Case Note & Summary
The case involves a second appeal by the defendant against the judgment of the lower appellate court which awarded mesne profits at the rate of Rs.75 per day to the plaintiffs. The plaintiffs had filed a suit for eviction of the defendant from a residential house, claiming that the defendant was a service occupant. The defendant vacated the premises during the pendency of the suit, leaving only the issue of mesne profits for determination. The trial court dismissed the claim for mesne profits, but the lower appellate court reversed that decision and awarded mesne profits at Rs.75 per day. The defendant appealed to the High Court. The High Court framed a question of law: whether the courts below were right in awarding mesne profits at Rs.75 per day. The court examined the evidence and found that the plaintiffs' claim was based on the hypothetical possibility of using the premises as a lodging house, which was illegal as the plaintiffs were tenants and could not sublet. The court held that mesne profits must be based on actual loss suffered by the landlord. The plaintiffs had not proved any actual loss; they had paid rent of Rs.80 per month to the landlord and the defendant had paid water and electricity bills. The court noted that the valuer's report fixed fair rent at Rs.2,650 per month, but the plaintiffs did not claim that amount. The court concluded that the mesne profits should be at the rate of Rs.100 per month, which was reasonable. The court allowed the appeal, set aside the lower appellate court's decree, and directed that mesne profits be calculated at Rs.100 per month from 8/11/1985 to 1/6/1990.
Headnote
A) Civil Procedure - Mesne Profits - Determination of Rate - Section 2(12) Code of Civil Procedure, 1908 - The court held that mesne profits must be based on actual loss suffered by the landlord and not on hypothetical profits that could have been earned through illegal subletting. The plaintiffs' claim of Rs.75 per day based on potential lodging house income was rejected as they could not legally sublet the premises. (Paras 9-11) B) Evidence - Valuation Report - Fair Rent - The court noted that the plaintiffs' valuer had fixed fair rent at Rs.2,650 per month for November 1985, which was much higher than the claimed mesne profits. However, the court found that the plaintiffs had not proved any actual loss and the defendant had paid rent of Rs.80 per month to the landlord. The court reduced mesne profits to Rs.100 per month. (Paras 10-11)
Issue of Consideration
Whether the courts below were right in awarding mesne profits at the rate of Rs.75 per day in the facts and circumstances of the case.
Final Decision
Appeal allowed. The decree of the lower appellate court is set aside. Mesne profits are fixed at Rs.100 per month from 8/11/1985 to 1/6/1990. The suit is decreed accordingly with proportionate costs.
Law Points
- Mesne profits
- actual loss
- hypothetical profits
- illegal subletting
- burden of proof
- Section 2(12) CPC
