Saraswathi Pillay vs Parameswara Kurup

Balakrishna Eradi, J.—The short question that arises in this second appeal is whether the court while passing a decree for recovery of possession with mesne profits is competent to award to the Plaintiff future mesne profits at a rate higher than what has been specifically stated in the plaint.

The facts against the background of which the question has arisen before us may be briefly stated. The Appellant before us instituted O.S. No. 129 of 1965 in the Munsiff''s Court, Karunagappally seeking recovery of possession of the plaint schedule property from the 1st Respondent herein, who was the sole Defendant in the action, with mesne profits, past and future, at the rate of Rs. 200 per annum. Though the trial court dismissed the suit, that decree was set aside in appeal by the District Court, Quilon in A.S. No. 248 of 1957. By the appellate judgment the Plaintiff was granted a decree for recovery of possession of the suit property with future mesne profits from the date of suit, the claim for past profits being disallowed. The appellate decree directed that the quantum of mesne profits should be determined at the execution stage. The Plaintiff-decree-holder while applying for delivery of possession of the property in execution of the decree moved the executing court for the issuance of a commission for ascertaining the mesne profits recoverable from the Defendant - 1st judgment debtor. An Advocate-Commissioner was accordingly deputed by the executing court for ascertaining the mesne profits. Based on the report submitted by the Commissioner the executing court fixed the mesne profits payable to the Plaintiff at Rs. 912.90 per year.

The Defendant thereupon took the matter in appeal Before the District Court, Quilon contending that inasmuch as the Plaintiff had claimed mesne profits only at the rate of Rs. 200 per year in the plaint, it was not competent for the executing court to award mesne profits at any higher rate in excess of the claim put forward in the plaint. This contention found favour with the District Judge who took the view that the question was concluded by the decision of a learned Single Judge of this Court in Kunhiraman v. Appa Kunhi 1968 KLT 264 wherein it was held that when the Plaintiff has categorically claimed a specific sum as mesne profits it is not open to the court passing the final decree or the executing court to grant a higher amount. In this view the District Judge allowed the Defendants'' appeal to the extent of reducing the rate of mesne profits payable to the Plaintiff to Rs, 200 per annum. The legality and correctness of the said decision rendered by the District Judge is called in question by the Plaintiff in this second appeal.

Section 2(12) of the CPC (Act V of 1908) defines mesne profits as "these profits which the person in wrongful possession of such property, actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession". Rule 2 of Order VII of, the Code specifically laid down that where the Plaintiff sues, for mesne profits, the plaint need state only approximately the amount sued for. u/s 44 of the Kerala Court-fees and Suits Valuation Act, 1959 also, in a suit for mesne profits, or for immovable property and mesne profits, the Plaintiff is expected to state the amount sued for only approximately and the court-fee is to be computed in the first instance on such amount. If the profits that are finally ascertained as due to the Plaintiff happens to be in excess of the profits approximately estimated and sued for, the section enjoins that no decree shall be passed until the difference between the fee actually paid and fee that ascertained so is paid. Sub-section (2) of Section 44 proceeds to add that where a decree directs an enquiry as to the mesne profits which have accrued on the property, whether prior or subsequent to the institution of the suit, no final decree shall be passed till the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the profits accrued due till the date of such decree is paid. In the light of these statutory provisions it appears to us to be quite clear that in a suit for recovery of possession of the immovable property with mesne profits, the Plaintiff is bound to state the amount of claim in respect of profits only approximately and the duty is cast on the court to determine the exact quantum of profits recoverable by the Plaintiff both in respect of the period prior to the institution of the suit arid the period subsequent thereto in the light of the definition of mesne profits as contained in Section 2(12) of the Code of Civil Procedure. With respect, we are unable to agree with the view expressed in Kunhiraman v. Appa Kunhi 1968 KLT 264 that where the Plaintiff has categorically claimed a specific sum as mesne profits the court is not competent to award him mesne profits at any higher rate. We are constrained to hold that the said decision does not lay down the correct law. As a matter of fact nearly two years prior to the date of the decision in Kunhiraman v. Appa Kunhi 1968 KLT 264 a Division Bench of this Court had considered the identical question and rendered a pronouncement to the contrary. The decision of the Division Bench is reported in K.C. Alexander v. Nair Service Society Ltd. AIR 1965 Ker 286. Unfortunately, that ruling does not appear to have been brought to the notice of the learned Single Judge who decided Kunhiraman v. Appa Kunhi 1968 KLT 264. In K.C. Alexander v. Nair Service Society Ltd. AIR 1965 Ker 286 referred to supra Raman Nayar, J., (as he then was) speaking on behalf of the Division Bench has succinctly summarised the legal position of the matter in the following terms:

It is pointed out on behalf of the 1st Defendant that the claim made in the plaint in respect of mesne profits is only at the rate of Rs. 5,000 per annum and it is contended that the decree cannot award anything more. This is to misunderstand the nature of the claim for mesne profits made in this particular case and the nature of such a claim in general. Having regard to the definition of mesne profits'' in Section 2(12) of the Code, it is apparent that mesne profits are something which a Plaintiff cannot evaluate and which it is soely for the court to determine on the evidence before it. As in a suit for an account the Plaintiff can only mention rough figure as the amount which will be found due to him, and that is why the second paragraph of Order VII Rule 2 of the Code makes an exception to the general principle laid down in the first paragraph that in a suit for money the plaint shall state the precise amount claimed and says that when the claim is for mesne profits, or for an amount which will be found due on taking unsettled accounts, the plaint need only state approximately the amount sued for. Section 11 of the Court Fees Act, 1870 makes the position even clearer. It shows that the claim in a suit for mesne profits is only a rough estimate even if a precise amount is stated and that it is for the court to ascertain is the true amount. And this can be in excess of the amount claimed. For, it says that in suits for mesne profits or for an account, if the profits or amount decreed are in excess of that claimed, the decree shall not be executed until the difference in court fee is paid. In this particular case, the relief sought in respect of the mesne profits (by prayer No. 2 in the plaint is that the court should award all profits received by the Defendants from the property, both before and after the institution of the suit, at the rate estimated by the Plaintiff at 35,625 fanams (Rs. 5,000) per annum. This, it seems to us, is just what is required by Order VII Rule 2 of the Code,

We are in respectful and complete agreement with the above statement of law. It may also be observed that in Nair Service Society Ltd. v. Rev. Fr. Alexander 1968 KLT 182 (S.C.) the Supreme Court while disposing of the appeal filed against the aforesaid decision as the Division Bench has approved and confirmed the view taken by the Division Bench in respect of this aspect.

The conclusion that emerges from the foregoing discussion is that the District Court was not justified in interfering with the fixation of mesne profits made by the executing court. The Second Appeal is, therefore, allowed, the decision of the lower appellate court is set aside and that of the executing court is restored. The Appellant will get his costs from the Respondent in the Second Appeals The parties will bear their respective costs in the lower appellate court.