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Amar Singh Vs. Chandrashekhar Rao - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMadhya Pradesh High Court
Decided On
Case NumberSecond Appeal No. 105 of 1973
Judge
Reported inAIR1984MP1
ActsCode of Civil Procedure (CPC) , 1908 - Order 20, Rule 12
AppellantAmar Singh
RespondentChandrashekhar Rao
Appellant AdvocateR.S. Garg, Adv.
Respondent AdvocateG.M. Chaphekar, Adv.
Cases ReferredBasavayya v. Guruvayya
Excerpt:
- - 26 of 1965). that as the plaintiff had failed to claim past mesne profits, no relief could be given to the plaintiff under order 20, rule 12 of the code of civil procedure by awarding future mesne profits. 5. now, mesne profits can be past as well as future......there is only claim for future mesne profits from the date of the suit and there is no claim for past mesne profits, whether the court is empowered to pass a decree for future mesne profits, while passing a decee for possession of the property ?'2. the facts giving rise to this re-ference have been set out in the order_ of reference,. in a suit instituted by the plaintiff-respondent against the appellant for revovery of possession of a parcel of land, the plaintiff claimed mesne profits from the date of the institution of the suit till possession, but no claim was made for past mesne profits. on behalf of the defendant appellant, it was contended, relying upon two division bench decisions of this court in deepchancd v. sukhlal (1969 mplj 434) : (air 1969 madha pra 232) and in.....
Judgment:

Sohani, J.

1. This Full Bench has been constituted on a reference made by the learned single Judge of this Court (Mulye J.) in Second Appeal No. 105 of 1972. Though the precise question referred to this Bench has not been, formulated, learned counsel for the parties agreed that the question arising in this reference is as follows:

'where in a suit for recovery of possession of immoveble property there is only claim for future mesne profits from the date of the suit and there is no claim for past mesne profits, whether the Court is empowered to pass a decree for future mesne profits, while passing a decee for possession of the property ?'

2. The facts giving rise to this re-ference have been set out in the order_ of reference,. In a suit instituted by the plaintiff-respondent against the appellant for revovery of possession of a parcel of land, the plaintiff claimed mesne profits from the date of the institution of the suit till possession, but no claim was made for past mesne profits. On behalf of the defendant appellant, it was contended, relying upon two Division Bench decisions of this Court in Deepchancd v. Sukhlal (1969 MPLJ 434) : (AIR 1969 Madha Pra 232) and in Karansingh v. Fundibai (Civil First Appeal No. 26 of 1965). that as the plaintiff had failed to claim past mesne profits, no relief could be given to the plaintiff under Order 20, Rule 12 of the Code of Civil Procedure by awarding future mesne profits. The learned single Judge was of the opinion that the two decisions of this Court in Deep-chand's case (supra) and Karansingh's case (supra) required reconsideration. That is how this question has come up before us for consideration.

3. Shri Chaphekar the learned counsel for the plaintiff. contends that the power of a Court to award mesne profits flows from the provisions of Order 20. Rule 12 of the Code of Civil Procedure and it is mot necessary to make a claim for mesne profits. Reliance is placed on the decisions of the Supreme Court in R. S. Maddanappa through L. Rs. v. Chandramma (AIR 1965 SC 1812), Bhagwati prasad v. Chandramaul (AIR 1966 SC 735) and Gopalakrishna Pillai v. Meenakshi Ayal (AIR 1967 SC 155). In reply. Shri Garg, the learned counsel for the defendant-appellant, contends that if mesne profits are not claimed in a plaint, a court has no jurisdiction to pass a decre for mesne profits. Relinace is placed on the decision of the Supreme Court in Mohammad Amin v. Vakil Ahmad (AIR 1952 SC 358) and two Divi-son Bench decisions of this Court in Deepchand's case (AIR 1969 MP 232) (supra) and Karansingh's case (supra)'.

4. Before we proceed to appreciate the contentions urged by the learnedcounsel for the parties, it would be useful to turn to the provision of Order 20, Rule 12 C. P. C., which read as under:--

'Order 20. Rule 12: Decree for possession and mesne profits.

(1) Where a suit is for the recoveryof possession of immoveible property and for rent or mesne profits, the Court may pass a decree-

(a) for the possession of the property;

(b) for the rents, which have accrued on the property during the period prior to the institution of the suit or directing an enquiry as to such rent;

(ba) for the mesne profits or directing an enquiry as to such mesne profits;,

(c) directing an inquiry as to rent or mesne profits from the institution of the suit until:--

(i) the delivery of possession to the decree-holder.

(ii) the relinquishment of possession, by the judgment-debtor with notice to the decree-holder through the Court or

(iii) the expiration of three years from the date of the decree, whichever event first occurs.

(2) Where an inquiry is directed under Clause (b) or Clause (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.'

From a perusal of the aforesaid provisions, it is clear that a Court has jurisdiction to pass a decree for mesne profits in a suit, provided the suit is for the recovery of possession of immovable property and for rent or mesne profits. If the suit is merely for the recovery of possession of immovable property and there is no claim either for rent or for mesne profits, the provisions of Order 20, Rule 12 C. P. C. are not attracted. This is what has been laid down in Mohammad Amin's case (AIR 1952 SC 358) (supra) where it was held that the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint The Supreme Court observed as follows (at p. 362):--

'It was, however, pointed out by Shri S. P. Sinha that the High Court erred in awarding to the plaintiffs mesne profits even though there was no demand for the same in the plaint. The learned Solicitor General appearing for the plaintiffs conceded that there was nodemand for mesne profits as such, but urged that the claim for mesne profits would be included within the expression 'awarding possession and occupation of the property aforesaid together with all the rights appertaining thereto.' We are afraid that the claim for mesne profits cannot be included within this expression and the High Court was in error in awarding to the plaintiffs mesne profits though they had not been claimed in the plaint. The provision in regard to the mesne profits will, therefore have to be deleted from the decree. We dismiss the appeal of defendants 1 to 5 and affirm the decree passed by the High Court in favour of the plaintiffs deleting therefrom the provision in regard to mesne profits.'

The aforesaid observations of the Supreme Court in Mohammad Amin's case (supra) were explained in Gopala-krishna Pillai's case (AIR 1967 SC 156) (supra) as follows (at p. 158):--

'In our opinion, this passage does not support counsel's contention. This Court made those observations in a case where the plaint claimed only declaration of title and recovery of possession of immovable properties and made no demand or claim for either past or future mesne profits or rent. It may be that in these circumstances, the suit was not one 'for the recovery of possession of immovable property and for rent or mesne profits' and the Court could not pass a decree for future mesne profits under Order 20. Rule 12 of the Code of Civil Procedure. But, where as in this case, the suit is for the recovery of possession of immovable property and for past mesne profits, the Court has ample power to 'pass a decree directing an enquiry as to future mesne profits, though there is no specific prayer for the same in the plaint.'

It is urged by the learned counsel for the plaintiff that even in a suit where the only relief claimed is possession of immovable property, a Court has jurisdiction to award future mesne profits. The contention cannot be upheld in view of the decision of the Supreme Court in Mohammad Amin's case (supra), which is binding on us. From the decision of the Supreme Court in Mohammad Amin's case (supra), as explained in Gopalakrishna pillai's case (supra), it is clear that in order that a Court can pass a decree for mesne pro-fits in a suit, the suit must be for the recovery of possession of immovable property and for rent or mesne profits and not for possession of immovable property simpliciter.

5. Now, mesne profits can be past as well as future. As regards past mesne profits, the plaintiff has a cause of action and if he does not plead that causa of action and claim relief in that behalf by valuing that relief according to law for purpose of Court fees, a decree for past mesne profits cannot be passed even though the suit is for recovery of possession of immovable property and for rent or for future mesne profits. The inability of the court in such a case to pass a decree for past mesne profits arises because the plaintiff has omitted to seek relief on a subsisting cause of action even though the suit is of a nature contemplated by Order 20. Rule 12 of the Code of Civil Procedure. Therefore, for passing a decree for past mesne profits, making of a claim for past mesne profits is essential. As regards future mesne profits, all that is necessary is that the suit is of a nature contemplated by Order 20, Rule 12 of Code of Civil Procedure and making of a claim for future mesne profits is not essential. The following observations of the Supreme Court in Gopala Krishna Pillai's case (AIR 1967 SC 155) (supra) are pertinent (at p. 157):--

'Order 20, Rule 12 enables the Court to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit in view of Order 7. Rules 1 and 2, and Order 7 Rule 7 of the Code of Civil Procedure and Section 7(i) of the Court Fees Act. The plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay court-fees thereon, With regard to future mesne profits, the plaintiff has no cause of action on the date of the institution of the suit and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit. Moreover, ha can obtain relief in respect of this future cause of action only in a suit, to which the provisions of Order 20. Rule 12 apply, but in a suit, to which the provi-sions of Order 20. Rule 12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits and the Court may grant this general relief, though it is not specifically asked for in the plaint see Basavayya v. Guruvayya, ILR (1952) Mad 173 at p. 177: (AIR 1951 Mad 938 at p. 9401 (FB).'

In Gopalakrishna Pillar's case (supra) future mesne profits were not claimed though there was a claim for past mesne profits. The Supreme Court held that as the suit in that case was for the recovery of possession of immovable property and for past mesne profits, the Court had ample power to pass a decree directing an enquiry as to future mesne profits, though there was no specific prayer for the same in the plaint.

6. In Rule S. Maddanappa's case (AIR 1965 SC 1812) (supra), the plaintiff claim possession of her share of the properties and past mesne profits. The contention advanced on behalf of the defendant before the Supreme Court was that mesne profits could not be awarded to a successful party to a suit for possession unless a claim was made in respect of them. The Supreme Court upheld that contention in so far as mesne profits prior to the suit were concerned but repelled it in so far as mesne profits subsequent to the date of the institution of the suit were concerned and held that as regards future mesne profits, the matter was governed by the provisions of Order 20 Rule 12 C. P. C. In Bhagwati Prasad's case (AIR 1966 SC 735) (supra), the plaintiff's claim for past rent and future mesne profits was rejected by the High Court but the Supreme Court, while upholding the rejection of the claim for rent held that the plaintiff was entitled to future mesne profits. It is thus abundantly clear that in so far as future mesne profits are concerned, the Court derives jurisdiction to pass a decree in that behalf not by virtue of any claim made by the plaintiff in the paint but by virtue of the provisions of Order 20 Rule 12 C. P. C. which are attracted in a case where claim for recovery of possession of immovable property is accompanied by a claim for rent or mesne profits, past or future. It therefore, follows that the decision in Deep-chand's case (AIR 1969 Madh Pra 232) (supra) and Karansingh's case (Civil First Appeal No. 26 of 1965) (Madh Pra) (supra) in so far as they hold that aplaintiff is not entitled to a decree for future mesne profits merely on the ground that there is no claim for past mesne profits, cannot be held to lay down correct law. A decree for future mesne profits in a suit for recovery of possession of immovable property cannot be passed only when an the suit, there is no claim either for rent or for mesne profits, past or future.

7. For all these reasons, our answer to the question arising in this reference is that where in a suit for recovery of possession of immovable property, there is only a claim for future mesne profits from the date of the suit and there is no claim for past mesne profits, the Court is empowered to pass a decree for future mesne profits while passing a decree for possession of the property.

8. Let the matter be now placed before the learned single Judge for disposal. Parties shall bear their own costs of this reference.


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