2011(7) ALL MR 237
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.M. KANADE, J.

Mr. Gulamhusain Asgaraly Vahanvaty & Ors. Vs. Allahabd Bank

Civil Revision Application No.152 of 2007

8th April, 2011

Petitioner Counsel: Mr. VINEET B. NAIK with Ms. DEEPA AHUJA
Respondent Counsel: Mr. HARINDER TOOR i/b N.N. AMIN & CO.

Civil P.C. (1908), O.20 R.12 - Mesne Profits - Grant of - Suit for recovery of possession - Mesne profits, a consequential relief - Held, relief of mesne profits can be granted only if the suit of the plaintiffs is decreed.

AIR 1966 SC 735 - Rel. on. (Para 18)

Cases Cited:
Bhagwati Prasad vs. Chandramaul, AIR 1966 SC 735 [Para 18]


JUDGMENT

JUDGMENT :- Heard the learned Counsel for the Applicants and the learned Counsel for the Respondent.

2. Applicants herein are the original Plaintiffs and respondent is the original Defendant. For the sake of convenience, parties are referred to hereinafter as "Plaintiff" and "Defendant".

3. Brief facts are as under:-

4. Plaintiffs are the owners of the building situated at Turner Road, Bandra, Mumbai - 400 050. A leave and license agreement was executed between the Plaintiffs and the Defendant - Bank on 1/12/1987 and the first floor premises in the said building were given to the Defendant - Bank as licensees and the agreed monthly compensation was fixed at Rs 3000/- for each of the portions in addition to payment of municipal taxes and other outgoings which were required to be paid exclusively by the Defendant. According to Plaintiffs, the period of leave and license agreement was going to end in November, 1997 and, therefore, letters were written by the Plaintiffs to the Officers of the Defendant - Bank on 7/5/1997 that the license period would expire in November, 1997. Thereafter, some negotiations were going on between the parties since the Defendant - Bank had given an offer of purchasing the first floor of the building. Since the said offer did not materialize, the Plaintiffs called upon the Defendant - Bank to vacate the suit premises by their notice dated 22/07/2000. The Bank, thereafter, in reply, alleged that they were tenants of the premises and not mere licensees. According to the Plaintiffs, in view of change in stand taken by the Defendant, by their advocate's letter dated 30/10/2000 they terminated the tenancy as claimed by the Defendant.

5. On 22/11/2000, Plaintiffs filed suit in the Small Causes Court at Mumbai for eviction of the Bank and for recovering vacant possession of the suit premises and also for mesne profits from the date of expiry of license dated 1/12/1997. An application was also, thereafter, made on 21/7/2002 seeking amendment of the plaint and for adding paragraphs to the plaint and stating therein that even the tenancy had been terminated and, therefore, Plaintiffs were entitled to get the possession of the premises. The title of the suit, therefore, was changed from "L.E. & C. Suit No.67/80 of 2000" to "T.E. & R. Suit No.67/80 of 2000".

6. The Trial Court decreed the suit of the Plaintiffs for possession by judgment and order dated 4/4/2003. However, by the said judgment and order, the Trial Court did not give any direction for holding inquiry regarding mesne profits.

7. Plaintiffs being aggrieved by the said judgment and order to the extent that no direction had been given for holding an inquiry regarding mesne profits, initially filed an application before the Trial Court under section 152 of the Code of Civil Procedure being Misc. Notice No.664 of 2003 for modifying its order dated 4/4/2003. The Trial Court, however, dismissed the said notice by its order dated 7/7/2004. During pendency of this notice, however, on 1/8/2003, the Defendant - Bank handed over possession of the suit property to the Plaintiffs.

8. Thereafter, Plaintiffs filed Regular Appeal before the Division Bench of the Small Causes Court vide Appeal No.81 of 2005. The Appellate Court, however, was pleased to dismiss the appeal by its judgment and order dated 9/8/2006 by holding that there were no pleadings regarding mesne profits after the amendment was made and, in the absence of specific pleadings, no order regarding mesne profits could be granted.

9. Aggrieved by the said judgment and order passed by the Appellate Court, Plaintiffs initially filed a Writ Petition being Writ Petition No. 8502 of 2006. The said Petition was, however, withdrawn with liberty to file Civil Revision Application in view of the order passed by the learned Single Judge dated 14/3/2005.

10. The learned Counsel appearing on behalf of the Plaintiffs submitted that the Judgment and order passed by the Division Bench of the lower Appellate Court was perverse since it proceeded on the assumption that there were no pleadings in the plaint regarding mesne profits. He submitted that the said observation made by the lower Appellate Court was contrary to the record of the case and, therefore, the lower Appellate Court had committed material irregularity by dismissing the appeal on the said erroneous factual assumption. It is submitted that, in amended plaint, in paras 12 and 14, a clear averment was made in respect of the mesne profits. It is submitted that even the parties had led evidence in respect of mesne profits and, therefore, though no issue was framed, the Trial Court having allowed the suit in terms of the substantive prayer of possession, it ought to have granted consequential relief of directing an inquiry to be held under Order XX Rule 12.

11. On the other hand, the learned Counsel appearing on behalf of the Defendant submitted that the Appellate Court had considered the evidence on record and had arrived at a factual conclusion and this Court, while exercising limited jurisdiction under section 115 of the Civil Procedure Code, ought not to interfere with the judgment and order passed by both the Courts below. It is submitted that there was no invocation of the relief of mesne profits by the Plaintiffs and, therefore, the said relief was given up by the Plaintiffs and it was not open for them to seek the same relief in appeal. The learned Counsel also invited my attention to the provisions of Order XX Rule 12 and submitted that no issue had been framed by the Trial Court on the said aspect and, therefore, the lower Appellate Court had rightly refused to pass any order for directing inquiry into the mesne profits.

12. I have heard both the Counsel at length. In my view, both the lower Courts have failed to exercise jurisdiction which is vested in them by law by not considering the prayer made by the Plaintiffs for directing inquiry to be held into mesne profits. Both the Courts below, in my view, have committed material irregularity in ignoring the prayer for mesne profits which was made by the Plaintiffs in the suit filed by them. The lower Appellate Court in its judgment has observed, firstly, that there were no pleadings in respect of the mesne profits and, therefore, the Trial Court had not framed the issue in respect of the mesne profits. The lower Appellate Court also erred in holding that when there were no pleadings, it could not be said that the Trial Court had failed to framed the issue regarding mesne profits. Perusal of the judgment of the lower Appellate Court clearly discloses that it had proceeded on the assumption that there were no pleadings in respect of seeking inquiry into the mesne profits. Similarly, the Trial Court has not given any reasons why the order for inquiry into mesne profits was not granted. The Trial Court is completely silent on this aspect.

13. It is an admitted position that, initially, the suit was filed only for termination of license and for possession and for mesne profits. Later on when the Bank claimed tenancy, by way of abundant caution, Plaintiffs issued their advocate's notice for termination of tenancy and, accordingly, made consequential amendments in the plaint, seeking possession on the ground that tenancy of the Defendant was terminated. A specific plea was made seeking mesne profits for the continued illegal possession by the Defendant - Bank of the suit premises. These averments can be found in paras 12 of the Plaint which reads as under:-

"12.In the circumstances, the plaintiffs state that they are entitled to vacant possession of the premises from the Defendants and also to an order requiring the Defendants to cease the user of the facilities granted to them as appurtenant to the user of the premises. The plaintiffs state that as the tenancy of the Defendants has been determined as aforesaid, the plaintiffs are liable for mesne profits from 1.10.2000 till the Defendants hand over vacant possession of the premises to the plaintiffs."

Similarly, further averments are to be found in para 14 of the plaint which reads as under:-

"14.The plaintiffs state that the suit as between landlord and tenant in respect of the premises situated in Mumbai, that the tenancy in suit is not protected under the provisions of the Maharashtra Rent Control Act, and hence this Hon'ble Court has jurisdiction to entertain and try this suit. Of the premises from 1.12.1997, to date and are therefore liable to pay to the Plaintiffs mesne profits in respect of the said occupation of the suit premises and user and enjoyment of the facilities provided under the service agreement. The plaintiffs, therefore, submit that this Hon'ble Court be pleased to order an enquiry to ascertain the profits due and payable to the plaintiffs by the Defendants for the period commencing from 1.12.1997 till the Defendants hand over vacant possession of the premises to the plaintiffs in the event of the Hon'ble Court holding that the Defendants are in possession of the premises as tenants therefore, the plaintiffs submit that this Hon'ble Court be pleased to order an enquiry as to the mesne profits due and payable to the plaintiffs by the Defendants for the period commencing from 1/10/2000 till the Defendants hand over vacant possession of the premises to the plaintiffs."

14. In para 14 of the plaint, therefore, an alternative contention was raised that in the event the Court comes to the conclusion that the Defendant - Bank is in possession of the premises as tenant then an inquiry may be ordered for mesne profits for the period commencing from 1/12/1997 since notice of termination was issued on that date, whereas in the first part of para 14 of the plaint, an averment is made that since the tenancy was not protected under the Maharashtra Rent Control Act, Plaintiffs were entitled to claim mesne profits from 1/12/1997. A specific prayer for mesne profits was also made in prayer clause (b) of para 13 of the plaint, which reads as under:-

"(b) That an enquiry be ordered to be held to ascertain the mesne profits due and payable by the Defendants to the plaintiffs from 1.12.1997, till they hand over vacant possession of the suit premises to the plaintiffs."

15. The lower Appellate Court, therefore, erred in coming to the conclusion that there were no pleadings in respect of the mesne profits and no reference has been made to the aforesaid pleadings which are reproduced hereinabove. The lower Appellate Court proceeded on the footing that there were no pleadings and, therefore, further proceeded to observe that since there were no pleadings there was no question of framing the issue about mesne profits. The finding arrived at by the lower Appellate Court, therefore, to say the least, is perverse and the lower Appellate Court has, therefore, committed material irregularity in arriving at the said conclusion.

16. So far as the Trial Court is concerned, the Trial Court overlooked the pleadings and the prayers which are made and the evidence which has been led by the Plaintiffs and had merely granted prayer clause 13(a) of the Plaint. It did not give any reasons why prayer clause 13(b) is not granted or is not considered. The submission made by the learned Counsel appearing on behalf of the Defendant that the Trial Court has exercised its discretion for not granting prayer clause (b), therefore, cannot be accepted. It is a well settled position in law that even for the purpose of exercising discretion which is vested in a Court, the said discretion has to be exercised judiciously and the Court has to give reasons why the said discretion has been used either for granting a particular relief or not granting that relief.

17. It is an admitted position that the Plaintiffs had led evidence in respect of the mesne profits. There is much substance in the submission made by the learned Counsel appearing on behalf of the Plaintiffs that, initially, the Plaintiffs felt that there was a mistake on the part of the Trial Court in not passing the consequential order and, therefore, the Plaintiffs filed an application under section 152 of the Civil Procedure Code for correction of error in the judgment. The Trial Court, however, was of the view that nonmentioning of the consequential relief claimed in its judgment and order would not amount to clerical or arithmetical mistake in the judgment and, therefore, it declined to interfere with the said judgment and order.

18. It is a well settled position in law that the relief which is claimed by the Plaintiffs for mesne profits is a consequential relief; the main relief being recovery of possession. For the purpose of passing an order for mesne profits, the Trial Court has to pass an order of holding inquiry in the suit itself since the said relief of mesne profits can be granted only if the suit of the Plaintiffs is decreed. If such a suit for recovery of possession is dismissed, the question of payment of mesne profits does not arise. Therefore, very often, issue of mesne profits is not framed since there is an independent provision in the CPC for holding an inquiry for mesne profits. Order XX Rule 12 of the Civil Procedure Code reads as under:-

"ORDER XX

JUDGMENT AND DECREE

"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."

Since an independent provision has been made for holding an inquiry into the mesne profits, the question of giving particulars regarding claim of mesne profits in the plaint does not arise and only when the suit is decreed and possession is directed to be handed over to the Plaintiffs, further consequential relief is granted. If the Court is of the view that this consequential relief is not to be granted then reasons have to be assigned by the Trial Court for not directing inquiry for mesne profits. No such reasons have been given by the Trial Court and the lower Appellate Court had erroneously proceeded on the assumption that there are no pleadings in the plaint. The Apex Court in Bhagwati Prasad vs. Chandramaul AIR 1966 SC 735 has held that once a decree for ejectment is passed, the Defendant is bound to pay mesne profits or damages for the use and occupation of the property until it is delivered to the Plaintiff. The Apex Court has observed in the said judgment that once it is held that the Plaintiff is entitled to eject the Defendant, as a matter of consequence, the Defendant who continued to remain in possession of the property, was liable to pay mesne profits or damages for the use and occupation of the property until it was delivered to the Plaintiff. The Apex Court in para 18 of its judgment in Bhagwati Prasad (supra) has observed as under:-

"18.In regard to the plaintiff's claim for past rent, we see no reason to interfere with the decree passed by the High Court. But we do not see how the High Court's decree in relation to future mesne profits can be sustained. Once it is held that the plaintiff is entitled to eject the defendant, it follows that from the date of the decree granting the relief of ejectment to the plaintiff, the defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the plaintiff. A decree for ejectment in such a case must be accompanied by a direction for payment of the future mesne profits or damages. Then as to the rate at which future mesne profits can be awarded to the plaintiff, we see no reason to differ from the view taken by the trial Court that the reasonable amount in the present case wold be Rs 300/- per month."

The ratio of the said judgment of the Apex Court squarely applies to the facts of the present case.

19. The judgment and order passed by the Division Bench of the Small Causes Court in Appeal No. 81 of 2005 is quashed and set aside. The judgment and order of the Trial Court is modified and direction is given to the Trial Court to hold an inquiry to ascertain the mesne profits due and payable by the Defendant to the Plaintiffs from 1/12/1997 till the vacant possession is handed over by the Defendant to the Plaintiffs as per the procedure laid down under Order XX Rule 12 of the Civil Procedure Code.

20. The Civil Revision Application is accordingly allowed and disposed of.

Ordered accordingly.