Mrs. Manmeet Nanda & Anr. vs Mrs. Vanita Khanna & Anr.

Sabyasachi Bhattacharyya, J.:-

The present first appeal has been preferred against the portion of the impugned decree whereby mesne profits were directed to be paid by the respondents/erstwhile lessees to the appellants/erstwhile lessors at the rate of Rs.500/- per diem, calculated from April 1, 2013 till the date of the judgment.

The short backdrop of the case is that an eviction suit was filed under the provisions of Section 111(a) of the Transfer of Property Act, 1882 by the present appellants against the defendants/respondents.

Simultaneously, the respondents had instituted a suit for declaration that they are monthly tenants under the provisions of the West Bengal Premises Tenancy Act, 1997.

Whereas the appellants’ suit was decreed, granting eviction against the respondents, the respondents’ suit was dismissed, both by the impugned judgment.

The eviction decree has since been satisfied by due execution.

Over and above the above components of the judgment, the same also incorporates a decree of mesne profits, as indicated above.

Learned senior counsel appearing for the appellants, who are aggrieved in the present appeal only against the component of mesne profits, contends that the said portion of the impugned judgment and decree is contrary to the provisions of Order XX Rule 12(c) of the Code of Civil Procedure.

Instead of directing an enquiry as to the mesne profits payable, the learned Trial Judge passed a decree of mesne profits outright, that too, for an amount less than that which was sought by the plaintiffs/appellants, without any adjudication on the same.

Learned senior counsel further points out that whereas the mesne profits have been granted till the date of the judgment only, the appropriate course of action under the contemplation of Rule 12(c)(i) of Order XX would have been to grant mesne profits till the delivery of possession to the decree-holder.

Learned senior counsel, in his usual fairness, reiterates that in the meantime, the eviction decree has been satisfied by obtaining possession in favour of the appellants in due course of law.

As such, it is contended that mesne profits ought to have been granted from the date of expiry of the lease till actual physical possession was recovered by the appellants.

Although an adjournment is sought on behalf of the respondents, since the matter is appearing as the very first item in the hearing list and has been appearing in the list for quite some time, we decline to grant such adjournment.

In any event, in view of the nature of the proposed judgment which we intend to pass, further service of notice on the respondents is unnecessary.

From a bare perusal of the impugned judgment, insofar as the grant of mesne profits is concerned, we find the same to be not only unreasoned but being backed by no enquiry whatsoever to ascertain the actual mesne profits which the suit property could fetch in current times.

Hence, this court is of the opinion that the learned Trial Judge ought to have directed an enquiry in that regard.

We also find substance in the second contention of the appellants to the effect that there could be no conceivable reason as to why the appellants should be deprived of the mesne profits from the date of passing of the judgment till th e date of getting actual possession. In view of the respondents’ occupation of the suit premises being rendered unlawful from the date of expiry of the lease (April 1, 2013) till actual possession was handed over to the appellants, the appellants are entitled to mesne profits for the entire period in-between.

Accordingly, FAT 159 of 2021 is allowed, thereby setting aside the impugned judgment and decree dated March 13, 2019 passed by the learned Judge, Sixth Bench, City Civil Court at Calcutta in Title Suit No.692 of 2013, only to the extent that the same granted a decree for mesne profits, and passing a preliminary decree of mesne profits, payable by the defendants/respondents to the plaintiffs/appellants from April 1, 2013 till actual physical possession was obtained by the plaintiffs/appellants in execution of the eviction decree.

The records be sent down with a direction on the learned Trial Judge to pass a final decree of mesne profits after assessment of the same for the period stipulated above.

For such purpose, the learned Trial Judge shall take recourse to the modalities prescribed in Order XX Rule 12(c)(i) of the Code of Civil Procedure and direct an enquiry, by appointing an Advocate Commissioner under Order XXVI Rule 9 of the Code, to assess mesne profits from the date of expiry of the lease, that is, April 1, 2013 (from which date the occupation of the respondents became unlawful) till the date of delivery of actual physical possession of the suit property to the appellants in execution of the eviction decree.

For such enquiry, the learned Trial Judge shall also grant opportunity to both sides to furnish evidence, if necessary, and also give an opportunity of hearing to the parties.

In view of the long pendency of the matter, it is expected that t he entire exercise shall be concluded at the earliest, preferably within six months from the date of communication of this judgment to the trial court.

There will be no order as to costs.

A formal decree be drawn up accordingly.

I agree.