The principle of best evidence and the requirement of due diligence in presenting necessary evidence were central to the court's decision.

Caveat 901/2015

1. Since the caveators/respondents have entered appearance, caveat stands discharged.

CM No. 17314/2015 (Exemption)

2. Allowed subject to just exceptions.

RFA 582/2015 & CM Nos. 17315/2015 (Stay) & 17316/2015 ((O. 41 R. 27 r/w S. 151 CPC)

3. This is an appeal filed against judgment and decree dated 10.04.2015 passed by the Addl. District Judge, Tis Hazari Courts, Delhi.

4. Mr. Relan, who appears on behalf of the appellant, in support of the appeal, has raised, only, the following two grounds, before me, to assail the aforementioned judgment.

4.1 First, that the period for which the mesne profit have been calculated, is both on facts and in law, erroneous for the reason that the tenancy was not terminated by respondent no.2/plaintiff no.2. It is stated that, even though respondent no.2/plaintiff no.2 was the land lord of the appellant/defendant, the tenancy had been terminated by respondent no.1/plaintiff no.1. It is thus, the contention of the appellant/defendant, that the tenancy did not get terminated as provided under Section 106 of the Transfer of Property Act, 1882 and, therefore, the finding that he was in unauthorized occupation as returned by the trial court is erroneous. In support of this submission, Mr. Relan, further contends that the plaint was signed only by respondent no.1/plaintiff no.1.

4.2 Second, the rate at which the mesne profits have been awarded by the trial court is exorbitant. In respect of this ground, Mr. Relan concedes that relevant evidence was not placed before the trial court by the appellant/defendant and, therefore, relies upon the accompanying application filed under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (in short the CPC), to place before this court, at this juncture, the relevant material, for calculation of the mesne profits.

5. I may only note that the application under Order 41 Rule 27 of the CPC is accompanied by a photocopy of a purported lease deed dated 29.03.2006, executed between, one, Dr. Virender Kumar Saini and the Punjab & Sind Bank in respect of premises located on the ground floor at M-14, Connaught Circus, New Delhi. The tenure of the said lease deed appears to span a period commencing from 01.04.2004 to 01.04.2007. The lease deed, however, adverts to the fact that two portions of the building constructed on the aforementioned property, i.e. ground floor and the mezzanine floor, are leased, albeit at different rates. The ground floor is, apparently, leased at Rs. 65/- per sq. ft., while the mezzanine floor is leased at Rs. 32.50 per sq. ft.

6. I have heard Mr. Relan in respect of both aspects. In so far as his first submission is concerned, the same is untenable for the following reasons.

6.1 Learned counsel for the respondents/plaintiffs has brought to court a copy of the plaint as well as the legal notice furnished on behalf of the appellants/defendants. Both, the copy of the legal notice dated 10.07.2007 (Ex. PW1/8) and the plaint are indicative of the fact that respondent no.2/plaintiff no.2 had determined the tenancy. The legal notice (Ex. PW1/8) has been issued both on behalf of respondent no.1/plaintiff no. 1 as well as respondent no.2/plaintiff no.2. In so far as the plaint is concerned, it has been signed both by respondent no.1/plaintiff no. 1 and respondent no.2/plaintiff no.2. Therefore, the submission of Mr. Relan that the period of mesne profit has been arrived at, contrary to the facts and, in error of law, is a submission which is misconceived and hence rejected.

7. As regards the second submission, which pertains to the rate of mesne profits, which has been awarded by the trial court in this case, in my view, the same cannot be disturbed at this juncture. The reason for this, is that, evidence with regard to the likely damages which the appellants/defendants would have suffered, was produced only by respondent no.1/plaintiff no.1. Admittedly, the appellant/defendant failed to produce any evidence with regard to the mesne profits. The