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2002 DIGILAW 620 (CAL)

RAMANI MOHAN BURMAN v. BENODE BEHARI DHUR

2002-09-17

D.K.SETH, JYOTESH BANERJEE

body2002
D. K. SETH, J. ( 1 ) THE moot question raised in this appeal by mr. S. P. Roychowdhury and opposed by Mr. S. Dasgupta, respective learned counsel for the parties, is the question of ascertaining as to whether there was a new letting out superseding the lease for 25 years outside the purview of West Bengal Premises Tenancy Act, excepted by Section 3 and creating tenancy within the purview of the 1956 Act. The question traversed on a thin line of distinction as was ably argued by the respective learned counsel, which is not free from doubt But one thing is clear that from the materials on record it is to be found out as to whether there was an intention to create a new tenancy and that was there any implied surrender of the old tenancy. The change in identity of the properly or alteration of rent might be construed to presume an implied surrender and creation of new lease. But this distinction is based on facts and the law is to be applied having regard to the facts and circumstances brought out on record. The other question that was raised is with regard to the mesne profits, as to whether the court would refer the matter for a decision under Order 20 Rule 12 of the Code of Civil procedure or a decision given by the Court determining the mesne profits would amount to fixation of the mesne profits leaving the determination of the amount under Order 20 Rule 12 of the Code of Civil Procedure without altering the finding about the rate of the mesne profits decided by the Court. Change of identity : Was there any ?: ( 2 ) IN the present case, in the Deed of Lease, covered space was let. out It appears to us that the covered space was converted, into a room and thus there was a change in the identity of the property and thus by reason of change of identity, a new tenancy was created. Coupled with this, the enhancement of rent was also a ground seeking to add relief to the creation of a new tenancy. However, we will be examining the question of enhancement of rent at a later stage. 2. 1. The identity of the property admittedly is sought to be distinguished only with the expression "covered space" and "the room". Coupled with this, the enhancement of rent was also a ground seeking to add relief to the creation of a new tenancy. However, we will be examining the question of enhancement of rent at a later stage. 2. 1. The identity of the property admittedly is sought to be distinguished only with the expression "covered space" and "the room". Admittedly, in the Deed of Lease, it was referred to as covered space. In the plaint, recovery was sought for the covered space. In the written statement, it was sought to be described as a room. The plaintiff sought to amend the plaint seeking to change the description of the suit property as the room. But this amendment was refused by the learned Trial Court. On revision this Court also rejected the amendment. Therefore, the parties proceeded on the basis of the pleadings available on record, namely, the recovery of possession of covered space. In the deposition, the plaintiff had described the property as a room. 2. 2. On this basis Mr. Roychowdhury had pointed out that the plaintiff had admitted that he was seeking recovery of possession of room and not of a covered space. This definitely indicates a change in the identity of the property leading to the presumption of an implied surrender and creation of a new lease/tenancy other than the Deed of Lease for 25 years, excepted under Section 3 of the 1956 Act. Admittedly, the defendant had admitted in his deposition that there was a roof all along over the covered space. It was only one door that was installed. With the installation of a door, the room was alleged to have been created. It was never contended that the measurement of the area occupied by the defendant in his tenancy was increased or decreased. Neither there is anything on record to show that the situation of the property was deviated from the place where it was originally situated. Thus the only foundation in the identity is with regard to the covered space and the room, which admittedly did not deviate from the measurement originally agreed in the earlier situation. There is no allegation that a major change or structural alteration or construction was undertaken in the covered space for making the same a room. In common parlance, a room is also a covered space but a room has its walls, windows and doors. There is no allegation that a major change or structural alteration or construction was undertaken in the covered space for making the same a room. In common parlance, a room is also a covered space but a room has its walls, windows and doors. The covered space may not have its windows on doors. The tenancy was for the purpose of carrying on the business. Admittedly, this business was being carried on from the premises. The change that was effected seems to be cosmetic which might have converted the space into a rooms By this cosmetic change, it does not appear that there was a change in the property, which might lead us to presume an implied surrender or creation of a new letting out. 2. 3. Mr. Dasgupta, learned Counsel for the respondent, had referred to the decisions in Longford Property Co. Ltd. vs. Batten. 1950 (2) All England reports 1079 at p. 1088 and Mitchell vs. Barnes and Ann, 1949 (2) All England reports 719 at p. 721 to support his contention that the cosmetic change that has been effected in the present case does not lead to change of identity of the property. In Mitchell (supra), some wooden partitions had been erected for dividing the top two floors from the bottom floor and the house was converted into two flats. Even then it was held that there was no change of identity; It was further held that if there was a great deal of structural work, it could have been said that there was a degree enough to conclude a change in the identity. But this case was related to the specification of standard rent under the Increase of Rent and mortgage Interest (Restrictions) Act, 1920. Therefore, the question was directed from the angle as to whether such changes would entitle the landlord to claim enhancement of the standard rent on account of change of identity. This might not throw any light as to whether changing of the house into two flats would amount to change in the tenancy or a new letting out. But then we may also find that the rent could be enhanced even when there is a new letting out by change of identity. Therefore, the principle of change of identity can be drawn from this decision. But then we may also find that the rent could be enhanced even when there is a new letting out by change of identity. Therefore, the principle of change of identity can be drawn from this decision. Inasmuch as unless there are substantial enhancement of the utility of the property by making substantial alteration thereof involving some amount of structural work, mere construction of the wall or fixation of a door would not lead to change of identity of the property. As, in the present case in Longford Property Co. Ltd. (supra), it was held that the question relates to the identity of the property, it had referred to certain decisions and observed that those decisions were all based on the theory that the act of the parties in arranging a new letting can destroy the entity of a dwelling house, a former letting of which had attracted a standard rent, and can create a new standard rent for the new entity which Is the subject of the new letting. The court further observed that there was ho simple general rule, which could provide an answer. It is in substance a question of fact whether a dwelling house, the standard rent of which is to be ascertained, is the same as one previously let, is said to have changed its identity by reason of some unimportant variation in the content of the tenancy. The question is not so much whether the premises are in all respects the same and whether the dwelling house now in question is the same dwelling house as before. Trivial variations a few feet here or thereought not to be treated as causing a change. It is a question of degree in, respect of which there is no absolute test. It is not the maxim de minimis, which stands between continuing identity and a change of identity, but the fact that only a substantial variation in what is lot can justify a finding that there is a new dwelling house for the purposes of the Act. The above decision clearly supports our view that we have taken that unless there are substantial variations, the cosmetic variation would not confer a different identity on the property. 2. 4. The above decision clearly supports our view that we have taken that unless there are substantial variations, the cosmetic variation would not confer a different identity on the property. 2. 4. In the present case, as we have found, the cosmetic changes that are introduced might have converted the covered space into a room but has not changed the identity of the covered space to such extent as to destroy the earlier tenancy and create a new one on changing the identity of, the property. Enhancement of mat : Creation of new tenancy: ( 3 ) NOW we may divert our attention to the question of enhancement of rent, which might be one of the factors to lead us to presume that there was a new letting. In the present case, the Deed of Lease, which is Ext. I, contains the measurement of the area leased out for 25. years admittedly outside the purview of the West Bengal Premises Tenancy Act. 1956. Clause 5 of the Deed of Lease provides that the lessee shall carry out all repair to the demised portion of the premises at his own cost during the period of this Lease. If, in the name of repair, the covered space was built as introduced and it is not objected to by the lessor, then it cannot be said that there was a real change in the identity of the property unless by reason of substantial enhancement of the utility of the property the rent is also enhanced. Clause 13 of the Deed of Lease provides that an the Municipal rates and taxes both owner's and occupier's shares was payable in respect of the demised premises by the Lessor, but in case the Municipality increases the valuation of the demised permoises the Lessee would be bound to pay the proportionate increase in both shares in addition to the monthly rents. In the plaint it is pleaded that the agreed rent stipulated in the Deed of Lease was Rs. 90/- and that there had been successive enhancement in the assessment of the valuation, which is apparent, from Ext. 3 series. It is contended that the rent also was increased from Rs. 90/- to Rs. 92/-, Rs. 95/- and ultimately to Rs. 116/ -. 90/- and that there had been successive enhancement in the assessment of the valuation, which is apparent, from Ext. 3 series. It is contended that the rent also was increased from Rs. 90/- to Rs. 92/-, Rs. 95/- and ultimately to Rs. 116/ -. there are sufficient materials to show that the valuation having been increased, the taxes were also increased and that the rent was also increased on the basts of enhancement in the taxes payable. Though there is nothing to show as to the extent of the share of the defendant payable on account of such increase, but still then if certain amount is agreed on account of such increase and is paid, in the event. it is nothing mere than the increase in the rent on account of the increase or enhancement of the valuation and taxes payable pursuant to the agreement contained in the Deed of Lease. Thus it was not the rent for a new letting, but it was an increase in the ratio of the rent pursuant to the agreement included in the Deed of Lease itself. Thus, having regard to the present facts and circumstances of the Case and the materials available on record, we do not think that the increase in the rent factor would lead us to presume a new letting. In case there is a change of identity and the utility of the property is substantially enhanced, then there must be an increase in the rent. If both the things are coupled together, then there can be presumption of a new letting. However, until and unless there is such material, it is very difficult to presume a new letting. 3. 1. Mr. Dasgupta had relied on the decision in Savita Dey vs. Nageswar majumder and Anr. , 1995 (6) SCC 274 . The Apex Court had held in paragraph 10 of the said decision as quoted below : "10. Now on the trial scene, we find that the argument of the tenant-respondents about the increase of rent and novation of contract was rightly rejected by the trial court. There is no flexible principle that every variation in the rate of rent payable under a registered deed of lease necessarily implies surrender of the said lease and creation of a new tenancy, or that whenever rate of rent is altered a new relationship between the parties gets created. There is no flexible principle that every variation in the rate of rent payable under a registered deed of lease necessarily implies surrender of the said lease and creation of a new tenancy, or that whenever rate of rent is altered a new relationship between the parties gets created. By mere Increase or reduction of rent, surrender of the existing lease and the grant of a new one, cannot be inferred in each case. It Is a question of fect to be determined. See in this regard Goppulal vs. Thakurji Shriji Shrijt dwarakadheeshji. Instantly in the deed itself provision had been made whereby the lessee had undertaken to pay a proportionate increase in the share of municipal taxes If In future the rate and. taxes get increased by the Calcutta Municipal Corporation in respect of the demised premises. The increase of Rs. 26 per month In the agreed upon rent has rightly been found to be because of increase in taxes. And since they were conceived of and stipulated in the deed itself, no question of novation of contract could ever arise or on that event creation of new tenancy, so as to lift the protection in the landlord available under Section 3 (1) of the Act. "3. 2. Mr. Dasgupta had referred to the decision in D. S. Commercial Pvt. Ltd. vs. Shree S. S. Jain Sabha, AIR 1984 Cal 194 where the question of change of relationship had cropped up. It appears from (he said decision that the distinction is very thin. It is to be ascertained on the basis of the materials available. The Court is required to direct itself to examine flae fact of the case as to whether the parties had intended to create a new relationship and that there would be an implied surrender. It was further held that there would be no implied surrender of previous lease merely because the rate or rent had been altered. But in case the parties had intended to create a new relationship and in pursuance thereof alter the rate of rent previously payable, by operation of law the previous lease is determined. Therefore, when the rate of rent is altered, the question that is to be examined is whether the parties had intended to create a new relationship between them or the parties had merely agreed to altered rate of rent. Therefore, when the rate of rent is altered, the question that is to be examined is whether the parties had intended to create a new relationship between them or the parties had merely agreed to altered rate of rent. It is not always that alteration of rate of rent would amount to implied surrender and creation of new tenancy. If there was a registered Deed of Lease, then it becomes very difficult to presume a creation of new relationship varying the essential terms of the registered Deed of Lease. Applying the above test in the present case, we do not find that the parties had ever intended to create a new lease particularly when there was no alteration in the rent except in accordance with the agreement contained in the Deed of Lease itself which would never amount to creation of a new lease on account of alteration of rent in terms of the conditions contained in the lease. 3. 3. We find the observation made by the Apex Court and that of this court, in the above decisions. that a change in the rent necessarily does not imply surrender of the tease and Creation of a new tenancy. If the lease itself contained a clause, for such purpose, then it cannot be construed to mean a creation of a new lease resulting into novation of the contract Even if there is a change in the rate of rent, still then it was in terms of the conditions contained in the Deed of Lease and, therefore. It would not amount to novation of the contract and thus amounting to implied surrender of tenancy or creation of a new tenancy as has been sought to be put forward by Mr. S. P. Roychowdhury. Can the plaintiff recover the room not pleaded in plaint ? : ( 4 ) MR. Roychowdhury had pointed out that there was no pleading in the plaint so as to enable the plaintiff to claim recovery of the room after the amendment having been rejected. Though the learned Trial Judge had rightly pointed out that there having been no difficulty in identifying the property and there having been no change in the identity of the property, it would not pose any difficulty in identifying the same for the purpose of execution of the decree for recovery of khas possession. Though the learned Trial Judge had rightly pointed out that there having been no difficulty in identifying the property and there having been no change in the identity of the property, it would not pose any difficulty in identifying the same for the purpose of execution of the decree for recovery of khas possession. That apart, there is another angle from which we will be looking into the question that, as already held, there having been no change in the identity of the property even though it was converted into a room without implied surrender of tenancy and creation of a new tenancy, then Mr. Roychowdhury could not bring the case within the purview of the 1956 act so as to protect his client's interest. The pleading does not appear to he vague. It is a suit for recovery of possession of the covered space, the identity whereof is established, though by reason of some cosmetic changes it might have been converted into a room. Until and unless the court comes to a finding that there was an implied surrender and creation of a new tenancy, the question is wholly irrelevant. On the other hand, the defendant had sought to allege that the Deed of Lease was never acted upon not only in his written statement but also in his deposition. But Mr. Roychowdhury had made it clear in course of his submission that he will not go to that extent and according to him the change was alleged to have been effected after the creation of a lease. 4. 1. Mr. Dasgupta had referred to the decision in D. M. Deshponde and ors. vs. Jonordhon Koshinoth Kodam and Ors. , 1998 (8) SCC 315 . Referring to Order 6 Rule 2 of the Code of Civil Procedure, the Apex Court had made some observations in paragraphs 8, 9 and 10 of the said decision. 4. 2. It is not necessary to go into those questions though the proposition is clear in view of the fact that on the pleadings and materials on record we have not been able to agree with the contention of Mr. Roychowdhury that there was an implied surrender and creation of new tenancy by reason of the alleged change in identity or enhancement of rent as sought to toe propounded by him. 4. 3. From the submission made by Mr. Roychowdhury that there was an implied surrender and creation of new tenancy by reason of the alleged change in identity or enhancement of rent as sought to toe propounded by him. 4. 3. From the submission made by Mr. Roychowdhury, as we appreciate, he seems to contend that the plaintiff had sought for recovery of a covered space leased out to the defendant under the Deed of Lease in which the suit property was described. But the plaintiff in his deposition had admited that now there is a room and he seeks to recover the said room. In the pleadings, there is no whisper about the room. In the schedule, it is a covered space and not a room. Therefore, the plaintiff cannot seek to recover the room when it is not so pleaded in the plaint. 4. 4. This question is dependent on the question of identity of the property. As we find that it is the covered space, which is converted into a room by installation of a door as is the case made out by the defendant himself. The cosmetic change as we have held converting the covered space into a room has not destroyed the identity of the property. The identity of the property is material for the purpose of enhanced utility necessitating enhancement of rent. If the utility is enhanced and an increased rent is charged, then there could be a deviation from the original lease amounting to surrender of the initial lease and creation of a new tenancy. Unless there is a creation of a new tenancy upon surrendering, cosmetic change will not amount to change in the identity of the property leased. Except the covered space converted into a room, no other deviation is pleaded with regard to the suit property. The lease is admitted. The suit property is admitted. It is the identity, which is sought to be disputed viz. a covered space or a room, In effect and reality. It is not the identity but the description, which is being disputed. The parties have understood the identity of the property. 4. 5. This question crops up in a case where on the basis of the description given in the plaint, the property cannot be identified for the purpose of execution in order to secure recovery of the property, In this case, there being no other deviation. The parties have understood the identity of the property. 4. 5. This question crops up in a case where on the basis of the description given in the plaint, the property cannot be identified for the purpose of execution in order to secure recovery of the property, In this case, there being no other deviation. it is not difficult to execute the decree and recover the suit property. It is on the admission of the defendant the covered space has since been converted into the room, which is the same property, which has since been leased out Therefore, unless there is a creation of new tenancy upon surrender of the lease. It would pose no difficulty in identifying the property for execution of the decree and recovering the suit property on the basis of the description given in the plaint since it is the same property which has since been leased out is being sought to be recovered and not a subject matter of a different tenancy. Admittedly, if there was a surrender and creation of a new tenancy, the property could not be recovered on the strength of the present suit founded on the Deed of Lease. If it is sought to be recovered on the foundation of the Deed of Lease, there would not be any material change to hinder the execution on the basis of the changed description being the subject matter of the same lease on which the suit is founded and right is claimed. 4. 6. Therefore, we do not find any substance in the contention of mr. Roychowdhury having regard to the facts and circumstances of the case. The plaintiff is entitled to recover the suit property even though he admits the covered space to have been converted into a room on the basis of the description of the property given in the plaint being the subject-matter of the lease. Cross-objection : Determination of mesne profits: ( 5 ) SO far as the cross-objection, being COT. 3141 of 1995 is concerned, mr. Dasgupta had contended that in the plaint the plaintiff had claimed mesne profits at the rate of Rs. 25/- per diem. In his deposition, he bad also claimed the same on the same rate.-But the learned Trial Court bad assessed the mesne profits at the rate of rent last paid. 3141 of 1995 is concerned, mr. Dasgupta had contended that in the plaint the plaintiff had claimed mesne profits at the rate of Rs. 25/- per diem. In his deposition, he bad also claimed the same on the same rate.-But the learned Trial Court bad assessed the mesne profits at the rate of rent last paid. According to him; In view of the Order 20 Rule 12 of the Code of Civil Procedure, the learned Trial Court ought not to have undertaken such exercise for determining the mesne profits by itself. However. Mr. Roychowdhury had contended that, despite the pleading, there was no material before the court to assess the rate of mesne profits. Unless there are proper materials to assess the rate of mesne profits, the Court has every jurisdiction to decide the mesne profits and particularly in the present case, in the absence of any material, the Court has rightly determined the mesne profits at the rate of rent last paid. He also pointed out that neither in the pleading nor in the deposition the plaintiff had ever claimed that the question of mesne profits should be referred to under Order 20 rule 12 of the Code of Civil Procedure for its determination. On the other hand, the plaintiff had prayed to" the Court to determine the same and the Court had rightly determined it. In appeal such decision cannot be interfered with when the plaintiff has not asked for a reference. 5. 1. In the present case, we find that the plaintiff had claimed mesne profits at the rate of Rs. 25/- per diem tentatively and had paid the court-fees for a limited period with a prayer for determination, of the mesne profits on an undertaking to pay deficit court-fees after such determination it is open to the Court to make reference subject to Order 20 Rule 12 of the Code of Civil Procedure with regard to the determination of the rate of and the mesne profits. This question is decided separately under Order 20 Rule 12 of the Code of Civil Procedure when the question of fixation of rate can also be gone into and it is also a proceeding undertaken by the court where the parties are given opportunity to put forward their respective cases. Therefore, in the absence of any material, the trial Court ought not to have undertaken such exercise. Therefore, in the absence of any material, the trial Court ought not to have undertaken such exercise. That apart, even if the trial Court had undertaken such exercise for determining the mesne profits, still then this Court in appeal can interfere with such finding if it finds that the trial Court has not exercised its jurisdiction properly. Admittedly, the trial Court has the jurisdiction to determine the rate of mesne profits. But when in exercise of such jurisdiction, the Trial Court does not exercise it properly and the Court is of the view that it has not been properly exercised, the Court can always intervene. In fact, there is nothing to prevent the appeal Court to intervene in such case. Scope of Order 2o Rule 12 CPC: ( 6 ) ORDER 20 Rule 12 deals with the decree for possession and mesne profits. In sub-rule (1), it empowers the Court in a suit for recovery of possession of immovable property and for rent or mesne profits to pass a decree (a) for the possession of the property, (b) for the rents accrued during the period prior to institution of the suit or it may direct an enquiry as to such rent: (ba) for mesne profits or directing an enquiry as to such mesne profits. Clause (ba) is to be read in conjunction with clause (b ). It has no independent status. It relates to mesne profits for the period prior to the institution of the suit. Unless it is given such a meaning, it would make clause (c) of sub-rule (1) of Rule 12 of Order 20 CPC redundant. The mesne profit for the period after the institution of suit is covered under clause (c ). In respect of mesne profits after the institution of suit, the Court has to direct an enquiry as to rent or mesne profits from the institution of the suit till (i) delivery of possession to the decree-holder, or (ii) the relinquishment of the possession of the judgment-debtor with notice to the decree-holder through Court, or (iii)the expiration of three years from the date of the decree, whichever, even in the three clauses first occurs. Sub-rule (2) requires passing of a final decree in respect of rent or mesne profits where an enquiry is directed under clause (b) or (c) in accordance with the result of such enquiry. Sub-rule (2) requires passing of a final decree in respect of rent or mesne profits where an enquiry is directed under clause (b) or (c) in accordance with the result of such enquiry. Thus, from a plain reading of Rule 12, it appears that the Court has power to pass a decree for mesne profits for pre-suit period. Unless agreed by the parties, post-suit mesne profit cannot be decreed without an enquiry in view of specific provision contained in clause (c) of sub-rule (1) of Rule 12 of Order 20 CPC. 6. 1. Admittedly, neither the plaintiff nor the defendant had agreed between themselves. The Court cannot assess the mesne profits at the rate of rent for the post-suit period. Inasmuch as the party had agreed to the rate of rent for the period of 25 years after which the lease comes to an end. The parties had never intended to continue the lease after its expiry. The lease having expired by efflux of time, a fresh lease can be created only by an agreement between the parties and not otherwise. The rate of rent for such new lease cannot be presumed to be the same at which it was agreed in the Deed of Lease since expired. After lapse of 25 years, it is not expected that the property would be let out at the same rate of rent at which it was let out more than 25 years ago. Court was not given any authority to pass a decree on mesne profits for post-suit period without an enquiry. 6. 2. Inasmuch as, clauses (b) and (ba) of sub-rule (1) speaks of a decree for rents and decree for mesne profits for the pre-suit period or a decree directing an enquiry as. to such rent or mesne profits. These two clauses provide two options to the Court either to pass a decree for rent or for mesne profits for the pre-suit period or to direct an enquiry for rent or mesne profits for the pre-suit period. It does not include post-suit period. Prior to 1976 Amendment, clause (b) included both rent and mesne profits which has since been bifurcated in clauses (b) and (ba) in the 1976 amendment. No new provision has since been attempted to be added. It does not include post-suit period. Prior to 1976 Amendment, clause (b) included both rent and mesne profits which has since been bifurcated in clauses (b) and (ba) in the 1976 amendment. No new provision has since been attempted to be added. It was clause (b) as it; stood prior to 1976 Amendment has since been bifurcated and specifically provided in two different clauses, one for rent and other for mesne profits. The amendment has not effected in deviation or change in law. Therefore, clause (ba) is distinct and different from clause (c ). Clause (ba) (cannot overlap or supersede or eclipse clause (c ). It has to confine itself to a situation other than that covered by clause (c ). 6. 3. The specific provision as provided clearly indicates that court is not empowered to pass a decree for mesne profits or rent for the post-suit period without holding an enquiry since such a decree is permissible only under clause (c), which provides for directing an enquiry and not for passing of a decree straightaway. Where such enquiry is directed, a final decree is required to be passed in view of sub-rule (2) of Rule 12. Principle applied: ( 7 ) THE basic fact in this case is that the tenancy was created by a deed of Lease for a period of 25 years. The lease was a registered one. Therefore, the lease was to expire on efflux of time. It appears that the suit for recovery of possession was instituted after the expiry of the period of lease. However, when the lease expires on efflux of time, then no notice of termination is necessary for obtaining recovery of possession of the tenancy since the lease conies to an end and the relationship ceases. it is not a case of statutory tenancy as is contemplated under the 1956 act. Therefore, the question of rate of rent last paid has nothing to do with it. The lessor is entitled to mesne profits or damages for the period of occupation by the lessee despite the expiry of the lease. The rate of mesne profits could not be assessed on the rent last paid on the principle provided in the 1956 Act. Such damages can be ascertained only after an enquiry,7. 1. Mr. The lessor is entitled to mesne profits or damages for the period of occupation by the lessee despite the expiry of the lease. The rate of mesne profits could not be assessed on the rent last paid on the principle provided in the 1956 Act. Such damages can be ascertained only after an enquiry,7. 1. Mr. Oasgupta had relied on the decision in Jagat Narayan Singh vs. Rabinder Mohan Bhandari, AIR 1992 Cal 216 and Marshall Sons and Co. (I)ltd. us. Sahi Oretrans (P) Ltd. and Anr. , AIR 1999 SC 882 . In Jagat Narayan singh (supra), this Court had held that the Court cannot pass any order unjustiy enriching one party at the cost of the other. Such unjustified enrichment of one party would cause injustice to the other. In other words, while protecting one's right, the Court destroys the right of the other. in the facts of the said case, the Court had held that it would be unjust and illogical to uphold the right of the lessee to continue occupation under the contractual rate after the lease has expired by efflux of time. It is a question of balance of convenience and interest of the parties. 7. 2. This view, as indicated above, finds support in the decision in marshal Sons and Co. (I) Ltd. (supra) where the Apex Court had held that in such a case Order 20 Rule 12 of the Code' of Civil Procedure is restored to. As discussed above the Court has jurisdiction to pass decree for rents or mesne profits for the pre-suit period. Therefore, we are not inclined to interfere with the decree for rent or mesne profits for the pie-suit period. Thus, we find that the question of mesne profits, is liable to be intervened and be referred to the Trial Court for determination of mesne profits for the post-suit period under clause (c) of sub-rule (1) of Order 20 Rule 12 of the. Code of Civil Procedure. Conclusion: ( 8 ) THUS, we find that there is no merit in the appeal in view of the discussion made above. On the other hand, we find there are substances in the cross-objection. Therefore, the appeal is liable to be dismissed and the cross-objection is required to be allowed. Order: ( 9 ) IN the result, this appeal fails and is hereby dismissed with cost throughout. On the other hand, we find there are substances in the cross-objection. Therefore, the appeal is liable to be dismissed and the cross-objection is required to be allowed. Order: ( 9 ) IN the result, this appeal fails and is hereby dismissed with cost throughout. The judgment and decree dated 14th September, 1994 passed by the learned Judge, 13th Bench of City Civil Court, Calcutta in Title suit No. 25 of 1987 is hereby affirmed with the modification with regard to the question, of mesne profits. "the cross-objection, being GOT. 3141 of 1995, is hereby allowed by setting aside the part of the judgment and decree appealed against with regard to the extent by which the rate of mesne profits so determined in the said judgment at the rate of rent last paid for the post-suit period. We, therefore, direct determination of the mesne profits for the post-suit period under Order 20 Rule 12 of the Code of Civil Procedure by the learned trial Court. The rest of the judgment including the decree for rent and/or mesne profits for the pre-sult period is hereby affirmed. The judgment and decree appealed against thus stands modified to that extent. Appeal dismissed Cross-objection allowed."