AMAR SINGH Vs. CHANDRASHEKHAR RAO

JUDGEMENT

(1.) This Full Bench has been constituted on a reference made by the learned single Judge of this Court (Mulye J.) in Second Appeal No. 105 of 1972. Though the precise question referred to this Bench has not been, formulated, learned counsel for the parties agreed that the question arising in this reference is as follows:

(2.) The facts giving rise to this re-ference have been set out in the order_ of reference,. In a suit instituted by the plaintiff-respondent against the appellant for revovery of possession of a parcel of land, the plaintiff claimed mesne profits from the date of the institution of the suit till possession, but no claim was made for past mesne profits. On behalf of the defendant appellant, it was contended, relying upon two Division Bench decisions of this Court in Deepchancd v. Sukhlal (1969 MPLJ 434) : (AIR 1969 Madha Pra 232) and in Karansingh v. Fundibai (Civil First Appeal No. 26 of 1965). that as the plaintiff had failed to claim past mesne profits, no relief could be given to the plaintiff under Order 20, Rule 12 of the Code of Civil Procedure by awarding future mesne profits. The learned single Judge was of the opinion that the two decisions of this Court in Deep-chand's case (supra) and Karansingh's case (supra) required reconsideration. That is how this question has come up before us for consideration.

(3.) Shri Chaphekar the learned counsel for the plaintiff. contends that the power of a Court to award mesne profits flows from the provisions of Order 20. Rule 12 of the Code of Civil Procedure and it is mot necessary to make a claim for mesne profits. Reliance is placed on the decisions of the Supreme Court in R. S. Maddanappa through L. Rs. v. Chandramma (AIR 1965 SC 1812), Bhagwati prasad v. Chandramaul (AIR 1966 SC 735) and Gopalakrishna Pillai v. Meenakshi Ayal (AIR 1967 SC 155). In reply. Shri Garg, the learned counsel for the defendant-appellant, contends that if mesne profits are not claimed in a plaint, a court has no jurisdiction to pass a decre for mesne profits. Relinace is placed on the decision of the Supreme Court in Mohammad Amin v. Vakil Ahmad (AIR 1952 SC 358) and two Divi-son Bench decisions of this Court in Deepchand's case (AIR 1969 MP 232) (supra) and Karansingh's case (supra)'.