The court held that the clause entitling liquidated damages was bad in law as damages could be proved and no evidence was led to entitle the plaintiff to a rate of mesne profits higher than the agreed rate of rent.

Valmiki J. Mehta, J.

1. The challenge by means of this Regular Second Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC), is to the impugned judgment dated 22.2.2002 which has decreed the suit of the Appellant/Plaintiff only in part while dismissing the claim of recovery of Rs. 40,000/- being the alleged damage caused by the Respondent/tenant by demolishing a partition wall. The second relief which has been denied was the claim of the Appellant for claiming liquidated mesne profits in terms of Clause 8 of the Lease Deed, as per which, the Appellant claims to be entitled to charges of Rs. 1000/- per day for unauthorized occupation.

2. So far as the first aspect is concerned, a reference to the pleadings shows that the Respondent/Defendant had denied that he has demolished the partition wall. In fact, during the cross examination of the Appellant/Plaintiff, a suggestion has been put that in fact there was never any partition wall. Even in the affirmative evidence of the Respondent/Defendant, he has stated that he has not demolished any partition wall because there was never any partition wall when the premises were taken on rent. Learned Counsel for the Appellant contends that the Appellant in a legal notice Ex.PW1/D, in para 7, had mentioned the factum of the claim of damages for breaking of the wall and therefore the Appellant was entitled to the same since this was not denied to in the reply to the legal notice Ex.PW1/G. I have gone through the reply and this reply specifically denies that the wall has been demolished by the Respondent/Defendant. Further, and as stated above, the Respondent/Defendant has specifically in the pleadings and also in his evidence denied that he has demolished any partition wall. In my opinion, therefore, there is no error in the judgment of the trial court, by which, the claim with respect to damages for demolition of the wall has been disallowed.

3. So far as the second argument as raised by the learned Counsel for the Appellant, relying upon Clause 8 of the Lease Deed Ex.PW1/B is concerned, it is settled law that such Clauses entitling liquidated damages are bad in law because of Section 74 of the Contract Act, 1872, inasmuch as once damages can be proved, a Clause by which interrorem damages have been fixed, cannot have any legal effect in view of the Constitution Bench judgment in the case of Fateh Chand v. Balkishan Das AIR 1963 SC 1405. The nature of the contract in the present case is such that the relief of mesne profits can always be proved by leading evidence of rents of similar premises, and admittedly, as agreed by counsel for the Appellant, no evidence whatsoever has been led of the rent of other premises so as to entitle the Appellant to a rate of mesne profits higher than the agreed rate of rent.

4. In view of the above, I do not find any merit in the appeal which is accordingly dismissed leaving the parties to bear their own costs. Trial court record be sent back.