1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO. 544 OF 2010 (Ramchandra J. Kataria vs. Nooruddinbhai M. Ali & Ors.) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : B.P. DHARMADHIKARI, J. MARCH 10, 2010. Heard Shri Kataria, learned counsel for the petitioner and Shri Qazi, learned counsel for the respondents. The petitioner – tenant had in mesne profit inquiry, filed reply and along with reply raised a counter claim pointing out that because of interim directions issued by High Court and Supreme Court, certain amount is deposited by the tenant and that amount is itself more than the mesne profit to which the respondents - landlords are entitled. The counter claim, therefore, sought refund of such amount in excess. It appears that the maintainability of counter claim was objected to by landlords but the trial Court (Small Causes Court, Nagpur) vide its order dated 13.08.2009 passed below Exh. 47 held counter claim to be maintainable. The landlords then filed Misc. Civil Appeal No. 212 of 2009 and the Ad-hoc District Judge – II, Nagpur, vide its order dated 30.12.2009 allowed that appeal. This order allowing appeal is challenged before 2 this Court. The contention of Kataria, learned counsel is, the mesne profit inquiry under Order 20, Rule 12 of Civil Procedure Code, is also a suit and hence counter claim is maintainable in it. The reasons given by lower appellate Court for holding that counter claim is not maintainable, are incorrect. Shri Qazi, learned counsel, on the other hand, contends that as amount due to the respondents – landlords is still not ascertained, the set off or adjustment for amount already deposited, that too by filing counter claim is misconceived. According to him, in any case, such counter claim at this stage is premature. The lower appellate Court has in impugned order made following observations : “As well, if in case at the time of judgment, the court come to the conclusion that the respondents/ tenants are entitled to get refund any amount deposited by him in the court, then the court suo motu can pass the order and get adjust the amount if find that the respondent is entitled to get refund then the court could pass such kind of order and thereby the respondent will not suffer from any loss.” These observations by lower appellate Court are not assailed in any way by the respondents – landlords. The observations clearly show that the petitioner – tenant is free to prove the amount deposited 3 by it during the pendency of suit in obedience of orders passed by the trial Court, High Court and by Supreme Court. The lower appellate Court has also found that if the amount so deposited is found in excess ultimately after the mesne profit are worked out, the trial Court can itself order refund for that amount. In view of this position, as the petitioner – tenant has already paid court fee and has already pointed out the amount in deposit, I do not find that any prejudice will be caused to any party by retaining that claim as counter claim on record. As observed by lower appellate Court, if ultimately after the rate of mesne profit is arrived at and entitlement of landlord to mesne profit is settled and the trial Court finds that the amount deposited by the petitioner – tenant is in excess, the said Court shall pass appropriate orders in relation to refund of such excess amount to the petitioner – tenant. With these clarifications, writ petition is disposed of. No order as to costs. JUDGE *GS.