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1971 DIGILAW 69 (DEL)

RATTAN LAL v. GIRDHARI LAL

1971-03-15

V.S.DESHPANDE

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V. S. DESHPANDE ( 1 ) THE revision petitioner is the tenant of respondent No. 1. the landlord. Respondent No. 2 is the subsequent transferee from the landlord against whom no relief is claimed. The landlord obtained a decree for eviction against the tenant but this decree became inexecutable on 24 March 1947 and thereafter by virtue of Section 9 of the Delhi and Ajmer-Merwara Rent Control Act. 1947 which came into force on 24th March 1947. Nevertheless the decree for eviction was executed bv the landlord against the tenant thereafter and possession of part of the premises was recovered bv the landlord from the tenant. As this was contrary to Section 9 of the Act the tenant was restored back the possession. The possession of a part of the premises was taken bv the landlord from the tenant piece-meal from 27-4-49 till 18th March 1955 but the whole of the possession was restored to the tenant as a result of the order of the lower appellate court which is under appeal in other respects. ( 2 ) THE tenant claimed that he was entitled to recover mesne profits at the rate of Rs. 200. 00 per month for the period during which the landlord was in wrongful possession of the part of the premises. He also claimed damages on other counts. Both the trial court and the lower appellate court, however, dismissed the claim of the tenant for mesne profits on the ground that the tenant had not suffered any loss due to the dispossession according to the construction put by the learned lower courts on Section 144 of the Code of Civil Procedure. The learned lower courts also dismissed the claim of the tenant for damages on other counts. ( 3 ) THE tenant has purported to file the present application in revision under rule 6 of the Delhi Rent Control (Procedure) Rules 1947 in as much as R. 5 thereof precluded any second appeal from an order under the Act. Alternatively, Shri Yogeshwar Dayal learned counsel for the tenant petitioner prays that it the order appealed against is deemed to be one passed under Section 144 Cvil Procedure Code, then this may be treated as a second appeal. Alternatively, Shri Yogeshwar Dayal learned counsel for the tenant petitioner prays that it the order appealed against is deemed to be one passed under Section 144 Cvil Procedure Code, then this may be treated as a second appeal. Learned counsel pointed out that whether it is treated as a revision or a second appeal, it has been filed within limitation laid down under rule 9 of the Delhi Rent Control (Procedure) Rules 1947 or, alternatively, under the limitation prescribed by the Limitation Act and the court fee prescribed bv item No. 11 of the Second Schedule of the Court Fees Act has been paid as laid down in paragraph 5 of Chapter 4 Part A (Vol. 4) of the High Court Rules and Orders. The claim in this petition is for the reversal of the lower appellate court s order. It may be pointed out at the outset that the tenant is not entitled to claim damages on other counts, such as mental suffering etc. ( 4 ) THE only question for decision therefore is whether the tenant is entitled to mesne profits and, if so on what basis. ( 5 ) THE order bv which the possession was restored to the tenant from the landlord was passed not under S. 144 Civil Procedure Code, as such but under inherent jurisdiction in compliance with Section 9 of the Act of 1947. The interest of justice requires for the same reason that the parties should be placed in the same position in which they would have been if the decree for eviction had not been executed by the landlord against the tenant. Therefore, whether the terms of S. 144 C. P. C. apply or not, the principle underlying it has to be applied as a rule of justice, equity and good conscience. The principle is that the parties are to be placed in the position which they would have occupied but for the execution of decree by the landlord against the tenant and consequently mesne profits have to be paid bv the landlord to the tenant The principle underlying the definition of "mesne profits" in S. 2 of Civil Procedure Code, is that the person in wrongful possession must pay to the person who was wrongfully dispossessed, such profits which the former actually receives or might with ordinary diligence have received from the property together with interest on such profits. The test therefore is not what the tenant lost by being dispossessed but what the landlord got or could have got with reasonable diligence because of the dispossession. The learned lower courts were not well advised in rejecting the definition of "mesne profits" under Section 2 of the Code of Civil Procedure or at any rate the principle underlying it in determining whether the tenant could claim mesne profit from the land or not. They overlooked the fact that even Section 144 Civil Procedure Code which they purported to construe requires the payment of mesne profits by the landlord to the tenant after the period of the wrongful possession of the landlord over the premises. The argument which appealed to the learned lower court was that the tenant could not have sublet the premises and therefore he did not suffer any loss due to dispossession. Firstly, there was no such prohibition as such on the subletting of the premises by the tenant either under the legislation of 1944 or under the Act of 1947. Subletting was not therefore either illegal or void though, in certain circumstances, it would have provided the landlord with a cause of action for the eviction of the tenant. Sub-letting by the tenant was therefore legal and the rent paid bv the sub-tenant to the tenant could have been taken to be the measure of the profits of the property. Secondly, the mere fact that tenant was paying rent to the landlord for occupying the premises and that he did not pay rent to him during the period of dispossession does not mean that the tenant did not suffer any loss due to the dispossession. Such thinking is based on the approach that the mesne profits are payable only if the dispossessed party suffered a loss. This approach is wrong. The correct approach is whether the party in possession made profits or could have made profits with reasonable diligence during his occupation of the property. It is due to this wrong approach adopted by the learned lower courts that I am constrained to interfere with the impugned decision. I find therefore that the tenant was entitled to claim mesne profits from the landlord for the period of dispossession. ( 6 ) THE next aspect of the question is the basis on which the mesne profits are determined. I find therefore that the tenant was entitled to claim mesne profits from the landlord for the period of dispossession. ( 6 ) THE next aspect of the question is the basis on which the mesne profits are determined. Ordinarily, the rent which used to be paid by the tenant to the landlord could have furnished a good basis for the calculation of the mesne profits. If however the landlord has earned profits from the premises at a higher rate whether bv using the property himself or by letting it out to other persons then such higher rate of profits would be the basis for calculation of the mesne profits. The learned lower courts further failed to appreciate that the very nature of the basis for calculation of mesne profits implies that the landlord is in special knowledge of the profits earned by him or which could have been earned by him with reasonable diligence. Initially, therefore, it is for him to show what profits he earned from the property. The tenant can thereafter rebut that evidence. ( 7 ) IF this application is treated as revision then it would be under R. 6 (i) of the Delhi Rent Control (Procedure) Rules, 1947 under which the High Court has to satisfy itself whether the impugned decision was according to law. In Hari Shankar v. Rao Girdhari Lal Chowdhary (1962) 64 Pun LR 1097 ( AIR 1963 SC 698 ) the Supreme Court considered the scope of such a revision as being larger than the scope of revision under Section 115 Civil Procedure Code, If this application is treated as a second appeal under Section 100 of the Code of Civil Procedure then the duty of this Court is to see whether the impugned decision was contrary to law. In either case the misconstruction of Section 144 Civil Procedure Code the wrong rejection of the concept of mesne profits as defined in S. 2 of Civil Procedure Code and the wrong approach to the law of mesne profits as well as to the basis for their determination adopted by the learned lower courts would compel interference with the impugned order. ( 8 ) THE revision petition is therefore partly allowed and the orders of the trial court and the first appellate court in respect of the mesne profits are set aside. ( 8 ) THE revision petition is therefore partly allowed and the orders of the trial court and the first appellate court in respect of the mesne profits are set aside. The trial court is directed to determine the mesne profits payable bv the landlord to the tenant in the light of the observations made above. Under the circumstances I make no order as to costs, but order that the extra court- fees wrongly realised from the petitioner under the orders of the learned lower appellate court shall be refunded to him. The parties are directed to appear in the trial court on 29th March, 1971.