No court fee is necessary to pay on future mesne profits - with out prayer for future mesne profits in plaint, the court can grant it = Alok Kumar Sharma Smt.T.Hemalatha = Published in http://judis.nic.in/judis_andhra/ filename=9009
No court fee is necessary to pay on future mesne profits - with out prayer for future mesne profits in plaint, the court can grant it =
On a consideration of the relevant provisions and the nature of relief, we hold
that there is a distinction between the claim for past profits and a claim for
future profits. The latter is based on a cause of action that arises subsequent
to the date of the suit whereas the former relates to period anterior to the
suit In the case of past profits the plaintiff has to specifically ask for it
paying the advolarem Court fee. In the case of futile profits, no question of
payment of Court fee arises as the period for which the negation prolongs cannot
be predicated. WE therefore hold that so far as future mesne profits are
concerned even without there being a prayer in the plaint, the Court can award
the same or direct an enquiry into the same at the time of passing the decree
for possession. Similarly, the Appellate Court can grant future mesne profits
even if there is no appeal by the plaintiff against that part of the decree
which is silent about future mesne profits.
THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO
SECOND APPEAL NO.45 OF 2011
30-07-2012
Alok Kumar Sharma
Smt.T.Hemalatha
Counsel for the Appellant: Sri R.A.Achuthanand
Counsel for the Respondent: Smt.T.Vidya Rani
<Gist :
>Head Note:
? Cases referred:
1.2003(2) ALD 801
2.AIR 2007 A.P. 156
3.1983(2)AWR.71
THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO
SECOND APPEAL NO.45 OF 2011
JUDGMENT:-
The defendant in O.S.No.2078 of 2006 on the file of the court of X Junior
Civil Judge, City Civil Court, Hyderabad is the appellant herein.
02. The suit was one filed for eviction of the defendant from the suit
schedule property. The allegations in the plaint goes to show that the defendant
is the tenant of the plaintiff, which is a residential building, on a monthly
rent of Rs.5000/- per month from October-2003 for a period of two years
initially. There was also an agreement for enhancing the rent @ 10% for every
two years. The defendant was irregular in payment of the rents and in spite of
repeated demands and also a notice, he did not pay the money. The tenancy was
terminated by a notice dated 22-12-2005. The suit premises is situated in a
prime locality and would be fetched a rent of not less than Rs.8000/- per month.
The defendant was in arrears of rent of Rs.35,000/-.
03. The defendant filed a written statement admitting the tenancy and also the
rent of Rs.5000/-. The rents were paid regularly to the plaintiff or her husband
by way of account payee cheques. No default was committed by the defendant. In
fact, three cheques were sent for the month of September to November- 2005 but
they were not collected by the plaintiff. The notice under Section 106 of the
Transfer of Property Act,1882 (for short "the Act") was not served on the
defendant. The rental value as claimed by the plaintiff is not true.
Consequently, the defendant pleaded for dismissal of the suit.
04. After considering the necessary evidence on record, the court below has
passed a decree for eviction and directing payment of arrears of rent @
Rs.35,000/- which was already deposited. The mesne profits are directed to be
decided on a separate application. As against judgment, A.S.No.98 of 2008 was
filed and the appellate court confirmed the order of eviction and so far as the
mesne profits are concerned, the defendant is directed to pay Rs.5,500/- per
month from March 2006 to September,2007 and Rs.7,000/- per month thereafter for
two years and thereafter at Rs.8,000/- per month for two years with a hike of
20% for every two years. Aggrieved by the said judgment, the present Second
Appeal is filed.
05. The Second Appeal was originally admitted on the following substantial
questions of law:-
1. Whether both the courts have committed an error by holding that the
endorsement of sufficient service on Ex.A-5 and A-6 "not claimed" amounts to
sufficient service of notice when the Appellant having discharged the burden of
proof, it shifts on the Appellant and having not discharged is contrary to
Section 103 of the Evidence Act.
2. Whether the appellate court can pass a decree for possession when the
appellant has discharged the burden of proof of non-service of notice and
whether such a decree is in sufficient compliance with the provisions of
Section.106 of T.P.Act.
At the time of arguments, a further question of law has been raised about the
grant of mesne profits by the appellate court. Consequently, the following
additional question of law is also framed.
Additional issue:-
Whether the appellate court is justified in granting the future mesne profits
without any inquiry Under Order XX Rule 12 C.P.C.?
POINTS:-
06. The case on hand is an example as to how the appellant, who has entered
into the residential premises of a landlady, is putting her of inconvenience and
also not paid the rents for sufficiently long time. The relationship of landlady
and tenant is not denied. The learned counsel for the appellant tried to contend
that there is no proper notice under Section 106 of the Act and consequently the
suit is not maintainable. As can be seen from the proceedings the notice under
Section 106 of the Act was sent to the defendant to his residential address and
also the office address. Ex.A-2 is the notice and Exs.A-5 and A-6 are the
returned postal covers. The defendant does not dispute about the correctness of
the address mentioned therein. It is difficult to believe that the appellant
would not have present in the suit schedule premises, to which place the notice
was sent and it was also returned as "not claimed". In this connection, it is
useful to refer to a decision reported in M.A.Ghani Vs. P.Rami Reddy(1)
whereunder it was held as under:-
" Quit notice sent by a registered post to the correct address and it was
returned with an endorsement that the addressee was continuously absent for week
days. Held that it is a valid service."
07. Therefore, in view of the above circumstances, the courts below have
rightly found that there was a proper service of notice and consequently it
cannot be contended that the suit is bad for want of proper notice under
Section.106 of the Act.
08. The learned counsel for the appellant further contends that under Order XX
Rule 12 CPC, the appellate Court or any court has no power to award future
mesnse profits without an inquiry. He relied upon a decision reported in
St.Mary's Educational Society & Others Vs. Dr.Qutubuddin Ahmed(2). It is to be
noted that the Civil Procedure Code was amended in 1976 and Clause.(ba) to Order
XX Rule.12 CPC was introduced, which reads as under:-
"Or.XX,Rule.12: Decree for possession and mesne profits
(1) Where a suit is for the recovery of possession of immovable property
and for rent or mesne profits, the court may pass a decree:--
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period
prior to the institution of the suit or direction an inquiry as to such rent;
(ba) for the mesne profits or direction an inquiry as to such mesne
profits;
(c)........
........."
09. Evidently, the amendment of the procedural laws is only to cut down the
delays and for expeditious relief of the litigants who are successful in the
litigation. As can be seen from Clause (ba) the court has got power to pass
mesne profits or direct an inquiry. In this connection, it is to be noted mesne
profits includes past mesne profits and future mesne profits. The amended
provision does not restrict to the past mesne profits. When it is a beneficial
provision, for the benefit of the Decree Holder, the relief cannot be denied.
The provision under Order XX Rule 12(3) though not deleted can only be read
along with the amendment which was meant for the benefit of the litigants. In
fact, in the above judgment, the learned Single Judge has not taken note of a
Division Bench judgment of our own High Court reported in Kalepu Subbarajamma
Vs. Tiguti Venkata Pediraju and 10 others(3) whereunder it was held that the
appellate court has got every power to grant future mesne profits even without
there being a prayer or direct an inquiry. It will be useful to extract the
para.16 of the judgment:-
"We may observe that in none of these cases the power of the Court to
grant mesne profits at the time of passing the decree for possession is doubted.
On a consideration of the relevant provisions and the nature of relief, we hold
that there is a distinction between the claim for past profits and a claim for
future profits. The latter is based on a cause of action that arises subsequent
to the date of the suit whereas the former relates to period anterior to the
suit In the case of past profits the plaintiff has to specifically ask for it
paying the advolarem Court fee. In the case of futile profits, no question of
payment of Court fee arises as the period for which the negation prolongs cannot
be predicated. WE therefore hold that so far as future mesne profits are
concerned even without there being a prayer in the plaint, the Court can award
the same or direct an enquiry into the same at the time of passing the decree
for possession. Similarly, the Appellate Court can grant future mesne profits
even if there is no appeal by the plaintiff against that part of the decree
which is silent about future mesne profits. In an appeal pending before it
against a decree for ejection, the Appellate Court has got undoubted
jurisdiction to grant mesne profits or to direct an enquiry into the same as it
is a part of the general relief of possession. It is well settled principle of
law that the power of the Appellate Court is coextensive with the power of the
original Court and when an appeal is pending, the suit is deemed to be pending".
10. Therefore, when the Division Bench of our own High Court lays down the law
that the court has got power to grant future mesne profits or direct an inquiry,
the counsel for the appellant cannot rely upon the same.
11. The learned counsel for the appellant contended that mesne profits were
determined by the first appellate court without any material and consequently it
is not proper. It is to be noted that whenever the mesne profits are determined
by any court or Commissioner, they will be determined taking into consideration
several factors. The important one is location of the premises; existing rent
and the trend in rising of the rental values. Evidently, the schedule premises
is located in Himayat Nagar of Hyderabad, which is a prime locality and by the
date of the suit, the rent was said to be Rs.5,000/- and the increase for
periodically cannot be ignored. The increase of rents granted by the first
appellate court cannot be said to be unreasonable and not based on any factual
consideration. Therefore, the said contention of the appellant cannot also be
accepted.
12. In this case, the appellant who has taken the residential premises has put
the landlady to an hazardous litigation and was also irregular in payment of the
rent and consequently it is a fit case for grant of damages where the appellant
having involved in frivolous and delaying litigation. Therefore, the appellant
is directed to pay damages to the plaintiff. Taking into consideration the above
facts and also the fact that even after institution of the Second Appeal and
also during the pendnecy of Appeal, the rents were not being paid and in the
Second Appeal a stay was obtained for deposit of the half of the amount only, I
feel the ends of justice would meet if the appellant is directed to pay a sum of
Rs.25,000/- as damages for the litigation for which he has involved the
landlady.
Accordingly, the Second Appeal is dismissed with costs and the appellant
is directed to pay a sum of Rs.25,000/-(Rupees Twenty Five Thousand only)
towards damages apart from the future mesne profits and the arrears of rent as
directed by the first appellate court within a period of two(2) months, failing
which the interest @ 12% p.a. will carry till the payment. However, the
appellant is granted two(2) weeks time for vacating the premises.
_______________________
N.R.L. NAGESWARA RAO,J
30-07-2012
On a consideration of the relevant provisions and the nature of relief, we hold
that there is a distinction between the claim for past profits and a claim for
future profits. The latter is based on a cause of action that arises subsequent
to the date of the suit whereas the former relates to period anterior to the
suit In the case of past profits the plaintiff has to specifically ask for it
paying the advolarem Court fee. In the case of futile profits, no question of
payment of Court fee arises as the period for which the negation prolongs cannot
be predicated. WE therefore hold that so far as future mesne profits are
concerned even without there being a prayer in the plaint, the Court can award
the same or direct an enquiry into the same at the time of passing the decree
for possession. Similarly, the Appellate Court can grant future mesne profits
even if there is no appeal by the plaintiff against that part of the decree
which is silent about future mesne profits.
THE HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO
SECOND APPEAL NO.45 OF 2011
30-07-2012
Alok Kumar Sharma
Smt.T.Hemalatha
Counsel for the Appellant: Sri R.A.Achuthanand
Counsel for the Respondent: Smt.T.Vidya Rani
<Gist :
>Head Note:
? Cases referred:
1.2003(2) ALD 801
2.AIR 2007 A.P. 156
3.1983(2)AWR.71
THE HON'BLE SRI JUSTICE N.R.L.NAGESWARA RAO
SECOND APPEAL NO.45 OF 2011
JUDGMENT:-
The defendant in O.S.No.2078 of 2006 on the file of the court of X Junior
Civil Judge, City Civil Court, Hyderabad is the appellant herein.
02. The suit was one filed for eviction of the defendant from the suit
schedule property. The allegations in the plaint goes to show that the defendant
is the tenant of the plaintiff, which is a residential building, on a monthly
rent of Rs.5000/- per month from October-2003 for a period of two years
initially. There was also an agreement for enhancing the rent @ 10% for every
two years. The defendant was irregular in payment of the rents and in spite of
repeated demands and also a notice, he did not pay the money. The tenancy was
terminated by a notice dated 22-12-2005. The suit premises is situated in a
prime locality and would be fetched a rent of not less than Rs.8000/- per month.
The defendant was in arrears of rent of Rs.35,000/-.
03. The defendant filed a written statement admitting the tenancy and also the
rent of Rs.5000/-. The rents were paid regularly to the plaintiff or her husband
by way of account payee cheques. No default was committed by the defendant. In
fact, three cheques were sent for the month of September to November- 2005 but
they were not collected by the plaintiff. The notice under Section 106 of the
Transfer of Property Act,1882 (for short "the Act") was not served on the
defendant. The rental value as claimed by the plaintiff is not true.
Consequently, the defendant pleaded for dismissal of the suit.
04. After considering the necessary evidence on record, the court below has
passed a decree for eviction and directing payment of arrears of rent @
Rs.35,000/- which was already deposited. The mesne profits are directed to be
decided on a separate application. As against judgment, A.S.No.98 of 2008 was
filed and the appellate court confirmed the order of eviction and so far as the
mesne profits are concerned, the defendant is directed to pay Rs.5,500/- per
month from March 2006 to September,2007 and Rs.7,000/- per month thereafter for
two years and thereafter at Rs.8,000/- per month for two years with a hike of
20% for every two years. Aggrieved by the said judgment, the present Second
Appeal is filed.
05. The Second Appeal was originally admitted on the following substantial
questions of law:-
1. Whether both the courts have committed an error by holding that the
endorsement of sufficient service on Ex.A-5 and A-6 "not claimed" amounts to
sufficient service of notice when the Appellant having discharged the burden of
proof, it shifts on the Appellant and having not discharged is contrary to
Section 103 of the Evidence Act.
2. Whether the appellate court can pass a decree for possession when the
appellant has discharged the burden of proof of non-service of notice and
whether such a decree is in sufficient compliance with the provisions of
Section.106 of T.P.Act.
At the time of arguments, a further question of law has been raised about the
grant of mesne profits by the appellate court. Consequently, the following
additional question of law is also framed.
Additional issue:-
Whether the appellate court is justified in granting the future mesne profits
without any inquiry Under Order XX Rule 12 C.P.C.?
POINTS:-
06. The case on hand is an example as to how the appellant, who has entered
into the residential premises of a landlady, is putting her of inconvenience and
also not paid the rents for sufficiently long time. The relationship of landlady
and tenant is not denied. The learned counsel for the appellant tried to contend
that there is no proper notice under Section 106 of the Act and consequently the
suit is not maintainable. As can be seen from the proceedings the notice under
Section 106 of the Act was sent to the defendant to his residential address and
also the office address. Ex.A-2 is the notice and Exs.A-5 and A-6 are the
returned postal covers. The defendant does not dispute about the correctness of
the address mentioned therein. It is difficult to believe that the appellant
would not have present in the suit schedule premises, to which place the notice
was sent and it was also returned as "not claimed". In this connection, it is
useful to refer to a decision reported in M.A.Ghani Vs. P.Rami Reddy(1)
whereunder it was held as under:-
" Quit notice sent by a registered post to the correct address and it was
returned with an endorsement that the addressee was continuously absent for week
days. Held that it is a valid service."
07. Therefore, in view of the above circumstances, the courts below have
rightly found that there was a proper service of notice and consequently it
cannot be contended that the suit is bad for want of proper notice under
Section.106 of the Act.
08. The learned counsel for the appellant further contends that under Order XX
Rule 12 CPC, the appellate Court or any court has no power to award future
mesnse profits without an inquiry. He relied upon a decision reported in
St.Mary's Educational Society & Others Vs. Dr.Qutubuddin Ahmed(2). It is to be
noted that the Civil Procedure Code was amended in 1976 and Clause.(ba) to Order
XX Rule.12 CPC was introduced, which reads as under:-
"Or.XX,Rule.12: Decree for possession and mesne profits
(1) Where a suit is for the recovery of possession of immovable property
and for rent or mesne profits, the court may pass a decree:--
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period
prior to the institution of the suit or direction an inquiry as to such rent;
(ba) for the mesne profits or direction an inquiry as to such mesne
profits;
(c)........
........."
09. Evidently, the amendment of the procedural laws is only to cut down the
delays and for expeditious relief of the litigants who are successful in the
litigation. As can be seen from Clause (ba) the court has got power to pass
mesne profits or direct an inquiry. In this connection, it is to be noted mesne
profits includes past mesne profits and future mesne profits. The amended
provision does not restrict to the past mesne profits. When it is a beneficial
provision, for the benefit of the Decree Holder, the relief cannot be denied.
The provision under Order XX Rule 12(3) though not deleted can only be read
along with the amendment which was meant for the benefit of the litigants. In
fact, in the above judgment, the learned Single Judge has not taken note of a
Division Bench judgment of our own High Court reported in Kalepu Subbarajamma
Vs. Tiguti Venkata Pediraju and 10 others(3) whereunder it was held that the
appellate court has got every power to grant future mesne profits even without
there being a prayer or direct an inquiry. It will be useful to extract the
para.16 of the judgment:-
"We may observe that in none of these cases the power of the Court to
grant mesne profits at the time of passing the decree for possession is doubted.
On a consideration of the relevant provisions and the nature of relief, we hold
that there is a distinction between the claim for past profits and a claim for
future profits. The latter is based on a cause of action that arises subsequent
to the date of the suit whereas the former relates to period anterior to the
suit In the case of past profits the plaintiff has to specifically ask for it
paying the advolarem Court fee. In the case of futile profits, no question of
payment of Court fee arises as the period for which the negation prolongs cannot
be predicated. WE therefore hold that so far as future mesne profits are
concerned even without there being a prayer in the plaint, the Court can award
the same or direct an enquiry into the same at the time of passing the decree
for possession. Similarly, the Appellate Court can grant future mesne profits
even if there is no appeal by the plaintiff against that part of the decree
which is silent about future mesne profits. In an appeal pending before it
against a decree for ejection, the Appellate Court has got undoubted
jurisdiction to grant mesne profits or to direct an enquiry into the same as it
is a part of the general relief of possession. It is well settled principle of
law that the power of the Appellate Court is coextensive with the power of the
original Court and when an appeal is pending, the suit is deemed to be pending".
10. Therefore, when the Division Bench of our own High Court lays down the law
that the court has got power to grant future mesne profits or direct an inquiry,
the counsel for the appellant cannot rely upon the same.
11. The learned counsel for the appellant contended that mesne profits were
determined by the first appellate court without any material and consequently it
is not proper. It is to be noted that whenever the mesne profits are determined
by any court or Commissioner, they will be determined taking into consideration
several factors. The important one is location of the premises; existing rent
and the trend in rising of the rental values. Evidently, the schedule premises
is located in Himayat Nagar of Hyderabad, which is a prime locality and by the
date of the suit, the rent was said to be Rs.5,000/- and the increase for
periodically cannot be ignored. The increase of rents granted by the first
appellate court cannot be said to be unreasonable and not based on any factual
consideration. Therefore, the said contention of the appellant cannot also be
accepted.
12. In this case, the appellant who has taken the residential premises has put
the landlady to an hazardous litigation and was also irregular in payment of the
rent and consequently it is a fit case for grant of damages where the appellant
having involved in frivolous and delaying litigation. Therefore, the appellant
is directed to pay damages to the plaintiff. Taking into consideration the above
facts and also the fact that even after institution of the Second Appeal and
also during the pendnecy of Appeal, the rents were not being paid and in the
Second Appeal a stay was obtained for deposit of the half of the amount only, I
feel the ends of justice would meet if the appellant is directed to pay a sum of
Rs.25,000/- as damages for the litigation for which he has involved the
landlady.
Accordingly, the Second Appeal is dismissed with costs and the appellant
is directed to pay a sum of Rs.25,000/-(Rupees Twenty Five Thousand only)
towards damages apart from the future mesne profits and the arrears of rent as
directed by the first appellate court within a period of two(2) months, failing
which the interest @ 12% p.a. will carry till the payment. However, the
appellant is granted two(2) weeks time for vacating the premises.
_______________________
N.R.L. NAGESWARA RAO,J
30-07-2012
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