”
14. Heard learned Counsel appearing for both of the parties.
15. Learned Counsel appearing on behalf of Sanjeev, Mr. Nishant Dutta, attempted to persuade this court to allow his application to take on record additional evidence under Order XLI Rule 27.
16. He argues that the affidavit of Mr. Sudershan Kumar Arora, which was not a part of the record placed before the learned Commercial Court, will clarify that the suit property’s numbering as “F -13” was privately allotted for the purpose of drawing up of the Sale Deed in Pawan’s favour, and does not figure in any government records.
17. Mr. Dutta also shows the Court that the affidavit clarifies that the shop which was in possession by Sanjeev in the capacity of a tenant was the very same one that formed the subject matter of the sale deed in Pawan’s favour.
18. He also presses Sanjeev’s tenancy in the suit property as being lawful.
19. Learned Counsel appearing on behalf of Pawan, Mr. Kshitij Mathur, opposes the application, arguing that the affidavit which he seeks to bring on record was not before the learned Commercial Court and ought not to be considered at the appellate stage. Analysis
20. At the outset, we observe that the parties are not, and were not, ad idem, to the extent of the exact description of the suit property. There are discrepancies as to whether the property bearing “Shop no. F-13” is the same as the property bearing “Shop no. 3”.
21. To that effect, Order XIV of the Code of Civil Procedure, 1908[7] is sufficiently clear as to the responsibility of a Trial Court to frame issues in a suit. Rules 1 through 5 merit reproduction: “ORDER XIV Settlement of Issues and Determination of Suit on Issues of Law or on Issues agreed upon Framing of issues.—(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other. (2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue, or, if they be not alleged, the suit would at once be decided against him; they are such material propositions of fact or law as, being by one party affirmed and by the other denied, form the subject of adjudication. (3) Issues are of two kinds: (a) issues of fact. (b) issues of law. (4) At the first hearing of the suit the Court shall, after reading the plaint and the written statements if any, and [if the examination under rule 2 of Order X and after hearing the parties or their pleaders], ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. [5. Power to amend and strike out, issues.—(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.]
22. It is evident that this variance in material facts was before the learned Commercial Court, visible in para 6 of Sanjay’s written statement, which merits reproduction: “…Even the Plaintiff has also given the vague description of the suit property. The site plan filed by the Plaintiff qua the suit property is also not correct as per site and it does not depict the proper location and description of the suit property. Admittedly, the suit shop is situated at the first floor and it forms part of property no.1232, Grover House, Green Market, Sadar Bazar, Delhi. However, in the plaint, the Plaintiff has shown the suit property forming part of built up property bearing No.1232, Gnt. No.F-19, Ward no.14, Gali no.11, Sadar Bazar, Delhi-110006. It is submitted that there is no whisper about the first floor. Even the number of the suit property has been wrongly given as 1233-32 and this itself shows that the Plaintiff is not sure as to of which property the suit property forms part thereof…”
23. Furthermore, the cross examination of Sanjeev revealed that he was not aware of any number assigned to the shop which had allegedly been rented out to him. Despite this, during his examination as DW[1], he indicates to point ‘A’ on Pawan’s site plan[8] that bears number F-13, on being questioned as to where the shop of which he is allegedly in possession as a tenant lies on the site plan.
24. We believe this variance as to the description of the suit property is elementary and runs to the very root of the dispute.
25. It is imperative for the Court to critically examine pleadings prior to the act of framing issues. The question of whether a subject ought to be framed as an issue is answered in the affirmative if the fact is material in nature, and parties are at variance to its existence, i.e., the fact is affirmed by one party and denied/ not admitted by another. “CPC”, hereinafter
26. To this effect, we deem it appropriate to reproduce para 19 of the Hon’ble Supreme Court’s judgment in Makhan Lal Bangal v. Manas Bhunia[9]: “19.... The stage of framing the issues is an important one inasmuch as on that day the scope of the trial is determined by laying the path on which the trial shall proceed excluding diversions and departures therefrom. The date fixed for settlement of issues is, therefore, a date fixed for hearing. The real dispute between the parties is determined, the area of conflict is narrowed and the concave mirror held by the court reflecting the pleadings of the parties pinpoints into issues, the disputes on which the two sides differ. The correct decision of civil lis largely depends on correct framing of issues, correctly determining the real points in controversy which need to be decided. The scheme of Order 14 of the Code of Civil Procedure dealing with settlement of issues shows that an issue arises when a material proposition of fact or law is affirmed by one party and denied by the other. Each material proposition affirmed by one party and denied by other should form the subject of a distinct issue. An obligation is cast on the court to read the plaint/petition and the written statement/counter, if any, and then determine with the assistance of the learned counsel for the parties, the material propositions of fact or of law on which the parties are at variance. The issues shall be framed and recorded on which the decision of the case shall depend. The parties and their counsel are bound to assist the court in the process of framing of issues. Duty of the counsel does not belittle the primary obligation cast on the court. It is for the Presiding Judge to exert himself so as to frame sufficiently expressive issues. An omission to frame proper issues may be a ground for remanding the case for retrial subject to prejudice having been shown to have resulted by the omission. The petition may be disposed of at the first hearing if it appears that the parties are not at issue on any material question of law or of fact and the court may at once pronounce the judgment. If the parties are at issue on some questions of law or of fact, the suit or petition shall be fixed for trial calling upon the parties to adduce evidence on issues of Site plan placed on record by Pawan has been annexed as “Annexure A” to the present judgment.
fact. The evidence shall be confined to issues and the pleadings. No evidence on controversies not covered by issues and the pleadings, shall normally be admitted, for each party leads evidence in support of issues the burden of proving which lies on him. The object of an issue is to tie down the evidence and arguments and decision to a particular question so that there may be no doubt on what the dispute is. The judgment, then proceeding issue-wise would be able to tell precisely how the dispute was decided.” (emphasis supplied)
27. The implications of the non-framing of relevant issues by a Trial Court where variance between parties as to material fact/law exist has been considered by the Hon’ble Supreme Court in numerous judgments. We shall now proceed to discuss to this effect the decisions in Nedunuri Kamesaramma v Sampati Subba Rao10 ¸ Makhan Lal Bangal (supra), and Dalip Ram v State of Punjab11. Nedunuri Kameswaramma
28. Nedunuri was, in its essence, an appeal arising out of a suit filed by the appellant for ejectment of the respondent from 4.80 acres of jeryoti land and for mesne profits. The respondent had, among other things, denied the land being jeryoti land, stating instead that it was part of a Dharmila Sarvadumbala inam land.
29. The issue framed by the learned Trial Court therein was “whether the suit land is a Dharmila inam, and if so, whether the suit in ejectment is maintainable?”. AIR 1963 SC 884
30. It was contended by the appellant that the issue of “whether the land was a Karnikam service inam (jeryoti land)” was not framed.
31. The Hon’ble Supreme Court held that before the learned Trial Court, parties led their evidence on the issue, as if it embraced all the other issues which were not specifically framed.
32. The learned Trial Court’s decision was challenged before the Sub-ordinate Judge, Amalapuram, on the ground of prejudice caused due to non-framing of an issue as to the extent of whether the land in question was a Karnikam service inam.
33. The learned Sub-ordinate Judge held that the absence of a specific issue concerning Karnikam service inam had not prejudiced the respondent, who had himself set up a case of Dharmila inam and had also met the case of a Karnikam service inam, and had filed documents and led evidence in refutation of the other side’s case.
34. On second appeal, the learned Single Judge identified the nonframing of the issue in question to be one of the grounds for setting aside the outcome of the suit.
35. The Hon’ble Supreme Court, while overturning the High Court’s decision, noted that the appellant had already pleaded that the land in dispute was jeryoti land, and it was the respondent who pleaded that it was a Dharmila inam land instead. Furthermore, though the appellant had not mentioned a Karnikam service inam, parties well understood that the two cases opposing each other were that of Dharmila Sarvadumbala inam as against Karnikam service inam.
36. Holding that no issue was framed, and that the issue which had been framed could have been more elaborate, yet, that parties went to trial fully knowing the rival case and led all evidence in support of their own case and in refutation of the other side’s case, it couldn’t be said that the absence of framing the issue was fatal, or that there was a mistrial which vitiated proceedings. Makhan Lal Bangal
37. The matter before the Hon’ble Supreme Court was an election trial, but a sub-issue to be adjudicated was on the alleged non-framing of issues at the time of trial.
38. Though the election petition contained 11 allegations of corrupt practices, only one omnibus issue had been framed as to whether the respondent and his agents were guilty of corrupt practices as alleged.
39. While the Court took considerable time to elaborate upon the importance of framing issues correctly, and even observed that each allegation should have formed the subject matter of a separate issue, and that failure to frame such separate issues resulted in chaos and confusion – the defective framing of issues, though undoubtedly material, had not vitiated the trial, as the parties had participated in the trial with complete knowledge of allegations and counter-allegations made in the pleadings, and that none of the parties had complained of prejudice, nor made prayers to amend/ strike down any of the issues framed. Dalip Ram
40. Dalip Ram comprised a batch of SLPs concerning whether subject lands were Shamlat deh allotted on quasi-permanent basis to displaced persons, or Shamlat deh transferred to any person in any manner.
41. A contention was raised to the extent of the concerned Divisional Deputy Director’s non-framing of issues to adjudicate the application before him, stating that this act caused prejudice to the petitioner, and was an illegality that caused the order which was passed to be a nullity.
42. In its consideration of the contention, the Court held thus:
2007 SCC OnLine Kar 160 Chakraborty13, held the same view. A survey on the authorities on the said subject would reveal that many other High Courts have also shared the same view. We do not find any reason to disagree with the said exposition of law as, mentioned above, as in our view also, non-framing of issues by itself will not make a decision a nullity, if the parties to the lis understand and adduced evidence on the issues actually involved in the matter. When the petitioners themselves filed Section 11 petitions and attempted to establish the fact that the subject land(s) involved is not Shamlat deh and the Gram Panchayat concerned also produced evidence to evince that the position is vice-versa, how can it be held that they were at a loss to understand the issue and not adduced their best evidence in that regard.” (emphasis supplied)
43. The issue that was contended as having ought to be framed in Nedunuri is relevant to the facts before us. Essentially, the dispute centred upon whether the land in question was type ‘A’ land or type ‘B’ land. These conclusions were mutually exclusive, and, in fact, directly opposed each other. The framing of an issue as to “whether the land is Type A land?”, to the exclusion of mentioning type ‘B’ land, does not prejudice a party, nor vitiate the conclusion arrived at by the Court as to the nature of the land in dispute.
44. This is for the simple fact that, parties were fully aware of pleadings ought to be made to support their case, as well as those to refute the opposite side’s case.
45. It is this knowledge and leading of evidence relevant to the crux of the dispute that washes away all claims of prejudice on account of the mere non-framing of an issue. AIR 1997 Gau 15
46. This stand was reiterated in Makhan Lal Bangal, as well as Dalip Ram.
47. The facts before us are such that both parties were aware of that which they had to prove before the learned Commercial Court, as well as that which ought to have been refuted, to be granted relief.
48. The plea of discrepancy as to the description of the suit property, though having been raised in para 6 of Sanjeev’s written statement, lost all momentum at the time of examination of evidence.
49. The Court is shocked to observe that, while the erstwhile owner of the property, Mr. Arora, was introduced as DW-2 by Sanjeev himself, his examination was restricted to only proving his signatures on the rent receipts and rent agreement.
50. It is this very witness whose affidavit Sanjeev wishes this Court to admit as additional evidence, stating the reason for the same to be that Mr. Arora only found the need to clarify these discrepancies after reading the impugned judgment and decree.
51. As noted by the learned Commercial Court as well, no questions were posed to this witness as to the nature of numbering of the suit property and the discrepancies arising therefrom, and about his affirmation of both- the signing of the rent agreement and receipts concerning Sanjeev’s tenancy, as well as the signing of the sale deed in favour of Pawan, without asking him how the two could co-exist, and whether they pertain to the same property.
52. It is evident that Sanjeev was fully knowledgeable of what ought to be proven before the learned Commercial Court, seeing as to how at in his cross examination, he even pointed at point ‘A’ on Pawan’s site plan, indicating that it (F-13) was the shop to which he enjoyed tenancy. This has been recorded by the learned Commercial Court at para 15 of the impugned judgment, and defeats all opposition posed by Sanjeev to the correctness of Pawan’s site plan. Thus, the onus was on Sanjeev to establish his tenancy as being of Shop F-13, oh which he was aware. Despite this, he ceased to advance his case beyond proving the standalone existence of his rent agreement that pertained to “shop no. 3” and rent receipts that lacked a description of the property of which he claimed lawful tenancy.
53. Furthermore, the challenge to the extent of non-framing of a specific issue dealing with the description of the suit property is finally laid to rest on observing that there was no attempt to modify the issues thus framed by the learned Commercial Court by Sanjeev, and that this very challenge, coupled with an attempt to place on record additional evidence in the form of an affidavit of a party’s own witness, speaks to a certain pattern of belated action and afterthought.
54. We agree with the learned Commercial Court that Sanjeev erred in not producing a site plan, and that the onus was on him to prove that he was inducted as a tenant in the suit property, being Shop F-13. In the absence of rent receipts mentioning a shop number, and the rent agreement mentioning “shop no. 3”, there was nothing on record to establish that the rent receipts and agreement pertained to the suit property. This conundrum was only worsened by a purposeless examination of Mr. Arora.
55. We hold that no error was committed by the learned Commercial Court in its evaluation of the pleadings and evidence before it, and that the failure to frame an issue to ascertain the exact description of the suit property, though material, was not prejudicial to either party, as they have led evidence and argued with the knowledge of that which ought to be proved, as well as that which ought to be refuted, in order to secure relief.
56. We find no infirmity in impugned judgment and decree to this extent.
57. However, an error has been committed by the learned Commercial Court in its decree, to the extent of the quantum of mesne profit/ damages directed as payable by Sanjeev to Pawan. This figure was ascertained at ₹ 10,000/-, but the Court later went on to decree this amount at ₹ 20,000/- per month. We revert this amount, on account of the error being apparent on the face of the record. Relevant paragraphs of the impugned judgment are reproduced below for ready reference: “Issue no. 5: Whether the plaintiff is entitled for recovery of Rs.20,000/- per month from the defendant from 01.06.2023 till handing over the suit property by the defendant to the plaintiff? (OPP)
28. The onus of proving this issue has been placed on the plaintiff. The plaintiff has claimed damages/mesne profits @ Rs. 20,000/per month from 01.06.2023 till realization of the possession of the suit property.
29. The plaintiff has not examined any witness in support of his claim that he is entitled for recovery of Rs. 20,000/- per month from the defendant from 01.06.2023. Plaintiff in his affidavit Ex. PW-1/A has simply stated that since defendant is in unauthorized occupation of the suit property. Hence, he is liable to pay mesne profits and damages @ Rs. 20,000/- per month from 01.06.2023. The plaintiff has not examined any witness to show the prevailing rate of rent in the adjoining property nor he has placed any rent agreement/lease deed of the adjoining shop to show the prevalent market rent in the locality. Defendant in his cross examination has deposed that he is not aware about the prevailing market rent of the shop like the suit property in the area. In these circumstances, I am of the considered opinion that plaintiff has failed to show his entitlement of mesne profits/damages @ Rs. 20,000/- per month.
30. However, the courts can always take judicial notice of the fact that the suit property is situated in a prominent commercial area having wholesale markets. In Bakshi Sachdev (D) by Lrs Vs. Concord (1) 1993 RLR 563 it was held that judicial notice of the fact that increase in rent in Delhi have occurred, can be taken. Mesne profits or damages for use and occupation after termination of tenancy can be substantially more than the agreed rent. Hence, after taking into account the location of the suit property and the fact that the rents in Delhi have increased considerably during the last few years, I am of the considered opinion that the plaintiff can be compensated by awarding damages /mesne profits @ Rs. 10,000/- per month from 01.06.2023 till realization of the possession of the suit property. The issue is accordingly decided in favour of the plaintiff and against the defendant. Relief.
31. In view of my findings on the issues hereinabove, suit is decreed in favour of the plaintiff and against the defendant. ***** A decree of damages/mesne profits is passed in favour of plaintiff and against the defendant. Defendant is directed to pay to the plaintiff a sum of Rs. 20,000/- per month towards damages/mesne profits from 01.06.2023 till the date of handing over of vacant and peaceful possession of the suit property i.e. shop bearing municipal no. 1223-32 private no. F-13, Ward NO. XIV, situated at Gali NO. 11, Sadar Bazar, Delhi-110006 admeasuring 10 sq. yds (or 8.361 sq. mtrs) more specifically shown in red colour in the site plan Ex. PW-1/3 to the plaintiff. “
58. The appeal is allowed to the limited extent of revision of the quantum of mesne profit/ damages awarded by the learned Commercial Court. The remainder of the judgment and decree dated 5 March 2025 passed by the learned Commercial Court stands upheld. CM APPL. 31482/2025 (Additional Evidence)
59. The present application has been filed to take on record additional evidence, under Order 41 Rule 27 of the CPC. The applicant seeks to contend that the learned Trial Court failed to frame an issue as to the discrepancy of the description of the suit property.
60. For the reasons discussed in the deliberation upon the merits of the appeal, this argument does not impress the Court.
61. The sole ground relied upon in the application to permit the taking on record of additional evidence, being the affidavit of Mr. Arora, erstwhile owner of the suit property, is that it was only upon perusal of the impugned judgment that Mr. Arora found it necessary to dispel any doubt regarding the identity of the suit property and the nature of the alleged tenancy in dispute.
62. As noted, the applicant before us is the very same party that introduced Mr. Arora as its own witness before the learned Commercial Court, as DW[2], where he filed no affidavit. Therefore, this ground, too, fails to impress us.
63. Aside from this, the application fails to meet the requisite threshold laid down in Order XLI Rule 27 of the CPC, which merits reproduction: ORDER XLI Appeals from Original Decrees *****
27. Production of additional evidence in Appellate Court.—(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or ¹[(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or] (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined. (2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.
64. Rule 27 (a) is not relevant to the facts before us, as the applicant had not filed an application seeking to place on record this evidence before the learned Commercial Court, nor made an averment to this extent at any stage in the suit as well as the appeal, that the learned Commercial Court has refused to take on record the affidavit of Mr. Arora. Rule 27 (aa) is also beyond the applicant’s grasp, as there is no averment to the extent of this evidence being outside of Sanjeev’s knowledge during the proceedings before the learned Commercial Court.
65. As to Rule 27 (b), this Court is unambiguously of the opinion that the affidavit of Mr. Sudershan Kumar Arora is not required to adjudicate this appeal, and that allowing this affidavit to be placed on record would be a gross abuse of the procedural sanctity that Courts strive to uphold.
66. We do not appreciate the filing of this application as an afterthought to what ought to have been placed before the learned Commercial Court.
67. This application is disposed of for the aforesaid reasons.
68. Other pending applications, if any, do not survive, and are disposed of accordingly.
69. No orders as to costs. AJAY DIGPAUL, J.
C. HARI SHANKAR, J.
MAY 29, 2025 ANNEXURE A