Order XXVI Rule 12 read with Section 151 C.P.C for appointment of an Advocate-Commissioner to ascertain the mesne profits from 01.10.2005 till the respondent vacated the premises.= The said Commissioner has submitted his report by fixing the mesne profits @ Rs.46.06 ps per sq. feet for the suit schedule property. For the said report both the petitioners and respondent’s counsel have filed their objections and the lower court by taking into consideration of the said objections allowed the petition by granting mesneprofits @ Rs.30/- per sq. feet. = Since the Commissioner has not properly enquired into the matter and the lower court has not come to the conclusion with regard to the mesne profits basing on the material placed before it, we hold it is just and proper to set the order of the lower court and remit back for making fresh enquiry with regard to the mesne profits. Hence, the order of the lower court is not just, legal and valid. In the result, both the appeals are allowed and the matter is remitted the matter back to the lower court for fresh disposal in accordance with law


HON’BLE SRI JUSTICE B. PRAKASH RAO

&

HON’BLE SRI JUSTICE P. DURGA PRASAD


C.C.C.A Nos.26 & 79  of 2008


Date: 28.02.2011


Between:

M. Raja Gopala Rao and another


….Appellants.


And:

Sri K. Vinay Reddy


…..Respondent.
C.C.C.A No.79  of 2008


Between:

Sri K. Vinay Reddy


….Appellant.


And:

M. Raja Gopala Rao and another


…..Respondents.

HON’BLE SRI JUSTICE B. PRAKASH RAO
&
HON’BLE SRI JUSTICE P. DURGA PRASAD


C.C.C.A Nos.26 & 79  of 2008


COMMON JUDGMENT: (per Hon’ble Sri Justice P. Durga Prasad)



          Both the appeals arising out of the decretal order passed in I.A.No.92 of 2007 in O.S.No.2024 of 2005 by the IV Senior Civil Judge, City Civil Court, Hyderabad on 07.11.2007.  The appellants in C.C.C.A.No.26 of 2008 are  the petitioners/ decree-holders and the appellant in C.C.C.A.No.79 of 2008 is the respondent/judgment-debtor.

          The petitioners/decree-holders have filed an application under Order XXVI Rule 12  read with Section 151 C.P.C for appointment of an Advocate-Commissioner to ascertain the mesne profits from 01.10.2005 till the respondent vacated the premises.

          The brief averments  of the affidavit filed in support of the petition are that they have filed O.S.No.2024 of 2005 for eviction recovery of arrears of rent  and the  mesne profits against the respondent and the said suit was decreed on 18.01.2007 directing the respondent to vacate the suit schedule premises within a period of three months and permitted the petitioner to file a separate application to ascertain the quantum  of mesne profits.

          According to the petitioner, the suit schedule property consists of two buildings in a plot of land around 1257 sq. yards situated in the prime locality of Jubilee Hills on its most important and commercial Road No.36. The building is located on the main road  on an elevated spot at the junction of the Arterial 4-lane road No.36 to Hi-tech City.  
The suit schedule premises consisting of ground and first floor and smaller areas of cellar and second floor comprising one room only with a total carpet area of 9,000 sq. feet.  
The road is now host to all brand name national and international commercial establishments.  Establishments like Reebok, Sundaram Motors, Furniture Shops, various Boutiques, Restaurants, Supermarkets, Healthcare and Lifestyle Centers, Banks and various other international class offices are located on this road.  
The entire suit schedule  property is being used for commercial use by the judgment debtor who is running a Restaurant on the name of Cook’s Touch, Masala Guest House, Coffee Bar in the name of Cafe Latte, Ice Cream Parlor and Masala Pan Shop in suit schedule premises.  
The JDr is currently earning huge income from all these ventures.  
The current schedule  property prevailing rentals per sft., of space  on this road have been increasing  year  by year  and are currently averaging around Rs.42.47 ps per sft on continuing agreements covering the period from 2001 till 2006.  Rentals on agreements signed in the year 2006 only are averaging around Rs.67.15 ps per sft., relevant in this case as the mesne profits claimed are from 1.10.2005 till date.

          The calculation of mesne profits  is based on the certified copies of the  registered lease deeds Exs.A-1 to A.6 issued by the concerned Sub Registrar.  
All the calculations are based on the actual rental figures agreed to in these registered lease deeds by the respective parties  and prayed for ascertaining the mesne profits basing on the lease deeds marked as Exs.A.1 to A.6.
          Respondent opposed the application  by filing counter pleading that  the copies of the registered lease deeds filed along with the affidavit are not relevant  and cannot be considered as a basis for determination of mesne profits  in the matter.  
The road No.36 in which the suit schedule property is situated is a very long road stretching to an extent of about two kilometers.   
The area covered by suit schedule property is not a commercial area but it is a residential area.  
The UCO bank and Pacific Hospitals, ICICI Bank are situated totally in different roads which are actually far away from the suit schedule property and as such their rental value cannot be taken as basis for determination of mesne profits. 
Likewise Trinethra Super Market, Sundaram Motors, Reebok India and Prakash Arts, are all though situated in Road No.36 are in fact far away from the suit schedule property and they are not proximate to the premises and even distances of their location from suit schedule property furnished by the petitioner are false and the petitioner is put to strict proof of the same.

          In any case, the said rental values cannot be adopted for arriving at the mesne profits of the suit schedule property.  
More over the nature of business done in the said premises of the lease deeds filed by the petitioner are totally different and cannot be equated with the restaurant business of this respondent.  
The petitioner claims mesne profits @ Rs.30/- per sq. feet in the plaint, whereas in the present petition he claims @ Rs.67.15 ps as mesne profits which itself shows that the claim of the petitioner for mesne profits is false, exorbitant without any basis.  
P.W.1 in the cross-examination has admitted that originally the rent was Rs.15,000/- per month and after 11 months, it was enhanced to Rs.16,500/- and further after 11 months it was enhanced to Rs.18,000/- per month. 
Therefore, it is clear that after a period of every 11 months an amount of Rs.1,500/- was enhanced and as such the petitioner cannot have right to claim excess amount, arbitrarily as mesne profits more than the amount of rent received by the petitioner.   
Hence the petitioner is devoid of any merits and the petitioner is not entitled to claim the mesne profits and the petition is liable to be dismissed.

          The lower court  has appointed Sri I.P. Radha Krishna Murty as Commissioner to enquire into the mesne profits and submit a report. 
The said Commissioner has submitted his report by fixing the mesne profits @ Rs.46.06 ps per sq. feet for the suit schedule property. 
 For the said report both the petitioners and respondent’s counsel have filed their objections and the lower court by taking into consideration of the said objections allowed the petition  by granting mesneprofits @ Rs.30/- per sq. feet.  
Aggrieved by the said order, both the petitioner/DHr and the respondent/JDr have preferred the above said two  appeals.

          Now the point that arises for consideration is 
whether the  mesne profits fixed by the lower court is just, legal and valid?

          The learned counsel for the appellants in C.C.C.A.No.26 of 2008 pleaded that  as per the documents produced before the Commissioner, the market rate in that area is Rs.60/- per sq. yard and the Commissioner has granted only Rs.46.06 ps per sq. feet and the lower court is only granted Rs.30/- per sq. yard stating that they have only claimed Rs.30/- per sq. yard in the plaint. 
The learned counsel has also further pleaded  that the claim made in the plaint is only a tentative claim and it cannot be a basis for granting the mesne profits and the mesne profits have to be decided basing on the material placed before it and the learned Commissioner has after due enquiry has submitted his report by fixing the mesne profits @ Rs.46.06 ps per sq. feet and the lower court ought to have granted the same.

          The learned counsel for the appellant in C.C.C.A.No.79 of 2008 has pleaded that the burden is on the plaintiff to establish the quantum of mesne profits to which he is entitled by producing proper evidence before the Commissioner and in the present case, the petitioner/DHr was not examined to speak about amenities provided by him in the suit schedule premises and the prevailing market rates in the said area  for similarly situated locations and mere production of the lease deeds will not give rise to claim for mesne profits by the petitioner. 
The learned counsel for the appellant has further pleaded  that the Commissioner  submitted the report  like a judgment and he has not supposed to ascertain the mesne profits and he ought to have enquire into the mesne profits  by taking into consideration of prevailing rates in that area and submit his report before the lower court.  In the present case, the learned Commissioner  even though examined the witnesses, he did not mark any exhibits through them and even before examining the witness he has marked the documents and as such the respondent has no opportunity to question the validity of the said documents in the cross-examination of the witnesses examined by the Commissioner.  Hence, the report of the Commissioner is liable to be set aside.

          The learned counsel for the appellant has further pleaded that  even granting of Rs.30/- per sq. yard as mesne profits is highly excessive in the present case as the rent that was being paid by the appellant   from the month of October, 2003 is Rs.30,000/- for 9000 sq.ft., which was subsequently enhanced to Rs.36,000/- for 9000 sq. ft., which works out  to Rs.4/- per sq feet.  There could not have been exorbitant increase from Rs.4/- to Rs.30/- per sq. feet and the lower court has not given any valid reasons for arriving at the said mesne profits at Rs.30/- per sq. feet and the lower court has simply arrived  to that figure and as such the awarding of the mesne profits at Rs.30/- per sq. feet by the lower court is liable to be set aside.

          The lower court has appointed a Commissioner for ascertaining the mesne profits at the instance of the appellants in C.C.C.A.No.26 of 2008 and he submitted the report. The respondents in the said appeal has questioned the validity of the said report filed by the Commissioner. Therefore, it has to be examined whether the report of the learned Commissioner is valid and it is in accordance with the law.

          A perusal of the report of the learned  Commissioner  shows that he has proceeded to the suit schedule property and identified the property with the help of both the counsels of both parties and subsequently he has gone to different business establishments collectively and recorded their evidence.  According to him he examined P.Ws.1 to 6 on behalf of the petitioners and R.Ws.1 to 3 on behalf of the respondents.  According to him even before examining any witnesses, the petitioner No.1 has produced the certified copies of the registered lease deeds and he got marked them as Exs.A.1 to A.7. The  deposition of P.Ws.1 to 7 recorded by him does not disclose  about marking of any of the documents and they only stated about entering into lease in respect of their premises  and quantum of rent paid by them. No documents were produced  on behalf of the respondents.  R.Ws.1 to 3 were examined and they also stated the same facts with regard to the leased out premises and the monthly rents being received by them without producing any documents.  Basing on the said evidence and material placed before him, the learned Commissioner has assessed the mesne profits. 
He adopts the matters calling them as (i)  the statistical method based on documentary and oral evidence,  (ii) Mathematical method based on documentary and oral evidence.  Statistical method only based on oral evidence and Mathematical method based only on documentary evidence and finally as per statistical method based on oral and documentary evidence arrived the mesne profits of Rs.45.32 ps, as per Mathematical Method based on oral and documentary evidence arrived the mesne profits at Rs.51.45 ps, as per the statistical method based on documentary evidence arrived  the mesne profits at Rs.43.83 ps per sq. feet, as per Mathematical Method based on the documentary evidence arrived, the mesne profits of Rs.48.29 ps sq. ft.  The average of Statistical and Mathematical method based on documentary evidence only comes to Rs.46.06  ps per sq. ft.  Therefore, he has fixed the mesne profits for the said suit schedule premises at Rs.46.06 ps per sq. feet.  As rightly pointed out by the learned counsel for the appellant in C.C.C.A.No.79 of 2008, the petitioner/plaintiff ought to have been examined before the commissioner in support of his claim for mesne profits by showing the area leased out to the respondent and the amenities available in the suit schedule premises and compare the facilities and amenities provided in the premises for which he has produced the documents Ex.A.1 to A.7. But, the petitioner was not examined himself nor produced any documentary evidence in that regard and he simply marked Exs.A.1 to A.7 and examined P.Ws.1 to 6.  The Commissioner has prepared a statement showing  the premises covered by Ex.A.1 to A.7 and the distance from the schedule premises and the rent  paid under the said document and arrived the rate for sq. feet. The Commissioner has not considered the amenities that are available in the suit schedule premises and the amentias provided in the premises  for which the documents were produced by the plaintiff under Exs.A.1 to A-7.  
He compared the rents of the premises by comparing with the distance and arrived at the mesne profits. 
The  Commissioner ought to have been verified the facilities available in the said premises and compare the same with the amenities provided in the suit schedule premises and then compared rents paid for the said premises to arrive  at the mesne profits for the suit schedule premises.  More over as already observed above, he has not got marked  any documents through the witnesses examined before him and the witnesses also did not speak any thing about the amenities available in the said premises which leased out by them. 

          The Commissioner in his report under the heading observations has mentioned  that most of the witnesses felt sorry for the plaintiff for receiving such low rent of Rs.36,000/-.  After completion of the examination, while leaving P.W.2 informed them that he got it done another registered lease deed for Rs.65/- per sq. ft which is 100 mts away from A.2 towards suit schedule property.  After completion of the examination of P.W.3 informed them that the existing market value for  sq. ft is Rs.60/- and h has given for cheaper rate as the present rates are sky rocketed.  After completion of the examination of P.W.4 he has requested the counsel for the defendant not to trouble the plaintiff by paying meager rent and requested him to pay the existing market value.  The P.W.7 after completion of the examination while leaving the premises expressed that he is lucky enough as  the present existing market value per sq. ft is on an average of Rs.45/-.          Therefore, the said observations are unwarranted to be recorded by the Commissioner because whenever he wanted to record he ought to have been recorded in the evidence of the witnesses but not out of the record. The learned Commissioner has not followed proper procedure for arriving at the mesne profits. Thus, the said report of the learned Commissioner cannot be taken as basis  for deciding the mesne profits.

          With regard to the quantum of  mesne profits  granted by the lower court, the lower court has granted mesneprofits@ Rs.30/- per sq. feet as the plaintiff has  claimed the same in the plaint. 
The claim made by the plaintiff in the plaint is not a basis for fixing the mesne profits.  
The court has to fix the mesne profits basing on the evidence and material placed before it for ascertaining the same. 
The lower court has observed that the Commissioner has arrived themesne profits @ Rs.46.06 ps per sq. feet. 
The evidence adduced by the petitioners and documents relied upon by them would prove that the property situated in and around the suit schedule property fetch the rents more than Rs.60/- per sq. feet since the petitioners claiming Rs.30/- per sq. yard only in their plaint which was filed in the year 2005 which is not far  back, the court below considered  that the petitioners cannot claim more than what they pleaded in their original plaint.  
He further observed  that the evidence of R.W.1 would show that he is getting Rs.27.50 ps per sq. yards which is situated near by the schedule property.   
Therefore, he accepted the evidence of R.W.1  to show that the property is situated near the suit schedule property would fetch more than Rs.30/- per sq. feet and thereby fixed  the mesne profits for the suit schedule property at Rs.30/- per sq. feet.  
R.W.1 is not the owner of the property and according to him he has leased out the premises bearing No.483, Road No.36, Jubilee Hills to one G. M. Singh and the said property belongs to his sister K. Radha and he leased out the said premises of 2000 sq. yards for rent @ Rs.55,000/- per month.  
But the said R.W.1 has not produced any documents to show about the rent that he has been receiving by him for the said premises. 
Therefore, relying upon the evidence of R.W.1 by the lower court for arriving at the prevailing rent is without reliable evidence.  
Since the Commissioner has not properly enquired into the matter and the lower court has not come to the conclusion with regard to the mesne profits basing on the material placed before it, we hold it is just and proper to set the order of the lower court and remit back for making fresh enquiry with regard to the mesne profits.  Hence, the order of the lower court is not just, legal and valid.

          In the result, both the appeals are allowed and the matter is remitted the matter back to the lower court for fresh disposal in accordance with law we made it clear that both parties are at liberty to adduce evidence on their behalf.  In the circumstances, both the parties  have to bear their own costs.


_____________________
B. PRAKASH RAO,J.



_____________________
P.DURGA PRASAD,J.
Date:28.02.2011.
Gk.

HON’BLE SRI JUSTICE B. PRAKASH RAO

&

HON’BLE SRI JUSTICE P. DURGA PRASAD




































C.C.C.A Nos.26 & 79  of 2008


Date:  28.02.2011


Gk.

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