The assessment of mesne profits should not be interfered with unless there is unreasonableness, irrationality, or perversity, and detailed reasoning is essential in such assessments.

JUDGMENT

Ravi Krishan Kapur, J. - These applications raise common questions of law and fact and were heard analogously.

2. GA No. 8 of 2017 is an application for setting aside the report of the Special Referee dated 15 May, 2017 (the report) assessing mesne profits. GA No. 9 of 2017 is an application filed by the plaintiff landlord seeking a final decree in terms of the report.

3. Briefly, the suit is for eviction and mesne profits. The suit premises comprises of Flat no.2E having a built up area of 3975 sq.ft. on the second floor and a generator room having an area of 73 sq.ft. on the ground floor both located in a building commonly known as Dimple Court, situated at premises no. 26 Shakespeare Sarani, Kolkata-17(the suit premises).

4. The facts culminating in the filing of these applications are as follows:

a. In 2005, the plaintiff permitted the defendant to use and occupy the suit premises for commercial perposes.

b. In or about 2008, this suit was filed for recovery of possession and for mense profits. There was also a claim on account of rental arrears and maintenance charges.

c. On 8th August, 2013 this suit was decreed in favour of the plaintiff. The Court also directed the respondent to pay mesne profits and other charges.

d. On 26th November 2014, the suit premises was ultimately vacated by the defendants and possession was handed over to the plaintiff.

e. By an order dated 13th July 2015, the Hon'ble Division Bench set aside the decree for mesne profits and appointed a Special Referee to determine the mesne profits for the period 1st September, 2008 to 26th November, 2014.

f. Pursuant to the aforesaid, the Special Referee has filed the report determining mesne profits.

g. The subject matter of these applications pertains to the report filed by the Special Referee.

5. It appears from the report that both parties adduced evidence. The plaintiff had three witnesses and the defendant had two witnesses. In the report, the Special Referee ascertained mesne profits on the basis of comparable unit method. The Special Referee took into consideration a lease dated 31 July, 2006 in respect of flat situated on the first floor of the same building wherein the suit premises is situated. The Special Referee has also recorded reasons. The Special Referee has also considered the Exhibits disclosed by the parties. The Special Referee has also provided a detailed calculation in assessing mesne profits.

6. On behalf of the defendant it is submitted that, the report is liable to be set aside on the ground of misconduct, since the procedure which the Special Referee has adopted vitiates his conclusions. It is alleged that the Special Referee had not considered the report of an expert valuer relied on by the defendants. It is further alleged that the Special Referee in adopting the comparative unit method failed to appreciate the signage which was attached to the concerned premises. It is also alleged that, the amenities to the suit premises should have been taken into consideration by the Special Referee. In brief, the report is assailed on the ground that the assessment arrived at by the Special Referee is without any investigation and is liable to be rejected on the ground of arbitrariness.

7. On behalf of the plaintiff it is contended that, the report filed by the Special Referee does not warrant any interference whatsoever. The plaintiff relies on the decision of Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. reported in (2005) 1 SCC 705 (at para 13). It is contended that the scope of interference in such matters, is limited and restricted. It is further contended that there are no exceptional circumstances which warrant any interference with the report.

8. I have considered the submissions made on behalf of the parties.

9. An assessment of the nature undertaken by the Special Referee in arriving at mesne profits is more or less subjective in nature. Unless there is unreasonableness, irrationality or perversity, a Court ordinarily should no