THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD C.C.C.A.No.156 of 2002 Date:20th December, 2010 Between: M/s.Dream Decor, per Managing Partner Dr.Ashok Vardhan Reddy ... Appellant a n d M/s.G.M. Corporation, a regd. partnership firm, rep. by one of its Partners Sri Ghanshyam Jaju … Respondent *** THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD C.C.C.A.No.156 of 2002 JUDGMENT: (Per Hon’ble Sri Justice B.Seshasayana Reddy) This appeal is directed against the judgment and decree dated 29.04.2002 passed in O.S.No.129 of 1998 on the file of I Additional Chief Judge, City Civil Court, Secunderabad, whereby and whereunder, the learned Additional Chief Judge decreed the suit for eviction and awarded mesne profits at the rate of Rs.25/- per sq. ft. from 01.09.1997 till the date of delivery of possession. 2. The respondent is the plaintiff and the appellant is the defendant in O.S.No.129 of 1998. The plaintiff filed the suit for eviction and recovery of arrears of mesne profits of Rs.3,78,762/- and future mesne profits at the rate of Rs.30/- sq. ft. from the date of suit till the date of delivery of possession. 3. The plaint averments in brief are: The defendant took the ground floor No.B3 of the building bearing No.1-8-303/34 situated at S.P.Road, Secunderabad, owned by the plaintiff on a monthly rent and hire charges of Rs.10,577/- on 01.05.1988. Thereafter, rent and hire charges came to be increased from time to time. The rent and hire charges were increased to Rs.15,237/- at the rate of Rs.10.08 ps. per sq. ft. from 01.05.1994. Later, the plaintiff called upon the defendant to vacate the premises by issuing a notice dated 15.05.1997. The defendant issued reply notice seeking for renewal of the lease period and agreeing to enhance the rent and hire chages by 20%. The plaintiff filed the suit for eviction. The defendant filed written statement disputing the claim of the plaintiff with regard to arrears of rent. He took the plea that he is liable to pay 20% increase over the existing rent and hire charges. The trial Court framed the following issues for trial: 1) Whether the notice of termination dt.16.05.1997 stands waived? 2) Whether there is any valid notice of termination? 3) Whether plaintiff is entitled for mesne profits? 4) To what relief? On behalf of the plaintiff, one witness was examined as PW.1 and 2 documents were marked as Exs.A1 and A2. On behalf of the defendant, one witness was examined as DW.1 and 23 documents were marked as Exs.B1 to B23. The trial Court, on considering the evidence brought on record and on hearing the counsel appearing for the parties, came to the conclusion that the quit notice is valid and that the defendant is liable to vacate the premises and he is also liable to pay mesne profits at the rate of Rs.25/- per sq. ft. from 01.09.1997 till the date of delivery of possession. With the above observation, the trial Court decreed the suit, by judgment dated 29.04.2002. The said judgment and decree is assailed in this appeal. 4. Heard learned counsel appearing for the appellant/defendant. None appeared on behalf of the respondent/plaintiff. 5. Learned counsel appearing for the appellant/defendant submits that pending the appeal, the appellant/defendant handed over the possession of the premises to the respondent/plaintiff on 31.08.2005 and therefore, the appellant/defendant is not pressing the issue with regard to eviction. The learned counsel further submits that the appellant/defendant is confining this appeal to the extent of granting mesne profits at the rate of Rs.25/- per sq. ft. by the trial Court. 6. The issue that calls for adjudication in this appeal is, whether the trial Court is justified in granting mesne profits at the rate of Rs.25/- per sq. ft.? 7. The learned counsel appearing for the appellant/defendant contends that except the testimony of PW.1, there is no document to substantiate the contention of the respondent/plaintiff that the prevailing rents at the area wherein the suit schedule shop is located are at Rs.25/- per sq. ft. and therefore, the judgment of the trial Court to the extent of granting Rs.25/- per sq. ft. towards mesne profits is liable to be set aside. 8. We have gone through the finding recorded by the trail Court on the issue of mesne profits. PW.1 is the plaintiff. He categorically stated that the adjacent premises owned by him has been let out at the rate of Rs.35/- per sq. ft. The appellant/defendant did not choose to cross- examine PW.1 on that aspect. Therefore, the evidence of PW.1 remains unchallenged. Indeed the trial Court has taken into consideration this fact and observed as hereunder: “However, he clearly admitted that the suit schedule building is by the side of the main road leading to Airport, that there is a theatre on that road and that it is a semi-commercial locality. He could not deny the suggestion that his adjacent tenant has been paying the rent of Rs.35/- per sq. ft. to the plaintiff. On the other hand, the plaintiff in his evidence asserted that the adjacent tenants in the same building have been paying the rents and hire charges at the rate of Rs.35/- per sq. ft. In the cross-examination also the plaintiff positively stated that there are shop rooms and show rooms in the ground floor and that the upper floors are occupied by various offices in the schedule building. No suggestion was put to him denying the same. He also stated that he himself leased to the adjacent tenement at the rate of Rs.35/- per sft. about 1 ½ years back. Again no suggestion was put to him denying the same. Even otherwise the suit schedule building is located on the main road in the commercial zone. The defendant himself admitted in the written statement that the building is suitable for banks, company offices, etc., which is nothing but a commercial activity. The location of the building and the circumstances of the case are such and the ends of justice could be met if the plaintiff is allowed mesne profits at the rate of Rs.25/- per sft. which is reasonable and ‘just’. So, the defendant is directed to pay the mesne profits at the rate of Rs.25/- per sft. from 1-9-1997 till the date of eviction and of-course, the plaintiff would have to pay the necessary Court fee calculating the amount which he would be entitled to.” The respondent/plaintiff specifically pleaded in the plaint that the rent prevailing in the vicinity was Rs.35/- per sq. ft. He deposed on oath about the prevailing rents. Nothing was suggested to him disputing the prevailing rent at the rate of Rs.35/- per sq. ft. Therefore, the finding recorded by the trial Court is based on evidence. Sound reasons have been given by the trial Court for fixing the mesne profits at the rate of Rs.25/- per sq. ft. from 01.09.1997 till the date of delivery of possession. We do not see any illegality in the judgment impugned in the appeal. 9. Accordingly, the appeal fails and it is hereby dismissed. Both the parties are directed to bear their own costs. _________________________ B. SESHASAYANA REDDY, J. ___________________ P.DURGA PRASAD, J. Date:20th December, 2010. cs THE HON'BLE SRI JUSTICE B. SESHASAYANA REDDY AND THE HON’BLE SRI JUSTICE P.DURGA PRASAD C.C.C.A.No.156 of 2002 (Judgment of the Division Bench delivered by Hon’ble Sri Justice B.Seshasayana Reddy) Date:20th December, 2010