Andhra HC (Pre-Telangana)
Moparthi Sarojini Devi vs Kavuru Ramachandra Prasad And Ors. on 13 March, 2002
Equivalent citations: 2002(3)ALD253, 2002(4)ALT376
JUDGMENT L. Narasimha Reddy, J.
1. In this appeal, the judgment and decree dated 28-4-1995, in OS No. 6 of 1989 on the file of the Principal Subordinate Judge, Tenali, is in challenge. The defendant is the appellant. The parties shall be referred to as arrayed in the suit.
2. The plaintiffs filed the suit alleging that their grand mother late Talasila Lakshmamma was the owner of the suit schedule property, during her life time she entered into an agreement of sale with the defendant for sale of the suit schedule property and on 1-10-1976, an agreement of sale between them was executed providing for sale of the suit schedule property at the rate of Rs. 13,500/- per acre, delivery of possession of the land was made on the date of agreement itself, payment of the balance amount was to be made within one month failing which the balance amount shall carry 18% interest. It is also stipulated in the agreement that if the sale deed is not executed during her lifetime, the defendant shall pay the balance of consideration to the plaintiffs and they shall execute the sale deed after measurement of the land. Lakshmamma died in May, 1977. By the date of her death, an amount of Rs. 36,500/- was paid.
3. During her life time, late Lakshmamma had also executed a Will dated 19-1-1976 enabling the plaintiffs to recover the balance of consideration. After the death of Lakshmamma, the defendant paid an amount of Rs. 1800/- and Rs. 7500/-, which were endorsed, on the counter part of the agreement. Thereafter, the defendant paid Rs. 10,000/- on 2-7-1980, Rs. 5,000/- on 11-8-1980 and another Rs. 5,000/- on 6-5-1981. After about five years, another amount of Rs. 10,000/- was paid.
4. Inspite of demands, the defendant went on dodging the matter and by the date of the suit, the transaction became 12 years old and still an amount of Rs. 37,556/-remained unpaid. Accordingly, the plaintiffs got issued notice dated 21-9-1988 calling upon the defendant to perform her part of contract. Though the notice was received by the defendant on 23-9-1988, there is no response from her. Therefore, the plaintiffs filed the suit for a decree for the said amount together with 18% interest.
5. The plaint was presented on 11-10-1988. It was returned on certain objections. In the meanwhile, the plaintiffs received reply dated 14-10-1988 from the defendant. In this reply, the defendant contended that she is an agriculturist and, as such, levy of 18% interest on the balance amount was impermissible in law and she was liable to pay the balance only with 6% interest and if so calculated, the entire amount has already been paid. She called upon the plaintiffs to produce certain documents and execute the sale deed. Treating the stand of the defendant as repudiation of the contract, the plaintiffs had accepted the same and sought for recovery of possession of the suit schedule property; by incorporating Para 6(A), refraining the relief for recovery of possession and by paying the deficit Court fee. The plaint so modified was represented at a later date and was registered as suit.
6. The defendant filed a written statement pleading that in addition to the amounts that have been mentioned in the plaint, she paid an amount of Rs. 18,000/- on 10-10-1979, Rs. 5,000/- on 14-6-1982 and Rs. 200/- on 1-11-1980 in the form of paddy seeds. It was the further case of the defendant that the stipulation of 18% interest in the suit agreement cannot be sustained in law and the claim made on the basis of the same is illegal and at the most, interest at 6% can be charged. If so done, according to the defendant, an amount of Rs. 35,989/-is paid in excess of the total consideration. It was also stated that she is not liable to pay any amount and she will take separate steps for enforcement of the agreement. She has also disputed the measurements of the suit site.
7. On the basis of the pleadings, the trial Court framed the following issues:
"1. Whether the plaintiffs are entitled for possession of the plaint schedule property and alternatively for the suit amount from the defendant?
2. Whether the payments of Rs. 18,000/- on 10-10-1979 and Rs. 200/- on 1-1-1980 and Rs. 5,000/- on 14-6-1982 to the plaintiffs are true?
3. Whether the plaintiffs received excess of sale consideration of Rs. 35,989/- from the defendant?
4. To what relief?"
8. At a latter stage, the defendant also filed additional written statement questioning the entitlement of the plaintiffs and calling upon them to prove the Will said to have been executed by late Lakshmamma. It was also pleaded that since the plaintiffs have not adduced any legal proof of the Will, the suit was liable to be dismissed.
9. The plaintiffs, in turn, filed a rejoinder alleging that the defendant never raised any objection to the genuinity or enforceability of the Will and, as such, it was not open to them after the trial of the suit is in progress.
10. On the basis of the pleadings contained in the additional written statement and the rejoinder and also on the request of the parties, the following additional issues were framed :
"1. Whether Talasila Lakshmamma, executed her last Will and Testament on 19-10-1976 in a sound and disposing state of mind?
2. Whether plaintiff are entitled to unilaterally cancel the suit contract of sale dated 1-10-1976, without notice and opportunity to the defendant?
3. Whether the cancellation of contract is legal and valid?
4. What is the extent of the suit land, on measurement, whether Ac.5-65 or Ac.5-49 cents ?"' On behalf of the plaintiffs, PWs. 1 to 5 were examined and documents Ex.A1 to A12 were marked. On behalf of the defendant, DWs 1 to 4 were examined and documents Ex.B1 to B14 were marked. Ex.C1, which is said to be memo/rough calculation, was also marked by DW3. On appreciation of oral and documentary evidence, the trial Court decreed the suit as prayed for through its judgment and decree dated 28-4-1995. Hence the appeal.
11. In this appeal, the plaintiffs have also filed CMP No. 11293 of 1995 for amendment of the plaint so as to incorporate relief of future mesne profits from the date of the suit till the date of delivery of possession.
12. Sri A.L.N. Rao, learned Counsel for the appellant/defendant submits that the defendant was always ready and willing to perform her part of the contract, went on paying the amounts as and when demanded by late Lakshmamma, during her life time, and thereafter the plaintiffs. The plaintiffs did not certify or endorse some of the amounts received by them and in fact the entire consideration was paid. It is his contention that even if the defendant was liable to pay some amounts, the trial Court ought to have decreed the suit for the amounts and the decree for delivery of possession cannot be sustained in law. It is also submitted that in the absence of a relief for rescission of contract, delivery of possession cannot be sought for. The liability to pay interest at 18% is not seriously canvassed. In the Memorandum of Grounds of Appeal, the plea of adverse possession was also raised. He ultimately contends that the defendant is ready to pay the balance consideration with interest as stipulated in the agreement. The learned Counsel also made some submissions as regards Incorporation of Para 6(A) and alteration of relief in the plaint.
13. Sri K. Harinath, learned Counsel for the respondents/plaintiffs, on the other hand, submits that taking advantage of the death of late Lakshmamma, the defendant went on dodging the payment of balance of consideration on one pretext or the other and the plaintiffs were forced to file the suit almost after 12 years from the date of the agreement. Once the defendant has, through reply dated 14-10-1988, came forward with the plea that she is not liable to pay interest as provided under the agreement, it constituted repudiation of the contract on her part and the plaintiffs have chosen to accept the repudiation and thereby the agreement came to an end which enabled them to seek recovery of possession. It is also his contention that once the defendant has come forward with false plea of payments, which were not made and called upon the plaintiffs to comply with certain conditions, which were not provided for in the agreement, the defendant disentitled herself from the protection under Section 53-A of the Transfer of Property Act and even for any probable relief of specific performance.
14. As regards the incorporation of the plea of delivery of possession in the plaint, he submits that by the time when plaint was originally presented, the plaintiffs did not receive the reply from the defendant and they received it only afterwards. Since the plaint was returned, the plaintiffs have incorporated the plea on the basis of the reply of the defendant and consequential relief by paying the requisite Court fee. Inasmuch as the incorporation of Para 6(A) and the relief of recovery of possession were done before the suit was numbered, there is no procedural irregularity. According to him, no objection was raised during the pendency of the suit on this aspect and the same cannot be permitted to be raised now. They have also resisted the plea of adverse possession by contending that it was not pleaded, much less proved, in the trial Court and the same cannot be permitted to be raised in the appeal. As regards the amendment of the plaint sought for in CMP No. 11293 of 1993, he submits that what is sought to be incorporated is almost a routine matter and there are instances where the Courts have granted the relief even though there was no specific pleading on that aspect.
15. From the above submissions, the following questions fall for consideration in this appeal:--
1. Whether there was any illegality in the insertion of Para 6(A) in the plaint and inclusion of relief of recovery of possession?
2. Whether there was any repudiation of contract on the part of the defendant?
3. Whether the plaintiffs were entitled to seek the remedy of recovery of possession without seeking the relief of repudiation?
4. Whether the defendant is entitled for the protection under Section 53 of the Transfer of Property Act (for short 'the Act')?
16. The factum of execution of agreement of sale dated 16-10-1976, which is marked as Ex.A1, between the late T. Lakshmamma and the defendant is not in dispute. The agreement was executed in duplicate and one each was kept with the parties. Ex.B1 is the equivalent of Ex.A1. The salient features of the agreement, referred to in the preceding paragraphs are not in dispute. The agreement did provide for 18% interest. The defendant disputed her liability to pay interest at that rate on the ground of legality of the clause. The agreement also provided for payment of the balance amount to the plaintiffs in case sale deed could not be executed during the lifetime of Lakshmamma. The fact that the defendant continued to pay certain amounts to the plaintiffs after the death of Lakshmamma indicates that she did not dispute the entitlement of the plaintiffs to receive the same. She has also taken endorsements on the agreement of sale Ex.B1 from the plaintiffs as and when the amounts were paid. The endeavour of the plaintiffs was only to recover the balance of consideration calculated in accordance with the terms of the agreement. In fact, the pleadings and relief claimed in the plaint as it was originally presented indicate this fact. It is only when the defendant, through her reply dated 14-10-1988 marked as Ex.A8, came forward with a plea of illegality of the clause providing for 18% interest and discharge of the liability under the agreement and insisted on furnishing of certain by the plaintiffs, that the plaintiffs have modified their claim in the plaint and sought for recovery of possession by pleading that they have accepted the repudiation by the defendant and have put an end to the contract.
17. The first submission of the learned Counsel for the defendant is as to incorporation of the plea of recovery of possession in the plaint. It is the contention of the learned Counsel that Para 6(A) was inserted in the plaint and the relief was permitted to be altered without there being an application for amendment of the plaint and the same was contrary to law. If the incorporation of Para 6(A) and the relief of recovery of possession were done subsequent to the numbering and registration of the suit, the contention of the learned Counsel deserves to be accepted. However, if the contents of the plaint are altered either in the body of the plaint or in the relief portion, before the plaint is accepted and the suit is registered by the Court, it does not require the filing of an application for amendment of the pleadings. It is evident that the plaintiffs incorporated Para 6(A) on the basis of the stand taken by the defendant in the reply after the plaint was returned and before registration of the suit. Therefore, the contention of the leaned Counsel cannot be accepted.
18. The 2nd question that arises for consideration is whether there was any repudiation or refusal on the part of the defendant to perform her part of contract.
19. The agreement of sale (Ex.A1 corresponding to Ex.B1) by late Lakshmamma was not at all in dispute. The salient features of Ex.A1 have already been referred to above. The plaintiffs pleading that an amount of Rs. 36,500/- was paid by the defendant to Lakshmamma during her life time and thereafter the following payments were made to them:
(a) Rs. 1800/- on 12-7-1977;
(b) Rs. 7500/- on 15-9-1979;
(c) Rs. 10,000/- on 2-7-1980;
(d) Rs. 5,000/- on 11-8-1980;
(e) Rs. 5,000/- on 6-5-1981; and
(d) Rs. 10,000/- on 26-6-1985.
According to the plaintiffs, the total consideration was payable within one month from the date of agreement and any amount which remained unpaid was to carry interest at 18%. On the basis of the said calculation the defendant was liable to pay Rs. 37,556/-. The suit was originally laid for the said amount.
20. The plaintiffs got issued a notice dated 21-9-1988, marked as Ex.A7, calling upon the defendant to pay the balance amount. By the time the plaint was presented, the defendant did not issue any reply. Ex.A8 is reply dated 14-10-1988 issued by the defendant. In this reply, the defendant denied her liability to pay the interest at 18% on the unpaid amounts. Her justification was that she being an agriculturist, was not liable to pay interest at 18% and the maximum that can be charged was 6%. On the basis of this plea, she denied her liability to pay further amount. In a way, she has blamed the plaintiffs for not executing the sale deed.
21. By the time the plaintiffs received the reply-Ex.A8, the plaint was returned with certain objections. The plaintiffs treated the refusal of the defendant to pay interest at the contracted rate in Ex.A2 as repudiation of the contract and have chosen to accept the same. Thereby, invoking their right under Section 39 of the Contract Act, the plaintiffs have chosen to put an end to the contract. Having done so, the plaintiffs sought for delivery of possession of the suit schedule property.
22. The defendant did not dispute the stipulation in the agreement-Ex.A1 as to quantum of interest to be paid on the amount due after one month from the date of agreement. In their notice dated 21-9-1988, Ex.A7, the plaintiffs called upon the defendant to pay the balance amount with 18% interest. The defendant denied her liability. The relevant portion in Ex.A8 reads as under :--
"Admittedly my client is an agriculturist, your clients are not entitled to claim interest at more than 6% per annum. They are not entitled to claim 18% p.a."
".......They are not entitled to any more interest. Nothing more is due to them either towards the sale consideration or interest. That claim is illegal. Your clients are to handover my client, the previous tittle deeds, the Will alleged to have executed by Lakshmamma and an order that they and Lakshmamma do not come within the ceiling limit. They have to furnish Income-Tax Clearance Certificate and also Estate Duty Clearance Certificate. There is no balance of sale consideration due from my client. My client is not liable to pay any more amount j towards the sale consideration."
23. In the written statement, the defendant has gone a step further and claimed that amount was paid in excess. In Para 9, the defendant stated as under :--
"Defendant submits that a total sale consideration of Rs. 99,000/- was paid by her. Amount of sale consideration due for Ac.5-44 cents, was only Rs. 73,440-00) Seventy three thousand four hundred and forty only). But, the defendant already paid an excess amount of Rs. 25,560/- towards sale consideration. Defendant submits that the plaintiff have been demanding compound interest that too at 18% per annum. Even if the simple interest, at 12% per annum is calculated, nothing more is due from the defendant."
Referring to the various payments said to have been made by her, the defendant has stated in Para 13 of the written statement as under:-
"The plaintiff received an excess sale consideration of Rs. 35,789/-. They are not entitled to claim still Rs. 37,556-00"
The defendant deposed as PW1. She did not say a word as to how the stipulation as to interest at 18% is not binding upon her. She reiterated that she is not liable to pay any amount and, on the other hand, she has paid excess. The following is the statement in her examination in chief :-
"I am not liable to pay still an amount of Rs. 37,500/- under the contract of sale and I am not liable to be delivered the possession of the property. In fact under the contract of sale I paid excess amount of Rs. 25,000/-"
The various averments in the reply notice, written statement and oral evidence of the defendant would clearly demonstrate that she had repudiated her obligation to pay the interest at 18%. One can understand if the defendant relied upon any factual or legal basis for her contention that the stipulation as to 18% interest is not enforceable in law and sought for a declaration in a Court of law in that regard. It was not at all open to her to unilaterally declare that she is not liable to pay the interest at the contracted rate. By declaring so, she had only repudiated the contract and committed breach of the same. The pleadings and evidence of the defendant were sufficient to arrive at such a conclusion.
24. As regards the third question, the learned Counsel for the defendant submits that since Ex.A1 was subsisting, the parties were bound by the terms of the same and it was not open to the plaintiffs to seek delivery of possession unless they rescinded the contract through a decree of competent Court. Since there was no prayer for rescinding the contract, the relief of delivery of possession could not have been granted.
25. The submission of the learned Counsel for the defendant no doubt is impressive. It also appears to be somewhat logical. In the normal course of things, as long as a contract between the parties is not put to an end by the decree of the Court, it should be deemed to be operative. If breach of the contract is committed by one party, the other party may seek either specific performance or other reliefs in the form of compensation etc. However, where one of the parties refused to perform or is disabled from performing his/her part of contract, such a refusal or disability enables the other party to put an end to the contract under Section 39 of the Contract Act. The only exception to this is where the party who chooses to put an end to the contract has not signified its acquiescence in continuance of the contract through words or conduct.
Section 39 of the Contract Act reads as under:
Section 39 Effect of refusal of party to perform promise wholly:--When a party to a contract has refused to perform, or disabled himself from performing his promise in its entirety, the promise may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance."
26. From the pleadings and evidence on record, it is event that the defendant has refused to accept one of the terms of the contract, viz., the quantum of interest provided in Ex.A1. Repudiation was so vocal that it was communicated through her reply in Ex.A8 and thereafter reiterated in the written statement. In the light of the refusal of the defendant to abide by the terms of the contract, two courses were open to the plaintiffs, viz., to require to defendant to abide by the terms of the contract or to accept the refusal or repudiation by the defendant and put an end to the contract as provided for under Section 39 of j the Contract Act. The plaintiffs have elected | the latter course of action.
27. It is the plea of the learned Counsel for the defendant that the suit for recovery of possession is not maintainable unless the relief of rescission of the contract was sought for. The question as to whether the possession of the property can be recovered by a party to the contract without obtaining a decree of rescission of the contact fell for consideration before the Hon'ble Supreme Court in Ranchhoddas v. Devaji, AIR 1977 SC 1517. The Hon'ble Supreme Court held as under :--
"(7) Counsel for the respondent contended that the suit of the appellant was not maintainable. It was said that the appellant was not competent to maintain the suit by reason of provisions contained in Sections 39 and 55 of the Indian Contract Act. The gist of the contention is that the appellant could not put an end to the contract if there was failure of part of the respondent to perform the agreement. The submission is fallacious. The case of the appellant has always been that the respondent refused to perform the agreement. The appellant all along asserted that the agreement was that the property was agreed to be sold only for a sum of Rs. 17,000.00. The respondent refused to perform the agreement. The suit therefore was competent and valid."
In view of the law laid down by the Apex Court, I hold that the suit for recovery of possession of the suit schedule property without seeking the relief of rescission of the contract was maintainable.
28. Now remains the question as to whether the defendant was entitled for the benefit of Section 53-A of the Act. The same bundle of facts constitutes a valid defence under Section 53-A of the Act and a right to seek specific performance of the contract under the provisions of the Specific Relief Act. In both the cases, the two requisites are the existence of the contract between the plaintiffs and the defendant and the readiness and willingness on the part of the person who wants to avail the benefit under the said provisions. It is only when it is established on the basis of acceptable and cogent evidence that the party was ready and willing to perform his part of the contract that the benefit under the relevant provisions can be extended. Both the reliefs being equitable in nature, any lapse or lack of bona fides in the matter would enable the Court to refuse the relief. It is in this context that the matter needs to be examined.
29. As observed in the preceding paragraphs, the defendant had flatly refused to pay the interest as provided for in Ex.A1. That single fact is sufficient to hold that the defendant was not ready and willing to perform her part of the contract under the agreement. From the record, much more is evident which disentitles the defendant from the protection under Section 53-A of the Act.
30. In addition to the amounts that were referred to in the notice Ex.A7 and the plaint, the defendant pleaded that she paid Rs. 18,000/- and Rs. 5,000/- over and above the amounts admitted by the plaintiffs. It was also pleaded that paddy seedlings worth Rs. 200/- were also supplied to the plaintiffs. Admittedly, there was no receipt for these amounts. The defendant was having the duplicate of the agreement (Ex.B1). She could have insisted either on issuance of separate receipt of endorsement on Ex.Bl whenever the amounts were paid. No one who is said to have been present while making the payment was examined. In her chief-examination, the defendant as DW1 stated as under:
"I gave personally Rs. 18,000/- and subsequently two bags of paddy seedlings and Rs. 5,000/- to the 2nd plaintiff under the contract of sale. These payments are also supported by receipts."
In her cross-examination, she stated as under:-
"I cannot give in which year and during which month those two payments were made. The two payments are one of Rs. 5,000/-and the other of two paddy bags. 1 do not know whether any notice was given to the plaintiffs for giving receipts for the two payments. I also cannot give the date, month and year of giving the amount of Rs. 18,000/-. I cannot give as to who were present at the time of paying Rs. 18,000/-and also to whom and where specifically the amount was paid."
While it was the case of the defendant that she paid the said amounts personally and repayment was supported by receipts and she could not produce the same, DW2, who is the husband of DW1, has a totally different version. He stated in chief-examination as under:--
"On 10-10-1979, I paid Rs. 18,000/- to the plaintiffs 1 and 2 at their house at Peparru, in the presence of B.V. Chalapathi Rao who is their relative and who was the V.M. of Bodapadu. One Sundaiah was called by the plaintiffs 1 and 2 for the purpose of preparing the receipt for that amount and accordingly a receipt was prepared and necessary stamps were affixed on it and G. V. Chalapathi signed on it as attestor. The plaintiffs 1 and 2 signed on it and later gave the receipt to me."
In the chief-examination itself, he offered a justification for not taking the endorsement on Ex.Bl for this amount, to the following effect:
"Because stamped receipt was given for the amount of Rs. 18,000/- no endorsement of payment of it was made on Ex.B1."
31. Neither the receipt was produced nor any one connected with the preparation of the so-called receipt was examined. The contradiction of the evidence of DWs. 1 and 2 is so acute that the Court has no alternative except to conclude that they have deposed falsehood. The result is that the defendant did not make any payments of Rs. 1 8,000/- and Rs. 5,000/- as claimed by her.
32. It is in this context that this Court in K. Venkatasubbayya v. K. Venkateswarlu, , held that a person who makes a false claim of payment of part of the consideration, disentitles himself from the relief of specific performance, not only on the ground that he has set up a false claim, but also that he was not ready and willing to perform his part of contract. After referring to the judgment of the Hon'ble Supreme Court which was cited before it, was held as under:--
"In this case, the lower appellate Court has refused to exercise the discretion in favour of the plaintiff who had set up false plea of payment of a major portion of the purchase money. The plaintiff, in my view, was not only disentitled to the discretionary relief on the ground that he has set up a false plea but also on the ground that that discloses that he was not ready and willing to perform his part of the contract."
33. As observed earlier, what holds good for denial of relief of specific performance equally holds good for the denial of protection under Section 53-A of the Act. The learned Counsel for the plaintiffs also relied upon the judgment of the Madras High Court in V.P. Subramaniam v. P. Saraswathi, 2000 AIHC 793, wherein it was held as under:-
"24. In this connection, the written statement filed by the defendant only shown that he was ready to take the sale deed. He has never averred his continuous readiness to take the sale deed.
25. I hold that the decision of the Courts below that the defendant is not entitled to the benefit of Section 53-A is only to be confirmed"
Therefore, I hold that the defendant was not entitled for the protection under Section 53 of the Act.
34. In addition to the aspects that have been discussed above, the learned Counsel for the defendant has also raised the plea of adverse possession for the first time in the appeal. It is settled principle of law that the plea of adverse possession has to be specifically pleaded, an issue is required to be framed and a definite finding is to be recorded on the basis of the evidence adduced in this regard. When there was no plea in the written statement nor in the evidence adduced in this regard, it is not open to the defendant to raise the plea. Further, it needs to be observed that the possession of the defendant was traceable only to Ex.A1 and to no other circumstance. The possession of a person under an agreement of sale cannot be treated as adverse to the lawful owner. The principle of law in this regard is laid down by the Hon'ble Supreme Court in Achal Reddi v. Ramakrishna Reddiar, 1991 (1) An.WR 9 (SC), as under:
"The parties are concluded by the finding of the Division Bench that the transaction of 10-7-1946 between Dasu Reddi and Varada Reddi is only an agreement for sale and not an oral sale of the properly. If that be so the possession of Varada Reddi in pursuance of such an agreement of sale and in the expectation that there would be a complete divestiture of all the rights of the owner in his favour on execution of a regular sale deed, until the execution of the sale deed, was only possession on behalf of Dasu Reddi."
35. One aspect, which needs to be noticed, is that the defendant also made an attempt to deny the entitlement of the plaintiffs to claim the balance consideration and doubted the Will executed by late Lakshmamma in favour of the plaintiffs. In this regard, she filed an additional written statement calling upon the plaintiffs to file the said Will into the Court and to establish their rights. This plea once again is consistent with the inconsistent approach adopted by the defendant from time to time. The agreement itself recites that in case the sale deed is not executed during the life of Lakshmamma, the balance of consideration shall be paid to the plaintiffs and that the plaintiffs shall execute the sale deed. It is a matter of record. The defendant acted on this and made several payments to the plaintiffs. It was not as if the basis of the plaintiffs was the Will alone. When the agreement was so specific, and the defendant herself made payment to the plaintiff, she did not dispute their entitlement either by issuing reply or in the written statement, the plea raised in the additional written statement was only frantic.
36. One more fact which disentitles the defendant for any enquiry is that she insisted upon the plaintiffs to produce various documents, such as, clearance from the ULC, Income Tax Department, No dues of Wealth Tax, etc., which were not at all contemplated under Ex.A1. Such insistence would only indicate her lack of respect for the clauses in Ex.A1 and her reluctance to abide by the same.
37. The plaintiffs filed CMP No. 11293 of 1995 under Order VI, Rule 17 of CPC seeking amendment of the plaint to include the relief of future mesne profits from the date of the suit till the date of delivery of possession. Through orders dated 18-10-1995, this Court directed the CMP to be posted along with the appeal. The learned Counsel for the plaintiffs submits that inadvertently the plaintiffs did not include the relief for future mesne profits and it is permissible in law for inclusion of the same by way of a petition. He relied upon the judgment of the Division Bench of this Court in K. Subbarajamma v. T.V. Padiraju, 1983 (1) APLJ 333. The learned Counsel for the defendant resisted the same stating that the relief of future mesne profits sought for in this petition is time barred and cannot be granted at this stage.
38. A reading of the judgment is Subbarajamma's case (supra) indicates that there is a distinction between the claim of past mesne profits and future profits. While past profits, which relate to the period anterior to the suit, have to be specifically pleaded and established by paying the Court fee, etc., the claim of future mesne profits stands on a different footing. It was observed by this Court as under:
"On a consideration of the relevant provisions and the nature of relief, we hold there is a distinction between the claim for past profits and a claim for future profits. The latter is based on a cause of action that arises subsequent to the date of the suit whereas the former relates to period anterior to the suit. In the case of past profits the plaintiff has to specifically ask for it paying the ad valarem Court fee. In the case of future profits, no question of payment of Court fee arises, as the period for which the litigation prolongs cannot be predicted. We therefore hold that so far as future mesne profits are concerned even without there being a prayer in the plaint, the Court can award the same or direct an enquiry into the same at the time of passing the decree for possession. Similarly, the Appellate Court can grant future mesne profits even if there is no appeal by the plaintiff against that part of the decree, which is silent about future mesne profits. In an appeal pending before it against a decree for ejection, the Appellate Court has got undoubted jurisdiction to grant mesne profits or to direct an enquiry into the same, as it is a part of the general relief of possession. It is well settled principle of law that the power of the Appellate Court is coextensive with the power of the original Court and when an appeal is pending, the suit is deemed to be pending."
I respectfully follow the dicta laid down by the Division Bench of this Court in the above case and order the CMP. The result is that the plaintiffs shall be entitled for future mesne profits also, which needs to be ascertained in a separate application that will be filed by the plaintiffs before the appropriate Court.
39. In the result, I do not see any ground to interfere with the judgment and decree of the trial Court. The appeal is accordingly dismissed. No costs.