JUDGMENT S.A. Bobde, J.
1. Heard.
The applicant has sought to revise the order dated 12-8-1999 passed by the 7th Joint Additional District Judge, Nagpur reversing the decree of mesne profits passed in favour of respondent.
2. The petitioner was the landlord of the suit premises. Since he needed the premises for his bona fide occupation he applied to the Rent Controller for permission to terminate the respondent's tenancy. Respondent, however challenged the permission of the Rent Controller, initially before the appellate authority and then by way of writ petition before this Court. This Court dismissed the Writ Petition No. 250/1989 and upheld the order of the authorities under the C. P. and Berar Letting of Houses and Rent Control Order, 1949. The respondent thereafter preferred Letters Patent Appeal before the Division Bench of this Court.
2A. In the meanwhile the respondent had filed the Civil Suit No. 1191/1988 for eviction. This suit was decreed on 26-11-1992.
3. Now coming back to the permission, the matter was in Letters Patent Appeal before the Division Bench of this Court. On 22-4-1994 the Division Bench disposed of the Letters Patent Appeal after recording the petitioner's statement that he agrees to allow the respondent to stay in the premises upto 31-12-1994. The Division Bench accordingly disposed of the Letters Patent Appeal granting time to the respondent to vacate on 31-12-1994, if he files usual undertaking. The Division Bench also observed that the respondent should regularly pay the rent to the petitioner till he vacates the suit premises as per his undertaking.
4. The directions of the Division Bench were that the respondent should regularly pay the rent to the petitioner till he vacates the premises and now that is set up as a plea for not to pay mense profits to the petitioner.
5. The petitioner has applied for mesne profits under Order 20, Rule 12 of Civil Procedure Code after obtaining possession on 31-12-1994. The decree of Mesne Profit in the value of Rs. 377883/- was passed on 26-11-1992. Against the decree respondent preferred an appeal before the District Judge, Nagpur. This appeal was decided by the 7th Additional District Judge, Nagpur, on 12-8-1999. The learned Additional District Judge took a view that the petitioner is not entitled to mesne profits since he agreed before this Court in the Letters Patent Appeal to grant time to the respondent to vacate the premises. It is that order against which the present civil revision application has been filed.
6. It is clear from the impugned order that the only reason for denying mesne profits to the petitioner is the order of the Division Bench of this Court dated 22-4-1994 by which the respondent was allowed to withdraw the appeal and was granted time to vacate the premises with a direction to pay rent till he vacates. Having heard both the learned Counsel for the parties I am of the view that the impugned order is not sustainable. This Court by the order dated 22-4-1994 granted time to respondent to vacate till 31-12-1994. The Division Bench also directed the respondent to pay the rent till he vacates and imposed certain other conditions. Obviously this order was passed on the petitioner's agreeing to giving such time.
7. There does not appear to be any observation in the order or direction that the petitioner shall be precluded from recovering mesne profit. It is settled position in law vide Bhagwati Prasad v. Chandramaul relied on by this Court in 7997 Mh.LJ. page 183 as under :
Once it is held that the plaintiff is entitled to eject the defendant, it follows that from the date of the decree granting the relief of ejectment to the plaintiff, the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff.
Obviously, this is a case where the petitioner has been held entitled to evict the defendant. The only intervention made by this Court was to grant of time to the respondent to vacate the premises. Such granting of time accompanied with a direction to pay the contractual rate of rent till the premises are vacated cannot be construed as defeasement of the landlord's right to recover mesne profits under Order 20, Rule 12.
8. Mr. Gandhi learned Counsel for the respondent relied on the judgment of this Court in Ishwar Dayal Kevalram Agraval v. Madhukar Shankar Prabhane reported in 2005(4) Mh.LJ. 599 : 2005(4) All MR 13, where another learned Single Judge took a view where the tenant's possession is based on agreed terms and conditions under the orders of the Court, it cannot be treated as unauthorised. That case however, was on an entirely different set of facts. The Court had recorded the agreement of the parties which contains several terms. The learned Single Judge therefore, came to the conclusion that the occupation of the tenant being contractual, it must be governed by the terms of contract. In fact the aforesaid reason was stated by the learned Single Judge for distinguishing the observations of the Supreme Court in Anderson Wright and Company v. Amar Nath Roy and Ors. observing as under :
As held by this Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P) Ltd., once a decree for eviction has been passed, in the event of execution of decree for eviction being stayed, the appellants can be put on such reasonable terms, as would in the opinion of the Appellate Court reasonably compensate the decreeholder for loss occasioned by delay in execution of the decree by the grant of stay in the event of the appeal being dismissed. It has also been held that with effect from the date of decree of eviction, the tenant is liable to pay mesne profits or compensation for use and occupation of the premises at the same rate at which the landlord would have been able to let out the premises on being vacated by the tenant. While determining the quantum of the amount so receivable by the landlord, the landlord is not bound by the contractual rate of rent which was prevalent prior to the date of decree.
9. It is clear that the present case is different. A Reading of the order of the Division Bench of this Court dated 22-4-1994 does not indicate that the order was a consent order and which gave approval to a contract between the parties. The only agreement recorded by this Court was that "The learned Counsel for the respondent fairly agrees to give time upto 31-12-1994". The rest of the order contains directions that the respondent would withdraw the appeal from the Small Causes and that he shall not induct any third party and shall continue to pay the rent agreed upon. In other words it amounts to a mere modification of the decree of eviction; only time to vacate the premises was granted to the respondents. I am therefore, of the view that the judgment cited on behalf of the respondent in Ishwar Dayal's case 2005(4) Mh.L.J. 599 : 2005(4) All MR 13 is not applicable to the facts of the present case.
10. It must be noted that the direction to pay the contractual rent till the tenant vacates the premises upon the landlord agreeing to give time, does not relieve the tenant from compensating the landlord on account of mesne profits, even though his tenancy was lawfully terminated. In other words the right to recover mesne profits granted to the landlord upon the lawful determination of a tenancy and the unlawful occupation of the premises by the tenant cannot be extinguished by the mere grant some time to vacate unless of course there is an agreement or a direction to the contrary. In the circumstances, I am of the view that this revision application deserves to be allowed and the same is allowed. Impugned order is liable to be set aside and same is set aside.
At this stage Mr. Gandhi prays for stay of this order. Application rejected.