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Judgment
A.N. Venugopala Gowda, J.—Plaintiff is the petitioner. Respondent is the defendant. The relief prayed in the suit is to direct the defendant to vacate the suit schedule property and to hand over the vacant possession to the plaintiff and to pay the arrears of rent to the plaintiff from June 2007 till the date of termination of tenancy on 25.10.2007 and for awarding damages from the date of termination till the date of having over of the possession of the suit schedule property to the plaintiff. Respondent/defendant has filed written statement dated 21.02.2009 and has contested the suit claim. Plaintiff filed I.A. No. 3 dated 26.06.2009 u/s 151 C.P.C. to direct the defendant to pay the arrears of interim mesne profit at Rs. 16,000/ - per month from June 2007 to May 2009 (24 months and for further period). Defendant has filed objections dated 08.09.2009 to I.A. No. 3. The trial court has dismissed I.A. No. 3 by observing that, the plaintiff ought to have asked the arrears of rent, but has asked for interim mesne profit, which can be awarded after the enquiry and during the pendency of the suit, the application for mesne profits is not maintainable and the application is not proper.
The respondent/defendant in the objections filed to I.A. No. 3 has stated that, she has paid the rent through cheque and cash to the plaintiff and her son, till the end of December 2007. It is not the case of the respondent that, the amount payable thereafter has been paid. Under the general law, and in cases where the tenancy is governed only by the provisions of the Transfer of Property Act, 1882, once the tenancy comes to an end by determination of lease, the right of the tenant to continue in possession of the premises comes to an end and for any period thereafter, for which she continues to occupy the premises, she becomes liable to pay damages for use and occupation at the rate at which the landlord could have let out the premises on being vacated by the tenant.
Heard the learned Counsel and perused the writ papers.
In the case of Shyam Charan Vs. Sheoji Bhai and Another, , the Apex Court has upheld the principle that the tenant continuing in occupation of the tenancy premises after the termination of tenancy is an unauthorised and wrongful occupant and a decree for damages or mesne profits can be passed for the period of such occupation, till the date he delivers the vacant possession to the landlord.
The trial court keeping in view the facts and circumstances of the case, ought to have kept in its view the decision of the Apex Court in the case of Atma Ram Properties (P) Ltd. Vs. Federal Motors Pvt. Ltd., and passed the order. The impugned order is not a considered order, referring to the case of the parties and the fact that the defendant has admitted that the rent was paid till the end of December 2007. Since there is neither an averment nor proof of payment for the subsequent period, the trial court ought to have passed an appropriate order. Since there is non-application of mind and non-consideration of the matter in accordance with law, the impugned order is unsustainable.
In the result, I pass the following:
ORDER
Writ petition is allowed. The impugned order is quashed.
Trial court is directed to reconsider I.A. No. 3 keeping in view the observation made supra and in accordance with law and pass orders on I.A. No. 3 within a period of one month from the date the copy of this order is placed on its record by either of the parties.