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Judgment
A.N. Venugopala Gowda, J.—Petitioner is the Plaintiff and the Respondent is the 1st Defendant in O.S.166/04 on the file of the City Civil Court, Bangalore. The prayer in the suit is for declaration that, the alleged lease deed dated 30.4.97 and an agreement of sale dated 27.6.97 purported to have been entered into between the Defendants in respect of the suit schedule property are fraudulent transactions, outside the scope of the power granted by the Plaintiff to the 2nd Defendant, vitiated by fraud, null and void and not binding on the Plaintiff and to direct the 1st Defendant to quit and deliver vacant possession of the suit schedule property and for permanent injunction.
The 1st Defendant has filed written statement. The 2nd Defendant has passed away. I.A.9 filed to bring his legal representatives on record has been dismissed. Based on the material pleadings, the issues have been framed. Trial of the suit has taken place. Plaintiff has deposed as PW-1 and his GPA holder as PW-2. The 1st Defendant has deposed as DW-1.
Plaintiff filed I.A.12 under O 6 R 17 Code of CPC seeking permission of the Court to amend the plaint, i.e., to incorporate the proposed plea and an additional prayer. Statement of objections was filed by the 1st Defendant. I.A.12 has been rejected on the ground that, no reason has been disclosed for not seeking the amendment earlier and that there is no due diligence, in view of which, the proviso appended to R 17 of O 6 Code of CPC bars the grant of relief. Aggrieved, the Plaintiff has filed this writ petition.
Sri B.M. Arun, learned Counsel appearing for the Petitioner contended that, the Trial Court has not kept in view the nature of suit and the relief claimed vis-a-vis the provision under R 12 of O 20 Code of CPC and hence, the impugned order is improper, irrational and illegal.
Sri S.M. Hegde Kadave, learned Counsel appearing for the Respondent contended that, LA.12 having been filed after commencement of trial and there being no due diligence on the part of the Plaintiff, in view of the decision in the case of Vidyabai and Ors. v. Padmalatha and Anr. - AIR 2009 SCW 899 , the impugned order is justified.
Keeping in view the rival contentions and the record of the writ petition, which I have perused, the point for consideration is:
Whether the Trial Court is justified in rejecting I.A.12, seeking leave of the Court to amend the plaint, to incorporate the plea and prayer with regard to mesne profits?
The suit is for declaration, recovery of possession of Immovable property and for permanent injunction. Prior to the filing of the suit, according to the plaint averments, a notice dated 6.10.03 was issued to the 1st Defendant to deliver vacant possession of the suit schedule property within one month period. The suit was instituted on 7.1.04. There is no prayer in the plaint for awarding of mesne profits, either past or future. I.A.12 seeking amendment of the plaint, to incorporate the pleading and the prayer for mesne profits was filed after commencement of trial.
O 20 Code of CPC is with regard to judgment and decree. R 12 there under is with regard to decree for possession and mesne profits. O 20 R 12 reads as follows:
Decree for possession and mesne profits:
(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree-
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;
(ba) for the mesne profits or directing an inquiry as such mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until-
(i) the delivery of possession to the decree holder,
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first occurs.
(2) Where an inquiry is directed under Clause (b) or Clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.
{(12(3) As amended in Karnataka)}
(3) Where an Appellate Court directs such an inquiry, it may direct - the court of first instance to make the inquiry, and in every case the Court of first instance may of its own accord, and shall whenever moved to do so by the decree-holder inquire and pass the final decree.
In the case of Chitturi Subbanna Vs. Kudapa Subbanna and Others, , it has been held that, Rule 12 under Order 20 Code of CPC requires the Court to direct, at the time of passing the preliminary decree, an inquiry as to mesne profits from the institution of the suit until the actual delivery of possession of the property to the decree holder and the decree for future mesne profits or directing enquiry about them is not based on the decision of any controversy between the parties, but is made in the exercise of the discretionary power vested in the Court and the provisions are just to avoid multiplicity of suits with consequent harassment to the parties.
In the case of Bhagwati Prasad Vs. Shri Chandramaul, , it has been held as follows:
Once it is held that the Plaintiff is entitled to eject the Defendant, it follows that from the date of the decree granting the relief of ejectment to the Plaintiff, the Defendant who remains in possession of the property despite the decree, must pay mesne profits or damages for use and occupation of the said property until it is delivered to the Plaintiff. A decree for ejectment in such a case must be accompanied by a direction for payment of the future mesne profits or damages.
(emphasis supplied)
In the case of R.S. Madanappa and Others Vs. Chandramma and Another, , the first contention urged for consideration was that, mesne profits cannot be awarded to a successful party to a suit for possession unless a claim was made. It was held that, the contention is justified in so far as mesne profits prior to the suit is concerned but in so far as mesne profits subsequent to the date of institution of the suit, i.e., future mesne profits are concerned, the position is governed by O 20 R 12 Code of Civil Procedure.
In the case of Haridas Girdhardas and Others Vs. Varadaraja Pillai and Another, , an application for amendment of the plaint by adding a prayer, for mesne profits till possession is handed over to the Plaintiffs, was filed and the same was objected. Noticing that, the claim for mesne profits is being limited, for a period of 3 years before the date of application for amendment of the plaint, it was held that the Defendants can have no just cause to complain. The appeal was allowed and the case was sent back to the Trial Court to determine the mesne profits.
In the case of Lingappa v. Teli Amarappa and Ors., reported in ILR 1973 KAR 838, the Respondent/ Plaintiff instituted suit for declaration of title and for possession alleging that, he was forcibly dispossessed by the 2nd Defendant. The suit was resisted inter alia denying the Plaintiff''s title as well as possession. The Trial Court decreed the suit. The challenge put forth by the 2nd Defendant by filing an appeal being unsuccessful, a second appeal was filed. During the pendency of the second appeal, on behalf of the Respondent 1 / Plaintiff, I.A.3 was filed praying that, a decree for mesne profits be passed or in the alternative, the Plaintiff be permitted to amend the relief in the plaint by adding a prayer regarding mesne profits, i.e., future mesne profits. It has been held as follows:
Even in the absence of a specific prayer in a suit for declaration of title and for possession, the Court has undoubtedly the power to make a direction under O 20 R 12 of the CPC for ascertainment of future mesne profits. It is therefore, unnecessary in this case for Respondent 1 / Plaintiff to amend the plaint and pray for ascertainment of future mesne profits. The court can in the circumstances direct ascertainment of future mesne profits under O XX R 12(c) of the Code of Civil procedure. I do not find any impediment for granting the prayer of Respondent 1 / Plaintiff in regard to ascertainment of future mesne profits.
O 20 R 12 of CPC enables the Court to pass a decree for both past and future mesne profits. With regard to past mesne profits is concerned, the Plaintiff should have an existing cause of action, should plead the cause of action specifically, claim a decree for past mesne profits, value the claim approximately and also pay the Court fee payable thereon. However, 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 the institution of the suit. The Plaintiff can obtain relief in respect of this future cause of action only in a suit to which the provisions of O 20 R 12 apply. The Court has discretion in a suit to which the said provision applies to pass a decree by directing an enquiry into future mesne profits and the Court may grant such general relief though it is not specifically asked for in the plaint.
The Trial Court, without keeping in view the fact that the suit is for recovery of possession of immovable property and consequential reliefs, though has power to pass a decree directing an enquiry as to future mesne profits, in exercise of jurisdiction under R 12 of O 20 Code of Civil Procedure, even in the absence of a specific prayer, by merely noticing the proviso under R 17 of O 6 Code of Civil Procedure, Has passed the impugned order, which is irrational and illegal.
The Plaintiff ought to have been permitted to incorporate prayer for awarding of future mesne profits i.e., from the date of institution of the suit till the date of handing over of possession of the properties. In case, the suit is decreed in his favour, there can be a separate enquiry for determination of mesne profits. At the time of allowing or refusing the prayer for amendment, it is not open to the Court to decide the merit of the proposed claim, which can only be gone into and decided by the Court at the time of decision of the suit. In the enquiry relating to mesne profits, the Plaintiff is entitled to plead and prove the amount of damages or the equivalent amount of benefit which he would have received from the property had he been allowed to hold and enjoy the same. Therefore, in the event of allowing the amendment of the plaint, the nature of suit shall not be changed and there would not be any introduction of new cause of action. In order to avoid multiplicity of proceedings, it is necessary to permit the prayer for amendment i.e., to incorporate additional prayer with regard to the future mesne profits i.e., from the date of institution of the suit. The refusal of the prayer in LA.12, in the circumstances, is totally unjustified.
DW-1 has been discharged during the pendency of this writ petition. The Trial Court is directed to recall DW-1 for cross-examination by the Plaintiff on 2.11.2010, to which date the suit is now posted. The Trial Court is directed to dispose of the suit expeditiously and at any event, before 8.1.2011. Depending upon the result of the suit, enquiry relating to future mesne profits can take place separately.
In view of the discussion made supra, impugned order stands quashed. LA.12 stands allowed in part. The Petitioner is permitted to incorporate in the plaint, only the additional prayer proposed in I.A.12, within a period of two weeks from the date of supply of a copy of this order. No costs.
Writ petition stands allowed accordingly.