The main legal point established in the judgment is the assessment of mesne profits based on the profits earned by the wrongful user or the profits which the wrongful user would reasonably have earned from diligent use of the property, as well as the determination of reasonable rent for the property in question.

JUDGMENT

I. P. Mukerji, J. - The computation of mesne profits by the Special Referee appointed by the court was under challenge before the trial court.

2. The premises involved is 15, Park Street, Kolkata - 700016. The suit premises comprise of Blocks B & C on the 4th Floor of this building covering a carpet area of 13,160 sq ft.

3. At one point of time, the appellant defendant was a lessee under the plaintiff respondent. They vacated it on 30th June, 2010. The last paid rent was at the rate of Rs.17.40 per sq ft. out of which the basic rent was Rs.14.20 per sq ft. The total rent received by the respondent was Rs.2,29,503.17/- per month out of which the basic rent was Rs.1,86,722.99/-.

4. The Special Referee in her award made on 4th December, 2012 awarded mesne profits at the rate of Rs.115 per sq ft. to the respondent for the period 24th October, 2008 to 30th June, 2010 and Rs. 100 per sq ft. for the preceding period from 24th October, 2005 till 23rd October, 2008.

5. Such view was founded on Dena Bank paying rent inclusive of maintenance charges, corporation rates and taxes to the respondent at the rate of Rs.150 per sq ft. per month for the ground floor and mezzanine floors of the premises and Kotak Mahindra Bank occupying 570 sq. ft. on the 8th floor and paying Rs.83 per sq ft. inclusive of service charges and corporation rates and taxes, during more or less the material period.

6. The appellant challenged this award by the Special Referee before the learned single judge, by way of an affidavit-in-opposition filed by them to the application of the respondent for a decree in terms of the Special Referee s report. They suggested before the learned judge that the fair letting out value of the suit premises could not have exceeded Rs.50 to Rs.60 per sq ft. per month for the period 24th October, 2005 to 23rd October, 2008. Taking into account an increase of 15% in 2008, the value could not have been more than 60 to 70 sq. ft. per month for the period 2008-2010.

7. In passing the impugned judgment and order dated 3rd November, 2016, the learned judge went by a completely different route. He relied on an order of 8th June, 2015 of this court assessing the reasonable rent for a space in the said premises, at Rs.100 per sq ft. per month for the period 2010-2013. Reducing Rs.100 per sq ft. per month by 10% in respect of the period 2008-2010, the learned judge reduced the fair letting out value to Rs.91 per sq. ft. per month for the period 2008-2010. The previous period 2005-2008 was reduced by 15% to Rs.77 per sq. ft. per month.

8. The respondent has accepted this judgment.

9. The defendant in the suit appeals to this court.

Submissions:-

10. Mr. Joy Saha, learned Senior Advocate appearing for the respondent contended that the Special Referee had not made a proper assessment of mesne profits. He urged several grounds in support of his submissions. The first was that the tenants of the respondent which the Special Referee had referred to in her report were occupying different portions of the premises, of varying areas and at different elevations of the building. Therefore, the rent that anyone was paying was not indicative of the letting out value of the subject premises by the defendant. The report of the Special Referee had taken into consideration factors which ought not to have been taken into account or at any rate ought not to have been taken as conclusive. He cited the definition of mesne profit in Section 2(12) of the Code of Civil Procedure. He submitted that mesne profits indicated the profit which the defendant earned or which by reasonable diligence would have earned on utilisation of a property. What the plaintiff would have earned on letting out of the property or on its exploitation was not the criterion. He said that the Special Referee had fallen into error by considering the profit which the respondent would have earned and not what the appellant earned or would have earned on utilisation of the property with due dil