,,
Sandeep V. Marne, J",,
1) Petitioner-Bharat Petroleum Corporation Ltd. has filed this Revision Application challenging judgment and order dated 28 February 2024 passed by,,
the Appellate Bench of the Small Causes Court in Misc. Appeal No. 47 of 2023. The Appellate Bench has not reduced the quantum of mesne profits,,
determined by the Trial Court @ Rs. 2,41,691/- per month, but has reduced the rate of interest from 10% p.a. to 6% p.a. However, the Appellate",,
Bench has modified the direction of the Small Causes Court which had restricted payment of mesne profits till passing order dated 15 October 2022,,
and has directed that the same be paid till delivery of possession of the suit premises. Applicant is thus aggrieved by non-reduction of quantum of,,
mesne profits and in granting relief to Respondents by extending the period of payment from 15 October 2022 till date of delivery of possession though,,
Respondents had not challenged the Trial Court’s Order.,,
2) Plaintiffs are lessees of land admeasuring 650 sq. yards equivalent to 543.48 sq.mtrs together with building, structures, driveway etc. constructed",,
for operation of fuel station located at City Survey No.1900 (Part), Taluka-Byculla, District-Mumbai, which is located in Agripada Area on junction of",,
Lamington Road and Dr. Anandrao Nair Road. Plaintiffs’ predecessor had executed Indenture of Lease dated 3 August 1960 in favour of Burma,,
Shell Oil Storage and Distribution Company of India Limited (Burma Shell) for a period of 20 years commencing from 1 December 1957. The,,
Government of India acquired the entire equity shareholding of Burma Shell on 24 January 1976 and the leasehold rights in respect of the land,,
apparently vested in the Government of India. By Certificate of Incorporation issued on 12 February 1976, the name of the Company was changed to",,
‘Bharat Refineries Ltd.’ which was thereafter changed to ‘Bharat Petroleum Corporation Ltd.’ (BPCL).,,
3) Plaintiff issued notice dated 14 August 2004 to Defendant-BPCL terminating the tenancy and calling upon BPCL to deliver vacant and peaceful,,
possession of the suit premises. Since the notice was not acted upon, Plaintiffs filed T.E. & R. Suit No.112/137 of 2005 in the Court of Small Causes",,
at Mumbai for recovery of possession of the suit premises and for conduct of enquiry into mesne profits for use and occupation of the suit premises,,
from the date of termination of tenancy till handing over possession of the suit premises. Plaintiffs also sought decree in the sum of Rs.90,00,000/-",,
being compensation from 1 December 1997 to 30 March 2005 @ Rs.1,00,000/- per month for unlawful use and occupation of the suit premises by the",,
Defendant. The suit was resisted by Defendant-BPCL by filing written statement. The learned Judge of the Small Causes Court proceeded to dismiss,,
the Suit by decree dated 19 June 2009. Plaintiffs filed Appeal No. 404 of 2009 before the Appellate Bench of the Small Causes Court challenging the,,
decree dated 19 June 2009. The Appellate Bench allowed the Appeal by its decree dated 12 October 2010 and set aside the decree dated 19 June,,
2009 passed by the Small Causes Court. The Appellate Bench decreed the suit with costs and directed the Defendant-BPCL to handover vacant and,,
peaceful possession of the suit premises before 12 January 2011. The Appellate Bench also directed conduct of enquiry into mesne profits as per the,,
provisions of Order 20 Rule 12 (1) (c) of the Code of Civil Procedure, 1908 (the Code).",,
4) Plaintiffs accordingly filed Mesne Profit Application No.182 of 2011 in the Court of Small Causes seeking determination of mesne profits in respect,,
of the suit premises @ Rs.2,41,691/- per month from the date of termination of lease i.e. 14 August 2004 till handing over possession of the suit",,
premises alongwith interest @ of 10.5% p.a. The application was resisted by Defendant-BPCL by filing reply. Both the parties led evidence. Plaintiffs,,
examined Plaintiff No.1 as well as Mr. P. N. Powle, Government Approved Registered Valuer as their witnesses. Plaintiffs relied upon valuation of",,
M/s. P.N. Powle & Associates which valued the mesne profits per year @ Rs.496/- per sq.ft p.a. or Rs.29,02,520/- for the entire suit premises.",,
Defendant-BPCL examined Mr. Ajit Laxman Mane, Territory Coordinator, Mumbai and Mr. Bharat Dhaneshwar Trivedi, Government Approved",,
Valuer who indicated mesne profits of Rs.60,617/- per month in his report.",,
5) After considering the evidence on record, the learned Judge of the Small Causes Court allowed the Mesne Profit Application No. 182 of 2011 by",,
order dated 15 October 2022 and directed the Defendant to pay to the Plaintiffs mesne profits of Rs.2,41,691/- per month for the period from 14",,
August 2004 till passing of the order alongwith interest @ 10 % p.a. till actual realisation.,,
6) Defendant-BPCL filed Misc. Appeal No. 47 of 2023 before the Appellate Bench of the Small Causes Court. The Appellate Bench allowed the,,
Appeal holding that the Small Causes Court was not justified in ignoring the evidence led by the Defendant in the form of its valuer. The Mesne Profit,,
Application was accordingly remanded to be decided afresh by order dated 25 September 2023 passed by the Appellate Bench.,,
7) It appears that the order dated 25 September 2023 passed by the Appellate Bench was challenged by the Plaintiffs before this Court in Writ,,
Petition No. 13148 of 2023. By order dated 30 November 2023, this Court held that the Appellate Court was not justified in remanding the Mesne",,
Profit Application to the Small Causes Court and that the Appellate Bench ought to have decided the case finally in view of evidence appearing on,,
record. Accordingly, Misc. Appeal No. 47 of 2023 filed by Defendant-BPCL was heard afresh by the Appellate Bench and by judgment and order",,
dated 28 February 2024, the appeal is partly allowed by setting aside and modifying the order dated 15 October 2022 passed by the learned Judge of",,
the Small Causes Court. The Appellate Bench did not disturb the quantum of mesne profits @ Rs.2,41,691/- but directed the same to be paid till the",,
date of delivery of possession of the suit premises by Defendant-BPCL. The Appellate Bench however reduced the rate of interest from 10% p.a. to,,
6% p.a. In the above manner, the Appellate Bench granted some relief to Plaintiffs in the Appeal filed by the Defendant by directing payment of",,
mesne profits till the date of handing over of possession of the suit premises, which was restricted by the Small Causes Court only till the date of its",,
order dated 15 October 2022. The Defendant-BPCL has however succeeded partly in the Appeal to the extent of reduction of rate of interest from,,
10% to 6% p.a. Aggrieved by the judgment and order dated 28 February 2024 passed by the Appellate Bench, Defendant-BPCL has filed the present",,
Revision Application.,,
8) Mr. Dani, the learned Senior Advocate appearing on behalf of the Applicant has raised following six objections to the impugned judgment and order",,
passed by the Small Causes Court and the Appellate Bench:,,
(I) That Plaintiff is not the owner of the suit premises, but merely a lessee and therefore the Plaintiffs are not in a position to monetise the suit property by sale thereof",,
and therefore the rate of return on market value of the property could not have been a factor for determining the amount of mesne profits. That in their capacity as,,
lessees, Plaintiffs could, at the highest, seek payment of rental value of the suit premises towards mesne profits.",,
(II) That the Small Causes Court and the Appellate Bench have clearly ignored the factual position that the lease of the Plaintiff has been determined and therefore,,
they are no longer lessees in respect of the suit premises and that they have lost right to recover mesne profits from the Defendant.,,
(III) The decree for recovery of possession has been granted by the Appellate Bench on 12 October 2010, on which date, the possession of the suit premises by the",,
Defendant can be said to be unlawful. That therefore mesne profits could have been directed to be paid only from the date of decree of the Appellate Bench i.e. 12,,
October 2010. That the Small Causes Court as well as the Appellate Bench have erred in directing payment of mesne profits from the date of termination of lease i.e. 14,,
August 2004. He would rely upon provisions of Order 20 Rule 12 of the Code in support of his contention that mesne profits are payable only from the date,,
possession becomes unlawful. That the ultimate decree for eviction is passed on 12 October 2010. That though there is merger of decree of the Small Causes Court,,
into the decree of the Appellate Bench, there can be only one executable decree, which in the present case, is the decree of the Appellate Bench. That decree for",,
possession is the key, and in absence of decree for possession, mesne profits enquiry cannot be conducted. That therefore the decree passed by the Appellate",,
Bench for recovery of possession on 12 October 2010 can only be considered as the relevant date for payment of mesne profits. That therefore direction to pay,,
mesne profits from the date of termination of lease is contrary to the decree passed by the Appellate Bench on 12 October 2010.,,
(IV) That the decree passed by the Appellate Bench on 12 October 2010 was put in execution by the Plaintiffs before filing Mesne Profit Application and the,,
execution has been obstructed by M/s. Sardar Automobiles, which has resulted in Plaintiffs taking out Obstruction Notice in the execution proceedings. The said",,
Obstruction Notice is still pending. That the entity actually occupying the premises viz. M/s. Sardar Automobiles was not made party to the Suit and no decree has,,
been passed against it. That instead of seeking recovery of mesne profits from entity actually occupying the premises, the Small Causes Court and the Appellate",,
Bench have erroneously directed Defendant-BPCL to pay the same.,,
(V) That the Small Causes Court had directed payment of mesne profits only till the date of its order dated 15 October 2022. That the order passed by the Small,,
Causes Court on 15 October 2022 was not challenged by the Plaintiffs by filing Appeal or even by filing cross-objections. That therefore it was impermissible for the,,
Appellate Bench to grant any relief to the Plaintiffs in Appeal filed by the Defendant-BPCL by directing them payment of mesne profits would be till the date of,,
handing over of possession of the suit premises.,,
(VI) That the quantum of mesne profits determined by the Small Causes Court and the Appellate Bench is excessive. That the report of the Defendant’s valuer,,
had determined mesne profits of only Rs.60,617/-per month, which is reasonable considering the various factors, as well as the capacity of the Plaintiffs as mere",,
lessees in respect of the suit premises. That Defendant’s valuer had rightly determined the amount of mesne profits by taking into consideration the market value,,
of the land as per Ready Reckoner. That the evidence of Defendant’s valuer, Mr. Trivedi has been ignored by the Small Causes Court and the Appellate Bench",,
and excessive amount of Rs.2,41,691/- is fixed towards mesne profits. That as per the Notification dated 29 August 2011 issued by the State Government inserting",,
Regulation No.69 in the Development Control Regulations of Greater Mumbai, 1991 change of user is impermissible for redevelopment of lands used inter-alia for fuel",,
stations. That thus commercial exploitation of the land is impermissible and this factor ought to have been taken into consideration while determining the amount of,,
mesne profits. That Plaintiffs’ valuer illegally increased the Ready Reckoner value by 30% every year without any basis and further determined mesne profits by,,
taking into consideration excessively high rate of return of 10.5% in some of the years. That the amount is thus excessive and needs to be reduced substantially.,,
9) Mr. Thorat, the learned counsel appearing for Respondents/Plaintiffs would oppose the Revision Application and support the order passed by the",,
Appellate Bench. Taking me through the definition of the term ‘mesne profits’ under Section 2(12) of the Code, Mr. Thorat would submit that",,
title of the landlord to the suit property is irrelevant for determining liability to pay mesne profits. That Plaintiffs’ lease is for tenure of 999 years,,
and the Defendant cannot raise the issue of title in mesne profits enquiry after it has lost right to possess the suit premises on account of decree of the,,
Appellate Bench dated 12 October 2010. He would submit that the Small Causes Court and the Appellate Bench have rightly directed payment of,,
mesne profits from the date of termination of lease. That Appeal is merely continuation of the suit and therefore date if decree of Appellate Court,,
becomes irrelevant for payment of mesne profits once possession of the suit premises is found to be unlawful. Referring to the Bombay Amendment,,
of Rule 12 of Order 20, Mr. Thorat would submit that while passing a decree for possession, enquiry as to rent for mesne",,
profits has to be either from date prior to filing of suit or from the date of institution of the suit and the same can never be from the date of passing of,,
the decree. He would submit that the Defendant-BPCL is not entitled to protection of Maharashtra Rent Control Act, 1999 and therefore its",,
possession over the suit premises became illegal from the date of termination of lease and not from the date of passing of the decree by the Appellate,,
Bench.,,
10) So far as obstruction presented for execution of the decree is concerned, Mr. Thorat would submit that the obstructionist-M/s. Sardar Automobiles",,
is the agent appointed by Defendant-BPCL. That this position is admitted by Defendant’s witness in the cross-examination. That there is specific,,
admission that the said dealer is licensee of the Defendant-BPCL. That the Defendant continues to profiteer from the suit premises by supplying fuel,,
to its agent/licensee operating from suit premises. That the amounts earned through the said arrangement by Defendant-BPCL are suppressed before,,
the Small Causes Court, which left no option for the Courts below but to accept the Valuer’s report for determining the amount of mesne profit.",,
So far as quantum of mesne profits is concerned, Mr. Thorat would submit that in absence of any sale instances, the Courts below had to reply upon",,
Ready Reckoner value and possible return on market value of the suit premises for determining the quantum of mesne profits. That the report of the,,
Valuer relied upon by the Defendant was clearly faulty as he not only took into consideration lesser area of the plot (468.22 sq.mtrs) against the actual,,
area of 543.48 sq.mtrs, but also considered only 40% value of the open plot area for the purpose of determining its market value. Taking me through",,
the Valuation Report relied upon by the Plaintiffs, Mr. Thorat would submit that the Valuer had considered 2% higher return than the deposit rates of",,
banks only for three years in 2005, 2006 and 2007 whereafter only 1% higher return than the bank rate is considered. He would further submit that the",,
Defendant continues to possess the suit premises and the liability to pay mesne profits continued in the year 2024 as well. However, the Appellate",,
Bench has considered the average mesne profits payable during 2005 to 2011 resulting in payment of mesne profits depending on valuation of the suit,,
property during the years 2005 to 2011, though mesne profits are also payable from 2012 till 2024. That therefore no interference is warranted in the",,
quantum of the mesne profits ordered.,,
11) So far as the Appellate Bench improving the order passed by the Small Causes Court by directing payment of mesne profits till the date of,,
delivery of possession in Appeal filed by the Defendant is concerned, Mr. Thorat would rely upon provisions of Order XLI Rule 33 of the Code under",,
which the Appellate Court has necessary power to grant relief to a party which has not filed Appeal/cross-objections if the Appellate Court comes to,,
the conclusion that the said relief ought to have been granted by the Trial Court. Mr. Thorat would pray for dismissal of the Revision Application.,,
12) Rival contentions of the parties now fall for my consideration.,,
13) As observed above, the Small Causes Court determined the quantum of mesne profits @ Rs.2,41,691/- per month and directed the same to be",,
paid from 14 August 2004 till passing of its order i.e. 15 October 2020. There was an obvious error in the said direction of the Small Causes Court in,,
restricting the payment of mesne profits only upto the date of its order when in fact the same ought to have been directed to be paid till the date of,,
delivery of possession, which is the mandate under Order 20 Rule 12 of the Code. The Appellate Bench has corrected the said error committed by the",,
Small Causes Court and has directed that mesne profits would be paid by the Defendant to the Plaintiffs till delivery of the possession of the suit,,
premises. Mr. Dani has questioned the validity of said improvement made in the order of the Small Causes Court in absence of filing of any,,
Appeal/cross-objections by the Plaintiffs. In my view, this objection sought to be raised by Mr. Dani has no merit in view of the provisions of Order",,
XLI Rule 33 of the Code which reads thus :,,
33. Power of Court of Appeal.- The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass,,
or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only",,
of the decree and may exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or",,
objection, [and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the",,
decrees, although an appeal may not have been filed against such decrees]:",,
Provided that the Appellate Court shall not make any order under section 35-A, in pursuance of any objections on which the Court from whose decree the appeal is",,
preferred has omitted or refused to make such order.,,
14) Thus, under Order XLI Rule 33 of the Code, the Appellate Court is vested with all the necessary powers to pass any decree and make any order",,
which ought to have been passed or made by the Trial Court and such power can be exercised by the Appellate Court notwithstanding the fact that,,
the Respondent in the Appeal has not filed any Appeal/cross-objections. Since there was obvious error in the direction of the Small Causes Court in,,
restricting payment of mesne profits until the date of its order, a vacuum would have been created in respect of the period after 15 October 2022 till",,
the possession of the suit premises are handed over by the Defendants. It is an admitted position that even as of today, the Defendant continues to",,
possess the suit premises and is thus liable to pay mesne profits. In my view, the Appellate Court has thus obviated the need to file fresh",,
application/proceedings for payment of mesne profits after 15 October 2022. No error therefore can be traced in the direction of the Appellate Bench,,
for payment of mesne profits upto the date of delivery of possession of the suit premises.,,
15) The next submission canvassed by Mr. Dani is about Plaintiffs’ lease being terminated by the owner and effect of termination of such lease,,
on Plaintiffs’ entitlement to receive mesne profits from the Defendant as well as its quantum. It appears that the notice for termination of lease is,,
served on the Plaintiffs on 14 August 2004. The inquiry in the present proceedings is limited to determination of amount of mesne profits payable by,,
the Defendant for its unlawful possession of the suit premises. Such inquiry has already been directed by the Appellate Bench by decree dated 12,,
October 2010, which has attained finality. While conducting that inquiry under Order 20 Rule 12(1)(c) of the Code, the Court cannot go behind the",,
Original Provision of Rule 12(1)(b),Bombay Amendment of Rule 12(1)(b),
For the rents which haveÂ
accrued on the property duringÂ
the period prior to the institution of the
suit or directing an inquiry as to such rent.","For the rent or mesne profits whichÂ
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prior  to  the  institution  of Â
the  suit,  or directing an enquiry asÂ
to such rent or mesne profits.",
SR.NO.,YEAR,"VALUE OF
PLOT
1,2005,"Rs.2,22,55,506/-
2,2006,"Rs.2,36,95,728/-
3,2007,"Rs.2,45,97,905/-
4,2008,"Rs.3,03,09,880/-
5,2009,"Rs.3,03,09,880/-
6,2010,"Rs.3,71,03,380/-
7,2011,"Rs.4,65,59,932/-
YEAR,RATE PER SQ.MTS,"RATE OF OPEN
LAND IN RS. X 1.30
TIMES
2005,"Rs.40,950/-","41,080/-
2006,"Rs.43,600/-","43,160/-
2007,"Rs.45,240/-","45,240/-
2008,"Rs.55,770/-","55,640/-
2009,"Rs.55,770/-","55,640/-
2010,"Rs.68,270/-","61,230/-
2011,"Rs.85,670/-","85,670/-
SR.NO.,YEAR,"RATE PER INTEREST PER
ANNUM
1,2005,"7.25% AGAINST BANK RATE-
5.25%
2.,2006,"8.5% AGAINST BANK RATE-
6.5%
3.,2007,"8.5% AGAINST BANK RATE-
6.5%
4.,2008,"9.5% AGAINST BANK RATE-
8.5%
5.,2009,"9.5% AGAINST BANK RATE-
8.5%
6.,2010,"10.5% AGAINST BANK RATE-
9.5%
7.,2011,"10.5% AGAINST BANK RATE-
9.5%
