1. The point for consideration in this revision i.e. whether a relief under Order 20, Rule 12, Civil P. C., can be granted after the suit has been finally disposed of in appeal, without providing for that relief in the decree, arises under the following circumstances :
2. O. S. No. 5/55 was filed in the Court of the Principal District Munsif, Gudivada for possession of the plaint schedule properties and for past profits and a decree was passed therein for possession and for profits from 1952 to 1954 at the rate of 18 bags of paddy per year. The appeal preferred therein A. S. No. 5/56 in the Sub-Court, Gudivada was allowed and the suit was dismissed. In the Second Appeal in the High Court S. A. No. 701/1959 the decree and Judgment of the Subordinate Judge's Court were set aside and the appeal was remanded for fresh disposal after giving findings on the points whether the plaintiff had title to the suit property and was in possession of the same within 12 years prior to the suit. After remand, the appeal came to be decree and judgment of the lower court. Second Appeal No. 415/66 was preferred and was pending in the High Court. During the pendency of the appeal, the petition I. A. No. 17/66 was filed in the court of the District Munsif under Order 20 , Rule 12 , Civil P. C. claiming profits during the pendency of the proceedings , i.e., from 1955 to 1964 at the rate of 18 bags of paddy per year. The enquiry into this petition was stayed by the High Court. The Second Appeal No. 415/66 came to be dismissed on 14-7-1970 . There after , I. A. No. 17/66 filed in the Court of the Principal District Munsif , Gudivada , came to be taken up for enquiry . Among the other contentions raised, one was that the application is no longer maintainable. The Court rejected this contention and appointed a Commissioner to enquire into the quantum of mesne profits from the schedule land for each year from 1955 upto the date of delivery of the property to the petitioner. Hence this petition.
3. In the suit filed , there was only a prayer for past mesne profits and not for future profits. This no reason for contending that as there was no such prayer for future profits , a petition under Order 20, Rule 12 , Civil P. C. cannot lie for the future profits that had accrued during the pendency of the suit. In : AIR1951Mad938 (FB) a Full Bench of the Madras High court came to consider this question and has stated as follows :--
'It is necessary at the outset to distinguish between three different types of cases fits might arise. (1) Suits for ejectment or recovery of possession of immovable property from a person in possession without title, together with a claim for past or past and future mesne profits ; (2) suits for partition by one or more tenants-in-common against others with a claim for account of past or past and future profits ; (3) Suits for partition by a member of a joint Hindu Family with a claim for an account from the manager. In the first case, the possession of the defendant not being lawful, the plaintiff is entitled to recover 'mesne profits' as defined in Section 2, clause (12) of the Civil Procedure Code, such profits being really in the nature of damages. In the second case the possession and receipt of profits by the defendant not being wrongful, the plaintiff's remedy is to have an account of such profits making all just allowances in favour of the collecting tenant-in-common. In the third case, the plaintiff must take the joint family property as it exists at the date of the demand for petition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profits, except where the manager has been guilty of fraudulent conduct of misappropriation. The plaintiff would, however, be in the position of a tenant-in-common from the date of severance in status and his rights would have to be worked out on that basis.'
It was further pointed out that Order 20, Rule 12, Civil P. C. deals with the first class of suits above referred to, while Order 20, Rule 18 deals with the second and third categories, that there is a materiel difference between a claim for past and a claim for future mesne profits, as while the past profits can be ascertained on approximate claim made, future profits cannot, as it is not possible for the plaintiff to predicate how long the litigation is going to last or give even an approximate statement of the amount of mesne profits that might become payable at the end, and the cause of action for future mesne profits is the plaintiff's being kept out of possession during the suit and arises subsequent to the suit, that therefore Order 20, Rule 12, Civil P. C. makes an exception to the general rule that a plaintiff can only sue on such cause of action as has arisen on the date of instituting his suit and the object is to avoid the multiplicity of litigation that would result if persons, unlawfully kept out of possession of their lands were obliged to file suits every three years for mesne profits accruing after the institution of a suit in ejectment and during its pendency in the original and appellate Courts. They further held that there is no express or implied prohibition in the Civil Procedure Code against awarding possession and directing an enquiry into future mesne profits by successive adjudication's in pending suit. It has, however, been pointed out that this enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step towards the passing of the final decree, and in either case the result of the enquiry has to be incorporated in the final decree. This clearly shows that unless the relief is made a part of the decree, no application would lie to as certain and grant such profits.
4. The fact that is not necessary to incorporate a prayer for future mesne profits in the plaint itself and it can be asked for by way of a subsequent petition under Order 20, Rule 12, Civil P. C. is now well established by a judgment of the Supreme Court in Goplakrishna Pillai v. Meenakshi Ayal, : AIR1967SC155 where it was held that in a suit to which the provisions of Order 20, Rule 12, Civil P. C. apply, the Court has discretionary power to pass a decree directing an enquiry into future mesne profits and the Court may grant a general relief though it is not specifically asked for in the plaint. The question however is the relief is not made a part of the decree, whether it can be agitated by way of a separate application after the disposal of the appeals arising out of the suits. The question whether in the judgment in Mohammad Amin v. Vakil Ahmad, : 1SCR1133 the Supreme Court had laid down a contrary view in regard to the scope of Order 20, Rule 12, Civil P.C. to the one held in : AIR1951Mad938 (FB) came to be considered in Atchamma v. Rami Reddy, AIR 1958 Andh Pra 517 by a bench of this Court for which K. Subba Rao, C.J., (as he then was) spoke and it was held that the Full Bench decision of the Madras High Court in : AIR1951Mad938 (FB) is still good law. That was also a case where in the suit for declaration of title to the suit properties , there was no prayer for mesne profits and no effort was made to incorporate the relief in that regard in the decrees in appeal, though a petition under Order 20, Rule 12, Civil P.C. was pending in the trial Court at the time the appellate Decree was passed and it was held that the fact that the Supreme Court appeal was pending when the petition was filed would not help the petitioner as she did not bring the fact of the existence of this application to the notice of the Supreme Court and she did not seek to get it incorporated in the decree for a direction in regard to the said relief, that the Supreme Court decree has become final and the petitioner cannot seek to reopen it. To the same effect is the decision in Krishnamma v. Latchuma Naidu AIR 1958 Andh Pra 520 by a Bench of this Court consisting of K. Subba Rao, C.J. (as he then was) and Ranganadham Chetty, J. In Sathyanarayana v. Mallikajuna, : AIR1960AP45 another Bench of this Court again reiterated that the decision of the Full Bench of the Madras High Court in : AIR1951Mad938 (FB) was good law and unaffected by anything contained in the decision of the Supreme Court in Mohammad Amin's case : 1SCR1133 .
5. This question came again to be considered in M.P. Suleman Saheb v. Habibunnissa, (1970) 1 Andh WR 125 where also a petition under Order 20, Rule 12, Civil P.C. was pending by the time the suit was disposed of in appeal and no relief was incorporated in the appellate decree. Parthasarathi, J. hearing the case, thought that there is considerable force in the argument of the counsel that where there is a refusal in terms of the decree to award future profits and it is immaterial whether the decree is of the Court of the first instance or of an appellate court and being of the opinion that the precise scope of the decision in AIR 1958 Andh Pra 517 may be determined in an authoritative manner , referred it to a Bench and the Bench consisting of Gopal Rao Ekbote, J. (as he then was) and Kuppuswami, J. held that once it is recognised that an application under Order 20, Rule 12, Civil P.C. is maintainable so long as the suit is pending, and once it is admitted that the suit is not disposed of as long as an appeal is pending they fail to see how the application which was maintainable in the first instance when it was filed, will cease to be maintainable merely because at the time of the subsequent decision of the appellate Court the fact is not brought to its notice and it was not asked to incorporate a decision regarding mesne profits in its decree. They however held that it is in the discretion of the Court to grant such mesne profits and in that particular case as the plaintiffs, though in the amended plaint asked for the future profits , when he filed the application for the amendment of the decree he did not ask for future profits and even at the time the second appeal was dismissed with the observation that the 1st defendant was entitled to surplus income he did not ask that the decree should also contain a direction for an enquiry into the mesne profits, that therefore his prayer for future mesne profits should be deemed to have been dismissed by the lower Court in the exercise of its discretion.
6. Through in the above decision they had held that the petition under Order 20, Rule 12, Civil P. C. is maintainable, even though there is no such prayer for such relief in the plaint itself, they did not however, discuss the effect of the relief not being made part and parcel of the decree. What was stressed both in AIR 1958 Andh Pra 517 and also by the Full Bench in : AIR1951Mad938 (FB) was that the relief though can be claimed by way of petition under Order 20, Rule 12, Civil P. C. should incorporated in the decree of the appellate Court. The following passage contained in the Full Bench case : AIR1951Mad938 (FB) is significant.
'Where a decree awarding possession is silent with regard to an enquiry into future mesne profits and the decree has not completely disposed of the suit which, for one reason or another continues to be pending, there is nothing in the Civil P. C., prohibiting the decree-holder from applying to the Court during the pendency of such suit for an enquiry into future profits or the Court from ordering such an enquiry. The Court may, in the exercise of its discretion, refuse an enquiry leaving the decree-holder to a fresh suit for such profits. If it does order an enquiry it is bound to incorporate the result in a final decree.'
Though a prayer for future mesne profits need not and cannot be asked for in the plaint itself and such a relief can be sought by way of a petition under Order 20, Rule 12, Civil P.C. at any time during the pendency of proceedings, as long as the appeals are deemed be continuation of the suits, the suit must be deemed to be pending and the relief sought for can be granted at any time during the pendency of the appeals, but that relief if granted, by the Court, should be incorporated in the decree that becomes final. After the disposal of the appeal, if there is no such relief, the only recourse available to the parties appears to be by way of a separate suit. (Vide Tausif Ahmad v. Baharuddin, : AIR1965Pat436 ).
7. In the present case, the suit was finally disposed of in S.A. No. 415 of 1966. Though the petition under Order 20, Rule 12, Civil P. C. was filed in the trial court before the disposal of the second appeal, no direction with regard to the relief was incorporated in the decree of the High Court in S. A. No. 415 of 1966, and the petition can no longer be entertained. Even otherwise this is a relief that lies in the discretion of the Court as pointed in the decision of the Full Bench of the Madras High Court in : AIR1951Mad938 (FB) and consistently followed thereafter. In this case, the plaintiff did not get either the plaint amended asking for a prayer for future mesne profits, nor did he bring the fact of the pendency of the petition to the notice of the High Court during the hearing of the Second Appeal, though it was the High court that had earlier stayed the enquiry under Order 20, Rule 12, Civil P. C. He therefore will not be entitled to this discretionary relief. The order of the lower court is therefore set aside and the petition will stand dismissed.
8. The revision petition is allowed, but in the circumstances, no costs.
9. Revision allowed.