Ganpati Madhav Sawant (D) by LRS. v. Dattur Madhav Sawant

Case Details & Bench

Court: High Court
Hon'ble Judges: Dr. ARIJIT PASAYAT
P. SATHASIVAM
Judgment Date: 2008-01-22
Court Decision / Holding: The appeal is partly allowed. The matter is remitted to the Bombay High Court to consider the aspect of mesne profits and an inquiry under Order XX Rule 12 CPC in light of the lack of a specific prayer in the plaint. No order as to costs.
Final Disposition: Appeal partly allowed

Parties to the Case

Appellants / Petitioners

Ganpati Madhav Sawant (D) by LRS.

Respondents

Dattur Madhav Sawant

Legal Representation & Advocates

Counsels for Petitioners

• C. Solshe
• Vinesh C. Solshe

Case Synopsis & Summary

Ganpati Madhav Sawant (D) by LRS. v. Dattur Madhav Sawant concerns a second appeal under Section 100 CPC from a Bombay High Court order confirming a decree in Regular Civil Appeal No. 89 of 1999, arising from Regular Civil Suit No. 62 of 1981 before the Civil Judge, Junior Division, Kalam. The High Court dismissed the Second Appeal on the ground that no substantial question of law was involved. The appellants contend that the mesne profits award was granted without a proper inquiry under Order XX Rule 12 CPC and without a specific prayer for mesne profits in the plaint, a defect which vitiated the decree. During admission, the High Court had noted that the plaintiff had not prayed for an inquiry into mesne profits, a point drawn from Mohammad Amin v Vakil Ahmed, AIR 1952 SC 358. The Supreme Court held that the High Court erred in overlooking this aspect in deciding the second appeal and that such relief cannot be granted without a proper inquiry and prayer. It therefore remitted the matter to the High Court to consider the mesne profits aspect in accordance with Order XX Rule 12 CPC. The appeal is partly allowed; there is no order as to costs.

Provisions of Law Cited

Code of Civil Procedure, 1908, s. 100Order XX Rule 12 CPC

Legal Doctrines & Maxims

Mesne profits cannot be granted without a specific prayer in the plaint under Order XX Rule 12 CPC.
Mohammad Amin and Others v. Vakil Ahmed and Others, AIR 1952 SC 358 — held that mesne profits must be deleted from a decree if not claimed in the plaint (cited to support the above principle).

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants argued that any grant of mesne profits requires a definite inquiry under Order XX Rule 12 CPC and must be anchored to a specific prayer for mesne profits in the plaint. They contended that the High Court’s notice had signaled consideration of the mesne profits issue but the second appeal was decided without addressing it. The absence of a proper prayer or inquiry renders the mesne profits provision unsustainable, citing Mohammad Amin v Vakil Ahmed and Others (AIR 1952 SC 358). The High Court failed to appreciate that the request for mesne profits was not invoked in the plaint, and thus the decree should not include such a provision. The remedy, they argue, is remittance for a focused inquiry rather than disposal of the appeal on other grounds.

Contentions of Respondents

There was no appearance on behalf of the respondent in the Supreme Court proceedings, so no substantive argument was advanced on their behalf. The respondent’s position is therefore not articulated in the record before the Court; consequently, the Court’s decision rests on the appellant’s contentions and the High Court’s judgment. The High Court’s reference to potential mesne profit inquiry remains unadjudicated in this stage, warranting remand for proper consideration.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Mohammad Amin and Others v. Vakil Ahmed and Others	AIR 1952 SC 358	Positive	Cited to support the proposition that mesne profits cannot be granted unless properly claimed in the plaint and that such relief must be supported by an inquiry under Order XX Rule 12 CPC.

Extracted Judgment Text

Exact text extracted from official judgment records.

[2008] 1 S.C.R. 1083 ~ A GANPATI MADHAV SAWANT (D) BY LRS. _v._ DATTUR MADHAV SAWANT (Civil Appeal No. 583 of 2008) B JANUARY 22,.2008 [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] y _Code of Civil Procedure, 1908_ - s. _100 and_ 0. _XX r. 12_ - - _Second appeal Dismissal of- On the ground that no question[However, ][at ][the ][time ][of ][issuance ][of ][notice, ]_ c _[of ][law ][involved ]_[-] _the question regarding requirement of enquiry under_ 0. _XX r. 12 before grant of mesne profit was pointed out_ - _On appeal, held: In the circumstances of the case, matter remitted to High Court._ D High Court dismissed, second appeal holding that no question of law was involved. However, while issuing notice in the appeal, it had noticed that grant of mesne profit without any enquiry in terms of 0. XX r. 12 CPC was not permissible. Hence the present appeal. E Partly allowing the appeal and remitting the matter to High Court, the Court HELD: The High Court while deciding the second appeal, failed to notice that while issuing notice it was F[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. Though at the time of issuance of notice, the High G[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. [Paras 7 and 8] [1086-A, B, C] :.- ~ , _,r_ H 1083 GANPATI MADHAV SAWANT (D) BY LRS. _v._ 1084 DATTUR MADHAV SAWANT [PASAYAT, J.] , ~ c ~ ; -t· _Mohammad Amin and_ Ors. _v. Vakil Ahmed and_ Ors. AIR A - 1952 SC 358 referred to. CIVILAPPELLATE JURISDICTION: Civil Appeal No. 583 of 2008. "( > From the final Judgment and Order dated 6.5.2004 of the B High Court of Bombay, Bench atAurangabad in Second Appeal No. 485 of 2001. C.G. Solshe and Vinesh C. Solshe for the Appellants. The Judgment of the Court was delivered by 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 D Section 100 of the Code of Civil Procedure, 1908 (in short the 'CPC'). 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 E 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 F issuing notice in the Second appeal, the High Court categorically observed as follows: "The 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[G ] 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 H SUPREME COURT REPORTS [2008] 1 S.C.R. 1085 A B C 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." 4. It was, therefore, pointed out that the grant of mesne profit without any enquiry in terms of Order XX Rule 12 CPC was not permissible. 5. There is no appearance on behalf of respondent. D E F G H 6. In _Mohammad Amin and Ors. v. Vakil Ahmed and Ors._ [AIR 1952 SC 358) it was, inter-alia, observed as follows. "It 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 "awarding possession and occupation of the property aforesaid together with all the rights appertaining thereto." 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." GANPATI MADHAV SAWANT (D) BY LRS. _v._ 1086 ~-' . **==> picture [209 x 12] intentionally omitted <==** 7. The High Court while deciding the Second Appeal, failed A 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. B B 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 C 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. K.K.T. Appeal partly allowed. D