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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 652 OF 2008
Uco Bank V 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. )
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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL NO. 652 OF 2008
Uco Bank V 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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