Delhi High Court
Sanjay Kumar Nagpal vs Rajender Kumar & Anr on 15 February, 2017
$~A-19
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 15.02.2017
+ CM(M) 34/2017 & CM No.117/2017
SANJAY KUMAR NAGPAL ..... Petitioner
Through Mr.Bhaskar Tiwari, Advocate and
Mr.Amit Negi and Mr.S.Jain, Advocates
versus
RAJENDER KUMAR & ANR ..... Respondent
Through Mr.Vishal Bhatnagar and Mr.Vineet
Gandhi, Advocates
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
1. By the present petition under Article 227 of the Constitution of India
the petitioner seeks to impugn the order dated 22.10.2016 by which the
application filed by the respondent under Order 41 Rule 5 CPC was allowed
and the decree dated 21.08.2015 was stayed subject to deposit of
Rs.2,70,000/-.
2. The petitioner filed a suit for possession, recovery of rent and mesne
profit against the respondents. The trial court by decree dated 17.7.2015
passed a decree of possession in favour of the petitioner. It also passed a
decree for Rs.20,000/- as damages/mesne profits for the period 1.2.2008 till
15.10.2008. It also passed a decree for damages, mesne profit to the
petitioner @ Rs.50,000/- per month from 17.10.2008 i.e. from the date of
CM (M) 34/2017 Page 1
filing of the suit with an increase of 10% every year till possession of the
suit property is given by the respondent.
3. The respondents have filed an appeal before the appellate court
alongwith the said application for interim stay. The appellate court has by
the impugned order noted limited grounds granting of the interim orders.
The relevant portion of the order reads as follows:-
"12. It is worth noting that pecuniary jurisdiction of ld.trial
court i.e. Ld.Civil Judge was up to Rs.3 lacs. In the plaint,
plaintiff valued the suit at Rs.30,000/- in respect of the relief of
possession. Keeping in view these facts, operation of impugned
judgment dated 17.07.2015 and impugned decree dated
21.08.2015 is stayed subject to deposit of Rs.2,70,000/- by
applicant/appellant before Ld.Trial Court/Executing Court."
4. Hence, the only ground on which stay of the decree of mesne
profit/damages has been granted is that the jurisdiction stated in the plaint is
Rs.30,000/- whereas the relief granted by the trial court is far more than the
sum of Rs.3 lacs which is the pecuniary jurisdiction of the Civil Judge.
5. Learned counsel for the petitioner relies upon the judgment of the
Supreme Court in Kanpur Jal Sansthan and Another vs. Bapu
Constructions, (2015) 5 SCC 267 to contend that ordinarily execution of a
money decree is not stayed as satisfaction of a money decree does not
amount to irreparable injury and in the event of appeal being allowed and
the remedy of restitution is always available. He has also relied upon Full
Bench judgment of the Calcutta High Court in BIdyadhar Bachar and Ors.
vs. Manindra Nath Das and Ors., AIR 1925 Cal 1076 and judgment of the
Single Bench of Patna High Court in Babu Dinanath Sahai vs. Musammat
Mayawati Kuer, Manu/BH/0288/1921.
CM (M) 34/2017 Page 2
6. Learned counsel appearing for the respondent submits that various
grounds have been taken by the respondents in the grounds of appeal
including the fact that the present suit is hit by Delhi Rent Control Act.
Hence, it is urged that these are the facts which would have weighed with
the appellate court in passing the stay order.
7. In my opinion, there is no merit in the submission of learned counsel
for respondent. The impugned order by which stay has been granted does
not reflect any such reasoning. The only ground for stay stated is that the
trial court did not have pecuniary jurisdiction to try the matter as relief
beyond the sum of Rs.3 lacs which is the pecuniary jurisdiction of the civil
judge has been granted.
8. The Supreme Court in Mahadeo Savlaram Shelke and Others vs.
Pune Municipal Corporation and Another, (1995) 3 SCC 33 held as
follows:-
"14 ......Even otherwise the court while exercising its equity
jurisdiction in granting injunction has also jurisdiction and
power to grant adequate compensation to mitigate the
damages caused to the defendant by grant of injunction
restraining the defendant to proceed with the execution of the
work etc., which is retrained by an order of injunction made
by the court. The pecuniary award of damages is
consequential to the adjudication of the dispute and the result
therein is incidental to the determination of the case by the
court. The pecuniary jurisdiction of the court of first instance
should not impede nor be a bar to award damages beyond it
pecuniary jurisdiction. In this behalf, the grant or refusal of
damages is not founded upon the original cause of action but
the /consequences of the adjudication by the conduct of the
parties, the court gets inherent jurisdiction in doing ex debito
justitiae mitigating the damage suffered by the defendant by
the act of the court in granting injunction restraining the
CM (M) 34/2017 Page 3
defendant from proceeding with the action complained of in
the suit It is common knowledge that injunction is invariably
sought for in laying the suit in a court of lowest pecuniary
jurisdiction even when the claims are much larger than the
pecuniary jurisdiction of the court of first instance, may be,
for diverse reasons. therefore, the pecuniary jurisdiction is
not and should not stand an impediment for the court of first
instance in determining damages as the part of the
adjudication and pass a decree in that behalf without
relegating the parties to a further suit for damages. This
procedure would act as a check on abuse of the process of the
court and adequately compensate the damages or injury
suffered by the defendant by act of court at the behest of the
plaintiff."
9. This court in Sona Dave and Ors. vs. Trans Asian Industries
Expositions Pvt. Ltd., AIR 2016 Delhi 186 held as follows:-
"30. I have, speaking for the Division Bench of this Court in
Santosh Arora Vs. M.L. Arora MANU/DE/1162/2014
observed that i) law permits a claim for future mesne profits
i.e. for a relief, the cause of action wherefore has not accrued
to the plaintiff on the date of the institution of the suit to be
made; ii) Order 20 Rule 12 of the CPC requires the Court, in
a suit for recovery of possession of immovable property and
for rent or mesne profits, to, besides passing decree for
possession, also pass a decree for mesne profits or direct an
enquiry as to such mesne profits, for the period prior to the
institution of the suit if claimed and if within limitation on the
date of institution of the suit, and for the period, from the date
of institution of the suit until delivery of possession; iii) with
regard to future mesne profits, the plaintiff has no cause of
action on the date of the institution of the suit, and it is not
possible for him to plead this cause of action or to value it or
to pay court-fees thereon at the time of the institution of the
suit; iv) the limits of the pecuniary jurisdiction of the Court of
first instance does not impede and is not a bar to award
damages beyond its pecuniary jurisdiction. Reliance was
CM (M) 34/2017 Page 4
placed on Mahadeo Savlaram Shelke Vs. Puna Municipal
Corporation MANU/SC/0673/1995 : (1995) 3 SCC 33."
10. Full Bench of the Calcutta High Court in Bidyadhar Bachar and Ors.
vs. Manindra Nath Das and Ors. (supra) held as follows:-
"27......If the Munsif's jurisdiction to pass a decree is limited
to the value of the suit he can entertain, he cannot pass any
decree for mesne profits, the amount of which being added
to the value of the property would exceed his pecuniary
jurisdiction. Thus, where the property was valued at, say Rs.
1,000, the Munsif will not be able to pass a decree for mesne
profits, for any further amount. I venture to think that it
would not be a proper solution to hold that the Munsif could
pass a decree for mesne profit for a further sum of Rs. 1,000,
for although there must be two decrees in such a case, there
is only one suit, and the Munsif would than have power to
pass a decree of the value of Rs. 2,000, in the same suit.
Moreover, if the amount of the mesne profits were taken into
account in determining the value of the suit and the Munsif's
jurisdiction, then, in the case I have stated, he should be
considered to have no jurisdiction to entertain the suit or
pass any decree, and therefore the decree for possession as
well as the preliminary decree for mesne profits should be
held to have been passed without jurisdiction. This result
however cannot at all be contemplated. Nor can it be said
that the Plaintiff must be considered to have abandoned a
parti of his claim by bringing his suit in a Court of limited
jurisdiction.
.......
I am therefore of opinion that if a suit is rightly entertained
by a Munsif he has the power to pass a decree for the proper
relief even where the amount of the; decree exceeds the
value of the suit and his pecuniary jurisdiction."
11. Hence, the legal position that follows is that the court which would try
a suit for possession would also try the relief for mesne profit and damages
CM (M) 34/2017 Page 5
in view of the specific provisions of Order XX Rule 12 CPC. The suit is not
to be sent to another court for adjudication on the issue of mesne profit and
damages on grounds of lack of pecuniary jurisdiction. As the stay order is
passed based on the ground of pecuniary jurisdiction, the impugned order
suffers from material and legal error.
12. I accordingly, quash the impugned order dated 22.10.2016. I remand
the parties back to the appellate court who will consider the arguments
afresh of the parties and pass appropriate orders in the application under
Order 41 Rule 5 CPC. The respondent is at liberty to approach the appellate
court by filing an appropriate application in this regard for early hearing.
13. Petition stands disposed of. All pending applications, if any, also
stand disposed of accordingly.
14. Dasti.
JAYANT NATH, J
FEBRUARY 15, 2017
n
CM (M) 34/2017 Page 6
