MADAN B. LOKUR, J.

The importance of this decision lies not in any substantial question of law having been decided – indeed, no question of law was urged before us, only issues touching upon facts. The importance lies in the nature of the dispute between the parties, which is a purely commercial dispute in which litigation expenses have touched the sky. In our opinion, the only way in which a successful litigant can be compensated financially is by awarding actual costs incurred by him in the litigation. The Supreme Court has recommended this course of action and we think the time has come to give more than serious weight and respect to the views of the Supreme Court. We have endeavoured to do just that in this appeal by awarding to the Respondents the actual litigation expenses incurred by them, which is a staggering Rs. 45,00,000/-.

2. The Appellant is aggrieved by an order dated 8th November, 2004 passed by a learned Single Judge in I.A. No.227/2004 in CS (OS) No.2213/2003. By the impugned order, it was held that the Appellant (Plaintiff before the learned Single Judge) had failed to make out a prima facie case for continuation of the ex parte ad interim order earlier passed in his favour.

3. The Appellant was a tenant of the Respondents in respect of a shop on the mezzanine floor of 11-E, Connaught Circus, Connaught Place, New Delhi. This tenancy was created in 1970.

4. On 1st July, 1986 the Appellant entered into a lease deed with the Respondents in respect of the first floor of the same premises (hereafter referred to as the leased premises on the first floor).

5. At this stage, it may be stated that there is a staircase from the ground level to the shop on the mezzanine floor. There is also a completely independent staircase in the service lane from the ground level to the leased premises on the first floor.

6. Apparently, for his convenience, the Appellant was desirous of internally connecting the shop on the mezzanine floor with the leased premises on the first floor. Therefore, he addressed two (more or less) identical letters to the Respondents on 4th July, 1986 requesting permission to make an internal staircase connecting the shop on the mezzanine floor with the leased premises on the first floor. The Respondents gave their approval to the construction on the terms and conditions set out by the Appellant and accordingly granted their approval.

7. For facility of reference, we are reproducing below the text of one of the letters dated 4th July, 1986:

“JAINSONS OUTFITS 4th July, 1986 Shri Raghubir Saran Charitable Trust, 40-42, Janpath, New Delhi.

Dear Sirs,

Sub: PERMISSION UNDER CLAUSE 4 OF THE LEASE DEED DATED 1ST JULY, 1986

The undersigned is a tenant of Shop No.11-E (Mezzanine Floor) forming part of your building situated on Units Nos. 13 to 29, Block-E, Circus-D, Connaught Place, New Delhi on a monthly rental of Rs.2,500/- per month. There is a stair case abutting inner circle of Connaught Place, New Delhi that stair case leads : upto the Mezzanine Floor over and above 11-E, Connaught Place, New Delhi. I seek your permission to provide an additional internal staircase leading from Mezzanine of Shop 11-E to first floor, flat No.4, Mpl No.37-E, the tenancy of which also is in the name of the undersigned. The undersigned assures you to fulfill the following conditions:-

1. That the internal stair case will be provided to connect Mezzanine and first floor premises taken by the undersigned on rent without causing any damage to any part or portion of the building of which the demised premises are a part.

2. That for providing the internal stair case I shall engage qualified architect or building engineer. The construction work will be carried out on the advice of the said architect/building engineer.

3. That all expenses incurred in engaging the Architect/building engineer and contractor etc. together with all expenses to be incurred for the provision of the said internal stair case will be borne by me alone