The plaintiff has claimed mesne profits from the date of suit. In a suit for possession and when plaintiff has succeeded in getting a decree for possession the plaintiff is entitled to future mesne profits from the date of suit till the delivery of possession to be enquired under Order 20, Rule 12 of the Code of Civil Procedure. The learned trial Court by erroneous process of reasoning has granted mesne profits only from the date of decree which is not sustainable in law. Even if defendants have made some payments during the pendency of the suit, that will have to be taken into consideration when inquiry is held under Order 20, Rule 12 of the Code of Civil Procedure. Therefore, the direction of the trial Court that mesne profit is granted only from the date of decree has to be modified and mesne profits will have to be granted from the date of suit.
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Bombay High Court
P. Vijaykumar And Ors. vs V.C. Gopalkrishnan on 27 January, 1997
Equivalent citations: AIR 1998 Bom 127, 1997 (3) BomCR 428, (1997) 2 BOMLR 85, 1997 (2) MhLj 35
Bench: R Vaidyanatha
1. This is the defendants' appeal against the judgment and decree dated 30-6-1995 in Short Cause Suit No. 5434 of 1987 on the file of the City Civil Court, Bombay, Heard both sides.
2. The Respondent filed a suit in the trial Court against the appellants for possession of the suit premises and for mesne profit and for consequential reliefs. The appellants' case is that he is a lawful tenant of the suit premises which he obtained from the original landlord who were impleaded as defendants Nos. 1 to 3 in the suit and who came to be deleted at a later stage. His further case is that the 5th defendant is his cousin and he was given permissive occupation of the suit premises along with the plaintiff for some time and subsequently 5th defendant along was staying in the suit premises with the permission of the plaintiff, defendant No. 6 is the wife of defendant No. 5 and defendants Nos. 7 and 8 are the children of defendant No. 5. Defendant No. 9 is the brother-in-law of the,5th defendant and 10th defendant is the wife of 9th defendant and they were staying in the suit premises along with the 5th defendants.
3. The appellans who were defendants 5 to 10 in Court below resisted the suit by contending that the 5th defendant (first appellant) was the tenant of the suit premises and alleged permissive possession is denied. It is also stated that the suit is not maintainable. It also alleged that the plaintiff is no longer the tenant of the suit premises and his tenancy has come to and end. It is also stated that the Civil Court has no jurisdiction to try this suit, that the suit is barred by limitation and by principle of res judicata. It was therefore, prayed that the suit be dismissed with costs.
4. The learned trial Judge framed the following issues :
1. Whether this Hon'ble Court has no jurisdiction to entertain or try the suit as alleged in paragraph I of the written statement of defendants Nos. 5 to 10?
2. Whether the suit is barred by the law of limitation as alleged in paragraph 19 of the said written statement?
3. Whether the suit is barred by res judicata as alleged in paragraph 19 of the written statement?
4. Whether the plaintiff allowed defendants Nos. 5 to 8 to stay in portion of the suit premises shaded in Blue colour in the sketch thereof being Ex. A to the plaint in the month of April, 1975 as alleged in paragraph 5 of the plaint?
5. Whether defendant No. 5 broke open the lock of the plaintiff affixed in the portion of the suit premises shown in Red colour in the said sketch being Exhibit A to the plaint and trespassed upon the same after obtaining the order of ad interim injunction dated 5th May, 1986 in interlocutory Notice No. 3363 of 1986 taken out in Rent Act Declaratory Suit No. 2753 of 1986 filed by defendant No. 5 against the plaintiff in the Court of Small Causes at Bombay as alleged in paragraph 8 of the plaint?
6 Whether the plaintiff relinguished his right of tenancy in respect of the suit premises or surrendered possession of the suit premises in favour of defendant No. 5 from 1 st May, 1975 as alleged in paragraph 4 (vi) of the said written statement?
7. Whether defendant No. 5 paid the rent in respect of the suit premises from 1975 upto 1982 in the Court of Small Causes at Bombay and if so, whether defendant No. 5 paid the same at the instance of plaintiff, as alleged in paragraph 4 (vii) of the said written statement?
8. Whether the defendant No. 5 paid the rent in respect of the suit premises to the landlords thereof from March, 1984 to December, 1984 and if no whether the the plaintiff coerced or forced defendant No. 5 to do so, as alleged in paragraph 4 (viii) of the said written statement?
9. Wheher an agreement of tenancy dt. 11th April, 1986 was executed between the landlords of the said premises and defendant No. 5 in respect of the suit premises, as alleged in paragraph 4 (ix) of the said written statement?
10. Whether defendants Nos. 5 to 10 are liable to pay to plaintiff any compensation for the wrongful use and occupation of the suit premises from 1st April, 1986, as alleged in paragraph 13 of the plaint and if so, what amount?
11. Whether defendants Nos. 5 to 10 are liable to pay any future compensation or mesne profits to the plaintiff as alleged in paragraph 13 of the plaint and if so, what amount?
11 A. Whether issues Nos. 6, 7, 8 and 9 above are barred by res judicata, as alleged in paragraph 11A of the plaint?
12. Whether the plaintiff is entitled to any relief and if so, what relief?
5. After the trial the trial Court held that the Civil Court has jurisdiction and rejected the defendants' contention about res judicata, limitation and maintainability of the suit. He also held that the question of tenancy has been decided in the previous suit and binding on parties by the principles of res judicata. In view of this finding the suit came to be decreed for possession and mesne profits. Being aggrieved by the judgment and decree of the trial Court, the original defendants have come up in appeal. Even the plaintiff has'filed cross-objections objecting to a part of the decree under which future mesne profit has been granted only from the date of decree and not from the date of suit.
6. In support of the appeal, the learned Counsel for the appellant contended that the suit was not maintainable in view of the statutory bar under Order 2, Rule 2 of the Code of Civil Procedure. It was also argued that the plaintiff has not produced the notice for revocation of the licence and without revocation of licence, the suit is not maintainable. While supporting the findings of the trial Court the learned Counsel for the respondent contended that the trial Court erred in not granting the future mesne profits from the date of suit.
7. Some arguments are also addressed on merits about the tenancy of the first appellant or abandonment of the tenancy of the defendant. As rightly pointed out by the trial Court, the question regarding the tenancy of the parties has been concluded by the finding recorded in the previous proceedings. It may be mentioned here that the first appellant had filed suit R.A.D. No. 2753 of 1986 against the plaintiff in the Court of Small Causes for declaration that he is a tenant of the suit premises. Similarly, the plaintiff also filed suit in R.A.D. No. 118/83 in the Court of Small Causes for a declaration that he is a lawful tenant of the suit premises and continued to be tenant. After trial, the learned Small Causes Judge by his judgment dated 27-4-1992 decreed the respondents-plaintiffs suit and dismissed the first appellants' suit. Hence, finding that the respondent is the lawful tenant of the suit premises and the first appellant has no tenancy right in the suit premises has become final and is not open to challenge in those proceedings. Therefore, we need not go into the question as rightly pointed out by the learned trial Judge.
8. In the light of the arguments addressed before me, three points fall for determination viz.
1. Whether the suit is barred under Order 2, Rule 2 of the Code of Civil Procedure?
2. Whether the sut is not maintainable for want of revocation of licence?
3. Whether the plaintiff is entitled for mesne profits from the date of suit? and What order?
9. The learned Counsel for the appellants contended that the plaintiff filed the previous suit vide suit No. 118 of 1987 almost on the same cause of action alleging that the first appellant was in permissive occupation of two rooms and took the forcible possession of the remaining two room's and then asked for declaration that he is the lawful tenant of the premises but did not ask for the relief of possession. It may also be noted that this is a dispute between close relatives and not strangers. The plaintiff and the first defendants are first cousions. The other defendants are family members of the first defendant. It was therefore submitted that the plaintiff could have asked for the relief of possession in the previous suit and since it was admittedly not asked, the present suit is barred by Order 2, Rule 2 of the Code of Civil Procedure. The learned Counsel for the Respondent on the other hand contended that in the previous suit the plaintiff could not have asked the relief of possession.
The argument by the learned Counsel for the appellant is no doubt attractive but on deeper consideration. I find that the argument has no merit in the fact and circumstances of this case. He also invited my attention to an authority K. Palaniappa v. Valliammal. In that case Madras High Court has pointed out three clauses under which Order 2, Rule 2 of the Code of Civil procedure is attracted. We are not concerned about clauses 1 and 2 since admittedly, they are not applicable to this suit. We are only concerned with the second clause contained in that decision viz.,: "Whether the relief claimed in the subsequent suit could have been asked in the previous suit on the basis of pleadings made in the plaint. If the answer to this question is in the affirmative, then no doubt, the second suit is not maintainable and is hit by Order 2, Rule 2 of the Code of Civil Procedure.
10. The previous suit was filed in the Court of Small Causes by the plaintiff for a declaration that he is a tenant. He also alleged that the first appellant was in permissive possession of two rooms and he had taken wrongful possession of the other two rooms. The question is whether on the basis of these allegations, the plaintiff could have asked for the relief of possession in the previous suit. It is well settled that the jurisdiction of the Court is determined on the basis of the allegations in the plaint. When the plaintiff has come to Court claiming that the possession is only permissive or that the defendant is a trespasser, the relief of possession could not have been asked and even if asked, the Small Cause Court had no jurisdiction to grant such a relief. The jurisdiction of the Small Cause Court is attracted when the plaintiff concededs that defendant is a tenant or a licensee. It is also not disputed that the gratuitous licence is not one which covered under Section 41 of Presidency Small Causes Court Act, 1882. Further we find that in the definition of licence under the Bombay Rent Act. As provided under Section 5(4-A), the licensee has been defined only as aperson who is in occupation of a premises on payment of licence fee or charge. It is, therefore, clear that a gratuitous licensee is not one who is covered either by the Bombay Rent Act or by the Presidency Small Causes Court Act. I am also fortified in my view by a decision of this Court in 1990 Mah LJ 1145 Vishwanath v. Gandabhai" which the learned Counsel for the respondent brought to my notice.
11. It is, therefore, seen that in the previous suit the plaintiff had alleged that defendant was gratuitous licensee regarding two rooms and a trespasser regarding other rooms and in such a situation, the plaintiff could not have asked the Small Cause Court to grant a decree for possession and even if he had asked for such a relief, the Small Cause Court could not have granted such a relief. It is only the Civil Court which can grant such a relief. Hence, there is no difficulty to hold that the present plaintiff could not have asked relief of possession in the Small Cause Court on the basis of his pleadings in the plaint. We are not strictly concerned about the defence taken by the first appellant in the previous suit. But we have to read the plaint in the previous suit to find out whether he could have asked for such a relief or not.
The learned counsel for the appellant invited my attention to a case reported in 1987 Bom LR 22Eknath Vithal Ogale v. Mansukhlal Dhanraj Jain where no doubt, it is observed that in dispute between a licensor and licensee regarding possession of a property comes within the exclusive jurisdiction of the Small Cause Court as provided in Section 41 of the Presidency Small Causes Court Act, 1882. There is no dispute about this proposition of law. If there is a dispute between the landlord and tenant or between licensor and licensee then the Small Cause Court has exclusive jurisdiction. As already pointed out such a jurisdiction will not extend in a case of trespasser or in the case of a gratuitous licensee. Hence the said decision has no bearing on the point under consideration.
12. The learned Counsel for the appellant also relied on P. V. Raheja v. L. T. Corporation. of India where it is stated that Small Cause Court alone has jurisdiction to entertain and try any suit or proceeding between the landlord and a tenant relating to recovery of rent of possession. In my view, the said observation has no application to the facts of the present case since there is no relation of landlord and tenant between parties to this suit particularly in view of the finding in the previous suit. Hence, the said decision has no bearing on the point under consideration.
For the above reasons, my finding is that the plaintiff could not have asked the relief of possession in the previous suit and therefore, there is no bar of Order 2, Rule 2 of the Code of Civil Procedure for the present suit. Point No. 1 is answered accordingly.
13. The learned Counsel for the appellant contended that the revocation of licence is not proved by producing the quit notice. It is well settled that a fact which is admitted need not be proved. The learned Counsel for the respondent invited my attention to the allegations in the pleadings to show that this fact was neverdisputed at all. In para 12 of the plaint there is a clear allegation that the plaintiff has issued a notice of revocation dated 13-12-1986 to the defendant. This was replied in the written statement at para 16 and there is no denial about the receipt of the notice but what was asserted was that the contents of the notice dated 13-12-1986 are not correct and there is no question of revocation of any permission when no permission at all had been granted by the plaintiff. Therefore, the defendants joined issue only on the question of validity of the alleged revocation but not on the factum of the issue of notice. That is why the learned trial Court has not framed any issue on that point and no evidence was recorded. It is too late in the day for the appellants to take such a stand in the appellate Court. Hence, in my view, the argument has no merit in view of the admission in para 16 of the written statement.
14. The plaintiff has claimed mesne profits from the date of suit. In a suit for possession and when plaintiff has succeeded in getting a decree for possession the plaintiff is entitled to future mesne profits from the date of suit till the delivery of possession to be enquired under Order 20, Rule 12 of the Code of Civil Procedure. The learned trial Court by erroneous process of reasoning has granted mesne profits only from the date of decree which is not sustainable in law. Even if defendants have made some payments during the pendency of the suit, that will have to be taken into consideration when inquiry is held under Order 20, Rule 12 of the Code of Civil Procedure. Therefore, the direction of the trial Court that mesne profit is granted only from the date of decree has to be modified and mesne profits will have to be granted from the date of suit. At what rate plaintiff can get the mesne profits is a matter which cannot be decided at this stage and that can be decWed only in a proper inquiry under Order 20, Rule 12 of the Code of Civil Procedure.
15. In the result, the appeal fails and is dismissed. The cross-objections filed by the respondents-plaintiff is allowed by granting a decree for future mesne profits from the date of suit till the date of delivery of possession to be inquired separately under Order 20, Rule 12 of the Code of Civil Procedure. The decree of the trial Court is modified to that extent.
At this stage, the learned Counsel for the appellants prays for stay of this judgment of 12 weeks to enable him to go in appeal. The learned Counsel for the respondent opposes the same. Heard, in the circumstances of the case the decree for possession is stayed for eight weeks from today subject to the appellants go on depositing Rs. 2,000/- per month as earlier interim order dated 13th August 1996. In the circumstances of the case, there will be no order as to costs in view of the relationship between the parties.
Certified copy of this Judgement be issued expeditiously.
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