H.R Khanna and Hardyal Hardy JJ.:— This is defendant's appeal from the Judgment and decree of the Court of a Subordinate Judge whereby the plaintiff's suit for recovery of Rs. 3,000/- viz Rs. 700/ on account of arrears of rent for the period 1st March, 1957 to 19th March, 1957 and Rs. 2,300/- on account of damages for the period 20th March, 1957 to 19th April 1957 was decree with costs.

2. The plaintiff is the owner of a building in Sundir Nagar, New Delhi, the conduction of which was completed in or about March 1954. The defendant, Hindustan Steel (Private Limited), took up the said building on 20th March, 1954 on a monthly rent of Rs. 1,150/ exclusive of water and electric charges, on a fixed term lease for 3 years expiring on 19th March, 1957. It appears that the lease was in the name of the defendant but the actual occupation of the first floor was from 10th September, 1955 with the Ministry of Iron and Steel, Government of India, New Delhi while the ground floor was occupied by Messrs Kruppdemag Indiengemeinchaft. On 19th March, 1957, the defendant with a view to absolve itself of its responsibility for payment of rent, and also because of the lease having come to an end by efflux of time, gave a notice to the plaintiff signifying, its intention to quit the property. The actual possession of the property was, however, not surrendered to the plaintiff till 21st August, 1957. Meanwhile, on 24th April, 1957 the plaintiff filed a suit against the defendant for recovery of arrears of rent at the rate of Rs. 1,150/ per mensem for the period 1st March, 1957 to 19th March 1957 and for damage at the rate of Rs. 2,300/- per mensem from 20th March, 1957 to 19th April, 1957. The claim for damages was made on the allegation that the defendant was wilfully and contumaciously holding over for the aforesaid period although the lease had come to an end by efflux of time and the defendant itself had served a notice on the plaintiff signifying its intention to quit on 19th March, 1957. The defendant resisted the plaintiff's claim and pleaded interalia that the actual occupation of the first floor of the premises was to the knowledge of the plaintiff, with the Union in of India through the Ministry of Iron and Steel while the ground floor was in the occupation of Messrs Krupp Demag Indiengemeinchaft since 10th September, 1955; the defendant was therefore not liable for payment of any rent or damages. The plaintiff's right to claim damages at the rate of Rs. 2,30/- per mensem was also denied

3. On the plea lings of the parties, the trial Court framed the following issues:—.

1. Is the defendant liable for the suit costs?

2. Is the defendant liable to pay rent at double the rate for the period from 20th March, 1957 to 19th April, 1957.

3. Relief.

4. The trial Court held that the defendant had contumaciously held over the property in suit despite the fact that it had been notified by the plaintiff that in case of its failure to deliver possession on the determination of the lease the plaintiff would claim damages at double the agreed rate of rent.

5. In supoort of its decision the trial Court relied upon two decisions of the Punjab Chief Court in Pirbhu Dial v. Ram Chati . 5 P.R 1904, and Madan Mohan Lal v. B Barooah and Company . 70 P.R 1918 and two judgments of the Lahore High Court in Rure Khan v. Ghulnm Mnhammd,3 and Mul Raj v. Indar Singh . A.I.R 1928 Lah. 514., and held that the penalty of double rent conld be taken as a fit standard for awarding reasonable damages in case of holding over by a lessee. As regards costs, the trial Court found that although the defendant had delivered possession of the property to the plaintiff during the pendency of the suit, the plaintiff had not only succeeded in her suit with regard to her claim for recovery of rent and damages but had by implication also succeeded in regard to the relief of possession. She was, therefore, awarded full costs of the suit.

6. In appeal, the learned counsel for the appellant has assailed the correctness of the trial Courts decision on both the issues and has urged that its finding about the appellant having wilfully and contumaciously held over is not supported by satisfactory evidence. His main attack, however is against the award of damages at double the rate of rent. He contends that the rule of damages at double the rate of rent was a part of statutory law of England which could not be adopted as a guide by courts in this country. In any case, this principle of English law could not be applied after the coming into force of the Constitution of India and the existence of rent control legislation in Delhi. The correctness of the Punjab Judgments relied upon by the trial Court has also been challenged by the learned counsel.

7. Learned counsel for the respondent has on the other hand urged that apart from the judgments relied upon by the trial Court there are several other decisions of Lahore High Court where the rule of double rent has been followed. Our attention has been particularly drawn to three Bench decisions of the Lahore High Court in Kirpa Ram Brij Lal v. Municipal Committee Delhi . A.I.R 1929 Lah 547., Sunder Singh v. Ram Saran Das . A.I.R 1933 Lahore 61. and H. Ubedul Rehman v. Darbari Lal . A.I.R 1933 Lah. 509.. He has also cited a single Bench Judgment of A.N Bhandari J. (as he then was of the Punjab High Court at Simla in Civil Revision No. 248 of 1948 decided on 3rd September. 1948 and a Division Bench decision of the same High Court (Mehar Chand Mahajan and Teja Singh JJ.) in RFA 190 of 1944 (K.B Naib Baksh Mahammed Hussain v. Ram Kanwar Das . R.F.A 190 of 1944. decided on 8th September 1948.

8. There is no doubt that the defendent's lease being for a fixed term and the property being exempt from the operation of the Delhi Rent Control Act, 1952 the defendent had no right to remain in possession of the demised premises after 19th March 1957, more so when the plaintiff had served it with a notice dated 15th February 1957 (copy Exhibit P 9) calling upon it to vacate the premises and on its failure to quit, to pay double the amount of monthly rent payable, under the lease. The trial Court wastherefore right in holding that the defendent was holding over. But having regard to the fact that since September 1955 the actual occupation of the property was to the knowledge of the plaintiff not with the defendant and the defendant itself was anxious to surrender possession and did in fact make every effort and eventually succeeded in persuading the actual occupants to deliver possession on 21st August 1957, the finding of the trial Court about the holding over from 20th March 1957 to 21st April 1957 being wilful and contumacious may not appear to be-quite correct. But since no serious attempt was made by the learned counsel for the appellant to attack the finding, we do not feelinclined to differ from the conclusion reached by the trial Court in this behalf.

9. As regards the quantum of damages, it is conceded by the learned counsel for the respondent that she had not led any evidence, to prove actual damages for the period during which the defendent held over the demised property.—His contention however, is that it is not necessary to prove actual damages for the period during which the defendent held over the demised property. His contention is that it is not necessary to prove actual damages because the penalty of double rent has all along been regarded as a fit standard for awarding reasonable damages in case of holding over by a lessee. The question for decision in this appeal therefore in whether in a case where the tenant fails to deliver up possession of the premises to the landlord on the expiry of his lease he is liable to pay damages at the rate of double the rent although the plaintiff-landlord may have led no evidence to prove the actual damages suffered by him for the period during which the tenant held over the demised property.

10. The earliest case to which our attention has been invited by the learned counsel for the respondent is Gange Ram. v. Mst. Shib Devi . 33 P.R 1898. which was followed in Pirbhu Dial v. Ram Chand. The latter is a Bench decision of the Punjab Chief Court (Sir William Clark Chief Judge and Robertson J. Robertson J. who spoke for the court observed: “If, however, it be found that a tenant has held over wilfully and contumaciously, the Courts in this country would properly award reasonable damages, and the penalty laid down in England by Statute 4, George II Chapter 28, Section 1, of double the rent, may sometimes be taken as a fitting standard.” It is apparent from the above cited passage that the rule regarding penalty of double rent is based on the statutory provision contained in Section 1, Chapter 28, of Statute 4, George II in England.

11. The next case Madan Mohan Lal v. B. Barooah and Company is also a judgment of the Division Bench of the same Court (Scott Smith and Shadi Lal JJ) and merely followed the earlier decisions of the Court in 33 P. R. 1898 and 5 P. R 1964.

12. Pirbhu Dial's case was followed by a single judge of the Lahore High Court (Campbell J.) in Rura Khan v. Ghulam Muhammad. Dealing with the question of damages on the basis of double the amount of rent, the learned Judge observed:—

“It was ruled, however, in Pirbhu Dial v. Ram Chand (1) that, when a tenant has held over wilfully and contumaciously, the Courts in India would properly award reasonable damages and the penalty laid down in England by Statute, of double the rent, may sometimes be taken as a fitting standard.”

13. The question again came up before the Lahore High Court in Mul Jar. v. Inder Singh. Referring to the cases reported as Gange Ram v. Mst Shiv Devi and Prabhu Dial v. Ram Chand and the Bench consisting of Tek Chand and Bhide JJ Observed: “But these authorities do not lay down any such hard and fast rule. It was remarked in the latter ruling that double the rent may sometimes be taken as a fitting standard rent, but that, in considering what sum should be allowed for use and occupation, or for damages for contumascious holding over, the whole circumstances of the tenancy and the sufficiency in point of time of the notice may properly be taken into consideration.”

14. The question 3gain come up before the same court in Narain Das v. Dharam Das . A.I.R 1932 Lah 275. when the argument based on the rule of double rent was pressed in second Appeal before a Bench consisting of Broadway and Johnstone JJ. The learned Judges observed, “It is a matter of discretion resting with the Court to decide whether a tenant contumaciously holding over should be penalised to the extent of making him pay double the rent or some lesser amount. In the present case the learned Additional District Judge has come to the conclusion that the circumstances are such that time situation would be met by an enhancement of Rs. 20/- p m. I am not prepared to say that this view is wrong and I cannot regard it as against law” It may be mentined here that damages awarded in this case were at the rate of Rs. 150/- per mensem against the agreed rent of Rs. 130/- per mensem.

15. Sunder Singh v. Ram Saran Das is yet another case from the same Court where a Bench consisting of Broadway and Bhide J J, after reffering to the cases of Madan Mohan Lal v. B Barooah & Co. Rure Khan v. Ghulam Muhammed and Mul Raj v. Inder Singh observed as under:—

“The rule according to which double the normal rent is taken as a suitable measure of damages in such cases is taken from English Law. The matter is, no doubt, regulared by Statute in England (see 4 goo. II Ch. 28) but the rule has been held to be taken to be ordinarily a suitable guide in such cases in this Province. The rule is, of course, not inflexible and less or more may be awarded by way of damages according to circumstances: of. Mul Raj v. Inder Singh also Narain Dass v. Dharam Dass if there is evidence to justify such a course”

16. The next case is H. Ubedul Rehman v. Darbari Lal where Bhide J. sitting with Addision J, after referring to the earlier decisions of the Court in Sunder Singh v. Ram Saran Das, and Obedur Rehman v. Darbari Lal . A.I.R 1927 Lah. 1. observed. “It is unnecessary to discuss for the purpose of this appeal cases in which double the normal rent has been allowed when the tenant was found to have held over wilfully and contumaciously. For, in the present instarce the plaintiffs have been given decrees only for the amounts actually realised by them from the subtenants. They have thus not been reallay penalised in any way. In the circumstances I see no ground to interfere”.

17. In Civil Revision No. 248 of 1948 decided by A.N Bhandari J. the leaned Judge merely relied up n the case of Mahan Hohai Lal v. B. Barooah. The case of Khan Bahadur Nabi Baksh Mohammed Hussain v. Ram Kanwar Das decided by Mehar Chand Mahajan and Teja Singh JJ. is a case in which the argument based on the provisions of the Rent Control Order 1944 was advanced by the learned counsel for the appellant in support of his contention that the trial Judge had wrongly relied upon the Punjab cases in holding that for wrongful and contumacious holding over the usual measure of damages was double the amount of rent. It was urged that the rule could not be applied to that case because if the premises were vacated by the defendant and the plaintiffs had to lease them to another tenant they could not have realised more rent then what was provided by the Control Order in force in Delhi. In such circumstances it was argued that it could not be said that the plaintiffs had suffered a loss for a larger amount than the increased rent they could possibly get under the Control Order. The argument was repelled by Mahajan J. (as he then was) who upheld the rule of double rent applied by the trial Judge.

18. Close examination of the above authorities show that there are two distinct lines of reasoning which have weighed with the learned Judges in awarding enhanced rate of rent to a landlord against a tenant contumaciously holding over after notice of ejectment. The one line of reasoning is that the rule of awarding double rent is not inflexible and the Court in awarding the rent at enhanced rate has to take into consideration the circumstances of the case and the damage suffered by the landlord on account of refusal of the tenant to vacate the premises despite notice. An illustration of that is the case where the tenant was realising rent at an enhanced rate from his sub-tenant and the Court took it that the landlord was deprived of the benefit of the rent at that rate because of the contumacious refusal of the tenant to vacate the premises. The Court, accordingly, awarded damages at the enhanced rate at which the tenant was realising the rent from his sub-tenant. No exception can be taken, in our opinion, to this line of reasoning and approach. The other line of reasoning in a few of the cases is that a penalty has to be imposed upon the tenant for his contumacy in continuing in possession of the premises despite notice of ejectment and the measure of this penalty has to be double the rate of rent irrespective of any damage suffered by the landlord. We find ourselves wholly unable to subscribe to this line of reasoning.

19. It is well settled that in the absence of a statutory provision to the contrary, the only liability of a trespasser or a person in wrongful possession of the property is for payment of mesne profits to the lawful owner or the person lawfully entitled to possession “Mesne pro fits” are defined in section 2(12), Civil Procedure Code 1908 as, “…those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such/profits, but shall not include profits due to improvements made by the person in wrongful possession.” As held by the Privy Council in Harry Kempson Gray v. Bhagu Mian . A.I.R 1930 P.C 82., “The test set by the statutory definition of mesne profits is clearly not what ‘the plaintiff has lost by his exclusion,. but what the defendant has or might reasonably have made by his wrongful possession. What the plaintiff in such a case might or would have made can only be relevant as evidence of what the defendant might with reasonable diligence have received:”

20. The problem has Wherefore to be approached from the defendant's end. What has to be seen is what profits, if any the defendant who is in wrongful possession of the property has actually received or might with ordinary diligence have received the-efrom There can be no doubt that in the case of property of which rent is controlled by Rent Contro1 Act the plaintiff cannot complain of having suffered any loss by his exclusion beyond the rent for which the property is let out by him to the tenant holding over, except to the extent of any permissible increase of rent under the Rent Control Act itself; but the only bearing which the evidence as to what the plaintiff in such a case might or would Have made, on the question of mesne profits’, is that it is relevant for the purpose of showing what the defendant might with-reasonable diligence have-received. How and in what way can any element of penalty on account of the conduct of the defendant who is found to have been contumaciously holding over enter into calculation of mesne profits, we are wholly unable to see

21. As already stated, in England the principle of double rent is based on a statute. There the matter is governed by two statutes viz the Landlord and Tenant Act, 1730 Section 1, and Distress for Rent Act, 137, Section 18. The latter Act only applies where the tenant has given a notice binding upon him to quit at the expiration of the term specified in the notice and upon which the landlord might at that time actand bring ejectment In such a case the relationship of landlord and tenant still continues and the action is not in the nature of an action for penalty (see Northcott v. Roche . 1921 37 T.L.R 364.. On the other hand, under section 1 of the landlord and Tenant Act, 1730 if a tenant for any term for a life or years, or any person who gets possession of the permises under or by collusion with such tenant wilfully holds over the premise after the determination of the term, and after demand made and notice in writing given for delivery of possession by the reversioner or his lawfully authorised agent, the person so holding over is liable to pay to the reversioner at the rate of double the yearly value of the premises and against this penalty there is no relief in equity (see Hill and Redman's Law of Landlord and tenant fourteenth Ed P. 616 and cases cited in foot, note under para 486). Whether the payment is treated as rent or as penalty in either case the liability is founded on statute in England. Even if it is held that on account of its antiquity the statutory rule has become a part of the common law of England. There is no warrant for extending it to this country where in the absence of a statute the liability of a person wilfully holding over cannot reasonably be made to exceed that of a trespasser. Having regard to the definition of “mesne profits” in section 2(12) Civil Procedure Code, we also find no escape from the conclusion that there is no other way in which “mesne profits” can be determined by the Court than by evidence being led before it about what the defendant has or might reasonably have made by his wrongful p ussession

22. That learned Judges in some of the Punjab cases were not alto gether oblivious of this, is apparent from the judgment in Ubedul Rehman v. Darbari Lal where Addision and Binds JJ. upheld the decision of the trial Court in awarding a decree for a larger amount than what would have been permissible under the rule of double rent, for the reason ‘that the tenants had actually realised that amount from their sub-tenants while the bench consisting of Broadway and Johnstone JJ. was quite satisfied with the trial Court's decision in Narain Das v. Dharam Das in decreeing damages at the late of Rs. 150/- p. m. only against the agreed rent of Rs. 130/- p m.

23. In Hasanali v. Data Shah . A.I.R 1949 Nag 282., a Division Bench of Nagpur High Court consisting of Vivan Bose and Mudholkar JJ, held that where a tenant continues in possession after the determination of the tenancy, without the consent of the landlord, he is a tenant at sufferance and not one at will and that he is no better than a trespasser. In such a case, all that the landlord can get is compensation for use and occupation and that the rent is a fair measure of compensation It is pertinent to remark that the learned Judges also observed in that case that no question of notice could arise in such a case. The question whether the service of notice calling upon the defendant to pay double the rent, would make any difference to the situation, was neither raise nor dealt with by their Lordships.

24. Mr. K.K Raizada, learned counsel for the appellants, has also brought to our notice a decision of the Supreme Court in Bhagwah Prasad v. Chandramaul . A.I.R 1966 S.C 735.. The precise point which arises in the case before us, was of course neither debated nor decided in that case although the actual decision may be of some help in deciding the case although the actual decision may be of some help is deciding the case in hand. The particular passage in their lordship” Judgment on which Mr. Raizada relies is:—

“In regard to the plaintiff's claim for past rent, we see no reason to interefere with the decree passed by the High Court. But we do not see how the High Court's decree in relation to future mesne profits can be sustained. Once it is held that the plaintiff is entitled to eject the defendant, it follows that from the date of the decree granting the relief of ejectment to the plaintiff, the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff. A decree for ejectment in such a case must be accompanied by a direction for payment of the future mesne profits or damages. Then as to the rate at which future mesne profits can be awarded to the plaintiff, we see no reason to differ from the view taken by the trial Court that the reasonable amount in the-present case would be Rs. 300/- per month.”

25. It may be mentioned that Rs. 300/- p. m. represented agreed rent of the premises and no evidence had been led by the plaintiff about the damages actually suffered by him in that case. We have already pointed out that the plaintiff in the instant case took her stand on the rule that she was entitled to claim damages at the rate of double the amount of agreed rent and that it was not necessary for her to lead any evidence about the damages actually suffered by her. It is also true that the construction of the premises having been completed in March 1934 the premises, under section 39 of the Delhi and Aimer Rent Control Act, 1952, were exempt from the operation of all the provisions of the said Act for a period of seven years from the date of such completion and thus there was no restriction on her right to charge any rent during the relevent period. This in our view, rendered it all the more necessary that there should have been some evidence which the Court could accept in regard to what the defendant had actually received from the under-lesses viz. the Ministry of Iron and steel and the Krupps or might with reasonable diligence have received from them. In the absence of such evidence, it is impossible to hold that the rent at which the premises had been let by the plaintiff-respondent to the appellant did not represent fair compensation for use and occupation of the same for the period during which they were held over by the appellant.

26. For the foregoing reasons, the appeal is accepted and the decree of the Court below is modified to the extent of the amount allowed: by it at a rate more than the agreed rate of rent i.e by Rs. 1150/- p. m. with proportionate costs.

27. Order accordingly.