C. Vasantha vs S.C. Pandian

Ramaprasada Rao, J.—This appeal is against the order of Sethuraman J. dated 10-4-1974. The appellant, as plaintiff in C. S. No. 70 of

1968, filed an application under rder XX, Rule 12, C.P.C., and Bought for an enquiry into the mesne profits of the suit property admittedly in the

possession of the respondent, from the date of occupation till the data of delivery of possession.

Certain relevant facts which led to the application may be noticed. Initially there was a controversy as to whether the plaintiff was entitled to the

suit property. The plaintiff based her title on the Will of one Solachi dated 4-12-1961. This was resisted by Solachi''s husband who set up another

Will dated 16-1-1962 of his own wife. A contest therefore ensued between the plaintiff and her sister as legatees under the Will of Solachi dated

4-l2-1961, as propounded by them and the claim of Ramiah based on the will dated 16-1-1962 again said to be the Will of the same Solachi. On

a full enquiry this court in T. O. S, No. 10 of 1963, granted Letters of Administration with the will annexed, to the plaintiff by its order dated 27-9-

1965. In the course of the testamentary proceedings as above, earlier, the husband of Solachi is said to have leased out the property to the

defendant for a period of 5 years. After being successful in the grant of Letters of Administration in her favour, the plaintiff instituted tha present

action (C. S. No, 70 of 1968 on the file of this court) for recovery of possession of the suit property and for mesne profits at the rate of Rs. 1,100

per mensem from 15-8-1964, the data when the defendant was inducted into the property by Ramiah and for other reliefs. On 18-2-1972 an ex

parte decree was passed since the counsel appearing for the defendant reported ''no instructions''. On 17-3-1972, the defendant filed an

application No. 812 of 1972, for setting aside the ex parte decree and sought for stay of execution of the decree till then. During the pendency of

this application to set aside the ex parte decree, the plaintiff (decree-holder), pursuant to her rights, filed an application for an enquiry into the future

mesne profits, i. e., for the period subsequent to the original suit till the date of delivery of possession. It is common ground that this application

under Order XX Rule 12, C. P. C., was filed at a time when the application to set aside the ex parte decree was pending. Thereafter, the court

which enquired into the application to set aside the ex parte decree passed certain orders from time to time granting some more time to the

defendant to deliver vacant possession, but at the same time, making sure that the plaintiff was paid and compensated for such occupancy by the

defendant during the period when he obtained a relief regarding his continuance in the property. The first order which is referable and the gist of

which ought to be excerpted so as to understand fully the scope of the contentions between the parties is as follows:--

The application to set aside the decree is allowed on the above conditions. namely, that the applicant would deliver possession of the premises in

accordance with the directions aforesaid to the decree-holder on or before 1-11-1972 failing which the application shall stand dismissed. On the

applicant satisfying the above condition, this application, (Appln. No. 812 of 1972), to set aside the ex parte decree would stand allowed and the

suit would stand dismissed as settled out of court"".

A further application for extension of time was filed before the same learned Judge and he had further extended tha time in Appln. No. 2481 of

1972. The last of such extension was upto 21-2-1973. Again, we make it clear that the learned Judge made a provision for the payment of

damages for use and occupation of the property by the defendant upto 21-2-1973. Finally, the defendant, again without complying with the orders

of the court made earlier regarding delivery of possession sought for an extension of time to do so, in Appln. No. 464 of 1973, which was

dismissed by Paul J, on 22-2-1973.

The above narration became necessary because it would be useful to refer to them in the course of our judgment while setting out and meeting

up the arguments of counsel.

The plaintiff, not having secured possession of the property, filed E. P. No. 10 of 1973 and obtained possession of the property on 31-3-1975.

In the meantime, however, Appln. No, 776 of 1973, from which the present appeal arises, regarding the direction to enquire into the mesne profits

in respect of the suit property for the period of occupation from the date of suit till the date of delivery of possession was not disposed of. It came

up for final orders only in April 1974 before Sethuraman J. The learned Judge was of the view that as suit had terminated, an application under

Order XX Rule 12 C. P. C. was not maintainable and he dismissed the application and directed the appellant-plaintiff to an independent suit to

recover such future mesne profits. The learned Judge, however, made one position clear and we are reiterating it here so that It may not be

necessary for us to re-advert to it again. While considering the scope and content of the prayer in the petition the learned Judge expressed the view

that the prayer of the plaintiff would take in future mesne profits also. But, ultimately, however, he dismissed the application on the ground already

stated. The appeal is against the said order. It has by now become axiomatic so to say that, notwithstanding the absence of a prayer for the grant

of future mesne profits, the court has yet the discretion to grant the same under Order XX Rule 12 of the Code, when it is asked for by the

plaintiff-decree-holder at any time before the termination of the lis. The discretion to grant such a prayer for future mesne profits is only

circumscribed and limited to the extent above indicated. That is, even if the plaintiff, by a mistake or by an inadvertent omission, fails to make

prayer for future mesne profits the courts are not powerless as to granting the equitable relief for future mesne profits having regard to the

circumstances of each case. This is how the discretion that is vested in courts has been interpreted and understood. Gopalakrishna Pillai and

Others Vs. Meenakshi Ayal and Others, , made this position clear in the following terms (at p. 157):--

Order XX Rule 12 C. P. C. enables the court to pass a decree for both past and future mesne profits but there are important distinctions in the

procedure for enforcement of the two claims. With regard to past mesne profits the plaintiff has an existing cause of action on the date of institution

of the suit. In view of Order, VII, Rules 1, 2 and 7 C. P. C., and Section 7(1) of the Court-fees Act a plaintiff must plead his cause of action,

specifically claim a decree for past mesne profits, value the claim approximately and pay court-fees thereon. With regard to future mesne profits,

the plaintiff has no cause of action on the date of institution of the suit and it is not possible for him to plead this cause of action or to value it, or to

pay court-fee thereon at the time of institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit in

which provisions of Order XX rule 12 apply. But, in a suit to which the provisions of Order XX Rule 12 apply, the court has discretionary power

to pass a decree directing an enquiry into future mesne profits and the court may grant a general relief though it is not specifically asked for in the

plaint.

In the instant case, it is not even necessary for us to traverse the content of the discretionary power vested in a court in the circumstances above

stated. This is because Sethuraman J. himself finds that the prayer in the plaint would take in the prayer for future mesne profits also. This would

mean that by necessary implication the plaintiff who did not ask for it in the first instance and caused it to be introduced at a later stage by an

amendment of the plaint, should be deemed to have asked for the future mesne profits. Therefore, the principle that the court has discretion to

grant such mesne profits even when it is not specifically prayed for, does not strictly arise for consideration in the instant case.

The other question which arises for consideration is whether the lis did terminate on the date when the application under Order XX Rule 12 C.

P. C. was filed or whether it was pending. Here again the accepted rule is that if a lis has to be given the badge of finality then it should be for all

purposes known to law. In particular, when a suit has been brought into the portals of a court by a litigant, then the usual manner to treat that

litigation as having terminated is with reference to the stage when it has culminated in a final decree. The finality attached to such a decree should,

for all legal purposes, be unassailable. But, if that decree which is an ex perte decree is again brought into the hotchpot of litigation for being

challenged as being incorrect, then it obviously follows that the lis which originated by the plaintiff bringing it into the court has not yet terminated.

We have already, while setting out the facts, referred to one important event, viz., that this application for the enquiry into the future mesne profits

under Order XX, Rule 12, C. P. C. was filed on 7-4-1972, when the application to set aside the ex parte decree was pending by then. The

application by the defendant to set aside the ex parte decree passed on 18-2-1972 was filed on 17-3-1972. During the pendency of the enquiry

into the possibility or feasibility el setting aside the ex parte decree, the present application under Order XX, Rule 12, C. P. C. was made. It

cannot, therefore, be said, in the instant case, that the application requesting for an enquiry into the future mesne profits was made at a time when

the lis has terminated er ended in a manner known to law. The argument of Mr. Damodara Rao, hew-ever, is that the ex parte decree should be

deemed to have stood the test of time notwithstanding the supervening order passed by the court in the various applications taken out by the

respondent for extension of time for delivery of possession and notwithstanding a modification in the text of the ex parte decree made earlier. He

would refer to the fact that this court, while dealing with Appln. No. 812 of 1972 and similar applications filed by the defendant thereafter, would

sustain the ex parte decree if the defendant did not conform to the conditions laid down in those respective orders. But, with respect to Mr.

Damodar Rao, we are unable to agree for the reason that even the learned Judge, who gave certain indulgences from time to time to the defendant,

was conscious of the fact that it was only on the defendant''s satisfying the conditions laid down in those respective orders the application to set

aside the ex parte decree would stand allowed and the suit would stand dismissed as having been settled out of court. This observation obviously

means that there is a modification or a fresh look into the decree which was couched in the ex parte decree and, therefore, there was a fresh

executable order which was facing the plaintiff every time when the defendant obtained an indulgence or a concession from court in the matter of

redelivery of the property. In this view of the matter, it cannot be said that the ex parte decree passed on 18-2-1972, stood at all times as an

unchallenged one, but on the other hand, this was revised, modified and, to a certain extent, substituted by a later order of court which is certainly

an executable order or decree. We say that later orders passed in applications such as Appn. No 812 of 1972 are executable orders because the

decree-holder cannot disobey the direction therein and seek for execution of the ex parte decree ignoring the force contained and the directions

issued by this court in the subsequent orders in applications such as Appln. No. 812 of 1972 etc. We are, therefore, of the view that till the final

order was passed by Paul J. in Feb. 1973, the lis was pending. It therefore follows that Appln. No. 776 of 1973 filed on 7-4-1972, and which

was not disposed of on the date when Paul J. finally refused to grant any indulgence to the defendant was still pending and that there was no

termination of the litigation as can be popularly and legally understood.

The learned Judge is, therefore, with respect, not correct when he said that the suit has already terminated when the application for an enquiry

into the future mesne profits was filed. The order of the learned Judge, therefore, is set aside and the original side appeal is allowed. There will be

no order as to costs. The matter shall be placed again before the learned Judge sitting in the Original Side, for him to pass orders for appropriate

steps being taken for an enquiry, under Order XX, Rule 12, C. P. C. as prayed for in the Judge''s summons.