Bombay High Court
Satyabhama Bai Wd/O Santoshrao ... vs Sheeladevi W/O Ramashankar ... on 24 September, 2021
Bench: S. M. Modak
6.SA.194.2021. 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.194/2021
Satyabhama Bai Wd/o Santoshrao Radke (Dead) thr. LR's & Anr.
Vs.
Sheela Devi W/o Ramashankar Prasad (Dead) thr. LR's Ramashankar S/o Jiralal Prasad & Anr.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
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Dr. Rakesh I. Agrawal, Advocate for the Appellants.
Shri Pankaj A. Jibhkate, Advocate h/f Shri Bhushan K. Tijare, Advocate
for the Respondents/Caveator.
CORAM : S.M. MODAK, J.
DATE : 24th SEPTEMBER, 2021.
Heard learned Advocate for the plaintiffs/appellants and
learned Advocate for the respondents/defendants.
02] There was a suit filed for eviction of defendants. Apart
from the relief of eviction, the plaintiffs have asked for conducting an
enquiry for mesne profit. During pendency of the suit, there was a
Writ Petition No.567/2019 filed by the present appellants. A
statement was made on behalf of the defendants through the learned
Advocate that the appellants/landlord are entitled to take possession.
03] This Court has granted liberty to the appellants to break
open the lock and to take possession as per the order dated 20 th
February, 2019. In the order dated 25th February, 2019, the Division
Bench of this Court has taken note of the fact of taking over the
possession by the appellants. In view of that, the scope of the trial was
only limited about conducting an inquiry about the mesne profit. The
observation to that effect finds place in last paragraph of the order
dated 25th February, 2019.
04] Thereafter, the trial Court has recasted the issues and the
6.SA.194.2021. 2/4
issue of eviction was deleted and the scope of enquiry was restricted
only to conducting an enquiry as to mesne profit. The copy of
recasted issues dated 10th April, 2019 is filed on page No.119.
05] Thereafter, both the parties have adduced the evidence
and trial Court was pleased to fix the mesne profit to the extent of
Rs.2,26,800/-. The period was from 27th March, 2000 (date of filing
of the suit) till 21st February, 2019 (date of handing over the
possession). The quantum of mesne profit was also quantified to
Rs.1,000/- per month.
06] The defendants filed the first appeal and the plaintiffs
filed a cross-objection. The first Appellate Court, as per the impugned
judgment dated 9th August, 2021, was pleased to set aside the
judgment of the trial Court and direction was given to the trial Court
to conduct enquiry as contemplated under the provisions of Order 20
Rule 12 of C.P.C. This judgment is challenged by the
appellants/landlord.
07] The respondents have appeared as they are on caveat.
The submission of learned Advocate for the appellants/landlord is
two fold--
a) There was no need for the first Appellate Court to issue
fresh direction.
b) The cross-objection was not at all decided as it is not
reflected from the impugned judgment.
08] The learned Advocate for the appellants relied upon the
judgment in the cases of Marshall Sons & Co.(I) Ltd. Vs. Sahi
Oretrans (P) Ltd. & Another reported in (1999) 2 SCC 325, Sardar
Bhag Singh (Since Deceased) through Legal Representatives Vs.
Vikram Sandhu reported in (2018) 18 SCC 374 and Rahul S. Shah Vs.
6.SA.194.2021. 3/4
Jinendra Kumar Gandhi & Others reported in AIR 2021 SC 2161.
According to him, even mesne profit can be decided in eviction suit
and there is no need to file separate proceedings.
09] According to learned Advocate for the
respondent/tenant, the cross-objection is already dismissed and he
has shown to me the Roznama obtained from the website of the
District Court. It is taken on record and marked as Annexure 'X'. It
shows that "appeal allowed, cross-objection dismissed". He justified
the order of remand and according to him, the appellants ought to
have filed separate proceedings. Learned Advocate for the
respondents read over the provisions of Order 20 Rule 12 of C.P.C.
and particularly Clause (b) and Clause (bc).
10] After hearing both the sides, I am inclined to admit the
appeal on following substantial questions of law:-
1. Whether the first Appellate Court was right in issuing
direction to the trial Court to conduct enquiry as to mesne
profit particularly when both the parties have adduced
evidence?
2. Whether the first Appellate Court committed wrong in
observing that separate enquiry is required and the
amount of mesne profit can not be decided in an eviction
suit?
3. Whether the first Appellate Court committed wrong in not
deciding the cross-objection of the appellants/landlord for
enhancement of the quantum of the mesne profit?
11] Admit. Both the parties have agreed to hear the matter
finally on above substantial questions of law. Hence, the matter be
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posted for hearing on above substantial questions of law. Considering
the narrow controversy, the appeal is taken up for final hearing at an
early stage.
CIVIL APPLICATION (CAS) NO.591 OF 2021
12] There is a request to stay the execution proceedings and
to extend the duration of the order passed by the Hon'ble Division
Bench of this Court on 21st February, 2020.
13] My attention is brought to the order dated 21 st February,
2020 passed in Writ Petition No.8286/2019. This writ petition was
filed on the background that the trial Court has already decided the
mesne profit and the first appeal was pending. Grievance was made
that the executing Court is not proceeding further in the matter. That
is why, the Division Bench of this Court was pleased to continue the
order of attachment made on 15th January, 2019.
14] According to learned Advocate for the respondents, the
effect of this order was to remain in force till disposal of the first
appeal only. As it is decided, the duration of the order dated 21 st
February, 2020 cannot be extended.
15] Learned Advocate for the respondents/defendants after
taking instructions made a statement that in view of the pendency of
this second appeal, he will not proceed further and pursue the
execution proceedings in any manner. It is agreeable to learned
Advocate for the appellants. It is accepted.
16] Matter be kept on 11th October, 2021 for final hearing.
JUDGE
vijay
