JUDGMENT :

1. Rule. With consent of parties, Rule made returnable forthwith and taken up for final hearing.

2. By this Petition under Article 227 of the Constitution of India, exception is taken to the order dated 24th September, 2021 passed by the Appellate Court in Revision Application No.97 of 2021 reversing the order of the trial Court dated 11th August, 2021 rejecting the Petitioner’s application below Exh.606 filed to expunge/discard and rejected the Affidavit of examination-in-chief of PW-2.

3. For the sake of convenience, the parties are referred to by their status before the Trial Court. T.E.&R. Suit No.48/62 of 2009 was filed against the defendant seeking the following prayers:

“a) the Defendants be ordered and decreed to hand over to the Plaintiffs vacant and peaceful possession of the suit property viz. land bearing C.S.No.560 and 561, Final Plot No.268 TPS II of Mahim Division situate at Mogul Lane, (earlier known as Lady Harding Road), Tulsi Pipe Road, known as Senapati Bapat Road, situated at Mahim (W). Mumbai-400 016, along with structures standing thereon;

(b) pending the hearing and final disposal of the above suit, this Hon'ble Court be pleased to pass an order of injunction restraining the Defendant No.1 from further parting with possession of the suit property in any manner dealing with or transferring any right or interest in the suit property of any third party under any arrangement whatsoever;

(c) defendant No.1 restrained from collecting any amount whatsoever from any of the other Defendant in respect of any portion of the suit property and Defendant No.2 to 7 be restrained from paying any amount under any arrangement whatsoever to Defendant No. 1;

(d) pending the hearing and final disposal of the above suit, Defendant Nos.2 to 6 be directed to deposit all the amounts in this Hon'ble Court;

(e) pending the hearing and final disposal of the above suit, that this Hon'ble Court be pleased to order and direct Defendant No.1 to submit details of payments being recovered including copies of agreements entered into with Defendant No.2 to 6 and pay over to the Plaintiff whatever money/compensation that they receive from any third party under any arrangement whatsoever, on account of mesne profits;

(f) pending the hearing. and final disposal of the above suit, that this Hon'ble Court be pleased' to appoint a fit and proper person as Court Receiver in respect of the suit property under Order XL Rule 1 of the Code of Civil Procedure, 1908;

(g) ad-interim and interim reliefs in terms of prayer clauses (b) to (f) above;

(h) an inquiry into mesne profit be ordered under Order XX Rule 12 al the Code of Civil Procedure 1908;”

4. Issues came to be framed on 1st April, 2016 and the Issue No.3 relevant for the purpose of the present petition reads as under:

“3. Are the plaintiffs entitled for recovery of possession and mesne profits? ”

5. On 16th November, 2019, in view of the amended plaint and the amended written statement, additional issues were framed and Issue No.8 came to be framed which reads thus:

“8. Are the plaintiffs entitled to get mesne profit as prayed ? If yes, how much ? ”

6. An application came to be filed by the defendant no.1 for recasting Issue No.8 as regards the mesne profits which came to be rejected vide order dated 6th March, 2020, as against which Revision Application filed stood dismissed.

7. Subsequently, the plaintiff adduced evidence of PW-2, who is an Architect and Structural Engineer and Government Approved Registered Valuer to prove the quantum of mesne profits to be paid by the Respondent No.1, in which the PW-2 deposed that the mesne profits/market rent prepared by him in respect of the suit premises is for the period from March 2009 to February, 2020 i.e. from the date of the suit notice dated 11th February 2009 to 29th February, 2020.

8. An application below Exh.606 came to be filed by the defendant no