Short Cause Suit No. 768 of 1977

24th April, 1995

Petitioner Counsel: Mr. G.J. DESAI
Other Counsel: Ms. GEETA SHASTRI

JUDGMENT

ORDER : This matter has been placed before me on a reference made by the Taxing Master. Briefly, the facts leading to the reference are as follows:

The plaintiff had filed a suit against the defendant claiming following reliefs :

(a) That it may be declared that the Defendant has no right title or interest in the said premises situate at Silla Villa, 21 Meghraj Sethi Marg, Bombay Central, Bombay-8 and that he is trespasser in respect of the said premises:

(b) That the Defendant be ordered and decreed to vacate and deliver to the Plaintiff quiet vacant and peaceful possession of the said premises situate at Silla Villa, 21, Meghraj Sethi Marg, Bombay Central, Bombay - 400 00

(c) that the defendant be ordered and decreed to pay to the Plaintiff:

(i) a sum of Rs.500/- per month as mesne profits and/or damages for the Defendant's wrongful use and occupation of the said premises till the date of the suit aggregating to Rs.4,500/- together with interest thereon at the rate of 6% per annum from the date of the suit till payment; and

(ii) mesne profits and/or damages at the rate of Rs.500/- per month or at such other rate as this Hon'ble Court deems fit and proper from the date of the suit till the Defendant hands over quiet, vacant and peaceful possession of the said ground floor premises to the Plaintiff, together with interest at the rate of 6% per annum on the amount of mesne profits and/or damages from the time the said becomes due till payment."

2. In para 12 of the plaint, the plaintiff had valued the said suit for the purpose of payment of court fees as follows :

The Plaintiff values the suit for the purpose of Court fees and jurisdiction at Rs.54,500/- which is made upon as under :

(i) Rs.50,000/- being the value of the said ground floor premises based upon the capitalised value of the compensation of 100 months;

(ii) Rs.4,500/- being the pecuniary claim of the plaintiff upto the date of the suit as per the particulars of claim hereto annexed and marked Ex."D".

The plaintiff has accordingly paid the Court fees of Rs.2,580/- on the said plaint.

3. By a judgment and decree dated August 12, 1994, I.G.Shah, J. decreed the suit in terms of prayer clauses (a), (b) and (c). Thereafter, the plaintiff filed a draft of drawn-up decree in the office for setting the same. In a meeting, which was held before the Taxing Master, it was pointed out to the plaintiff that he is required to pay additional fees on the aggregate amount of mesne profit till the date of the judgment. The plaintiff, however, disputed his liability and, therefore, the Taxing Master has made this reference before this Court.

4. The relevant Section of the Bombay Court Fees Act, 1959 with which I am concerned in the present case, is Section 13 and it reads as follows :

13. (1) In a suit for the recovery of possession of immovable property and mesne profits or for mesne profits or for an account, the difference, if any, between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits or amount found due shall, on delivery of judgment, be taxed by the Court and shall be leviable from the Plaintiff and if not paid by him within thirty days from the date of the judgment be recoverable according to the law and under the rules for the time being in force for the recovery of arrears of land revenue.

(2) The Court shall send a copy of the decree passed in such suit to the Collector.

(3) No decree for mesne profits passed in any such suit by the Court shall be executed, until a certificate to the effect that such difference is paid or recovered signed by the Court which passed the decree or by the Collector who recovered the amount, is produced along with the application for such execution.

Explanation - For the purpose of this section, "plaintiff" includes any party to a suit to whom any profits or amount are or is found to be due.

5. On a plain reading of the Section, it is clear that where a claim is for possession of immovable property and for past and future profits and future mesne profits are ascertained and decreed, an additional court-fee will be leviable on such future profits under Section 13 before decree in respect thereof can be executed. It is required to be mentioned that under the old Code of Civil Procedure, the Court could determine the amount of mesne profits pendente lite up to the institution of the suit and pass a decree for it along with a decree for possession. The Court could not, under the old Act, determine the future mesne profits in the suit and pass a decree therefor. Under the present Code, the Court can determine past and future mesne profits in the suit itself and make a decree called a final decree for the mesne profits capable of execution. Therefore, where the plaintiff in his plaint for recovery of possession of immovable property claims a determination of his right to past and future mesne profits, his suit is a "suit for immovable property and mesne profits" in terms of Section 13. Mesne profits, past and future, are to be regarded in such a plaint as one entire claim for mesne profits. In such a case, the plaintiff approximately states the amount of past mesne profits which had already accrued to him at the time the suit is instituted and accordingly values the amount of mesne profits, which, at that time, was not capable of ascertainment, becomes so and is actually ascertained by the Court and a decree is passed thereon under Order XX, Rule 12. If the amount of mesne profits thus found and decreed exceeds the amount of past mesne profits approximately stated by the plaintiff, sub-section (3) of Section 13 says that the decree shall not be executed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the amount of profits or the amount so decreed would have been paid. Thus, Section 13 has made adequate provision for the collection of the deficit Court fee from the plaintiff depending on the decree ultimately granted by the Court.

6. Similar provision contained in the Central Act has been construed by various High Courts and it has been held that the plaintiff will be liable to pay additional Court fees on the mesne profits upto the date of the decree. In Veeran Chetti v. Veeran Chetti, it has been observed by Madras High Court :

" It is perfectly competent to the Court, without directing an inquiry, to pass a decree finally determining the amount of profits payable subsequent to the institution of the suit, if it is made out that it is not necessary to make such an inquiry and it cannot be said that such a decree is not final or is incapable of execution nor would it be in contravention of the provisions of O.20, R.12. ... ... ...

... Where a claim is for possession of immovable property and past profits or where a claim is for possession of immovable property and for past profits and future profits, and future mesne profits are ascertained and decreed, a court-fee will be leviable on such future profits under S.11 Cl.(1), Court-fees Act, before decree in respect thereof can be executed. It is no doubt true that a claim for mesne profits subsequent to the date of suit is upon a cause of action which is not existing on the date of the suit, but nevertheless the Legislature has made an exception to the general rule by permitting a claim in respect thereof in order to avoid multiplicity of suits."

The High Court of Patna has also taken a similar view in Dhanukdhari v. Ramadhikari. An inescapable conclusion, therefore, is that the plaintiff will be liable to pay the additional court fees on the mesne profits payable till the date of judgment. Reference of the Taxing Master is answered accordingly.

7. On the oral application of the learned Advocate for the plaintiff, the operation of this order is stayed for a period of eight weeks from today.

Ordered accordingly.