Madhya Pradesh High Court
Basodi Alias Munshilal And Anr. vs Smt. Meera Bai And Ors. on 15 December, 2005
Equivalent citations: AIR2006MP179, 2006(2)MPHT90, AIR 2006 MADHYA PRADESH 179, 2006 (3) ALL LJ EE 402, 2006 (6) AKAR (NOC) 857 (MP), 2007 A I H C (NOC) 70 (MP), (2006) 3 RECCIVR 373, (2006) 2 MPLJ 556, (2006) 2 RENCR 72, (2006) 2 MPHT 90
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
JUDGMENT U.C. Maheshwari, J.
1. Respondents/plaintiffs have preferred this appeal nder Section 100 of CPC being aggrieved by the judgment and decree dated 17-1-1990, passed by Additional District Judge, Harda Camp Sohagpur, in Civil Regular Appeal No. 27-A/87 reversing the judgment and decree dated 9-12-1986 passed by Civil Judge, Class II, Sohagpur in Civil Original Suit No. 4-A/1984 regarding dismissal of the suit.
2. This appeal was admitted by this Court on dated 29-11-1990 on the following substantial questions of law :-
Whether the decree for mesne profits at the rate of Rs. 50/- per month from the year 1981 to the date of delivery of possession granted by the First Appellate Court is in excess of the claim made by the plaintiff in Para 8 and relief Clause 12 (Kh) of the plaint ?
3. The facts of the case are that Kishanlal the predecessor of the respondents' has filed a suit for possession and the mesne profit against appellants in respect of a plot situated on Survey No. 103 measuring 40' x 60' at Village Ajabgaon, Tehsil Sohagpur. The mesne profit was claimed at the rate of Rs. 120 per annum. In written statement of the appellant the averments of the plaint are denied. The claim of mesne profit was also denied.
4. After framing the issues the evidence was recorded by the Trial Court and on appreciation of it the suit of the respondents was dismissed by the Trial Court. On appeal the decree of the Trial Court was set aside and the suit was decreed for possession and also for mesne profit @ of Rs. 50/- per month instead Rs. 120 per annum. Hence this appeal has been preferred and the same was admitted on the aforesaid substantial question of law.
5. Learned Counsel for appellants has submitted that as per pleadings of the respondents in Para 12 of the plaint, the mesne profit was claimed @ only Rs. 120 per annum thus Appellate Court could not have been decreed more than this as the Court can not travel beyond the pleadings of the parties but contrary to this the mesne profit was awarded on a higher rate for which sufficient reasons have also not been supplied by thus such findings is not sustainable under the law and prayed for setting aside the same.
6. While, other hand, Shri Ashish Shroti, Counsel for respondents has submitted that the suit was filed on 21-11-1984 and the appeal was decided on 17th January, 1990 after more than six years. He fairly concedes that the mesne profit was claimed by respondents in the pleadings @ Rs. 120/- per annum but simultaneously his version was that it was mentioned only on the basis of date of the suit on available cause of action. So far subsequent mesne profit is concerned, the Courts have vested discretionary jurisdiction to award the mesne profit by keeping in view the pendency and longevity of litigation and he placed his reliance on two decided cases of the Apex Court and prayed for dismissal of this appeal.
7. Having heard the learned Counsels, I have gone through the record. It is true that the plaintiff has claimed the mesne profit only @ Rs. 120 per annum but it is awarded Rs. 50 per month, i.e., Rs. 600 per annum. In view of the law laid down by the Apex Court in the matter of Gopalakrishna Pillai and Ors. v. Meenakshi Ayal and Ors. , the Courts are empowered to award the mesne profit on a higher rate in the facts and circumstances of the case. The Apex Court has held as under :-
7. 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(1) 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, he 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 provisions of Order 20 Rule 12 apply, the Court has a discretionary power to pass a decree directing an inquiry 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. 178 at P. 177 : AIR 1951 Mad 939 at P. 940 (FB). In Fakharuddin Mahomed Ahsan v. Official Trustee of Bengal (1982) ILF 8 Cal. 178 at P. 189 (PC), Sir R.P. Collier observed :
The plaint has been already read in the first case and Their Lordships are of opinion that it is at all events open to the construction that the plaintiff intended to claim wasilat up to the time of delivery of possession, although, for the purpose of valuation only, so much was valued as was then due; but be that as it may, they are of opinion that, under Section 196 of Act VIII of 1859, it was in the power of the Court if it though fit to make a decree which should give the plaintiff wasilat up to the date of obtaining possession.
Section 196 of Act VIII of 1859 empowered the Court in a suit for land or other property paying rent to pass a decree for mesne profits from the date of the suit until the date of delivery of possession to the decree holder. The observations of the Privy Council suggest that in a suit to which Section 196 of Act VIII of 1859 applied, the Court had jurisdiction to pass a decree for mesne profits though there was no specific claim in the plaint for future mesne profits. The Court has the like power to pass a decree directing an inquiry into future mesne profits in a suit to which the provisions of Order 20, Rule 12 of the Code of Civil Procedure, 1908 apply.
In the aforesaid dictum of the Apex Court, it was said that mesne profit can be awarded in such case in which it was not prayed. Some amount was claimed by respondents but the same awarded on higher rate but the aforesaid dictum speaks regarding discretionary power of the Court to award the future mesne profit.
8. Thus, at the time of judgment such power could be invoked by the Court to decide the mesne profit on appropriate rate. But such power could have been invoked after inquiry and with sufficient reasons, the same was not done by the Appellate Court in the case at hand
9. On another occasion, in the matter of Marshall Sons & Co. (I) Ltd. v. Sahi Oretrans (P) Ltd. and Anr. , the Apex Court has given the dictum for awarding the mesne profit on higher rate as under:-
4. From the narration of the facts, though it appears to us, prima facie, that a decree in favour of the appellant is not being executed for some reason or the other, we do not think it proper at this stage to direct the respondent to deliver the possession to the appellant since the suit filed by the respondent is still pending. It is true that proceedings are dragged for a long time on one count or the other and, on occasion, become highly technical accompanied by unending prolixity at every stage providing a legal trap to the unwary. Because of the delay, unscrupulous parties to the proceedings take undue advantage and a person who is in wrongful possession draws delight in delay in disposal of the cases by taking undue advantage of procedural complications. It is also a known fact that after obtaining a decree for possession of immovable property, its execution takes a long time. In such a situation, for protecting the interest of the judgment-creditor, it is necessary to pass appropriate orders so that reasonable mesne profit which may be equivalent to the market rent is paid by a person who is holding over the property. In appropriate cases, the Court may appoint a receiver and direct the person who is holding over the property to act as an agent of the receiver with a direction to deposit the royalty amount fixed by the receiver or pass such other order which may meet the interest of justice. This may prevent further injury to the plaintiff in whose favour the decree is passed and to protect the property including further alienation.
In the aforesaid case, the Apex Court has awarded the mesne profit on higher rate at appellate stage in view of this settled law the Appellate Court are within jurisdiction in awarding the mesne profit on higher rate but before awarding it the person concerned should be given an opportunity to hear on this question, and in the instant case on higher rate no opportunity was given to appellants. Thus for this limited purpose this matter requires some consideration.
10. Thus, the question involved in this appeal is answered accordingly. As discussed above, it is held that the Courts have vested powers to award the mesne profit at the market rate for the period pendente lite of the suit and till recovery of possession of property but by supplying the sufficient reasons in the judgment or orders.
11. Hence this appeal is partly allowed and only on the question of mesne profit the finding of the Appellate Court is set aside and the case is remitted back to the Trial Court with a direction to decide this question of mesne profit afresh after giving an opportunity for hearing and adducing the evidence to the parties. It be done within six months from the date of receiving the record and intimation of this order.
12. The appeal is partly allowed. There shall be no orders as to costs. Decree be drawn up accordingly.