- (1.) THIS is an appeal against an order of Kay, J. dated December 17, 1963 by which he allowed an exception to the report of the Assistant Master and Referee dated May 22, 1963. The facts are shortly as follows: the appellant, Dalhousie Properties ltd. filed a suit in this court being Suit no. 1536 of 1958 on the 19th September, 1958 (Dalhousie Properties Ltd. v. Jayantilal Ojha and Co.) for recovery of possession of flat Nos. 81 and 82 in stephen House at 5, Dalhousie Square, east, in the City of Calcutta, decree for arrears of rent, mesne profits and other reliefs. The defendant was a monthly tenant under the plaintiff in respect of the suit-premises at a monthly rent of rs. 550 -, according to the English Calendar month. The defendant committed default in payment of rent from august, 1947 onwards and the tenancy Was determined by a notice to quit dated 25th November, 1957 expiring at the end of December, 1957. As the defendant failed and neglected to Vacate the said premises and deliver up possession to the plaintiff, the suit was instituted as stated above. The defendant entered appearance in the suit; and contested it. The suit came up for hearing before G. K. Mitter, J. and the learned Judge passed a decree on January 18, 1960 inter alia directing the defendant firm to deliver up to the plaintiff, quiet, vacant and peaceable possession of the said flats and to pay rs. 2750/- as arrears of rent. The learned Judge directed a reference in. respect of mesne profits in the following terms : - "and it is further ordered and decreed that further hearing of this suit be adjourned and it be referred to the Registrar of this Court with liberty to him to allocate the reference either to the Official Referee or the Assistant Referee of this Court to enquire and report as to what amount is due by the defandant to the plaintiff company with regard to mesne profits of the said premises in the plaint in this suit mentioned,"
(2.) ON 2nd June, 1960 the Registrar allocated the reference to the Assistant Master and Referee to enquire and report as to what amount was due by the defendant to the plaintiff with regard to mesne profits of the suit premises. On 10th March, 1961 the learned Assistant Master and Referee framed the following issues : - "1. What is the area in occupation of the defendant ? 2. What is the rental value per square foot on the basis of which the quantum of mesne profits of the suit premises should be calculated both when the suit was instituted as also when the decree was passed ?
(3.) WHAT amount is due from the defendant to the plaintiff as mesne profits in respect of the space in occupation of the defendant ?" 3. Both the parties adduced evidence before the learned Assistant master and Referee and he, after hearing the parties, by a report dated 22nd may, 1963 found and reported inter alia, as follows: - " (a) The area in occupation of the defendant firm in the premises in the plaint in this suit mentioned was 2298 sq. ft. (b) The mesne profits should be assessed at the rate of the rent which the defendant was paying, i. e. , Rs. 550. 00 np. per month and working out on that basis the rent per square foot would be Rs. 0. 2393 np. approximately. (c) The mesne profits due from the defendant to the plaintiff from 1st January 1958 to 31st May, 1963 in respect of the space in occupation of the defendant was Rs. 23,750,00 np (d) By the said report he also recommended that each party should bear and pay its own costs of the reference". ;