BANK OF BARODAversusM/S. NATWARLAL H. MISTRY AND BROTHERS

                                                     7-WP-10888-2013.docx


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          CIVIL APPELLATE JURISDICTION
                         WRIT PETITION NO. 10888 OF 2013
Swapnil
          Bank Of Baroda                                  …Petitioner
               Vs.
          M/s. Natwarlal H. Mistry and Brothers           …Respondent
                                         WITH
                        INTERIM APPLICATION NO. 4226 OF 2026


                                         WITH
                          WRIT PETITION NO. 10818 OF 2013

          Bank Of Baroda                                  …Petitioner
               Vs.
          M/s. Vanmalidas H. Mistry and Brothers          …Respondent
                                         WITH
                        INTERIM APPLICATION NO. 4227 OF 2026


          Mr. Anant R. Bamne i/b/ M/s. A. R. Bamne & Co for the
          petitioner.
          Mr. Pradeep Wagh h/f. Ms. Vaishnavi Gujrati for respondent
          no.1.

                                   CORAM : GAURI GODSE, J.

                                   DATE :      29th AUGUST 2026

          ORDER :


          1.      This writ petition is filed by the original defendant to

          challenge the orders dated 17 th April 2009, 25th July 2013 and



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3rd September 2013 in Appeal No. 715 of 2008. Order dated

17th April 2009 is not annexed to the writ petition. However,

learned counsel for the applicant submits that it was an

interim order which is already complied with. So far as order

dated 25th July 2013 is concerned, it rejects the petitioner’s

application below Exhibit ‘20’ for direction that the petitioner

would not be liable to pay mesne profits. The said application

is dismissed by the appellate bench of the Small Causes

Court. It is held that the trial court had framed issues and

held that the plaintiff is entitled to mesne profits from the date

of filing of the suit by way of a separate inquiry. However, in

the operative part there was no reference of the said inquiry

to be conducted. It is further held that the said issue would

be decided in the main appeal filed by the petitioner. By the

third order that is impugned, the appeal against the eviction

decree is dismissed.


2.    Learned counsel for the petitioner submits that though

in the operative part there is no direction by the trial court

that there should be an inquiry under Order XX Rule 12 of

the Civil Procedure Code, 1908 (“CPC”), the appeal court

has not clarified that in the decree no such operative



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directions are issued. He, therefore, submits that without any

operative directions, there cannot be an inquiry of mesne

profits.


3.    I have perused the papers. In paragraph 16 of the trial

court’s judgment, the inquiry under Order XX Rule 12 of the

CPC is directed. With reference to the said direction, the

appeal court has observed in paragraph 21 of the impugned

judgment that the trial court has specifically directed the

inquiry under Order XX Rule 12 of the CPC. Hence, in view

of the observations and directions of the trial court, the

appellate court has observed that the findings of point no.3

regarding penal compensation cannot be faulted. The trial

court has declined to grant any penal compensation prayed

by the plaintiff. However, has directed a separate inquiry for

mesne profits. Hence, the appeal court by framing a specific

point for consideration, has refused to interfere with the

direction of the trial court that there should be a separate

inquiry for mesne profits.


4.    Learned counsel for the petitioners submits that since

the petitioner had offered to surrender the possession from

30th September 2011, the petitioner would not be liable to


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make the payment of any mesne profits from 1st October

2011. So far as these contentions are concerned, both the

courts have dealt with the grounds raised on behalf of the

petitioner and has disbelieved that the possession was

handed over as per the offer made by the petitioner. In view

of these findings of facts, I do not find any substance in these

arguments.


5.    In view of the findings recorded by the trial court in

paragraph 16 and the appeal court’s observation in

paragraph 21, I see no reason to exercise the powers under

Article 227 of the Constitution of India to interfere with the

impugned order. The directions for an inquiry under Order XX

Rule 12 of the CPC has not caused any prejudice to the

petitioner.


6.    The writ petitions are devoid of any merits. Hence, the

writ petitions are dismissed.


7.    Pending interim applications, if any, are disposed of as

infructuous.




                                          [GAURI GODSE, J.]


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