Bombay High Court
Mr. Nikhilesh Kesharichand Jhaveri And ... vs M/S. New Era Fabrics Ltd. And Ors on 21 December, 2023
Author: Sharmila U. Deshmukh
Bench: Sharmila U. Deshmukh
2023:BHC-AS:38883
sa_mandawgad 1 8wp7607-21
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7607 OF 2021
1. Mr.Nikhilesh Kesharichand Jhaveri
Age : 60 years, Occupation Consultant
2. Ms. Meera Keshrichand Jhaveri
Age : 54 years, Occupation Housewife
3. Ms.Jayashree Jhaveri Lederman
Age : 62 years, Occupation Housewife
All the above Hindu Inhabitants having
their residence at 39, Chowpatty Seaface,
Ratnagar Palace, Mumbai 400 007 ... Petitioners.
Versus
1. M/s.New Era Fabrics Ltd.
A Company incorporated under the
Indian Companies Act, 1956, having
Its registered office at Mogul Lane,
Tulsi Pipe Road, Matunga (West),
Mumbai 400 016.
2. Home Care Retail Marts (P) Ltd.
A Company incorporated under the Indian
Companies Act, 1956, having Its registered
Office at Unit-1, Wasan Udyog Bhavan,
Tulsi Pipe Road, Opp. Phoneix Mills,
Lower Parel, Mumbai 400 013
3. Television 18 India Limited,
A Company incorporated under the Indian
Companies Act, 1956, having Its
office at Empire House 1st Floor, Senapati
Bapat Marg, Lower Parel, Mumbai 400 013
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4. Johnson Dye Works (P) Ltd.,
A Company incorporated under the Indian
Companies Act, 1956, having Its office
at Mogul Lane, Tulsi Pipe Road,
Matunga (West), Mumbai 400 016
5. Hanil Era Textiles Limited
a Company incorporated under the Indian
Companies Act, 1956, having Its office
at Mogul Lane, Tulsi Pipe Road,
Matunga (West), Mumbai 400 016
6. Royal Energy Limited,
A Company incorporated under the Indian
Companies Act, 1956, having Its office
at Mogul Lane, Tulsi Pipe Road,
Matunga (West), Mumbai 400 016.
7. Gnani Investment & Trading Co. Pvt.Ltd.,
A Company incorporated under the Indian
Companies Act, 1956, having its registered
office at A/07 Banoo Mansion August Kranti
Marg, Cumballa Hill, Mumbai 400 036.
Smt. Bhanumati Keshrichand Jhaveri .. (now deceased)
age : 89 years, Occupation Housewife
8. Ms. Daksha Keshrichand Jhaveri
Age : 74 years, Occupation Housewife
Ms. Devika Keshrichand Jhaveri .. (now deceased)
age : 74 years, Occupation Housewife
9. Smt. Vimal Dilip Jhaveri .. (now deceased)
Age : 76 years, Occupation Housewife
10.Mr. Sunil Dilip Jhaveri
Age : 51 years, Occupation Business
sa_mandawgad 3 8wp7607-21
11.Mr. Manoj Dilip Jhaveri
Age : 42 years, Occupation Business
12.Mrs.Neeta Mahesh Tomar
Age : 57 years, Occupation Housewife
Respondent Nos.8 to 12 now residing at
Flat No.1903, Videocon Tower, "B" Behind
Sai Dham, Kandivali (East), Mumbai 400 101
Smt. Manorama Chandrakant Jhaveri.. ..(now deceased)
Age : 73 years, Occupation Housewife
13.Mr. Deepak Chandrakant Jhaveri
Age : 50 years, Occupation Business
All the above Hindu Indian inhabitants
having their residence at 39 Chowpatty
Seaface, Ratnagar Palace Mumbai 400 007
Now residing at Flat No.F-1704,
Ashok Garden, Jivraj Tokersi Road,
Sewree, Mumbai 400 015.
14.M/s.Goodwill Realtors and Properties
Private Ltd. A company incorporated
under the Indian Companies Act, 1956,
having its registered office at 101,
Arun Chambers Tardeo, Mumbai 400 034
Previous address at 37, Floor-2, Flat No.214
Lallubhai Mansion, Shankar Palav Marg,
Dadar (East), Mumbai 400 014. ... Respondents.
------
Mr. Vishal Narichania a/w Ms. Sushma Singh and Sayali Sawant, for
the Petitioner.
Mr. Pradeep Thorat a/w Ms.Neha Bhosale, Ms.Laveena Tejwani,
Mr.Gaurang Mehta and Ms.Neelam Dedhia i/by NDB Law, for the
Respondent No.1.
Mr. Sean Wassoodew, for Respondent No.4
Ms. Namita Shirke i/by Mr. Jaydeep Thakkar, for Respondent No.7.
------
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CORAM : SHARMILA U. DESHMUKH, J.
RESERVED ON : DECEMBER 13, 2023.
PRONOUNCED ON : DECEMBER 21, 2023.
JUDGMENT:
1. Rule. With consent of parties, Rule made returnable
forthwith and taken up for final hearing.
2. By this Petition under Article 227 of the Constitution of
India, exception is taken to the order dated 24th September, 2021
passed by the Appellate Court in Revision Application No.97 of 2021
reversing the order of the trial Court dated 11 th August, 2021
rejecting the Petitioner's application below Exh.606 filed to
expunge/discard and rejected the Affidavit of examination-in-chief of
PW-2.
3. For the sake of convenience, the parties are referred to by
their status before the Trial Court. T.E.&R. Suit No.48/62 of 2009 was
filed against the defendant seeking the following prayers:
"a) the Defendants be ordered and decreed to hand over to
the Plaintiffs vacant and peaceful possession of the suit
property viz. land bearing C.S.No.560 and 561, Final
Plot No.268 TPS II of Mahim Division situate at Mogul
Lane, (earlier known as Lady Harding Road), Tulsi
Pipe Road, known as Senapati Bapat Road, situated at
Mahim (W). Mumbai-400 016, along with structures
standing thereon;
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(b) pending the hearing and final disposal of the above suit,
this Hon'ble Court be pleased to pass an order of
injunction restraining the Defendant No.1 from further
parting with possession of the suit property in any
manner dealing with or transferring any right or
interest in the suit property of any third party under any
arrangement whatsoever;
(c) defendant No.1 restrained from collecting any amount
whatsoever from any of the other Defendant in respect
of any portion of the suit property and Defendant No.2
to 7 be restrained from paying any amount under any
arrangement whatsoever to Defendant No. 1;
(d) pending the hearing and final disposal of the above suit,
Defendant Nos.2 to 6 be directed to deposit all the
amounts in this Hon'ble Court;
(e) pending the hearing and final disposal of the above suit,
that this Hon'ble Court be pleased to order and direct
Defendant No.1 to submit details of payments being
recovered including copies of agreements entered into
with Defendant No.2 to 6 and pay over to the Plaintiff
whatever money/compensation that they receive from
any third party under any arrangement whatsoever, on
account of mesne profits;
(f) pending the hearing. and final disposal of the above
suit, that this Hon'ble Court be pleased' to appoint a fit
and proper person as Court Receiver in respect of the
suit property under Order XL Rule 1 of the Code of
Civil Procedure, 1908;
(g) ad-interim and interim reliefs in terms of prayer clauses
(b) to (f) above;
(h) an inquiry into mesne profit be ordered under Order XX
Rule 12 al the Code of Civil Procedure 1908;"
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4. Issues came to be framed on 1st April, 2016 and the Issue
No.3 relevant for the purpose of the present petition reads as under:
"3. Are the plaintiffs entitled for recovery of
possession and mesne profits? "
5. On 16th November, 2019, in view of the amended plaint and
the amended written statement, additional issues were framed and
Issue No.8 came to be framed which reads thus:
"8. Are the plaintiffs entitled to get mesne profit as
prayed ? If yes, how much ? "
6. An application came to be filed by the defendant no.1 for
recasting Issue No.8 as regards the mesne profits which came to be
rejected vide order dated 6th March, 2020, as against which Revision
Application filed stood dismissed.
7. Subsequently, the plaintiff adduced evidence of PW-2, who
is an Architect and Structural Engineer and Government Approved
Registered Valuer to prove the quantum of mesne profits to be paid
by the Respondent No.1, in which the PW-2 deposed that the mesne
profits/market rent prepared by him in respect of the suit premises is
for the period from March 2009 to February, 2020 i.e. from the date
of the suit notice dated 11th February 2009 to 29th February, 2020.
8. An application below Exh.606 came to be filed by the
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defendant no.1 seeking to expunge and/or discard and/or to pass an
order of rejecting the evidence of PW-2. Vide order dated 11th August,
2021, the trial Court rejected the application, as against which
revision was preferred and by the impugned order dated 24 th
September, 2021, the order of the trial Court was set aside and the
evidence of PW-2 was expunged and discarded from the record on
the ground of relevancy.
9. Heard Mr.Vishal Narichania, learned counsel for the
Petitioner and Mr.Pradeep Thorat, learned counsel for the
Respondent No.1, Mr.Sean Wassoodew, learned counsel for the
Respondent No.4 and Ms.Namita Shirke, learned counsel for the
Respondent No.7.
10. Mr. Narichania, learned counsel for the plaintiff submits that
the plaintiff has sought the relief of past and future mesne profits.
Pointing out the prayer clauses of the plaint and in particular prayer
clauses (c) and (e) he would submit that the relief claimed therein as
regards the amounts received by the defendant from the third party
was on account of mesne profits. He would submit that by rejection
of the application for recasting additional Issue No.8, the plaintiff
was entitled to lead evidence in support of Issue No.8 which casts
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burden upon the Plaintiff as regards mesne profits. He points out the
findings of the trial Court based on Order XX Rule 12 of the Code of
Civil Procedure Code, 1908 (for short, "CPC"), which holds that the
decree for mesne profits till the institution of the suit may be passed
with the decree for possession of immovable property. According to
him, the finding of the Appellate Court that only upon the final
decree the evidence of mesne profit will necessarily follow is contrary
to the settled position in law. Although he has tendered the following
decisions, he relies upon the decisions at Sr. Nos.1 to 3, 5, 6, 8 to 10:
[1] Gopalakrishna Pillai and Others vs. Meenakshi Ayal
and Others, (AIR 1967 SC 155);
[2] Faredoon Maneckji Dalal vs. Phiroze Bomanji Javeri,
(1994 SCC OnLine Bom 150);
[3] Salgaonkar Engineers Private Ltd. vs. George Menezes
Souza in First Civil Appeal No.109 of 1990, dated 22nd
April, 1998 of this Court.
[4] Hindustan Petroleum Corporation Ltd. vs. Mohanjit
Singh (deceased) through Legal Heirs, (2019 SCC
OnLine Del 9419);
[5] Sewa International Fashions & Ors. Vs. Meenakshi
Anand, [ ILR (2012) II Delhi 607];
[6] Consep India Pvt. Ltd. Vs. Cepco Industries Pvt. Ltd.
[2010 (116) DRJ 539];
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[7] P.R.Chikka Subba Rao and Others vs. Nama
Ramaswami Setty and others, (1952 SCC OnLine Kar
86);
[8] Vella Veeran Chetti vs. V.Veeran Chetti and Another
(I.L.R. (1938) Madras Series);
[9] A.P. Bagchi vs. Mrs. F. Morgan, (1936 SCC OnLine All
269);
[10] Ganeshi Lal Sharma vs. Sneha Laata Dasi (ILR (1945)
Calcutta Series 599);
[11] Dalhousie Properties Ltd. Vs. Surajmull Nagarmull,
[(1977) 1 SCC 367];
[12] Raptakos Brett and Co.Ltd. v. Ganesh Property [(2017)
10 SCC 643)];
[13] Kanaklata Das and Ors. Vs. Naba Kumar Das and Ors.
[(2018) 2 SCC 352];
[14] Jainuddin Abdul Rehman Shaikh vs. Sitaram Damodar
Varvadkar and Ors. [1980 SCC OnLine Bom 129];
11. Per contra, Mr. Thorat, learned counsel appearing for the
defendant no.1 submits that the decisions relied upon by the plaintiff
are not applicable in view of the Bombay Amendment. He submits
that the decisions interpret the provisions of Order XX Rule 12 of
the Central Act and by the Bombay Amendment in its application
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to the State of Maharashtra, the provisions of Order XX Rule 12 have
been substituted as sub-clause (ba) of clause (1) introduced by the
1977 amendment does not find place in the Bombay Amendment.
Pointing out to the relevant dates, he would submit that the
termination notice was dated 11th February, 2009 and was to take
effect after 30 days of the receipt of notice by the defendant no.1. He
submits that the notice was received on 14 th February, 2009 and the
period of 30 days expired on 16th March, 2009. Pointing out to the
date of filing of the suit which is 17th March, 2009, he submits that
the possession itself could not be said to be unlawful prior to 16 th
March, 2009 and as such, there is no question of past mesne profits
being claimed. He would submit that for the purpose of claiming past
mesne profits, the amount of mesne profits have to be crystallized,
there has to be necessary pleadings as regards the period for which
the past mesne profits has been claimed as well as a specific prayer in
this regard which is missing in the present case.
12. He would further submit that a specific relief has been
claimed seeking enquiry into mesne profits by virtue of prayer clause
(h). Pointing out to the valuation clause of the plaint, he submits that
the undertaking was given to pay additional court fees on the mesne
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profits being determined by this Court and in event of the past mesne
profits being claimed the amount is crystallized and as such, the
court fees have to be paid as on the date of institution of the suit. He
would submit that taking over all consideration of the pleadings in
the plaint the claim was not for the past mesne profits but for future
mesne profits which requires an enquiry and as such, the evidence of
PW-2 is irrelevant.
13. He has further pointed out the evidence affidavit of PW-1
and would submit that the PW-1 has deposed that an enquiry be
conducted into the mesne profits. He has drawn attention of this
Court to the observations of the trial Court while rejecting the
application for recasting the issues that the absence of the word
"enquiry" into mesne profits while framing the relevant issue does
not itself render any direction to either party to lead evidence in the
suit itself and in event such enquiry is to be made the same has to be
directed while passing of the decree as per Order XX Rule 12 of CPC
only, as it is the procedural aspect. He submits that it is in view of this
finding of the trial Court the revision application came to be
dismissed. He submits that the cross-examination of the three
witnesses of the defendant has already been completed.
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14. In rejoinder, Mr.Narichania, learned counsel for the
Petitioner submits that even if it is taken that the other decisions are
not applicable the judgment of the Calcutta High Court considers
provisions pari materia with the provisions of the Bombay
Amendment. He would further submit that the mesne profits have
been quantified in paragraph 9 of the plaint and prayer clause "e" of
the plaint seeks relief in respect of past as well as future mesne
profits being the compensation which the defendant no.1 was
receiving from the third party.
15. Considered the submissions and perused the record.
16. The provisions of Order II Rule 4 of CPC permits the joinder
of cause of action for recovery of immovable property and claim for
mesne profits or arrears of rent in respect of the property claimed or
any part thereof. Order XX of CPC contains provisions governing
"Judgment and Decree" and the provisions of Rule 12 of Order XX
pertains to decree for possession and mesne profits.
17. The provisions of Order XX Rule 12 indicates two distinct
periods for seeking rent or mesne profits i.e. period prior to the
institution of the suit and period post institution of the suit, until the
delivery of possession by the decree-holder or relinquishment of
possession by the judgment-debtor. In exercise of its rule making
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power under Section 122 of CPC in its application to the State of
Maharashtra, the High Court has substituted Rule 12 of Order XX
under the Central Act with the Rule framed by the High Court. The
Central Act was amended by the Amendment Act 104 of 1976.
Mr.Thorat, learned counsel for the Defendant has sought to
distinguish the judgments cited by Mr.Narichanai on the ground that
the position of Order XX Rule 12 vis-a-vis the Central Act and
Bombay amendment differs pre and post the 1976 amendment and
the decisions are therefore inapplicable.
18. Before adverting further it will be profitable to juxtaposition
Order XX Rule 12 of CPC and the Bombay Amendment substituting
Rule 12 pre and post amendment of 1976.
PRIOR TO 1976 AMENDMENT
Order XX Rule 12 (1) Where the suit is for recovery of possession of
immoveable property and for rent or mesne profits, the
Court may pass a decree-
(a) for possession of the property
(b) for the rent or mesne profits which have accrued on
the property during a period prior to the institution of
the suit or directing an inquiry as to such rent or
mesne profits:
(c) directing an inquiry as to rent or mesne profits from
the institution of suit until-
(i) the delivery of possession to the decree holder
(ii) the relinquishment of possession by the
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judgment debtor with notice to the decree
holder through the Court or
(iii) the expiration of three years from the date
of the decree, whichever event first occurs.
2) Where an inquiry is directed under clause (b) or (c),
a final decree shall be passed in accordance with the
result of such inquiry.
BOMBAY AMENDMENT
Order XX Rule 12 (1) Where a suit is for recovery of possession of
immoveable property and for rent or mesne profits, the
Court may pass a decree-
(a) for possession of the property
(b) for the rent or mesne profits which have accrued on
the property during a period prior to the institution
of the suit or directing an inquiry as to such rent or
mesne profits:
(c) directing an inquiry as to rent or mesne profits from
the institution of suit until-
(i) the delivery of possession to the decree holder
(ii) the relinquishment of possession by the judgment
debtor with notice to the decree holder through
the Court
2) Where an inquiry is directed under clause (b) or (c)
of sub rule (1) above, a final decree shall be passed in
accordance with the result of such inquiry.
POST - 1976
AMENDMENT ACT 104 OF 1976:
Order XX Rule 12 12(1) Where the suit is for recovery of possession of
immoveable property and for rent or mesne profits, the
Court may pass a decree-
(a) for possession of the property
(b) for the rent which have accrued on the property
during a period prior to the institution of the suit
or directing an inquiry as to such rent :
sa_mandawgad 15 8wp7607-21
(ba) for the mesne profits or directing an inquiry as to
such mesne profits
(c) directing an inquiry as to rent or mesne profits
from the institution of suit until-
(i) the delivery of possession to the decree holder
(ii) the relinquishment of possession by the
judgment debtor with notice to the decree
holder through the Court or
(iii) the expiration of three years from the date of
the decree, whichever event first occurs.
2) Where an inquiry is directed under clause (b) or
(c), a final decree shall be passed in accordance with
the result of such inquiry.
BOMBAY AMENDMENT POST 1976:
Order XX Rule 12 (1) Where a suit is for recovery of possession of
immoveable property and for rent or mesne profits, the
Court may pass a decree-
(a) for possession of the property
(b) for the rent or mesne profits which have accrued on
the property during a period prior to the institution
of the suit or directing an inquiry as to such rent or
mesne profits:
(c) directing an inquiry as to rent or mesne profits from
the institution of suit until-
(i) the delivery of possession to the decree holder
(ii) the relinquishment of possession by the judgment
debtor with notice to the decree holder through
the Court
2) Where an inquiry is directed under clause (b) or (c)
of sub rule (1) above, a final decree shall be passed in
accordance with the result of such inquiry.
19. The provisions of Order XX Rule 12 of the Central Act when
juxtaposed with the Bombay amendment, indicates that till the
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amendment of 1976 which took effect from 1st February, 1977,
except sub-clause (c) (iii) of Clause (1) of Rule 12 which was absent
from the Bombay amendment, the provisions are pari materia. Post
the amendment in the year 1977, sub clause (ba) of clause (1) was
introduced by Amendment Act 104 of 1976 in Rule 12 of Order XX
which does not find place in the Bombay amendment.
20. Having summarised the statutory provisions pre and post
the amendment vide Amendment Act 104 of 1976, the plaint will
have to be scrutinised to ascertain the relief sought by the Plaintiff.
The plaintiff has come with a case that by notice dated 11 th February,
2009, tenancy has been terminated, which notice was received by the
Defendant no.1 on 14th February, 2009. In paragraph 9 of the plaint,
it is pleaded that the defendant no.1 is liable to pay the plaintiff's
mesne profits @ market rate of Rs 100/ per square foot per month
amounting to Rs.1,16,10,000/ per month from the date of
termination of his tenancy in respect of the suit property till
defendant no.1 hands over the possession of the suit property to the
plaintiff. In paragraph No.10 of the plaint, the plaintiff has pleaded
that the defendant No.1 is liable to handover to the plaintiff the
amount which they may recover from any third party whom the
defendant no.1 has permitted to occupy the portion of the suit
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property on account of mesne profits to be finally adjusted against
the claim of mesne profits made by the Plaintiff. Paragraph 14 of the
plaint, values the claim at the annual rack rent of Rs.6,500/- p.m.
and undertaking is given to pay additional court fees on the mesne
profits being determined. Prayer clause (h) prays for an enquiry into
mesne profits under Order XX Rule 12 of the CPC and prayer clause
(e) which is an interim relief seeks direction to the defendant no.1 to
pay over money that they received from third party on account of
mesne profits.
21. Perusal of the averments in the plaint would indicate that
the mesne profits quantified at Rs.1,16,10,000/- per month @
Rs.100/ per square foot is sought from the date of termination of the
tenancy till the handing over of the possession i.e. past and future
mesne profits. However in the prayer clause (h) the relief sought is
inquiry into mesne profits under Order XX Rule 12 of CPC. The
submission of learned counsel for Plaintiff that prayer clause (e) of
the plaint seeks past mesne profits is misconceived as firstly the
prayer is for interim relief and secondly the amount has not been
crystallised. Mr. Thorat, is therefore right in his contention when he
points out the notice of termination which calls upon the defendant
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no.1 to handover the possession after a period of 30 days from the
receipt of the notice which expired on 16 th March 2009 and the suit
was filed on 17th March, 2009. The dates mentioned by Mr. Thorat is
not disputed by Mr. Narichania.
22. What can be inferred is that the possession became unlawful
on 16th March, 2009 and as such, the suit having been filed
immediately on 17th March, 2009, there is no question of past mesne
profits. Prayer clause (h) sought an inquiry into future mesne profits.
The submission of Mr. Thorat is also supported by the decision in the
case Gopalakrishna Pillai and Others, (supra) which has been relied
by the learned counsel for the Plaintiff, where the Apex Court, in an
appeal from the decision of Madras High Court, in the context of a
decree declaring that the plaintiffs therein were entitled to past
mesne profits and inquiry into the future mesne profits under Order
XX Rule 12 was considering the issue whether in the absence of the
specific prayer, Court has a jurisdiction to pass a decree for such
mesne profits.
23. The Apex Court held that with regard to past mesne profits
the plaintiff has an existing cause of action on the date of institution
of suit and the plaintiff must plead this cause of action, specifically
sa_mandawgad 19 8wp7607-21
claim a decree for past mesne profits, value the claim approximately
and pay court fees thereon. The Apex Court in that case held that the
Court has discretionary power to pass a decree directing an enquiry
in future mesne profits and the Court may grant this general relief
though it is not specifically asked for in the plaint.
24. Considering the decision of the Apex Court if the plaint is
perused, although there are pleadings as regards the claim from the
date of termination of the tenancy and a specific amount has been
claimed per month considering that the suit has been filed on the
very next day of the expiry of the date by which the defendant no.1
was directed to hand over the vacant possession, the claim could not
be said to be a claim for past mesne profits and the undisputed
position is that the prayer clause does not seek any relief that the
said amount be ordered to be paid to the Plaintiff. Neither the claim
for past mesne profits have been valued nor Court fees have been
paid thereon. It can therefore be inferred that the claim of the
Plaintiff in the plaint was for an enquiry under Order XX Rule 12 of
CPC for future mesne profits.
25. The question therefore arises whether the Trial Court has
the discretion to pass a decree for future mesne profits alongwith the
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decree for possession or the Trial Court has to pass a preliminary
decree and direct an inquiry into the mesne profits post institution of
the suit under Order XX Rule 12. As indicated above, it is only after
the amendment of the year 1977 that clause (ba) was introduced
which does not find place in the Bombay amendment which applies
in the instant case.
26. Mr. Narichania by relying on various decisions noted above
would contend that the position has been settled that the Trial Court
has the discretion to pass the decree for future mesne profits
alongwith the decree for possession, which has been sought to be
distinguished by Mr. Thorat.
27. Coming to the decisions relied upon by Mr. Narichania, as
regards the decision in the case of Faredoon Maneckji Dalal (supra),
in facts of that case there was specific prayer for past mesne profits
and future mesne profits quantifying both past and future mesne
profits which came to be decreed. The learned Single Judge of this
Court was considering the dispute raised by the Plaintiff as regards
the payment of the additional fees on the aggregate amount of mesne
profits till the date of judgment. The Court held that under the old
Code of Civil Procedure, the Court could determine the amount of
sa_mandawgad 21 8wp7607-21
mesne profits pendente lite upto the institution of the suit and pass a
decree for it alongwith a decree for possession and the Court could
not under the old Act determine the future mesne profits in the suit
and pass a decree, whereas under the present Code, the Court can
determine past and future mesne profits in the suit itself and make a
decree called final decree for mesne profits capable for execution.
28. The learned Single Judge relied upon the decision of
Madras High Court in the case of Vella Veeran Chetti (supra). The
Madras High Court held that there is nothing to preclude the Court
from passing the decree without directing an inquiry if the parties
agree or do not object..... In cases where an inquiry is unnecessary, it
seems to us that it would be an idle formality to pass such a decree.
(Emphasis supplied).
29. Pertinently, the Madras High Court relied upon the decision
in A.P. Bagchi vs Mrs. F. Morgan (supra), where the Allahabad High
Court held that when the plaintiff made it clear that she confined her
relief to the recovery of fixed rents which had been agreed upon by
the parties, the amount was definitely ascertained and there was no
occasion for framing a preliminary decree so that there may be
another ascertainment of the amount due to the plaintiff. The
sa_mandawgad 22 8wp7607-21
principle of law laid down by the Madras High Court is that the
Courts are not precluded from passing the decree for future mesne
profits if the parties agree or do not dispute in which case an inquiry
becomes unnecessary as in case where the relief is confined to the
fixed rent in which case an inquiry into the amount claimed becomes
unnecessary.
30. The decision in Faredoon Maneckji Dalal (supra)was not
considering the issue as to the power of Trial Court to pass a decree
for future mesne profits alongwith decree for possession. In that case
there was no challenge as in the present case that clause (ba) of
Order XX Rule 12 is conspicuous by its absence in Bombay
amendment and as such the decree for future mesne profits could not
be passed.
31. In the case of Salgaonkar Engineers Private Ltd. (supra),
the relief sought was for past and future mesne profits @ Rs.2,500/-
whereas the lease rent was Rs.2,000/- p.m. The suit was decreed
granting Rs.2,000/- as rent/mesne profits compensation from
October, 1992 i.e. post institution of the suit till handing over
possession. Learned Single Judge of this Court held that the use of
the word "may" confers discretion on the Court either to direct or not
sa_mandawgad 23 8wp7607-21
to direct an enquiry into future mesne profits and in case there is
already sufficient material on record, it may not be necessary to
direct enquiry.
32. The decisions of the Delhi High Court in case of Hindustan
Petroleum Corporation Ltd. vs. Mohanjit Singh (supra), Sewa
International Fashions vs. Meenakshi Anand (supra) and Consep
India Pvt Ltd vs. Cepco Industries Ltd. (supra) considered Rule 12(1)
(ba) of Order XX of the Central Act which does not find place in the
Bombay amendment.
33. As regards the decision of the Calcutta High Court in the
case of Ganeshi Lal Sharma vs Sneha Lata Dasi (supra) Mr.Narichania
would submit that the decision of the Calcutta High Court was a
pre-1977 decision which is pari materia with the Bombay
Amendment, which was disputed by the learned counsel appearing
for the defendant no.1, who placed on record pre-1977 Bombay
Amendment to Rule 12 of Order XX, which reads thus:
"R. 12. Decree for possession and mesne profits.- (1)
Where a suit is for the recovery of possession of
immovable property and for rent or mesne profits, the
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Court may pass a decree
(a) for the possession of the property;
(b) for the rent or mesne profits which have accrued on
the property during the period prior to the institution of
the suit, or directing an enquiry as to such rent or mesne
profits;
(c) directing an enguiry as to rent or mesne profits from
the institution of the suit until -
(i) the delivery of possession to the decree-holder, or
(ii) the relinquishment of possession by the judgment-
debtor with notice to the decree-holder through the
Court.
(2) Where an inquiry is directed under clause (b) or
clause (c) of sub-rule (1) above, a final decree in respect
of the rent or mesne profits shall be passed in accordance
with the result of such enquiry." (1-11-1966)
34. The provisions quoted above will indicate that the Calcutta
High Court was considering the provisions of Order XX Rule 12(1) of
CPC, which is reproduced in the decision and reads thus:
"Where a suit is for the recovery of possession of immovable
property and for rent or mesne profits, the Court may pass a
decree -
(a) for the possession of the property;
(b) for the rent or mesne profits which have accrued on the
property during a period prior to the institution of the suit or
directing an enquiry as to such rent or mesne profits;
(c) directing an enquiry as to rent or mesne profits from the
institution of the suit until -
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor
with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree,
sa_mandawgad 25 8wp7607-21
whichever event first occurs."
35. As held by the Calcutta High Court in Ganeshi Lal Sharma
(supra), usually the Courts would pass preliminary decree for future
mesne profits, however, the Courts have the discretion to pass decree
for future mesne profits if in circumstances of the case the enquiry is
unnecessary or waived by the parties. The Allahabad High Court in
A.P. Bagchi vs. Mrs. F. Morgan (supra) held that the preliminary
decree becomes necessary only where the exact amount has to be
ascertained after an examination of fresh evidence and if the plaintiff
claims mesne profits on the basis of rent, which is fixed and agreed
upon between the parties or if the Court decided that the mesne
profits ought to be allowed on that basis, the amount being definitely
ascertained, there would be no occasion for passing a preliminary
decree so that there may be another ascertainment of the amount
due to the plaintiff. Although not binding on this Court, the decision
of Calcutta and Allahabad High Court have persuasive value.
36. In the present case, in the plaint it is pleaded that the
defendant no.1 is liable to mesne profit at the market rate of
Rs.100/- per sq.feet. amounting to Rs.1,16,10,000/- p.m. from the
date of termination of his tenancy till handing over the possession. As
sa_mandawgad 26 8wp7607-21
such, the mesne profits is not an ascertained amount which was fixed
and agreed between the parties. In this eventuality, it cannot be said
that an enquiry into the mesne profits is unnecessary. The evidence of
PW-2 would indicate that the valuation has been done by taking into
account the comparable instances as well as the ready recknor value.
As such, the exact amount will have to be determined after
examination of the valuer. Mr. Thorat is right in pointing out the
order of the trial Court dated 6th March, 2020 rejecting the
Application for recasting of issue No.8 that the trial Court itself has
held that the question of directing an inquiry would arise in event of
decree of possession of immovable property is passed and if it is
proved that such parties are entitled to mesne profits and that the
same is to be directable by passing of the decree. It cannot thus be
said that by virtue of issue No.8 the plaintiffs are entitled to lead
evidence as to the future mesne profits in the suit itself.
37. The trial Court while rejecting the application of defendant
no.1 to reject the evidence of PW-2 has held that in view of the issue
No.8 being framed, the affidavit of PW-2 cannot be said to be
irrelevant. While doing so, the trial Court had taken into
consideration Clause (ba) of the Order XX Rule 12, whereas it was
sa_mandawgad 27 8wp7607-21
the Bombay Amendment which was applicable in the instant case.
Further the trial Court failed to notice its earlier finding while
rejecting the Application for recasting of the issue. The trial Court
held that the decree for mesne profits till the institution of the suit
may be passed with the decree for possession of immovable property.
38. It appears that the trial Court considered the evidence of
PW-2 as regards past mesne profits. The trial Court failed to notice
that the relief sought in the plaint was in respect of future mesne
profits, as the suit was filed on the next date of determination of
tenancy and that the valuation report was also for the period from
March, 2009 to February, 2020, whereas the plaint filed in the month
of March 2009. The finding of the trial Court was clearly
unsustainable.
39. The Appellate Court held that mesne profits has to be drawn
after direction of the trial Court through a preliminary or final decree
and if the issue of termination goes negative, there is no use of the
evidence of mesne profits. Upon perusal of the Bombay Amendment
of Rule 12 of Order XX, the Appellate Court held that only upon the
final decree, the evidence of mesne profits will follow and no other
fact situation. The Appellate Court considered the prayer clause (h)
which sought an enquiry into the mesne profits.
sa_mandawgad 28 8wp7607-21
40. In my view, reading of the Bombay Amendment would
indicate that the use of the word, "may" vests discretion in the Court
to direct an enquiry into future mesne profits. I am respectfully
bound by the decision of Goa Bench of this Court in Salgaonkar
Engineers Private Ltd. (supra), which holds that in case there is
already sufficient material on record it will not be necessary to direct
an enquiry into the future mesne profits. In my opinion, where the
claim for future mesne profits is an agreed ascertained sum of money
directing an enquiry into the future mesne profits, would be an
exercise in futility. There is no rationale for reading the Bombay
amendment as placing an embargo on the power of the Court in all
cases to direct an enquiry into future mesne profits. In cases where
the enquiry is unnecessary, the Court has the power to pass a decree
for future mesne profits alongwith a decree for eviction. It is also
well-known that even after the preliminary decree for enquiry into
the mesne profits is passed, the determination of the future mesne
profits takes a substantial time.
41. In the instant case, considering the pleadings in the plaint,
an enquiry into future mesne profits is necessary.
42. In light of the above, the order of Appellate Court
expunging the affidavit of evidence of PW-2 cannot be faulted.
Petition fails and is dismissed.
(Sharmila U. Deshmukh, J.)
Signed by: Sanjay A. Mandawgad
Designation: PA To Honourable Judge
Date: 21/12/2023 20:43:27
