ORDER

1. This appeal, by grant of special leave, is directed against the judgment and decree of the High Court of Delhi in RSA No. 89 of 1998 wherein and whereby the High Court has affirmed the judgment and decree passed by the first appellate court fixing the mesne profits at Rs 35,000 per month along with interest @ 18% per annum of the suit premises. Brief facts

2. The appellant tenant (hereinafter referred to as "the appellant") on 19-6-1984 took on lease an area comprising 640 sq ft in a flat in Ashoka Estate, Barakhamba Road, New Delhi, for a period of three years for running its office. The rent was mutually agreed at Rs 11,520 per month @ Rs 18 per sq ft. The lease deed was duly registered (Exhibit PW 1/A). On expiration of the lease, another lease was executed on 8-7-1987 for a further term of three years on terms mutually agreed to. The rent was enhanced by 15% and was fixed at Rs 13,428 per month. The other terms and conditions remained the same. Upon expiration of the second lease, another lease was executed for a further term of three years on 14-11-1990 on terms mutually agreed to. The rent was enhanced by 15% and fixed at Rs 15,232 per month. The other terms and conditions remained the same.

3. On 19-6-1993, the respondent landlords (hereinafter referred to as "the respondents") refused to extend the lease as the parties failed to arrive at a consensus regarding the rent. Accordingly, on 27-5-1994, the respondents issued a notice under Section 106 of the Transfer of Property Act terminating the tenancy w.e.f. 20-6-1994.

4. On 5-7-1994, the respondents filed Civil Suit No. 317 of 1994 in the Court of Additional District Judge, Delhi against the appellant for eviction, possession and mandatory injunction. This suit was decreed on 6-6-1998. The appellant accepted the judgment and decree passed in the said suit and vacated the suit premises on 31-8-1998, as directed in the decree.

5. The respondents filed another Suit No. 531 of 1994 in the Court of Commercial Civil Judge, Delhi against the appellant for recovery of mesne profits. In this suit, the respondents claimed Rs 40,000 per month as the mesne profits for use and occupation of the suit premises. The trial court on 7-8-1996 fixed the mesne profits at Rs 17,516.80 per month. Interest was awarded @ 10% per annum. It was not disputed between the parties that as on the date of vacating the premises i.e. 31-8-1998 the appellant had paid mesne profits @ Rs 17,516.80 till the date of vacating the suit premises.

6. Aggrieved against the order passed by the trial court fixing the mesne profits at Rs 17,516.80, the respondents filed an appeal before the first appellate court. The first appellate court modified the judgment and decree passed by the trial court and fixed the mesne profits at Rs 35,000 per month instead of Rs 17,516.80 per month. Rate of interest was also increased to 18% per annum. The first appellate court recorded the following reasons for fixing the mesne profits at Rs 35,000 per month for use and occupation of the premises beyond the period of termination of the tenancy:

"In the original plaint before the trial court in the heading there is a claim of Rs 80,000 for damages/mesne profits. In para 10 of the plaint it is stated that damages had been claimed @ Rs 40,000 p.m. w.e.f. 1-6-1994 for the period of two months and also at the same rate for each subsequent month till decision of the suit with 24% p.a. as interest. In the prayer clause also the damages have been claimed @ Rs 40,000 p.m. w.e.f. 1-6-1994 till date of passing of the decree with 24% interest. As held above the damages for use and occupation after the date of termination of tenancy w.e.f. 20-6-1994 till the date of decree are hereby awarded @ Rs 35,000 p.m. on payment of court fees. After the court fees is paid the decree shall be released."

7. Aggrieved against the order passed by the first appellate court, the appellant filed Regular Second Appeal No. 89 of 1998 which has been dismiss