JUDGMENT

Page, J. - This suit raises interesting and important questions with regard to the principles in accordance with which damages are to be measured against a tenant who holds over after the determination of his lease. For some 6 years prior to 10X9 the defendant had been in occupation of a room in 13, Nirmal Lohia Lane in Calcutta as a monthly tenant of the plaintiffs. He paid rent at the rate of Rs. 50 a month. On the 19th September 1919 notice on behalf of the plaintiffs, to quit was given to him, the notice determining the tenancy as from the 7th November 1919. The defendant did not act upon that notice. He did not give vacant possession and he remained in occupation of the premises. On the 11th November 1919, therefore, the plaintiffs brought a suit in the Calcutta Court of Small Causes for ejectment, and in answer to that suit the defendant alleged that he was in occupation under a lease for 3 years at a rental of Rs. 100 a month, and he also alleged that he had paid a salami for the lease of Rs. 500. On the 5th January 1920 the defendant commenced proceedings in the High Court for a declaration that he was in occupation of the premises under this lease for 3 years and he claimed an injunction to prevent the Court of Small Causes from acting further in the matter until the final-determination of the proceedings in that-suit. On the 23rd August 1920 the plaintiffs through their Solicitors wrote a letter to the defendant and three other tenants in the same building No. 13, Nirmal Lohia Lane in these terms:

"ToMessrs. Ladhuram Kaluram.Jivan Bux and Co.Ahmedin and Mahomed Ismail.Tiloke Chand Daimull.Re premises No. 13, NirmalLohia Lane.Sirs,

Under instructions from and on behalf of our client Johurmull Sundermull of 9, Chitpora Road, Calcutta, we beg to state that our clients who are the owners of the above premises have repeatedly asked you since July last to vacate the said house and premises by giving up possession of the respective portions of the house in the occupation of each of you as my (sic) clients urgently wanted vacant possession of the house for the purpose of demolishing the existing structure and constructing a new building in its place according to a plan in conformity with the Building Regulations of the Calcutta Corporation; but in spite of that you have neglected to give up vacant possession as aforesaid, and have been wrongfully occupying the same, thereby preventing our said clients from commencing the building operations in respect of the proposed new building which will yield reasonably and fairly a monthly income of Rs. 12,140 to our clients. You are, therefore, causing by your wrongful act a monthly loss of the aforesaid sum to our elients. We are, ther fore, instructed by our clients to call upon you which we hereby do, to make good the damage to our said clients from 1st July 1920 upto date at aforesaid rate of Rs. 12,140 per month and also to deliver vacant possession of the respective portions of the house in the occupation of each of you within 3 days from date hereof failing which our clients will take legal action in the matter.

                                           Yours faithfully,                                       (Sd.) Norendranath Sen & Co.

2. On the 9th August the plaint in this suit was filed, and on the 26th April 1921 the defendant's suit in the High Court was dismissed. On the 1st May 1922 the defendant gave up possession of the portion of the premises in his occupation to the plaintiffs. The plaintiffs claim as damages under item (i) mesne profits as denied in Section 2 of 1] the Civil" Procedure Code, Sub-section (12). Mesne profits are described therein as " 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" and the plaintiffs claim under this he