Madhya Pradesh High Court
Smt. Prema Agarwal And Others vs Om Prakash Gautam And Another on 8 January, 2001
Equivalent citations: 2001(2)MPHT408, AIR 2001 (NOC) 57 (MPG), 2001 A I H C 1962, (2001) 1 MPLJ 547, (2001) 1 RENCJ 584, (2001) 1 RENCR 584, (2001) 3 RECCIVR 132, (2001) 3 CIVLJ 595
ORDER D.B. Dixit, J.
1. The facts in brief shorn of details and necessary for the disposal of this appeal He in a narrow compass : Plaintiffs had instituted a Civil Suit No. 464-A/1991 against the respondents-defendants for eviction and mesne profits of the suit shop which was decreed by the judgment and decree dated 27-2-1997 of Second Civil Judge Class II, Gwalior. Respondents preferred a Civil Appeal No. 24/97 which was decided by judgment and decree dated 13-3-1998 by 8th Additional Judge to the Court of District Judge, Gwalior, which was partly allowed only to the extent of reducing the rate of mesne profits; against which this second appeal has been admitted on following substantial questions of law :
(1) "Whether plaintiff/landlord is entitled to mesne profits from the date of filing of suit at a rate higher than the contractual rate of rent or he is entitled to get mesne profits from the date of decree for eviction ?"
(2) "Whether for granting decree for mesne profits the Court should consider escalation in rental price ?"
2. Learned counsel of the respondents has raised a preliminary objection to the effect that in Second Appeal against the impugned judgment appellants-plaintiffs have not raised any point regarding reduction of rent and mesne profits by way of cross-objection or cross-appeal.
3. Learned counsel of the appellants, on the other hand has contended that he is free to file a separate appeal regarding quantum of mesne profits, if it is filed within the period of limitation. I am of the opinion that there is no law placing any barrier on filing a separate appeal against the impugned judgment if the cross-objections were not raised in an appeal preferred by other party against the same judgment,
4. Learned Trial Court had framed Issue No. 4 regarding mesne profits and after recording evidence returned a finding that since respondent No. 1 has sub-let the premises for business purposes to respondent No. 2 who is earning about Rs. 200/- per day but considering also the investment and expenses of the business at least Rs. 1,000/- per month should be awarded by way of mesne profits to the plaintiffs. However, the learned Appellate Court reversed this finding by the impugned judgment on the ground that the contractual rent between landlord and tenant, i.e. respondent No. 1 was Rs. 225/- per month and even if sub-tenancy by respondent No. 1 in favour of respondent No. 2 was proved, no mesne profits beyond the contractual rent can be awarded even against a sub-tenant by taking recourse to Order 10 Rule 12, CPC.
5. It has been further submitted for the appellants that although the learned Appellate Court had relied upon a decision of the Apex Court in case Chandra Kali Vs. Jagdish Singh Thakur, reported in AIR 1977 SC 2262. However, overlooked the case of Shyam Charan Vs. Sheoji Bhai, AIR 1977 SC 2270, wherein contractual rent was Rs. 1,600/- per month while the mesne profits was awarded by the Trial Court at the rate of Rs. 4,000/- per month. This amount of mesne profits was not disturbed even upto the appeal before the Hon'ble Supreme Court.
6. In case of Nandita Bose (Smt.) Vs. Ratanlal Nahata, reported in 1998 (I) M.P. Weekly Notes, Note 26, it has been held that mesne profits from the tenant can be claimed more than that of rent rate. Hon'ble Supreme Court in case of D.C. Oswal Vs. V.K. Subbiah and others, reported in AIR 1992 SC 184, has observed that judicial notice can be taken of the fact that rental has escalated everywhere and in appropriate cases the rent can also be raised. The Calcutta High Court in case of Jagat Narayan Singh Vs. Rabinder Mohan Bhandari and others, reported in AIR 1992 Calcutta 216, after expiry of lease period held tenant liable to pay mesne profits for occupation of premises at prevalent rate and not at contractual rate. In a Division Bench decision of Delhi High Court in case of Vinod Khanna and others Vs. Bakshi Sachdev (deceased Through L.Rs'.) and others, reported in AIR 1996 Delhi 32; even when no evidence was led by landlord in respect of increase of rent, held, justified in fixing compensation mesne profits by taking judicial notice of the fact of increase in rent.
7. In so far as the present case is concerned, it is found proved by both the Courts below that respondent No. 1 had sub-let the shop premises to respondent No. 2 who was earning Rs. 200/- per day and though appellants were deprived of this income by means of such sub-letting although the Trial Court has awarded only Rs. 1,000/- per month which is in no way excessive in facts and circumstances of the case. The learned Appellate Court, therefore, erred in law in holding that the appellants are not entitled to mesne profits more than the contractual rent. Since the plaintiffs have claimed the mesne profits from the date of suit, it is not necessary that mesne profits are to be awarded from the date of decree of eviction as has been held by the Hon'ble Supreme Court in case of Shyam Charan (supra).
8. On consideration of different decisions referred hereinabove, it is to be held that plaintiffs-landlords are entitled to mesne profits from the date of filing of the suit at the rate higher than the contractual rate and for so determination the Court can also consider escalation in rental prices. In facts and circumstances of the present case, the mesne profits at the rate of Rs. 1,000/- per month from the date of filing of the suit as awarded by the Trial Court seems to be justified and deserves to be upheld.
9. For the reasons stated hereinabove, this appeal is allowed and the findings of the Appellate Court in the impugned judgment to the extent of payment of mesne profits is hereby modified to the effect that appellants are entitled to mesne profits from the respondents at the rate of Rs. 1,000/- per month from the date of filing of the suit.
10. Second Appeal allowed.