J. Venkatarama Reddy vs J. Lakshmi Reddy and others

Jayachandra Reddy

The question that falls for consideration in this revision petition is whether an application for future mesne profits under Order 20 Rule 12, C.P.C, is maintainable even though there was no such a demand in the plaint. The Petitioner, who is the plaintiff in O.S. No. 41 of 1962 on the file of the Subordinate Judge, Adoni filed the said suit for a direction directing the defendants 1 and 2 to execute a registered deed for half share in a cotton ginning factory as per an earlier agreement. The said suit was decreed.

The Subordinate Judge, Adoni, relying on Mohd. Amin and Others Vs. Vakil Ahmed and Others, held that there was no specific demand in the plaint for the future mesne profits and as such he was not entitled for the same. Aggrieved by the said order, the plaintiff has filed the present Civil Revision Petition.

Sri C. Padmanabha Reddy, learned counsel for the petitioner contends that the Court below erred in relying on Mohd. Amin and Others Vs. Vakil Ahmed and Others, as the same was reconsidered by the Supreme Court in later judgments. He also cited some judgments of our High Court wherein it was pointed out that the observations made in the said judgment are applicable only to the facts of that case.

In Rachepalli Atchamma v. Yerragunta Rami Reddi AIR 1958 A.P. 517 a Division Bench of this Court, following a Full Bench judgment of the Madras High Court in Babburu Basavayya and Others Vs. Babburu Guravayya and Another, observed as follows:-

We have extracted the aforesaid passage in extent so as the Full Bench gave a considered treatment to the subject and summarised the legal position................... We respectfully accept and adopt the aforesaid observations as the law on the subject.

But it is contended that the Supreme Court in Mohd. Amin and Others Vs. Vakil Ahmed and Others, has laid down a contrary proposition in regard to the scope of O. 20 R 12 Civil Procedure Code, and therefore, to the extent, the decision of the Full Bench must be deemed to have been overruled..........................

The learned Judges, after having extracted some passages from the judgment of the Supreme Court observed thus-

It is not clear from the aforesaid observations that the Supreme Court was dealings with the question of future mesne profits. That apart, Their Lordship did not purport to lay down as a proposition of law that Court had no jurisdiction to award future mesne profits if there was no demand for the same in the plaint.

Again in Kasibhatla Satyanarayana Sastrulu and Others Vs. Kasibhatla Mallikarjuna Sastrulu, A Division Bench of this Court, having examined Mohd. Amin and Others Vs. Vakil Ahmed and Others, Basavayya v, Guravayya AIR 1951 Mad 938 (F.B.) and Rachepelli Atchamma v. Yerra gunta Rami Rendi AIR 1958 A.P. 517 observed as follows:-

From the above observations contained in the decision of the Full Bench in Basavayya v. Guravayya which two bench decisions of this Court have affirmed to be good law and unaffected by anything contained in the decision of the Supreme Court in Mohammed Amin''s case, AIR. 1952 SC. 351, we are of opinion that the application filed by the plaintiffs is entitled to be considered on merits and not be rejected on the ground that ascertainment of profits since suit has not been asked for in the plaint, It is for the Court entertaining that application to determine whether the discretion should be exercised in giving a direction in the partition..................

In Maddanappa v. Chandramma AIR 1952 S.C. 1812 the Supreme Court had to examine the true meaning of the observations in Mohd. Amin and Others Vs. Vakil Ahmed and Others, and for that purpose the learned Judges sent for the original record and found that the High Court had awarded past as well as future mesne profits. Their Lordships also referred to Babburu Basavayya and Others Vs. Babburu Guravayya and Another, and Kasibhatla Satyanarayana Sastrulu and Others Vs. Kasibhatla Mallikarjuna Sastrulu, and approved what was decided there. Referring to Mohd. Amin and Others Vs. Vakil Ahmed and Others, . Their Lordships observed thus:-

It is not necessary for us to consider whether the decision of this Court can be distinguished upon this ground, but we feel that when a suitable occasion arises it may become necessary to re-consider the decision of this Court as to future mesne profits.

Again in Gopalakrishna Pillai and Others Vs. Meenakshi Ayal and Others, the Supreme Court referred to Rachepalli Atchamma v. P. Rami Reddi AIR 1958 A.P.517 and approved the principles laid down there. Referring to the observation made in Mohd. Amin and Others Vs. Vakil Ahmed and Others, . Their Lordships pointed out that they must be confined to the facts of that case. So, it is clear that the judgment of the Supreme Court in Mohd. Amin and Others Vs. Vakil Ahmed and Others, to the effect that future mesne profits cannot be awarded when there is no claim in the plaint, cannot be applied to ail cases. However as pointed out by the judgments referred to above, that observation must be confined to the facts of that case.

It emerges from the above discussion that application for future mesne profits is maintainable even though there is no demand for the same in the plaint. Of course, as pointed out by the Madras High Court in Babburu Basavayya and Others Vs. Babburu Guravayya and Another, the application should be filed when the decree has not completely disposed of the suit, which, for one reason or other, continues to be pending and the granting of future mesne profits is a discretionary one depending on the circumstances of each case.

Under the circumstances the order passed by the lower Court placing reliance on Mohd. Amin and Others Vs. Vakil Ahmed and Others, has to be set aside Accordingly the matter is remitted back to the lower Court for fresh consideration in the light of the judgments of the High Courts and the Supreme Court cited supra.

Sri I Balaiah appearing for the respondents submits that a find decree has been passed and so the claim for future mesne profits is not maintainable The learned counsel for the petitioner on the other hand says that no final decree has been passed and even if it is passed subsequent to the filing of the application for mesne profits, that will not affect the petition already filed. I do not want to make any observation on this aspect as the matter will be subjected for fresh enquiry. Both the parties will be at liberty to raised all the possible contentions in the result, the Civil Revision Petition is allowed and the case is remanded to the lower Court for fresh disposal. No order as to costs.