DAYANANDAMMAL ALIAS DAYALAMMAL Vs. ST THOMAS TAMIL CHURCH

JUDGEMENT

(1.) WHEN this second appeal came up for admission on 29. 7. 1993 we passed an order that only one question of law required for consideration by us viz. whether the judgment and decree of the courts below are vitiated by granting future mesne profits at the rate of Rs. 1,000 per mensem without any evidence as at present on record and without enquiry under o. 20, Rule 12, Code of Civil Procedure. The respondents had taken notice at that time and both counsel expressed their willingness to argue the appeal this week. Hence, we posted the second appeal to this date.

(2.) LEARNED counsel on both sides argued the appeal. It is the contention of learned counsel for the appellants that without an enquiry under O. 20, Rule 12, C. P. C. , the court cannot pass a decree for future mesne profits. It is submitted that under Rule 12 (c) of O. 20 the Court has to direct an enquiry into rent or mesne profits from the institution of the suit. LEARNED counsel draws our attention to the definition of mesne profits in Sec. 2 (12), c. P. C. according to which, mesne profits are 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 not including profits due to improvements made by the person in wrongful possession. It is contended that that the courts below have proceeded on the footing that there is no denial in the written statement of the claim for mesne profits made by the plaintiff in the plaint and that approach is erroneous. According to learned counsel, what is claimed in the plaint is only a particular rate of mesne profits with an averment that it would fetch not less than that amount. LEARNED counsel submits that it is not mentioned as a fact but it is only a basis for the claim of the plaintiff. He submitted that the plaintiff ought to have pleaded in the plaint that the defendant would have obtained with ordinary diligence from the property the profits which he claims. In the absence of such a plea it cannot be said that there is a pleading as to mesne profits and there is no necessity in such a case for the defendant to make a denial of the same. It is also submilted that there is no evidence on record to prove the amount which the defendant would have received with due diligence from the property by way of profits. Reliance is placed upon the judgment of the Privy Council in Harry Kempson Gray v. Bhagtt Mian, 58 M. L. J. 215. A. I. R. 1930 P. C. 82. The Privy Council held that the test set by the statutory definition of mesne profits is clearly not that a person has lost by his exclusion, but what the trespasser has or might reasonably have made by his wrongful possession. LEARNED counsel submits that the test laid down by the privy Council is not satisfied in the present case by the materials on record.

(3.) THE trial court has in para. 10 of its judgment referred to the fact that in the locality in which the suit property is situate it would easily fetch a rent of more than Rs. 1,000 per month and accordingly granted the amount prayed for by the plaintiff. In the appellate court arguments were advanced that the court ought to have directed an enquiry under o. 20, Rule 12, C. P. C. , and ought not to have straightaway passed a decree for mesne profits. Rejecting that argument the appellate court that when the matter was not in issue there was no necessity to direct an enquiry under O. 20, Rule 12. THE appellate court pointed out that the written statement did not contain any denial of the plaint allegation that the income from the property would be not less than Rs. 1,000 per mensem.