Karnataka High Court
His Creation vs A Ramamurthy on 13 August, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
Reserved on : 30.07.2025
Pronounced on : 13.08.2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
WRIT PETITION No.32930 OF 2024 (GM - CPC)
BETWEEN:
HIS CREATION
OFFICE AT NO.4,
RAMAMURTHY COMPLEX,
GROUND FLOOR, 2ND CROSS,
K.KAMARAJA ROAD
BENGALURU - 560 042
REPRESENTED BY ITS
SOLE PROPRIETOR
MR. TAHAR SAIT.
... PETITIONER
(BY SRI SKANDA KUMAR, ADVOCATE)
AND:
A. RAMAMURTHY
S/O LATE SRI T.V. ANNASWAMY,
AGED ABOUT 44 YEARS,
R/A NO.1, KINGSTON STREET,
RICHMOND ROAD,
BENGALURU - 560 025.
... RESPONDENT
2
(BY SRI ARUN KUMAR K., SR.ADVOCATE FOR
SRI SUNDARA RAMAN M.V., ADVOCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED
ORDER AT ANNEXURE-E DATED 23.10.2024 IN
COMM.O.S.NO.788/2024 AND ISSUED BY THE HON'BLE LXXXIV
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE (CCH-85) AND
ALLOW THE APPLICATION FILED BY THE PETITIONER IN I.A.NO.3
(ANNEXURE - C).
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 30.07.2025, COMING ON FOR PRONOUNCEMENT
THIS DAY, THE COURT MADE THE FOLLOWING:-
CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CAV ORDER
The petitioner/defendant No.6 is at the doors of this Court
calling in question an order dated 23-10-2024 passed by the
LXXXIV Additional City Civil and Sessions Judge, Bengaluru on
I.A.No.III in Comm.O.S.No.788 of 2024 rejecting the application
filed by the petitioner under Order VII Rule 10 of the CPC seeking
3
return of the plaint on the score that the Commercial Court lacks
jurisdiction to adjudicate the dispute.
2. Heard Sri Skanda Kumar, learned counsel appearing for
the petitioner and Sri K.Arun Kumar, learned senior counsel
appearing for the respondent.
3. Sans details, facts are as follows: -
The respondent is the landlord and the petitioner is the sub-
tenant of defendant No.1. The dispute arose between the two with
regard to payment of rent or claim for arrears of rent. Therefore,
the respondent institutes commercial O.S.No.788 of 2024 seeking
possession and recovery of certain amount. The issue in the lis does
not pertain to merit of the claim of the plaintiff or the defence of
the defendants. Before the concerned Court, defendants 6 and 7 file
an application under Order VII Rule 10 CPC seeking return of the
plaint on the score that it did not satisfy the rigours of Commercial
Courts Act, 2015 for institution of commercial suit. It ought to have
been a regular suit before the Court having jurisdiction and not the
4
commercial Court. Objections are filed. The concerned Court rejects
the application filed by defendants 6 and 7 in the following order
inter alia:
".... .... ....
I have gone through the provisions of Sec.42 of the KCF
and SV Act. I have also perused the decisions relied upon by the
learned counsel for the defendant Nos.6 and 7. The principles
laid down in these decisions are well founded. But, these
decisions do not come to the aid of these contesting defendants.
There is no dispute regarding the defendant No.7 is running a
Hotel business in the suit schedule premises, admittedly it is
used for business purposes. I have also gone through the
decision relied upon by the learned counsel for the plaintiff. The
principles laid down in these decisions are well founded. It is
held in one of the decisions that, "Order XX Rule 12 enables the
court to pass a decree for both past and future mesne profits,
but, there are important distinctions in the procedure for the
enforcement of the Two claims. With regard to past mesne
profits, the plaintiff has an existing cause of action on the date
of institution of the suit. In view of Order VII Rule 1 and 2 and
Order VII Rule 7 of CPC and Sec.7(1) of Court Fees Act, the
plaintiff must plead this cause of action, specifically claim a
decree for the past mesne profits, value the claim approximately
and pay court fees thereon......."
In another decision it is held that, Order VII Rule 10 CPC
"Pecuniary jurisdiction of Civil Court - Determination of
Valuation of Suit - If plaintiff grossly over values or undervalues
suit with the object of bringing it within the jurisdiction of a
particular court, the plaint can be directed to be returned to the
plaintiff for presentation to proper court - but, if valuation is
made by the plaintiff on the basis of the relief claimed by him
which is neither absurd nor imaginary, but, requires judicial
consideration, and on that basis suit is presented before original
side of the High Court, held, the High Court cannot reject the
relief at the outset without going into its merits and accordingly
reducing the valuation and directing return of the plaint for
presentation before proper court in accordance with Sec.15."
5
The decisions relied upon by the learned counsel for the
plaintiff come to his aid in the present facts and circumstances
of the case. The plaintiff has also pleaded regarding the cause of
action also on 12.04.2024, and claiming mesne profits from
defendant Nos.1 to 6 from 13.04.2024. The plaintiff has valued
the suit claim at Rs.5,13,740/- and paid the court fee
U/Sec.41(2), Sec.21 and Sec.42 of KCF and SV Act. There are
no grounds to return the plaint as sought by the defendant
Nos.6 and 7 under this IA. Therefore, considering all these facts
and circumstances of the case, I am of the opinion that this
court has got pecuniary jurisdiction to entertain the suit.
Therefore, I made the following:
ORDER
The application filed U/Or VII Rule 10 of CPC on behalf of
the defendant Nos.6 and 7 as IA No.3 is hereby rejected.
For statement of admission and denial of the documents
by the parties."
It is this order that has driven 6th defendant to this Court in the
subject petition.
4. The learned counsel appearing for the petitioner would
vehemently contend that the amount of arrears of rent claimed was
₹45,800/- in terms of plaint averments, which according to the
learned counsel for the petitioner is not the minimum threshold for
the jurisdiction of Commercial Court. He would submit that to get
over the minimum threshold, mesne profits are added at ₹5/-
lakhs. Taking mesne profits at ₹5/- lakhs, arrears of rent all put
together, the amount projected is beyond ₹5/- lakhs. He would
contend that this cannot be done to get over the jurisdiction. It is
his case that mesne profits must be added only at the end of trial
and not at the beginning. Therefore, to get over jurisdiction it is
included in the prayer and the commercial suit is made
entertainable.
5. Per contra, the learned senior counsel Sri K.Arun Kumar
would vehemently refute the submissions in contending that mesne
profits can either be past, present or future. What is added is past
mesne profits. Present and future may vary according to the
progress of the trial. He would submit that the Commercial Court
does have jurisdiction to consider the dispute brought before it, as
it is undoubtedly a commercial dispute and, therefore, would seek
dismissal of the petition.
6. I have given my anxious consideration to the submissions
made by the respective learned counsel and have perused the
material on record.
7. The plaintiff/respondent institutes commercial original suit
for relief of eviction and recovery of arrears of rent after expiry of
lease between the plaintiff and the defendant No.1 which had
expired due to efflux of time on 12-04-2024. Along with it claims
mesne profits. The petitioner/defendant No.6 along with defendant
No.7 file their written statement denying the claim and
simultaneously file an application under Order VII Rule 10 of the
CPC. This comes to be rejected in terms of the order quoted supra.
The order impugned has driven defendant No.6 to this Court. The
issue now would be, whether the suit before the Commercial Court
would be maintainable or otherwise?
8. Sub-section (12) of Section 2 of the CPC defines mesne
profits. It reads as follows:
"(12) "mesne profits" of property means those profits which the
person in wrongful possession of such property actually
received or might with ordinary diligence have received
therefrom, together with interest on such profits, but shall
not include profits due to improvements made by the person
in wrongful possession;"
Mesne profits of the property are those profits which the person in
wrongful possession of such property actually receives or might
with ordinary diligence have received there from together with
interest. A decree can be sought for possession and mesne profits
under Order XX Rule 12 of the CPC. The said provision reads as
follows:
"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 Court may pass a
decree--
(a) for the possession of the property;
(b) for the rents which have accrued on the property during
the period prior to the institution of the suit or directing
an inquiry as to such rent;
(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 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, whichever event first occurs.
(2) Where an inquiry is directed under clause (b) or
clause (c), a final decree in respect of the rent or mesne
profits shall be passed in accordance with the result of such
inquiry."
Whether in a suit for recovery of possession of immovable property
or for rent or mesne profits, the Court is empowered to pass a
decree on the rents which have accrued on the property during the
period prior to institution of the suit or directing an inquiry as to
such rent for determination of mesne profits, has been subject of
interpretation by the Apex Court and several other High Courts.
9. The liability to pay mesne profits is considered by the Apex
Court in the case of INDIAN OIL CORPORATION LIMITED v.
SUDERA REALTY (P) LIMITED1, wherein it is held as follows:
".... .... ....
81. A tenant continuing in possession after the expiry of
the lease may be treated as a tenant at sufferance, which status
is a shade higher than that of a mere trespasser, as in the case
of a tenant continuing after the expiry of the lease, his original
entry was lawful. But a tenant at sufferance is not a tenant by
holding over. While a tenant at sufferance cannot be
forcibly dispossessed, that does not detract from the
possession of the erstwhile tenant turning unlawful on
the expiry of the lease. Thus, the appellant while
continuing in possession after the expiry of the lease
became liable to pay mesne profits."
(Emphasis supplied)
This is subsequently followed by the Apex Court in the case of
BIJAY KUMAR MANISH KUMAR HUF v. ASHWIN BHANULAL
DESAI2, holding as follows:
(2023) 16 SCC 704
".... .... ....
25. It has been held that tenants shall be liable to
pay a rent equivalent to mesne profits, from the date they
are found not to be entitled to retain possession of the
premises in question. In AchalMisra v. Rama Shanker
Singh [AchalMisra v. Rama Shanker Singh, (2005) 5 SCC 531]
this Court held : (SCC p. 542, para 23)
"23. From the material available on record it does
not appear that any rate of rent was appointed at which
rent would be payable by the respondents to the landlord.
The respondents also do not seem to have taken any steps
for fixation of rent of the premises in their occupation. They
have been happy to have got the premises in a prime
locality, occupying and enjoying the same for no payment.
We make it clear that the respondents shall be liable to pay
the rent equivalent to mesne profits with effect from the
date with which they are found to have ceased to be
entitled to retain possession of the premises as tenant and
for such period the landlord's entitlement cannot be held
pegged to the standard rent. Reference may be had to the
law laid down by this Court in Atma Ram Properties (P)
Ltd. v. Federal Motors (P) Ltd. [Atma Ram Properties (P)
Ltd. v. Federal Motors (P) Ltd., (2005) 1 SCC 705] "
This position was reiterated in AchalMisra (2) v. Rama Shanker
Singh [AchalMisra (2) v. Rama Shanker Singh, (2006) 11 SCC
498].
.... .... ....
29. While the above stated position is generally accepted,
it is also within the bounds of law, that a tenant who once
entered the property in question lawfully, continues in
possession after his right to do so stands extinguished, is
liable to compensate the landlord for such time period
after the right of occupancy expires. In this regard, we may
refer to Indian Oil Corpn. Ltd. v. Sudera Realty (P) Ltd. [Indian
Oil Corpn. Ltd. v. Sudera Realty (P) Ltd., (2023) 16 SCC 704:
2022 SCC OnLine SC 1161], wherein this Court in SCC para 81
observed as under:
(2024) 8 SCC 668
81. A tenant continuing in possession after the
expiry of the lease may be treated as a tenant at
sufferance, which status is a shade higher than that of a
mere trespasser, as in the case of a tenant continuing after
the expiry of the lease, his original entry was lawful. But a
tenant at sufferance is not a tenant by holding over. While a
tenant at sufferance cannot be forcibly dispossessed, that
does not detract from the possession of the erstwhile tenant
turning unlawful on the expiry of the lease. Thus, the
appellant while continuing in possession after the expiry of
the lease became liable to pay mesne profits."
(emphasis supplied)"
(Emphasis supplied)
The Apex Court, in the afore-quoted two judgments, would hold
that a tenant continuing in possession after the expiry of lease is
liable to pay mesne profits. The petitioner, in the case at hand, has
admittedly continued after expiry of lease on and from 12-04-2024.
10. The Apex Court holds that tenants are liable to pay rent
equivalent to mesne profits from the date they are found not to be
entitled to retain possession of the premises in question. The Apex
Court in the case of ACHAL MISRA (1) v. RAMA SHANKER
SINGH3, has held as follows:
".... .... ....
(2005) 5 SCC 531
23. From the material available on record it does not
appear that any rate of rent was appointed at which rent would
be payable by the respondents to the landlord. The respondents
also do not seem to have taken any steps for fixation of rent of
the premises in their occupation. They have been happy to have
got the premises in a prime locality, occupying and enjoying the
same for no payment. We make it clear that the
respondents shall be liable to pay the rent equivalent to
mesne profits with effect from the date with which they
are found to have ceased to be entitled to retain
possession of the premises as tenant and for such period
the landlord's entitlement cannot be held pegged to the
standard rent. Reference may be had to the law laid down by
this Court in Atma Ram Properties (P) Ltd. v. Federal Motors (P)
Ltd. [(2005) 1 SCC 705]"
(Emphasis supplied)
In the case of ACHAL MISRA (2) v. RAMA SHANKER SINGH4,
the Apex Court holds as follows:
".... .... ....
6. This Court also noticed the decision in Atma Ram
Properties (P) Ltd. v. Federal Motors (P) Ltd. [(2005) 1 SCC
705] and clarified that the occupants would be liable to pay
the rent equivalent to mesne profits with effect from the
date from which they are found to have ceased to be
entitled to retain possession of the premises as tenants
and for such period the landlord's entitlement cannot be
pegged down to the standard rent. The claim of Petitioner 2
in this application has to be considered in the context of what
has been stated in the judgment."
(Emphasis supplied)
The aforesaid two judgments bear consideration at the hands of the
Apex Court in the case of BIJAY KUMAR MANISH KUMAR supra.
(2006) 11 SCC 498
11. The issue now would be, whether the landlord is
entitled to mesne profits and such entitlement would be a
matter of trial or can be decided at the preliminary stage as
is now sought by the defendant with respect to jurisdiction?
12. The Apex Court in the case of NANDITA BOSE v.
RATANLAL NAHATA5, has held as follows:
".... .... ....
4. Under Section 15 of the Code every plaint should be
instituted in the court of the lowest grade competent to try it
and if the value of the suit was Rs 42,000 only it had to be filed
in the City Civil Court of Calcutta and not on the original side of
the High Court. The principles which regulate the pecuniary
jurisdiction of civil courts are well settled. Ordinarily, the
valuation of a suit depends upon the reliefs claimed therein and
the plaintiff's valuation in his plaint determines the court in
which it can be presented. It is also true that the plaintiff
cannot invoke the jurisdiction of a court by either grossly
over-valuing or grossly under-valuing a suit. The court
always has the jurisdiction to prevent the abuse of the
process of law. Under Rule 10 of Order 7 of the Code the
plaint can be returned at any stage of the suit for
presentation to the court in which the suit should have
been instituted. The question for consideration in this
case is whether in the present case the plaint has been
grossly over-valued with the object of bringing it within
the jurisdiction of the High Court. When the suit is filed
for the recovery of money the amount claimed has to be
included in determining the value of the suit. In the
instant case the appellant has claimed a decree for Rs
78,000 (at the rate of Rs 7800 per month) for the period
(1987) 3 SCC 705
between February 1, 1985 and November 30, 1985 on the
footing that the respondent's possession was
unauthorised or illegal and he was liable to pay mesne
profits or damages. The question whether the appellant
would be entitled to a decree for mesne profits/damages
at the rate of Rs 7800 per month or at any other rate
after the termination of the tenancy is a matter which has
to be decided in the suit. If ultimately it is found that the
appellant is not entitled to get mesne profits or damages
for the period subsequent to February 1, 1985 and that
she is only entitled to receive Rs 1400 per month, the suit
in respect of the claim over and above Rs 1400 per
month, will have to be dismissed. But the question
whether she was entitled to claim mesne profits or
damages in respect of the period subsequent to February
1, 1985 could not have been disposed of at a preliminary
stage even before the trial had commenced. That
question has to be decided at the conclusion of the trial
along with other issues arising in the suit. Having regard
to some of the decisions on which reliance is placed by
the appellant in the course of the appeal we are of the
view that the matter is not free from doubt. The claim for
mesne profits/damages is neither palpably absurd nor
imaginary. It needs judicial consideration. The
acceptance of the view put forward by the respondent
may lead to encouraging a tenant who has forfeited his
right to the tenancy to carry on a dilatory litigation
without compensating the landlord suitably for the loss
suffered by him on account of the unreasonable
deprivation of the possession of his premises over a long
period until he is able to get possession of the premises
through the court. We cannot, therefore, state at this
stage that the claim for mesne profits/damages had been
made without good faith and with the sole object of
instituting the said suit before the High Court of Calcutta
even though it had no jurisdiction to try it. We do not
agree with the submission made on behalf of the
respondent that the appellant had "dishonestly and
intentionally inflated the value of the suit in order to
invite the jurisdiction of a particular court which has no
jurisdiction otherwise". If mesne profits/damages are
found to be payable then the claim made at the rate of Rs
7800 per month for a premises of the nature in question
which is situated in Calcutta does not appear to be
fanciful having regard to the prevailing situation. We
however express no opinion on the actual amount that may be
awarded as mesne profits/damages in the event of the liability
to pay it being established."
(Emphasis supplied)
The Apex Court holds that entitlement of mesne profits in a suit for
eviction is always a matter of trial. Whether the landlord is entitled
to receive the amount so claimed as mesne profits is a matter of
trial and cannot be dismissed at the preliminary stage on the score
that the plaintiff has overvalued the suit. The Apex Court was
following the earlier judgment of the Apex Court in the case of
GOPALAKRISHNA PILLAI v. MEENAKSHI AYAL6, where the
Apex Court considered what is past and future mesne profits. The
Apex Court has held as follows:
".... .... ....
8. Order 20 Rule 12 enables the Court to pass a
decree for both past and future mesne profits but there
are important distinctions in the procedure for the
enforcement of the two claims. With regard to past
mesne profits, a plaintiff has an existing cause of action
on the date of the institution of the suit. In view of Order
7 Rules 1 and 2 and Order 7 Rule 7 of the Code of Civil
Procedure and Section 7(1) of the Court Fees Act, the
plaintiff must plead this cause of action, specifically claim
a decree for the past mesne profits, value the claim
1966 SCC OnLine SC 224
approximately and pay court-fees thereon. 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. Moreover, he can obtain relief in respect of this
future cause of action only in a suit to which the provisions of
Order 20 Rule 12 apply. But in a suit to which the provisions of
Order 20 Rule 12 apply, the Court has a discretionary power to
pass a decree directing an enquiry into the future mesne profits,
and the Court may grant this general relief, though it is not
specifically asked for in the plaint,
see Basavayya v. Guruvayya [ILR 1952 Mad 173 FB at 177] .
In Fakharuddin Mahomed Ahsan v. Official Trustee of
Bengal [(1881) ILR 8 Cal 178 (PC) 189] Sir R.P. Collier
observed:
"The plaint has been already read in the first case,
and Their Lordships are of opinion that it is at all events
open to the construction that the plaintiff intended to claim
wasilat up to the time of delivery of possession, although,
for the purpose of valuation only, so much was valued as
was then due; but be that as it may, they are of opinion
that, under Section 196 of Act 8 of 1859, it was in the
power of the Court if it thought fit, to make a decree which
should give the plaintiff wasilat up to the date of obtaining
possession."
Section 196 of Act 8 of 1859 empowered the Court in a suit for
land or other property paying rent to pass a decree for mesne
profits from the date of the suit until the date of delivery of
possession to the decree-holder. The observations of the Privy
Council suggest that in a suit to which Section 196 of Act 8 of
1859 applied, the Court had jurisdiction to pass a decree for
mesne profits though there was no specific claim in the plaint
for future mesne profits. The Court has the like power to pass a
decree directing an enquiry into future mesne profits in a suit to
which the provisions of Order 20 Rule 12 of the Code of Civil
Procedure, 1908, apply."
(Emphasis supplied)
The Apex Court holds that past mesne profits would be the right of
the plaintiff, on an existing cause of action, as on the date of
institution of the suit. The plaintiff has to specifically plead the
cause of action and claim a decree for past mesne profits. The Apex
Court further holds that the cause of action for future mesne profits
does not accrue as on the date of institution of the suit, but at the
end of the trial.
13. The High Court of Delhi, in its latest judgment, in the case
of SARVINDER SINGH v. VIPUL TANDON7, considering the
entire spectrum of the law, has held as follows:
".... .... ....
23. The landlord is entitled to the mesne profits
against a tenant who continues to stay in the tenanted
premises after the termination of the tenancy. It is now
well accepted that the amount which a landlord is
entitled to receive on the termination of tenancy is the
amount which the premises can fetch if let out on rent
during the period of its illegal occupation by the tenant.
24. The rent which the premises can fetch during
the period of the illegal occupation by the erstwhile
tenant is a fact which can be easily demonstrated in a
CS(OS)2453/2015 & I.A. 16871 of 2015 decided on 08-07-2025
suit for possession and mesne profits against the tenants
by leading evidence. In the present case, the Plaintiffs
have not led any evidence with respect to rent of similar
premises within the locality.
25. The Plaintiffs in this case are claiming mesne profit
from the date of filing of suit, i.e., 06.08.2015 till possession,
i.e., 17.07.2018, at the rate of Rs.2,00,000/- per month along
with interest @ 15% p.a. It is an admitted position that the
probate of Will was not granted in favour of the Defendant, and
therefore, the Defendant is not the owner of the said premises.
It is also admitted that Plaintiffs are Class-I heirs of the owner
of the property. However, the Plaintiffs in the present case
have not presented any evidence to show that the said
amount of mesne profits claimed is as per the prevailing
market rate of rent in the same locality in respect of
similar portions.
26. Mere guess work cannot be used for
ascertaining the rent. This Court cannot make a guess
work in thin air. Guess work cannot take the form of
evidence. Coming to a figure which might be the rent of
the area on its own without any material is not
permissible in law. Thus, in the absence of any evidence,
either oral or documentary, this Court is not in a position
to calculate any mesne profits.
27. This Court is of the opinion that, in the absence of
any evidence to ascertain the mesne profit, it cannot
calculate the amount to be awarded as mesne profit on
its own. Therefore, the claim of mesne profits cannot be
granted."
(Emphasis supplied)
14. On a blend of the judgments noticed hereinabove of the
Apex Court and that of the High Court of Delhi, what would
unmistakably emerge is, calculation of mesne profits is a matter of
evidence which would require trial. The calculation of mesne profits
cannot lead to an application for return of plaint being allowed at
the preliminary stage. In the case at hand, the issues are yet to be
framed. Only when the issues are framed and an issue with regard
to mesne profit would emerge, clarity for calculation would arise.
Therefore, the application was not even maintainable on a mixed
question of law and fact.
15. It is trite law that a mixed question of law and fact cannot
be determined as a preliminary issue, as held by the Apex Court in
the case of SATHYANATH v. SAROJAMANI8, holding:
".... .... ....
21. The provisions of Order 14 Rule 2 are part of the
procedural law, but the fact remains that such procedural law
had been enacted to ensure expeditious disposal of the lis and
in the event of setting aside of findings on preliminary issue, the
possibility of remand can be avoided, as was the language prior
to the unamended Order 14 Rule 2. If the issue is a mixed
issue of law and fact, or issue of law depends upon the
decision of fact, such issue cannot be tried as a
preliminary issue. In other words, preliminary issues can
be those where no evidence is required and on the basis
of reading of the plaint or the applicable law, if the
jurisdiction of the court or the bar to the suit is made out,
the court may decide such issues with the sole objective
for the expeditious decision. Thus, if the court lacks
jurisdiction or there is a statutory bar, such issue is required to
be decided in the first instance so that the process of civil court
(2022) 7 SCC 644
is not abused by the litigants, who may approach the civil court
to delay the proceedings on false pretext.
... ... ...
33. We find that the order of the High Court to direct the
learned trial court to frame preliminary issue on the issue of res
judicata is not desirable to ensure speedy disposal of the lis
between parties. Order 14 Rule 2 of the Code had salutary
object in mind that mandates the court to pronounce
judgments on all issues subject to the provisions of sub-
rule (2). However, in case where the issues of both law
and fact arise in the same suit and the court is of the
opinion that the case or any part thereof may be disposed
of on an issue of law only, it may try that suit first, if it
relates to jurisdiction of the court or a bar to the suit
created by any law for the time being in force. It is only
in those circumstances that the findings on other issues
can be deferred. It is not disputed that res judicata is a mixed
question of law and fact depending upon the pleadings of the
parties, the parties to the suit, etc. It is not a plea in law alone
or which bars the jurisdiction of the court or is a statutory bar
under clause (b) of sub-rule (2)."
(Emphasis supplied)
16. In the light of the preceding analysis, the unmistakable
inference would be that the question of determination of mesne
profits would require evidence to be led by the plaintiff and cannot
be decided at the outset as a preliminary decree. The suit in
question requires a trial to determine whether past mesne profits
have been calculated appropriately or otherwise and the plaint
cannot be asked to be returned merely because the plaint has been
overvalued at the time of institution of the suit, as claim for mesne
profits while instituting the suit can be post mesne profits as well.
17. In that light, finding no merit in the petition, the petition
stands rejected. Interim order if any, operating, shall stand
dissolved.
Consequently, I.A.No.1 of 2025 also stands disposed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
bkp
CT:MJ
