VEERAMACHANENI GANGADHARARAO Vs. KANURI VENKATGESWARA RAO

JUDGEMENT

(1.) The point for consideration in this revision i.e. whether a relief under Order 20, Rule 12, Civil P. C., can be granted after the suit has been finally disposed of in appeal, without providing for that relief in the decree, arises under the following circumstances :

(2.) O. S. No. 5/55 was filed in the Court of the Principal District Munsif, Gudivada for possession of the plaint schedule properties and for past profits and a decree was passed therein for possession and for profits from 1952 to 1954 at the rate of 18 bags of paddy per year. The appeal preferred therein A. S. No. 5/56 in the Sub-Court, Gudivada was allowed and the suit was dismissed. In the Second Appeal in the High Court S. A. No. 701/1959 the decree and Judgment of the Subordinate Judges Court were set aside and the appeal was remanded for fresh disposal after giving findings on the points whether the plaintiff had title to the suit property and was in possession of the same within 12 years prior to the suit. After remand, the appeal came to be decree and judgment of the lower court. Second Appeal No. 415/66 was preferred and was pending in the High Court. During the pendency of the appeal, the petition I. A. No. 17/66 was filed in the court of the District Munsif under Order 20 , Rule 12 , Civil P. C. claiming profits during the pendency of the proceedings , i.e., from 1955 to 1964 at the rate of 18 bags of paddy per year. The enquiry into this petition was stayed by the High Court. The Second Appeal No. 415/66 came to be dismissed on 14-7-1970 . There after , I. A. No. 17/66 filed in the Court of the Principal District Munsif , Gudivada , came to be taken up for enquiry . Among the other contentions raised, one was that the application is no longer maintainable. The Court rejected this contention and appointed a Commissioner to enquire into the quantum of mesne profits from the schedule land for each year from 1955 upto the date of delivery of the property to the petitioner. Hence this petition.

(3.) In the suit filed , there was only a prayer for past mesne profits and not for future profits. This no reason for contending that as there was no such prayer for future profits , a petition under Order 20, Rule 12 , Civil P. C. cannot lie for the future profits that had accrued during the pendency of the suit. In = (AIR 1951 Mad 938 FB) a Full Bench of the Madras High court came to consider this question and has stated as follows :-- "It is necessary at the outset to distinguish between three different types of cases fits 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 and 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 and 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 defendant not being lawful, the plaintiff is entitled to recover mesne profits as defined in Section 2, clause (12) of the Civil Procedure Code, such profits being really in the nature of damages. In the second case the possession and receipt of profits by the defendant not being wrongful, the plaintiffs 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 plaintiff must take the joint family property as it exists at the date of the demand for petition and is not entitled to open up past accounts or claim relief on the ground of past inequality of enjoyment of the profits, except where the manager has been guilty of fraudulent conduct of misappropriation. The plaintiff would, however, be in the position of a tenant-in-common from the date of severance in status and his rights would have to be worked out on that basis." It was further pointed out that Order 20, Rule 12, Civil P. C. deals with the first class of suits above referred to, while Order 20, Rule 18 deals with the second and third categories, that there is a materiel difference between a claim for past and a claim for future mesne profits, as while the past profits can be ascertained on approximate claim made, future profits cannot, as it is not possible for the plaintiff 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, and the cause of action for future mesne profits is the plaintiffs being kept out of possession during the suit and arises subsequent to the suit, that therefore Order 20, Rule 12, Civil P. C. makes an exception to the general rule that a plaintiff can only sue on such cause of action as has arisen on the date of instituting his suit and 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 and during its pendency in the original and appellate Courts. They further held that there is no express or implied prohibition in the Civil Procedure Code against awarding possession and directing an enquiry into future mesne profits by successive adjudications in pending suit. It has, however, been pointed out that this enquiry can be ordered either as part of the preliminary decree itself or subsequently as a step towards the passing of the final decree, and in either case the result of the enquiry has to be incorporated in the final decree. This clearly shows that unless the relief is made a part of the decree, no application would lie to as certain and grant such profits.