# Vinay Kumar Jain & Ors. Revisionists v. U.P. Export Corporation Limited

- **Citation:** (2022) 4 ILRA 908
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-13
- **Case number:** Civil Revision No. 201 of 2005
- **Bench:** Mrs. Sangeeta Chandra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vinay-kumar-jain-ors-revisionists-v-u-p-export-corporation-limited-48365
- **Pages:** 11

## Headnote

Mohd.
Arif
Khan,
A.P.
Singh
Gaur,
Mohammad Adil Khan, Mohiuddin Khan,
Shobhit Mohan Shukla

A. Civil Law - Tenancy - Ejectment -
Determination
of
mesne
profits
-
Immovable Property under the Wealth
Tax Act, 1957 - Section 34 AB; Provincial
Small Causes Courts Act - Section 25 - The
tenant continuing in occupation of the tenancy
premises after the termination of tenancy is an
unauthorized and wrongful occupant and a
decree for damages or mesne profits can be
passed for the period of such occupation, till the
date he delivers the vacant possession to the
landlord. (Para 16)

B. If the rent represents a fair value,
mesne profits may be assessed at the
amount of the rent, but if the real value is
higher than the rent, mesne profits must
be assessed at a higher value. (Para 19)

After determination of tenancy, the position of
the tenant is akin to that of a trespasser and he
cannot claim that the measure of damages
awardable to the landlord should be kept tagged
to the rate of rent payable under the provisions
of the Rent Control Order. If the real value of
the property is higher that the rent earned then
the amount of compensation for continued use
and occupation of the property by the tenant
can be assessed at the higher value. (Para 16)

C. Interest on mesne profits - Code of Civil
Procedure: Section 2(12) - As per the definition
of mesne profits, interest forms an integral part of
the mesne profits and once the Court awards the
mesne profits, the interest accruing thereon has to
be allowed in the computation of the mesne profits
itself. Thus, a tenant cannot be permitted to urge
that mesne profits, which in fact ought to have
been paid years ago, should not bear any interest.
(Para 24)

Revision disposed off. (E-4)

Precedent followed:

## Text

908 INDIAN LAW REPORTS ALLAHABAD SERIES
thought that even a technical infringement
of the rules is sufficient to vitiate the
action. Judicial pronouncements on the
subject are legion. We may refer to only
some of the decisions on the subject which
should in our opinion suffice."

45. At this stage, it will be relevant to
notice that after the promulgation of the Control
Order 2016, the matter is governed by the said
control order which also notices the agreement
which is signed between the parties i.e. the
licensee and the State Government which
partakes the nature of a statutory contract and is
nothing but a contract of agency where the
licensee conduct activities on behalf of the
State, distributing food grains and in return is
entitled to a commission and it is clearly a
contract of agency, as known in law.

46. The requirement of entering into an
agreement between licensee and the State is
also provided in the Distribution Order of 2004.
Thus, the position of a licensee remains that of
an agent of the State who is appointed to carry
out the functions as entrusted to him in terms of
the Distribution Order of 2004 and now under
the Control Order of 2016 and is governed by
the said Control Order and the terms of the
agreement. Accordingly, it cannot be said that
the enquiry as required to be held against the
licensee for suspension or cancellation is akin to
a disciplinary enquiry which is against a
government servant. Neither the agreement nor
the Distribution Order of 2004 or the Control
Order of 2016 envisage an elaborate enquiry
nor the same can be claimed by the licensee.

47. Thus, we answer the reference as
under:-

(i) It is held that the parameters
for an enquiry to be conducted against the
licensee for the irregularities committed
by
the
licensee
in
terms
of
the
Distribution of Essential Commodities is
on broad principles of natural justice
where the competent authority shall
provide a show cause notice to the
licensee indicating the violations and
irregularities committed by the licensee
with sufficient particularity to enable him
to respond to the same and after affording
an opportunity of hearing, the decision
can be taken by the competent authority
by a reasoned and a speaking order. The
enquiry envisaged is summary in nature
and does not entail a detailed hearing,
akin to a departmental enquiry;

(ii) It is held that the words "full
fledged enquiry" as used by the Full Bench of
this Court in the decision of Puran Singh
(supra) has to be read in context with paras 4
and 5 of the Government Order of July 2004
and the scheme therein which merely requires
adherence to the principles of natural justice
and does not provide for a detailed enquiry
involving various stages and steps as are
required to be met in disciplinary enquiry
against a government servant.

48. Having answered the question
referred now, the matter be placed before the
learned Single Judge at the earliest to decide
the same in light of the reference so
answered.
----------
(2022)04ILR A908
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.04.2022

BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Civil Revision No. 201 of 2005

Vinay Kumar Jain & Ors. ...Revisionists
Versus
U.P. Export Corporation Limited
 ...Opposite Party
4 All. Vinay Kumar Jain & Ors. Vs. U.P. Export Corporation Limited
909
Counsel for the Revisionists:
P. Agrawal, Akshay Sahay, Amit Kumar
Srivastava,
B.K.
Saxena,
Chittaranjan
Sahay, Divyanshu Sahay, Shradha Narayan

Counsel for the Opposite Party:
Mohd.
Arif
Khan,
A.P.
Singh
Gaur,
Mohammad Adil Khan, Mohiuddin Khan,
Shobhit Mohan Shukla

A. Civil Law - Tenancy - Ejectment -
Determination
of
mesne
profits
-
Immovable Property under the Wealth
Tax Act, 1957 - Section 34 AB; Provincial
Small Causes Courts Act - Section 25 - The
tenant continuing in occupation of the tenancy
premises after the termination of tenancy is an
unauthorized and wrongful occupant and a
decree for damages or mesne profits can be
passed for the period of such occupation, till the
date he delivers the vacant possession to the
landlord. (Para 16)

B. If the rent represents a fair value,
mesne profits may be assessed at the
amount of the rent, but if the real value is
higher than the rent, mesne profits must
be assessed at a higher value. (Para 19)

After determination of tenancy, the position of
the tenant is akin to that of a trespasser and he
cannot claim that the measure of damages
awardable to the landlord should be kept tagged
to the rate of rent payable under the provisions
of the Rent Control Order. If the real value of
the property is higher that the rent earned then
the amount of compensation for continued use
and occupation of the property by the tenant
can be assessed at the higher value. (Para 16)

C. Interest on mesne profits - Code of Civil
Procedure: Section 2(12) - As per the definition
of mesne profits, interest forms an integral part of
the mesne profits and once the Court awards the
mesne profits, the interest accruing thereon has to
be allowed in the computation of the mesne profits
itself. Thus, a tenant cannot be permitted to urge
that mesne profits, which in fact ought to have
been paid years ago, should not bear any interest.
(Para 24)

Revision disposed off. (E-4)

Precedent followed:

1. Vinay Kumar Jain & ors. Vs U.P. Export Corp.
Ltd. through its Managing Director, Civil Appeal
No.5576 of 2008 (Para 5)

2. Atma Ram Properties (P) Vs Federal Motors
(P) Ltd., (2005) 1 SCC 705 (Para 16)

3. Marshall Sons & Co. (I) Ltd. Vs Sahi Oretrans
(P) Ltd., (1999) 2 SCC page 25 (Para 17)

4. Matuk Dhari Singh Vs Ali Naqi, 1887 SCC
Online Allahabad Page 11 (Para 18)

5. Chiranji Lal Vs Kunwar Prasad & anr., AIR
1963 All.249 (Para 19)

6. Anderson Wright & Co. Vs Amar Nath Roy,
2005 (6) SCC 489 (Para 20)

7. Mohd Yamin Khan & Others Vs Sheikh
Maqbool Husain & ors., 1965 SCC online
Allahabad 335 (Para 21)

8. Clifton Securities Ltd. Vs Huntley, 1948 (2) All
E.R.283 (Para 21)

9. Bhagwan Das Vs Mst. Kokabai, AIR 1943
Nagpur 186 (Para 21)

10. National Insurance Co. Ltd Vs Turner
Morrison Ltd., 2016 SCC online Calcutta 4956
(Para 22)

11. M/S Sushi Enterprises Pvt. Ltd. Vs CEAT
Ltd., 2018 SCC online Delhi 12551 (Para 23)

12. Mahant Narayan Dasjee Varu & ors. Vs
Board of Trustees, The Tirumalai Tirupathi
Devasthanam, AIR 1965 SC 1231 (Para 24)

Present revision challenges judgment and
order
dated
28.11.2005,
passed
by
learned
Additional
District
Judge,
Lucknow.

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)
910 INDIAN LAW REPORTS ALLAHABAD SERIES
[Oral]

1. There were two SCC revisions filed
by U.P. Export Corporation Limited and
Vinay Kumar Jain, i.e., the tenants and the
landlord respectively under Section ? 25 of
the Provincial Small Causes Courts Act
against the judgment and order dated
28.11.2005, passed by learned Additional
District Judge, Court No.2, Lucknow
whereby the suit filed by the landlord for
ejectment was decreed and the tenant was
directed to pay Rs.16000/- per month as
damages for use and occupation of the shop
in question till the date of vacation of the
premises.

2. The tenant had preferred revision
no.198/2005 challenging the decree for
ejectment along with the quantification of
damages for use and occupation of the
premises. The landlord had filed civil
revision no.201/2005 only against that part
of the judgment of the trial court whereby it
determined the mesne profits of the
premises at the rate of Rs.5/- per square
feet instead of Rs.50/- per square feet, as
had been prayed for by the landlord.

3. This Court after noticing the facts
before the learned trial court rejected the
revision of the tenant but at the same time
observed in para 17 & 18 of its judgment as
follows :-

"17.
With
regard
to
enhancement of rent, the Court below
has
taken
into
account
various
exemplars filed by the revisionist to
indicate the rate of rent of the adjoining
buildings. In respect of the buildings
leased out to Bank of Baroda as well as
ICICI Bank, the landlord had permitted
to
raise
construction
and
make
alterations in accordance with the
requirements of the Bank. In so far as
the building in question was concerned,
there was no such relaxation by the
landlord to the tenant nor was there any
fixture etc in accordance with the
requirements of the revisionist. The
disputed premises was only in the shape
of a Hall measuring 3300 square feet of
which the Court had fixed Rs.5/- per
square feet taking into account the
exemplars filed by the revisionist. The
conclusion arrived at by the Court below
in respect of the enhancement of rent is
well considered and perfectly justified
and does not deserve to be interfered
with.

18. Looking to the surrounding
facts and circumstances of the case, the
rate of Rs.5/- per square feet in respect
of the premises in question appears to
have been rightly fixed."

4. This Court by its order dated
25.5.2007 rejected both the revisions and
directed the tenant who continued to be in
possession over the shop in question and to
pay the landlord a sum of Rs.16,000/- per
month for use and occupation, by the 10th
of each month and the tenant was also
directed to vacate the premises in question
by 31.12.2007.

5. The landlord being aggrieved
against the determination of the mesne
profits, i.e., rent at the rate of Rs.5/- per
square feet and direction for payment of
only Rs.16,000/- per month as damages for
continued use and occupation of the shop in
question, approached the Supreme Court by
filing a Special Leave Petition which was
converted into Civil Appeal No.5576 of
2008 [Vinay Kumar Jain and Others vs.
U.P. Export Corporation Limited through
its Managing Director]. The Hon?ble
Supreme Court disposed of the Civil
4 All. Vinay Kumar Jain & Ors. Vs. U.P. Export Corporation Limited
911
Appeal by its order dated 08.9.2008 by
making the following observations :-

"In this matter, the dispute
is
regarding mesne profits. The High Court
had awarded mesne profits at the rate of
Rs.5/- per square feet. During the pendency
of the SLP, we directed valuation report to
be filed before us. The appellant has done
so. According to the valuation report, the
rate comes to Rs.29.65 per square feet.

We are of the view that Rs.5/- per
square feet was a very low amount.
However, as far as the correct rate to be
applied,
we
set-aside
the
impugned
judgment of the High Court and remit the
matter to the High Court for fresh
consideration in accordance with law. It
would be open to both the sides to file
respective valuation reports and argue on
that basis before the High Court.

Civil Appeal is disposed of with
no order as to cost."

6. In view of the matter being
remanded before this Court by the Hon?ble
Supreme Court only for determining the
question of mesne profits, an application
has been filed by Vinay Kumar Jain and
Others for placing two documents, i.e., the
judgment of the Hon?ble Supreme Court as
well as the original valuation report dated
14.02.2008 under the signatures of one Shri
Khajan Chandra in respect of the fair rental
value of the property in question along with
the documents lists which was before the
Hon?ble Supreme Court in the Civil
Appeal.

7. The valuation report of Shri Khajan
Chandra
dated
14.02.2008
has
been
perused by me. Shri Khajan Chandra has
shown his qualification as MIE (India) FIV
Registered
Valuer
[Govt.
of
India],
Chartered Engineer, Retired Executive
Engineer UPPWD. Shri Khajan Chandra, in
his introduction has shown himself to be a
recognized
valuer
by
the
Chief
Commissioner of Income Tax, Lucknow
since 1995. His valuation report is based on
the survey of Mahatma Gandhi Marg and
site inspection done by him on 12.02.2008
and on the facts and figures supplied by the
representatives of the landlords.

8. Shri Khajan Chandra has given a
description of the property in question and
as to how Mr. Vinay Kumar Jain and
Others came to be in possession thereof. It
has been mentioned that a plot of land was
purchased in year 1935 on which a double
storied building was constructed some time
in year 1940. It came into the hands of the
landlord on the basis of a family settlement.
The property was bounded in north by the
shop of ?Libas Bombay Dying?, on the
South By the shop of PHOTO Point, on the
East by the Mahatma Gandhi Marg and on
the West by the MAQBARA Road. The
details
of
construction
have
been
mentioned but it has been pointed out that
the Fair Rental value is to be calculated for
the shop on the ground floor only which is
in the shape of a Hall with columns and in
front of the shop there is a 15 feet wide
verandah. The walls are 14? to 18? thick in
lime/ cement mortar, duly plastered with
cement and the flooring is of marble stone.
The roof was constructed of reinforced
brick and it has been observed that the
building is in good sturdy condition. The
valuer Shri Khajan Chandra has thereafter
considered
the
general
principles
of
determination of the rent of a property. It
has been observed that while fixing fair
rent of any property, a fixed percentage
factor is considered over total value of such
property. Total value referred to would
consist of the market value of site, and
value of amenities etc. A return of 6% to
912 INDIAN LAW REPORTS ALLAHABAD SERIES
9% for residential property and 9% to 12%
for commercial property can be considered
as reasonable. He has observed that he
considers a rent of 10% as reasonable in the
case of the particular shop rented out to
U.P. Export Corporation.

9. Thereafter, a detailed consideration
of valuation on the basis of annual rental
value of the property has been made with
regard to the covered area of the shop and
the circle rates fixed by the District
Magistrate, Lucknow for the purpose of
stamp duty with effect from 01.4.2002.
Rates of land were fixed for Hazratganj
Ward for commercial land is Rs.15,100/-
per square meter and such rates had to be
enhanced by 10% on property being
situated on more than 9 meter wide road.
The rate worked out to Rs.16,610/- per
square meter for commercial land. The
District Magistrate, Lucknow in his list had
fixed Rs.100/- per square meter per month
as rent for commercial property. Mr.
Khajan Chandra took into account the
covered area of the shop of 306.57 square
meters and the value of the land at the rate
of Rs.16,610/- per square meter and the
value of the building at the rate of Rs.100/-
per square meter fixed by the District
Magistrate and came to assess the total
value of the property at Rs.1,17,43,164/-
only.

10. For determination of rent of such
property Shri Khajan Chandra has observed
that fair rental value would be 10% of the
value of the property and worked out the
rent on a per month basis @ Rs.97,860/-
which worked out per square feet to
Rs.29.65 paise. Shri Khajan Chandra has
also taken into consideration the rent of
adjoining properties, i.e., shop no.31/37,
Mahatma Gandhi Marg, Lucknow let out to
U.P. Co-operative Bank Limited for an area
of 1280 square feet as fixed by the High
Court in Writ Petition No.62/2004 which
worked out to approximately Rs.29 per
square feet at the circle rate applicable on
01.4.2002.

11. In the case of another adjoining
shop no.31/29 Mahatma Gandhi Marg,
Lucknow let out by Shri Gyan Chand Jain
to U.P. Export Corporation Limited for an
area of 1875 square feet, rent was fixed by
the District Judge in Rent Appeal no. 8 of
2007 which worked out to Rs.28.78 per
square feet or Rs.29 per square feet
approximately.

12. Shri Khajan Chandra has
observed that since for the adjoining
shops, rent determined by the High Court
in Writ Petition No. 62 of 2004 and by the
District Judge, Lucknow in Rent Appeal
No.8 of 2007 worked out to around
Rs.29/- per square feet, the rent as
determined by him at the rate of Rs.29.65
per square feet, seemed to be reasonable to
him.

13. He has, however, observed that
the building was situated at Mahatma
Gandhi Marg in Main Hazratganj Ward
and the open market rate of rent was much
higher, say around Rs.60/- to 80/- per
square feet in year 2002, which on the date
of submission of his valuation report in
year 2008 was over Rs.100/- per square
feet.

14. Shri Khajan Chandra, however,
has not relied upon the market rate and he
has only relied upon fair rent as worked
out by him on the basis of Circle Rate and
the rental value as determined by the
District Magistrate, Lucknow with effect
from 01.4.2002, and reiterated that such
rent should be Rs.29.65 per square feet.
4 All. Vinay Kumar Jain & Ors. Vs. U.P. Export Corporation Limited
913

15. Shri Divyanshu Sahay, learned
counsel appearing for the Revisionistlandlords through virtual mode has relied
upon several judgments of the Hon?ble
Supreme Court and of various High Courts to
say that fair rental value should not be
determined on the basis of circle rate but
should be determined on the basis of market
rate of rent as applicable in the area in
question. He has argued that Mahatma
Gandhi Marg where the shop is situated in
Hazratganj, is the main shopping area of the
City of Lucknow and the shop is a corner
shop. As per current situation, it is bounded
on the East by the showroom of ?Sony
World? and on the West by the Showroom of
?Roopali?. The shop in question no doubt is
situated on the same road as the shops whose
exemplars have been considered by Shri
Khajan Chand, i.e., Shop No.31/37 let out to
U.P. Co-operative Bank Limited and Shop
No.31/29 let out to U.P. Export Corporation
Limited but it has been submitted by Shri
Divyanshu that right across the road the rent
that has been determined in the case of Bank
of Baroda and ICICI Bank is much much
higher and these exemplars were produced
before the learned Trial court by the landlords
to show that they were entitled to at least
Rs.50/- per square feet. The exemplars have
been rejected by the learned Trial court and
by the High Court wrongly by making
observations that the landlords in such cases
have let out the buildings to Banks and had
made alterations that were necessary for the
running of the Banks and had also provided
various of the fixtures and amenities to
facilitate the Banks? functioning, therefore,
such buildings have been rented out on a
higher rent and not comparable to the
disputed premises.

16. Shri Divyanshu Sahay has placed
reliance upon Atma Ram Properties (P) vs.
Federal Motors (P) Limited [(2005) 1 SCC
705] and para 13 of the said judgment
where
the
Hon?ble
Supreme
Court
observed as follows :-

"13. In Shyam Charan v. Sheoji
Bhai [(1997) 4 SCC 393] this Court has
upheld the principle that the tenant
continuing in occupation of the tenancy
premises after the termination of tenancy is
an unauthorized and wrongful occupant
and a decree for damages or mesne profits
can be passed for the period of such
occupation , till the date he delivers the
vacant possession to the landlord. With
advantage and approval, we may refer to a
decision of the Nagpur High Court. In
Bhagwandas Lakhamsi v. Kokabai [AIR
1953 Nag 186] the learned Chief Nagpur
High Court held that the Rent Control
Order, governing the relationship of the
landlord and tenant, has no relevance for
determining the question of what should be
the measure of damages which a successful
landlord should get from the tenant for
being kept out of the possession and
enjoyment
of
the
property.
After
determination of tenancy, the position of
the tenant is akin to that of a trespasser and
he cannot claim that the measure of
damages awardable to the landlord should
be kept tagged to the rate of rent payable
under the provisions of the Rent Control
Order. If the real value of the property is
higher that the rent earned then the amount
of compensation for continued use and
occupation of the property by the tenant
can be assessed at the higher value. We
find ourselves in agreement with the view
taken by the Nagpur High Court."

17. Mr. Sahai has also referred to
Marshall Sons & Co. (I) Limited vs. Sahi
Oretrans (P) Limited [(1999) 2 SCC page
25] and para 4 of the said judgment which
makes certain observations with regard to
914 INDIAN LAW REPORTS ALLAHABAD SERIES
how the landlord is made to suffer because
proceedings are dragged for long time at
the stage of trial and thereafter on technical
ground in execution and the Court has
observed that for protecting the interest of
the judgment-creditor, it is necessary to
pass appropriate orders so that reasonable
mesne profits which may be equivalent to
the market rent is paid by a person who is
holding over the property.

18. Learned counsel has also placed
reliance upon a judgment of this Court in
Matuk Dhari Singh vs. Ali Naqi reported
in 1887 SCC Online Allahabad page 11
and to the observation made by Justice
Mahmood that mesne profits awarded must
be assessed as damages against the present
appellant with reference to his character of
having been in possession under an invalid
sale-deed and thus, being the trespasser
upon the land. The Court observed thus :-
"It seems to me that the proper measures of
the damages is not the rent which was
payable by the occupancy-tenant to the
zamindar, a rent subject to its own peculiar
statutory, limitations but the proper market
value of the land for the purposes of
leasing. That value has been found ----------
------ and this sum, therefore, represents
the loss occasioned by the wrongful act of
the present appellant in getting into
possession of the land under an invalid
sale-deed from the occupancy tenants ------
------."

19.

Learned
counsel
for
the
revisionist-landlord has also placed reliance
upon Chiranji Lal vs. Kunwar Prasad and
Another [AIR 1963 All.249, para 3] where
while assessing mesne profits the court
observed that they should be assessed
according to reasonable market value of the
premises. If the rent represents a fair value,
mesne profits may be assessed at the
amount of the rent, but if the real value is
higher than the rent, mesne profits must be
assessed at a higher value.

20. Learned counsel has also placed
reliance upon the judgments rendered by
the Hon'ble Supreme Court in Anderson
Wright & Co. vs. Amar Nath Roy [2005
(6) SCC 489, para 6] where the Supreme
Court had observed while noting down the
contention of the appellants that they are
not liable to pay anything more than the
standard rent of the premises that such a
contention was misconceived in the light of
the observations made by the Supreme
Court in the case of Atma Ram Properties
Private
Limited
(supra).
The
Court
observed that both the parties had placed on
record material giving Court a fair idea of
rent generally prevalent in the locality
where the suit property was situated.
Taking an overall view of the material
made available by the parties, the Court
fixed mesne profits/ compensation for use
and occupation on the basis of rent of
adjoining properties till final determination
of the same was made by a competent
forum.

21. Learned counsel has also placed
reliance upon another judgment of a coordinate bench of this Court rendered in
Mohd Yamin Khan & Others vs. Sheikh
Maqbool Husain and Others [1965 SCC
online Allahabad 335] where this Court
had observed that the assessment of
compensation for use and occupation
should not be on the basis of controlled rent
but on the basis of fair rent. The question
that as to what was fair rent has to be
decided on the circumstances of each case.
If the controlled rent does not represent the
fair rental value of the accommodation,
mesne profits should be assessed at a
higher value. For such observations this
4 All. Vinay Kumar Jain & Ors. Vs. U.P. Export Corporation Limited
915
Court has placed reliance upon Clifton
Securities Limited vs. Huntley [1948 (2)
All E.R.283] and Bhagwan Das vs. Mst.
Kokabai [AIR 1943 Nagpur 186].

22. Learned counsel for the revisionistlandlord has also placed reliance upon
judgment rendered by the High Court of
Calcutta in National Insurance Company
Ltd vs. Turner Morrison Ltd [2016 SCC
online Calcutta 4956] where in para 9, 12,
19 and 20 the principles for determining
mesne profits of Commercial property have
been enumerated and it has been observed
that "a person who is deprived of a right to
possess a property is not only entitled to
receive possession of the property but also
damages for wrongful possession from the
person who had occupied the property
wrongfully and illegally. Mesne profit is
meant to be a compensation, which is penal
in nature. The object of awarding a decree
for mesne profit is to compensate the
person who has been kept out of possession
and deprived of enjoyment of the property
even though he was entitled to possession
thereof. Since the mesne profit is in the
nature of damages, no invariable rule
governing its award and assessment in
every case can be laid down and "the
Court may mould it according to the justice
of the case." ------------------- There hardly
exists any uniform and standard pattern of
the
assessment
of
mesne
profits.
Comparative assessments of the nature,
location, accessibility to the main road,
facilities, age of the suit premises on the
one hand and similar characteristics in
surrounding area on the other hand, would
be a relevant factor in assessing the mesne
profit. Such determination of the amount of
mesne profits must receive a liberal and
purposive construction and the provision
relating to mesne profit is required to be
construed in a manner that is just and
equitable. While determining mesne profits,
the Court, need not be over-strict in
expecting such proof of the suggested
amount as it would accept for holding
certain fact being established."

23. Learned counsel has also placed
reliance upon a judgment of Delhi High
Court in M/S Sushi Enterprises Private
Limited vs. CEAT Limited reported in
[2018 SCC online Delhi 12551] where it
has
been
observed
that
if
some
documentary evidence is available in terms
of the lease deed of adjoining properties
then mesne profits has to be granted in
terms of such evidence.

24. Shri Divyanshu Sahai has also placed
reliance upon certain judgments of the
Calcutta High Court and the Delhi High
Court on the question of interest on mesne
profits where the Delhi High Court has
placed reliance upon a judgment of the
Hon?ble Supreme Court rendered in
Mahant Narayan Dasjee Varu And Others
vs. Board of Trustees, The Tirumalai
Tirupathi
Devasthanam
[AIR
1965
Supreme Court 1231]. The Hon?ble
Supreme Court had observed in the said
case that as per the definition of mesne
profits given in Section 2(12) of the CPC,
interest forms an integral part of the mesne
profits and once the Court awards the
mesne profits, the interest accruing thereon
has to be allowed in the computation of the
mesne profits itself. Thus, a tenant cannot
be permitted to urge that mesne profits,
which in fact ought to have been paid years
ago, should not bear any interest. Since the
Hon?ble Supreme Court had held that
interest is the integral part of the mesne
profits and, therefore, the same has to be
allowed in the computation of the mesne
profits itself, hence, Shri Divyanshu Sahai
has argued that the revisionists are also
916 INDIAN LAW REPORTS ALLAHABAD SERIES
entitled to interest on the rent as determined
by this Court for the tenant to be liable to
pay
to
the
landlord
for
continued
occupation from the date of the judgment
of the learned trial court till actual
possession was delivered to the landlord,
on 31.01.2008.

25. Shri Shobhit Mohan Shukla appears
for the U.P. Export Corporation Limited,
the respondent-tenant. He has pointed out
that in pursuance of observations made by
the Hon?ble Supreme Court fair market
rent has to be determined by this Court. He
has pointed out from the trial court
judgment the exemplars considered by the
trial court of adjoining properties and he
has also pointed out that the lease deed
submitted as exemplars by the landlord in
respect of the ICICI Bank and Bank of
Baroda had been rightly rejected as the
circumstances as well as the situation of the
said shops in the Mahatma Gandhi Marg
were entirely different. He has argued on
the basis of a report submitted through
application dated 29.01.2014 of Shri K.K.
Agarwal, approved Valuer wherein Shri
K.K. Agarwal who is a Government
approved Valuer under Section 34 AB of
Immovable Property under the Wealth Tax
Act, 1957, and the Income Tax Act since
1993, had also inspected the property in
question and surveyed the surrounding
area. In the said report filed through
affidavit of Shri K.K. Agarwal himself on
January, 2014 reference has been made to
assessment of the property as on 01.4.2008
for market value.

26. A brief description of the property
leased out to U.P. Export Corporation by
the revisionist-landlord has been mentioned
and this Court has carefully perused such
report. It finds that even though the
property
in
question
is
situated
in
Hazratganj ward, Shri K.K. Agarwal has
inexplicably mentioned the Ward as Narhi
in the year 1981, and has taken the Circle
Rate as applicable on 30.3.1981 for
calculation of the value of the land. He has
observed that the market rate of land in
Narhi Ward at Mahatma Gandhi Marg is
Rs.45/-per square feet and the area of the
land being 3300 square feet multiplying it
by 45 he has come to the rate of the land as
Rs.1,48,500/-. By applying Cost Inflation
Index
as
notified
by
the
Central
Government the said cost of land has been
brought to the year 2008 at Rs.8,64,270/-.
For calculation of built up area, Shri K.K.
Agarwal has considered the circle rate of
2006 as determined by the District
Magistrate
Lucknow,
for
type-I
construction at Rs.5500/- per square meter
but the valuation was being done in the
year 2008 by Shri Agarwal. He considered
the age of construction of the building
which was almost 55 years old and has
observed that accounting for the life of the
property has been 80 years only, he applied
depreciation and has proposed depreciation
of 52.5% at Rs.5500/- per square meter as
determined in the year 2006, therefore, the
net
rate
of
construction
has
been
determined as Rs.2612/- per square meter.
At the same time Mr. K.K. Agarwal has
observed that he has inspected the building
which is in good condition and, therefore,
no depreciation was being considered and
the rate of Rs.5500/- per square meter was
followed to calculate the value of the
covered area. Taking the value of the plot
of land at Rs.8,64,270/- and value of the
covered area at Rs.16,86,135/- the total
value determined by Shri Agarwal is
Rs.25,50,000/-. The annual rental value @
7% of 25,50,000/- has been determined as
Rs.1,78,500/- and the monthly rent having
been determined accordingly and taking
into consideration the area of the property
4 All. Vinay Kumar Jain & Ors. Vs. U.P. Export Corporation Limited
917
the per square feet, rent has been
determined at Rs.4.55 per square feet.

27. This valuation report of Shri K.K.
Agarwal has only been mentioned in detail
to show how unreasonable Circle Rates
have been applied by the Valuer of the
respondent and he has fixed the rate as
Rs.4.55 per square feet which is even less
than that which was granted by the trial
court and affirmed by the High Court.

28. It is pertinent to note that the Hon?ble
Supreme Court while deciding the Civil
Appeal in its order dated 08.9.2008 has
observed that Rs. 5/- per square feet was a
very low amount and has, therefore,
remanded the matter to this Court to
determine fair rental value/ mesne profits
afresh in accordance with law.

29. The report of Shri K.K. Agarwal relied
upon by Shri Shobhit Mohan Shukla being
unreasonable, is rejected by this Court.

30. The question now before this Court is
whether the report of the valuer which was
submitted in the Civil Appeal by the
revisionist-landlord should be taken to be a
fairly reasonable report on the basis of
which mesne profits can be determined by
this Court.

31. This Court finds that report submitted
by Shri Khajan Chandra dated 14.02.2008
has considered not only the Circle Rate and
the annual rental value determined by the
District
Magistrate
with
effect
from
01.4.2008
but
has
also
considered
exemplars
of
the
properties
situated
adjoining to the shop in question and has
also taken into account that the shops
whose exemplars he was considering was
also under tenancy under the State
Government bodies. He has come to a
conclusion that Rs.29.65 per square feet per
month was a fair rent of the shop and this
Court finds that observations made in the
said report regarding open market rental
rate being much higher, say Rs.60/- to
Rs.80/- per square feet on Mahatma Gandhi
Road in the year 2002-2008 which is now
up to over Rs.100/- per square feet, is an
observation that can be ignored having not
been made on the basis of any documentary
evidence and as an off hand remark only.

32. With regard to the rental value being
determined as per prevalent market rates
for which Shri Divyanshu Sahai has placed
reliance upon several judgments as cited
hereinabove. This Court finds that there is
no determinable or identifiable criteria on
which this Court can determine market
value of the property of Mahatma Gandhi
Market in Hazratganj area. The Court
cannot make any 'guesstimate' as the Court
is not an expert of such matters. Taking the
report of Shri Khajan Chandra to be fairly
reasonable assessment of rent, this Court is
of the opinion that the rate of Rs.29.65 per
square feet is admissible to the revisionistlandlord.

33. Since the judgment of the trial court is
of 28.11.2005 and directs grant of mesne
profits with effect from 08.7.2002 till the
delivery of vacant and peaceful possession
to the revisionist which was on 31.01.2008,
the revisionist-landlord is also entitled to
interest at the rate of 9% per annum in view
of the observations made by the Hon?ble
Supreme Court in the judgment rendered
by it in Mahant Narayan Dasjee Varu And
Others (supra).

34. It is ordered accordingly, that the
respondent shall pay rent @ Rs.29.65 per
square feet for the property in question
which was around 3300 square feet and
918 INDIAN LAW REPORTS ALLAHABAD SERIES
also interest thereon with effect from July
2002 to January 2008.

35. The revision stands disposed of.
----------
(2022)04ILR A918
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Civil Revision No. 202 of 2013

Aziz Uddin ...Revisionist
Versus
Rajesh Verma ...Respondent

Counsel for the Revisionist:
Sri Om Prakash-I, Sri Archit Mandhyan, Sri
Ayush Khanna, Sri Prateek Dawar, Sri Satish
Mandhyan

Counsel for the Respondents:
Sri Arvind Srivastava, Sri Anil Kumar Pandey

A. Civil Law - Tenancy - Eviction, recovery
of arrears of rent and mesne profits - The
Uttar Pradesh Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972
(U.P. Act No. 13 of 1972) - Section 30(1) -
Provincial Small Cause Courts Act, 1887 -
Section 25.

Indian Evidence Act, 1872 - Section 17 -
Admission made by a party in an earlier
suit,
not
inter
parties,
is
certainly
admissible against it in a subsequent suit
involving a different party u/s 17 of the
Indian Evidence Act, 1872, but the
admission is not conclusive. It is open to
the party, who has made the admission in
the
plaint
of
an
earlier
suit,
to
demonstrate that it was not true. (Para
18)

The plaintiff/revisionist made an admission in
the plaint giving rise to Suit No. 85 of 2004 filed
by him against the Agra Development Authority,
challenging their order of demolition to the
effect that the demised shop was an old
construction, but it cannot be regarded as
conclusive proof of the fact or an estoppel by
pleading against the plaintiff. The Trial Court
has looked into some other evidence also, like
the map attached to the plaintiff's sale deed and
some photographs placed on record, which have
not been believed to hold that the demised shop
is a new construction. (Para 21)

The overall inference that has been drawn to
hold that the demised shop is not a new
construction is primarily based on the plaintiff's
admission made in the plaint of the earlier suit,
which the Trial Court has relied upon. The Trial
Court missed considering the evidence that in
fact, the demolition order passed by the Agra
Development Authority that is on record as
Paper No. 37, relates to the demised shop and
proceeds on the premise that the demised shop
is a new construction. There is nothing on
record to show that the demolition order was
set aside or revoked, holding the demised shop
to be an older construction. Rather, the
demolition proceedings later appear to have
been compounded between the plaintiff and the
Development Authority, which would prima facie
indicate that the demised shop, being a new
construction, was a factual position established
by the Development Authority. This part of the
evidence has not at all been considered by the
Trial Judge while deciding the crucial question
about the age of the demised shop that would
determine whether the Act is applicable to it. If
the Trial Judge had taken into consideration the
demolition order passed in the year 2003, he
might have reached a different conclusion. (Para
22, 23)

The finding of the Trial Court, therefore,
on the issue that the demised shop is an
old construction, an integral part of
Premises No. 1/208, to which the Act is
applicable,
is
vitiated
for
nonconsideration of material evidence. Also,
the finding is manifestly illegal, because it
proceeds on a wrong notion of the law
that an admission made in the plaint of an
earlier suit inter se the plaintiff and the
Development Authority is virtually to be
regarded as conclusive proof of the fact or