Calcutta High Court
Jagat Narayan Singh vs Rabinder Mohan Bhandari And Others on 18 July, 1991
Equivalent citations: AIR1992CAL216, 96CWN227
ORDER Bhagabati Prosad Banerjee, J.
1. This is an application for stay of the operation of the judgment and decree passed by the Court below in Title Suits Nos. 593 of 1976 and 1725 of 1978 passed by the Chief Judge, City Civil Court, Calcutta dated 12th June, 1989, whereby Title Suit No. 593 of . 1976 was decreed and the Title Suit No. 1725 of 1978 was dismissed with costs. By the said judgment and decree the plaintiffs/respondents were to get recovery of the suit premises by evicting the defendant/appellant and the defendant was directed to deliver vacant possession within one year from the said date. The Title Suit No. 593 of 1976 was filed by the plaintiffs/opposite parties far eviction of the defendant/appellant from the suit premises on the ground of expiry for a period of lease. By a registered deed of lease dated 3Isl March, 1955 the owner of the premises No. 64, Bentinok Street, Calcutta granted lease in favour of the lessee. The lease was for a period of 21 years from 1 -3-55 reserving the monthly rent of Rs. 1400/- only. The right title and interest, of the original lessor was vested to the custodian of enemy properties and the custodian of enemy properties had conveyed and transferred absolutely to the predecessors of the plaintiffs/ opposite parties as the defendant failed and neglected to deliver vacant possession within the expiry date and the said suit was filed.
2. The defendant/appellant also filed a Title Suit No. 1725 of 1978 against the plaintiffs/opposite parties for specific performance and contract for execution and registration of the lease deed in respect of the suit premises. The prayer for stay of operation of the judgment and decree by which the defendant/appellant was directed to vacate the premises, had not been seriously opposed. But it was submitted on behalf of the plaintiff-opposite parties that in case the Court grants any stay of operation of the said decree, this Court shall direct the appellant to pay mesne profit at the market rate from the date of the expiry of the lease. Admittedly, the area under the occupation of the appellant was 11,700 sq. ft. at the heart of the City of Calcutta. The prayer for mesne profit as made by the plaintiffs/ opposite parties has been opposed by the appellant.
3. There are different types of cases in which the question of profit or mesne profit arises. In a suit for ejectment or recovery of possession of immovable property from a person in possession without title together with a claim for past or future mesne profits may also arise. Clause (12) of Section 2 of the Code of Civil Procedure defines mesne profit as "those profits which the person in wrongful possession of such property actually received or might with ordinary deligence have received therefrom together with interest on such profits shall not include profits due to improvements made by the person in wrongful possession". So in order to claim mesne profit, one of the preconditions is that the party from whom it may be claimed, must be in wrongful possession of such property. In a case where a decree for eviction has been passed and the person against whom the decree for eviction, files an appeal and makes a prayer for stay of the execution of the decree for eviction, can it be said that such a person is in unlawful possession of the property and can the Court direct the party to pay mesne profit for his occupation on the strength of the interim order that may be passed by the Court. The possession of such party becomes lawful in case the injunction is granted, otherwise it would remain unlawful.
4. Mr. Sakti Nath Mukherjee learned Advocate appearing for the appellant contended that if the appellant had to pay mesne profit for maintaining possession on the strength of an interim order during the pendency of the appeal at a rate beyond the contractual rate, that would cause an impediment on the right of appeal of such person. In other words, if the power of the Court to impose any financial burden as a condition of stay, is conceded in that event, the right of appeal would become nugatory.
5. On behalf of the decree-holder Mr. Sudhis Dasgupta learned Advocate, submitted that it would be unjust and unfair to allow the judgment-debtor to continue at the old rate fixed 30/35 years ago depriving the market rate to the decree-holder, and that the Court would not allow a party to be unjustly enriched at the cost of other on the strength of an interim order. It was also submitted by Mr. Dasgupta that there has been sharp increase in the rate of rents in the metropoles and a lessee against whom a decree for eviction had been passed, cannot be allowed to continue in possession on the strength of the interim order at the con-
tractual rate which had come to an end in 1976. Admittedly, if the decree-holder could get possession of the property in the year 1976, he could earn huge amount of profit from the property in question. Admittedly, the rate of rent for 11,700 sq. ft. area at the heart of the city was fixed at Rs. 1400/- for the year 1955 up to 1976, was very low.
6. When the appeal is pending before this Court, it is necessary to protect the possession of the appellant during the pendency of the appeal. The question is whether the appellant is liable to pay mesne profit within the meaning of clause (12) of Section 2 of ths Code of Civil Procedure. In the facts and circumstances of the case, the Court is entitled to impose conditions while granting stay. The question is whether the Court would direct the appellant to pay mesne profit in the facts and circumstances of the case. Admittedly, the lease period expired in the year 1976 and the appellant had not paid anything on account of damages and/or mesne profit from 1976, or whether in the facts and circumstances of the case, the Court would grant any injunction without any condition as to the amount of damages and/or mesne profit payable by the appellant. It is the duty of all courts to take care that no act of the court in course of proceeding does an inquiry to a party.
7. True, the appellant has a right of appeal and that an order for mesne profit may impose certain liability upon the appellant to pay an amount and that ultimately the appellant had to pay price for getting any interim order. If an order for mesne profit is passed that would impose certain extra financial burden on the appellant, on the other hand, if the appellant/opposite party is not allowed to get mesne profit from the appellant, that would also result in the disproportionate counter mischief. If the provision of clause (12) of Section 2 of the Civil Procedure Code is construed strictly according to its letter that would result in causing loss to the plaintiff/opposite party. It is the cardinal principle of rules of interpretation that Court seeks to avoid a construction that cures mischief the enactment was designed to remedy only at the costs of setting up a disproportionate counter mischief, unless there are overriding reasons for taking a contrary view. It is absurd to suppose that the law in this behalf intended to abolish one mischief only at the cost of establishing another which is unjust, bad or even worse. In case the appellant is allowed to stay at the contractual rate which had come to an end in the year 1976, it would be clear case of unjust bad or even worse. In case the appellant is allowed to stay at the contractual rate which had come to an end in the year 1976, it would be clear case of unjust enrichment on the part of the appellant. From the report of the Special Officer appointed by this Court who had visited the place and submitted a report, it is clearly evident that the property is situated at the heart of the city of Calcutta where it is difficult to get such as accommodation. The value of lands and buildings have been increased in recent years to a large extent. The rate of rents has also been increased to a large extent. It is inconceivable to get an accommodation of a building or a portion of a building, even at the rate of Re. 1/- per square feet in or around the city of Calcutta and the Court can take judicial notice of this fact. Under such circumstances, if the appellant is allowed to continue in possession at a sum of Rs. 1400/- for an area of 11,700 sq. ft., that would be a clear case of unjust enrichment on the part of the appellant at the cost of the plaintiffs/ opposite parties. The Code of Civil Procedure is a body of procedural law designed to facilitate justice. Laws of procedure should be so construed as to render justice wherever reasonably possible. (See Chinnammal v. P. Arumgham, . The provision of mesne profit has to be construed in such a manner that is just and proper. The provision of mesne profit has to be construed liberally by applying the principle of purposive and literal construction, otherwise, it would result in impracticable, inconvenient and illogical result. Even legal system must seek to avoid unjustified differences and inconsistencies in the way, it deals with similar matters. Lord Devlin said "No system of law can be workable if it has not got logic at the root to it". (See Hedley Byrne & Co. v. Heller & Partners Ltd., (1964) AC 465 at 516).
8. In our view, the Court cannot pass any order which would unjustly enrich to one party at the cost of the other and in order to unjustly enrich to one party, it would cause injustice to other, or in other words, in order to protect one's right, the other's right would be destroyed. In the instant case, we are unable to hold that the appellant is entitled to occupy the premises during the pendency of the appeal on the strength of injunction on the basis of the contractual rate entered in the year 1955. The contractual period has come to an end and under the lease agreement there was no scope for increasing the rate of rent and at this stage, after the lease period expired, it would be unjust and illogical to uphold the right of the appellant to continue occupation under the contractual rate. The Court seeks to cut down technicalities attendant upon a statutory procedure where this cannot be shown to be necessary to the fulfilment of the purposes of the legislation. The possession of the appellant became unlawful after the expiry of the lease and that such unlawful occupation has been confirmed by the judgment and decree passed by the Court below and that under such circumstances, if the Court pass an order for maintaining the possession such appellant, the Court must compensate the appellant (sic and that we cannot allow the party to contend that he is entitled to enjoy premises at a rate fixed in 1955 at this stage. At this stage, the Court is only concerned about the balance of convenience and interest of the parties. We cannot pass any order which would result in loss to the plaintiffs/opposite parties when the appellant is making profitable use of such premises just for a song and running a modern hotel.
9. Accordingly, considering the provision of clause (12) of S. 2 read with Section 151 of the Code of Civil Procedure, we direct that the appellant is liable to pay mesne profit or damages at the rate of Rs. 11,700/- per month from 1st March, 1976 until disposal of the appeal. The appellant shall pay Rupees 5,000/- in cash and the balance amount of Rs. 6,700/- from 1st March, 1976 to June, 1991 shall be furnished by Bank Guarantee to the Registrar, Appellate Side of this Court within four weeks from today. The arrear at the rate of Rs. 5,000/- from 1-3-76 to June, 1991 shall also be paid within that period in cash and the appellant also shall pay from the month of July, 1991 till the disposal of appeal at the rate of Rs. 11,700/- in cash. On condition of payment of money of the aforesaid terms there shall be stay of operation of the order of the Court below during the pendency of the appeal. Such payment shall be made by the 15th of the succeeding months. The first of such deposit shall be made by 15-8-1991. In case of default on account of arrear and any current payment this interim order shall stand vacated. This payment of mesne profit shall abide by the decision in the appeal. The respondents have filed power and waived service of notice of the appellant. The appeal is made ready with regard to the service of notice. Let the record be called for by Special Massenger at the cost of the appellant. Costs shall be deposited within one week. Paper Book should be prepared out of Court and filed within four weeks from the date of service of notice of appeal. Let the appeal be placed for hearing at the top of the hearing list after one week from the date of filing of such paper book in terms of this order.
Amal Kanti Bhattacharyya, J.
10.I agree.
11. Order accordingly.