SARASWATHI PILLAI Vs. PARAMESWARA KURUP

JUDGEMENT

(1.) THE short question that arises in this second appeal is whether the court while passing a decree for recovery of possession with mesne profits is competent to award to the plaintiff future mesne profits at a rate higher thai, what has been specifically stated in the plaint.

(2.) THE facts against the background of which the question has arisen before us may be briefly stated. The appellant before us instituted o S. No. 129 of 1965 in the Munsiff's Court, Karunagappally seeking recovery of possession of the plaint schedule property from the 1st respondent herein, who was the sole defendant in the action, with mesne profits, past and future, at the rate of Rs 200/- per annum. Though the trial court dismissed the suit, that decree was set aside in appeal by the District Court, Quilon in A S. No. 240 of 1967. By the appellate judgment the plaintiff was granted a decree for recovery of possession of the suit properly with future mesne profits from the date of suit, the claim for past profits being disallowed. The appellate decree directed that the quantum of mesne profits should be determined at the execution stage. th e plaintiff-decree-holder while applying for delivery of possession of the property in execution of the decree moved the executing court for the issuance of a commission for ascertaining the mesne profits recoverable from the defendant-Ist judgment debtor. An advocate-Commissioner was accordingly deputed by the executing court for ascertaining the mesne profits. Based on th e report submitted by the Commisioner the executing court fixed the mesne profits payable to the plaintiff at Rs. 912. 98 per year.

(3.) S . 2 (12) of the Code of Civil procedure (Act V of 1908) defines mesne profits as "those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful posses ion". R. 2 of Order VII of the Code specifically lays down that where the plaintiff sues for mesne profits, in plaint need state only approximately the amount sued for. Under S. 44 of the Kerala Court-fees and suits Valuation Act, 1959 also, in a suit for mesne profits or for immovable property and mean profits, the plaintiff is ex-pected to state the amount sued for only approximately and the court-fee is to be computed in the first instance on such amount. If the profits that are finally ascertained as due to the plaintiff happens to be in excess of the profits approximately estimated and surd for, the section enjoins that no decree shall be passed until the difference between the fee actually paid and fee that ascertained so is paid. Sub-section (2) of S. 44 proceeds to add that where a decree directs an enquiry as to the mesne profits which have accrued on the property, whether prior or subsequent to the ms'itution of the suit, no final decree shall be passed till the difference between the fee actually paid and the fee which would have been payable had the suit compromised the whole of the profits accrued due till the date of such decree is paid. In the light of these statutory provisions it appears to us to be quite clear that in a suit for recovery of possession of the immovable property with mesne profits the plaintiff is bound to state the amount of claim in respect of profits only approximately and the duty is cast on the court to determine the exact quantum of profits recoverable by the plaintiff both in respect of the period prior to the institution of the suit and the period subsequent there in the light of the definition of mesne profits as contained in S. 2 (12) of the Code of Civil procedure. With respect, we are unable to agree with the view expressed in kunhiraman versus Appa Kunhi (1968 KLT 264) that where the plaintiff has categorically claimed a specific sum as mesne profits the court is not competent to award him mesne profits at any higher rate. We are constrained to hold that the said decision does not lay down the correct law. As a matter of fact nearly two years prior to the date of the decision in Kunhiraman versus appa Kunhi (1968 KLT. 264) a Division Bench of this Court has considered the identical question and rendered a pronouncement to the contrary. The decision of the Division Bench is reported in K. C. Alexander versus Nair Service society Ltd (AIR 1966 Kerala 286 ). Unfortunately, that ruling does not appear to have been brought to the notice of the learn d single judge who decided Kunhiraman v. Appa Kunhi (1968 KLT. 264 ). In K. C. Alexander v. Nair Service Society Ltd. (AIR. 1966 Kerala 286) referred to supra raman Nayar, J, (as he then was) speaking on behalf of the Division Bench has succinctly summarised the legal position of the matter in the following terms : "it is pointed out on behalf of the 1st defendant that the claim made in the plaint in respect of mesne profits is only at the rate of Rs. 5000 per annum and it is contended that the decree cannot award anything more. This is to misunderstand the nature of the claim for mesne profits made in this particular case and the nature of such a claim in general. Having regard to the definition of "mesne profits" in S. 2 (12) of the code, it is apparent that mesne profits are something which a plaintiff cannot evaluate and which it is solely for the court to determine on the evidence before it. As in a suit for an account, the plaintiff can only mention rough figure as the amount which will be found due to him, and that is why the second paragraph of Order VII R. 2 of the Code makes an exception to the general principle laid down in the first paragraph that in a suit for money the plaint shall state the precise amount claimed and says that when the claim is for mesne profits, or for an amount which will be found due on taking unsettled accounts, the plaint need only state approximately the amount sued for. S. 11 of the Court Pees Act, 1870 makes the position even clearer. It shows that the claim in a suit for mesne profits is only a rough estimate even if a precise amount is stated and that it is for the court to ascertain the true amount. And this can be in excess of the amount claimed. For, it says that in suits for mesne profits or for on account, if the profits or amount decreed are in excess of that claimed, the decree shall not be executed until the difference in court fee is paid. In this particular case, the relief sought in respect of the mesne profits (by prayer No. 2 in the plaint) is that the court should award all profits received by the defendants from the property, both before and after the institution of the suit, at the rate estimated by the plaintiff at 35625 fanams (Rs. 5000) per annum This, it seems to us, is just what is required by Order vii R. 2 of the Code. &quot ; We are in respectful and complete agreement with the above statement of law. It may also be observed that in Nair Service Society ltd. v. Rev. Fr. Alexander (1968 KLT. 182) the Supreme Court while disposing of the appeal filed against the aforesaid decision of the Division Bench has approved and confirmed the view taken by the Division Bench in respect of this aspect.