Bombay High Court
Satyawan Son Of Harnamdas Bhatia vs Santok Singh S/O Sardar Surjan Singh ... on 15 October, 1987
Equivalent citations: 1988(2)BOMCR195
JUDGMENT A.A. Desai, J.
1. This revision raises a question whether appeal against an order passed in a Mesne Profit Case, is a continuation of original suit proceedings for eviction and possession.
2. The non-applicants/plaintiffs on 1963 inducted applicant-defendant as a tenant in breach of Clauses 22 and 23 of the Rent Control Order. The plaintiffs filed a suit bearing No. 834 of 1966 for eviction, possession and future mesne profits. The applicant-defendant resisted the claim amongst other on the ground that proceedings for eviction and possession are not tenable for want of requisite permission from Rent Controller. The learned trial Court rejected the plea and on 19-12-1968 decreed the suit. The decree for eviction, possession and enquiry into future mesne profits has been confirmed in 1970 by this Court in Second Appeal. The non-applicants by executing decree, on 22-12-1972 took possession of the suit premises.
3. The decree-holders/N. As. thereafter on 29-11-1975 filed Mesne profits Case No. 21 of 1975. The learned trial Court on 14-12-1982 awarded mesne profits at the rate of Rs. 200/- per month. The decree holder/N. As. since dis-satisfied, preferred an appeal, where in the judgement-debtor/ applicant filed the cross-objection. During the pendency, the Supreme Court in Nanakram v. Kundalrai, 1986(3) Bom.C.R. 98 : 1986 Mh.L.J. 506 declared that contravention of Clause 22 of Rent Control Order does not render the contract between the landlord and tenant as void. The applicant-defendant, therefore, on 11-8-1987, under Order 41, Rule 2 of the Code, applied for permission to incorporate additional grounds in his cross-objection. The applicant-defendant proposed to urge that judgment and decree passed on 19-12-1968 is null and void since the suit was instituted for eviction and possession without permission of the Rent Controller. The applicant-defendant further proposed to urge that the original decree being a nullity, no final decree can be passed under Order 20, Rule 12 of the Code. Hence, the order dated 14-12-1982 awarding mesne profits is liable to be set aside.
4. The learned Appellate Court held that the suit proceedings are not subsisting and the decree for eviction, possession and mesne profit has become final. It is observed that the present appeal is only against the order, ascertaining the mesne profits, and the original decree cannot be reopened and the applicant is not entitled to re-agitate on the question of validity of decree for recovery of possession. The learned Appellate Court, therefore, refused the permission for addition of grounds.
5. Mr. Mehadia submitted that Memo of Appeal is in the nature of plaint. As per Order 6, Rule 7, the parties are entitled to make amendment in the pleading at any stage of the proceedings. It is, therefore, urged that the applicant has right to add the grounds in his cross objection. Mr. Mehadia made a further submission that while considering the application for addition of grounds, the Court is not competent to examine the merit or availability of the grounds. He placed reliance on the decision reported in Mangal Dass v. Union of India, . I persued the decision. In para 5, the Court has observed that the effect of recording of finding on the merits of the plea sought to be raised by way of amendment and then refusing to allow the amendment, was to shut out the plea of the petitioner , with the result that the party would not have the advantage of canvassing the said plea later on in appeal against the judgment in the suit as the plea would not be in the plaint. According to me, this ruling observes that merit of the plea raised cannot be examined at the stage of considering the application for permission for addition of grounds. However, it is not explicit therefore, that the Court has no jurisdiction to examine the availability of the grounds in the proceedings pending before him. Even if Memo of Appeal is treated to be anologous to the pleadings, Order 6, Rule 17 permits such amendment, which are necessary, for determining the real question involved in the proceedings and such amendment can no doubt be made at any stage of proceedings. Order 6, Rule 7, however, does not permit addition of any inconsister ground. While considering application, Court may not adjudicate on the merit of the proposed grounds. The Court is, however, entitled to examine consistency and necessity of the grounds. The Court as well is entitled to verify qua the grounds as proposed whether the proceedings are subsisting. According to me, therefore, it is a duty of the Court to address himself on the question of availability of grounds as proposed in the proceedings pending before him.
6. Mr. Mehadia inviting my attention to the provisions of Order 20, Rule 12(2) submitted that the decree for eviction, possession and enquiry into mesne profits is a preliminary decree. It becomes final after completion of enquiry into mesne profits. As such, according to Mr. Mehadia, the appeal against the order determining mesne profits, which is a final decree, is a continuation of the original suit proceedings for a decree of eviction, possession and mesne profits. It is true that Order 20, Rule 12 characterises the decree drawn as per the result of the enquiry as a final decree. However, the finality is only in respect of the quantum of the future mesne profits. The original decree granting the relief of eviction, possession and entitlement to future mesne profits does not attain finality on completion of enquiry Order 20, Rule 12. To that extent, the original decree becomes final unless reversed in appeal. The parties are not entitled in a final decree proceedings under Order 20, Rule 12(2) any mesne profits if not directed in the original decree. According to me, in the final decree proceedings, substantive rights of the parties such as possession and mesne profits, cannot be adjudicated. These proceedings are merely ancillary.
7. Mr. Mehadia placed reliance on the decision of this Court reported in Shankar v. Gangaram, A.I.R. 1028 Bombay 236. This Court has held that the application for ascertaining mesne profits under Order 20, rule 12, of the Code, is an application in the suit itself and as such law of Limitation has no application. Mr. Mehadia, therefore, reiterated his submission that the present appeal is a continuation of the original suit proceedings. He is as such entitled to question the validity of the original decree. The Appellate Court considered the authority cited by Mr. Mehadia. According to the Appellate Court, the ratio laid down in the said decision leads to only inference that the suit is treated to be pending for a limited purpose of saving the limitation. However, the same cannot be extended any further, and no further legal inference can be drawn. The learned Appellate Court further observed that in the instant appeal, the suit cannot be regarded to be alive. According to the Appellate Court, the decree for possession and entitlement to mesne profits has become final. The proceeding under Order 20, Rule 12 of the Code is only for ascertaining the mesne profits as per direction in the original decree. The same cannot legally be treated as a continuation of suit proceedings. I agree with the reasoning.
8. I hold, the decree passed on 19-12-1968 directing eviction, delivery of possession and enquiry into mesne profits which has been confirmed in second appeal, has become final. As such, the appeal as preferred against an order fixing a quantum of mesne profits cannot be said to be a continuation of the original suit proceedings. The applicant, in the proceedings pending before the Appellate Court cannot make a collateral attack on the original decree. To allow to urge the grounds regarding nullity of a decree, tentamounts to review of the decision which was confirmed by this Court. The application seeking permission to add the proposed grounds is not tenable. Impugned order is according to law. The revision is without any merit. Hence, dismissed with costs.