As rightly urged by the learned counsel for the applicant, the question before this Court was whether the applicant was entitled to claim mesne profits at the rate of Rs.200/- p.m. Since the applicant was already awarded mesne profits at the rate of Rs.30/- p.m. with 10% increase every three years from the date of filing of suit till 21.08.1990 together with interest @ 12% at the amount accruing due month after month, which was not under challenge at the instance of respondents and hence the question was whether the applicant was entitled to claim mesne profits for the balance amount, i.e. Rs.170/- p.m. from the respondents.
32) It is this claim, i.e., Rs. 170/- p.m., which was given up by the applicant that being the subject matter of the petition which this Court recorded and accordingly disposed of the applicant’s petition by order dated 21.04.2009.
33) In our opinion, the order of this Court dated 21.04.2004 could not have been construed so as to deprive the applicant to claim mesne profits at the rate of Rs.30/- p.m. with 10% increase every three years from the date of filing of suit till 21.08.1990 together with interest @ 12% at the amount accruing due month after month from the respondent. Indeed, this claim which was already adjudicated in applicant’s favour by the Courts below and which was neither challenged by the respondents and nor was it the subject matter of dispute in applicant’s petition, the same could not be held to have been given up by the applicant by order dated 21.04.2009.It is a settled principle of law that only those issues could be given up by the party which are the subject matter of the lis before the Court. Since in the petition before this Court, the issue with regard to award of mesne profits at the rate of 30/- p.m. was not the subject matter at the instance of any party to the lis, the question of its giving up at the instance of the applicant did not arise. The order dated 21.04.2009, in our view, has to be interpreted keeping in view these background facts.
Reportable
Supreme Court of India
Sant Ram vs Dhan Kaur & Ors on 16 October, 2015
Bench: J. Chelameswar, Abhay Manohar Sapre
Citation:(2016) 14 SCC 421