The main legal point established in the judgment is the interpretation of Order XX Rule 12 of the Code of Civil Procedure, specifically the scope and timing of an inquiry into mesne profits, and the court's discretion to empower such inquiry for expeditious final disposal of the suit.

1. The Court : Mr. Kar for the plaintiff showed me Order XX Rule 12 of the Code of Civil Procedure which contains several sub sections.

2. In a suit for recovery of possession of immovable property with a claim for mesne profits the court is empowered to pass a decree directing an inquiry into mesne profits. Sub section (ba) provides for a decree for mesne profits or an inquiry into such mesne profits. Sub section (c) directs a similar inquiry from the institution of the suit till the delivery of possession or expiration of three years from the date of the decree, whichever event first occurs.

3. The legislature does not use superfluous words. Therefore, inquiry into mesne profits referred to in sub section (ba) and the one in sub section (c) have to be read in a proper context and given a proper meaning. An inquiry under sub section (c) could be undertaken during the pendency of the suit from the date of its institution, when the issue whether the defendant is in wrongful possession or the actual period during which the defendant was or is in wrongful possession is awaiting adjudication in the suit, but the defendant has delivered back possession of the property. In sub section (ba), the inquiry is after the decree for possession and wider covering the period during which the possession of the defendant became wrongful till the date of delivery of possession or expiration of three years from the date of the decree, whichever event first occurs. This sub-Section cannot be employed in this case, as the starting date of wrongful possession for the calculation of mesne profits is not established.

3. This case fits the description in sub-Section [c] since possession has been delivered back to the plaintiff. This kind of an exercise should only be ordered when it appears to the Court that the chances of the plaintiff obtaining a decree declaring the defendant’s possession as unlawful, are very high.

4. The ascertainment of mesne profits is subject to the decree to be passed by the Court. This decree is to be taken as a preliminary decree considering its definition in the explanation to 2(2) of the Code of Civil Procedure: “A decree is preliminary when for the proceedings have to be taken before the suit can be completely disposed of ……”.

5. In the facts of this case, the defendant no. 4, CG Power and Industrial and Solutions Ltd. was a sub-lessee under the defendant no. 1 in respect of 12,696 sq.ft. on the 5th and 6th floors of the subject premises, 50, Chowringhee Road, Kolkata. The lease of the defendant no. 1 expired on 30th September, 2015. This defendant handed over possession of the demised property to the plaintiff on 30th September, 2015. The defendant no. 4 continued to occupy the said premises up to 25th May, 2017 when they delivered vacant and peaceful possession to the plaintiff.

6. In my opinion, the chances of the plaintiff getting a final decree are very high.

7. Therefore, on the above interpretation of Order XX Rule 12 of the Code of Civil Procedure, the Court is empowered to direct an inquiry into mesne profits from the date of institution of the suit i.e. 17th May, 2016 till 25th May, 2017 subject to the result of the suit, for expeditious final disposal of the suit.

8. I appoint Ms. Ipsita Banerjee, Advocate of Bar Library Club as Special Referee at a remuneration of Rs. 20,000/- per sitting to be shared by the parties equally to ascertain the mesne profits as stated above by 31st December, 2017 and to file a report in this Court within that period.

9. The claim for mesne profits, if any, prior to institution of the suit can only be considered in a separate reference if Mr. Kar’s client succeeds in the suit. I also observe that the report of the Special Officer under this order will only be treated as an inquiry report as to the mesne profits payable by the defendant no. 4, if their occupation is adjudged to be unlawful or wrongful up to 25th May, 2017 in the final decree to be passed by the Court.

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