Mohammed Musa Sait Wakf vs The Chief Secretary and The Division Engineer

Anand Byrareddy, J.—Since both these appeals arise out of a common order and the appellant and the respondents being common, they are heard together and are disposed of by this common order. Heard the learned counsel for the appellant and the learned counsel for the respondents.

The appellant was the petitioner in the final decree proceedings before the court below and the facts are as follows:

The petitioner was a Wakf represented by its Mutavalli in two cases numbered as FDP. 15009 and 15010/2001. These were final decree proceedings in respect of the suits namely O.S. Nos. 10886/1995 and 10887/1995 filed by the petitioner-appellant seeking ejectment and recovery of arrears of rent and mesne profits. The cases were clubbed together and adjudicated by a common order. The petitioner had claimed mesne profits at the rate of Rs. 25/- per sq.ft. per month in respect of the properties in question. The properties involved were identical in extent, namely 51,666 sq.ft. The judgment which was common in both the suits was rendered on 31.10.2005 and by the judgment and decree, the mesne profits were to be determined independently and therefore, the proceedings.

The property is situate close to Vidhana Soudha and the High Court, Bangalore. The built-up area was about 4,000 sq.ft. The point for consideration framed by the court below was, whether the petitions were to be allowed as prayed for. It is to be noticed that apart from producing certain memo of calculations, the petitioner did not choose to file any material on the basis of which the court could proceed to determine the mesne profits. Consequently, the court has proceeded at its discretion to arrive at the following conclusions and has passed the following order:

ORDER

Both the petitions are allowed as under:-

1) The petitioners in FDP. 15009/01 are entitled to Rs. 2,98,425/- from the respondents towards mesne profits from 31.8.95 to 31.8.09 subject to deduction of the rent deposited in this case regarding the said period.

2) The petitioners in FDP. 15010/01 are entitled to Rs. 1,35,031/- from the respondents towards the mesne profits from 31.8.95 to 31.8.09 subject to deduction of the rent deposited in this case regarding the said period.

3) Further the petitioners in FDP. 15009/01 are entitled to mesne profits of Rs. 18,700/- with increase of 20% on the said amount every month from 1.9.09 to till actual handing over of the possession of petition property by the respondents to the petitioners.

4) Further the petitioners in FDP. 15010/01 are entitled to mesne profits of Rs. 8,570/- with increase of 20% on the said amount every month from 1.9.09 to till actual handing over of the possession of petition property by the respondents to the petitioners.

5) The respondents are ordered to pay in both the petitions the above stated amount within 3 months from the date of this order failing which the petitioners in both the cases are at liberty to recover the same as per law.

The parties to bear their own costs.

The original of this order is kept in FDP. 15009/2001 and a copy thereof is kept in FDP. 15010/2001.

It is this which is sought to be questioned by the learned counsel for the appellant. As a prelude, the learned counsel seeks to file an application enclosing several documents, which according to him would clearly form the basis for arriving at the just mesne profits in respect of the property in question. There is no convincing explanation offered for the non-production of the documents at the enquiry, except stating that the same could not be produced. It is however not in dispute that the respondents have since vacated the property and are no longer tenants. However, as seen from the determination made by the court below, the same is on the lower side and does not really compensate the petitioner in terms of the mesne profits or the increase in rent that is determined. The court also cannot be blamed in having arrived at the said amounts, as the court apparently has proceeded with prudence in determining the rent in the absence of any material in this regard.

Therefore, in the interest of justice, it would be necessary to refer to available material in arriving at a fair and just amount towards mesne profits and additional rent payable. This would require a fresh enquiry being conducted by the court below, with reference to the additional documents that are sought to be presented by the petitioner. Since there would be a need for additional evidence being tendered, it would be inconvenient for this court to undertake such determination, even though it is possible. It is also to be noticed that the respondent who has vacated the premises is a Government of India Undertaking, and would be put to some inconvenience and hardship in the event of the proceedings being revived at this point of time. Therefore, it would be necessary to adequately compensate the respondent in this regard.

Hence, on that summary finding that the amounts towards mesne profits and the enhancement of rent is rot adequate and does not match the amount which the properties could fetch in the market, it is necessary that the matter be reconsidered. Accordingly, the appeals are allowed. The impugned order is set-aside and the matter is remanded for fresh enquiry while granting liberty to the appellant to adduce additional evidence and produce such other material which may be relevant, which the court may formally permit, subject to payment of costs of Rs. 25,000/- to the respondent on the first date of hearing before the court below. With that observation, the appeals stand disposed of.