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Purificacao Fernandes and anr. Vs. Hugo Vicente De Perpetuo Socorro Andrade Menezes and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Civil
CourtMumbai High Court
Decided On
Case NumberSecond Civil Appeal No. 51 of 1983
Judge
Reported in1985MhLJ224
ActsGoa, Daman and Diu Buildings (Lease, Rent and Eviction) Control Act, 1969 - Sections 2; Code of Civil Procedure (CPC), 1908 - Sections 2(12)
AppellantPurificacao Fernandes and anr.
RespondentHugo Vicente De Perpetuo Socorro Andrade Menezes and ors.
Appellant AdvocateM.S. Usgaonkar, Adv.
Respondent AdvocateJ. Dias, Sr. Adv.
Excerpt:
a) it was adjudged that a lease created for commercial purposes under the provisions of the decree no. 43, 525 dated 7th march, 1961 was not heritable by legal representatives of original lessee under the provisions of the goa, daman and diu builings (lease, rent and eviction) control act, 1969. ; b) in accordance with section 2(12) of civil procedure code, 1908 mesne profits are a sort of compensation that a person who was in wrongful possession of other's property had to pay for such wrongful occupation to the owner of the land- mesne profits are to be calculated on basis of the advantage the person in unlawful occupation seta by the use the property- it could not be said the masne profits are to be calculated on basis of the maximum rent that the landlord could have fetched if the.....1. this set of civil appeals by the original defendant in the suit was initially admitted on the following substantial question of law : whether a lease created for commercial purposes under the provisions of the decree mo. 43,525 dated 7th march, 1961 continues to be heritable under the provisions of the goa, daman, and diu buildings (lease, rent and eviction) control act, 1968. however, at the hearing of the appeal, another question was also allowed in respect as to whether the mesne profits can be fixed in excess of the rent which would be payable for the rented premises under the provisions of the rent control act.2. the respondents had filed a suit for eviction against the appellants on the grounds that they are the owners of a house situated at panaji and that, by an agreement dated.....
Judgment:

1. This set of civil appeals by the original defendant in the suit was initially admitted on the following substantial question of law : Whether a lease created for commercial purposes under the provisions of the Decree Mo. 43,525 dated 7th March, 1961 continues to be heritable under the provisions of the Goa, Daman, and Diu Buildings (Lease, Rent and Eviction) Control Act, 1968. However, at the hearing of the appeal, another question was also allowed in respect as to whether the mesne profits can be fixed in excess of the rent which would be payable for the rented premises under the provisions of the Rent Control Act.

2. The respondents had filed a suit for eviction against the appellants on the grounds that they are the owners of a house situated at Panaji and that, by an Agreement dated 10th July, 1946, their predecessors in title had given the said house on lease to one Domingos Pedro Xavier Fernandes, late husband of appellant 1 and father of appellant 2. The rented premises consisted of fifteen compartments on the first floor and two on the ground floor of the said building and had been rented for the purpose of running a hotel. The said original lease agreement was renewed from time to time till the Goa, Daman and Diu Buildings (lease, Rent and Eviction) Control Act, 1968 came into force, and thereafter, the said Domingos became a statutory tenant of the premises. He came to die on 12th July, 1978, leaving behind appellants 1 and2 and others as his heirs and legal representatives. According to the plaintiffs/respondents herein, the appellants entered into possession of the rented premises after the death of the said Domingos, though they had not right to occupy it, as lease was for non-residential purposes. The occupation of the premises by them is, therefore, illegal and they are mere trespassers. The respondents, therefore, filed the suit praying that the appellants be ordered to vacate the rented premises and to give possession thereof to the plaintiffs/ respondents. They further prayed that the appellants be ordered to pay them mesne profits at the rate of their illegal occupation till vacant possession of the premises is given to the plaintiffs /respondents.

3. The suit was resisted by the appellants on the ground that they were living with the deceased Domingos as members of his family, and as such, they had inherited the tenancy rights in respect of the suit premises. In addition, the appellants submitted that the plaintiffs had refused to accept the rents sent to them by money order and that, in any event, the Civil Court had no jurisdiction to entertain the case because under the provisions of the said Act, only the Rent Controller is vested with jurisdiction to order the eviction of a tenant.

4. The learned trial Judge, by his order dated 10th October, 1980, held that the appellants were mere trespassers in occupation of the suit premises since the tenancy rights had not been inherited by them. And by an Addendum dated 17th February, 1982 the learned trial Judge allowed the suit and ordered the eviction of the appellants from the suit premises and further, that they should pay mesne profits at the rat eof Rs. 500/- per month from 13th July, 1978 till the date of the fling of the suit and to pay further mesne profits from the date of the institution of the suit till vacant possession of the premises is given to the respondents and now at the rate of Rs. 1275/- per month.

5. The appellants, being aggrieved, preferred an appeal to the District Court, Panaji. In the said Court, the respondents raised preliminary question according to which the appeal was not maintainable since the main and substantial question in issue had been decided by the learned trial Judge by his order dated 10th October, 1980 and the appellants had chosen not to react against it. Therefore, according to the respondents, the appeal was not at all maintainable. The learned District Judge, however, took a different view and held that the appeal was maintainable. However, after examining the matter in merits, he dismissed the appeal and upheld the judgment and decree of the trial Court.

6. It is against these judgments and decrees of the trial and District Courts hat the present appeal has been filed. The respondents had also filed cross-objections challenging the rate of mesne profits granted by the learned District Judge. However, at the time of the hearing of this appeal, Mr. Joaquim Dias, learned senior counsel appearing for the respondents, stated that the said cross-objections are not pressed by the respondents. Accordingly, I will not deal with the said cross-objections.

7. Before entering into the merits of this appeal, it will be, however, pertinent to note that the learned counsel for the respondents has again raised in this Court the question of the maintainability of the appeal filed by the appellants before the District Judge. The said question was dealt with as a preliminary point and decided by order dated 3rd August, 1984 by my learned brother Justice Kamat. He held that the said objection or preliminary point was not maintainable and, therefore, ordered that the appeal be heard on merits.

8. Coming now to the merits of the appeal, Mr. M.S. Usgaonkar, learned counsel appearing for the appellants, began to invite my attention to the fact that the original lease agreement was entered into on 10th July 1946, that is, when the relevant law prevailing in this territory and regulating leases was the Decree No. 43,525. He admitted that the original agreed rent had been enhanced from time to time and at the relevant time of the coming into force of the Act, was of Rs.90/- per month. Mr. Usgaonkar thin submitted that under the provision of the said Decree, namely, of Art. 79, the lease of premises of commercial or industrial purposes were not coming to an end by the death of the original tenant or lessee and the tenancy rights were conveyed to the heirs of the original lessee. Therefore, according to the learned counsel, under the aforesaid Decree, indisputably the tenancy rights in cases of leases for commercial and industrial purposes were inherited. Then, the learned counsel submitted that after the coming into force of the Goa, Daman and Diu Buildings (Lease, Rent and eviction) Control Act, 1968, the situated has not basically changed. He submitted that , originally, tenant was defined under the said Act as meaning any person by whom or on whose account or behalf the rent of any building is, or but for special contract would be, payable and includes a sub-tenant and also any person continuing in possession after the termination of his tenancy, but shall not include any person against whom any order of decree of eviction has been made. He contended that this definition gave cause to doubts, namely, as to whether leases for commercial or industrial purposes were transferable of the heirs of the original leassee in the case of his death. The Legislature, being seized of the matter, thought it proper to amend the said definition and therefore, a bill was moved in order to fill up the gap. In the Statement of Objects and Reasons for the amendment, it was specifically stated that the bill was being moved in order to cover up the lacuna in the definition of 'tenant' in the Goa, Daman and Diu Buildings(Lease, Rent and Eviction) Control Act, 1968 and that the rights of tenants envisaged in the Act had not been extended to the members of their families living with them. The amendment had in view to fill up the said lacuna and to extend the benefits of the Act to the family members of the tenant living with him up to the date of his death. The learned counsel further contended that it had been specifically stated that such benefit was given to the heirs of a deceased tenant by the aforesaid decree No. 43,525. In the circumstances, therefore, according to the learned counsel, the new definition has to be construed as having extended the benefits of the Act to the heirs of a deceased tenant, irrespective of the fact of the lease being for residential purpose or for commercial pr industrial purpose. In fact, in the new definition the expression 'in the event of his death the surviving spouse, or any son, or unmarried daughter of father of mother who had been living with him as a member of his family up to the date of his death and has been added after the word ' includes' occurring in the original definition. The learned counsel also contended relying on the decision of the Supreme Court in Damadilal v. Parashram, : AIR1976SC2229 , that the proposition that a statutory tenant has no interest in the premises occupied by him and that the proposition that a statutory tenant has no interest in the premises occupied by him and that he has no estate to assign or transfer is no more good law and on the contrary, it is now accepted that the statutory tenant has, in fact, interest in the premises and in the estate and has an estate to assign or transfer. The learned counsel further contended that in the amended definition of 'tenant' the surviving spouse, or any son, or unmarried daughter of father of mother who had been living with him as a member of his family was included in the definition of the word 'tenant'. According to him, the expression 'living with him as a member of his family' has to be construed as meaning that the said person is getting the means of livelihood by living as a member of the family of the deceased tenant. Therefore, according to Mr. Usgaonkar, in case of a commercial or an industrial lease, if a surviving spouse, or any son, or unmarried daughter or father or mother who gets his means of livelihood from the profits or from the running of the business in the rented premises, then he is included in the definition of tenant and it is to be held that the rights of the tenancy are transferred to him. The learned counsel, however, in all fairness admitted that the decision of the Supreme Court in Ganpat Ladha v. Sashikant Vishnu Shinde, : [1978]3SCR198 , may appear to come on the way of his contentions. However, he submitted that the said decision of the Supreme Court is based on the definition of 'tenant' given in the Bombay Rents, Hotel and Lodging House Rates Control act, 1947, wherein the word used is 'residing' implies the staying along with a person and with a permanency. Therefore, according to him, the decision of the supreme Court in Ganpat's case is distinguishable and not applicable to the facts of the case before me.

9. It was, however, contended by Mr. J. Dias that the view taken by Mr. Usgaonkar is not correct and cannot be sustained by the very amended definition of tenant given by the Act. he submitted that, first of all, the protection given to the heirs of the original tenant the decree No. 43, 525 is of no consequence and in no manner helps the case of the appellants because the said decree has been repealed and has been substituted by the Act. therefore, what is relevant is to see what is laid down in the said Decree, the only reasonable inference to be taken is that the Legislature did not want of give the benefits, given by the Act, to the heirs of the original lessee. Now, according to the learned counsel, the expression 'living with him as a member of his family' occurring in the amended definition of 'tenant' cannot be, by any stretch of imagination, construed as meaning 'having benefited' or having any connection with the means of livelihood of the heirs of the original lessee on account of the business run by him in the rented premises. The expression 'living with him' means 'residing with him' and nothing else. He further contended that the decision of the Supreme Court in Damadilal's case has not disapproved, in its entirety, the view taken by the same Court in the cases of Anand Nivas Private Ltd. v. Anandji Kalyanji's Pedhi : [1964]4SCR892 and Jagdish Chander Chatterjee v. Sri Kishan Tandon, : [1973]1SCR850 , wherein it has been held that a statutory tenant has no interest in the premises occupied by him and that he has no estate of assign or to transfer. In Damadilal's case, the Supreme Court has slightly deviated from the said decisions in Anand Nivas and Jagdish Chatterjee's cases and has held that the proposition laid down in the said cases was not to be applied to each and every case, since one has to bear in mind, in each and every case, the specific and particular law applicable to it. Therefore, the Supreme Court held that one has to see, in the light of the provisions of the applicable law, whether the legislature has or not given an estate to assign r transfer to a statutory tenant. In the circumstances, therefore, Mr. Dias submitted that the decision of the Supreme Court in Ganpat's case is the one which applies in all fours to the case before me. He contended that the Supreme Court has considered in that case a situation where it was discussed as to whether the tenancy rights or a deceased statutory tenant were transferred to his heirs in a case of commercial tenancy. The Supreme Court considered this problem in detail and held the view that such rights were inherited only in case of a lease for residential purpose.

10. The Goa Daman and Diu Buildings ( Lease, Rent and Eviction ) Control Act 1968, repealed the law existing in this territory and regulating the leases, namely, the Decree No. 43, 525. Undoubtedly, under the said Decree, the tenancy rights, even in a case of a lease for commercial or industrial purpose, were transferable to the heirs of the deceased lessee. However, in the Act, no clear provision exists in order to show and to establish that the tenancy rights for commercial or industrial purposes are inheritable and transferable to the heirs of the original tenant. S.2 of the Act gives definitions of several expressions occurring and used in the Act. S. 2(p) defines tenant. The said definition was amended in the year 1978 and originally read as under :--

' 'Tenant' means any person by whom or on whose account or behalf the rent of any building is, or but for special contract would be, payable and includes a sub-tenant and also any person continuing in possession after the termination of his tenancy, but shall not include any person against whom any order or decree for eviction has been made.'

The wording of this definition is such that it naturally has given cause to doubts, namely, as to whether or not the members of the family of the tenant were entitled to continue lawfully in possession of the rented premises, after the death of the original lessee. Therefore and in order to cover up the lacuna , a bill was moved to amend the said definition. In its Statement of Objects and Reasons, it is clearly stated that under the original definition of tenant, the rights of the tenant envisaged in the Act had not been extended to the members of his family living with him, and as such, the Act was giving protection to them only during the lifetime of the tenant. It is further stated that the lacuna in the said definition has created an alarming situation and members of deceased tenants were facing the threat of eviction and as such, the bill was moved to modify the definition of tenant and to extend the benefits of tenancy rights to the members of the family living with him up to his death. It is thus clear why this bill was moved and the amendment was approved by the Legislative Assembly. The original definition of tenant as aforesaid was changed by adding after the word 'includes', the expression 'in the event of his death the surviving spouse, or any son, or unmarried daughter or father or mother who had been living with him as a member of his family up to the date of his death and'. It is now clear that the said definition of tenant includes also, in the event of the death of original tenant, his surviving spouse, or any son, or unmarried daughter of father of mother who had been living with him as member of his family. I already said that Mr. Usgaonkar urged that the expression 'living with him' should be construed as meaning 'is getting the means of livelihood' as a member of his family. I am however, unable to accept this view of the learned counsel. It is true that one of the dictionary meanings of the word 'living' is 'livelihood', but, in the context of the definition, it is clear to me that the words 'living with him' are used as a substitute to the expression 'residing with him' or 'permanently staying with him'. This interpretation is corroborated, to some extent, by the Statement of Objects and Reasons of the amendment. In fact, it is specifically stated therein that the lacuna existing in the original definition of tenant has given cause to a situation where members of the family of a deceased tenant, who were living with him at the time of his death, were faced with the threat of eviction and that the intention was to avoid such eviction. In other words, it appears clear that the amendment was introduced only in order to prevent members of the family of a deceased tenant to be without a shelter of a roof under which to live in, after his death. I am strongly supported in this view by the observation made by the Supreme Court in Ganpat's case.

11. In the said case, the interpretation of S. 5(11)(c), Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, came for consideration. The High Court has held that, in the said definition, both residential and commercial or industrial leases were also getting the benefits given by the said definition. The Supreme Court analysed, in detail, the question and observed as under :--

'The High Court took the view that S. 5(ii)(c) applies not only to residential premises but also to business premises and, therefore, on the death of a tenant of business premises, any member of tenant's family residing with him at the time of his death would become a tenant. We do not think this view taken by the High Court is correct. It is difficult to see how in case of business premises, the need for the showing residence with the original tenant at the time of his death would be relevant. It is obvious from the language of S. 5(11)(C) that the intention of the legislature in giving protection to a member of the family residing with him at the time of his death was to secure that on the death of the tenant, the member of his family residing with him at the time of his death is not thrown out and this protection would be necessary only in case of residential premises. When a tenant is in occupation of business premises, there would be no question of protecting against dispossession a member of the tenant's family residing with him at the time of his death.' The Supreme Court further observed that the principle behind S. (11)(c) seems to be that when a tenant is in occupation of a premises, the tenancy is taken by him not only for his benefit, but also for the benefit of the members of the family residing with him, and, therefore, when the tenant dies, protection should be extended to the members of the family who were participants in the benefit of the tenancy and for whose needs, inter alia, the tenancy was originally taken by the tenant. This principle underlying the enactment of S. 5(11)(c) also goes to indicate that it is in respect of residential premises that the protection under the section is intended to be given. The definition in S. 5(11)(c), Bombay Act, is similar to the amended definition of tenant in the Goa Act and the only difference is that, in the Bombay Act, it is said that the word tenant includes any member of the tenant's family 'residing' with him at the time of his death, whereas in our Act the expression used is 'living with him' as a member of his family. To say living with him as a member of his family is to say, in other words, residing with him as a member of his family and, therefore, the different words in tat respect used in the Bombay Act and in our Act are not of much significance and relevance.

12. It is true that, in Damadilal's case, the Supreme Court, dealing with the provisions of the Madhya Pradesh Accommodation Control Act, 1961, has held that the rights of the statutory tenant under the said Act were transferable to his heirs. The Court while so holding, appears to have deviated from the view taken by it in Anand Nivas and Jagdish Chatterjee's cases. In fact, in Anand Nivas's case, the Supreme Court has observed that a statutory tenant has no interest in the premises occupied by him and that he has no estate to assign or to transfer, and further, that a statutory tenant is a person who on determination of his contractual right, is permitted to remain in occupation so long as he observes and performs the conditions of the tenancy and pays the standard rent and permitted increases. It was added that his personal right of occupation is incapable of being transferred or assigned, and he having no interest in the property, there is no estate on which subletting may operate. In Damadilal's case, the Supreme Court observed that though tenancy has its origin in contract and though there is no dispute that a contractual tenant has an estate or property in the subject matter of the tenancy, and heretability is an incident of the tenancy, it cannot be assumed, however, that with the determination of the tenancy the estate must necessarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation. Thus, Court noted, it is not possible to claim that the sanctity of contract cannot be touched by legislation. After these observations, the Supreme Court went on to consider Ss. 2 and 14 Madhya Pradesh Accommodation Control Act, 1961, and held that, in that particular case, on account of the definition of tenant given by the said S. 2 the rights of the statutory tenant were transferable to his heirs. It becomes thus clear that, as rightly pointed out by Mr. Dias, though the Supreme Court has to some extent deviated from its earlier view in the cases of Anand Nivas and Jagdish Chatterjee, the fact remains that, in Damadilal's case, the said earlier view was not disapproved and was only held that it is only in the light of the specific provisions of law that it can be held whether or not the rights of a statutory tenant are or is transferable to his heirs. This being what was held in Damadilal's case, it becomes also clear that it is in the light of the particular provisions of a law that one has to arrive at a finding as to whether or not the heirs of a particular statutory tenant gets the tenancy rights by way of inheritance. In Damadilal's case, the Supreme Court has analysed the problem in general, but it was in Ganpat's case, the Supreme Court specifically dealt with a situation similar to the one before me. Analysing the relevant provisions of law, the Supreme Court has made it clear why the rights of a statutory tenant are transferable to his heirs only in the case of leases for the purpose of residence. The Supreme Court specifically stated that in cases of leases for commercial or industrial purposes, the rights of a statutory tenant are not transferable. This decision of the Supreme Court is in no manner in contradiction with the decision in Damadilal's case and, on the contrary, it is a complement to what was decided in the latter case. In this view of the matter, it is thus clear that the rights of the original tenant in the case before me were not transferable to the appellants. In fact, admittedly, the lease was for commercial purpose and not for residential purpose and as such, applying the ratio of Ganpat's case, it is to be held that the said lease had come to an end with the death of the original lessee. The Courts below had held this view and in my opinion, correctly. Therefore, there is no reason whatsoever to interfere with the said findings of the trial and District Courts.

13. This takes me to the next point raised by the appellants, according to which the mesne profits were to be calculated at the rate of Rs. 90/- per month on account of the circumstance that that was the rent which the statutory tenant was paying. Mr. Usgaonkar contended that as per the provisions of the Act, the respondents could not have increased the rent in any event. In fact, the proviso to S. 12 lays down that where the building has been let out for the first time prior to the 1st day of January 1965, the fair rent shall not exceed the rent payable in respect of such building on that date and S. 13 permits the increase in fair rent only in cases of additions, improvements and alterations done in the rented premises. Similarly, S.16 provides that where the fair rent of the building has not been fixed in accordance with the provisions of the Act, the landlord shall not, after the commencement of the Act, claim, receive or stipulate for the payment of an extra amount or other like sum in addition ot the agreed rent. In view of these provisions of the Act, the learned counsel contended that the respondents would not have been able to get a rent higher than Rs. 90/- per month. He relied on the decision of the Allahabad High Court in Dwarka Prasad v. Central Talkies, Collectougunj, Kanpur, : AIR1956All187 , to support the above view. The learned counsel further contended that, even if the mesne profits were to be fixed at a higher rate, then such rate could have been fixed only from the date of the Decree passed against the appellants. In this connection, the learned counsel relied in the decision of this Court in Brigadier K.K.Verma v. Union of India, : AIR1954Bom358 , wherein Chagla, C.J. has observed that the situation of a tenant who continues to occupy a premises, even if it is unauthorised, is quite different from a trespasser, who right from the beginning had been in occupation of the premises unlawfully. He held, therefore, in that case, that the mesne profits are to be awarded only from the date of the decree and not before. The learned counsel also placed reliance on the decision of the Supreme Court in the cases of Smt. Chander Kali Bail v. Jagdish Singh Thakur, : [1978]1SCR625 and of the Madras High Court in Union of India v. Andhra Bank Ltd., Madras, AIR 1976 Mad 387, to fortify his above contention. The learned counsel further submitted that it is true tht this Court has held a different view in Kesardeo Baijnath v. Nathmal kisanlal, : AIR1966Bom266 , since it is held in the said case that the measure of mesne profits is the value of the user of the land to a person in wrongful possession and, accordingly, has held the view that it is not the rent that the landlord could get for the premises unlawfully occupies. A similar view was,according to the learned counsel, also held in M/s. Kakubhai and Co. v. Nathmal Kisanlal, : AIR1980Bom25 . The learned counsel contended that, however, these two decisions of our Court are distinguishable and the principles laid down in such cases are not applicable to the case before me. He submitted that it appears that, in Kesardeo's case, the Court has held the view that the normal measure of mesne profits is the value of the user of the land to a person in wrongful possession on account of the circumstance that no authority to the contrary had been shown in support of the adverse proposition. Mr. Usgaonkar contended that now there is the decision f the Allahabad High court wherein clearly a different view has been taken and it has been held that in the light of the legislation regulating the rents and the leases, the mesne profits should be fixed bearing in mind the rent a landlord can have for the rented premises.

14. Mesne profits are defined in S. 2(12) Civil P.C. as meaning those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession of other's property has to pay for such wrongful occupation to the owner of the land. It further appears that mesne profits are a compensation, which is penal in nature. According to the definition, the mesne profits correspond to the profits which the person in wrongful possession is receiving or might receive with due diligence for his wrongful occupation of the land. Nowhere, mesne profits are linked with any benefits that the owner of the land may get from the said land. This being so, in my view, it is difficult to accept the submission of Mr. Usgaonkar only because, under the provision s of the Rent Control Act, the landlord cannot get a rent higher than the one he was getting from the original lessee. Mesne profits, as already said are by definition, to be calculated on basis of the profits which the person in unlawful possession is receiving or might have received. It is true that, in Dwarka Prasad case : AIR1956All187 , a division Bench of the Allahabad High Court has held a different view. It was observed in that case that the plaintiff was not free to let the premises concerned to anyone with whom he could strike a bargain and that if he had been free in that respect the amount of damages could be fixed on the probable amount which he could have obtained from the person desirous to rent the premises. However, the Control of Rent and Eviction act controls the amount of rent which a landlord can get for any accommodation and it also provides as to whom the accommodation is to be let. In view of this, the Allahabad High Court held that the mesne profits were to be calculated on basis of the rent that the landlord/plaintiff could have got under the provisions of the control of Rent and Eviction act. this view appears, however, to be in a collision course with the definition f mesne profits itself, as I already observed and, therefore, cannot be accepted. I am fortified in this opinion by the decision of Paranjpe J., in Kesardeo's case. In the said case, the learned Judge, relying on the decision of the Supreme Court in Fateh Chand v. Balkishan Dass, : [1964]1SCR515 , observed that the mesne profits are to be calculated on basis of the profits that a person in wrongful possession has received or might have received with due diligence. It has been observed in the said case as follows:--

'The Rent Control Order was, no doubt, for the benefit and protection of tenants , but it will be going too far to say that the protection was to continue even to erstwhile tenants despite the fact that their possession was as trespassers on the termination of the relationship of landlord and tenant. The moment a person ceased to be tenant. The moment a person ceased to be a tenant, he disentitled himself from the privileges he could have got under the Rent Control Order. Accepting this submission of Mr. Bobde in this connection would virtually amount to giving a legal status of a tenant of a person who has been held by competent Courts to be a rank trespasser after the termination of tenancy. No authority was shown in support of this impossible position. The defendant, who was no longer a tenant, could not still insist on saying that the rent which the plaintiff could have got under the Rent Control Order should be treated as the measure of damages. The claim of the defendant that the mesne profits must be limited to the rent recoverable by the plaintiff under the provisions of the Rent Control Order would virtually mean that the quantum of mesne profits was, not what the defendant had actually received or might with ordinary diligence have received but what the plaintiff as a landlord lost or had not been able to get. That would militate against the definition of mesne profits in S. 2(12), of Civil P.C.

These observations are, as already said, based on what had been held by the Supreme Court in : [1964]1SCR515 . The Supreme Court observed therein that the normal measure of mesne profits is the value of the user of the land of the person in wrongful possession. It is, therefore, clear that there can be no manner of doubt after this decision of the Supreme Court that that mesne profits are to be calculated on basis of the advantage the person in unlawful occupation sets by the use of the property. The same view was otherwise held by a Division Bench of this Court in Kakubhai &Co;'s case. I am, therefore, unable to accept the submission of Mr. Usgaonkar that the mesne profits were to be calculated on basis of the maximum rent that the respondents could have fetched if the premises were freshly let out.

15. The last point that remains to be dealt with is as to whether the mesne profits were to be calculated only from the date of the decree or could have been calculated from the date of the notice of termination of the lease was given. Mr. Usgaonkar relied mainly on the observation made in Brigadier nK.K. Verma's case : AIR1954Bom358 by Chagla, Chief Justice. It has been observed, in the circumstances of that case, that there was no doubt that the respondent had entered into the premises under a proper title, that his occupation was authorised and that his possession after the termination of the tenancy was a juridical possession. On the other hand, in the case of a trespasser, it was further observed that from its very inception his possession is unlawful and in no point of time could it be said that his possession was juridical. Then, it was noted that the legislature was not so much emphasising the point of time when it used the expression 'any person is in unauthorised occupation' as the nature of the possession of the person referred to in that sub-clause. 'Is' obviously is used in the present tense and 'is in unauthorised occupation' means that the occupation was unauthorised throughout the time that the person was in possession. It was on such basis that the learned Chief Justice held the view that mesne profits, in such a case, are to be calculated only from the dae of the decree. It has, however, to be borne in mind that the case before the learned Chief Justice was not one under the Rent and Eviction legislation but under the Public Premises Act. It is also to be considered that the other decision already referred to hd dealt with the provisions of the Rent Control Act and a different view has been taken not only by this court but also by the Supreme Court. Besides, in view of the decision of the Supreme Court in Ganpat's case, it appears to me that the observation made by the learned Chief justice in the said case are not at all attracted. So also, the observations made by the Supreme Court in Chander Kali's case : [1978]1SCR625 are not attracted. That was a case where the eviction of a tenant had been sought and ordered on account of non payment of rents. Under the relevant legislation, the tenant could have avoided his eviction by paying the rents and, therefore, it was only because the tenant had not availed himself of this benefit that the eviction had been ordered. It was in the context of the particular facts of that case and in view of the observations made in Damadilal's case : AIR1976SC2229 , that the Supreme Court observed that in that case, the mesne profits were to be paid only from the date of the decree. The situation before me is quite different and the appellants had no right whatsoever to continue in the tenancy. Therefore, they were right from the beginning and from the time of the death f the original lessee occupying unauthorisedly the premises and were, therefore, deemed to be for all the legal purposes trespassers. In this context of facts, the said decision if the Supreme Court is not applicable to the facts and circumstances of this case.

16. In the result, this appeal fails and is, consequently dismissed. The cross-objections, as already stated, had not been pressed and, therefore, are also dismissed. There will be no order as to costs in the circumstances of this case.

17. The learned counsel appearing for the appellants prays that the operation of this judgment be stayed for six weeks. The learned counsel appearing for respondents does not object and, consequently, the operation of the judgment just delivered is stayed for six weeks.

18. Appeal dismissed.


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