Thursday, 11 May 2017

Whether court can grant inquiry in to mesne profits even if is not claimed by plaintiff?

 Inspite   of   valid   termination   of   tenancy,   the
appellant­UCO   Bank   remained   in   occupation   of   the

premises and the trial court, in consonance with the
prayers made in the suit, directed to hold an inquiry
under   Order   20   Rule   10   of   Civil   Procedure   Code   to
determine the rate and quantum of mesne profits to be
recovered from the appellant­UCO Bank.  I do not find
any substance in the submission of learned counsel for
the appellant­UCO Bank that the respondents­original
plaintiffs did not pray for such an inquiry for the mesne
profit   under   Order   20   Rule   10   of   the   Code   of   Civil
Procedure and in absence of a specific prayer for inquiry
into mesne profit, the Trial Court while deciding Small
Cause Suit No. 39 of 2001,   directed an inquiry into
mesne profit under Order 20 Rule 10 of the Code of Civil
Procedure. Even in the case  of Gulamhusain Asgaraly
Vahanvaty (supra), relied upon by learned counsel for
appellant­UCO Bank, this Court has taken a view that
the relief of mesne profits is a consequential relief to the
main relief and the trial court has to pass an order of
holding   inquiry   into   mesne   profit   when   the   suit   is
decreed.   If such a suit for recovery of possession is
dismissed,   the   question   of   payment   of   mesne   profits
does not arise and therefore, very often, issue of mesne

profits   is   not   framed   since   there   is   an   independent
provision in the CPC for holding an inquiry for mesne
profits,   and   only   when   the   suit   is   decreed   further
consequential relief is to be granted.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 652 OF 2008

 Uco Bank  Asaram s/o Mohanlal Samdani,

CORAM : V.K. JADHAV, J.
Citation: 2017(2) ALLMR 92

1. Being aggrieved by the Judgment and Order dated
21.09.2007 passed  in M.A.R.J.I.  No.791 of  2003, the
original respondents preferred this appeal.
2. Brief facts, giving rise to the present appeal, are as
follows :­

a] The parties hereinafter are referred to as per their
status in MARJI No.791/2003.
b] The original applicants in MARJI no.791/2003 are
the owners of the house No.2­17­25/26, CTS No.5274
and 5285 known as “Samdani Chambers”, situated at
Diwan   Deodi,   Aurangabad.   The   appellants/original
Respondents­Uco Bank were the tenants of basement
floor, ground floor and mezzanine floor on the basis of
lease   deed   executed   for   a   period   from   1.3.1983   to
28.2.1993.   On 5.2.1985 said lease deed was executed
and it was corrected by correction deed dated 28.6.1985.
On expiry of period of tenancy of 10 years as aforesaid,
the   Respondents­Uco   Bank   did   not   vacate   the   suit
premises as per the terms of lease deed and continued
to remain in possession, but, at increased rate in the
rent by 20% as per renewal clause in the lease deed.
However,   no   fresh   lease   deed   has   been   executed.
Consequently, the appellants/original respondents­Uco
Bank remained in possession for five years after expiry
of period of said lease i.e. after 28.2.1993 as per clause
4(f)   of   the   correction   deed.   Thereafter,   the   original

applicants­land lords issued a notice as contemplated
u/s 106 of the Transfer of Property Act on 11.5.2001 for
termination of tenancy and accordingly, terminated the
tenancy   of   respondent­UCO   Bank   on   31.5.2001.     On
expiry of period of notice, the original applicants (in
MARJI) instituted an eviction suit bearing Small Cause
Suit   No.39   of   2001   along   with   mesne   profit   for   the
month of June and July 2001 @ Rs.30,615/­ for each
month and for other consequential reliefs.  Learned 2nd
Jt. Civil Judge S.D., Aurangabad, by its judgment and
decree dated 10.10.2003 in Small Cause Suit No.39 of
2001, decreed the suit with costs and thereby ordered
the   appellants/original   respondents­UCO   Bank   to
vacate   and   handover  peaceful   possession   of   the   suit
tenement   described   in   plaint   paragraph   no.1   to   the
plaintiff within a period of one month from the date of
order and further ordered to pay Rs.61,730/­ towards
damages  or  mesne  profits and  notice  charges  to  the
plaintiffs.     The   learned   Judge   also   directed   that   an
enquiry   be   made   for   determination   of   future   mesne
profit from the date of  suit till receipt of possession of
the suit tenement as provided Under Order 20 Rule 12

of the Code of Civil Procedure. Being aggrieved by the
same, the appellants/original Respondents­UCO Bank
have preferred   Regular Civil Appeal No.349 of 2003
before   the   District   Court,   Aurangabad.   Learned   4th
Additional District Judge, Aurangabad, by its judgment
and order dated 31.8.2004 dismissed the appeal with
costs,   however,   allowed   the   cross   objection   of
respondents   and   held   that,   the   respondents/original
plaintiffs are entitled for interest @ 15% on the amount
of damages as granted by the Trial Court from the date
of   the   order   of   the   Trial   Court   till   the   complete
satisfaction of that amount. It is a matter of record that,
appellants/original Respondents­UCO Bank vacated the
suit premises on 31.12.2004.
c] The applicants/original plaintiffs have filed MARJI
No.791 of 2003 for determination of mesne profit U/O
20 Rule 12 of the Code of Civil Procedure.  According to
the applicants, they are entitled to claim mesne profit
from 1.8.2001 to 31.12.2004 i.e. for period of 41 months.
According to the applicants, during the period of 15
years, the City of Aurangabad developed very rapidly.

The   prices   of   the   properties   increased   several   times.
Consequently, there is substantial increase in the rent
also.   The suit property is located not only on ground
floor   but   on   upper   floors   also.     According   to   the
applicant, the area where the suit property is situated is
now in the heart of the city.  Entire building is used as a
Commercial property and the locality is at present a
prime center of business. During the pendency of the
suit, even the plaintiffs had given an offer about rate of
rent   prevailing   in   the   area   @   Rs.15/­   per  sq.   ft.   for
ground floor and Rs.12/­ per sq. ft for mezzanine and
basement   floor.     The   appellants/Respondents­UCO
Bank also accepted said rate of rent, however, due to
some  dispute in  respect of other terms,  rate  of  rent
could not be materialized.   
d] The   appellants­Respondents­UCO   Bank   has
strongly   resisted   the   application   by   filing   written
statement at Exh.22.   The Respondent­UCO Bank has
denied   that   the   bank   has   accepted   rate   of   rent   as
proposed by the applicants/original plaintiffs.  It is also
contended that, the proceedings filed by the applicants

for mesne profits are not maintainable.   It is further
contended that, the Respondent­Bank has paid monthly
rent as per the terms and conditions of the lease deed
and   also   paid   all   the   taxes   to   the   Government
authorities   for   the   said   suit   premises.     Even   the
Respondent UCO Bank paid rent to the applicants for
the   said   premises   as   per   the   correction   deed   after
March, 1993  by increasing 20% on the initial monthly
rent.  It is also contended that,  prevailing market rate
in the said area is not Rs.15/­ per square ft for the
ground   floor   as   alleged   and   Rs.12/­   per   sq.   ft.   for
basement and  mezzanine.
e] The learned Civil Judge S.D., Aurangabad, by its
impugned judgment and order dated 21.9.2007 allowed
the   application   with   costs   and   thereby   directed   the
Respondent­UCO Bank to pay future mesne profits from
1.8.2001   to   31.12.2004   @   Rs.37,428/­   per   month
amounting   to   Rs.8,91,627.70/­   to   the   applicants
alongwith interest @ 6% from the date of order till the
complete realization of the amount.   Aggrieved by the
same,   the   Respondent   UCO   Bank   has   preferred   this

appeal.
3. The learned counsel appearing for the appellantUCO
Bank submits that, there is no specific prayer in
the   original   suit   for   inquiry   into   mesne   profits   as
provided  Under  Order  20  Rule  12  of  Civil   Procedure
Code and in absence of specific prayer for an inquiry
into mesne profit, the same should not be granted by
the Court below.   Learned counsel for the appellantsUCO
  Bank   further  submits   that   the   Bank   had   paid
monthly rent of the suit premises as per terms and
conditions   of   the   lease   deed   and   also   as   per   the
correction lease dated 28.6.1985, even the appellantUCO
Bank has paid all the taxes to the Government
Authorities, such as water taxes, electricity taxes, etc
pertaining   to   the   suit   tenement.   Learned   counsel
submits that, all these important aspects have not been
considered   by   the   Trial   Court   while   passing   the
impugned judgment and order.
4. The learned counsel for the appellant­UCO Bank
further submits that the rate of rent of suit premises as

claimed by the respondent­original plaintiff @ Rs.15/­
per sq. ft. for ground floor and Rs.12/­ per sq. feet for
mezzanine and basement floor was only on the basis of
the offer accepted by the present appellants as per letter
dated 23.5.2003.   Learned counsel submits that said
letter was issued by the appellant­UCO Bank on the
basis of  application made by the Respondents­original
applicants in MARJI No.791/2003 in which the rates
were quoted for renewal of fresh lease deed of the suit
premises.   Learned counsel submits that the rates as
quoted were not based on prevailing market rates of the
locality where the suit premises is situated.   Learned
counsel   submits   that   the   same   is,   however,   not
considered by the trial court. The learned counsel for
the appellant­UCO Bank submits that the suit premises
is not situated in commercial and densely populated
area as alleged.  It is also not situated in central part of
the city as alleged.   Learned counsel submits that the
respondents/original applicants have failed to prove the
prevailing market rate of rent of the suit premises in the
said area and the locality at Rs.15/­ per sq. ft for ground
floor   and   Rs.12/­   per   sq.   feet   for   basement   and

mezzanine   floor,   as   alleged.     Learned   counsel   for
respondents/original claimants have admitted in cross
examination that said rate of rent as proposed by them
in their application made to the original respondentpresent
  appellant­UCO   Bank   only   for   renewal   of   the
lease   deed   and   the   same   does   not   reflect   prevailing
market   rate   in   the   locality.   Learned   counsel   for   the
appellant­UCO   Bank   further   submits   that   the   Trial
Court has committed a grave mistake of law in awarding
future mesne profit for more than three years. Learned
counsel submits that, the same is against the provisions
of Order 20 Rule 12 of the Code of Civil Procedure.
5. Learned counsel for the appellant­UCO Bank in
order   to   substantiate   his   submissions   placed   his
reliance on following judgments :­
1. Mrs. Indira Bhalchandra Gokhale (deceased
by   L.Rs)   vs.   Union   of   India   and   another,
reported in AIR 1990 Bombay 98,
2. Ganapati   Madhav   Sawant   (dead)   through
his   LRs.   vs.   Dattur   Madhav   Sawant,
reported in (2008) 3 SCC 183,

3. Mohd.   Amin   and   others   vs.   Vakil   Ahmad
and others, reported in AIR 1952 SC 358 and
4. Gulamhusain Asgaraly Vahanvaty & others
vs.   Allahabad   Bank,   reported   in  2011   (4)
Bom.C.R.169.
6. The   learned   counsel   for   respondents/original
claimants   in   MARJI   No.791/2003   submits   that   the
applicants   have   specifically   prayed   for   directions   for
inquiry into the future mesne profit in the original suit
and   accordingly,   learned   Judge   of   the   Trial   Court
decreed the suit with costs by directing an inquiry to be
made for determination of future mesne profit from the
date of the suit till receipt of the possession of the suit
tenement as provided under Order 20 Rule 10 of Civil
Procedure Code.  Learned counsel submits that, during
the pendency of the suit, the applicants have claimed
market rate of rent for ground floor Rs.15/­ per sq. feet
and for basement and mezzanine floor Rs.12/­ per sq.
ft.  Learned counsel submits that said proposal was not
materialized because of certain problems, however, fact

remains that the bank had agreed to materialize the
proposal   for   rate   of   rent   as   stated   above.     Learned
counsel submits that, it is not disputed that the suit
property is situated in prime market area and prices of
the property have been increased rapidly during the last
10­15   years.     Learned   counsel   submits   that   after
termination of tenancy, the appellant­UCO bank could
not be said to be in a lawful possession and therefore,
liable to pay the mesne profit till the suit premises is
vacated.   Learned counsel submits that the appellant
bank remained in possession of the property despite the
decree and therefore, liable to pay mesne profit for use
and occupation of the suit property until it is delivered
to the original applicants.  The learned counsel submits
that it is clear that the respondents/original applicants
are entitled to the future mesne profit from 1.8.2001 to
31.12.2004 along with interest. Learned counsel submits
that Rule 12 of Order 20 was substituted by  Bombay
High Court by way of CPC (amendment) Act 104 of 1976
w.e.f. 1.2.1977.  Learned counsel submits that it is clear
from the rule as amended in respect of the mesne profit
that, there is no restriction of the period of three years

which was found in the earlier rule of 12 c (iii).  Learned
counsel   submits   that,   there   is   no   substance   in   the
appeal and the appeal is liable to be dismissed with
costs.  
7. The   determination   of   mesne   profits   involves
adjudication of a pure question of fact and there exists
hardly any uniform and standard pattern of assessment
in   this   regard.   The   Court   has   to   undertake   a
comparative   assessment   of   nature,   location,   age,
condition   etc.  of  the  suit  schedule   premises,  on   one
hand, and the similar characteristics of the premises in
the surrounding area, on the other, as it is very difficult
to find the premises of a similar nature, size and quality
at the same location.   Even if there exists any broad
similarity on this aspects, the rent in respect of such
premises would depend, mostly, upon the need of the
lessee and the circumstances under which the leases
are granted.  
8. Inspite   of   valid   termination   of   tenancy,   the
appellant­UCO   Bank   remained   in   occupation   of   the

premises and the trial court, in consonance with the
prayers made in the suit, directed to hold an inquiry
under   Order   20   Rule   10   of   Civil   Procedure   Code   to
determine the rate and quantum of mesne profits to be
recovered from the appellant­UCO Bank.  I do not find
any substance in the submission of learned counsel for
the appellant­UCO Bank that the respondents­original
plaintiffs did not pray for such an inquiry for the mesne
profit   under   Order   20   Rule   10   of   the   Code   of   Civil
Procedure and in absence of a specific prayer for inquiry
into mesne profit, the Trial Court while deciding Small
Cause Suit No. 39 of 2001,   directed an inquiry into
mesne profit under Order 20 Rule 10 of the Code of Civil
Procedure. Even in the case  of Gulamhusain Asgaraly
Vahanvaty (supra), relied upon by learned counsel for
appellant­UCO Bank, this Court has taken a view that
the relief of mesne profits is a consequential relief to the
main relief and the trial court has to pass an order of
holding   inquiry   into   mesne   profit   when   the   suit   is
decreed.   If such a suit for recovery of possession is
dismissed,   the   question   of   payment   of   mesne   profits
does not arise and therefore, very often, issue of mesne

profits   is   not   framed   since   there   is   an   independent
provision in the CPC for holding an inquiry for mesne
profits,   and   only   when   the   suit   is   decreed   further
consequential relief is to be granted.
9. It is clear from Rule 12 of Order 20 of the Code of
Civil   Procedure   that   as   per   Bombay   Amendment   in
respect of mesne profit, there is no restriction of period
of three years.  The same was found in the earlier Rule
12 (1) (c) (iii) of Order 20 of Code of Civil Procedure.
Even this Court, in a case of Sadabai and another Vs.
Nivrutti   Vithoba   Takale   and   others,   reported   in   AIR
1979 Bombay page 29, has expressed a view that as per
the amended Rule, there is no restriction of three years
and   the   Bombay   Amendment   so   made   is   having   a
retrospective effect.  I do not find any substance in the
objection raised by learned counsel for the appellant
that the Trial Court has determined future mesne profit
exceeding the period of three years and the same is
contrary to the provisions of Order 20 Rule 12 of the
Code of Civil Procedure.  

10. Learned counsel for the appellant­UCO Bank has
vehemently   submitted   that   in   the   light   of   the   letter
dated 23.5.2003, issued by the Bank in response to the
proposal   for  renewal   of   lease   deed   submitted   by  the
present respondents/original applicants, the trial court
has erroneously determined the rate of future mesne
profit of the suit premises.   It is true that the said
proposal submitted by respondents/original applicants
could not be materialized due to some other reasons,
however, on perusal of said letter dated 23.5.2003, it
appears   that,   the   appellant­UCO   Bank   has
unequivocally   accepted   the   market   rates   of   the   suit
premises   @   Rs.15/­   per   sq.   ft   for   ground   floor   and
Rs.12/­ per sq. ft for basement/ mezzanine floor.
11. As   stated   in   the   foregoing   paragraphs,
determination of mesne profit is a pure question of fact.
The   witness   for   the   appellant­UCO   Bank   has   also
admitted   in   his   cross   examination   that   the   suit
premises   is   situated   in   the   commercial   area   at
Aurangabad.   It appears from the impugned judgment
and   order   that   the   Trial   Court   has   undertaken   a

comparative   assessment   of   the   nature,   location,
condition, etc., of the suit premises.  It also appears that
the Trial Court has also considered the circumstances
under which  the lease came to be  granted and also
considered the size and quality of the area occupied by
the appellant­ UCO Bank.  I do not find any fault in the
impugned   Judgment   and   Order   of   the   Trial   Court.
There   is   no   substance   in   the   appeal.     Hence,   the
following order.
O R D E R
I. The   First   Appeal   is   hereby   dismissed   with
costs.
II. In   view   of   dismissal   of   first   appeal,   nothing
survives   for   consideration   in   pending   civil
application   and   same   stands   disposed   of
accordingly.
     sd/­
( V.K. JADHAV, J. )

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