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TMI Blog2014 (5) TMI 1211X X X X Extracts X X X X X X X X Extracts X X X X ..... ndency of the suit. 2. This appeal is pending before this Court since 3rd January, 2014. The counsel for the respondent No. 1/plaintiff being on caveat appeared. Attempts for amicable settlement of the dispute were made but failed. Vide interim orders in this appeal, the date of compliance with the impugned order was extended from time to time. We have heard the counsel for the appellant/defendant and the counsel for the respondent No. 1/plaintiff. 3. The respondent No. 1/plaintiff instituted the suit from which this appeal arises, (i) for possession of part of property No. D-2/12, Model Town-III, Delhi-09 comprising of part of the ground floor and part of the first floor; (ii) for recovery of Rs. 94 lakhs on account of rent of the aforesaid portion of the property; (iii) for recovery of another sum of Rs. 20 lakhs; (iv) for recovery of damages for use and occupation/mesne profits @ Rs. 4 lakhs per month from the date of institution of the suit till recovery of possession; (v) for declaration that the affidavit-cum-no objection allegedly signed by the respondent No. 1/plaintiff in favour of the appellant/defendant is a forged document; and, (vi) for declaration that the rent rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant/defendant was a tenant in the property, then at a rent of Rs. 1,000/-per month (the property was originally taken on rent of Rs. 400/- per month) and the suit for recovery of possession was barred by Section 50 of Delhi Rent Control Act, 1958; (VII) denying that the rent was Rs. 3 lakhs per month; (VIII) that the appellant/defendant was carrying on businesses in the portion aforesaid of the property in his tenancy under the name of M/s. Dragon Huck's (Chinese Restaurant); (IX) that the appellant/defendant had also taken a loan of Rs. 7 lakhs from the respondent No. 1/plaintiff by depositing the title documents of his property with the respondent No. 1/plaintiff and the claim of Rs. 20 lakhs was towards recovery of the said loan. 5. The respondent No. 1/plaintiff filed a replication to the aforesaid written statement but need is not felt to deal therewith. 6. The respondent No. 1/plaintiff filed I.A. No. 22751/2012 under Order XXXIX Rule 10 of the CPC. Vide order dated 19th September, 2013 thereon, the learned Single Judge directed the appellant/defendant to deposit arrears of rent @ Rs. 1 lakh per month from the date of the institution and till the pendency ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession "mesne profits"; (J) that any deposit made by the defendant under this provision would obviously be subject to final order passed by the Court; (K) that the respondent No. 1/plaintiff had placed on record copies of Lease Deed of commercial properties in the area to substantiate the plea that the prevalent market rent is more than Rs. 3 lakhs per month; (L) that the appellant/defendant was continuing to occupy commercial property after the termination of his tenancy and running a restaurant therein; (M) that the appellant/defendant had not shown that the prevalent rent was less than Rs. 3 lakhs per month; (N) that the mere fact that the respondent No. 1/plaintiff may have the title document of the residential property of the appellant/defendant cannot be said to constitute sufficient security for the purpose of Order XV-A of the CPC; (O) that the object of Order XV-A CPC is to provide the landlord with some 'amount' for use and occupation of the property by the defendant during the pendency of the litigation; (P) that keeping in view of the aforesaid facts, direction for deposit of Rs. 1 lakh per month would subserve the purpose. 10. The only argument o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a suit for recovery of mesne profits/damages for use and occupation of the property during the pendency of a suit for recovery of possession from the person in unauthorized occupation thereof. 16. As far as the city of Delhi was concerned, such suits for recovery of possession of property were rare. The Delhi Rent Control Act, 1958 governing the relations between the landlord and tenant applied to all tenancies and which did not permit recovery of any mesne profits/damages for use and occupation from the tenant. However, in consonance with Order XX Rule 12 CPC, the same also in Section 15 thereof permitted the Rent Controller to, in a proceeding for eviction of tenant, direct the tenant to pay rent falling due during the pendency of the petition for eviction, again obviating the need for the landlord to successively file proceedings for recovery of said rent. The same also provided for striking off of the defense of the tenant to the petition for eviction, if in defiance of such a direction. 17. However, the Rent Act was amended with effect from 1st December, 1988, making the provisions thereof inapplicable in several situations including where the rent of the premises was in e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be mooted. 22. Though Order XVA is titled as "Striking Off defence in a suit by a lessor" but the same is not confined to striking off of defence only. The same, independently of Order XXXIX Rule 10 CPC, vests in the Court the power for issuing a direction for deposit. While so empowering the Court, as rightly held by the learned Single Judge, a departure was made from the language of Order XXXIX Rule 10 CPC. While under Order XXXIX Rule 10 CPC, a direction could be issued only for deposit/payment of admitted amount, the word 'admitted' is conspicuous by its absence in Order XV-A of the CPC. A discretion has been vested in the Court to issue direction for deposit of "such amount" as the Court may direct. Such departure from language of an earlier existing provision is a tool of interpretation. There is abundant authority to the effect that when the situation has been differently expressed, the legislature must be taken to have intended to express a different intention. The Supreme Court in The Western India Theatres Ltd. Vs. Municipal Corporation of the City of Poona AIR 1959 SC 586 held that the legislature having substituted the word "reduced", earlier existing, with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A empowers the Court to, without evidence assess mesne profits or to merely by taking judicial notice and without any material on record, arbitrarily direct the defendant to deposit a much higher amount then what he had been paying or had agreed to pay. Reference in this regard can be made to the judgment of the Division Bench of this Court in National Radio & Electronic Co. Ltd. Vs. Motion Pictures Association 122 (2005) DLT 629 laying down that mesne profit have to be proved by reliable and cogent evidence in accordance with law. Of course, if the erstwhile tenant/defendant is found to have agreed to periodically increase the rent/user charges, even if such contract may have come to an end, in exercise of powers under Order XV-A of the CPC direction for deposit with such increases can be made unless strong grounds exist for such increases being not due. 26. Applying the aforesaid principle to the facts of the present case, the learned Single Judge had two versions before him. One, of the respondent No. 1/plaintiff of the last rent paid by the appellant/defendant at the rate of Rs. 3 lakhs per month and the other of the appellant/defendant, of the last rent being paid at the rate ..... 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