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Govindaraja Odayar Vs. Admimoola Odayar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1980)2MLJ504
AppellantGovindaraja Odayar
RespondentAdmimoola Odayar
Cases ReferredBabburu Basavayya v. Babburu Guruvayya
Excerpt:
- - the defendant appealed against the decree and failed both in the first appellate court and in this court in second appeal. on a reading of the plaint in that case, the court was satisfied that the suit was filed as, one for recovery of possession of immovable property and for mesne profits. i am satisfied that the petition filed by the plaintiff decree-holder in the present case was not maintainable and the learned district munsif was in error in entertaining it......in entertaining an application filed by the petitioner in a suit, for determination of future mesne profits. the suit brought by the plaintiff in the first instance was one for a declaration and injunction in respect of three items of nanja land. later he suitably amended the plaint and asked for an alternative relief by way of possession. the suit was decreed in favour of the plaintiff and possession was granted to him. the defendant appealed against the decree and failed both in the first appellate court and in this court in second appeal. the second appeal was disposed of on 8th january, 1976. subsequently, in 1978 the plaintiff filed an application before the trial court for determination of the future mesne profits. this application purported to be under order 21, rule 12. the.....
Judgment:
ORDER

V. Balasubrahmanyan, J.

1. The only question arising in this Civil revision petition filed by the defendant, is whether the Court below was right in entertaining an application filed by the petitioner in a suit, for determination of future mesne profits. The suit brought by the plaintiff in the first instance was one for a declaration and injunction in respect of three items of nanja land. Later he suitably amended the plaint and asked for an alternative relief by way of possession. The suit was decreed in favour of the plaintiff and possession was granted to him. The defendant appealed against the decree and failed both in the first appellate Court and in this Court in second appeal. The second appeal was disposed of on 8th January, 1976. Subsequently, in 1978 the plaintiff filed an application before the trial Court for determination of the future mesne profits. This application purported to be under Order 21, Rule 12. The defendant opposed the application on the ground that there was no claim in the suit for payment of mesne profits, nor was there any decree for mesne profits at any stage.

2. The learned District Munsif, however, overruled the defendant's objections and directed an enquiry into the future mesne profits.

3. The learned District Munsif relied on a decision of the Supreme Court in Gopala-krishna Pillai v. Meenakshi Ayal : AIR1967SC155 . The defendant has now come up with this revision before this Court, challenging the correctness of the decision of the Court below.

4. The learned Counsel for the petitioner urges that this is not a suit to which the provisions of Order 20, Rule 12 would apply. Order 20, Rule 12(1) deals with a decree for possession and mesne profits as its marginal note indicates. The Rule provides that

Where a suit is for the recovery of possession of immovable property and for rent or mesne profits the Court may pass a decree--(c) for the possession of the property.

The rule proceeds to say that the Court may pass a decree also for past mesne profits. The important thing to be noted in this Rule is that, it only applies to a suit for the recovery of possession of immovable property and for rent or mesne profits. In the present case, the suit was originally for a declaration and injunction, and subsequently it was amended for the alternative relief of possession. The suit was not for possession and for rent or mesne profits. Therefore, on the clear provisions of Order 20, Rule 12, this is not a suit in which the Court is empowered to direct an enquiry as to future mesne profits, by way of passing a decree in the suit itself.

5. The decision of the Supreme Court referred to earlier and relied on by the Court below also lays down the same position as indicated by Order 20, Rule 12 The Supreme Court was dealing in that case with a suit in which the plaintiff had asked for the relief of possession and for past mesne profits. The plaintiff did not ask for future mesne profits, that is to say, mesne profits, subsequent to the institution of his suit. The question before the Supreme Court, was whether, in the absence of a specific prayer In the plaint claiming future mesne profits, the Court had any power to direct an enquiry for the determination of future mesne profits. The Supreme Court held that Order 20, Rule 12, Civil Procedure Code, provides for passing a decree where a suit is for the recovery of possession of immovable property and for rent or mesne profits. The Court may in such a case pass a decree for the possession of the property and also direct an enquiry as to the rent or mesne profits for the period prior to the institution of the suit and also as to the subsequent mesne profits. On a reading of the plaint in that case, the Court was satisfied that the suit was filed as, one for recovery of possession of immovable property and for mesne profits. The Court, therefore, held that Order 20, Rule 12, was attracted to the suit, and passed a decree both for past and future mesne profits.

6. The decision of the Supreme Court, therefore, is not an authority for the position that, even though the suit is not for possession and for rent or mesne profits, nevertheless the Court can pass a decree not only for possession, but also for mesne profits. All that the Supreme Court decided was that, if the suit can be brought under the classification of a suit for possession and for rent or mesne profits for the reason that some relief is asked for in respect of past mesne profits or future mesne profits the Court should have power to pass a decree in the suit for both past and future mesne profits.

7. Another case which was relied on by the Court below supporting its conclusion was R.S. Madanappa v. Chandramma : [1965]3SCR283 . This case also is not authority for the decision of the Court below. In this case, that was a suit for partition of a half share of the family properties and separate possession thereof, The plaintiff also claimed a relief by way of award of past mesne profits. The only question in that case was when the plaintiff had not asked for future mesne profits as a specific claim in the plaint, whether the Court in passing a decree had power to order an enquiry into future mesne profits. The Supreme Court had to deal with the contention that mesne profits cannot be awarded to a successful party to a suit for possession, unless a claim was made in respect of them. Dealing with this contention, the Supreme Court observed as follows:

The learned Counsel is right in so far as mesne profits prior to the suit are concerned, but in so far as mesne profits subsequent to the date of the institution of the suit, that is future mesne profits are concerned, the position is governed by Order 20, Rule 2, Civil Procedure Code.

The Supreme Court proceeded to hold that that case, the plaintiff did claim not only artition and separate possession of half share of the properties, but also past mesne profits, and in that view, they upheld the decree of the Court below ordering an enquiry into future mesne profits This case again cannot be regarded as an authority for the position that, even without any prayer for mesne profits in a suit for possession the Court has power suo motu to pass a decree directing an enquiry into future mesne profits.

8. Another authority cited by learned District Munsif was the case Babburu Basavayya v. Babburu Guruvayya : AIR1951Mad938 . That was a suit for partition in which the question of mesne profits was also raised. The concerned provision in Order 20, relating to a decree for partition in. a suit, is Rule 18. On a reference to that provision, a Full Bench of this Court held that the said provision did not prohibit the Court from issuing appropriate directions as to mesne profits, even after the passing of a preliminary decree, for the sake of preventing multiplicity of litigation and to do complete justice and effect an equal division of all the common assets and properties among the parties. In that case, the Full Bench distinguished the provisions of Order 20, Rule 12 from Order 20, Rule 18 which they were dealing with. They held that, even at the time of passing the decree for possession, the Court has to give directions as to mesne profits, and that this was a mandatory provision under Order 20, Rule 12, whereas, Order 20, Rule 18 refers to the passing of a decree in a partition suit. In that case, the Full Bench had an occasion to go into the exercise of power by a Court to order an enquiry into future mesne profits under Order 20, Rule 12. In the course of their judgment, they observed that:

Where a decree awarding possession is silent with regard to an enquiry into future mesne profits and the decree had not completely disposed of the suit which, for one reason or another, continues to be pending, there is nothing in the Civil Procedure Code, prohibiting the decree-holder from applying to the Court during the pendency of such suit for an enquiry into future mesne profits or the Court from ordering such an enquiry.

This observation does not show that in a case where the suit is finally disposed of, as is the present case, the decree-holder can invoke the powers of the Court under Order 20, Rule 12, for directing an enquiry into future mesne profits. Nor did the Full Bench have occasion to go into the question whether, even without any prayer for mesne profits in a suit for possession, an application filed by the plaintiff at the time of passing a decree and much less afterwards would lie.

9. Indeed, the position must be clear beyond doubt, on the plain language of Order 20, Rule 12, and on the two decisions of the Supreme Court which 1 have analysed earlier.

10. In view of the above considerations. i am satisfied that the petition filed by the plaintiff decree-holder in the present case was not maintainable and the learned District Munsif was in error in entertaining it. In the result, the revision petition is allowed; the order of the learned District Munsif dated 27th March, 1978, is set aside and the plaintiff's application, I. A. No. 28 of 1978 in O.S. No. 119 of 1969 is dismissed. However, there will be no order as to costs.


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