The court affirmed eviction and modified mesne profit calculation based on the Cost Inflation Index, establishing that a tenant at sufferance is liable for mesne profit at market rates post-lease expiration.

Order

08/02/2024

1. Instant appeal is preferred by appellant/defendant aggrieved from judgment and decree dated 28.03.2023 in civil suit no. 6/2018 passed by learned Additional District Judge No.2, Bandikui, District Dausa whereby in a suit for eviction and arrears of rent following decree was passed in favour of respondents/plaintiffs and against the appellant/defendant:

2. During the course of argument, learned counsel for appellant made a statement that the appellant/defendant bank will vacate the suit premises latest by 31.03.2024 but they have serious objection on mesne profit. On the basis of aforesaid statement, learned Senior Advocate appearing for respondents/plaintiffs submits that in the instant appeal only a question of mesne profit remains and the Hon’ble Court can consider this issue at this stage on merits.

3. Having considered the aforesaid, on the basis of statement of learned counsel for appellant, the judgment and decree for eviction is liable to be affirmed but heard learned counsel for appellant and learned Senior Advocate for respondents on question of mesne profit.

4. The basic fact of the case indicated that the suit property was leased out to the appellant for a period of ten years upto 31.07.2014 under a lease agreement and a lease deed was executed on 28.04.2005. As per statement initially the lease rent was ₹20,000/- but after five years it was increased by 15% and the rent was ₹23,000/- per month. After expiry of lease deed on 31.07.2014, no further lease deed was executed. On 05.01.2015, a notice for eviction was sent to the plaintiff/respondent to the bank but bank had not vacated the suit premises, thereafter, the suit was filed in the year 2018 for eviction and mesne profit/ lease rent at a rate of ₹1,50,000/- per month.

5. According to appellant/defendant bank, the defendant no.1 has admitted permissive possession of the bank so the lease deed was renewed from 01.08.2014 to 31.07.2019. The trial court has framed issue nos. 2, 3 and 4 for the purpose of these issues and same are reproduced as under:

6. The issue nos. 2 and 3 were partially decided in favour of plaintiffs but issue no.4 was decided against the defendants. The trial court on the basis of material on record has opined that from date of filing of suit dated 12.03.2018, the plaintiffs are entitled for mesne profit at a rate of ₹1,00,000 per month.

7. Learned counsel for appellant submits that initially the rent was ₹20,000/- and after five years same was enhanced to ₹23,000/- but once the notice was served and further rent was accepted till filing of the civil suit which indicated that the plaintiffs have allowed the appellant to continue as tenant in suit premises. She further submitted that mesne profit determined by the trial court is based on estimates and same is not justified from the record. She specifically referred the evidence led by the appellant wherein the maximum rent was ₹33,000/- per month in similarly situated premises. She further submitted that the DLC rate submitted by the respondent/plaintiff was not relied by the trial court, thus the valuation report and the DLC rate submitted by the plaintiff were required to be discarded as a whole. At last, she submitted that the rate of mesne profit cannot be determined on the basis of DLC rate or by unverified documents submitted by the plaintiffs.

8. Aforesaid contentions were opposed by learned Senior Advocate on the ground that after expiry of lease, the appellant is unauthorized occupant and they are entitled to pay mesne profit at market rate. He also submitted that the trial court after considering the evidence of plaintiff and valuation report has rightly determined ₹1,00,000/- as mesne profit for the suit premises. He further submitted that before filing of the suit, the notice was served upon the bank and the bank has not vacated the suit premises, therefore, mesne profit at market rate was rightly ordered by the trial court and there are no grounds to interfere in the ra