Case Note & Summary
The appellant, Francisco Jesus Hilario D' Cruz, filed Special Civil Suit No. 248/97/II in the trial court against Lilia Pereira e Coutinho and Fernando Coutinho (now deceased, represented by legal heir Lyndon Coutinho). The suit concerned a residential house in Borda, Margao, Goa. The plaintiff alleged that the defendants were in wrongful possession of the western portion of the house, having tampered with locks when he returned from England in January 1990. He sought a permanent injunction restraining the defendants from entering the western portion, or alternatively, vacant possession, and also claimed mesne profits at Rs. 1200 per month from the date of filing of the suit until delivery of possession. The trial court framed several issues but did not frame any issue regarding mesne profits. It observed that the claim of Rs. 1200 per month was excessive and that the plaintiff had not led evidence on damages. The plaintiff appealed to the District Court, where the Additional District Judge noted that the trial court should not have commented on the quantum without first determining entitlement to mesne profits. However, the appellate court did not order an inquiry. The plaintiff then filed a second appeal in the Bombay High Court at Goa, which was admitted on 13.06.2003 on two substantial questions of law, the primary one being whether a preliminary decree ought to have been made and an inquiry ordered to assess mesne profits from the date of suit till delivery of possession. The respondents did not contest the appeal. The High Court, per Justice N. A. Britto, held that under Order 20 Rule 12 of the Code of Civil Procedure, 1908, when a suit for possession of immovable property includes a claim for mesne profits, the court must pass a preliminary decree directing an inquiry into mesne profits from the date of institution of the suit until delivery of possession, and thereafter a final decree. The trial court's failure to frame an issue on mesne profits and the appellate court's failure to correct this were errors. The High Court allowed the appeal, set aside the judgments of the lower courts, and remanded the matter to the trial court with a direction to frame an issue on mesne profits, conduct an inquiry, and pass a preliminary decree followed by a final decree in accordance with law.
Headnote
A) Civil Procedure - Mesne Profits - Preliminary Decree and Inquiry - Section 2(12), Order 20 Rule 12 Code of Civil Procedure, 1908 - The court considered whether a preliminary decree for mesne profits should be passed and an inquiry ordered when the plaintiff claims mesne profits from the date of suit till delivery of possession. The trial court failed to frame an issue on mesne profits and the appellate court did not rectify this. Held that the courts below erred in not ordering an inquiry into mesne profits as required by Order 20 Rule 12 CPC, and the matter must be remanded for that purpose (Paras 1-4).
Issue of Consideration
Whether a preliminary decree ought to have been made and an inquiry be ordered to be held to assess the mesne profits from the date of the institution of the suit until the delivery of possession to the decree holder and thereupon a final decree be made?
Final Decision
The appeal is allowed. The judgments and decrees of the trial court and the appellate court are set aside. The matter is remanded to the trial court with a direction to frame an issue on mesne profits, conduct an inquiry, and pass a preliminary decree and final decree in accordance with law.
Law Points
- Mesne profits defined under Section 2(12) CPC
- Preliminary decree and inquiry for mesne profits under Order 20 Rule 12 CPC
- Duty of court to frame issue on mesne profits
- Entitlement to mesne profits from date of suit till delivery of possession
