The determination of mesne profit should consider the damages suffered by the landlord at the prevailing rate, as held in the case of Atma Ram Properties (P) Ltd. v. M/s Federal Motors Private Ltd., 2005(2) ARC 936.

Hon'ble Prakash Krishna, J.-

This is defendant's revision under section 25 of the Provincial Small Causes Courts Act. The revision has been filed against the judgment and decree dated 20.11.2003 passed by the Special Judge/Add. District Judge, Muzaffar nagar in JCC suit No. 8 of 2002 whereby the suit for ejectment of the defendants and recovery of arrears of rent and damages has been decreed.

2. The property in dispute is a go down with appurtenant land as described at foot of the plaint. It was let out by the plaintiff to the defendant applicants herein on monthly rent of Rs. 7505 J-. The suit was filed on the allegations that the provisions of U.P. Act No. 13 of 1972 are not applicable and the building in question is an exempted building as its monthly rent is above Rs. 2000/-. The notice determining the tenancy dated 29.4.2002 sent by registered post was served on 30.4.2002. Damages pendentilite and future was claimed at the rate of Rs. 21,000j- per month.

3. The suit was contested on the pleas that the defendants are liable to pay damages at the agreed rate of rent. The covered area of the go down and the valuation of the property in question at Rs. 28,60,000/- was disputed. It was pleaded that on the proposal given by the plaintiff, the defendants took the go down in question having storage capacity of 18760 bags at the rate of Rs. 0.40p. per bag. It was understood between the parties that the defendants shall remain in its occupation as tenant.

4. Four issues were framed by the trial court who found that the provisions of U.P. Act No. 13 of 1972 are not applicable and the notice determining the tenancy is valid. It awarded mesne profit at the rate of Rs. 21000/- per month.

5. In the present revision, the only controversy which has been raised by learned Standing Counsel is with regard to the award of damages of mesne profit at the rate of Rs. 21,000/- per month. The other findings that the provisions of U.P. Act No. 13 of 1972 are not applicable and the notice given under section 106 of the Transfer of Property Act was valid were not challenged.

6. Sri B. Ram, learned Standing Counsel for the applicants submits that the award of damages at the rate of Rs. 21,000/- per month is excessive and arbitrary. In reply, learned counsel for the plaintiff opposite parties supports the impugned judgment.

7. Considered respective submissions of the learned counsel for the parties and perused the findings recorded by the trial court on issue No. 2 with regard to the mesne profit. A bare perusal of the impugned order would show that the trial court has examined the evidence led by the parties from many angles. It took into consideration the circle rate fixed by the District Magistrate in respect of the area of the property, quality of the material and the value of the land. The plaintiff also filed the valuer's report estimating the value of the property at Rs. 28,60,000/-. The valuer was examined who proved the report. On the basis of the valuer's report, the court below has found that the mesne profit comes at Rs. 21,000/- per month. Learned Standing Counsel could submit only this much that the report given by the valuer is not correct inasmuch as there is dispute between the parties with regard to the extent of covered area.

8. The other circumstance which has been taken into consideration is the circular issued by the Food Corporation of India with regard to the go down taken on rent. The said circular is of the year 1995. The circular provides that the rent of a go down shall be paid at the rate of Rs. 1/- per bag. Learned Standing Counsel could not dispute the said circular. The trial court has relied upon the said circular and calculated the mesne profit accordingly. It is not in dispute that the storage capacity of the go down is 18760 bags Therefore, applying the rate as prescribed in the circular of 1995, the monthly rent/damages of the go down comes to Rs. 18760/-. It must be remembered that the said circular fixes the rate .of rent

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