A tenant who is wrongfully evicted from a premises is entitled to mesne profits from the landlord for the period of dispossession. The basis for calculating the mesne profits is the higher rate of profits earned by the landlord from the premises.

( 1 ) THE revision petitioner is the tenant of respondent No. 1. the landlord. Respondent No. 2 is the subsequent transferee from the landlord against whom no relief is claimed. The landlord obtained a decree for eviction against the tenant but this decree became inexecutable on 24 March 1947 and thereafter by virtue of Section 9 of the Delhi and Ajmer-Merwara Rent Control Act. 1947 which came into force on 24th March 1947. Nevertheless the decree for eviction was executed bv the landlord against the tenant thereafter and possession of part of the premises was recovered bv the landlord from the tenant. As this was contrary to Section 9 of the Act the tenant was restored back the possession. The possession of a part of the premises was taken bv the landlord from the tenant piece-meal from 27-4-49 till 18th March 1955 but the whole of the possession was restored to the tenant as a result of the order of the lower appellate court which is under appeal in other respects.

( 2 ) THE tenant claimed that he was entitled to recover mesne profits at the rate of Rs. 200. 00 per month for the period during which the landlord was in wrongful possession of the part of the premises. He also claimed damages on other counts. Both the trial court and the lower appellate court, however, dismissed the claim of the tenant for mesne profits on the ground that the tenant had not suffered any loss due to the dispossession according to the construction put by the learned lower courts on Section 144 of the Code of Civil Procedure. The learned lower courts also dismissed the claim of the tenant for damages on other counts.

( 3 ) THE tenant has purported to file the present application in revision under rule 6 of the Delhi Rent Control (Procedure) Rules 1947 in as much as R. 5 thereof precluded any second appeal from an order under the Act. Alternatively, Shri Yogeshwar Dayal learned counsel for the tenant petitioner prays that it the order appealed against is deemed to be one passed under Section 144 Cvil Procedure Code, then this may be treated as a second appeal. Learned counsel pointed out that whether it is treated as a revision or a second appeal, it has been filed within limitation laid down under rule 9 of the Delhi Rent Control (Procedure) Rules 1947 or, alternatively, under the limitation prescribed by the Limitation Act and the court fee prescribed bv item No. 11 of the Second Schedule of the Court Fees Act has been paid as laid down in paragraph 5 of Chapter 4 Part A (Vol. 4) of the High Court Rules and Orders. The claim in this petition is for the reversal of the lower appellate court s order. It may be pointed out at the outset that the tenant is not entitled to claim damages on other counts, such as mental suffering etc.

( 4 ) THE only question for decision therefore is whether the tenant is entitled to mesne profits and, if so on what basis.

( 5 ) THE order bv which the possession was restored to the tenant from the landlord was passed not under S. 144 Civil Procedure Code, as such but under inherent jurisdiction in compliance with Section 9 of the Act of 1947. The interest of justice requires for the same reason that the parties should be placed in the same position in which they would have been if the decree for eviction had not been executed by the landlord against the tenant. Therefore, whether the terms of S. 144 C. P. C. apply or not, the principle underlying it has to be applied as a rule of justice, equity and good conscience. The principle is that the parties are to be placed in the position which they would have occupied but for the execution of decree by the landlord against the tenant and consequently mesne profits have to be paid bv the landlord to the tenant The principle underlying the definition of "mesne profits" in S. 2 of Civil Procedure Code, is that the person in wrongful possession must pay to the person who was wrongfully dispossessed, such profits which the former actually receives or might with ordi