Ashok Lalwani vs Gurumukh
2023 Latest Caselaw 10064 MP

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR SECOND APPEAL No.2841 of 2018 (ASHOK LALWANI Vs. GURUMUKH)

Dated : 04-07-2023

Appellant - Shri Ashok Lalwani is present in person.

Heard on IA No. 2940/2019, an application for ignoring the default of non-payment of court fees.

2. Learned counsel for the appellant submits that on the date of filing of the suit no cause of action arise for future mesne profit, hence, valuation could not be done in respect of future mesne profit. In that respect, appellant has drawn attention of this Court to para Nos. 9 and 12 of the plaint and for that reason he did not value the appeal with regard to the future mesne profit as mentioned in the front page of memo of appeal.

3. Learned counsel for the appellant has placed reliance on the decisions pronounced in the case of Shivaji Vs. Deoji and Others, 1973 MPLJ 434=AIR 1974 MP 123 and the judgment delivered by Hon'ble Apex Court in the case of Gopikrishna Pillai and Others Vs. Meenakshi Ayal and Others, AIR 1967 SC 155.

4. I have considered the arguments advanced by the appellant and perused the report of Registrar J (I) filed in compliance of order of this Court dated, 11/12/2018 and gone through the citations relied by the appellant. This second appeal has been filed only for the relief of future mesne profit.

Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 7/7/2023 12:09:32 PM

5. Order 20 Rule 12 of the Code of Civil Procedure, 1908 deals with the provision for "Decree for possession and mesne profit". Order 20 Rule 12 of the Code of Civil Procedure, 1908 is reproduced herein below:- "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 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 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, which ever event first occurs.

2. Where an inquiry is directed under Clause (b) or Clause (e), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry".

6. A Co-ordinate Bench of this Court in the case of Shivaji (supra) has held as under :

"30. When in the instant case the defendant appealed against the decree of the trial Court granting the relief of past mesne profits, ejectment and future mesne profits, he no doubt challenged in his appeal the correctness of all the three reliefs awarded to the

Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 7/7/2023 12:09:32 PM plaintiff. The entire basis for the relief of mesne profits--past as well as future was the relief of ejectment granted to the plaintiff. Thus, the relief of ejectment was the basis of the whole suit. If the correctness of that part of the decree by which the decree of ejectment is allowed was itself challenged then the challenge automatically extended to those parts of the decree also by which the reliefs of past as well as future mesne profits were awarded. If the plaintiff was not required to put any valuation on the relief of future mesne profits and pay court fees thereon in the plaint then certainly in the event of a decree being granted in favour of the plaintiff for past as well as future mesne profits the defendant cannot be required to pay any court-fees on such mesne profits which may have been decreed by the trial Court. The view that the valuation of the subject matter of the suit should remain constant and not fluctuating has been taken in the Full Bench decision of this Court in Ramsahay v. Kanhaiyalal (AIR 1937 Nag 295 (FB)). which we have already referred to above. In the case before us the defendant-applicant had challenged the decree for possession. If he is to succeed the claim for mesne profits, past as well as future, automatically stands dismissed. If on the contrary, the plaintiff succeeds his claim for future mesne profits can be determined under Order 20 Rule 12, Civil Procedure Code and if decreed in his favour then he shall be liable to pay court-fees before recovering them from the defendant (vide Section 11. Court- Fees Act)."

7. In case of Gopikrishna Pillai and Others (Supra), Hon'ble Apex Court has held that- Court has discretionary power to pass a decree directing an inquiry into future mesne profit.

8. Since in this case possession was delivered to the appellant in execution of the decree passed by the trial Court and the appellant has

Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 7/7/2023 12:09:32 PM quantified the amount of mesne profit in memo of appeal as mentioned in para No. 5(d), thus, the appellant is liable to pay the court fees accordingly.

9. Hence, office has rightly point out the default in this regard, which is liable to be sustained. Accordingly, IA No. 2940/2019 is hereby dismissed.

10. Appellant is directed to pay the requisite ad-valorem Court fee within a period of thirty days from today, failing which the present appeal shall automatically stand dismissed without further reference to the Court.

11. It reveals from the memo of appeal that prayer clause is incomplete, hence, appellant is directed to make necessary correction in the prayer clause within the time as mentioned in para 10 above, failing which the present appeal shall automatically stand dismissed without further reference to the Court.

(AMAR NATH (KESHARWANI)) JUDGE skt

Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 7/7/2023 12:09:32 PM