Shri K. Chellaiah vs Shri Sasivarnam

Jayanta Kumar Biswas, J.—The petitioner in this CR dated July 18, 2012 under art. 227 of the Constitution of India is aggrieved by an order of the Civil Judge (Senior Division), Port Blair dated March 13, 2012 in OS No. 53 of 2004. The OS was filed by the OP in the CR. The petitioner was the sole defendant in the OS, and his counter-claim was decreed. It was ordered that mesne profits claimed by him would be determined according to the provisions of O. 20, R. 12 CPC.

The petitioner filed an application dated January 13, 2012 (CR p.118) praying for an inquiry for determining his claim for mesne profits according to the decree. By the impugned order the Civil Judge (Senior Division) disposed of the application allowing Rs. 10 monthly mesne profits.

The order of the Civil Judge (Senior Division) dated March 13, 2012 is quoted below:-

Today is fixed for passing necessary order regarding one petition u/o 20, Rule 12 CPC filed by the defdt. The petition u/o 20 Rule 12 CPC is taken up for hearing.

Heard both the parties at length. Gone through the petition and findings of Hon''ble High Court. As per direction of the Hon''ble High Court the High Court modified the judgement passed by this court i.e. the counter claim in part is allowed by the Hon''ble High Court so I am modified the judgement. The judgement is as follows.

Hence, it is,

Ordered,

That the judgement and decree is hereby modified.

The defendant may get a decree for mesne profit i.e. Rs. 10/- per month.

Let the decree be modified as above. Thus, the petition u/o 20 Rule 12 CPC is hereby disposed of.

Ms. Nag appearing for the petitioner has submitted that the Civil Judge (Senior Division) passed the impugned order without making any inquiry under O. 20, R. 12 CPC, though he was under a statutory obligation to make an inquiry.

Ms. Nag has submitted that affidavit of service has been filed producing acknowledgement card in proof of the statement made in the affidavit that notice of the CR sent to the respondent was duly received by the respondent.

It is evident from the order passed in the CR that previously Mr. Jayapal, an advocate, was appearing for the respondent, and that on September 18, 2012 he prayed for leave to retire on the grounds that he had not been engaged by the OP. It seems that the OP has chosen not to contest the CR.

In my opinion, the Civil Judge (Senior Division) committed an error of jurisdiction in that he disposed of the petitioner''s application for determination of his claim for mesne profits according to the decree without making any inquiry under O.20, R. 12 CPC.

In view of the provisions of sub-r.(2) of R. 12 of O.20 of the Code of Civil Procedure, 1908, the Civil Judge (Senior Division) was under a statutory obligation to make necessary inquiry for determining whether the petitioner was entitled to the mesne profits claimed by him, and if not, at what rate. For these reasons, I set aside the impugned order, allow the CR to this extent and direct the Court concerned to decide the petitioner''s claim for mesne profits after making necessary inquiry and according to the results thereof. No costs. Certified xerox.