Civil Revn. Appln. No. 474 of 1976

22nd June, 1978.

Petitioner Counsel: B.P. Jaiswal, for Opponent.

Cases Cited:
AIR 1967 Pat 131 [Para 9]
AIR 1965 SC 1325 [Para 10]
AIR 1959 Cal 76 [Para 9]
AIR 1951 Mad 938 (FB) [Para 5]
AIR 1935 Nag 76 [Para 9]

JUDGMENT

ORDER :-The short question that arises for consideration in this revision application is as to when the right to apply for ascertainment of mesne profits arises when a preliminary decree directs an enquiry as to future mesne profits from the institution of the suit under O.20, R.12(1)(c) of the Civil P.C.

2. The facts giving rise to this revision application may be briefly stated :-

The applicants-plaintiffs hereinafter referred to as decree-holders had instituted Civil Suit No. 756 of 1970 for eject Dent and mesne profits in respect of shop premises situated at Sitabuldi, Nagpur. The suit of the decree-holders was dismissed by the trial Court on the round that there was no proper notice and the permission of the Rent Controller was not obtained to terminate the tenancy of the defendant. The plaintiffs appealed against the decree and judgement of the trial Court. The learned Second Extra Assistant Judge of Nagpur allowed the appeal and ordered the defendant to deliver possession of the suit premises to the plaintiffs. The appellate Court further directed that the enquiry be made into mesne profits in respect of the suit premises from the date of suit, i.e. 16-9-1970 till delivery of possession of the suit premises to the plaintiffs-appellants. This decree was made on 31st of Dec. 1975.

3. Being aggrieved, the defendant (non-applicant in this revision application) has preferred a second appeal.

4. It appears that after the non-applicant moved an application in the second appeal for stay of the decree this Court granted stay as regards the delivery of possession. The direction was, however, given that enquiry into mesne profits shall not be stayed. However, as the decree for possession was stayed, by an order dated 3-3-1976, the Special Officer of this Court directed the non-applicant/Judgement-debtor to deposit certain amount in the Court towards the mesne profits. A certain amount was directed to be deposited towards the mesne profits that was already accrued due in the past, and thereafter the judgement-debtor was directed to deposit a certain amount per month as mesne profits, on or about 5th of each month. This was the condition for the operation of the stay order for the delivery of possession. It appears that, being aggrieved with the direction of the Special Officer to the effect that the enquiry into mesne profits shall not be stayed, the non-applicant-judgement-debtor had preferred a revision application in this Court. It is common ground that that application has been dismissed.

5. It appears that the decree-holders filed an application under O.20, R.12 of the C.P.C. for enquiry into mesne profits on 26-3-1976. The non-applicant judgement-debtor filed his preliminary objection as per Exh. 10 challenging the tenability of this application on the wound that the application was premature.

It has pleaded that no enquiry for ascertainment of mesne profits could commence till the delivery of possession contemplated by O.20, R.12 of the C.P.C. It was also pleaded that in view of the stay order granted by the High Court against delivery of possession of the suit premises, the enquiry into mesne profits could not commence till the decision of the Second Appeal pending before the High Court. On consideration of the arguments advanced before him, the learned Civil Judge was not inclined to accept the submission made on behalf of the judgement-debtor that the High Court having stayed the decree for possession, the enquiry into mesne profits was premature. Relying, however, on certain observations in Babburu Basavayya v. Guravayya (AIR 1951 Mad 938 (FB)), the learned Civil Judge held that the right to apply for mesne profits arises after the happening of one of the events mentioned in O.20, R.12, C.P.C. and not on the date of the preliminary decree. In other words, the learned Judge was of the view that the application under O.20, R.12 C.P.C. will lie only after delivery of possession to decree-holders or if the possession is relinquished by the judgement-debtor after the happening of that event. As both the events had not occurred in this case, the learned Judge was of the view that the application was premature. He, therefore, dismissed the same with costs. Being aggrieved, the decree-holders have preferred this application in revision.

6. Mr. Oka, the learned Counsel for the applicants/decree-holders submitted that the impugned order passed by the learned trial Judge was based on a total misreading of the provisions of O.20, R.12, C.P.C. It was contended that O.20, R.12(1)(c) C.P.C. provides for the period of which the mesne profits can be ascertained, that it does not lay down that such enquiry should be commenced only after the happening of one of the three events mentioned in Cl.(c); the right to an application for enquiry arises immediately after the preliminary decree is passed. It was, therefore, submitted that the view that the right to apply for mesne profits arises only after happening of one of the events mentioned in O.20, R.12, C.P.C. is erroneous. As against this, Mr. Jaiswal, the learned counsel for the respondent judgement-debtor supported the order and also the reasoning of the learned trial Judge.

7. Now, O.20, R.12 C.P.C. is in the following terms :-

"(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 judgement-debtor with notice to the decree-holder through the Court, or (ill) the expiration of three years from the date of the decree, whichever event first occurs.

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

The provisions in O.20, R.12 of the C.P.C. make an exception to the general rule that the plaintiff can only sue on such cause of action as has arisen on the date of institution of his suit. O.20. R.12, C.P.C. enables the Court to pass a decree for past and future mesne profits also where a suit is for the possession of immovable property. The object is obviously to avoid the multiplicity of suits that would result if the persons wrongfully kept out of possession of their immoveable property were obliged to file suits for mesne profits accruing after the institution of the suit in ejectment. However, the provisions in O.20, R.12(1), C.P.C. enable the Court to direct enquiry as to rent or mesne profits for a particular period only from the date of institution of the suit. The decree-holder, if a decree is passed in his favour under the said provisions can have the mesne profits ascertained for the period upto the date the possession of the property is delivered to him or up to the date of relinquishment of possession through Court or until expiration of three years from the date of decree. The provisions in cl.(c) of R.12 (1). C.P.C. further, restrict the entitlement of the decree-holder to have the mesne profits ascertained for certain period i.e. till the date on which any of the three events mentioned in Cl.(c), first occurs. So far as

the Bombay is concerned, under the High Court amendment, sub-cl. (iii) is deleted from Cl.(c) of R.12 (1) with the result that the Court can direct enquiry as to rent or mesne profits from the institution of the suit until the delivery of possession to the decree-holder or (ii) the relinquishment of possession by the judgement- debtor with notice to the decree-holder through the Court.

8. The question that falls for decision in this case, is whether under the provisions in O.20, R.12 (1), C.P.C. the right to apply for ascertainment of mesne profits arises only after the happening of one of the events mentioned in O.20, R.12(1)(c), and not on the date of the preliminary decree. Now, the exact clause in the appellate preliminary decree directing enquiry into future mesne profits is in the following terms :-

"An enquiry be made into mesne profits in respect of the suit premises for the period from the date of suit i.e. 16-9-1970 till delivery of the suit premises to the appellants."

Now, as I have said above, the provisions in O.20, R.12(1), C.P.C. do away with the necessity of filing a suit for future mesne profits if the Court makes a decree providing for future mesne profits. However, the Court can make such a decree only for a limited period commencing from the date of the suit till the date of any of the three events (in case of Bombay case, only two events mentioned in Cl.(c) of R.12(1), C.P.C.). A plain reading of the provisions in O.20, R.12(1)(c), C.P.C. does not in my view warrant a construction that if a Court asses preliminary decree in terms of R.12(1)(c), the right to apply for ascertainment of mesne profits arises from and after the happening of one of the events mentioned in that clause. As pointed out above, the object of the provision is to avoid multiplicity of litigation. If such provision would not have been there in the C.P.C. it would have been open for the plaintiff decree-holder to institute as many suits as he desired for the mesne profits for the period following the date of the preliminary decree till the date he recovered possession. If the decree-holder was kept out of possession for some reason or the other even after the preliminary decree was passed in his favour for a number of years, he could have in the absence of provision in O.20, R.12(1)(c) instituted a suit for ascertainment and recovery of mesne profits every month or year as he pleased. This being the position, it would not be reasonable to hold in the absence of any clear indication in the provisions in O.20, R.12(1)(c) that the right to apply for mesne profits arises only after happening of one of the events mentioned in O.20, R.12, C.P.C. As is rightly contended on behalf of the non-applicant judgement-debtor, the term "decree" in Cl.(c) (iii) of R.12(1), means the decree of the final Court. If it is held that the decree-holder can apply for ascertainment of mesne profits only after the happening of one of the three events mentioned in cl.(c)(iii), the decree-holder will not be entitled to file an application for ascertainment of mesne profits till the decision of the final appellate Court, if he is kept out of possession of the property till that time. No such situation is, in my view, contemplated by the provisions of O.20, R.12(1) of the Code. The view, therefore, taken by the learned trial Judge that the decree-holder can commence enquiry for ascertainment of mesne profits only after the happening of one of the events mentioned in O.20, R.12(1)(c) is, in my opinion, erroneous.

9. A reliance is placed on the provisions in R.12 (2) of O.20, C.P.C. on behalf of the non-applicant/judgement-debtor. As already noticed, R.12(2) provides that where an enquiry is directed under Cl.(b) or (c), of R.12(1), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry. It is contended by Mr. Jaiswal, the learned Counsel for the judgement-debtor, that if the plaintiff decree-holder is held entitled to file more than one applications for ascertainment of mesne profits for different periods ending with any of the events contemplated by Cl.(c) (iii) of Rule 12(1), there will be an occasion for passing more than one final decrees. It is submitted by the learned Counsel that passing of more than one final decree is not contemplated by the provisions of O.20, R.12. This submission, in my opinion, is not well founded. There is nothing in the provisions of O.20, R.12 of the Code in my view which prevents the decree holder from making fresh applications for ascertainment of mesne profits or successive periods until any of the events contemplated by cl.(c) (iii) of R.12(1), C.P.C., occurs. It is true that ordinarily there would be one preliminary and one final decree. However, there is nothing in the C.P.C. or in particular

in provisions of O.20, R.12(1) of the Code which can in a proper case prohibit the Court from passing more than one preliminary decree and one final executable decree in a suit. Even interim final decrees in regard to part of subject-matters of the suit may be passed in appropriate cases. This view is supported by the observations of the Full Bench of the Madras High Court in Babburu's case (AIR 1951 Mad 938) and the decision of Patna High Court in Sudarshan Dass v. Ramkripal Dass (AIR 1967 Pat 131) and the decision of the Calcutta High Court in Kanai Lal Maity v. Shyam Kishore Das (AIR 1959 Cal 76).

10. The learned trial Judge relied upon some observations in Babburu's case (AIR 1951 Mad 938) (FB) (cited supra) to hold that the right to apply for ascertainment of mesne profits arises after happening of one of the events mentioned in O.20, R.12. Mr. Jaiswal, the learned Counsel for the non-applicant/judgement-debtor, also strongly relied upon the observations in this case. It appears from the report that the Full Bench of the Madras High Court was not called upon to decide in that case the question as to from what point of time, the right to apply for mesne profits under O.20, R.12, arises. While discussing the points that fell for decision in that case, the observations were made (at P. 940) :

"A judicial determination of the amount of future profits has to be made with reference to any of the three events specified in O.20, R.12, sub-rule (1)(c) whichever even first occurs."

These observations are relied upon for the judgement-debtor. If on the basis of the above observation the learned Judges of the Madras High Court can be said to have taken the view that the right to apply for mesne profits arises only after happening of one of the events mentioned in O.20, R.12 of the Code, with respect, I would differ from that view. As, I have said above, the provisions in O.20, R.12(1) of the Code while doing away with the necessity of filing a fresh suit for future mesne profits accruing after the institution of the suit enable the Court to direct enquiry as to future mesne profits for the period specified in cl.(c)(iii) of R.12. Once such a direction is given in the preliminary decree, the right to apply for ascertainment of the mesne profits in my view arises immediately after the passing of the preliminary decree. All that cl.(c) of R.12(1) provides is that the decree-holder will be entitled for ascertainment of mesne profits only for a particular period. The provisions do not prohibit the decree-holder from applying for ascertainment of the mesne profits, or the provisions do not compel the decree-holder to wait until any of the three events contemplated by cl.(c)(iii) occurs. This view finds support from the observations of the Division Bench of the Calcutta High Court in Kanai Lal Maity v. Shyam Kishore Das (AIR 1959 Cal 76). The observations are (at PP. 77, 78) :

"There is no reason why because in terms of a preliminary decree which has already been made for mesne profits in favour of the plaintiff from the institution of the suit for the period to which he is legally entitled one decree is made for part of the period, a further decree cannot be made for the remaining part of the period. There is nothing in O.20, R.12 or any principle of law to prevent a fresh application being made and a fresh decree being made for such relief in terms of the decree already obtained. The mere fact that sub-r. (2) speaks of final decree to be passed in accordance with the results of such enquiry does not produce the consequence that no other decree can be made previous to that final decree. It is eminently just and convenient that a successful plaintiff should be allowed to get part of the mesne profits as early as possible, and there is no justification in rules of justice, equity and good conscience that should compel him to wait for three years from the date of the decree or the delivery of possession or the relinquishment of possession which in many cases may not take place within three years. Nor is there any reason in the rules of justice, equity and good conscience which would stand in the way of a successful plaintiff getting after he has obtained his relief in respect of the part of the decree, further relief in respect of the remaining part. It is therefore open to the plaintiff to make an application for enquiry under O.20 R.12 as soon as the decree has been made."

I may also refer to the observations of a single Judge Niyogi, A.J.C. in Babulal v. Govindibai Misra (AIR 1935 Nag 76). It has been observed there :-

"Because the decree-holder is entitled to mesne profits up to the date of his recovery of possession, it does not follow that his right to recover mesne profits

arises on his taking possession. His right to recover mesne profits accrues on the day he recovers his possession."

Mr. Oka, the learned Counsel for the decree-holder placed reliance upon certain observations of the Supreme Court in Chittoori Subbanna v. Kudappa Subbanna (AIR 1965 SC 1325). Of course, the point with which we are concerned in this case did not directly arise before their Lordships of the Supreme Court while deciding that case. However, while discussing the point that arose before their Lordships, their Lordships observed (at p. 1333) :

"It may sometimes even happen that the enquiry into mesne profits is completed before the expiry of 3 years and the final decree follows in due course while in fact no possession had been delivered by them. It would not be possible for the judgement-debtor to contend at that time that the decree has not been properly prepared and that it should state that in case possession is not delivered within the period of three years, mesne profits would be payable only for the period of three years from the date of the decree. It does not appear to be desirable that the passing of the final decree be put of till either possession is delivered or a period of three years had expired from the date of the decree."

From these observations, Mr. Oka, the learned counsel for the decree-holders, tried to seek support for his submission that an enquiry into mesne profits can validly commence even before the delivery of possession or the expiry of the period of three years contemplated by Cl.(c)(iii) of R.12 (1), C.P.C.

11. In sum, I am inclined to hold that there is nothing in the provisions of the C.P.C. and particularly in provisions of O.20, R.12, prohibiting the commencement of enquire into future mesne profits till any of the three events mentioned in O.20, R.12(1)(c), C.P.C. occurs nor there is any reason, in the rules of justice, equity and good conscience which should compel the decree-holder to wait till any of the three events contemplated by R.12(1)(c)(iii) occurs.

12. It was submitted by Mr. Jaiswal, the learned Counsel for the non-applicant judgement-debtor, that in the instant case the High Court has granted the stay as regards the delivery of possession; the continuance of possession, therefore, on the part of the judgement-debtor is not illegal. The learned Counsel invited my attention to the definition of "mesne profits" in S.2(12) of the Code and submitted that after the obtaining of the stay order from the High Court, the possession of the judgement-debtor cannot be said to be wrongful and that, therefore, the decree-holders have no right to apply for ascertainment of mesne profits, I am unable to accept this submission. It is needless to say that the institution of an appeal does not nullify the findings recorded and the conclusions arrived at by the lower Courts. Those findings and conclusions stand till they are set aside, modified or reversed by the higher Courts. It is not possible to accept the submission that the granting of stay order by the High Court would have the effect of rendering the possession legal which has been adjudged to be illegal by the lower Courts. It is also well settled that the operation of a decree is not suspended by mere filing of an appeal. Now, in the instant case, so far as the possession is concerned, this Court has granted an order staying the delivery of possession to the decree-holders. The enquiry into mesne profits has not been stayed. It is difficult to accede to the submission that by reason of filing of the appeal in this Court, the preliminary decree so far as it directs the enquiry into the future mesne profits stands suspended. The contention, therefore, raised by Mr. Jaiswal, the learned Counsel for the non-applicant/judgement-debtor that an enquiry into mesne profits cannot commence because an appeal has been filed by the judgement-debtor is in my view untenable.

13. It was then contended by Mr. Jaiswal that the second appeal having been filed against the decree of the lower appellate Court in this Court whatever decree this Court will pass will be the only decree available for the decree-holders, and till such decree is passed no enquiry into mesne profits can validly be commenced. It is difficult to appreciate this submission also. As observed above, the operation of the decree competently made by the lower appellate Court will not stand suspended merely by reason of filing of the appeal. As pointed out above, the execution of the decree so far as it directs enquiry into mesne profits has not been stayed.

14. One more submission made on behalf of the judgement-debtor was that this Court in the second appeal has directed the non-applicant/judgement-debtor to furnish security. The judgement-debtor is

further directed to deposit certain amount towards the past mesne profits as well as a certain fixed amount every month towards the mesne profits. In view of these directions of this Court, it is contended for the judgement-debtor that commencement of the enquiry for mesne profits is not competent. It is difficult to accept this submission also. It is true that this Court has directed the non-applicant/judgement-debtor to deposit certain amount towards the mesne profits. However, that direction has been given because the judgement-debtor is allowed to continue in possession of the suit premises, Obviously, one of the objects of giving such direction is to ensure that the decree-holder, if ultimately he succeeds, is not required to spend further time in recovery of the amount due to him by way of mesne profits. The directions, therefore, of this Court requiring the non-applicant/judgement-debtor to furnish security or to deposit certain amounts towards mesne profits would not in my view disentitle the decree-holder from following his remedy of having the mesne profits ascertained.

15. In view of the above discussion, I am inclined to hold that the view of the learned trial Judge that right to apply or future mesne profits arises after happening of one of the events mentioned in O.20, R.12(1)(c)(iii), C.P.C., is erroneous. The dismissal of the application filed by the decree-holders therefore holding the same to be premature will have to be set aside.

16. In the result, this revision application is allowed. The order of the learned trial Judge dismissing the application is set aside and the learned trial Judge is directed to proceed further with the application in accordance with law.

17. The non-applicant/judgement-debtor will pay the costs of this application to the applicants/decree-holders and bear his own. Rule absolute.

Rule Made Absolute