INDER SAIN BEDI Vs. CHOPRA ELECTRICALS

JUDGEMENT

(1.) This application, under section 151 of the Code of Civil Procedure, for fixing an interim amount as damages/mesne profits payable to the plaintiff, with direction to the defendant to pay the same every month to him, has been filed by the plaintiff in his suit for recovery of possession, mesne profits/compensation and injunction etc. in the following circumstances:

(2.) The plaintiff is the owner of a commercial property, bearing no.B-59/1, Naraina Industrial Area, Phase-II, New Delhi. According to him the defendant had taken a portion of the said property, shown "Green" in the plan attached with the plaint, on 26 May 1980 and later on 1 May 1981, each time for a period of 11 months, at a rental of Rs.4,500.00 per month. His case is that the defendant, in or about the year 1983, encroached upon the other portion of the property, in area app. 3193 square feet, detailed in para 8 of the plaint and shown "red" in the plan, where the defendant unauthorisedly made some constructions also in the form of Mezzanine in the said portion; the plaintiff by notice terminated the defendant's tenancy regarding the demised premises and the defendant having not vacated it, he filed a suit (Suit No.384/89) for recovery of possession with the District Judge at Delhi, reserving his right to take appropriate action for possession, compensation etc. separately qua the portion of the property encroached upon; the said suit was contested by the defendant, inter alia on the plea that the entire property, comprising of both the green and red portions had infact been rented out to them, no portion was encroached upon and the notice to vacate the demised portion was illegal and the suit as framed was not maintainable for a part of the tenancy. Plaintiff's case, further, is that after trial, the learned Additional District Judge, rejecting the defendant's pleas in defence decided the contention regarding non-maintainability of the suit in his favour and decreed the suit on 23 April 1993 and the plaintiff thereafter served a notice on 19 May 1993, calling upon the defendant to pay damages/mesne profits and also to vacate the said encroached portion and on his failure to comply, plaintiff filed the present suit (Suit No.519/94) for possession of the portion encroached upon and recovery of Rs.16,72,992.00 as damages/mesne profits with mandatory injunction etc., along with the present application, inter alia, stating that he is being deprived of not only possession of the property but also compensation/mesne profits regarding the same and he is thus suffering losses; he is 80 year old and has no substantial means of income; that the judgment in the earlier suit no.384/89, wherein his contention regarding letting out only a part of the building to the defendant and latter's encroaching upon the other portion has been upheld and defendant's plea in defence has been rejected but the matter now is in appeal (RFA No.507/93), which is pending; the litigation is being prolonged and is likely to take long and, therefore, to relieve hardship on the plaintiff, the court may fix an interim amount as damages/mesne profits and direct the defendant to pay the same to him.

(3.) Both the suit and the application are opposed by the defendant mainly on the plea that these are not maintainable as the matters being the basis of this suit and the application were directly and substantially in issue in the former suit no.384/89; the instant suit has been filed on the basis of judgment in the former suit, which is under appeal, wherein, by order dated 16 July 1993, the operation of the said judgment/order dated 23 April 1993 has been stayed, no case for interim payment of mesne profits etc. exists and the application being meritless is liable to be dismissed.