In eviction cases, interim mesne profits can be ordered only if the tenant's defense is nearly non-existent, and the claim for occupation charges must be reasonable.

JUDGMENT :

I.P. MUKERJI, J.:-

1. The question which arises for determination in this appeal is whether the court during the pendency of the suit for eviction of an occupier of a premises and determination of mesne profits, can order interim mesne profits or occupation charges to be paid to the plaintiff by the defendant?

2. The appellant/plaintiff, sometime in 2020, filed this suit in this court against the respondents/defendants for a decree for vacant and peaceful possession of a shop room measuring 98 sq. ft. in the north west corner of the ground floor of premises no.2/1, Ho Chi Minh Sarani, Kolkata-700071. In addition to this, they claimed mesne profits of Rs.34,69,200/-from 12th July, 2011 to 30th November, 2019, of which Rs.29,40,000/-was the principal amount at the rate of Rs.300/-per sq. ft. per month and Rs.5,29,200/-as interest at the rate of 18% per annum for this period. From 1st December, 2019 mesne profits at the rate of Rs.980/-per day and interest were claimed, aggregating to Rs.7,69,481.30/-upto 30th September, 2021.

3. The appellant/plaintiff took out the application (GA 2 of 2021) for an order inter alia, asking the respondents to secure the sum of Rs.34,69,200/-and Rs.7,69,481.30 claimed as mense profits in the suit.

4. By his judgment and order dated 14th March, 2023 a learned single judge of this court was pleased to dismiss the said application.

5. Hence this appeal.

6. It is significant to mention here that the respondents have not preferred a cross appeal or cross objection from that order.

7. Now, the facts in some detail.

8. The original tenant of the suit premises was one Rahamatullah. He died on 12th July, 2006. By that time the West Bengal Premises Tenancy Act, 1997 had come into force. Rahamatullah had died leaving behind the first respondent, his widow and the second respondent, his daughter. According to the appellant the tenancy was commercial in nature. Assuming the respondents to be dependants of Rahamatulla, latest, it came into an end on 12th July, 2011 under Section 2 (g) of the said Act.

9. On the ground that the respondents had become rank trespassers five years after the death of Rahamatullah, the appellant/plaintiff filed the instant suit (CS No.43 of 2020) for recovery of possession of the said premises from the respondents and for mesne profits from 12th July, 2011.

10. The learned single judge seems to have dismissed the application solely on the ground that under the existing law, a plaintiff is not entitled to recover mesne profits or occupation charges from an occupier during the pendency of the suit.

11. However, arguments in this appeal were not confined to this issue alone. Several other issues were canvassed which I shall discuss as I proceed further with this judgment.

12. In a previous suit (CS 771 of 1981) the lessor Tarun Kumar Ghosh and others had obtained a decree for eviction of the defendant, the Credit Union Co-Operative Enterprise Limited. Execution proceeding (EC 346 of 2015) had also been started to execute the decree when the respondents filed the application (GA 1540 of 2016) to assert their right, title and interest in the said shop room as a monthly tenant. On 20th May, 2016 in that application an interim order was passed restraining the receiver from taking possession of the portion in occupation of the petitioner. On 12th June, 2018 the application was disposed of by a very short order. It was said that the decree holder had neither appeared nor filed any affidavit-in-opposition. Therefore, the averment made in the petition stood uncontroverted. Hence, the said interim order made on 20th May, 2016 stood confirmed.