Mesne profit is defined under Section 2(12) of the Code of Civil Procedure which is reproduced here in below: "Mesne profits of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession."

Soumen Sen, J.

The plaintiff instituted a suit for eviction of the defendant, Central Bank of India, on the ground of expiry of lease by efflux of time and for mesne profits, damages and other reliefs.

2. The suit was instituted on 10th May, 2006.

3. During the pendency of the suit, the plaintiff had taken out an application under Chapter XIII-A of the Code of Civil Procedure for a summary decree. In the said proceeding, a learned Single Judge of this Court by an order dated 22nd March, 2007 passed a final judgment and decree for eviction of the Central Bank of India from the suit premises. However, the claim for damages, mesne profits, interests and other reliefs were relegated to suit and the defendants were given leave to defend the said claims.

4. The said decree was unsuccessfully challenged up to the Hon'ble Supreme Court. The Hon'ble Supreme Court by a judgment and order dated 14th July, 2008 while dismissing the special leave petition granted the defendant nine months time to hand over the peaceful and vacant possession of the suit premises on an undertaking to be furnished before the Hon'ble Supreme Court within 4 weeks from the date of the order. The High Court was requested to decide the dispute regarding mesne profit.

5. Pursuant to the said order, an undertaking was filed by the defendants. The defendants ultimately vacated the premises and surrendered the possession of the property to the plaintiff on 30th May, 2009.

6. Accordingly, the only question for determination in the suit is with regard to the mesne profit since 1st November, 2005 till 30th May, 2009.

7. On behalf of the plaintiff, two witnesses were examined, namely, Sri Rakesh Kasyab and Sri Sundar Lal Mitra.

8. Mr. Kasyab in his deposition stated that he is one of the directors of the company. He further stated that a notice to quit was issued on 16th September, 2005 but the defendants in spite of receipt of such notice failed, neglected and/or refused to hand over vacant possession. In view thereof, the plaintiff was constrained to file the instant suit for eviction. In his evidence, he stated that the mesne profit tentatively would be Rs.6,100/- per day and such claim would also be substantiated from a report submitted by the Surveyor from Talbot & Company. The property is situated near Statesman Building having the carpet area of 3240 sq. ft. on the ground floor. The witness has also referred to the order dated 2nd August, 2007 passed by the Hon'ble Division Bench in appeal preferred by the Central Bank of India against the decree passed in the summary proceeding in which the defendant undertook to pay Rs.1,88,200/- per sq. ft. out of which the defendant was directed to deposit Rs.1,52,560/- with the Registrar, Original Side and an amount of Rs.35,640/- directly to the plaintiff landlord since 1st November, 2005 which the defendant deposited till December, 2007.

9. Mr. Kasyab, however, was not cross-examined.

10. The second witness on behalf of the plaintiff was Sri Sundar Lal Mitra who claims to be a Chartered Valuer and Surveyor. The said valuer deposed that he was associated with the M/s. Talbot & Co. and presently working as a consultant, in charge of Survey and Valuer Department. He visited Premises No.5, Chowranghee Road in order to assess the rental value of the ground floor of the said premises. It was stated that he assessed the rental value considering the rental value of commercial premises that are comparable to the suit property at the relevant time and situated or located near the said property. In preparing the report, he had added and deducted the percentages of the advantages and disadvantages of the suit property in relation to the comparable properties and thereafter arrived at the rental value in relation to the suit property. In assessing the rental value, he had taken the average of the findings. He was in the profession for the last 50 years. He had enough experience which he applied in the instant case, in assessing the ren