The measure of mesne profits is not limited to the standard rent fixed under the Rent Act. The wrongful possession of the judgment-debtor is the prime matter of consideration, and the rent fixed by the Rent Act is merely a relevant piece of evidence.

JUDGMENT - B.A. MASODKAR, J.:---This original defendants' revision is directed against the order quantifying the liability of the mesne profits. The Appeal Court quantified the same in the sum of Rs. 400/- per month from the data of the decree till the date of the delivery of possession. The quantification from the date of the suit till the date of the order was at the rate of Rs. 60.75 per month.

2. In the Court Mr. Gumaste submitted that quantification at the rate of Rs. 400/- from the date of the order till the date of the delivery of possession is contrary to law. In the submission of learned Counsel the mesne profits could not be charged more than the standard rent or the statutory rent fixed by the provisions of the Bombay Rents, Hotel and Lodging and House Rates Control Act, 1947. Reliance is placed on the decision of the Delhi High Court reported in the case of (Hindustan Steel (Pvt.) Ltd. v. Smt. Usha Rani Gupta)1, A.I.R. 1969, Delhi, page 59, and the decision of Privy Council in the case of the (Gurudas Kundu Choudhary v. Kumar Hemendra Kumar Roy)2, A.I.R. 1929 Privy Counsel, page 300. For Drawing support for his propositions. Learned Counsel submitted that the decision of the Supreme Court in the case of (Devan Daulat Bai Kapoor v. New Delhi Municipal Committee)3, A.I.R. 1980, Supreme Court Page 541, laid down the principles and that the Appeal Court was in error in fixing the mesne profits over and above the standard rent.

3. As against, Mr. Shah contended that as far as this question is concerned, the law is settled by the case of (Kasarden Baijnath v. Nathmal Kisanlal)4, A.I.R. 1966, Bombay, page 266, following the judgment of the Nagpur High Court in the case of (Bhagwandas v. Mt. Kokabai)5, A.I.R. 1953 Nagpur, Page 186, and the decision in the case of (Nathumal Chandanmal and Co. v. Damodar Prabhat Sharma)6, 1979 Maharashtra Law Journal, page 22. In the submission of learned Counsel the position of the Judgment Debtor subject to a decree for possession is not clearly governed by the provisions of the Rent Act and the measure of mesne profit would not be the standard rent. Such an argument did not even prevail before the Supreme Court in the case of (Dalhousie Properties Ltd. v. Sooraj Mull Nagar Mull)7, A.I.R. 1977 Supreme Court, page 223.

4. The crucial question in matters concerning the measure of mesne profits is, as the definition of that term suggests, to find out the profits which the person in wrongful possession of the property in question actually receives or might with ordinary diligence, have received from such property. For that purpose, the possession of the judgment-debtor against whom a decree for possession is passed could be treated as wrongful from the date of the decree. Such possession surely is not governed thereafter by the provisions of the Bombay Rent Act. The matters laid down by that Act deal with lawful possession and the lawful return to be made by the person in possession to the landlord of such property.

5. Two Privy Council decisions throw considerable light that can guide the considerations of such matter in (Harry Kempson Gray v. Bhagu Mian)8, A.I.R. 1930 P.C. 82 following the law laid down in the earlier judgment in Gurudas Kundu Choudhury v. Kumar Roy, A.I.R. 1929 P.C. 300 the Privy Council ruled that the test set out by the statutory definition of "mesne profit" was clearly not what a person has lost by his exclusion but what the trespasser has or might reasonably have made by his wrongful possession. What the person in such a case might or would have made can only be relevant as evidence of what the trespasser might, with reasonable diligence have received. The position of the judgment-debtor and his wrongful possession are thus the prime matters of consideration and not the position of the landlord or the decree holder.

6. Thus, the law with regard to the mesne profits would not admit the consideration of only the standard rent fixed under the Rent Act as the measure of such

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