( 1. ) THE facts in brief shorn of details and necessary for the disposal of this appeal He in a narrow compass : Plaintiffs had instituted a Civil Suit No. 464-A/1991 against the respondents-defendants for eviction and mesne profits of the suit shop which was decreed by the judgment and decree dated 27-2-1997 of Second Civil Judge Class II, Gwalior. Respondents preferred a Civil Appeal No. 24/97 which was decided by judgment and decree dated 13-3-1998 by 8th Additional Judge to the Court of District Judge, Gwalior, which was partly allowed only to the extent of reducing the rate of mesne profits; against which this second appeal has been admitted on following substantial questions of law

:

(1) "whether plaintiff/landlord is entitled to mesne profits from the date of filing of suit at a rate higher than the contractual rate of rent or he is entitled to get mesne profits from the date of decree for eviction ?"

(2) "whether for granting decree for mesne profits the Court should consider escalation in rental price ?"

( 2. ) LEARNED counsel of the respondents has raised a preliminary objection to the effect that in Second Appeal against the impugned judgment appellants-plaintiffs have not raised any point regarding reduction of rent and mesne profits by way of cross-objection or cross-appeal.

( 3. ) LEARNED counsel of the appellants, on the other hand has contended that he is free to file a separate appeal regarding quantum of mesne profits, if it is filed within the period of limitation. I am of the opinion that there is no law placing any barrier on filing a separate appeal against the impugned judgment if the cross-objections were not raised in an appeal preferred by other party against the same judgment,

( 4. ) LEARNED Trial Court had framed Issue No. 4 regarding mesne profits and after recording evidence returned a finding that since respondent No. 1 has sub-let the premises for business purposes to respondent No. 2 who is earning about Rs. 200/- per day but considering also the investment and expenses of the business at least Rs. 1,000/- per month should be awarded by way of mesne profits to the plaintiffs. However, the learned Appellate Court reversed this finding by the impugned judgment on the ground that the contractual rent between landlord and tenant, i. e. respondent No. 1 was Rs. 225/- per month and even if sub-tenancy by respondent No. 1 in favour of respondent No. 2 was proved, no mesne profits beyond the contractual rent can be awarded even against a sub-tenant by taking recourse to Order 10 Rule 12, CPC.

( 5. ) IT has been further submitted for the appellants that although the learned Appellate Court had relied upon a decision of the Apex Court in case Chandra Kali Vs. Jagdish Singh Thakur, reported in AIR 1977 SC 2262. However, overlooked the case of Shyam Charan Vs. Sheoji Bhai, AIR 1977 SC 2270, wherein contractual rent was Rs. 1,600/- per month while the mesne profits was awarded by the Trial Court at the rate of Rs. 4,000/- per month. This amount of mesne profits was not disturbed even upto the appeal before the Honble Supreme Court.

( 6. ) IN case of Nandita Bose (Smt.) Vs. Ratanlal Nahata, reported in 1998 (I) M. P. Weekly Notes, Note 26, it has been held that mesne profits from the tenant can be claimed more than that of rent rate. Honble Supreme Court in case of D. C. Oswal Vs. V. K. Subbiah and others, reported in AIR 1992 SC 184, has observed that judicial notice can be taken of the fact that rental has escalated everywhere and in appropriate cases the rent can also be raised. The Calcutta High Court in case of Jagat Narayan Singh Vs. Rabinder Mohan Bhandari and others, reported in AIR 1992 Calcutta 216, after expiry of lease period held tenant liable to pay mesne profits for occupation of premises at prevalent rate and not at contractual rate. In a Division Bench decision of Delhi High Court in case of Vinod Khanna and others Vs. Bakshi Sachdev (deceased Through L. Rs.) and others, reported in AIR 199