How the court should deal with issue of grant of mesne profits under different types of suits?

 It is necessary at the outset to distinguish between three different types of cases in which a question of profits or mesne profits might arise. (1) Suits for ejectment or recovery of possession of Immovable property from a person in possession without title, together with a claim for past or past & future mesne profits. (2) Suits for partition by one or more tenants-in-common against others with a claim for account of past or past & future profits. (3) Suits for partition by a member of a joint Hindu family with a claim for an account from the manager. In the first case, the possession of the defts. not being lawful, the plff. is entitled to recover "mesne profits" as defined in Section 2, Clause (12), Civ. P. C., such profits being really in the nature of damages. In the second case, the possession & receipt of profits by the deft, not being wrongful the plff's. remedy is to have an account of such profits making all just allowances in favour of the collecting tenant in common. In the third case, the plff. must take the joint family property as it exists at the date of the demand for partition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager has been guilty of fraudulent conduct or misappropriation. The plff. would, however, be in the position of a tenant-in-common from the date of severance in status & his rights would have to be worked out on that basis. {Para 3}

4. Order 20, Rule 12, Civil P. C. deals with the first class of suit above referred to, while Order 20, Rule 18, Ideals with the second & the third categories. In view, however, of the considerable reliance placed on Order 20, Rule 12, Civil P. C. in Ghulusum Bivi v. Ahmadsa Rowther, 42 Mad. 296in dealing with the right of a plff. to profits accruing during the pendency of a partition suit, it is desirable to consider the scope of this provision. A claim for possession & a claim for past mesne profits have been held to be based on different causes of action, at any rate, in the decisions of this Court. Order 2, Rule 4, Civil P. C. however permits their joinder in one suit. There is a material difference between a claim for past & a claim for future mesne profits. Order 7, Rule 2, Civil P. C. & Section 7 Sub-section (1), Court fees Act, require that the amount of past mesne profits claimed should be approximately stated in the plaint & ad valorem court-fee should be paid on such amount. These provisions can have no application to future profits, for it is not possible for the plff. to predicate how long the litigation is going to last or give even an approximate statement of the amount of mesne profits that might become payable at the end. The cause of action for future mesne profits is the plff's. being kept out of possession during the suit & arises subsequent to the suit. In empowering Courts to award future mesne profits Order 20, Rule 12, Civ. P. C. makes an exception to the general rule that a plff. can only sue on such cause of action as has arisen on the date of instituting his suit. The object is to avoid the multiplicity of litigation that would result if persons, unlawfully kept out of possession of their lands were obliged to file suits every three years for mesne profits accruing after the institution of a suit in ejectment & during its pendency in the original & appellate Courts. But the plff. could not claim future mesne profits as a matter of right, the cause of action for such profits not having arisen to him at the date of the suit. Hence it is that the power of the Court to award mesne profits subsequent to the suit has been held to be discretionary & a mere omission, as distinguished from a refusal, to grant future mesne profits asked for, has been held not to bar a fresh suit for that relief. Doraiswami v. Subramania, 41 Mad. 188. In re Ekanathalingaswami, I.L.R. (1937) Mad. 284. Section 11, Court-fees Act, (as amended in Madras) requires payment of court-fee on future mesne profits only if the plff. desires to execute the decree awarding him such profits. The Judicial Committee interpreting the provisions of Section 196, Civ. P. C. of 1859 & this Court, construing the corresponding provisions of Order 20, Rule 12 held that whether a plaint contained or not a claim to future profits the Court has the power to grant them under these special provisions, Fakharuddin Mohamed Ashan v. Official Trustee of Bengal, 8 Cal. 178 & Kemgamswami v. Subbamma, 53 Mad. 838. When the Legislature has expressly empowered the Court to grant relief for future mesne profits, that is to say, in respect of a cause of action arising subsequent to the suit, there is no reason to circumscribe this power by importing a qualification that there must have been a specific prayer in the plaint for the recovery of such unascertainable & unpredictable profits. Future mesne profits could, we think, well be awarded as part of the general relief to which a plff. is entitled.

 IN THE HIGH COURT OF MADRAS

FULL BENCH

Civil Revn Petn No. 1695 of 1948

Decided On: 02.02.1951

Babburu Basavayya and Ors. Vs. Babburu Guravayya and Ors.

Hon'ble Judges/Coram:

P.V. Rajamannar, C.J. Vishwanatha Sastri and A.S. Panchapakesa Ayyar, JJ.

Author: P.V. Rajamannar, C.J.

Citation: AIR 1951 Madras 938.

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Whether appellate court should determine mesne profits for determining interim compensation while staying eviction decree?

 If this Court indulges in a threadbare analysis and judicially

determines the relative merits of the rival mesne profits reports at an

interlocutory stage—more so under Order 41, Rule 5 of CPC—that

preempts the trial Court’s legitimate adjudicatory powers under Order

20, Rule 12 of CPC. Here, what this Court intends, or requires, to do is

to use the “commonsense which is a cluster of life's experiences” rather

than depend on the rival facts presented by warring litigants.”

(g) Pragmatic Pursuit:

32. Indeed, any adjudication, if it were, under Order 41, Rule 5

of CPC involves an element of ad hocism, a permissible level of guess

work, and a dose of discretion. That provision is a step-in-aid in appeal

proceedings; it tries to keep both the rivals in the litigation on an even

keel. One has the reality of a decree; the other a possibility of its

reversal. The decree, say in an eviction suit, alters the characters of

parties. The tenant is no longer a tenant; he is, at best, an occupant.

And that occupation stands branded as unauthorised. The suspension

of the decree does not obliterate the judicial findings; it only keeps its

effect—its execution—at bay. So to have the legitimate judicial dictum

put on hold in the name of stay, the appellant needs to submit himself

to certain terms. The terms of, for example, paying monetary

compensation. A stay is not for mere asking. Nor can the appellant

paint himself a victim under Order 41, Rule 5 of CPC. That said, I

must also acknowledge that the appellate courts will not lose sight of

the distinction between what is ideal and what is practical; what is

discretionary and what is arbitrary; what is a fair guess and what is a

wild whim.

33. With judicial overload, docket explosion, and clogging

adjudicatory avenues at every echelon, we cannot expect a mini-trial

even under Order 41, Rule 5 of CPC, for fixing, say, an interim

compensation. It is ideal. But with the litigious multitude knocking at

the court’s doors clamouring for speedy justice, it is an unaffordable

legal luxury.

34. Here, in the revision, the appellant cannot insist on

reappreciation of his case on merits. This Court can only examine the

jurisdictional errors, if any, committed by the Appellate Bench.

Therefore, the tenant seeking to stall the execution of a decree from a

final court of fact has more burden to bear.

(h) The Result:

35. So, I reckon this Court’s interim arrangement needs no

interference, for this adjudication under Order 41, Rule 5 of CPC has no trappings of a judicial determination of mesne profits under Order

20, Rule 12 of CPC. The tenant will continue to pay Rs.25,000/- per

month to have the decree stayed, and the eviction stalled. Between the

two extremes of Rs.71,500/- per month and Rs.12,846/-, as projected

by the landlords and tenant respectively, my altering the figure

Rs.25,000/- can be nothing more than a cosmetic consideration. This

interim arraignment does not prevent the landlords from invoking

Order 20, Rule 12 of CPC. In that event, both the rival contenders can

invite a reasoned order from the trial Court.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION (ST.) NO.33250 OF 2018

Previn Govind Sharma Vs  Dinyar Jal Jamshedji

CORAM : DAMA SESHADRI NAIDU, J.

DATE : 21st JUNE 2019.

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Bombay HC: Scope of inquiry for grant on interim compensation while granting stay to eviction decree

This Court in Previn Govind Sharma v. Dinyar Jal Jamshedji  Decided on 21st June 2019 has

considered the issue in detail. After examining the above decisions besides others, it

has held that this Court under Order 41, Rule 5 CPC does not fix mesne profits per

se. If this Court indulges in a threadbare analysis and judicially determines the

relative merits of the rival mesne profits reports at an interlocutory stage—more so

under Order 41, Rule 5 of CPC—that preempts the trial Court’s legitimate

adjudicatory powers under Order 20, Rule 12 of CPC. Here, what this Court

intends, or requires, to do is to use the “commonsense which is a cluster of life's

experiences” rather than depend on the rival facts presented by warring litigants.”

Pragmatic Pursuit:

29. Then, Previn Govind Sharma has recorded what could be a pragmatic

approach. Indeed, any adjudication, if it were, under Order 41, Rule 5 of CPC

involves an element of ad hocism, a permissible level of guesswork, and a dose of

discretion. The interim compensation, I may note, is to ensure that neither party

gets an unfair advantage over the other. Either too high an amount or too low an

amount as compensation prejudices one or the other party. The whole endeavour

under Order 41, Rule 5 of CPC is to keep the rival parties on an even keel. It is a

balancing act between the competing interests of a party who secured a decree and a

party who entertains the hope of emerging successful in the appeal proceedings.

30. Order 41, Rule 5, we may note, is a step-in-aid in appeal. The respondent

has the reality of decree; the appellant the possibility of its reversal. The decree, say  in an eviction suit, alters the characters of parties. The tenant is no longer a tenant;

he is, at best, an occupant. And that occupation stands branded as unauthorised.

The suspension of the decree does not obliterate the judicial findings; it only keeps

its effect—its execution—at bay. So to have a binding decision put on hold in the

name of stay, the appellant needs to submit himself to certain terms. The terms of,

for example, paying monetary compensation.

31. If we continue in the same vein, a stay is not for mere asking. Nor can the

appellant paint himself a victim under Order 41, Rule 5 of CPC. That said, I must

also acknowledge that the appellate courts will not lose sight of the distinction

between what is ideal and what is practical; what is discretionary and what is

arbitrary; what is a fair guess and what is a wild whim.

32. With the judicial overload, docket explosion, and clogging adjudicatory

avenues at every echelon, we cannot expect a minitrial even under Order 41, Rule 5

of CPC, for fixing, say, an interim compensation. It is ideal. But with the litigious

multitude knocking at the court’s doors clamouring for speedy justice, it is an

unaffordable legal luxury.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.13100 OF 2018

Ishwarlal Vrajlal Mistry vs.  Manohar U. Shetty

CORAM: DAMA SESHADRI NAIDU, J.

JUDGMENT DATE: 18th December 2019

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Whether court should grant reasonable mesne profits even if applicant has failed to lead evidence in that respect?

11. It is correct that the Appellant had not led any evidence on the issue of mesne profits though such an issue was specifically framed. However, in the interest of justice, the Appellant could have been granted some reasonable compensation for the wrongful possession of the premises from the Respondent herein.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5855 of 2018 

Decided On: 23.02.2018

Bhag Singh Vs. Vikram Sandhu

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation:(2018) 18 SCC 374

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Whether executing court can direct enquiry for future mesne profits?

Learned counsel appearing for the appellants urged that the judgments of the executing court as well as the High Court are erroneous inasmuch as the reliance on the decision reported in Rajajai Singh v. Ranganathappa [ILR 1986 (3) Karnataka 2985] and Gopalakrishna Pillai and Ors. v. Meenakshi Ayal and Ors. , were totally misplaced. We find substance in the argument. A perusal of record shows that the decree-holder in their plaint did not pray for the grant of any future mesne profit. It is also manifest from the decree passed by the trial court that the court did not grant either past and future mesne profit to the decree-holder. Further, the decree-holder did not move any application either for amendment of the plaint by incorporating prayer for grant of future mesne profit or amendment of the decree for grant of future mesne profit. Under such circumstances, it was not open to the executing court to direct the enquiry for ascertaining the future mesne profit under Order 20, Rule 12, Code of Civil Procedure. It is true that in the absence of any prayer in the plaint, it is open to the court to grant past mesne profit. So far the future mesne profit is concerned, the court has a discretionary power to pass a decree directing the enquiry into the future mesne profit and the court may grant such mesne profit, although it is not specifically asked for in the plaint. In the present case, the court has not exercised its discretion to grant future mesne profit. In the absence of such an order or direction, it was not open to the executing court to direct for enquiry into the future mesne profit. 

Supreme Court of India

K. Hatiza Begum And Ors. vs K.M. Usman Pasha And Ors. on 30 January, 2002

Equivalent citations: JT 2002 (2) SC 482, RLW 2003 (1) SC 110

Bench: V Khare, A Bhan

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Whether court can grant future mesne profits if it is not claimed by plaintiff?

 But where, as in this case, the suit is for the recovery of possession of immovable property and for past mesne profits, the Court has ample power to pass a decree' directing an enquiry as to future mesne profits, though there is no specific prayer for the same in the plaint.

Supreme Court of India

Gopalakrishna Pillai And Others vs Meenakshi Ayal And Others on 31 March, 1966

Equivalent citations: 1967 AIR 155, 1966 SCR (1) 28

Bench: Bachawat, R.S.

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Whether court fees for mesne profits is to be paid at time of filing of suit?

She lastly submitted that order directing an enquiry into mesne profit was liable to be set aside inasmuch as the plaintiffs had not proved their case regarding the damages and, therefore, the order of mesne profit was liable to be set aside. She further submitted that the plaintiff was liable to pay court fees on account of mesne profit determined by him and without payment of the Court Fees, the claim for mesne profit was not tenable. She relied on the judgment of this Court in the case of Faredoon Maneckji Dalai v. Phiroze Bonanji Javeri reported in 1995(2) Mh.LJ. 344 : 1995(3) BCR 512.
With respect to the contention raised by the learned counsel for the applicant regarding mesne profit, it can be seen from the judgment passed by the learned trial Court which has been upheld by the appellate Court that the learned trial Court has only directed an enquiry into the mesne profit in accordance with the provisions contained in Rule 12 of the Order XX of the Code of Civil Procedure. No fault can be found with the said direction. However, it is made clear that the amount paid by the applicant in pursuance to the orders passed by this Court on 3-9-1997 will be adjusted in the final order of mesne profit that would be passed upon enquiry into the mesne profit.

Bombay High Court

Ramchandra Jamnadas Katariya vs Nuruddinbhai S/O Mazhar Ali And ... on 25 August, 2004

Equivalent citations: AIR 2005 Bom 107, 2005 (1) BomCR 650, 2004 (4) MhLj 178

Bench: B Gavai

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Whether court can direct enquiry for mesne profits in absence of prayer?

So   far   the   contention   raised   by   the 
Counsel for the appellants that in absence of any 
pleadings  or  prayers  in the  suit,  enquiry  in  the 
mesne profits should not have been directed by the 
trial   Court   as   held   in   the   case   of  Ganapati 
(supra).   It   is   admitted   position   that,   the 
plaintiff   did   not   plead   or   pray   for   inquiry   of 
mesne   profits   and   therefore,   to   that   extent   such 
inquiry   was   directed   by   the   trial   Court   by 
direction   in   clause­3   of   its   order   dated 
12­12­2008   is   required   to   be   quashed   and   set 
aside.

SECOND APPEAL NO.245 OF 2011
WITH
CIVIL APPLICATION NO.12907 OF 2011
                                      
     IN  THE HIGH COURT OF JUDICATURE AT BOMBAY 
BENCH AT AURANGABAD

Shankar  Manikrao Waghmare  V            Bhaurao  Bapurao Waghmare,

    
                       CORAM: S.S. SHINDE, J.
                       DATE : 8TH DECEMBER, 2011
     Citation: 2012(2)BomCR747, 2012(3)MhLj134   

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Whether court can grant mesne profits after passing of final decree?

 Based on the decision of the Full Bench of this Court in Babburu Basavayya vs. Babburu Guruvayya, reported in A.I.R. 1951 Mad. 938, the Full Bench of this Court has held that till the final decree is passed, the court is empowered to grant the relief of mesne profits. Once the final decree is passed, thereafter it is not open to the court to grant the relief of mesne profits. The simple reason being that the final decree is the one which is to be executed. It is well known fact that the executing court cannot go beyond the decree.

Civil Procedure Code 1908 as amended Order 20, Rule 12 – Partition Suit decreed and In execution 

proceedings - mesne profits sought – executing court dismissed the petition as the same was not sought earlier in 

the suit or in the final decree proceedings – appellate court set aside the order and allowed the application – on 

revision the High Court following the Bench Judgment held that after passing of the final decree the relief of mesne 

profits can not be sought and granted – CRP (NPD allowed with observations.1

Madras High Court

Saradhambal vs Ramakrishnan

DATED.07.12.2012

CORAM:

THE HONOURABLE MR.JUSTICE T.MATHIVANAN

Citation;2013 (1) TLNJ 347 (Civil)

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