Case Note & Summary
The litigation originated from T.E. & R. Suit No. 48/62 of 2009 filed by the petitioners (plaintiffs) against respondent No.1 and others seeking vacant possession of suit property and recovery of mesne profits. The suit property comprised land bearing C.S. Nos. 560 and 561, Final Plot No. 268 TPS II of Mahim Division at Mogul Lane, Mumbai. Plaintiffs claimed that defendant No.1 had unlawfully retained possession and was liable for mesne profits. The trial court framed issues on 1 April 2016, including Issue No.3 on recovery of possession and mesne profits. On 16 November 2019, after amendment of pleadings, additional Issue No.8 was framed: whether plaintiffs were entitled to mesne profits and the quantum. Defendant No.1 filed an application to recast Issue No.8, which was rejected on 6 March 2020; the revision against that rejection was dismissed. Thereafter, plaintiffs examined PW-2, an architect, structural engineer, and government approved registered valuer, who deposed on the market rent/mesne profits for the period March 2009 to February 2020. Defendant No.1 filed application Exh.606 seeking to expunge, discard, or reject PW-2's evidence. On 11 August 2021, the trial court rejected that application. Defendant No.1 challenged this order in Revision Application No.97 of 2021, and the appellate court by order dated 24 September 2021 set aside the trial court's order and expunged PW-2's evidence on the ground of relevancy. Aggrieved, the plaintiffs filed the present writ petition under Article 227 of the Constitution of India. The issues before the High Court were whether the appellate court erred in expunging PW-2's evidence despite the trial court's finding that mesne profits are to be awarded per Order XX Rule 12 CPC, whether such evidence was relevant at the pre-decree stage, and whether past mesne profits could be claimed without specific pleadings and prayer. Petitioner argued that the suit sought past and future mesne profits, burden was on plaintiff to prove quantum, and the appellate court's view that evidence would necessarily follow only upon final decree was contrary to settled law. Respondent No.1 contended that the Bombay Amendment to Order XX Rule 12 omitted the 1977 sub-clause (ba) and thus past mesne profits were not maintainable; further, the notice terminated tenancy effective 16 March 2009, suit was filed 17 March 2009, so there was no unlawful possession prior to filing; and there was no specific prayer or court fee for past mesne profits, making PW-2's evidence irrelevant. The High Court considered the interplay of Order XX Rule 12 CPC, the Bombay Amendment, and the pleadings to determine whether the appellate order suffered from material irregularity justifying interference under Article 227. The final decision was not included in the provided text.
Headnote
A) Civil Procedure - Mesne Profits - Order XX Rule 12 CPC - Scope of evidence at trial stage - Code of Civil Procedure, 1908, Order XX Rule 12 - In a suit for possession and mesne profits, the trial court framed Issue No.8 requiring proof of mesne profits, and the plaintiff led the evidence of PW-2, an architect and registered valuer, to establish quantum of mesne profits from March 2009 to February 2020. The appellate court set aside the trial court's refusal to expunge the evidence, holding it irrelevant because mesne profits inquiry would arise only after decree. The High Court considered whether evidence on mesne profits could be adduced before final decree and whether past mesne profits claim was maintainable absent specific pleadings. (Paras 6-10) B) Civil Procedure - Bombay Amendment to CPC - Order XX Rule 12 - Distinction between Central Act and Maharashtra amendment - Code of Civil Procedure, 1908, Order XX Rule 12 - The respondent contended that the Bombay Amendment substituted the provision and omitted sub-clause (ba) of clause (1) introduced by the 1977 amendment, thereby altering the scope of mesne profits inquiry; the petitioner relied on decisions interpreting the central provision. The High Court considered the applicability of the Bombay Amendment and its impact on the timing and nature of mesne profits inquiry. (Paras 10-11) C) Civil Procedure - Pleadings and Relief - Past mesne profits require specific pleadings and prayer - Code of Civil Procedure, 1908, Order XX Rule 12 - The respondent argued that the plaint did not claim past mesne profits but only future mesne profits through an inquiry, and court fees had not been paid on crystallized past mesne profits. The petitioner maintained that relief of past and future mesne profits was inherent in the prayers and burden was on plaintiff. The High Court examined whether absence of specific prayer for past mesne profits made PW-2's valuation evidence irrelevant. (Paras 10-13) D) Constitution of India - Writ Jurisdiction - Article 227 - Supervisory jurisdiction over appellate orders - Constitution of India, 1950, Article 227 - The petition was filed under Article 227 challenging the appellate court's order expunging evidence, arguing that the appellate court exceeded jurisdiction by interfering with the trial court's discretionary case management. The High Court's task was to assess whether the impugned order suffered from jurisdictional error or perversity warranting interference. (Paras 1-2, 8)
Issue of Consideration
Whether the appellate court erred in expunging the evidence of PW-2 on the ground of relevancy, particularly in light of Issue No.8 and the provisions of Order XX Rule 12 of the Code of Civil Procedure, 1908, as applicable in Maharashtra; and whether the claim for past mesne profits was maintainable without specific pleading and prayer.
Final Decision
Decision not clearly stated
Law Points
- Legal points not extracted
- Mesne profits may be past or future
- Order XX Rule 12 CPC requires inquiry into mesne profits from date of suit until delivery of possession
- burden on plaintiff to prove quantum
- evidence of valuer relevant where issue framed
- Bombay Amendment to CPC alters scope
- specific pleading and prayer required for past mesne profits
- court fees crystallized for past mesne profits.
