IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8216 OF 2005 WRIT PETITION NO. 8216 OF 2005 WRIT PETITION NO. 8216 OF 2005 Trade Centre Developers & Builders ... Petitioners V/s Hindustan Petroleum Corporation & ors. ... Respondents Mr. K.Y. Mandlik for the petitioners. Mr. M.D. Siodia i/by Rustamji & Jinwala for respondent Nos. 1 to 8. CORAM: P.V. KAKADE, J. CORAM: P.V. KAKADE, J. CORAM: P.V. KAKADE, J. DATED: 7TH FEBRUARY, 2006 DATED: 7TH FEBRUARY, 2006 DATED: 7TH FEBRUARY, 2006 P.C. P.C. P.C.: 1. Heard learned counsel for both parties. 2. In view of the facts and circumstances, Rule. Rule made returnable forthwith. 3. The petitioner has impugned the order dated 29.9.2005 passed by the Addl. District Judge, Pune, passed in appeal below Exh.12 in Civil Appeal No. 494 of 2005 fixing the interim mesne profit payable by the respondents to the petitioners herein at the rate of 2 Rs.10,000/- p.m. from the date of the order pending the decision in the appeal. 4. The present petitioners Trade Centre Developers & Builders Pvt. Ltd. are the landlords and respondents are Hindustan Petroleum Corporation, having their petrol pump in the suit premises which consists of open land bearing C.T.S. No.10, Old 12, Cannought Road, Pune - 411 001 admeasuiring about 11136 sq.ft. abutting main road in prime commercial locality of Pune city. The suit premises were let out by original owner in the year 1958 for a period of 20 years and it was renewed for a further period of 20 years. The lease period expired on 20th December, 1998 and the respondents were paying rent at the rate of Rs. 2,200/- p.m. towards rent. The market rent was alleged to be in the said area where the suit premises are sutuated is between Rs.40/- to Rs.50/- per sq.ft. p.m. The suit came to be decreed by order dated 9.6.2005 by the Small Causes Court, Pune and the appeal was preferred by the present respondents in the District Court at Pune. 5. At the time of filing the appeal, an application for 3 stay of the decree was moved by the present respondents on 22.7.2005. The application was contested by the present petitioners by reply dated 8.8.2005 inter-alia submitting that the Trial Court had directed to fix the mesne profits as contemplated under Order 20 Rule 12 of the C.P.C. and, therefore, the present petitioner was entitled to mesne profits on the basis of the rent but on the basis of measure of damages which a successful landlord should get from the tenant for being out of possession and enjoyment of the property. It was further submitted that the suit premises which was situated in the commercial area admeasuring about 1035 sq. mtrs. or 11136 sq.ft. and the properties in the same complex are being based out on the rate of Rs.32500/- p.m. in addition to the deposit of Rs.1,62,500/- free of interest and also Rs.25,800/- p.m. in addition to interest free deposit of Rs.2,55,600/-. Under the circumstances, it was submitted that stay should be granted only on condition to deposit a sum of Rs. Ten crores in the Court or to furnish a security to that extent. 6. The learned appellate Court, after hearing both parties and relying upon the decision of the Apex Court in the case of Atmaram Properties v/s Federal Motors, Atmaram Properties v/s Federal Motors, Atmaram Properties v/s Federal Motors, 4 reported in 2005 (1) SCC 705, reported in 2005 (1) SCC 705, reported in 2005 (1) SCC 705, came to the conclusion that the present rate of rent was too meagre and in order to compensate the plaintiff, the present respondent tenant was directed to pay Rs.10,000/- p.m. towards rent of the mesne profit to the respondents till the decision of the appeal and, as such, the application came to be partly allowed. 7. Being aggrieved by the said order of interim mesne profit fixed by the Trial Court, the landlords have preferred the present petition. 8. While challenging the petition, the learned counsel for the respondents has submitted that the order passed by the lower appellate Court fixing the interim mesne profit is discretionary and, therefore, cannot be gone into under Art. 227 of the Constitution of India. It was further submitted that the rate of interim mesne profit which is fixed by the Court below is just and proper and they have deposited the amount at the said rate from the date of the order. On such and other grounds the petition was sought to be dismissed. 9. The learned counsel for the petitioner, in support of his submission to get the rate of mesne profit 5 increased, relied on the ruling of the Supreme Court in the case of Atmaram Properties (P) Ltd Atmaram Properties (P) Ltd Atmaram Properties (P) Ltd. v/s Federal v/s Federal v/s Federal Motors (P) Ltd Motors (P) Ltd Motors (P) Ltd., reported in (2005) 1 SCC 705 , reported in (2005) 1 SCC 705 , reported in (2005) 1 SCC 705. Perusal of the said ruling shows that, while considering the rate of interim mesne profit, the Apex Court also took into account the location of the suit premises as well as rate of rent of the adjoining premises and other factors, such as, location in commercial area, etc. It was held that there was every justification for the appellate Court to put the appellant tenant on terms and direct him to compensate the landlord by payment of a reasonable amount which is not necessarily the same as the contractual rate of rent. Rationale for, given that there was a need to deter tenants from perpetuating the life of litigation even if successful and, therefore, on the facts it was held that all the relevant factors were required to be taken into account while fixing the rate of interim mesne profits pending the appeal. This is especially so in the present case because it is common knowledge that appeals cannot be heard immediately in the lower Court and, therefore, considerable time would elapse and there is no reason why the successful landlord should be deprived of the fruits of the decree. 10. In my considered view, the prayer to the effect 6 that interim mesne profit should be fixed to the extent of lacs of rupees, cannot be acceeded to. However, the fact remains that the payment of Rs.10,000/- p.m. towards the interim mesne profit is also not justified taking into account the fact that the present respondent is a Central Government Corporation running petrol pump in the prime commercial area of the city of Pune and rent at the market rate which is prevailing in the said area is much higher than which is fixed by the learned lower appellate Court Judge. It must also to be noted that the lower appellate Court has fixed the interim mesne profit from the date of the order i.e. from 29.9.2005 and not from the date of the suit. Under the circumstances, I hold that the interim mesne profit should be payable from the date of the suit and should be at much higher rate. In my considered view, the ends of justice would be met if the rate of interim mesne profit is fixed at the rate of Rs.25,000/- p.m. payable from the date of suit pending the appeal. 11. In view of the relevant facts and circumstances, the rent which could be fetched had the landlord be put in possession, consequent to the decree passed by the Trial Court. At the same time, it also cannot be 7 overlooked that the rent which could be fetched would be very very high rate than which is being fixed as interim mesne profit besides the amount of deposit and interest thereon. 12. In the result, the Rule is made absolute. The order passed by the Addl. District Judge, Pune, dated 29.9.2005 stands modified and it is directed that the present respondent shall pay the interim mesne profit at the rate of 25,000/- p.m. from the date of the suit pending the appeal. The arrears of the amount payable shall be calculated and deposited by the respondents in the lower Court within 12 weeks from the date of this order, failing which the stay shall stand vacated. With these directions, the petition stands disposed of with no order as to costs. .....