M/S. MARTIN & HARRIS PRIVATE LIMITED & ANR.versusRAJENDRA MEHTA & ORS.

38                      [2022]REPORTS
              SUPREME COURT    16 S.C.R. 38               [2022] 16 S.C.R.


A         M/S. MARTIN & HARRIS PRIVATE LIMITED & ANR.
                                       v.
                        RAJENDRA MEHTA & ORS.
                      (Civil Appeal Nos. 4646-47 of 2022)
B                               JULY 06, 2022
          [INDIRA BANERJEE AND J. K. MAHESHWARI, JJ.]
            Rajasthan Rent Control Act, 2001 – ss.20, 32 – Rajasthan
     Premises (Control of Rent and Eviction) Act, 1950 (Old Act) – Suit
     or proceedings initiated under the Old Act, pending on the date of
C
     commencement of the New Act (2001 Act) – Grant of mesne profits –
     s.20 of the New Act, if applicable – Held: s.20 deals with the
     execution of the orders of the Rent Tribunal in the manner so
     prescribed – Sub-sec. (3) makes it clear that if the tenant does not
     vacate premises within three months of the date of issue of certificate
D    for recovery of the possession, in that event he is liable to pay mesne
     profits at the rate of three times the rent in case the premises is let
     out for commercial purposes, as applicable in the facts of the present
     case – Further, sub-sec.(3) of s.32 (Repeal and savings) has been
     given overriding effect by which the applications or suit or other
     proceedings filed under the Old Act pending on the date of
E
     commencement of the New Act before any Court shall be continued
     and disposed of in accordance with the provisions of the Old Act as
     the Old Act had continued in force and the New Act had not been
     enacted – Thus, the suit or proceedings, if any, pending on the date
     of notification issued for applicability of the New Act, such
F    proceedings would continue under the Old Act and New Act has no
     application – Therefore, High Court rightly rejected the contention
     of the appellant that maximum payable mesne profits u/s.20 of the
     New Act can be three times of the rent in case the premises is let out
     for commercial purposes, while dismissing the review petition – It
     rightly held that s.20, by which three times mesne profits to the
G
     standard rent was made permissible for the suit or proceedings
     started under the New Act, has no application in suit or proceedings
     initiated under the Old Act and pending on the date of
     commencement of the New Act – Reasoning given is in consonance
     to the spirit of s.32 of the New Act – Further, the amount of mesne
H
                                       38
    M/S. MARTIN & HARRIS PRIVATE LIMITED & ANR. v.                     39
               RAJENDRA MEHTA & ORS.

profits has also been rightly decided by the High Court – Order of     A
High Court does not warrant any interference.
       Rent Control and Eviction – Decree of eviction – Entitlement
of landlord to mesne profits – Held: After passing of the decree of
eviction the tenancy terminates and from the said date the landlord
is entitled for mesne profits or compensation depriving him from the   B
use of the premises.
      Rent Control and Eviction – Determination of mesne profit –
Basis of – Discussed.
      Dismissing the appeals, the Court
                                                                       C
      HELD: 1.1 The previous proceedings bearing No.61 of
2002 filed under Sections 6 and 7 was under the Old Act, wherein
the standard rent was fixed Rs.45,000/- per month to the suit
property. During those proceedings, the present suit seeking
decree of eviction was filed by Plaintiffs under the provisions of
Old Act in November 2002 prior to commencement of the New              D
Act. Thus, on the date of commencement of the New Act, the
present suit was pending and vide judgment dated 03.06.2016
Trial Court decreed the suit, which was confirmed in appeal by
Lower Appellate Court on 10.01.2017. Challenging the judgment
and decree concurrently passed by the two Courts, Second Appeal        E
No.144/2017 has been filed by the Appellants, which has been
admitted on 14.10.2017 and stay of ejectment passed by the High
Court which was extended quite a few times. Thereafter, on filing
an application under Order XLI Rule 5 read with Section 151 of
CPC asking mesne profits by Plaintiffs, it was allowed vide order
dated 18.05.2018. Against which the Special Leave Petition             F
bearing No.19863/2018 filed by Appellants was dismissed as
withdrawn with liberty to file a review petition after noting the
submissions made before this Court. On perusal of the order
dated 06.08.2018, it is clear that the Appellants raised a plea that
maximum payable mesne profits as per Section 20 of the New             G
Act can be three times of the rent in case the premises let out for
commercial purposes. It was said that the standard rent was fixed
@ Rs.45,000/- per month as a result of which three times would
come to Rs.1,35,000/-, however, the direction of mesne profits
@ Rs.2,50,000/- per month by the High Court is unjust. This
                                                                       H
40            SUPREME COURT REPORTS                    [2022] 16 S.C.R.


A    Court without expressing any opinion with respect to fixing the
     quantum of mesne profits directed to approach the High Court
     by filing the review. On filing the review petition bearing No.95/
     2018, the appellants have taken the said plea and also stated that
     the Court in the order under review wrongly mentioned the let-out
     area as 407 sq. yard including 1200 sq. ft. court yard passage, in
B
     fact, the said area was a common passage for all. Therefore, the
     mesne profit of the said area cannot be determined against
     Appellants. The High Court noted that the case in hand shall be
     governed by the provisions of the Old Act. The High Court
     dismissed the review petition. Section 20 of the New Act deals
C    with the execution of the orders of the Rent Tribunal in the manner
     so prescribed. Sub-section (3) makes it clear that if the tenant
     does not vacate premises within three months of the date of issue
     of certificate for recovery of the possession, in that event he is
     liable to pay mesne profits at the rate of 2 times the rent in case
     premises let out for residential purposes; at the rate of three
D
     times the rent in case of premises let out for commercial purposes
     as applicable in the facts of the present case. On the said pretext,
     it is contended that the direction of mesne profits more than three
     times is contrary to the said provisions. The other side contends
     that the New Act has come into force on 01.04.2003 by way of
E    notification published in the Official Gazette. As per Section 32
     of the New Act, the repeal and savings of the Old Act has been
     specified. Sub-section (3) of Section 32 is relevant, which has
     been given overriding effect to other provisions by which the
     applications or suit or other proceedings filed under the Old Act
     (Repealed Act) pending on the date of commencement of the
F
     New Act before any Court shall be continued and disposed of in
     accordance with the provisions of the Old Act (Repealed Act) as
     the Old Act had continued in force and this Act had not been
     enacted. Thus, it is clear that the suit or proceedings, if any,
     pending on the date of notification issued by the State
G    Government for applicability of the New Act such proceedings
     would continue under the Old Act and New Act has no application.
     Therefore, the High Court has rightly rejected the contention
     while dismissing the review petition and rightly held that Section
     20 of the New Act, by which three times mesne profits to the
     standard rent was made permissible for the suit or proceedings
H
    M/S. MARTIN & HARRIS PRIVATE LIMITED & ANR. v.                     41
               RAJENDRA MEHTA & ORS.

started under the New Act, have no application in suit or              A
proceedings initiated under Old Act and pending on the date of
commencement of New Act. The reasoning given in the order
dated 01.04.2019, while rejecting the review petition by the High
Court, is perfectly in consonance to the spirit of Section 32 of the
New Act. [Paras 6-8][45-C-G; 46-C-G]
                                                                       B
      1.2 Before the High Court, while passing the original order
dated 18.05.2018, it was contended by the Appellants that they
are not in possession of 469.92 sq. meter (5058 sq. ft.). The said
issue has been dealt with on the admitted fact in the earlier
proceeding between the same parties regarding fixation of
standard rent in which the parties came before this Court. In the      C
order Court referring the affidavit of the Appellants filed before
this Court admitted that the total covered area is 2100 sq. ft. and
an open area of 1200 sq. ft. having total area of 407 sq. yards is a
tenanted premises. The affidavit filed before this Court in previous
proceedings if considered by the High Court, now the Appellants        D
are estopped to take different plea disputing the area of tenancy.
Thus, the finding of fact recorded by the High Court do not
warrant any interference. [Para 9][48-H; 49-A-C]
      2. After passing the decree of eviction the tenancy
terminates and from the said date the landlord is entitled for mesne   E
profits or compensation depriving him from the use of the
premises. Looking to the fact that the decree of eviction passed
by Trial Court on 03.03.2016 has been confirmed in appeal;
against which second appeal is pending, however, after stay on
being asked the direction to pay mesne profits or compensation
issued by the High Court is in consonance to the law laid down         F
by this Court, which is just equitable and reasonable. The basis
of determination of the amount of mesne profit depends on the
facts and circumstances of each case considering place where
the property is situated i.e. village or city or metropolitan city,
location, nature of premises i.e. commercial or residential are        G
and the rate of rent precedent on which premises can be let out
are the guiding factor in the facts of individual case. In the case
at hand, the High Court in the impugned order observed that the
tenanted property is located on the main road of New Colony

                                                                       H
42            SUPREME COURT REPORTS                      [2022] 16 S.C.R.


A    near Panch Batti which is a commercial area in the heart of Jaipur
     City. The said finding has been arrived considering the
     voluminous documentary record dispelling the plea taken by the
     Appellants. However, the Court in the facts and circumstances
     found it reasonable to determine Rs.2,50,000/- per month as
     mesne profit. As per the discussion made hereinabove so far as
B
     the area of the tenanted premises and the location of the property
     is concerned, the findings of fact have been recorded by the High
     Court, those findings are based on the material brought on record
     which are neither perverse nor illegal. The amount of mesne profit
     as fixed @ Rs.2,50,000/- is also just and proper looking at the
C    span of time i.e. 10 years from the date of fixing of the standard
     rent and six year from the date of passing of the decree of eviction.
     Therefore, the amount of mesne profit has rightly been decided
     by the High Court while passing the order impugned. The order
     fixing the mesne profit and the order passed on the review
     petition, filed by the Appellants, are just and proper which do not
D
     warrant any interference. [Paras 11-13][49-H; 50-B-G]
           Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. and
           Another (1999) 2 SCC 325 : [1999] 1 SCR 311; Atma
           Ram Properties (P) Ltd. v. Federal Motors (P) Ltd. (2005)
           1 SCC 705 : [2004] 6 Suppl. SCR 843; State of
E          Maharashtra v. Super Max International Pvt. Ltd. and
           Others (2009) 9 SCC 772 : [2009] 13 SCR 801 – relied
           on.
                            Case Law Reference

F    [1999] 1 SCR 311                      relied on          Para 10
     [2004] 6 Suppl. SCR 843               relied on          Para 10
     [2009] 13 SCR 801                     relied on          Para 11
           CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4646-
     4647 of 2022.
G
           From the Judgment and Order dated 18.05.2018 of the High Court
     of Judicature for Rajasthan, Jaipur Bench, Jaipur in S.B. Civil Misc.
     Stay Application No. 750 of 2017 in S.B. Civil Second Appeal No. 144
     of 2017.
H
    M/S. MARTIN & HARRIS PRIVATE LIMITED & ANR. v.                               43
               RAJENDRA MEHTA & ORS.

      H. L. Tiku, Sr. Adv., Ms. Arti Singh, Aakashdeep Singh Roda,               A
Ms. Pooja Singh, Basant Pal Singh, Akshay Singh, Advs. for the
Appellants.
      Ms. Kheyali Singh, D. K. Devesh, Harsh Singh Rawat, Advs. for
the Respondents.
       The Judgment of the Court was delivered by                                B

       J. K. MAHESHWARI, J.
       Leave granted.
       2. Plaintiffs/Respondents being the owners of the suit property
situated at Plot No.1, Block No.D-1, Nagar Nigam No.2844 known as                C
Khinduka Bhawan, New Colony, Jaipur filed a suit bearing No.4/2016
(9/2002) for eviction, possession, recovery of rent and permanent
injunction. The said suit was filed in November 2002 invoking the
Provisions of Section 13 of the Rajasthan Premises (Control of Rent
and Eviction) Act, 1950 (hereinafter referred as ‘Old Act’). The suit            D
was decreed vide judgment dated 03.06.2016 passed by Senior Civil
Judge No.7, Jaipur. On filing the appeal bearing No.11/2016 before
Additional District Judge No.10, Jaipur, it was dismissed on 10.01.2017
confirming the judgment of the Trial Court. The Second Appeal No.144/
2017 was filed challenging both the judgments before the High Court
which was admitted vide order dated 14.10.2017 granting stay on                  E
ejectment. The order of stay was extended time to time. On filing an
application under Order XLI Rule 5 read with Section 151 of the Code
of Civil Procedure (in short ‘CPC’) by the Plaintiffs/Respondents asking
mesne profit due to continuation of stay on eviction decree it was decided
vide order dated 18.05.2018. Whereby the appellants were directed to             F
pay the mesne profit @ Rs.2,50,000/- per month from the date of filing
of the application i.e. 20.12.2017 till disposal of the appeal. The directions
have also been issued to deposit the arrears of mesne profits upto April
2018 by depositing the same in the bank account of the Plaintiffs within
six months, with further direction to pay mesne profits from May 2018
consecutively by 15th date of every succeeding month. Failing to deposit         G
the amount of mesne profit in future for four months consecutively,
Plaintiffs would have right to get execute the decree of eviction. The
Plaintiffs were granted liberty to withdraw the amount subject to
furnishing surety and undertaking to re-deposit the mesne profits so
withdrawn with 9% interest in case they lose in the second appeal. The
                                                                                 H
44            SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A    said order was challenged by filing the Special Leave Petition No.19863/
     2018 before this Court, which was dismissed as withdrawn with liberty
     to the Appellants to file review petition before the High Court. On filing
     the review petition bearing No.95/2018, it was dismissed vide order dated
     01.04.2019 which led to file the present appeals challenging the order
     dated 18.05.2018 as well as the order passed in review dated 01.04.2019
B
     questioning the grant of mesne profit.
            3. The facts unfolded are that the Plaintiffs purchased the property
     through six different registered sale deeds executed on 23.12.1985. By
     virtue of those sale deeds, Plaintiffs became the owner of the tenanted
     premises. Appellants were tenant to the erstwhile owner and after selling
C    the premises they became tenant of Plaintiffs/Respondents by
     attornment. Earlier a suit under Section 6 of the Old Act was filed by the
     Plaintiffs/Respondents against the Appellants bearing No.61 of 2002 for
     determination of the standard rent. During the pendency of the suit an
     application under Section 7 of the Old Act was filed for fixing the
D    provisional rent which was decided vide order dated 09.01.2004 fixing
     provisional rent @ Rs.1,00,000/- per month. The said order was
     challenged, which was confirmed by the High Court vide order dated
     18.04.2007. The Appellants had filed a Special Leave Petition bearing
     No.9775 of 2007 wherein this Court fixed the ad hoc provisional rent @
     Rs.60,000/- per month vide order dated 12.11.2007 with direction to the
E    Trial Court to decide the issue of standard rent expeditiously. The Trial
     Court vide judgment dated 12.08.2009 decreed the said suit and fixed
     the standard rent @ Rs.45,000/- per month. The appeals filed by both
     the parties against the said order are pending before the High Court.
            4. In the present appeals the order of the High Court directing to
F    pay the mesne profits @ Rs.2,50,000/- per month with other ancillary
     directions have been questioned. It is contended by learned counsel for
     the Appellants that as per Section 20 of Rajasthan Rent Control Act,
     2001 (hereinafter referred as ‘New Act’), the maximum amount of mesne
     profit may be payable three times of the standard rent in case the premises
G    is let out for commercial purposes. It is said the mesne profit, as
     determined by the High Court, is excessive without looking to the year
     of construction of premises, location of the property which is on inside
     road of colony and also without taking note of the DLC rate, therefore,
     the order impugned may be set aside and the quantum of mesne profits
     may be revised to three times of the amount of rent making it Rs.1,35,000/
H    - per month.
    M/S. MARTIN & HARRIS PRIVATE LIMITED & ANR. v.                              45
    RAJENDRA MEHTA & ORS. [J. K. MAHESHWARI, J.]

       5. Per contra, learned counsel representing the Plaintiffs has           A
strenuously urged that Section 20 of the New Act do not apply to the suit
or proceedings initiated under the Old Act and were pending on the date
of applicability of the New Act i.e. 01.04.2003, notified in the official
gazette. The argument of the Appellants to fix mesne profits only three
time to the standard rent relying the provisions of the New Act is meritless.
                                                                                B
The High Court said that the suit property is located on the main road of
New Colony, Jaipur situated in the heart of the City being commercial
area rightly fixed mesne profit. It is also urged that the order passed by
the High Court to fix mesne profit is equitable, just and reasonable with
a direction to re-deposit of mesne profits with 9% interest in case of
withdrawal by Plaintiffs or the Plaintiffs loses in the second appeal. In       C
such circumstances, interference in these appeals is not warranted.
       6. After having heard learned counsel appearing on behalf of both
the parties, it is not in dispute that in the previous proceedings bearing
No.61 of 2002 filed under Sections 6 and 7 was under the Old Act,
wherein the standard rent was fixed Rs.45,000/- per month to the suit           D
property. During those proceedings, the present suit seeking decree of
eviction was filed by Plaintiffs under the provisions of Old Act in
November 2002 prior to commencement of the New Act. Thus, on the
date of commencement of the New Act, the present suit was pending
and vide judgment dated 03.06.2016 Trial Court decreed the suit, which
was confirmed in appeal by Lower Appellate Court on 10.01.2017.                 E
Challenging the judgment and decree concurrently passed by the two
Courts, Second Appeal No.144/2017 has been filed by the Appellants,
which has been admitted on 14.10.2017 and stay of ejectment passed by
the High Court which was extended quite a few times. Thereafter, on
filing an application under Order XLI Rule 5 read with Section 151 of           F
CPC asking mesne profits by Plaintiffs, it was allowed vide order dated
18.05.2018. Against which the Special Leave Petition bearing No.19863/
2018 filed by Appellants was dismissed as withdrawn with liberty to file
a review petition after noting the submissions made before this Court.
The said order dated 06.08.2018 is relevant, therefore, for ready reference
reproduced as under:                                                            G

      “Mr. Mukul Rohatgi, learned Senior Counsel appearing on behalf
      of the petitioners, submits that under Section 20 of the Rajasthan
      Rent Control Act, 2001, the maximum that is payable by way of
      mesne profits is three times the rent in the case of premises let
                                                                                H
46             SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A          out for commercial purposes. He submits that the standard rent
           for the premises has been fixed at Rs.45,000/- as a result of which,
           three times would amount to a figure of Rs.1,35,000/-. What has
           been awarded, however, by the High Court is Rs. 2,50,000/- per
           month.
B          We note this submission and permit the learned Senior Counsel to
           withdraw this petition and approach the High Court in review.
           In view of the above, the Special Leave Petition is dismissed as
           withdrawn.
           In the event the review petition is dismissed, liberty is granted to
C          challenge the original order as well.”
           On perusal of the order, it is clear that the Appellants raised a plea
     that maximum payable mesne profits as per Section 20 of the New Act
     can be three times of the rent in case the premises let out for commercial
     purposes. It was said that the standard rent was fixed @ Rs.45,000/-
D    per month as a result of which three times would come to
     Rs.1,35,000/-, however, the direction of mesne profits @ Rs.2,50,000/-
     per month by the High Court is unjust. This Court without expressing
     any opinion with respect to fixing the quantum of mesne profits directed
     to approach the High Court by filing the review.
E           7. On filing the review petition bearing No.95/2018, the appellants
     have taken the said plea and also stated that the Court in the order under
     review wrongly mentioned the let-out area as 407 sq. yard including
     1200 sq. ft. court yard passage, in fact, the said area was a common
     passage for all. Therefore, the mesne profit of the said area cannot be
F    determined against Appellants. The High Court noted that the case in
     hand shall be governed by the provisions of the Old Act. In the light of
     the said undisputed factual position, it was observed that the argument
     regarding applicability of Section 20 of the New Act is misconceived.
     The Court also observed that in a review petition the Court cannot sit as
     an Appellate Court over the order under review until an error apparent
G    on the face of the record has been pointed out. With the said observation,
     the High Court dismissed the review petition.
           8. In the above said facts, the argument advanced by the
     Appellants in the matter of grant of mesne profit to the extent of three
     times to the standard rent in terms of Section 20 of the New Act is
H    required to be addressed first. Section 20 of the New Act deals with the
    M/S. MARTIN & HARRIS PRIVATE LIMITED & ANR. v.                              47
    RAJENDRA MEHTA & ORS. [J. K. MAHESHWARI, J.]

execution of the orders of the Rent Tribunal in the manner so prescribed.       A
Sub-section (3) makes it clear that if the tenant does not vacate premises
within three months of the date of issue of certificate for recovery of the
possession, in that event he is liable to pay mesne profits at the rate of 2
times the rent in case premises let out for residential purposes; at the
rate of three times the rent in case of premises let out for commercial
                                                                                B
purposes as applicable in the facts of the present case. On the said
pretext, it is contended that the direction of mesne profits more than
three times is contrary to the said provisions. The other side contends
that the New Act has come into force on 01.04.2003 by way of notification
published in the Official Gazette. As per Section 32 of the New Act, the
repeal and savings of the Old Act has been specified. For the said purpose      C
Section 32 is relevant, therefore, it is reproduced as thus:
      “32. Repeal and savings. - (1) The Rajasthan Premises (Control
      of Rent and Eviction) Act, 1950 (Act No. 17 of 1950) shall stand
      repealed with effect from the date notified under Sub-sec. (3) of
      Sec. 1 of this Act.                                                       D
      (2) The repeal under Sub-section (1) shall not affect,-
      (a) anything dub done or suffered under the enactment so
          repealed; or
      (b) any right, title, privilege, obligation or liability acquired or      E
          incurred under the enactment so repealed; or
      (c) any fine, penalty or punishment incurred or suffered under
          the provisions of the enactment so repealed.
      (3) Notwithstanding the repeal under Sub-section (1).
                                                                                F
          (a) all applications, suits or other proceedings under the repealed
          Act pending on the date of commencement of this Act before
          any Court shall be continued and disposed of, in accordance
          with the provisions of the repealed Act, as if the repealed Act
          had continued in force and this Act had not been enacted.
          However, the plaintiff within a period of one hundred and eighty      G
          days of coming into force of this Act shall he entitled to withdraw
          any suit or appeal or any other proceeding pending under the
          repealed Act with liberty to file fresh petition in respect of the
          subject matter of such suit or appeal or any other proceeding
          under and in accordance with the provisions of this Act and
                                                                                H
48            SUPREME COURT REPORTS                           [2022] 16 S.C.R.


A              for the purposes of limitation such petition shall, if it is filed
               within a period of two hundred and seventy days from the
               commencement of this Act, be deemed to have been filed on
               the date of filing of the suit which was so withdrawn and in
               case of withdrawal of appeal or other proceeding, on the date
               on which the Suit, out of which such appeal or proceeding
B
               originated, was filed;
               (b) the provision for appeal under the repealed Act shall
               continue in force in respect of applications, suits and proceedings
               disposed of thereunder;
C              (c) all prosecutions instituted under the provisions of the
               repealed Act shall be effective and disposed of in accordance
               with such repealed law;
               (d) any rule or notification made or issued under the repealed
               Act and in force on the date of commencement of this Act
D              shall continue to govern the pending cases.”
            From the aforesaid for the present case only sub-section (3) is
     relevant, which has been given overriding effect to other provisions by
     which the applications or suit or other proceedings filed under the Old
     Act (Repealed Act) pending on the date of commencement of the New
E    Act before any Court shall be continued and disposed of in accordance
     with the provisions of the Old Act (Repealed Act) as the Old Act had
     continued in force and this Act had not been enacted. Thus, it is clear
     that the suit or proceedings, if any, pending on the date of notification
     issued by the State Government for applicability of the New Act such
     proceedings would continue under the Old Act and New Act has no
F    application. Therefore, in our considered view, the High Court has rightly
     rejected the contention while dismissing the review petition and rightly
     held that Section 20 of the New Act, by which three times mesne profits
     to the standard rent was made permissible for the suit or proceedings
     started under the New Act, have no application in suit or proceedings
G    initiated under Old Act and pending on the date of commencement of
     New Act. In our considered opinion the reasoning given in the order
     dated 01.04.2019, while rejecting the review petition by the High Court,
     is perfectly in consonance to the spirit of Section 32 of the New Act.
           9. Before the High Court, while passing the original order dated
     18.05.2018, it was contended by the Appellants that they are not in
H
    M/S. MARTIN & HARRIS PRIVATE LIMITED & ANR. v.                             49
    RAJENDRA MEHTA & ORS. [J. K. MAHESHWARI, J.]

possession of 469.92 sq. meter (5058 sq. ft.). The said issue has been         A
dealt with on the admitted fact in the earlier proceeding between the
same parties regarding fixation of standard rent in which the parties
came before this Court. In the order Court referring the affidavit of the
Appellants filed before this Court admitted that the total covered area is
2100 sq. ft. and an open area of 1200 sq. ft. having total area of 407 sq.
                                                                               B
yards is a tenanted premises. In our view also the affidavit filed before
this Court in previous proceedings if considered by the High Court, now
the Appellants are estopped to take different plea disputing the area of
tenancy. Thus, the finding of fact recorded by the High Court do not
warrant any interference.
        10. Now, reverting on the issue of determination of the amount of      C
mesne profits @ Rs.2,50,000/- per month is concerned, the guidance
may be taken from the judgment of Marshall Sons & Co.(I) Ltd. vs.
Sahi Oretrans (P) Ltd. and Another – (1999) 2 SCC 325, in which
this Court held that once a decree for possession has been passed and
the execution is delayed depriving the decree holder to reap the fruits, it    D
is necessary for the Appellate Court to pass appropriate orders fixing
reasonable mesne profits which may be equivalent to the market rent
required to be paid by a person who is holding over the property. In the
case of Atma Ram Properties (P) Ltd. vs. Federal Motors (P)
Ltd. – (2005) 1 SCC 705, this Court held that Appellate Court does
have jurisdiction to put reasonable terms and conditions as would in its       E
opinion reasonable to compensate the decree holder for loss occasioned
by delay in execution of the decree while granting the stay. The Court
relying upon the provisions of the Delhi Rent Control Act, observed that
on passing the decree for eviction by a competent Court, the tenant is
liable to pay mesne profit or compensation for use and occupation of the       F
premises at the same rate at which the landlord would have able to let
out the premises in present and earn the profit if the tenant would have
vacated the premises. The Court has explained that because of pendency
of the appeal, which may be in continuation of suit, the doctrine of merger
does not have effect of postponing the date of termination of tenancy
merely because the decree of eviction stands merged in the decree passed       G
by the superior forum at a later date.
      11. Thus, after passing the decree of eviction the tenancy
terminates and from the said date the landlord is entitled for mesne profits
or compensation depriving him from the use of the premises. The view
                                                                               H
50              SUPREME COURT REPORTS                          [2022] 16 S.C.R.


A    taken in the case of Atma Ram (supra) has been reaffirmed in the
     case of State of Maharashtra vs. Super Max International Pvt.
     Ltd. and others - (2009) 9 SCC 772 by three Judges Bench of this
     Court. Therefore, looking to the fact that the decree of eviction passed
     by Trial Court on 03.03.2016 has been confirmed in appeal; against which
     second appeal is pending, however, after stay on being asked the direction
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     to pay mesne profits or compensation issued by the High Court is in
     consonance to the law laid down by this Court, which is just equitable
     and reasonable.
            12. The basis of determination of the amount of mesne profit, in
     our view, depends on the facts and circumstances of each case
C    considering place where the property is situated i.e. village or city or
     metropolitan city, location, nature of premises i.e. commercial or residential
     are and the rate of rent precedent on which premises can be let out are
     the guiding factor in the facts of individual case. In the case at hand, the
     High Court in the impugned order observed that the tenanted property is
D    located on the main road of New Colony near Panch Batti which is a
     commercial area in the heart of Jaipur City. The said finding has been
     arrived considering the voluminous documentary record dispelling the
     plea taken by the Appellants. However, the Court in the facts and
     circumstances found it reasonable to determine Rs.2,50,000/- per month
     as mesne profit. As per the discussion made hereinabove so far as the
E    area of the tenanted premises and the location of the property is
     concerned, the findings of fact have been recorded by the High Court, in
     our considered opinion, those findings are based on the material brought
     on record which are neither perverse nor illegal. The amount of mesne
     profit as fixed @ Rs.2,50,000/- is also just and proper looking at the span
F    of time i.e. 10 years from the date of fixing of the standard rent and six
     year from the date of passing of the decree of eviction. Therefore, the
     amount of mesne profit has rightly been decided by the High Court while
     passing the order impugned.
            13. In view of the foregoing discussion, in our considered opinion,
G    the order fixing the mesne profit and the order passed on the review
     petition, filed by the Appellants, are just and proper which do not warrant
     any interference. Therefore, both the appeals are dismissed.

     Divya Pandey                                                 Appeals dismissed.
     (Assisted by : Roopanshi Virang, LCRA)
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