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2017 DIGILAW 1768 (GUJ)

Ashutosh Indravadan Patel v. Bank of Baroda

2017-11-02

A.Y.KOGJE, AKIL KURESHI

body2017
ORDER : A.Y. KOGJE, J. The appellants-original plaintiffs have filed the present appeal against the judgment, order and decree dated 27.2.2017 passed by the 6th Additional Sr. Civil Judge and Additional C.J.M Vadodara in Special Civil Suit No. 442/2015. 2. The Special Civil Suit was filed for declaration, recovery of possession and arrears of rent making the following prayers: “1. Defendants be ordered to vacate the premises and handover the possession of the suit premises. A executable decree be drawn in favour of the plaintiff to take the possession of the premises from the defendants. 2. It be declared that the defendants are bound to pay the present market rent of the suit premises from dt. 7/8/2015 i.e. after the expiry of the lease agreement. 3. The defendants be ordered to pay Rs. 5,04,000/- being the amount of areas of rent of the three months i.e. from 7/8/2015 i.e. after expiry of lease agreement till the filing of the suit and a executable decree be drawn in favour of the plaintiff recover the said amount from the person and property of the defendants. 4. The defendants be ordered to pay the means profit of Rs. 1,68,000/- per month being the market rent of the premises till the defendant bank hand over the possession to the plaintiff. and if the defendant bank do not vacate the premises within span of 5 years from the date of the suit, it be further order to pay 25% more rent on Rs. 1,68,000/- after 5 years till further period of 5 years or till they vacate the premises whichever is earlier and a executable decree to that extent be drawn in favour of the plaintiff recoverable from the person and property of the defendants. 5. The cost of the suit be awarded. Any other remedy in the interest of the justice be allowed.” 3. By the impugned judgment, the suit came to be allowed declaring that the possession of the defendants was illegal and accordingly the defendants were ordered to vacate the suit premises within a period of three months from the date of order. The defendants were also ordered to pay rent of Rs. 17,250/- per month till the property was handed over to the plaintiff. The defendants were also ordered to pay rent of Rs. 17,250/- per month till the property was handed over to the plaintiff. The aforesaid judgment came to be passed primarily on account of response to the defendants wherein no dispute with regard to any other issues as prayed for in the suit were raised. 4. In the present appeal, the case of the appellants is that though from the pleadings in the plaint and the prayers, several triable issues were raised, especially with regard to the mesne profit, the trial Court has failed to consider such issues and adjudicate upon them. 5. Learned advocate or the appellants took this Court through the plaint, the copies of the applications for handing over of the possession of the suit premises and also under Order XII Rule VI. From the pleadings, it appears that the plaintiffs had raised triable issues which the Court ought to have adverted to but the Court simply on the basis of response of the defendants, proceeded to pass the impugned judgment. It also appears that though the prayer, as reproduced in the preceding paragraphs, more particularly, prayer No. 4 for the purpose of mesne profit was made, neither issue was framed nor evidence was permitted to be led in this regard. 6. The Court has perused the impugned judgment and the record of the case including the pleadings on both sides. It appears that the lease agreement is dated 8.8.2005 which provided for 10 years period and increase by 25% after five years. Accordingly, after 8.8.2010, lease amount was revised by 25% upward revision. The lease period expired on 7.8.2015 There was no renewal of lease agreement nor the premises were handed back to the lessor. Hence, the defendant continued to be in possession beyond the lease period. It also appears that an offer was made by plaintiff to defendant for continuing on the lease premises on the condition of paying lease rent at market rate. On the basis of such facts, the suit of the plaintiff included the claim of mesne profit. This in the opinion of the Court was an issue triable by the Civil Court which the Civil Court ought to have permitted the plaintiff to lead evidence and adjudicate upon. 7. On the basis of such facts, the suit of the plaintiff included the claim of mesne profit. This in the opinion of the Court was an issue triable by the Civil Court which the Civil Court ought to have permitted the plaintiff to lead evidence and adjudicate upon. 7. During the course of submission the Court is informed that pending the proceedings, the possession of lease premises (suit premises) is handed over to the plaintiff. In view of this development the right of the plaintiff to claim mesne profit would still survive. 8. In the result, therefore, the appeal is allowed in part. The impugned judgment order and decree dated 27.2.2017 is quashed and set aside insofar as prayer for non framing of issue of mense profit and adjudication is concerned. Rest of the judgment passed by the Court below remains as it is. The proceedings are remanded back to the concerned Court for the limited purpose of framing of issues pertaining to mesne profit and adjudication. 9. Appeal is disposed of.