IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD THURSDAY, THE THIRD DAY (3RD) of MARCH, TWO THOUSAND AND ELEVEN Present: THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.451 of 2001 Between: S.M. Taher … Petitioner And: Syed Hussain ….Respondent THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.451 of 2001 ORDER: This revision petition is directed against the order dated 05.12.2000 in IA No.795 of 1999 in OS No.5181 of 1995 on the file of the IX Junior Civil Judge, City Civil Court, Hyderabad, wherein, the said application filed by the petitioner herein under Section 151 CPC claiming mesne profits in a sum of Rs.1500/- per month for the period from 18.11.1997 to 23.04.1999 was allowed, granting mesne profits in a sum of Rs.25,750/-. 2. Heard the learned counsel for the petitioner. None appeared for the respondent, though served with notice. Perused the record. 3. The petitioner herein is the tenant of the respondent in respect of the suit schedule premises. The respondent filed suit for eviction and recovery of possession, recovery of arrears of rent and mesne profits. The suit was decreed on 10.02.1999, directing the respondent/plaintiff to take possession of the property within 15 days and directing the petitioner/defendant to pay arrears of rent at the rate of Rs.1100/- per month from September 1995 to November 1995 and also damages at the rate of Rs.1500/- per month from 01.12.1995 to 17.11.1997. It was further directed in the decree that the mesne profits would be determined in a separate application. Pursuant to the decree, the respondent/ plaintiff filed EP and obtained delivery of possession. 4. It is not disputed that the arrears of rent and damages for use and occupation as per the decree were already paid. The respondent/plaintiff also filed IA No.795 of 1999 for determining the mesne profits claiming them at the rate of Rs.1500/- per month for the period from 18.11.1997 to 23.04.1999. The trial Court by impugned order allowed the said application and granted arrears of mesne profits in a sum of Rs.25,750/-. 5. According to the petitioner/defendant, he has already vacated the premises and delivered possession on 17.11.1997 itself and filed IA No.1335 of 1997 and deposited the key in to Court and therefore, he is not liable to pay any rent or mesne profits for the period from 17.11.1997 onwards. The trial Court also observed in the impugned order that it is a fact that the petitioner herein filed application IA No.1335 of 1997 and deposited the key with the Court stating that he vacated the property. As seen from the impugned order, the said IA was pending and no orders were passed in the said application. The trial Court, however, ignored the said fact on the ground that even after depositing the key, the petitioner continued to contest the suit. Learned counsel for the petitioner would submit that as several other reliefs were prayed for in the suit, he had to necessarily contest the suit, notwithstanding the fact that the key was deposited in to Court. When once, the petitioner/defendant has vacated the premises on 17.11.1997 itself and brought the said fact to the notice of the Court by way of application in IA No.1335 of 1997 and also depositing the key in to Court, ceased to be a tenant in occupation of the premises as and from that date i.e., 17.11.1997 and the question of his becoming liability to pay any mesne profits from that date onwards, does not simply arise. It is also not disputed that in the execution proceedings, the Bailiff has taken the key from the Court and opened the premises and delivered possession to the respondent/plaintiff by noting that the premises was lying vacant. From that circumstance also it can be seen that the petitioner/defendant has already vacated the premises while depositing the key with the Court on 17.11.1997. As the petitioner/ defendant was not in possession of the premises on and from 17.11.1997, the question of fastening any liability for payment of rent for damages or mesne profits, does not arise. 6. The impugned order, directing the petitioner/defendant to pay mesne profits is therefore, held unsustainable and is accordingly set aside. 7. In the result, the civil revision petition is allowed. No order as to costs. ____________________ G.V.SEETHAPATHY, J Date: 03.03.2011 bss