A Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 was filed by Oriental Insurance Company Limited challenging the judgment of the trial made on 30th August 2017 whereby the trial court has decreed the suit filed by the respondent DEVANSH REAL ESTATE PVT. LTD.
DEVANSH REAL ESTATE PVT. LTD on account of a decree earlier being passed against the appellant/defendant, during the pendency of the suit, Oriental Insurance Company Limited vacated the suit premises on 25th March 2014 However, the mesne profits have been granted by the trial court not later till 25th March2014 but earlier only till 31st December 2013 inasmuch as there was an offer made by Oriental Insurance Company Limited to vacate the suit premises by 31st March 20113, but DEVANSH REAL ESTATE PVT. LTD did not take possession of the suit premises and ultimately took possession only in Court on 25th March 2014 pursuant to an application filed by the defendant(Oriental Insurance Company Limited) for handing over possession.
The major issue in this appeal is as to what should be the rate of mesne profits which should be payable by Oriental Insurance Company Limited for the suit premises for the period of 3 years approx.The trial court has very extensively dealt with the issue with respect to rate of mesne profits payable by referring to the lease deeds filed by both the parties for arriving at a conclusion for payment of mesne profits at Rs. 100/- per sq. ft. per month in the impugned judgment.
A reference to the impugned judgment shows that whereas appellant/defendant relied upon three documents being lease deeds dated 25thMay 2007, 5th March 2003 and 20th April 2004 with respect to rent of premises in the same Asaf Ali Road at Rs. 44.16/-, Rs. 22.50/-, and Rs. 37.50/- respectively, the respondent led evidence of lease deeds dated 16th July 2008 for Rs. 120/- per sq. ft., dated 9th February 2009 at Rs. 91/- per sq. ft. and E dated 21st November 2008 at Rs. 260/- per sq. ft. Therefore, in terms of the documentary evidence led by both the parties it is seen that the rate of rent from the year 2003 till the year 2008 with respect to the same area viz Asaf Ali Road, varied between Rs. 22.50/- per sq. ft. to Rs. 260/- per sq. ft.
No doubt, rate of rent varies as per location of a property as also the condition of the property, however in the facts of the present case in my opinion this aspect has been duly considered by the trial court because the trial court has granted rent at Rs. 100/- per sq. ft. for the period from 01st February 2011 till 31st December 2013. As held by this Court on repeated occasions, some amount of honest guess work will always be required for calculating the mesne profits, and that once there is some factual basis especially documentary evidence to make an honest guess work, then the finding of the trial court cannot be held to be perverse or in any manner illegal for this Court to interfere with the same in a first appeal. In view of the above discussion, and because of the observations made by the trial court by referring to various lease deeds in the impugned judgment, there was no such illegality to be found in the trial court having granted rate of mesne profits at Rs. 100/- per sq. ft. In fact, it was observed the appellant/defendant is very lucky because the rate of interest granted is also not at a high rate as the rate of 8% p.a. has been awarded although the letting out is for commercial purposes.
After discussion, it was decided that the appeal is pointless and mesne profits (the profits of an estate received by a tenant in wrongful possession and recoverable by the landlord) are to be paid at the rate decided by the court in the prior judgement. It was quoted in the judgement by the Justice VALMIKI J. MEHTA “In view of the above discussion, I do not find any merit in the appeal. Dismissed.”
We can now draw a conclusion that “CALCULATING OF MESNE PROFITS REQUIRES HONEST GUESS WORK”.