HARIDAS GIRDHARDAS DIED Vs. V SIVARAMA SUBRAMANIAN

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs against the judgement and decree in C.S.No.28 of 1964 on the file of this Court determining the mesne profits in relation to the suit property at Rs.6,250 per month. The claim of the plaintiffs was at the rate of Rs.12,000 per month.

(2.) THE litigation had a chequered career. But suffice it to note a few of the facts which are necessary for the necessary for the disposal of this appeal. THE plaintiffs originally filed this suit praying for a declaration that they have become the owners of the building and the superstructure constructed by the defendants on the lands leased by them to the defendants in terms of the lease deed dated 17th November, 1938. Ultimately, the prayer in the suit was amended as one for specific performance and for a direction to the defendants to execute and register a deed vesting the building and the superstructures on the site let out by them, and for a direction to deliver to the plaintiffs the site along with the building in good and satisfactory condition. THE plaint was also amended with a prayer for a direction to the defendants to pay the plaintiffs Rs.12,000 per month as and by way of mesne profits for use and occupation of the building and the superstructure built upon the site from 4th August, 1968 till possession is handed over to the plaintiffs. THEre is no dispute that possession was handed over on the 24th of March, 1974, and the claim for mesne profits thus is for the period from 4th August, 1968 to 24th March, 1974.

(3.) HOWEVER, we may mention that when the matter was pending before the Supreme Court, there were affidavits and counter affidavits relating to mesne profits, the plaintiffs claiming before the Supreme Court mesne profits at the rate of Rs. 15,000 per month and the defendants asserting that they are not liable to pay more than Rs.5,000 per month as mesne profits. In the circumstances, therefore, it could not be stated that the defendants at any time had agreed to pay Rs.12,000 per month, and it is also not possible to contend that there was an implied admission within the meaning of 0.8, R.5 of the Code of Civil Procedure in this case. Though theoretically no exception could be made to the principle laid down in the decision in Gangaram Nathuram v. Beharilal Brijlal, A.I.R. 1952 Bhopal 39, if there is no specific denial of the quantum of profit, normally it can be taken that the matter is admitted subject to the condition mentioned in 0.8, R.5 of the Code of Civil Procedure. Since there is no factual basis for this submission, we are unable to agree with the contention of the learned counsel.