JAIN SAHAKARI BANK LIMITEDversusASIT DHANKUMAR JAVERI,

Gitalaxmi                                              901-CRA-285-2026.docx



            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION


             CIVIL REVISION APPLICATION NO. 285 OF 2026

JAIN SAHAKARI BANK LIMITED                            ...APPLICANT

                        Versus

ASIT DHANKUMAR JAVERI AND OTHERS                      ...RESPONDENTS

     Mr. Bhushan Deshmukh, Mr. Ankit Tiwari, Mr. Pranav Kokje,
     Mr. Karshil Shah i/b Mr. Mahadev Parab, learned counsel for
     the Applicant.

     None for the Respondents.

                                      CORAM   : ARUN R. PEDNEKER, J.

                                      DATE    : 18th SEPTEMBER, 2026.
Per Court :
1.          Heard Mr. Pranav Kokje along with other learned counsel
appearing for the Applicant.

2.          By the present Civil Revision Application, the Applicant is
challenging the order dated 5th February, 2026, passed by the
Appellate Court dismissing Appeal No. 3 of 2019 and confirming the
decree of eviction, while further directing a separate inquiry into
mesne profits. The Applicant is also challenging the order dated 5 th
October, 2018, passed by the learned Trial Court in R.A.E. Suit No.
41/69 of 2005, whereby the learned Trial Court directed the
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Defendants to hand over the vacant possession of the suit premises.
The Applicant is the original Defendant No. 2 in the said eviction
suit. The eviction suit was instituted by the present Respondent Nos.
1 to 6 against the Applicant and Respondent No. 8.

3.          For the sake of convenience, the parties shall hereinafter be
referred to by the designation assigned to them in the eviction suit.

4.          The facts giving rise to the present Revision Application, in
brief, are that the Plaintiffs are the Trustees of Sheth Hirachand
Gurnanji Dharmashala Trust and are the owners and landlords of the
property known as “Hira Baug”, situated at C. P. Tank, Mumbai -
400004 (hereinafter referred to as the “Suit Property”). In the said
Suit Property, the Defendant No. 1 was the tenant in respect of Shop
No. 10A (hereinafter referred to as the “Suit Premises”) at a monthly
rent of Rs. 140/-. The Plaintiffs instituted R.A.E. Suit No. 41/69 of
2005, inter alia, alleging that the Defendant No. 1 had, without the
consent of the Plaintiffs (Landlord), unlawfully sublet the Suit
Premises to the Defendant No. 2. The Plaintiffs further alleged that
the use and occupation of the Suit Premises by Defendant No. 2
amounted to nuisance and annoyance and constituted a breach of
the terms and conditions of the tenancy.          It is the case of the
Defendants that Defendant No. 1 was not using the Suit Premises
and was in need of funds amounting to Rs. 3,00,000/-. According to
the Defendants, Defendant No. 2, being a bank, required the Suit
Premises and pursuant to the suggestion of Mr. Dhankumar Javeri,
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the Suit Premises were sublet to Defendant No. 2 against the
financial assistance of Rs. 3,00,000/-, which was to be repaid by
adjustment against the rent payable in respect of the Suit Premises.

5.           The learned Trial Court, by its order dated 15th October,
2018, decreed the suit and held that Defendant No. 1 had unlawfully
sublet the Suit Premises to Defendant No. 2. The learned Trial Court
accordingly directed the Defendants to hand over vacant possession
of the Suit Premises.

6.           Being aggrieved by the said order, Defendant No. 2
preferred Appeal No. 3 of 2019 challenging the judgment and decree
passed by the learned Trial Court. During the pendency of the said
Appeal, the Applicant filed cross-objections and, inter alia, raised a
claim in respect of mesne profits.

7.           The Appellate Court, by its order dated 5 th February, 2026,
dismissed Appeal No. 3 of 2019 and confirmed the decree of eviction
passed by the learned Trial Court. The Appellate Court, however,
modified the judgment and decree passed in R.A.E. Suit No. 41/69 of
2005 by additionally directing as follows :-

        “A separate inquiry into mesne profits shall be held from the
        date of the suit till delivery of possession.”

8.           Accordingly, the Appellate Court directed that the issue of
mesne profits be determined by way of a separate inquiry for the
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period commencing from the date of institution of the suit until
delivery of possession of the Suit Premises.

9.             It is the contention of Defendant No. 2/Applicant that the
sub-lease was created with consent of the landlord. However, factual
findings of both the Courts below in this regard is against the
Applicant. The Courts have discussed the evidence in detail and no
error can be traced to the findings on sub-letting. Defendant No. 2
has not been able to establish the consent of Trust/Plaintiff to create
sub-tenancy in favour of Defendant No. 2. Both the Courts have
concurrently held that the premises is sub-let to Defendant No. 2 and
Defendant No. 2 has challenged the order of learned Trial Court
while Defendant No. 1 accepted the order of learned Trial Court.

10.            Defendant No. 2 being aggrieved by such order of inquiry
into mesne profits without the initial pleadings in the suit and
confirming the decree of eviction has preferred the present Revision
Application.

11.             The important issue before this Court is :-

            a. “Whether the Appellate Court could grant mesne profit from
            the date of institution of suit without there being pleadings and
            prayer in the suit for mesne profit till delivery of possession?
            i.e. this Court is called upon to examine the power of the
            Appellate Court under Order XLI, Rule 33 of the Code of Civil
            Procedure, 1908 (“CPC”) to grant mesne profits when the same
            is not pleaded and prayed in the suit.”


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12.             The law with regard to the power of Appellate Court under
Order XLI, Rule 33 of the CPC is discussed in the case of Banarsi &
Ors. v/s. Ram Phal1. The Hon'ble Supreme Court has considered the
scope of the powers of Appellate Court under Order XLI, Rule 33 of
the CPC, in the absence of a cross-appeal or cross-objection.                   In
Paragraph 13, the Hon’ble Supreme Court has held as below :-

            “13. We are, therefore, of the opinion that in the absence of
            cross appeal preferred or cross objection taken by the plaintiff-
            respondent the First Appellate Court did not have jurisdiction to
            modify the decree in the manner in which it has done. Within
            the scope of appeals preferred by the appellants the First
            Appellate Court could have either allowed the appeals and
            dismissed the suit filed by the respondent in its entirety or
            could have deleted the latter part of the decree which granted
            the decree for specific performance conditional upon failure of
            the defendant to deposit the money in terms of the decree or
            could have maintained the decree as it was passed by
            dismissing the appeals. What the First Appellate Court has done
            is not to set aside the decree to the extent to which it was in
            favour of the appellant but also granted an absolute and out
            and out decree for specific performance of agreement to sell
            which is to the prejudice of the appellants and to the advantage
            of the respondent who has neither filed an appeal nor taken any
            cross objection.”

13.             The Hon'ble Supreme Court in the case of Banarsi (supra)
has held that, in the absence of a cross-appeal or cross-objection by
the respondent, the First Appellate Court did not have jurisdiction to

1
    (2003)9 SCC 606.
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modify the decree in a manner which granted an additional or
enhanced relief in favour of the respondent and to the prejudice of
the appellant. The Hon'ble Supreme Court further observed that a
party seeking to challenge a part of the decree adverse to it must
ordinarily avail itself of the remedy of an appeal or cross-objection.

14.         In the case of Sattarsha Dibarsha & Ors. v/s. Ajizabi
Dilbarsha & Ors.,2 in Second Appeal No. 280 of 2016, this Hon”ble
Court held that the Appellate Court, while exercising its powers
under Order XLI Rule 33 of the CPC, may, in appropriate
circumstances, grant relief even in the absence of a specific prayer to
that effect, where such exercise of power is considered necessary in
the interests of justice. The relevant observations of this Hon'ble
Court in the case of Sattarsha Dibarsha (supra) are contained in
Paragraph 14 of the said order, which is reproduced hereinbelow :-

        “14. From aforesaid, it can be seen that the Appellate Court is
        vested with wide powers to enable it to do complete justice
        between the parties so as to pass such decree or order as the
        case may require even in absence of any appeal or cross-appeal.
        Though it was urged on behalf of the appellants that only such
        relief that was prayed for in the plaint could be granted in
        exercise of such powers, I am not in a position to accept said
        submission. The exercise of these wide powers is not trammeled
        by the absence of any prayer being made in the plaint. This
        exercise of power is, however, circumscribed for being exercised
        only in rare cases and when the facts of such case demand its
        exercise. Reference may be made to the judgment of the

2
    MANU/MH/1519/2017.
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        Honourable Supreme Court in Narayanrao (dead) through LRs.
        And others v. Sudarshan [1995 Supp (4) SCC 463]. Therein, a
        suit for partition and separate possession was filed. The trial
        Court decreed the suit. In the appeal filed by the defendant, the
        High Court while dismissing the same granted mesne profits to
        the plaintiffs. It was held that even though there was no prayer
        for grant of mesne profits and no issue in that regard was
        framed by the trial Court, the High Court rightly invoked the
        powers under Order XLI, Rule 33 of the Code for doing
        complete justice between the parties. Thus, the relief of mesne
        profits was granted even in absence of any prayer for the same.”

15.          In the case of Narayanrao (Dead) through his Legal Heirs &
Ors. v. Sudarshan3, the Hon'ble Supreme Court considered a case
where the Trial Court had not adjudicated upon the claim for mesne
profits, as no specific pleadings and prayer for mesne profits and
consequently no issue in that regard had been framed. The Hon'ble
Supreme Court in the facts and circumstances of that case, has held
that the High Court was justified in granting mesne profits. The said
order of Hon’ble Supreme Court applies to the facts of the present
case. The relevant observations of the Hon'ble Supreme Court are
contained in Paragraphs 1 and 2 of the said order. The same are
noted below :-

        “1. The respondent-plaintiff instituted a suit for partition and
        possession of the suit property. The trial court decreed the suit.
        Before the trial court there was no issue regarding the mesne
        profits nor there was any prayer for the grant of mesne profits.
        The trial court, therefore, did not make any order so far as the

3
    1995 Supp (4) Supreme Court Cases 463.
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        entitlement of the respondent-plaintiff for mesne profits was
        concerned. The appellant-defendant went in appeal before the
        High Court. The High Court while dismissing the appeal granted
        mesne profits to the respondent-plaintiff. The High Court
        purported to act under order XLI, Rule 33 Civil Procedure Code
        in granting further decree for mesne profits.

        2. We have heard learned counsel for the appellant. It is not
        necessary for us to go into the scope and interpretation of Order
        XLI, Rule 33 Civil Procedure Code in the facts and circumstances
        of this case. The High Court invoked order XLI, Rule 33 Civil
        Procedure Code for doing complete justice between the parties
        The High Court was of the view that it was not a case where the
        trial court had denied decree for mesne profits but it was a case
        where it omitted to raise an issue in that respect. We see no
        infirmity in the judgment of the High Court in granting mesne
        profits in the facts and circumstances of this case. The appeal is
        dismissed with no order as to costs throughout.”

16.          The order of Hon’ble Supreme Court in the case of
Narayanrao (Dead) through his Legal Heirs (supra), squarely applies
to the facts of the present case. In the case of Narayanrao (Dead)
through his Legal Heirs (supra), although the learned Trial Court had
not granted mesne profits as there was no prayer for the same, the
Appellate Court in exercise of its powers under Order 41, Rule 33 of
the CPC, granted mesne profits from the date of suit. The mesne
profits are granted from the date of suit and not from the period
prior to filing of the suit. This Court finds that the Appellate Court
was justified in granting mesne profits in the present case.                 This
Court therefore finds no error in the impugned judgment and order

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warranting interference of this Court.          Hence, the Civil Revision
Application stands dismissed.

17.          Civil Revision Application No. 285 of 2026 stands disposed
of accordingly.




                                               [ ARUN R. PEDNEKER, J. ]

            GITALAXMI
            KRISHNA
            KOTAWADEKAR
            Digitally signed by
            GITALAXMI KRISHNA
            KOTAWADEKAR
            Date: 2026.09.18
            20:12:36 +0530




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