KESARDEO BAIJNATH Vs. NATHMAL KISANALAL

JUDGEMENT

(1.) THE Short question involved in this appeal is regarding the mode of computing mesne of profits and the amount of mesne profits which would eventually follows:

(2.) THE house in dispute of was contracted more than 40 years before 1957. A block of four rooms from that house was taken on a rent of Rs. 21-10-6 per month by the defendants on from the former owners in the years 1939. The plaintiff respondents purchased this entire building inclusive of the block in possession of the defendant on the 2nd of February 1954. After obtaining permission from the Rent control Officer, the plaintiff respondents served that defendants with a notice terminating his tenancy and filed hi suit for ejectment arrears of rent and mesne profits in the years 1955. This suit was eventually decreed on the 12th of December 1957 and it was ordered under order 20 Rule 12, Code of civil procedure that mesne profits from 1-8-1955 on wards be determined. The defendants appellant actually vacated possession of the block in suit on 8-9-1958. Upon an application by the plaintiff decree holder the trial court fixed the mesne profits of the said block for the period from 1-8-1955 to 8-9-1958 at Rs. 75 per month. Both the parties appealed to the District court. The appeal by the defendants to was dismissed and the amount of mesne profits was raised from Rs. 75 per month to Rs. 90 per month in the plaintiffs appeal that order of the district judge is being challenged in this court.

(3.) MR. A. S. Bobde, Advocate for the appellants contend that in accordance's with the definition of mesne profits in section 2[12], code of Civil Procedure that plaintiff would only be entitled to get those profits which the defendants, who was held to be in wrongful possession, actually received or might with ordinary diligence have received thereon. According to him what the plaintiff landlord might have earned by relating the house or what the plaintiff proper or landlord had lost would not be he proper or correct cri terion for deciding the question of mesne profits. He submitted that here was a case where the defendants wasn't shown to have made any profits by lettings out to handing over the suit premises to anyone and when it was only a question of deciding what he might have received the only criterion should be that rent of Rs. 21-0-6 which he was liable to pay when he was tenant. Mr. Bodbe further submitted that at the most the fair rent could have been treated as equivalent to the mesne profits, that fairs rent being the original rent together within an increase of 12 1/2 per cent in accordance's with clauses 6[1] of the letting of Houses and rent Control order 1949, According to him both the courts had misdirected themselves by proceedings to find out what the landlord had lost or might have learned by lettings the house. He also urged that the courts below had lost sight of the fact that the landlord court not have got anything's more than the fair rent they were in error in admitting evidence of what offers were made of the plaintiff or what the plaintiff court have got by the relating the house independently of the rent control order. He relied on the decision of Mr. Justice Badks in First a ppeal No. 39 of 1955, decided on 1-4-1959, as also on 1955 Nag LJ 314; [[s] AIR 1955 Nag 234], Hirabai v. Jiwanlal, AIR 1963 SC 1405, Fetech Chand v. Balkishan Dass and AIR 1959 Andh Pra 182, P. Ranga Rao v. K. Ramadoss in support of this submissions.