Full Judgment Text
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CASE NO.:
Appeal (civil) 583 of 2008
PETITIONER:
Ganapati Madhav Sawant(dead)Through his Lrs.
RESPONDENT:
Dattur Madhav Sawant
DATE OF JUDGMENT: 22/01/2008
BENCH:
Dr. ARIJIT PASAYAT & P. SATHASIVAM
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) No. 18522 of 2004)
Dr.ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the order passed by a
learned Single Judge of the Bombay High Court Aurangabad
Bench, dismissing the appeal filed by the appellant under
Section 100 of the Code of Civil Procedure, 1908 (in short the
\021CPC\022). The appellants, heirs of the original Defendant Nos. 1
to 3 questioned correctness of the decree and judgment passed
by learned Additional District Judge, Osamabad in Regular
Civil Appeal No. 89 of 1999 confirming the decree in Regular
Civil Suit No. 62 of 1981 passed by the Civil Judge, Jr.
Division, Kallam. The High Court dismissed the Second
Appeal holding that there was no question of law involved and
therefore, the Second appeal was without merit.
3. Learned counsel for the appellant submitted that while
issuing notice in the Second appeal, the High Court
categorically observed as follows:
\023The next ground argued by the learned
counsel for the appellant is that the plaintiff
did not pray for an inquiry with the mesne
profit to be held under Order XX Rule 12 in
the plaint and in the absence of specific prayer
for an inquiry into the mesne profits the same
should not have been granted by the courts
below. The said directions is contained in
clause IV in the operative part of the judgment
and decree of the trial court. The learned
counsel for the appellant has placed reliance of
the judgment of the Apex Court reported in
AIR 1952 Supreme Court 358 Mohammad
Amin and Others v. Vakil Ahmed and Others
and to precise para 20 thereof. In this view of
the matter issue notice before admission
returnable in six weeks touching only clause
IV of the operative part of the order passed by
the trial court directing the inquiry in regard to
mesne profits under Order XX Rule 12. The
respondents be intimated that the appeal will
be finally heard and decided at admission
stage.\024
4. It was, therefore, pointed out that the grant of mesne
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profit without any enquiry in terms of Order XX Rule 12 CPC
was not permissible.
5. There is no appearance on behalf of respondent.
6. In Mohammad Amin and Ors. v. Vakil Ahmed and Ors.
[AIR 1952 SC 358] it was, inter-alia, observed as follows.
\023It was however pointed out by Shri S.P.
Sinha that the High Court erred in awarding to
the plaintiffs mesne profits even though there
was no demand for the same in the plaint.
The learned Solicitor General appearing for the
plaintiffs conceded that there was no demand
for mesne profits as such but urged that the
claim for mesne profits would be included
within the expression \023awarding possession
and occupation of the property aforesaid
together with all the rights appertaining
thereto.\024 We are afraid that the claim for
mesne profits cannot be included within this
expression and the High Court was in error in
awarding to the plaintiffs mesne profits though
they had not been claimed in the plaint. The
provision in regard to the mesne profits will
therefore have to be deleted from the decree.
We dismiss the appeal of defendants 1 to 5
and affirm the decree passed by the High
Court in favour of the plaintiffs, deleting
therefrom the provision in regard to mesne
profits. The plaintiffs will of course be entitled
to their costs throughout from defendants 1 to
5.\024
7. The High Court while deciding the Second Appeal, failed
to notice that while issuing notice it was categorically noted
that the plaintiff had not prayed for an inquiry relating to
mesne profit in terms of Order XX Rule 12 CPC and in the
absence of any specific prayer for any inquiry into that aspect,
the same could not have been granted.
8. As rightly contended by learned counsel for the
appellants that though at the time of issuance of notice the
High Court had noted that this substantial question of law did
arise for consideration, while deciding the second appeal, this
aspect was lost sight of. In the circumstances it would be
appropriate to remit the matter to the High Court to consider
that aspect.
9. The appeal is allowed to the aforesaid extent with no
order as to costs.