BANK OF INDIA THR. ITS AUTHORIZED REPRE. VINODKUMAR KASHINATHRAO TAURversusHARI J. NAIN (SINCE DECEASED) AND ANR

                                              909 WP 9354 OF 2026.ODT




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CIVIL APPELLATE JURISDICTION
                 WRIT PETITION NO. 9354 OF 2026


Bank of India                                            .… Petitioner
           Versus
Dr. Hari J. Nain (Since Deceased) and Anr.           …. Respondents




Mr. Amit Tungare a/w. Ms. Fleur D’Souza i/b. M/s. Asahi Legal,
Advocate for the Petitioner.
Mr. Shanay Shah a/w. Mr. Yashpal Jain and Ms. Jahnavi Vora,
Advocate for the Respondents.


                      CORAM:        ARUN R. PEDNEKER, J.

                      DATED:        5th OCTOBER, 2026.

PC:-

1.        The present Writ Petition challenges the Judgment and

Order dated 4th May, 2026 passed by the learned Appellate Court

in Appeal No. 82 of 2024, whereby Appellate Court dismissed, the

appeal and confirmed the Judgment and Decree dated 7th

November, 2023 passed by the learned Trial Court in T.E. & R. Suit

No. 168/181 of 2024 granting mesne profit.


2.      The brief facts of the Petition are that the Petitioner is a

banking company and was a lessee of a portion of the ground floor



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admeasuring 1,411 sq. ft. and a portion of the first floor

admeasuring 1,422 sq. ft. of the building known as “The Shelter”,

situated at National College Road, Khar (West), Mumbai – 400050

(“Suit Premises”). The said building, including the Suit Premises, is

owned by the Respondents. A Lease Deed was executed between

the Petitioner and the Respondents in respect of the Suit Premises

for a period of 10 years commencing from 1st June, 2003 and

ending on 31st May, 2013.


3.      It is submitted by the Petitioner that, Upon expiry of the

Lease Deed in 2013, the Respondents accepted monthly rent from

the Petitioner, thereby treating the Petitioner as a monthly tenant

in respect of the Suit Premises. Thereafter, the Respondents issued

a notice dated 17th January, 2014 terminating the Petitioner’s

tenancy.


4.      It is undisputed that the Suit was instituted for eviction and

recovery of arrears of rent, mesne profits and interest thereon.

However, during the pendency of the Suit, the Petitioners

surrendered possession of the Suit Premises to the Respondents on

29th February, 2016. Consequently, the relief of eviction and

recovery of possession did not survive and the Suit, to that extent,



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became infructuous. The Suit thereafter remained pending only in

respect of the reliefs seeking recovery of arrears of rent, mesne

profits and interest thereon.


5.      The issue raised before this Court is “whether the learned

Trial Court, without framing an issue and recording any finding as

to the legality of the Petitioner’s occupation of the Suit Premises

after termination or expiry of the Lease, could have passed an

order directing payment of mesne profits?”.


6.      The learned Counsel for the Petitioner submits that having

surrendered the leased premises in the year 2016, the Petitioner

was no longer in occupation of the premises. In order to render a

finding on mesne profits, it was necessary for the Court to

primarily render a finding as to whether the possession of the

Petitioner after the efflux of lease period was illegal. In the absence

of any issue being framed in this regard, there could have been no

finding by the Trial Court on this aspect, and in the absence

thereof, there could have been no direction to pay mesne profits.


7.      The learned counsel for the Petitioner relies upon the

judgment of Supreme Court in the case of Pramod Shroff vs.




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Mohan Singh Chopra1, particularly at paragraph number 28, to

contend that the framing of issues, although not mandatory, if

omitted, causes prejudice to the parties and vitiates the trial. The

learned counsel submits that in the absence of an issue in this

regard, there could be no finding regarding the occupation of the

Petitioner beyond the efflux period of tenancy. The paragraph no.

28 in the case of Pramod Shroff vs. Mohan Singh Chopra (Supra)

for ready reference is noted below:


        “28. Though framing of issues, as mentioned above,
        although, is not mandatory yet, if the ommission to
        frame the same causes prejudice to the parties, then
        the same can vitiate the trial. The test for finding as to
        omission to frame the issues have caused prejudice to
        the parties or not can be laid down on the touchstone
        as to whether parties that go to trial had knowledge
        that (i) a particular question is in issue and (ii) had
        opportunity to lead evidence on that issue.”

8.      The learned counsel for the Petitioner further submits that

the trial Court was required to pass a decree of possession, and in

the absence thereof, there could have been no directions for mesne

profits. For that purpose, he relies upon the order of this Court in

the case of State Bank of India vs. Amum Builders 2 at paragraph

nos. 20 and 21 as noted below:

1       2026 SCC OnLine SC 598
2        2025 SCC OnLine Bom 3383



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        “20. In the context of the controversy at hand, a correct
        reading of Rule 12 of Order XX would imply that
        where a Court passes a decree for possession of
        immovable property, the decree may provide for, firstly,
        the delivery of possession of the property, secondly, for
        the rent or mesne profits which have accrued on the
        property during the period from the institution of the
        Suit or an eqnuiry as to such past rent or mesne profits
        and, thirdly, an enquiry as to future rent or mesne
        profits till the delivery of possession to the decree
        holder or relinquishment of possession by the
        judgment debtor.

        21. A decree for delivery of possession of immovable
        property is, in a sense, a composite decree for
        possession of the property as well as the past and
        future mesne profits from the time the possession of
        the Judgment Debtor becomes wrongful. A direction
        for determination of the mesne profit. In the context of
        the controversy at hand, a correct reading of Rule 12 of
        Order XX would imply that where a Court passes a
        decree for possession of immovable property, the
        decree may provide for, firstly, the delivery of
        possession of the property, secondly, for the rent or
        mesne profits which have accrued on the property
        during the period from the institution of the Suit or an
        eqnuiry as to such past rent or mesne profits and,
        thirdly, an enquiry as to future rent or mesne profits till
        the delivery of possession to the decree holder or
        relinquishment of possession by the judgment debtor.”

9. Per contra, learned counsel appearing for the Respondents

opposes the Petition and submits that the absence of a specific

issue regarding the legality of the Petitioner’s occupation of the suit

premises would not, by itself, preclude the Trial Court from

determining the Petitioner’s liability to pay mesne profits. In




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support of the said contention, reliance is placed upon the

judgment of the Hon’ble Supreme Court in Kali Prasad Agarwalla

(Dead) by LRs. and Others v. M/s. Bharat Coking Coal Limited and

Others3, particularly paragraphs 19 and 20 as noted below:


        “19.It was, however, urged for the appellants that
        there... is no proper pleading or issue for
        determination of the aforesaid question and the
        evidence let in should not be looked into. It is too late
        to raise this contention. The parties went to trial
        knowing fully well what they were required to prove.
        They have adduced evidence of their choice in support
        of the respective claims. That evidence has been
        considered by both courts below. They cannot now
        turn round and say that the evidence should not be
        looked into. This is a well accepted principle.

        20. In Kunju Kesavan v. M. M. Philip², this Court has
        stated (as summarised in the headnote at p. 637):

        The parties went to trial, fully understanding the
        central fact whether the succession as laid down in the
        Ezhava Act applied to Bhagavathi Valli or not.
        therefore, did not lead to a material sufficient to vitiate
        the The absence of an issue, decision. The plea was
        hardly needed in view of the fact that the plaintiff
        stated in his replication that the "suit property was
        obtained as makkathayam property, by Bhagavathi Valli
        under the Ezhava Act". The subject of exemption from
        Part IV of the Ezhava Act, was properly raised in the
        trial court and was rightly considered by the High
        Court.”



3         1989 Supp (1) SCC 628




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10.    Learned counsel for the Respondents further relies upon the

judgment of this Court in Bharat Petroleum Corporation Limited v.

Paramjitsingh Ghai and others4, wherein it was held that, upon

valid termination of the tenancy, the possession of the tenant

becomes unlawful from the date of termination and not merely

from the date on which the decree. Paragraph 21 of the judgment

of this court is noted as under:


        “21.The contention that the possession becomes
        unlawful only on the date of passing of the decree by
        the Appellate Bench (12 October 2010) deserves to be
        rejected summarily. This is not a Rent Act suit and
        Defendant, being not only a Public Sector Undertaking
        but also having share capital in excess of Rs.1 crore, is
        excluded from application of the Maharashtra Rent
        Control Act, 1999 under Section 3(1)(b) thereof.
        Therefore, in the present case, the possession of the
        Defendant in respect of the suit premises would
        become unlawful not from the date of the decree of the
        Appellate Bench but from the date of termination of
        the tenancy. The Appeal is obviously continuation of
        the suit and therefore it would be erroneous to contend
        that mesne profits would be payable from the date of
        decree passed by the Appellate Bench. The Appellate
        Bench has merely directed doing of something which
        ought to have been done by the Small Causes Court
        itself. Therefore, the decree for possession passed by
        the Appellate Bench would date back essentially to the
        date of filing of the suit. One of the issues before the
        Appellate Bench was about the validity of termination
        notice dated 14 August 2004 and the Appellate Bench
        has held the termination of the lease by notice dated

4        MANU/MH/4105/2024




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        14 August 2004 to be valid. Thus possession of the
        Defendant in respect of the suit premises has become
        unlawful from the date of termination of lease which is
        14 August 2004. I therefore do not find any substance
        in the contention raised on behalf of the Applicants
        about liability to pay mesne profits only from the date
        of the decree of the Appellate Bench.”

11. Learned counsel for the Respondents, therefore, submits that

the impugned judgments do not warrant interference in the

supervisory jurisdiction of this Court.


12. Perused the judgment of the Appellate Court. Paragraph Nos.

35, 36 and 37 of the Judgment are noted below :


                “35.     On the contrary, the conduct of the
                parties indicates that after expiry of the lease
                period, the defendant continued in possession
                and the plaintiffs accepted rent, thereby treating
                the defendant as a tenant holding over on a
                month-to-month basis. This position continued
                until the issuance of the termination notice dated
                17.01.2014, which has been duly served and
                acknowledged by the defendant. Upon
                termination of the Tenancy, the continued
                occupation of the defendant, in the absence of
                any subsisting contractual or statutory protection,
                assumes the character of unauthorized
                occupation and wrongful possession within the
                meaning of mesne profits as defined under
                Section 2(12) of the CPC.



                36.      The contention of the defendant that it is
                entitled to protection under the provisions of the



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                Maharashtra Rent Control Act is 36 without
                merit, particularly in view of the admitted status
                of the defendant as a banking company, which is
                not entitled to such protection. Consequently,
                upon termination of the tenancy, the possession
                of the defendant after the expiry of the notice
                period becomes wrongful, thereby entitling the
                plaintiffs to claim mesne profits for such period of
                unauthorized       occupation      and     wrongful
                possession.

                37.      It is not in dispute that the defendant
                remained in possession of the suit premises from
                01.03.2014 to 29.02.2016, during which period
                its branch continued to operate from the said
                premises. The surrender of possession on
                29.02.2016 brings the period of wrongful
                occupation to an end. Therefore, the plaintiffs are
                entitled to mesne profits for the aforesaid period,
                subject to determination of a reasonable and just
                rate based on the evidence available on record.”

From the judgment it appears that the parties had lead evidence on

the aspect of the legality of the Petitioner's occupation of the Suit

Premises after expiry of the Lease Deed and on the quantum of

mesne profits. The Respondents had contended that the Petitioner's

occupation of the Suit Premises after termination or expiry of the

lease was unlawful. Although the possession of the tenanted

premises are surrendered during pendency of the suit and no issue

was formed as regards the legality of possession of the petitioner

after termination of lease, the parties had led evidence on the




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question of the legality of such occupation and the liability to pay

mesne profits. The parties were fully aware of the case put up and

the nature of occupation of the Petitioner after termination of lease

and thus merely because an issue was not framed as to whether

occupation of petitioner became unlawful after determination of

lease,the same would not preclude the Court from rendering a

finding on that aspect. In the instant case the court has rendered

finding that the possession of suit property is illegal after

termination of lease.


13.     In view of the judgment of the Hon'ble Supreme Court in

Kali Prasad Agarwalla (Dead) by LRs. and Others (supra) the issue

stands covered. The parties adduced evidence in support of

respective contentions.


14.     Accordingly, no case is made out for interference with the

impugned judgments in the exercise of the supervisory jurisdiction

of this Court. The Writ Petition is dismissed.




                                             (ARUN R. PEDNEKER, J.)




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