Rani Pushpa Kumari Devi (Deceased ... vs The Embassy Of Syrian Arab ...
2003 Latest Caselaw 1237 Del

JUDGMENT

B.N. Chaturvedi, J.

1. On a suit for recovery of possession and mesne profits being filed, the same was partly decreed in favor of applicant/plaintiff in regard to relief of possession only. The claim for mesne profits for use and occupation of suit premises was however, held barred for want of sanction in that respect under Section 86(1) of the Code of Civil Procedure and the plaint was accordingly rejected to that extent vide judgment and decree dated 31st March, 2003.

2. Aggrieved by rejection of plaint in regard to the relief of damages/mesne profits, the applicant/plaintiff has filed instant application with prayers to the following effect :

"8 (a) an order and/or direction to the extent that the reference and/or mention and/or finding with regard to the issue No. 5 of damages and/or mesne profit which was never the subject matter of the judgment dated 31.3.2003 may be deletedand necessary and/or appropriate clarification and/or modification may be issued and/or carried out; and

(b) such other or further orders and/or directions as this Hon'ble Court may deem fit and proper."

3. In support of this application, reference was made to certain orders to point out that trial of the suit in relation to issue No. 5, pertaining to mesne profits had, as a matter of fact, been separated and the trial was confined to issues No. 1 to 4 only and therefore, it was not open to decide issue No. 5 as well by returning a finding that the relief of mesne profits could not be granted by virtue of bar in bringing the suit in that respect for want of Central Government's sanction under Section 86(1) CPC. This necessitates taking note of certain orders passed on various dates during the course of trial. The issues in the suit were settled on 29th January, 1996. The issues were :

(1) Whether the plaintiff has no locus standi to file the present suit ? OPD

(2) Whether the tenancy of the defendant has not been terminated in accordance with law ? OPD

(3) Is the notice dated 27th November, 1990 not valid ? OPD

(4) Whether the plaintiff has obtained valid permission under Section 86 of the Code of Civil Procedure to file the present suit ? OPP

(5) Whether the plaintiff is entitled to damages/mesne profits ? If so, from which date and what rate ? OPD

(6) Relief.

4. Issues No. 1 to 4 were set down for hearing thinking that findings on the same could be returned without requiring the parties to adduce any evidence thereon and the suit relating to the relief of possession could be decided. Of course, on behalf of defendant, it was pointed out that the evidence would be required for a decision on issues No. 2 and 3 but such submission was not accepted. It was, however, left open for consideration at the time of hearing on issues No. 1 to 4 if any oral evidence was actually required to be adduced on issues No. 2 and 3 before returning findings thereon.

5. The matter remained pending until 12th October, 2000 when by a judgment of even date, issues No. 1 to 4 were decided in favor of the plaintiff and against the defendant and the suit for recovery of possession was decreed. The issue of mesne profits was left open for decision after recording of evidence. A regular first appeal, being RFA (OS) No. 7/2001, was filed against the judgment and decree dated 12th October, 2000 by the defendant challenging the findings on issues No. 1 to 4. In the course of hearing, the parties' counsel agreed for judgment and decree dated 12th October, 2000 being set aside and the suit being remanded for trial in accordance with law. Accordingly, the appeal was allowed and the judgment and decree dated 12th October, 2000 were set aside and the suit was remanded for trial with liberty to the parties to raise all pleas and contentions as were available to them in law. To facilitate a decision on the instant application following part of order in appeal appears relevant for a reference in the context of arguments advanced on behalf of the non- applicant/defendant. It runs as under :

"...............keeping in view the nature of the pleas raised we direct that the suit be set down for trial at this stage only on issues No. 1 to 4 for which purpose parties have agreed that the evidence be permitted to be recorded by Joint Registrar. We accordingly appoint Mr. A.S. Yadav, Joint Registrar to record the evidence in the suit ......."

6. Apart from the above extracted portion of the order dated 15th May, 2001, passed in appeal, a reference was also made by the learned Senior counsel for the applicant/plaintiff to an order dated 9th February, 2001, which was passed before the judgment and decree dated 12th October, 2000 in relation to the relief of possession were set aside in appeal. On the relevant date, since the suit in regard to possession had already stood decreed, it was noted in the order dated 9th February, 2001 that the only question pending for consideration was in respect of payment of mesne profits, in terms of judgment dated 12th October, 2000. It was noticed that the issue of mesne profits/damages was to be decided after recording of evidence. Learned counsel for the non- applicant/defendant had advanced a plea against non maintainability of the suit regarding mesne profits on the ground that permission given by Government of India under Section 86(2) of the Code of Civil Procedure on 1st January, 1991 was confined only to a suit for obtaining vacant possession of the suit property and there was no sanction for bringing a suit for recovery of mesne profits. The arguments so advanced on behalf of defendant were however not accepted and the same were turned down in the following terms :

" ............... it appears to me that the recovery of mesne profits is a consequential relief which the plaintiff can always agitate in a suit for possession........"

7. In view of the aforesaid orders dated 29th January, 1996, 9th February, 2001 and order dated 15th May, 2001 passed in appeal as well as the judgment and decree dated 12th October, 2000, learned counsel for the applicant/plaintiff sought to point out that since the scope of the trial on the date when the judgment and decree dated 31st March, 2003 were passed was limited to the part of the suit relating to relief of possession only and for a decision on issue No. 5 pertaining to entitlement of the applicant/plaintiff for mesne profits/damages, the decision was to follow after recording of evidence in an inquiry under Order XX Rule 12 CPC, it was not open to foreclose the trial in that respect by rejecting the plaint for the relief of mesne profits/damages. He accordingly sought a review of the judgment and decree dated 31st March, 2003 by recalling the order rejecting the plaint for want of sanction under Section 86(1) CPC to bring a suit for recovery of mesne profits/damages.

8. Learned counsel for the non-applicant/defendant pleaded for rejection of the application on the ground that after passing the judgment and decree dated 31st March, 2003, this Court has become functus officio and that the present application being one under Section 151 CPC and not for review of the judgment and decree dated 31st March, 2003 the same is not maintainable. He further argued that the order dated 9th February, 2001 directing an inquiry under Order XX Rule 12 CPC by recording evidence for a decision on issue No. 5 being based on the judgment and decree dated 12th October, 2000, the same stood merged with the order dated 15th May, 2001 passed in RFA (OS) No. 7/2001 by virtue of operation of doctrine of merger and since the judgment and decree dated 12th October, 2000 stood set aside in appeal, the very basis of the order dated 9th February, 2001 was lost and by implication even order dated 9th February, 2001 for an inquiry under Order XX Rule 12 CPC and recording of evidence on Issue No. 5 for a decision at a later stage stood merged in the order dated 15th May, 2001. Referring to the aforesaid order in appeal, the learned counsel for the non-applicant/defendant contended that while setting aside the judgment and decree dated 12th October, 2000 and remanding the case for trial on issues No. 1 to 4, it was left open to the parties to raise all pleas and contentions as would be available to them in law. The liberty so granted, according to learned counsel for the non-applicant/defendant, made it possible for it to press its plea against maintainability of suit in relation to the relief of mesne profits/damages while addressing on issue No. 5. He wondered if issue No. 4 could be decided in a piecemeal manner by confining requirement of a sanction in regard to the relief of possession only and leaving the necessity of a sanction for maintainability of the suit for the relief of mesne profits/damages undecided and to be taken up while returning findings on issue No. 5.

9. Heard the learned counsel for the parties on either side.

10. It is the substance and not form of an application that determines its maintainability. The application on hand is captioned as "application under Section 151 CPC for clarification and/or modification and/or reviewing the judgment and order dated 31.3.2003". And the prayer clause runs as under :

"In the facts and circumstances aforesaid the plaintiff most respectfully prays that this Hon'ble Court may be pleased to pass :

(a) an order and/or direction to the extent that the reference and/or mention and/or finding with regard to the issue No. 5 of damages and/or mesne profit which was never the subject matter of the judgment dated 31.3.2003 may be deleted and necessary and/or appropriate clarification and/or modification may be issued and/or carried out; and

(b) such other or further orders and/or directions as this Hon'ble Court may deem fit just and proper."

11. In essence the application would thus appear to be one for review of judgment and decree dated 31.3.2003. Simply because there is mention of Section 151 CPC in the caption of the application, the same would not lose its character in essence. The application in question was filed on 26th April, 2003 well within thirty days of the judgment dated 31.3.2003 and therefore its maintainability is not assailable on the point of limitation. The learned counsel for the non-applicant/defendant in the course of hearing did not dispute the proposition that in the event of the application being treated as one for review of the judgment dated 31.3.2003, the Court would be competent to deal with the same. Since the present application is clearly for review of judgment dated 31.3.2003 and not one under Section 151 CPC though so indicated, there would appear no merit in questioning its maintainability. The argument in this regard is thus liable to be brushed aside being misconceived.

12. The learned counsel for the non-applicant/defendant did not dispute that going by the order dated 9th February, 2001 directing an inquiry under Order XX Rule 12 CPC by recording evidence for decision on Issue No. 5 relating to mesne profits/damages, the decision thereon was to follow at a later stage. Learned counsel for the non-applicant/defendant however added that since the said order was based on judgment dated 12th October, 2000 which was under appeal and had later been set aside, that order merged with the order in appeal and did no longer exist once the suit was set down for trial in accordance with law on Issue Nos. 1 to 4 with liberty to the parties to raise all pleas and contentions as could be available to them in law. He felt that with the setting aside of the judgment and decree dated 12th October, 2000, order dated 9th February, 2001 also stood wiped out. There can be no controversy to the legal proposition that the judgment and decree of a trial Court merges with the judgment of the Appellate Court. However, the validity of this proposition would depend on the scope of the appeal. Where the appeal is limited to a particular part of suit only, the remaining part of suit being dealt with separately and not being subject matter of appeal, any order passed in appeal, unless such order specifically takes note of the remaining part of the suit as well which is not under appeal and passes any order in respect thereto being essential for disposal of the appeal, any order passed in relation to the remaining part of the suit would remain unaffected.

13. To appreciate the point raised by learned counsel for non-applicant/defendant in its right perspective the scope of the appeal (RFA (OS) No. 7/2001) may be noticed. On 29th January, 1996 Issue Nos. 1 to 4, which primarily pertained to the relief of possession, were set down for hearing without recording any evidence thereon and while deciding these issues in favor of applicant/plaintiff, the relief of possession was eventually granted in his favor by judgment and decree dated 12th October, 2000. On such judgment and decree being challenged in appeal by the non- applicant/defendant, the appeal was finally disposed of by setting aside the same in view of parties' agreement for a fresh trial in accordance with law.

14. While remanding the case for trial there was specific direction that the trial was to be confined to Issues No. 1 to 4 only and the parties were accordingly allowed to adduce their respective evidence before the Joint Registrar appointed for recording the same. Indisputably, the nature of evidence on Issue No. 5 had no element of commonality with the one required for decision on Issues No. 1 to 4. This appears to have been the reason why the direction for production of evidence by the parties was restricted to Issue Nos. 1 to 4 only.

15. The decision on Issue No. 5 did not necessarily depend on the final outcome of the suit on Issues No. 1 to 4 and in any case, evidence of the parties on the issue of mesne profits, which could be adjudged due and recoverable from the non-applicant/defendant was required to be recorded independent of evidence on Issues No. 1 to 4. Trial of the suit in regard to Issue No. 5 had been separated as back as on 29th January, 1996 when the issues were settled and the hearing of the suit was restricted to Issues No. 1 to 4 only. In the order dated 9th February, 2000 while directing an inquiry under Order XX Rule 12 CPC and recording of evidence on Issue No. 5, this Court made reference to the judgment and decree dated 12th October, 2001 only for a limited purpose to indicate that part of the suit relating to possession had already stood decided and only the issue of mesne profits remained to be adjudicated. This did not mean that the order dated 9th February, 2001 was based on the judgment and decree dated 12th October, 2000 in the sense that it could not stand on its own strength independent of judgment and decree dated 12th October, 2000 and that both could swim and sink together. The order dated 9th February, 2001, in the face of argument on behalf of non-applicant/defendant that the suit for mesne profits was not maintainable for want of requisite sanction of the Central Government under Section 86(2) CPC ruled that "the recovery of mesne profits is a consequential relief which the plaintiff can agitate in a suit for possession......." This part of order was not challenged by the non-applicant/defendant and thus the same continued to bind the parties. Liberty granted to the parties to raise their pleas and contentions as could be available under law while remanding the case for trial on Issues No. 1 to 4 could not be held to allowing raising of same very plea against maintainability of suit in regard to the mesne profits for want of requisite sanction, which had earlier been agitated by the learned counsel for the non-applicant/defendant but without any success. In the facts and circumstances of the case, decision in appeal relating to fresh trial on Issues No. 1 to 4 could not be said to have had any bearing on the order dated 9th February, 2001 and the same could not be held to have been wiped out in view of doctrine of merger as contended by learned counsel for non-applicant/defendant. Notwithstanding the order dated 15.5.2001 in RFA (OS) No. 7/2001 remanding the case for trial and decision on Issues No. 1 to 4 after recording of evidence thereon, the trial on Issue No. 5 continued to be regulated in terms of orders dated 29th January, 1996 and 9th February, 2001. These orders inadvertently skipped my attention while passing the judgment dated 31.3.2003 and in the process deciding the suit as a whole. Had these orders been adverted to, no order for rejection of plaint for absence of sanction of Central Government under Section 86(1) CPC would have been passed. To this extent therefore, there is an error apparent on the face of record warranting an order rectifying the mistake in passing the judgment and decree dated 31.3.2003 by rejecting the plaint in regard to relief of mesne profits. As far as Issue No. 4 is concerned, the same, no doubt , has a bearing on the issue of possession as well as mesne profits, there is however, no legal impediment in deciding this issue in parts in regard to the respective reliefs of possession and mesne profits separately. The argument of the learned counsel for the non-applicant/defendant that the same cannot be decided in piecemeal manner, thus carries no conviction.

16. As a result, the application is allowed and judgment dated 31.3.2003 is modified to the extent that para 51 shall stand deleted and the same shall not form part of the judgment. The decree shall also stand corrected accordingly. As a consequence, the suit for a decision on Issue No. 5 in regard to relief of mesne profits shall now proceed in terms of order dated 9th February, 2001. The suit is accordingly directed to be listed before appropriate Bench for directions on 12.11.2003.