Mesne profits must be quantified based on credible evidence reflecting prevailing market rates, with the burden of proof resting on the claimant to substantiate the claims.

JUDGMENT :

B.R. MADHUSUDHAN RAO, J.

1. This memorandum of appeal is filed under Section 96 of CPC assailing the order passed in I.A.No.23 of 2017 in O.S.No.146 of 1999 dated 17.07.2018 by XII Additional Senior Civil Judge (FTC), City Civil Court at Secunderabad.

2. Appellant is the respondent – defendant and respondent is the petitioner – plaintiff in I.A.No.23 of 2017 in O.S.NO.146 of 1999.

3.1 Respondent – petitioner has filed I.A.No.23 of 2017 in O.S.NO.146 of 1999 under Order XX Rule 12 read with Section 151 of CPC praying the Court to appoint an advocate commissioner to ascertain the quantum of rents prevailing in the plaint schedule vicinity and pass such other order as the Court may deem fit and proper. The schedule of the property is ground floor premises bearing plot No.68 admeasuring plinth area of 1510 sq.ft., in a building known as ‘Marliz’ situated at Paiga Colony SP road Secunderabad, with specific boundaries.

3.2 It is stated in the affidavit in I.A.No.23 of 2017 that the learned III Senior Civil Judge, City Civil Court Secunderabad was pleased to decreed the suit in O.S.No.146 of 1999 on 06.06.2005 and had directed the appellant – respondent – defendant to vacate and hand over the plaint schedule property and further held that the respondent – petitioner - plaintiff is at liberty to file a separate petition under Order XX Rule 12 of CPC for ascertaining the mesne profits. Appellant - respondent – defendant has preferred an appeal against the judgment and decree in O.S.NO.146 of 1999 dated 06.06.2005 vide A.S.No.128 of 2005, which came to be dismissed on 28.08.2009 by the learned I Additional Chief Judge, City Civil Court, Hyderabad.

3.3 In paragraph No.19 of the judgment in A.S.NO.128 of 2005, the appellate Court opined that the respondent - petitioner – plaintiff is at liberty to file a separate petition for ascertainment of mesne profits. Appellant – respondent – defendant handed over the keys of the plaint schedule property to the respondent – petitioner – plaintiff on 30.11.2009. Plaint schedule property is situated at SP road, Secunderabad, which is located in the heart of the commercial locality and would easily fetch rent of Rs.350/- per day. The appellant – respondent - defendant has to pay mesne profits from 01.04.1999 till 30.11.2009 for 3897 days and prayed to appoint an advocate commissioner to ascertain the quantum of rents prevailing in the vicinity of the plaint schedule property.

4. Appellant – respondent - defendant has filed his counter and contended that the appeal filed by him was dismissed on 28.08.2009 confirming the trial Court judgment dated 06.06.2005, thereafter he vacated the plaint schedule property and handed over the keys to the respondent – petitioner - plaintiff without allowing him to file EP which shows his intension as regards his landlord. I.A.No.23 of 2017 is filed claiming that an opportunity was given to the respondent – petitioner - plaintiff to file an application under Order XX Rule 12 of CPC is not true and the respondent – petitioner – plaintiff cannot claim any mesne profits even otherwise alternatively. The claim is too high, not comparable and not retainable to any particular premises of that area with that of the facilities that were given. The claim of the respondent is too preposterous and cannot be granted, prayed to dismiss the application.

5. Respondent – petitioner – plaintiff is examined as PW1, also examined PW2 – Rahemjigar Ali and got marked Ex.P1 – bunch of receipts (11 Nos). Appellant – respondent – defendant is examined as RW1 and got marked Exs.R1 to R9.

6. The learned Trial Court after going through the evidence adduced by the parties and the documents thereon has allowed I.A.No.23 of 2017 vide order dated 17.07.2018 quantifying me