1 CRAGO-268.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE  CIVIL CIVIL REVISION APPLICATION NO.268 OF 2009 Mrs. Rasilaben w/o Mavji M. Shah & Ors. .... Applicants Vs. Smt. Sunanda Ramakant Desai & Ors. .... Respondents WITH CIVIL REVISION APPLICATION NO.263 OF 2009 Girish M. Telang .... Applicant Vs. Smt. Sunanda Ramakant Desai & Ors. .... Respondents CIVIL REVISION APPLICATION NO.264 OF 2009 Dilip B. Muzumdar .... Applicant Vs. Smt. Sunanda Ramakant Desai & Ors. .... Respondents CIVIL REVISION APPLICATION NO.265 OF 2009 Kirit M. Dedhia .... Applicant Vs. Smt. Sunanda Ramakant Desai & Ors. .... Respondents CIVIL REVISION APPLICATION NO.266 OF 2009 Smt. Prabhavati R. Tembe & Anr. .... Applicants Vs. Smt. Sunanda Ramakant Desai & Ors. .... Respondents 2 CRAGO-268.09 AND CIVIL REVISION APPLICATION NO.300 OF 2009 Smt. Chandrika Morarji Dedhia .... Applicant Vs. Smt. Sunanda Ramakant Desai & Ors. .... Respondents S/Shri G.S. Godbole with Siddharth Ronghe for the Applicant/s in CRA-Nos.268 and 300 of 2009. S/Shri P.K. Dhakephalkar with A.A. Kocharekar for Respondent Nos.4A to 4C. Shri J.J. Thakkar for the Applicant in CRA-Nos.263 to 266 of 2009. Shri P.K. Dhakephalkar for Respondent Nos.4A to 4C in CRA-Nos.263 to 266 of 2009. CORAM: R.C. CHAVAN, J. RESERVED ON : AUGUST 04, 2010 PRONOUNCED ON: SEPTEMBER 08, 2010 ORDER: 1. These revision applications, by tenants/their heirs who have vacated the premises pursuant to decrees passed against them, question the orders directing them to pay mesne profits at Rs.13/- per sq.ft. p.m. from 1-7-1991 to 31-12-1994, at Rs.34/- per sq.ft. p.m. from 1-1-1995 to 31-12-1999 and at Rs.22/- 3 CRAGO-268.09 per sq.ft. from 1-1-2000 to 31-10-2004 with simple interest at 6% p.a. till realisation, and are taken up for final hearing at the admission stage by the consent of the parties. They are being disposed of by this common order since a common question is involved. 2. For the purpose of deciding these revision applications, it is not necessary to go into the question whether the respondents are landlords qua the applicants, since the dispute as to whether the respondents or the society is landlord is to be decided separately, as held by this Court in Writ Petition No.515 of 1993. But suffice it to say that the applicants had been consistently questioning the right of the respondents, claiming to be landlords, to sue them. The trial Judge held that the Court of Small Causes lacked jurisdiction to try the suit. The Appellate Bench by its judgment dated 27-3-2002 held that the suit was maintainable in the Small Causes Court and passed a decree for ejectment of the tenants ordering an enquiry into mesne profits from the date of the suit till delivery of possession under Order XX, Rule 12 of Civil Procedure Code. The applicants writ petitions challenging the said 4 CRAGO-268.09 judgment were dismissed by this Court and Special Leave Petitions to the Supreme Court challenging the judgment of this Court, too, were dismissed. Thus the decree of ejectment, as also as to enquiry into mesne profits from the date of the suit till recovery of possession stands as it is. 3. The respondents took out miscellaneous notices for enquiry into mesne profits. The applicants raised various objections. The respondents rejoined. Evidence was taken and ultimately by judgment and order dated 21-11-2007, the learned Judge of the Court of Small Causes fixed the quantum of mesne profits as indicated in para 1 above. The applicants sought a review of these orders and the learned Judge held that the applicants were liable to pay mesne profit only from 27-3-2002 till 31-10-2004 at Rs.22/- per sq.ft. with interest, as the landlord-tenant relationship had come to an end only on 27-3-2002, when the Appellate Bench decreed the suits for ejectment. This has been set aside by the impugned judgment of the Appellate Bench, which restored the order directing payment of mesne profits at various rates right from the date of the suit. 5 CRAGO-268.09 4. I have heard the learned counsel for the parties. There is no question in these proceedings of going behind the decree directing enquiry into mesne profits, which has been left undisturbed right upto the Supreme Court. Also, as to the quantum, since both the Courts below have on appreciation of evidence tendered fixed the rates of mesne profits for different period, this finding cannot be upset, since there is nothing to indicate any perversity or gross error in computations based on evidence tendered. 5. The learned counsel for the applicants submitted that in landlord-tenant suits governed by the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, since the relationship would continue till a decree is passed, the tenant would be obliged to pay only the standard rent and permitted increases till then and question of assessment of mesne profits would arise only from the date of decree. Relying on the judgment of the Supreme Court in Chittoori Subbanna v. Kudappa Subbanna and others, reported in AIR 1965 SC 1325, the learned counsel for the applicants submitted that whatever may be the wording of the decree, it would always be open for the judgment debtor 6 CRAGO-268.09 to point out that mesne profits could not be awarded for any particular period because of any legal impediment. In that case mesne profits had been granted for period beyond three years from the date of decree and the High Court had refused to allow the judgment debtors to raise an objection based on the provisions of Order XX, Rule 12(1)(c)(iii) [which clause does not apply in Maharashtra State, though its inapplicability has no bearing on the matter at hand]. Disagreeing with the High Court, majority in the Bench of the Supreme Court deciding the case, held, in para 25, as under: (25) We are, therefore, of opinion that it is open to the Court to construe the direction in the preliminary decree about the inquiry with respect to future mesne profits when such direction is not so fully expressed as to cover all the alternatives mentioned in O.20, R. 12(1)(c), C.P.C. and to hold that the decree be construed in accordance with those provisions. 6. The learned counsel for the applicants submitted that the principle that emerges is that direction in a decree as to mesne profits has to be complied with in conformity to requirements of law. 7 CRAGO-268.09 7. In Smt. Chander Kali Bail and others v. Jagdish Singh Thakur and another, reported in AIR 1977 SC 2262, the Supreme Court had held that occupation of a tenant protected by Rent Legislation would become wrongful only from the date of decree for eviction and that a tenant is not liable to pay damages or mesne profits from the date of decree. There is no doubt about the applicability of this principle. 8. As to the right to recover mesne profits, my attention was also drawn to a recent judgment of the Supreme Court in Union of India v. Banwarilal & Sons (P) Ltd., reported in (2004) 5 SCC 304, where the Court reiterated that right to claim mesne profits presupposes a wrong. In that case the question was of grant of mesne profits for the time which was granted by the Supreme Court to vacate the property and the Court held that possession of the appellant therein was not wrongful, illegal and therefore set aside the award directing payment of mesne profits/damages for that period too. In this context the observations of the Supreme Court in para 8 may be usefully reproduced as under: 8 CRAGO-268.09 In Rao, Kameshwara: Law of Damages & Compensation (5th Edn., Vol.I, p.528), the learned author states that right to mesne profits presupposes a wrong whereas a right to rent proceeds on the basis that there is a contract. But there is an intermediate class of cases in which the possession, though not wrongful in the beginning, assumes a wrongful character when it is unauthorisedly retained and in such cases, the owner is not entitled to claim mesne profits but only the fair rent. In the present case, in view of the permission granted by this Court enabling the appellant to use and occupy the property up to 31-3-1993, it cannot be said that the possession of the appellant was illegal and wrongful and in the nature of trespass. In the circumstances, damages were claimable not on the basis of mesne profits but on the basis of fair rent. (emphasis supplied) 9. The learned counsel for the landlords submitted that the applicants could have claimed benefit of being tenants to avoid paying mesne profits till decision of the suit had they not denied the title of the landlords. He submitted that having denied the title of the landlords, the applicants claim to benefit of status as tenants amounts to approbating and reprobating. Therefore, according to him, the Courts below rightly awarded mesne profits from 9 CRAGO-268.09 the date of the suit. 10. In Mst. Hirabai and another v. Jiwanlal Palode, reported in AIR 1955 Nagpur 234, on which reliance was placed, it was held that a tenant who wrongfully declines to give possession to the landlord on the expiry of tenancy is liable in damages, to the extent of loss of rent which the landlord sustains during the period for which he is kept out of possession. In that case too, the tenant had set up title in a deity, denying the title of the landlord. In para 11 of the judgment, the Court observed that the tenancy had come to an end by reason of forfeiture but this did not affect the rule of estoppel  that the tenant could not deny title of the landlord till he surrendered possession. 11. In my humble opinion, this judgment cannot be construed as holding that the moment tenant denies the title of landlord, the tenancy comes to an end. Forfeiture is one of the grounds for termination of tenancy and till it is actually terminated, which, would occur only on a decree being passed, in case of premises to which the Rent Act applies  till then tenancy would continue. The rule of 10 CRAGO-268.09 estoppel preventing tenant to deny landlord s title would also be consistent with such continuance and till tenant surrenders possession he would in law continue to be a tenant. This is what the Supreme Court held in Vashu Deo v. Balkishan, reported in (2002) 2 SCC 50. In Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., reported in (2005) 1 SCC 705, while holding that after determination of tenancy the tenant cannot claim that measure of damages awardable to the landlord should be tagged to the rate of rent payable under the Rent Act, in para 17, the Supreme Court held that tenancy of such a tenant would come to an end w.e.f. the date of order of eviction. The sum and substance of all this that applicants continued to be tenants till they were actually ordered to be evicted. 12. If claim to mesne profits is grounded on a wrong  or an absence of right to possess  could mesne profits be claimed for that period is the moot question. Yet it cannot be forgotten that mesne profits for that period have been granted by a decree which has been maintained upto the Supreme Court and this aspect was never raised till the proceedings for fixation of mesne profits were taken out. 11 CRAGO-268.09 13. This problem, however, need not vex the Court since in Nathmal Chandanmal & Co. v. Damodar Prabhati Sharma, reported in Vol.LXXX-1978 BLR Page 470 this Court had held that mesne profits from the date of suit till the date of decree of eviction would be equal to the contractual rent. Thus it is not necessary to go behind the decree or reopen the question whether mesne profits could be awarded for period from the date of suit till date of decree, though legally, since possession of tenant till the date of decree would not be unlawful, mesne profits may not be strictly awarded. By pegging the mesne profits for that period to the rent payable, the decree too is obeyed and tenant is not saddled with a burden which law does not expect him to carry. 14. In view of this, these revision applications are allowed. The impugned judgment of the Appellate Bench of the Court of Small Causes is set aside. The applicants are held liable to pay towards mesne profits amounts equal to the contractual/standard rent, and as the case may be, from 1-7-1991 to 26-3-2002 and at Rs.22/- per sq.ft. from 27-3-2002 till 31-10-2004 with interest at 6% p.a. till 12 CRAGO-268.09 realisation. The order of the trial Court be accordingly modified. (R.C. CHAVAN, J.)