Suit for Mesne Profits: Claiming for Use and Occupation After the Tenancy Ends

Section 2(12) of the Code of Civil Procedure defines mesne profits as the profits which the person in wrongful possession actually received or might with ordinary diligence have received, together with interest on them. It excludes profits due to improvements made by the person in wrongful possession.

Order XX rule 12 lets a court, in a suit for possession, pass a decree for possession and for mesne profits up to the date of the suit, and direct an inquiry into mesne profits from the suit until delivery of possession, the decree-holder giving up possession, or three years from the decree, whichever is earliest. That is why a well-drafted plaint asks for both past and future mesne profits.

• Past mesne profits: from the end of the tenancy or licence to the date of filing, claimed as a sum with court fee paid on it.
• Future mesne profits: from filing until possession is handed over, determined by an inquiry and paid for when the amount is fixed.
• Interest: part of the definition itself, at a rate the court finds just.

Mesne profits are a question of evidence. The court will not simply accept a figure in the plaint; it needs proof of what comparable premises fetch in the same locality at the relevant time. In North-West Delhi the useful evidence is usually:

• Registered lease deeds and rent agreements for comparable premises in the same market or block, obtained as certified copies from the Sub-Registrar's office.
• Rent agreements the owner has signed for other parts of the same building, and the rent the occupant himself was paying with its history of increases.
• Evidence of a property dealer who has handled lettings in the area, tested in cross-examination.
• A report of a Local Commissioner appointed by the court to inspect the premises and record their size, use and condition.
• Bank statements and tax returns showing rent actually received for nearby units.

Commercial premises on a main road, a shop in a market and a residential floor in a sector are different markets. The comparable premises must be close in location, size and use, or the evidence will carry little weight. Where the occupant has sublet the premises, what he actually receives is direct evidence of the profit he is making.

Article 51 of the Limitation Act gives three years from the date the profits are received, so each month's claim becomes time-barred three years after that month. A long delay in filing therefore loses the oldest months.

The suit is filed in the civil court where the property is situated. For property in the North or North-West district, that means the civil courts at the Rohini Court Complex for suits up to Rs 2 crore, and the Delhi High Court above that. Against a former tenant, court fee for possession is based on the rent for the year before the suit, and court fee on past mesne profits is paid on the amount claimed. Where the premises were let for trade and the claim is substantial, the suit may be a commercial dispute; see commercial litigation.