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Kesardeo Baijnath Vs. Nathmal Kisanalal - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 428 of 1959
Judge
Reported inAIR1966Bom266; ILR1965Bom363
ActsCode of Civil Procedure (CPC), 1908 - Sections 2(12) - Order 20, Rule 12; Central Provinces and Berar Letting of Houses and Rents Control Order, 1949
AppellantKesardeo Baijnath
RespondentNathmal Kisanalal
Appellant AdvocateA.S. Bobde and ;N.L. Vaidya, Advs.
Respondent AdvocateD.B. Padhye, Adv.
Excerpt:
.....-appellant had been paying or the amount of standard rent which could have been fixed under the rent control order should be the measure of mesne profits is effectively answered by 1952 nag lj 393: air 1953 nag 186. the learned chief justice of the nagpur high court has pointed out in this decision that the rent control order governs for the limited purposes of that order the relationship of landlord and tenant, but is has no relevance's of the question of what should be the measure of damages which a successful landlord should get for being kept out of his property. air1963all249 has also effectively answered the submission of mr. the defendants whose no longer at the tenant and he cold have no justification for saying that though a trespasser he was still entitled to the privileges..........in possession of the defendant on the 2nd of february 1954. after obtaining permission from the rent control officer, the plaintiff respondents served that defendants with a notice terminating his tenancy and filed hi suit for ejectment arrears of rent and mesne profits in the years 1955. this suit was eventually decreed on the 12th of december 1957 and it was ordered under order 20 rule 12, code of civil procedure that mesne profits from 1-8-1955 on wards be determined. the defendants appellant actually vacated possession of the block in suit on 8-9-1958. upon an application by the plaintiff decree holder the trial court fixed the mesne profits of the said block for the period from 1-8-1955 to 8-9-1958 at rs.75 per month. both the parties appealed to the district court. the appeal by.....
Judgment:

[1] The Short question involved in this appeal is regarding the mode of computing mesne of profits and the amount of mesne profits which would eventually follows:

[2] The house in dispute of was contracted more than 40 years before 1957. A block of four rooms from that house was taken on a rent of Rs. 21-10-6 per month by the defendants on from the former owners in the years 1939. The plaintiff respondents purchased this entire building inclusive of the block in possession of the defendant on the 2nd of February 1954. After obtaining permission from the Rent control Officer, the plaintiff respondents served that defendants with a notice terminating his tenancy and filed hi suit for ejectment arrears of rent and mesne profits in the years 1955. This suit was eventually decreed on the 12th of December 1957 and it was ordered under order 20 Rule 12, Code of civil procedure that mesne profits from 1-8-1955 on wards be determined. The defendants appellant actually vacated possession of the block in suit on 8-9-1958. Upon an application by the plaintiff decree holder the trial court fixed the mesne profits of the said block for the period from 1-8-1955 to 8-9-1958 at Rs.75 per month. Both the parties appealed to the District court. The appeal by the defendants to was dismissed and the amount of mesne profits was raised from Rs. 75 per month to Rs. 90 per month in the plaintiffs appeal that order of the district judge is being challenged in this court.

[3] Mr. A.S. Bobde, Advocate for the appellants contend that in accordance's with the definition of mesne profits in section 2[12], code of Civil Procedure that plaintiff would only be entitled to get those profits which the defendants, who was held to be in wrongful possession, actually received or might with ordinary diligence have received thereon. According to him what the plaintiff landlord might have earned by relating the house or what the plaintiff proper or landlord had lost would not be he proper or correct criterion for deciding the question of mesne profits. He submitted that here was a case where the defendants wasn't shown to have made any profits by lettings out to handing over the suit premises to anyone and when it was only a question of deciding what he might have received the only criterion should be that rent of Rs. 21-0-6 which he was liable to pay when he was tenant. Mr. Bodbe further submitted that at the most the fair rent could have been treated as equivalent to the mesne profits, that fairs rent being the original rent together within an increase of 12 1/2 per cent in accordance's with clauses 6[1] of the letting of Houses and rent Control order 1949, According to him both the courts had misdirected themselves by proceedings to find out what the landlord had lost or might have learned by lettings the house. He also urged that the courts below had lost sight of the fact that the landlord court not have got anything's more than the fair rent they were in error in admitting evidence of what offers were made of the plaintiff or what the plaintiff court have got by the relating the house independently of the rent control order. He relied on the decision of Mr. Justice Badks in First a appeal No. 39 of 1955, decided on 1-4-1959, as also on 1955 Nag LJ 314: AIR 1955 Nag 234, Hirabai v. Jiwanlal : [1964]1SCR515 , Feteh Chand v. Balkishan Dass and : AIR1959AP182 , P. Ranga Rao v. K. Ramadoss in support of this submissions.

[4] Mr. D.B. Padhye Advocate for the plaintiff decree - holder supported the impugned order. He also agreed that the test to be determined was not what the plaintiff would have get or what the plaintiff had lost by not being able to get possession but what the user of the property meant to the defendants who was in wrongful possession, According to him, the submission of Mr. Bodbe that the mesne profits could not to be in excess of tenant being paid by the defendants or the standard rent that could have been fixed by the Rent Control officers was entirely incorrect. The defendants was no longer a tenant of and the relationship of landlord and defendants did not could not., therefore claim the advantage of that relations which had ceased to exist, vis -a- vis the plaintiff. According to him the courts below were rights in consideration the reasonable rent. In his view, the courts below had not determined the mesne profits on the basis of what the plaintiff would have lost but that was done on he basis of the value of the user of the property to the defendants who was wrongfully retaining possession. He relied on Bhagwandas v. Mst. Kokabai [1952] Nag LJ 393: AIR 1953 Nag 186 and Chirnajilal v. Kunwar prasad : AIR1963All249 and also on the supreme court decision on which Mr. Bodbe was relying.

[5] In section 2[12] code of Civil procedure mesne profits are defined as those profits which the person wrongful possession of such property actually received possession of such property actually received or might with ordinary diligence have received therefrom together with interest on such proofs but shall not include profits due to improvements made by he persons in wrongful possession. A plain reading of this definition would leave no manner of doubt that the test to be applied was not include profits due in improvement made by the person in wrongful possession. A plain reading of this definition would leave no manner of doubt that the test to be applied was not what have plaintiff decree - holder had so to would have earned by the letting out or using the property himself, but what the person in wrongful possession namely, the defendants had actually received or might of with ordinary diligence of have received therefrom. Since both the side are agreed to on this particular point I do not thinks it necessary to quote any authorities in support thereof. It is common grounds between the parties that the defendants appellant has not let out or handed over the block in dispute to any one during the relevance period. Consequently, there is no question of finding out what the defendants actually received from this property during the period from 1-8-1955 to 8-9-1958. The only point to be considered would be what the defendants might with ordinary diligence have received from that property as the basis for determining the quantum of mesne profits.

[6] according to Mr. Bodbe, the rent of Rs. 21-0-6 which the defendants had been paying all along to the plaintiff should represent what he right with ordinary diligence of have received from the property within the meaning of section 2[12], code of Civil procedure. In first appeal NO. 39 of the 1955, decided on 1-4-1959, [Bom], Mr. Justice Badks purported to have taken the rent payable by the erstwhile have tenant as the quantum of mesne profits. However no reason or grounds for that conclusion of appear to have been mentioned in the judgment. A perusal of the concluding paragraph in which this matter was death with shows that it was taken for granted on all minds hand that the rent payable by the erstwhile of tenant was to be the test of the quantum of mesne profits. Therefore that decision would not be to any avail in deciding the question under controversy. The decision in 1955 Nag LJ 314: AIR 1955 Nag 234 on which Mr. Bodbe was relying had adopted the loss of rent of the landlord as the measures of the damages for wrongful that occupation. With respect I do not thing that the would be correct test in the context of the definition of menses of profits in section 2[12] This view if of Division Bench of Nagpur High Court would stand contradicted by the decision in : AIR1959AP182 , on which Mr. Bodbe himself way relying. The division bench of the Andhra High court had pointed out in that decision of that the creation e what the person out of possession [plaintiff] might have got had has been on the land and mesne profits could not consist of what the person in wrongful procession of such property [defendants] actually received or might with ordinary diligence of have received therefrom. The principle laid down in the Andhra ruling also is unquestionable. The only point is in what manner it is to the be applied to the facts of the present case.

[7] The submission of Mr. Bodbe that the amount rent which the defendants - Appellant had been paying or the amount of standard rent which could have been fixed under the rent control order should be the measure of mesne profits is effectively answered by 1952 Nag LJ 393: AIR 1953 Nag 186. The learned chief justice of the Nagpur High court has pointed out in this decision that the Rent control order governs for the limited purposes of that order the relationship of landlord and tenant, but is has no relevance's of the question of what should be the measure of damages which a successful landlord should get for being kept out of his property. The learned chief justice then observed that after determination of the that the trespasser and he cannot take advantage of the provisions of the Rent Control Rent Order and claim that the rent he paid should be the measure damages award able to the landlord. It was finally pointed out in that decision that where the rent represents the fair value of the property mesne of profits may be assessed a is higher than the rent but if the real value is higher than the rent then the mesne porgies musts be assessed at the higher value. : AIR1963All249 has also effectively answered the submission of Mr. Bodbe that the rent payable by an erstwhile tenant should represent the quantum of mesne profits to be calculated for payment by him.

[8] I would now consider the supreme court decision in : [1964]1SCR515 on which both sides were relying. The following observation of their Lordships in that judgments para 17, page 1413 Col, 1 would be patiently fro the decision of this cases:-

'the plaintiff is undoubtedly entitled to mesne profits from the defendants and mesne profits as defined in section 2 [12], code of civil Procedure are profits which the person in wrongful possession of property received therefrom with together with interest on such profits, but do not include profits duty to improvements made by the reason in wrongful possession. The normal measures of in mesne possession. The normal measure of mense profits is therefore [the value of the user profits is therefore person in wrongful possession'].

[The underlining is mine]

[portion underlined in the judgment is put is brackets by us. Ed]

Both the sides are rightly relying on this decision as the last word on the question of the measure of damages.

[8 - A] As adumbrated, the trial court received evidence of both parties and fixed the mesne profits at Rs. 75 which amount was increased to Rs. 90 per month by the District court. According to Mr. Bodbe, this fixation by the lower courts violates the principles laid down by the supreme court whereas according to Mr. Padhya, that fixation in unconnected with the principle laid down by he supreme court. Mr. Bodbe was submitting that the fixation by the courts below not only violated the rule load user of the land to the person in wrongful possession is to be determined, but also violated the provisions of the Rent control Order. He strutted that those provisions ought to be kept in view all evidence by which witnessed purported to any that the amount in excess of fair rent could have been availed of should have been ruled out as inadmissible or as illegal. Mr. Padhya, on the other hand contended that the courts below had fixed the quantum of mesne profits not as the equivalent of what the plaintiff had lost but as the money who was in wrongful possession. Mr. Padhye submitted that the provisions of the Rent Control order were entirely irrelevant and had no bearing on this question.

[9] It has not been clear by Mr. Bodbe how that courts bellowed purported to determine what the plaintiff had lost by being kept out of possession. A perusal of the orders would show that the wasn't the trend of the reasoning of the court below. It has to be remembered that the defendants was in possession of suit blocks a tenant paying a small rent of Rs. 21-0-6 per month. So long as the relationship of landlord and tenant continued, it was not possible or permissible for the landlord to increase this rent or at any rate at any rate to increase it beyond what the Rent control Officers, may permit under the provisions of Clauses 4 of 6 of the Rent control order. The defendants was no doubt, in a privileged position of so long as he continued to be a tenant, but on the termination and the he had ceased to hod that privileged position of tenant, and possession was as a ask rank trespasser after the termination of the tenancy the arguments of Mr. Bodbe that he basis of the rent payable under the Rent Control Order, meant that the defendant who had ceased to hold the privileged position of tenant, and was in possession as a rank trespasser was still entitled to the benefits of the privileged position he successfully evaded or delayed the which execution of the court decree for looking at the things. The defendants whose no longer at the tenant and he cold have no justification for saying that though a trespasser he was still entitled to the privileges a tenant, who could enjoy of the privileges under the Rent control order.

[10] The Rent Control Order was no doubt, for he benefit and protection of tenant, but it will be going too far to say that the protection was to continue even to erstwhile tenant despite was the fact that their possession was as trespasser on the termination of the relationship of landlord and tenant. The moment a person ceased to be attendant he dis-entitled himself from the privileges he could have got under the rent control Order. Accepting the submission of Mr. Bodbe in this connection would virtually amount to giving a legal status of a tenant to person who has-been held by competent court to be rank trespasser after the termination of the tenancy. No authority was shown in support of this impossible position. The defendants to person who has been held by competent who was no longer attendant, could not still insist on saying that the rent which the plaintiff could have got under the Rent Control order. Should be treated astute measure of damages. The claim of the defendants that the mesne profits must be limited to the rent recoverable by the plaintiff under the provisions of the rent control order would virtually demean that Rent Control Order would virtually mean that the quantum of mesne profits was not what the defendant had actually received or might wish ordinary diligence have received but what with plaintiff as a landlord had lost or has not been able to get. That would militate against the definition of mesne profits in section 2 of the code of the procedure.

[11] So long as he was the plaintiff tenant, the defendants was paying a paltry sum of Rupees 21-10-6 as monthly rent. By still presuming to be governed by the Rent Control Order, he was contending that he was liable to pay to was that nominal rent long after he had ceased to be a tenant. There was nothings on the records to show that the could have been able to secure that accommodation for such nominal rent. On the contrary the evidence on record showed that was very difficult to secure any accommodation or rent at akola. Even after being order to caveat the house for which he was paying a very small rent the defendants has made it possible for himself to continue to occupy the premises for long time. In the context or the unavailability of houses or rent, the valve of this user of the tenement to the defendants after the termination of his tenancy would necessarily be much more than the rent that he was paying to the plaintiff.

[12] In that right the quantum of the mesne profits of Rs. 75 as fixed by the trial court and Rs. 90 of as fixed by the District court would be 'the value of the user of the land to the person in wrongful possession' within the meaning of that wrongful possession the meaning the expression used by their lordships of the supreme court in : [1964]1SCR515 .

[13] The contention of Mr. Bodbe that the amount fixed by the court below represented the loss which the plaintiff was sustaining or had sustained would not bear scrutiny. On the arguments advanced by Mr. Bodbe himself , the plaintiff as landlord would not have been in a position to get more than about Rs. 27 per month even if he were to succeed to getting the fair rent fixed onto basis 25 per cent over and above the former rent under clauses 4 to 6 of the Rent Control Order. Therefore, the loss of the plaintiff or to the plaintiff would have been only Rupees 27 p.m. at the most. The courts below, however had found under the circumstances indicated above the money vale of the user of these premises to the defendant. That was fixed at Rs. 90 by the District of court. As was observed in paragraph 18 of the Supreme court decision quoted above the judgments debtor of the defendants had no led any evidence to the show that the quantified rent was exercise so as to require this courts interference for reduction it. The argument of Mr. Bodbe in that connection was that no other evidence was necessary simply because the plaintiff cold not have get of higher rent under the Rent Control order and consequently it should be presumed that the amounts was excessive. Such a presumption could have been permissible only if the defendants had any rights or justification for saying that he was or should still be governed by the Rent Control Order even after ceasing to be attendant the plaintiff had brought on record evidence to show that the adjacent flat of the three month for this flat. Mr. Bodbe was not right in saying that the plaintiff was thereby trying to prove what he could have got as a landlord. Obviously if he is governed by the Rent Control Order, he would note able to get Rs. 100 even if here is a demand for similar premises on the rent. That evidence was led by the by plaintiff to show that money value of the user of these premises to the defendant for the purposes of determining to the quantum of the mesne profits. In that view, and particularly in the absence of any evidence from the defendants to show that this quantum was excessive I see no reason to interfere with the impugned order which is quite correct.

[14] In the result, the appeal is dismissed.

[15] appeal dismissed.


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