IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 1972 of 2008 Date of Decision : September 23, 2009 Sushil Indora ....Appellant Versus Om Parkash .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. V.K.Jain, Senior Advocate with Mr. J.K.Bhatti, Advocate Mr. S.S.Godara, Advocate T.P.S. MANN, J. Suit for possession filed by Om Parkash-respondent against Sushil Indora-appellant, was decreed with costs by the learned Additional Civil Judge (Senior Division), Fatehabad, on 17.2.2007. As the appellant had remained in unauthorized possession of the suit property, he was also directed to pay a sum of Rs.2000/- per month to the respondent as mesne profits from the date of institution of the suit till actual delivery of possession. Aggrieved of the aforementioned judgment and decree, the appellant filed the first appeal, which was dismissed by the learned Additional District Judge, Fatehabad, on 8.4.2008. He is now before this Court by way of second appeal filed under Section 100 of the Code of Civil Procedure. R.S.A. No. 1972 of 2008 -2- At the time of preliminary hearing, learned counsel for the appellant confined the challenge only to awarding of mesne profits by the learned Courts below. Notice of motion was issued and interim stay granted with regard to depositing of mesne profits. The respondent stands duly served and represented in the present second appeal. Learned counsel for the appellant submits that the learned Courts below could not have granted the mesne profits in the absence of any such prayer made in the plaint by the plaintiff-respondent while filing the suit or any issue framed by the learned trial Court in this regard. He has referred to Ganapati Madhav Sawant(dead) Through his Lrs. V Dattur Madhav Sawant 2008(2) Civil Court Cases 125(S.C.) wherein it was held that where the plaintiff had not prayed for an inquiry relating to mesne profits in terms of Order XX Rule 12 of the Code, the same could not have been granted. Learned counsel for the respondent submits that it was not a case where the trial Court had denied decree for mesne profits but it merely omitted to raise an issue in that respect, more so, when in the concluding para of the plaint, a prayer had been made by the respondent for grant of any other relief, which he was deemed entitled. Though there was no specific prayer made on behalf of the respondent in the plaint for the grant of mesne profits on account of illegal occupation of the suit property by the appellant, yet the Court cannot over look the prayer regarding grant of any other relief to which the respondent R.S.A. No. 1972 of 2008 -3- could be entitled to. Once, the plaintiff-respondent had sought a decree for possession and the same was granted by the learned Courts below, the defendant-appellant cannot be heard saying that the relief of mesne profits could not be granted as there had been no specific prayer made in the plaint in that regard. Any other relief sought by the appellant in a suit for possession would have included relief for the grant of mesne profits to him. As the respondent had also prayed for any other relief in the suit, the judgment in case of Ganapati Madhav Sawant (Supra) is not applicable to the facts and circumstances of the present case. On the other other hand, in Narayanarao (Dead) Through Lrs. and others V Sudarshan 1995 Supp (4) Supreme Court Cases 463, the Hon'ble Supreme Court upheld the order of the High Court in granting mesne profits to the plaintiff despite the fact that in a suit for partition and possession, which stood decreed by the trial Court, no order had been made as to mesne profits as there was no issue or prayer regarding the same. The Hon'ble Supreme Court treated the order of the High Court to have been passed under Order XLI Rule 33 of the Code for doing complete justice between the parties for the reasons that it was a case where the trial Court had not denied decree for mesne profits but it merely omitted to raise an issue, in that respect. The relevant observations are as under:- “We have heard learned counsel for the appellant. It is not necessary for us to go into the scope and interpretation of Order XLI, Rule 33 Civil Procedure Code in the facts and circumstances of this case. The High Court invoked order XLI, Rule 33 Civil Procedure R.S.A. No. 1972 of 2008 -4- Code for doing complete justice between the parties. The High Court was of the view that it was not a case where the trial Court had denied decree for mesne profits but it was a case where it omitted to raise an issue in that respect. We see no infirmity in the judgment of the High Court in granting mesne profits in the facts and circumstances of this case. The appeal is dismissed with no order as to costs throughout”. Once, it was held by the learned Courts below that the appellant had continued to remain in illegal possession of the suit property belonging to the respondent and also considering the fact that the appellant was Member of Parliament earlier and Member of State Legislature at the time of filing of the suit, the Courts below were justified in directing him to pay mesne profits to the respondent so as to compensate the latter for remaining out of the suit property on account of its wrongful possession by the appellant. The suit property measuring 16 marlas was situated at Basti Bhiwan in the city of Fatehabad. The suit was filed by the respondent on 4.5.2005. The Court has been informed that the possession of the suit property has since been handed over by the appellant to the respondent. There is nothing on the record to show the rental value of the suit property but still the Court can draw a reasonable conclusion in that regard. According to the defendant-appellant himself as mentioned in the written statement, the value of the suit land was not less than Rs.15,00,000/-. This stand of the appellant gives another indication about the loss suffered by the respondent on account of illegal occupation of the suit property by the R.S.A. No. 1972 of 2008 -5- appellant. Taking into consideration the totality of the circumstances, this Court is of the view that the amount of Rs.2,000/- per month awarded as mesne profits was on the higher side. On the other hand, it would be just and reasonable to hold that the respondent is entitled to mesne profits @ Rs.1200/- per month. Resultantly, the appeal is disposed of by modifying the impugned judgment and decree so as to grant mesne profits to the plaintiff- respondent @ Rs.1200/- per month from the date of institution of the suit till actual delivery of possession. ( T.P.S. MANN ) September 23, 2009 JUDGE ajay-1