Usha Mehra, J.
1. Property bearing No.D-922, New Friends Colony, New Delhi was let out to respondent No.1 i.e. M/s International Amusements Ltd. (in short IAL) on a monthly rent of Rs.7,000/- vide registered lease deed dated 1st April,1987. On expiry of the lease period, petitioner herein let out the property to respondent No.1 vide registered lease deed dated 1st April,1990 on a monthly rent of Rs.16,500/-. Respondent No.2 Shri Sharat Chander Dass was the Director of respondent No.1. Hewas in occupation of the suit premises on account of being the Director of respondent No. 1. The petitioner wanted possession of the suit premises, thereforee, filed a suit against respondent No. 1 after the expiry of the lease period. Decree of possession was passed in her favor and against respondent No.1, its servants, agents and employees etc. vide decree dated 26th May,1993. Pursuance to that decree petitioner filed execution proceedings and obtained warrants of possession. Respondent No.2 filed objection to the execution proceedings, inter alia, on the ground that decree was a nullity inasmuch as it was passed without him being imp leaded as a party. He was in occupation of the premises and without him being imp leaded as a party, decree of possession could not have been passed. Moreover, decree had been obtained by collusion and fraud. He also took the plea that real landlord Shri R.K.Khanna had vide oral agreement inducted respondent No.2 as the tenant pursuance to which he spent huge amount in constructing the house. In the objection filed to the execution, respondent No.2 admitted that respondent No.1 was inducted as tenant in the premises in question. That he occupied the suit premises as Director of respondent No.1. He also took the plea that father of the petitioner Shri R.K.Khanna had orally agreed to let out the premises to him on a monthly rent of Rs.2,000/-. That the said oral lease was for a period of eight years from the expiry of the lease between the petitioner and respondent No.1. Petitioner contested the objections filed by respondent No.2 and denied that there was any oral agreement of tenancy between him and her father. She also denied that respondent No.2 was a necessary party in her suit for ejectment.
2. Respondent No.2 in the meantime filed a suit for specific performance and permanent injunction against the father of the petitioner Shri R.K.Khanna, which suit was based on the alleged oral agreement. The said suit was dismissed as withdrawn by the Additional District Judge. However, while permitting withdrawal of the suit the learned Additional District Judge declined to grant leave to respondent No.2 to file a fresh suit on the same cause of action. Subsequently respondent No.2 filed an application seeking specific permission from the learned Additional District Judge to file a fresh suit on the same cause of action. That application too was rejected by the learned Additional District Judge. Respondent No.2 by concealing the above facts filed a suit for specific performance in the High Court of Delhi on the same cause of action. In that suit he did not implead the present petitioner. Respondent No.2 filed another suit for declaration against Mr.R.K.Khanna and against the petitioner seeking annulment of the decree of ejectment passed in favor of the petitioner. Both these suits were dismissed. Respondent No.2 filed applications for restoration of those two suits which are still pending.
3. Respondent No.2 filed an application under Order 6 Rule 17 CPC before the learned Additional District Judge seeking amendment of his objection petition filed in the execution proceedings. By this amendment he wanted to withdraw the admission made by him in the objection petition wherein he had admitted that respondent No.1 was inducted as a tenant and that he was occupying the premises in question as Director of the respondent No.1. Amendment as sought by respondent No.2 was allowed by the learned Additional District Judge vide order dated 2nd Sep-tember,1995. That the order allowing amendment had been challenged by the petitioner vide a petition which was listed as Civil Revision No.950/95. Respondent ' No.2 thereafter filed an application seeking stay of the execution proceedings till such time the Civil Revision No.950/95 was disposed. Vide impugned order dated 15th July,1996 the learned Additional District Judge allowed the prayer thereby staying further execution proceedings. Aggrieved by this order present revision petition had been filed. This revision petition was dismissed in liming vide order dated 3rd September, 1996. Against the dismissal, the petitioner went in appeal to Supreme Court. The Apex Court vide order dated 28th October,1996 granted the special leave and directed the Revision Petition to be decided on merits. Further granted liberty to this petitioner to move an application for fixation of appropriate occupation charges to be paid by respondents during the pendency of this proceeding. Further this Court has to consider the question of payment of arrears. It is in this background that arguments on fixation of appropriate occupation charges and payment of arrears were heard.
4. The decision of Civil Revision Petition No.950/95 has a direct bearing on the merits of this petition. Parties did not address any argument on the merits of the petitions. Counsel for the parties instead of addressing arguments on merits choose to address arguments at length on fixation of occupation charges. This was done pursuance to the direction of the Supreme court thereby giving liberty to the petitioner to move this Court for fixing appropriate occupation charges during the pendency of this litigation. Thus the petitioner filed an application bearing CM.No.134/97. This application has been disposed vide order dated 19th February,l997 thereby holding that the possession of the suit premises was that of respondent No.1 though respondent No.2 as Ex-Director of respondent No.1 was in actual physical occupation of the premises. Hence, the liability to pay the damages for use and occupation is that of the respondents.
5. That in order to fix occupation charges this Court with the consent of counsel for the parties appointed Justice J.K.Mehra (Retired) of this Court as the Local Commissioner. This was done in order to ascertain and for him to suggest market rate of rent of such like premises. Justice J.K.Mehra (Retired) after ascertaining the market rent of such like properties suggested that fair market rate would be Rs.85,000/- per month as occupation charges. This he suggested after detailed deliberations and hearing counsel for the parties and after examining the documents produced by the parties before him. He has submitted his report Along with all relevant documents in support of his conclusion. In his report Justice J.K.Mehra (Retired) took note of the instances of market rent produced by the respondent No.2. According to respondent No.2 rent for premises in New Friends Colony was Rs.35,000/- per month. Petitioner on the other hand filed quotations received from property dealers, copies and summaries of various lease deeds showing the rents varying from Rs.40,000/- to Rs.3,25,000/- per month. Out of the lease deeds produced, one lease deed was of Mr.K.N.Bhutt, Senior Advocate, of respondent No.2 who is tenant of property No.D-939, New Friends. Colony on a monthly rent of Rs.30,000/-. This lease is for the entire ground floor only. The property in question is single unitconstructed on a plot of 450 sq.mtrs. i.e. 504sq.yds. and covered area is nearly 3,000 sq.ft. It has living room, kitchen, drawing room, two bed rooms, two toilets, garage with W.C. on the ground floor and two bed rooms, study room, terrace with two green houses and servant quarters with W.C. on the first floor. Thus respondent No.2 is in occupation of entire house including ground floor and first floor. Another deed is of house No.D-920, which is just two houses away from the property in question. The rent of that house No.D-920 is shown as Rs. 1,35,000/- for the entire house. Justice J.K.Mehra (Retd.) found that area of land underneath the house No.D-920 and that of the suit property is the same. Along with his report he has placed on record the chart showing the names of the property dealers and the offer made by them, in respect of the premises in question as Annexure C-l. Written submissions of the parties have also been filed with the report. While calculating the occupation charges he took into consideration the rent of House No.D-920 and the rent paid by Mr.K.N.Bhutt of the ground floor premises only. After comparing the comparable rent i.e. of House No.D-920 and after allowing deduction at the rate of 10 to 15% on account of recent decline in the market rents in the area in question, he has suggested that fair charges could be Rs.80,000/- to Rs. 90,000/- per month.
6. This report has been challenged by respondent No.2 when he filed objections along with his written submissions. He has challenged the report primarily on the ground that Justice J.K.Mehra (Retd.) was not appointed as the Arbitrator, thereforee, he could not have collected evidence nor heard the parties on merits, nor could he examine the documents nor could evaluate those documents in order to find out the market value or the charges. He has further urged that determination of market rent was not the subject matter referred to Justice J.K.Mehra (Retd.). He being not an arbitrator could not suggest the appropriate charges. Being a Local Commissioner, even though appointed with the consent of parties, still he could not evaluate. No power vests with a Local Commissioner to act as Arbitrator. Moreover, consent was regarding the the choice of person, but he was not vested with power to determine mesne profits. Justice J.K.Mehra (Retd.) never visited the property, thereforee, could not have determined the market value. Evaluation of rent required detailed evidence and he being a Local Commissioner could not record evidence. Moreover, market value of the property has not been subject matter of dispute at any time. Moreover, Commissioner ignored the submissions of respondent No.2 that he raised construction of the building at his own costs. This required evidence. Moreover, direction to pay occupation charges during the pendency of the proceedings could only be on the basis of admitted rent. Occupation charges fixed by the Commissioner are excessive and without material. Finally, the question of fixing market value or occupation charges was outside the scope of the proceedings. That the occupation charges could not be determined in any other way except in accordance with Delhi Rent Control Act. Moreover, the Commissioner did not have the covered area before him and even the lease agreements relied by him did not disclose the covered area of those plots, thereforee, in the absence of material, comparison could not be drawn. He has also not mentioned the names of the propertydealers who supplied him the lease deeds. The report of the Local Commissioner cannot be thus relied being vague and not based oh any material.
7. I have heard Mr. Rajiv Nayyar, Senior Advocate for petitioner and Mr.K.N.Bhutt, Senior Advocate for respondent No.2 on the report of the Commissioner and also heard on the question as to what should be reasonable occupation charges payable by the respondents.
8. Admittedly, the Commissioner was appointed with the consent of the parties. It was agreed by them that he will ascertain the market rate of rent. He was appointed under the provisions of Order 20 Rule 12 read with Order 26 Rule 9, CPC, in order to evaluate and find out the market rent of the property in question and to fix appropriate occupation charges. He was to evaluate the occupation charges based on the market rent of the property in question from 1st April,1993. Hence it is apparent that in order to reach at proper valuation of occupation charges he was to collect material from the market to find out the prevalent rate of rent of similarly situated properties. The Commissioner followed comprehensive and elaborate procedure. He afforded full opportunities to all the parties hence on the basis of supporting documentary evidence, he could submit his report. Parties were represented through their respective counsel before him. Counsel for the parties not only produced documents in support of their case but at length addressed arguments. He took note of their views and contentions. Respondents herein produced documentary evidence to show that market rent of the premises in New Friends Colony was Rs.35,000/- per month. Whereas petitioner filed documents including quotation received from the property dealer and copies of various lease deeds showing that market rent of such like property varied from Rs.40,000/- per month to Rs.3,25,000/- per month. Lease deed of Mr.K.N.Bhutt, Senior Advocate, shows ground floor rent at Rs.30,000/- per month. Whereas for a similarly situated entire house with same area the rent received by the landlord of that house is Rs.1,35,000/-per month for entire house. Commissioner even noticed decline of rent by 10 to 15%. Taking all these factors into consideration the Commissioner has suggested fair occupation charges to be between Rs.80,000/- to Rs.90,000/-. Perusal of the report and the documents by way of evidence annexed with the report show that report of the Commissioner is based on solid material placed before him. He had sufficient data to arrive at that conclusion. Contention of respondent No.2 that Commissioner had no data to come to this conclusion is without merit and substance. I also find no merits in the contention of the respondent No.2 that this Court has no jurisdiction to get the appropriate occupation charges fixed through Commissioner. This argument can be repelled on two counts first the Apex Court granted liberty to the petitioner to move for such purpose and this Court was to determine the same and secondly, the respondents gave consent for fixation of occupation charges w.e.f. 1st April,1993. Hence respondent No.2 is now estopped from raising objection on this ground. The objection raised by the respondent No.2 that this Court in the absence of suit for mesne profit could not fix occupation charges is also without substance. Rule 9 of order 26 CPC empowers this court to get the evaluation done through Commissioner. Since the Apex Court gave liberty to petitionerto approach this court for getting the occupation charges fixed this Court pursuance to that direction invoked the provision of Rule 9 of Order 26 CPC which was within its power. Admittedly, the issue in the revision petition is not the determination of the market value but; since liberty had been granted by the Apex Court to the petitioner to approach this Court for fixation of appropriate occupation charges, thereforee, this procedure was adopted and that too with the consent of the parties. thereforee, it does not lie in the mouth of the respondent No.2 now to contend that the consent was only with regard to the appointment of Justice J.K.Mehra(Retired) and not with regard to ascertaining the appropriate occupation charges. The objection that Delhi Rent Control Act applies is out rightly rejected because that Act is not applicable to the facts of this case as the rent of the premises is more than Rs.3,500/- per month, thereforee, applicability of that Act is not attracted. Even otherwise on the basis of lease deed of Mr.K.N.Bhutt, who is occupying only ground floor rent is Rs.30,000/- per month. Whereas respondent NO.2 is occupying the entire house including ground and first floor, hence the occupation charges at the rate of Rs.80,000/- per month would not and cannot be called unreasonable. The objections to the report raised by respondent No.2 are accordingly rejected being without merits. Directions are accordingly given to the respondents to pay occupation charges at the rate of Rs.80,000/- per month from 1st April,1993. Since respondent No.2 is occupying the premises hence occupation charges at the rate of Rs.80,000/- per month from 1st April,1993 after adjusting the amount already paid be deposited by respondent No.2
9. To come up for arguments on the main petition on 22nd March.,1999 before Regular Bench.