Madras High Court
Dayanandammal Alias Dayalammal And ... vs St. Thomas Tamil Church Represented By ... on 5 August, 1993
Equivalent citations: (1994)1MLJ51
JUDGMENT Srinivasan, J.
1. When this second appeal came up for admission on 29.7.1993 we passed an order that only one question of law required for consideration by us viz. whether the judgment and decree of the courts below are vitiated by granting future mesne profits at the rate of Rs. 1,000 per mensem without any evidence as at present on record and without enquiry under Order 20, Rule 12, Code of Civil Procedure. The respondents had taken notice at that time and both counsel expressed their willingness to argue the appeal this week. Hence, we posted the second appeal to this date.
2. Learned Counsel on both sides argued the appeal. It is the contention of learned Counsel for the appellants that without an enquiry under Order 20, Rule 12, C.P.C., the court cannot pass a decree for future mesne profits. It is submitted that under Rule 12(c) of Order 20 the Court has to direct an enquiry into rent or mesne profits from the institution of the suit. Learned Counsel draws our attention to the definition of mesne profits in Section 2(12), C.P.C. according to which, mesne profits are those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits but not including profits due to improvements made by the person in wrongful possession. It is contended that that the courts below have proceeded on the footing that there is no denial in the written statement of the claim for mesne profits made by the plaintiff in the plaint and that approach is erroneous. According to learned Counsel, what is claimed in the plaint is only a particular rate of mesne profits with an averment that it would fetch not less than that amount. Learned Counsel submits that it is not mentioned as a fact but it is only a basis for the claim of the plaintiff. He submitted that the plaintiff ought to have pleaded in the plaint that the defendant would have obtained with ordinary diligence from the property the profits which he claims. In the absence of such a plea it cannot be said that there is a pleading as to mesne profits and there is no necessity in such a case for the defendant to make a denial of the same. It is also submitted that there is no evidence on record to prove the amount which the defendant would have received with due diligence from the property by way of profits. Reliance is placed upon the judgment of the Privy Council in Harry Kempson Gray v. Bhagu Mian 58 M.L.J. 215 : A.I.R. 1930 P.C. 82. The Privy Council held that the test set by the statutory definition of mesne profits is clearly not that a person has lost by his exclusion, but what the trespasser has or might reasonably have made by his wrongful possession. Learned Counsel submits that the test laid down by the Privy Council is not satisfied in the present case by the materials on record.
3. Per contra, learned Counsel for the respondents draws our attention to the following materials, Ex. A-15 is a notice issued by the respondents to the appellant on 6.8.1980. It is clearly stated therein that the appellants were liable to pay damages at the rate of Rs. 500 per mensem from April, 1977 for unauthorised use and occupation of the suit property. Again in Ex. A-17 dated 10.3.1984 the respondents have claimed that the tenancy premises will normally get a rental of not less than Rs. 1,000 per mensem and that a suit for recovery of possession with a claim for damages for use and occupation at the rate of Rs. 1,000 per mensem with effect from 1.5.1984 would be instituted by the respondents. In reply to the said notice, appellants sent Ex. A-18, dated 17.3.1984. The only averment in the said reply reads thus:
...Your client has claimed damages for occupation at Rs. 1,000 per month. The rent is already too high and the fabulous amount claimed by your client as damages could not be granted to him.
4. It is only thereafter the suit was filed in July, 1984. Para 8 of the plaint is in the following terms:
Further, the suit property is situate on R.K. Mutt Road, Mandavely, Madras-28, an important locality in the City of Madras. The suit property has got all locational amenities like Market, Schools, bus routes, hospitals, etc. In the normal course, the suit property will fetch a fair rent not less than Rs. 1,000 per month. The plaintiffs therefore called upon the defendants to pay damages for use and occupation of the suit property after 1.5.1984, the termination of tenancy. The damages payable for the period from 1.5.1984 to 30.6.1984 has fallen due. The defendants are liable to pay damages every month atthe rate of Rs. 1,000 from 1.5.1984 till the delivery of vacant possession of the suit property.
In the written statement there is absolutely no whisper about para. 8 of the plaint. There is no reference whatever to the profits which would arise by way of mesne profits from the property. Learned Counsel for the appellants submits that the denial in para. 2 of the written statement is sufficient to meet the situation. Para. 2 of the written statement contains the general denial in the following terms:
These defendants deny the various allegations set out in the plaint excepting those which are specifically admitted in this written statement and the plaintiffs are put to strict proof of all the other allegations.
This is not sufficient in the eye of law. The defendant is bound to make a specific denial of every allegation in the plaint. Order 8, Rule 3, C.P.C., reads that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the. plaintiff but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
5. A question arose before this Court as to whether in the case of mesne profits a general denial would be sufficient in view of the wording of Order 8, Rule 3, referred to above. It was answered in the negative by this Court in J. Jeevanandam v. The Correspondent, The American Advent Mission School (1985) 1 M.L.J. 133. The relevant part of the judgment reads thus:
The immediate question is what is the damage to which the plaintiff is entitled. In the plaint, the appellant had claimed a sum of Rs. 10,000 towards damages. In the written statement, there is excessive, no plea that the amount claimed is excessive. In the result, no issue did arise out of the pleadings with reference to the quantum of damages claimed by the appellant. As a matter of fact, no issue was framed by the trial court. When the court was not called upon to decide a particular point, it is unnecessary that any evidence need be placed before court for the claim which was not specifically disputed in the written statement. The learned Counsel for the respondent however referred to Order 8, Rule 3, C.P.C., and contended that notwithstanding any specific denial in the written statement, it was the duty of the appellant to adduce evidence to sustain the quantum claimed by him. A fair reading of Order 8, Rule 3, C.P.C., will show that the said argument can hardly be countenanced. In the instant case, the respondent-management was so sure about the defence regarding the appellant's entitlement relating to the declaration sought for by the appellant. The result was that the respondent did not specifically challenge the quantum claimed by the appellant. According to me, that is contemplated under Order 8, Rule 3, C.P.C., is that so far as the damages are concerned the defendant need not specifically deal with each allegation which was averred in the plaint to support the claim of damages. But I am unable to read Order 8, Rule 3 as suggesting that there was no duty on the defendant to challenge the quantum of damages, and that even without such a specific denial, he can still call upon the plaintiff to prove the damages. It may not be out of place to point out that in a case where damages or mesne profits are claimed the defendant shall specifically allege that the quantum is either excessive or arbitrary so as to raise an issue and to render the court to give its finding. In this case, there is no specific denial relating to the claim for damages. Therefore, as pointed out by me earlier, there was no occasion for the court of frame and determine that issue.
6. A similar view is expressed by a Judicial Commissioner in Gangaram v. Beharilal A.I.R. 1952 Bhopal 89. It is said:
Going over to the next ground, viz. regarding the award of mesne profits in the absence of evidence in support of the quantum, an important rule seems to have been forgotten by the applicant in this behalf. A perusal of the plaint shows that the plaintiff claimed profits at the rate of Rs. 65 per year. In answer to this, the defendant-applicant merely stated that he denied his liability for the profits. There was no specific denial of the quantum of the profits with the result that that portion could be deemed to be admitted. This would be perfectly clear from para. 4 of the additional pleadings in the written statement of the defendant. A perusal of para. 8 of the judgment in the second appeal clearly indicate that firstly this contention was not even sought to be made while arguments were heard in the appeal and secondly it was, though briefly, still considered and as I have already observed the contention could not be raised by the petition for review. In the circumstances, I am clear that no petition for review of the judgment and decree is tenable on the grounds raised in the petition.
7. The trial court has in para. 10 of its judgment referred to the fact that in the locality in which the suit property is situate it would easily fetch a rent of more than Rs. 1,000 per month and accordingly granted the amount prayed for by the plaintiff. In the appellate court arguments were advanced that the court ought to have directed an enquiry under Order 20, Rule 12, C.P.C., and ought not to have straightaway passed a decree for mesne profits. Rejecting that argument the appellate court that when the matter was not in issue there was no necessity to direct an enquiry under Order 20, Rule 12. The appellate court pointed out that the written statement did not contain any denial of the plaint allegation that the income from the property would be not less than Rs. 1,000 per mensem.
8. A Division Bench of this Court in Veeran Chetti v. Veeran Chetti (1938) 1 M.L.J. 750 : 182 I.C. 14 : I.L.R. 1938 Mad. 1050 : 1938 M.W.N. 286 : A.I.R. 1938 Mad. 727, has held that it is not necessary for a court to direct always an enquiry into mesne profits under Order 20, Rule 12, C.P.C., and that a court could straightaway pass a decree for mesne profits if sufficient materials were available on record. Rejecting a similar contention as raised in this case, the Division Bench observed:
But it is contended that it is not competent to a court to pass a final decree for mesne profits without an enquiry and the only decree it can pass is a preliminary decree under Order 20, Rule 12, C.P.C., and Section 11(i) contemplates cases only where past profits were claimed on it is only in respect thereof the amount can be claimed and court-fee is payable, having regard, to Section 7, Court fees Act and Order 7, Rule 2, C.P.C. Reliance was placed on a number of cases in support of this contention, some of which we propose to deal with. Mr. Narasimharaju laid emphasis on the observations of Venkatasubba Rao, Officiating C.J. as he then was in Kantheswaram Ekanathalingaswami Koil, In re. 71 M.L.J. 677 at 680, As regards future mesne profits, the court has no such option but is bound in the first instance to pass a preliminary decree.
With due respect to the learned Judge, we are not able to appreciate the force of the express, 'is bound".
As he himself says, the court is not bound to pass a decree for future mesne profits, the passing of the decree being in the discretion of the court (p. 682), but if it chooses to pass a decree should it only be a preliminary decree? When the section says is that in regard to future profits the court may direct an inquiry and in case an inquiry is directed, it shall pass a decree in accordance with the result of that inquiry. One thing is plain; jurisdiction is conferred on the court trying the suit to pass a decree finally determining the amount of profits payable consequent to the institution of the suit. The determination of the said profits is an essential part of the decree in the suit and must be done by the court which passed the decree and not by the court which executes it. If this is the principle underlying the section is there anything to preclude the court from passing the decree without directing ah enquiry if the parties agree or do not object? The section does not say that no final decree should be passed unless there had been a previous inquiry and the court must pass a preliminary decree whether an inquiry is necessary or not. In cases where an inquiry is unnecessary, it seems to pass such a decree. As pointed out by Sulaiman, C.J. in A.P. Bagchi v. Mrs. F. Morgen A.I.R. 1937 All. 36.
A preliminary decree becomes necessary where the exact amount has to be ascertained after examination of fresh evidence. In that case the learned Judge observed:
When the plaintiff made it clear that she confined her relief to the recovery of the fixed rents which had been agreed upon between the parties, the amount was definitely ascertained and there was no occasion for framing a preliminary decree so that there maybe another ascertainment of the amount due to the plaintiff, the court was not bound to pass a preliminary decree in the first instance. It is therefore, perfectly competent to the court, without directing an enquiry to pass decree finally determining the amount of profits payable subsequent to the institution of the suit if it is made out that it is not necessary to make such an enquiry and it cannot be said that such a decree is not final or incapable of execution, nor would it be in contravention of the provisions of Order 20, Rule 12, C.P.C.
In Dwarka Prasad v. Jahuri San , a similar view was expressed by a Division Bench of that Court. It has said:
The omission to make an order contemplated by Order 20, Rule 12(1)(c) of the Code of Civil Procedure was an accidental slip and it ought to be corrected by the court. Reference may be made to a decision of the Calcutta High Court in the case of Kalidas Rakshit v. Saraswati Dasi A.I.R. 1943 Cal 1. The question now, is whether it is necessary to direct an enquiry mentioned by Order 20, Rule 12 of the Code of Civil Procedure, or whether we should pass a decree at the rate of Rs. 200 per month from the date of institution of the suit until delivery of possession to the plaintiffs or expiration of three years from the date of decree, whichever event first occurs. Reference in this connection may again be made to a decision of the Calcutta High Court in the case of Ganeshi Lal Sharma v. Sm. Snehlata Dasi A.I.R. 1947 Cal. 68. Upon a review of the case law on the subject, it was held in Ganeshi Lal Sharma's case A.I.R. 1947 Cal 68, that a court would be quite within its rights if it passed a decree for mesne profits payable subsequently to the suit if, in the circumstances of the case, an enquiry is unnecessary. In our opinion, the same position prevails in the instant case.
9. Thus, there can be no doubt whatever that, in law, the court is entitled to pass a decree for mesne profits without holding an enquiry under Order 20, Rule 12, C.P.C. In fact, the language of the rule is very clear. The Rule provides that the court may pass a decree for mesne profits or direct an enquiry as to such mesne profits. See : Clauses (ba) of Rule 1. Thus two alternatives are provided and it is always open to the court to straightaway pass a decree for mesne profits. In the present case, the specific averments in the plaint not having been denied in the written statement of the defendants, the court was entitled to proceed on the fooling that the amount claimed by the plaintiff was reasonable and just and it could be granted. Since the defendants did not join issue on that question, the court was justified in passing a decree.
10. In the result, we agree with the view taken by the courts below and dismiss the second appeal. No costs.