DALHOUSIE PROPERTIES LIMITED Vs. SURAJMULL NAGARMULL

JUDGEMENT

(1.) This appeal by certificate is directed against the appellate judgment of the Calcutta High Court dated July 25,1967 upholding the trial Court's view that the "existing rents" would be a "fair measure" of the mesne profits claimed by the appellant.

(2.) The suit in question was filed by the appellant for possession of the suit premises and for mesne profits or dameges, or an enquiry into mesne profits and damages, and other consequential reliefs. The trial Court granted a decree for possession and for arrears, as well as for mesne pofits at the rate at which the premises had been let out to the defendent. It took the view that the rent permissible by the Rent Act should determine the mesne profits. The plaintiiff felt aggrieved and claimed that he was entitled to mesne profits according to the pPresent rental value" of the premises which it assessed at Rs.60/- per 100 sq. feet . It preferred an appeal and as it has been dismissed by the impugned judgment of a Division Bench of the court dated July 25,1967, it has come up to this Court in appeal by ceritficate.

(3.) It is quite clear from,the plaint that the plaintiff specifically claimed, inter alia,that it was entitled to mesne profits and/or dameges according to the "present rental value of the premises" i.e. at Rupees 60/- Per 100 sq.feet. The plaintiff in fact made an application under Order XXVI Rule 9 of the Code of Civil Procedure on June 15, 1959, during the course of the trial, stating that as the defendant had denied the correctness of the claim that the plinth area of the premises was 40,000 sq. feet, and had not stated what the actual and correct measurement was,it addressed a letter to the dafendant on February 10, 1959 calling upon it to allow the plaintiff's agent to give inspection and to measure the premises. As that was refused by the defendent's attorney, the plaintiff prayed in its application that an injunction may be issued against the defendant directing it to allow the plaintiff, his servants and agents, to enter upon and measure the premises at the time fixed by the court or in the alternative, to issue a commission to a person appionted by the court for making a local investigation and reporting the measurement of the area in the defendant's possession and the amount of the mesne profits for the same. Instead of examining that application and disposing it of on the merits, the trial Court merely ordered that it would "stand over" till the hearing of the suit. The suit was however decided on April 18,1962 without disposing of the plaintiff's aforesid application under Order XXVI Rule 9, C.P.C. It may be that the trial Court had in view from No. 23 of Appendix D of the Code of Civil Procedure which shows (in paragraph(3)) that a trial court may grant a decree to the effect that an enquiry be made as to the amount of mesne profits from the institution of the suit until delivery of possession to the decree-holder, but, at the time of deciding the plaintiff's claim in the suit,the trial Court did not order any such inquiry as it took the view that the rate of interest permissible under the Rent Act should determine the future mesne profits also. It is therefore obvious that the trial Court went wrong in denying the plaintiff an opportunity to prove the amount of mesne profits from the date of the institution of the suit until delivery of possession . The High Court did not correct the error while examining the plaintiff's appeal, and laboured under the mistaken impression that the plaintiff did not make any attempt to give evidence on the point during the course of the trial . That was obviously a mistake as the High Court failed to notice that the plaintiff had in fact been prevented from proving its claim for mesne profits at the "present rental value".