Mesne profits must be calculated based on actual use value, not by averaging conflicting valuation reports, ensuring accurate rental assessments.

JUDGMENT:

1. Rule. Rule made returnable forthwith and heard finally with consent of parties.

2. The perennial conflict between landlord and tenant has surfaced once again in the form of calculation of mense profits. Seldom are the cases where there is a marginal difference between the valuation reports submitted by the parties rendering the Court’s task easier. Most often than not there is huge variance in the valuation reports relied upon by the landlord and tenant, the valuation report of the landlord being on the higher side whereas that of the tenant being on the lower side. Similar is the position in the present case.

3. The revisional jurisdiction of this Court has been invoked against the order of Appellate Court dated 10th February 2022 in Appeal No. 371 of 2019 upholding the Trial Court’s order dated 18th June 2018 in Mesne Profit Application No. 612 of 2010 directing the Applicant to pay mesne profits @ Rs. 57.21 per square feet per month for the period from 1st November 2003 to 31st December 2007 and @ Rs.121.07 per square feet per month for the period 1st January 2008 till the date of handing over possession of the suit premises along with interest @ 10% thereon.

4. The undisputed facts of the case are as under:

T.E.&R. Suit No.257/279 of 2003 filed by the Respondent seeking eviction and mesne profits came to be dismissed by the trial Court vide judgment and order dated 30th January 2008, which came to be reversed by the Appellate Bench in First Appeal No.198 of 2008 vide judgment and order dated 9th October 2009. Liberty was granted to the respondent as regards the inquiry into future mesne profits under Order XX Rule 12(1)(c) of CPC. Pursuant thereto, the respondent filed Mesne Profits Application No.612 of 2010, which was decreed by judgment and order dated 18th June 2018 directing payment of mesne profits @ Rs. 57.21 per month per square feet for period from 1st November, 2003 to 31st December, 2007 and @ Rs 121.07 per square feet per month for period from 1st January, 2008 till handing over possession alongwith interst @10% thereon. The Appellate Court upheld the computation of Mesne Profits.

5. Heard Mr. Pankaj Sawant, learned Senior Advocate appearing for the applicant and Mr. Girish S. Godbole, learned Senior Advocate appearing for the respondent.

6. Mr. Sawant, submits that, the course adopted by the Trial Court of averaging the two valuation reports submitted by the Applicant’s valuer and the Respondent’s valuer for computation of mesne profits is unsustainable. He would contend that as per their valuation report submitted for the first part, the valuation was @ Rs.26.42 per square feet per month as compared to the valuation put forth by the valuer of respondent @ Rs. 88 per square feet per month. For the second part, their valuation was @ Rs.46 per square feet per month and the respondent’s valuation was @ Rs.196 per square feet per month. He points out the finding of the Trial Court that no fruitful material was produced on record to falsify the testimonies of the valuers of the Applicant and the Respondent. He would submit that in this factual scenario, it was incumbent on the trial Court to accept the valuation put forth by the applicant. According to him, Mesne Profits is the amount at which the similar premises could have been availed by the applicant during the same period and in the same vicinity and as such, lower of the valuation reports will have to be accepted. He submits that by averaging the two valuation reports, the trial Court computed mesne profits @ Rs.57.21 per square feet per month for the first part and @ Rs.121.07 per square feet per month for the second part.

6.2. Mr. Sawant would further submit that before the Appellate Court the Respondents accepted that the course adopted by trial Court was not open and available to the trial Court. He would submit that in view of the submissions made by learned advocate for the respondent before the Appellate Court, it is the common stand of both the p