1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL REVISION APPLICATION NO. 54 OF 2009 WITH CIVIL APPLICATION NO. 44 F 2009 UCO Bank ... Appellant (Orig. defendant) Vs. Jaywant Prataprai Mehta ... Respondent (Orig. plaintiff) Mr. Harinder Toor a/w. Mr. S.K.Chari i/b. Ms. M.V.Kini & Co., Advocates, for the applicant. Shri Advait Sethna i/b. Mr. Shardul P.Ramaiya, Advocates, for the respondent. CORAM: J.H.BHATIA, J. DATE : 1st April, 2010. P.C. 1. Heard the learned Counsel for the parties. 2. The revision-applicant, which is a Nationalised Bank, was a tenant of the respondent. The respondent/plaintiff filed T. E & R. Suit No.265/280 of 2001 for eviction and possession and for mesne profits. According to the plaintiff, by the notice dated 22.2.2001, the tenancy was terminated with effect from 1.4.2001 and the plaintiff sought mesne profits from the date of termination of the tenancy. 2 The suit was filed on 9.5.2001. The suit was defended by the Bank by filing written statement. Evidence was led by both the parties not only on the question of termination of tenancy, but also about the mesne profits or the reasonable rent of the premises. The trial Court by judgment dated 10.2.2006, passed the order directing the defendant to hand over possession on or about 10.5.2006 and also directed the Bank to pay mesne profits from April 2001 to March 2006 at the rates determined therein with interest at 6% per annum and also to continue to pay mesne profits at the rate of Rs.1,56,502/- per month till the delivery of possession. The said Judgment and decree were challenged by the Bank by filing Appeal No.236 of 2006 before the appellate Bench in the Small Causes Court. As far as the decree for eviction and possession is concerned, that was maintained. However, in respect of the mesne profits, the appellate Bench reduced the rates slightly and directed the Bank to pay mesne profits accordingly. It also directed the plaintiff to pay the Court fee on the total decretal amount in the form of compensation or mesne profits. The present Revision Application is filed by the Bank challenging that order. 3. The learned Counsel for the revision-petitioner contended that the trial Court could not have directly passed the order about mesne profits while passing the decree for eviction and possession. According to him, the Court 3 could have at the most directed an inquiry under Order XX Rule 12, C.P.C. and therefore the order passed by the Courts below in respect of payment of mesne profits is liable to be set aside. Secondly, he contended that the Court fee was not paid by the plaintiff while filing the suit and therefore also no direction could be given to pay the amount of mesne profits. 4. Order XX Rule 12. C.P.C. reads as follows :- “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 directing an inquiry as to such rent; (ba) for the mesne profits or directing an inquiry as to such mesne profits; (c) directing an inquiry as to rent or mesne profits from the institution of the suit until - (i) the delivery of possession to the decree-holder, (ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or (iii) the expiration of three years from the date of the decree, whichever event first occurs. 4 (2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.” It appears that clause (ba) was added by the Code of Civil Procedure (Amendment) Act,1976. It appears that Order XX Rule 12 was amended by the Bombay High Court in 1983 and in the Bombay Amendment, clause (ba) was not there. Under Clause (ba) as per the amendment by the Central legislation, the Court could have directed for payment of mesne profits or could have directed an inquiry as to such mesne profits. Under clause (c), the Court can give a direction to hold an inquiry as to rent or mesne profits from the date of institution of the suit till delivery of possession or the relinquishment of possession. In view of this, the trial Court should have directed an inquiry under Order XX Rule 12, C.P.C. However, it appears that the trial Court did not notice the difference in the Order XX Rule 12(1) as amended by Central Legislature and as amended by the Bombay High Court. In the result, while proceeding with the trial of the suit, the trial Court proceeded with the question of the prevailing rents and the mesne profits. Both the parties led evidence on that point. They had submitted the reports from the two different architects to show the market rates of rent of the property in the area. It appears that the defendant-Bank had taken a similarly situated another property on rent. The rent, which was being paid by the Bank for 5 that property during the relevant period, was also taken into consideration and on that basis the trial Court instead of directing an inquiry under Order XX Rule 12, directly decided the question of the rent or the mesne profits which the property could have fetched. Said decree was challenged in appeal. However, in the Appeal Memo, no ground was taken by the Bank that such inquiry could not be held by the Court during trial of the suit itself and that in the decree separate inquiry should have been directed. If that ground would have been taken, possibly the appellate Court could have considered the same. From the judgment of the appellate Court, it appears that this point was never raised and the arguments were advanced only about the possession and quantum of the mesne profits. Therefore, the appellate Court, after considering the evidence on record minutely. came to conclusion that the rates of rent fixed by the trial court as mesne profits needed to be reduced by about 10% and accordingly the appellate Court reduced that amount and directed accordingly. In my considered opinion, when this question was not raised before the trial Court as well as before the appellate court and the defendant fully participated in the recording of evidence in respect of the determination of the mesne profits during the trial itself, now that question cannot be raised particularly when the decree to the extent of eviction and possession has been already executed and the Bank has handed over possession. In the given circumstances, it will be futile exercise to set aside the order pertaining payment 6 of mesne profits and to direct a fresh inquiry under Order XX Rule 12, C.P.C. 5. About the payment of Court fee, the learned Counsel relied upon Gopalkrishna Pillai & Ors. vs. Meenakshi Ayer & Ors. AIR 1967 SC 155. That judgment clearly shows that when in the suit the plaintiff-landlord claims mesne profits or rent prior to the filing of the suit, the Court fee has to be paid on the same. It is well settled position of law that when the mesne profits is required to be determined later on, the Court fee cannot be paid on that amount in advance while filing a suit. That Court fee can be directed to be paid and can be paid only when the amount of mesne profits is determined and quantified. In the present case, the appellate Court quantified the mesne profits and also directed the plaintiff to pay the necessary Court fee on the decretal amount. The learned Counsel for the plaintiff-respondent made a statement before the Court that the Court fee has been actually paid as per the said direction. 6. Taking into consideration the above circumstances, there is no substance in the present Revision Application. Therefore, Revision Application stands dismissed. 7. As the C.R.A. is dismissed, the Civil Application No.44 of 2009 does 7 not survive and stands disposed of accordingly. 8. At this stage, the learned Counsel for the revision-applicant seeks stay to this order. As the decree for possession has been already executed and only the money decree remains to be executed,no stay can be granted. (J.H.BHATIA,J.)