THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A. No.529 of 2011 Date of Judgment: 02-12-2011 Between: Sikhakoli Naga Malleswara Rao ..Appellant and Chakka Venkata Nandikesava Rao ..Respondent The Court made the following Judgment: THE HONOURABLE SRI JUSTICE A.GOPAL REDDY S.A. No.529 of 2011 Oral Judgment: The only substantial question of law arises for consideration in this appeal is without there being any evidence let in by the parties whether the lower court can award damages. The appellant is the defendant in the suit ﬁled for eviction from the suit schedule property and for recovery of arrears of damages at Rs.6,840/- per month from 01-04-2004 for unauthorized use and occupation of the plaint schedule shop. The defendant ﬁled the written statement denying the averments made in the pliant stating that as per the oral agreement, the defendant is paying rent at the rate of Rs.1,500/- per month and it was enhanced to Rs.2,850/- with eﬀect from 01- 09-2009 after a decade of commencement of tenancy in the year 1990 at 90%, and the rent of Rs.2,850/- is to be enhanced at the same and similar percentage after a decade again i.e. in the year 2011. The plaintiﬀ has to ﬁle the suit after the year 2011, if the defendant fails to enhance 90% on the rent of Rs.2,850/-. The plaintiﬀ, who runs Sai Golden Enterprises Scheme in partnership with others, undertook and promised to pay double the amount by the mutual date of 5½ years. At the instance of the plaintiﬀ, the defendant got joined 40 members who on the representation of the defendant deposited a sum of Rs.2,500/- each in order to get Rs.5,000/- by the matured date after 5½ years. The lower court after considering the evidence on record held that the defendant has been sending the monthly rent of Rs.2,850/- by way of DDs.; whereas from 01-01-2003 the defendant has to pay Rs.3,420/-. Therefore, the plaintiﬀ terminated the tenancy by issuing legal notice under Section 106 of Transfer of Property Act. On termination of tenancy, the tenant is liable to pay damages at Rs.6,000/- for unauthorized use and occupation of the plaint schedule properties. The plaintiﬀ pleaded that rent is Rs.3,420/-, but the defendant pleaded that he is paying Rs.2,850/-; so the arrears of rent is Rs.7,410/- the plaintiﬀ is entitled to be recovered from the defendant. In the suit notice the plaintiﬀ demanded Rs.6,840/- per month from 01-02-2004 for unauthorized use. Holding so, decreed the suit for eviction. The same has been confirmed by the lower Appellate Court. Admittedly, no evidence has been let in by the plaintiﬀ with regard to damages except the suit notice issued by him seeking damages. In such a case, there should be an enquiry with regard to prevailing market rates coupled with evidence which the plaintiff is entitled to towards damages. In the absence of such evidence adduced by the plaintiﬀ, awarding of damages as claimed per se cannot be justiﬁed and the same is accordingly set aside while upholding the eviction decree passed by the lower court, modifying the same that mesne proﬁts can be ascertained by way of separate proceedings. On plaintiﬀ ﬁling an application for determination of mesne proﬁts, the same should be determined within three months from the date of filing application. Since the appellant/defendant deposited the rent at the rate of Rs.6,840/- towards mesne proﬁts till March, 2011, he could not be evicted till the end of March, 2012 and the amounts deposited by the defendant will abide by the result in the enquiry for mesne profits. The Second Appeal is accordingly disposed of. No costs. _________________ A.GOPAL REDDY, J. 02-12-2011 Murthy