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 (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   respondents­ UCO   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 Respondents­ UCO 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 Respondents­ UCO 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/Respondents­ UCO 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   appellants­ Respondents­ UCO   Bank   has strongly   resisted   the   application   by   filing   written statement at Exh.22.   The Respondent­ UCO 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 Respondent­ Bank 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.] 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 appellant UCO 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 appellants UCO 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 appellant UCO 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 appellant ­UCO Bank further submits that the rate of rent of suit premises as claimed by the respondent­ original 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 appellant ­UCO Bank on the basis of  application made by the Respondents­ original 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 respondent present appellant ­UCO   Bank   only   for   renewal   of   the lease   deed   and   the   same   does   not   reflect   prevailing market   rate   in   the   locality.   Learned   counsel   for   the appellant ­UCO   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 appellant­ UCO 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 appellant ­UCO   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 appellant ­UCO Bank.  I do not find any substance in the submission of learned counsel for the appellant ­UCO Bank that the respondents­ original 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 appellant ­UCO 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 appellant­ UCO 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   appellant ­UCO   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   appellant­ UCO   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. )