1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Family Court Appeal No.31 of 2007 Ms.Adhyaatmam Bhamini Appellant Vs. Mr.Jagdish Ambalal Shah Respondent Appellant in person. Ms.Nalini Chagla for respondent. CORAM: B.H.MARLAPALLE & D.G.KARNIK,JJ. March 21, 2009. ORAL JUDGMENT (PER B.H.MARLAPALLE,J.) 1. This appeal filed under Section 19 of the Family Courts Act, 1984 arises from the judgment and order dated 18/11/2006 passed by the Family Court at Mumbai thereby dismissing Misc. Application No.33 of 1996 filed by the appellant claiming mesne profits at Rs.3000/- per month from 1986 under Order XX, Rule 12 of CPC. 2. As per the appellant she was married to the respondent in the year 1959 and begot two sons - Tulip born in 1960 and Nirvan born in 1965. Sometimes in the year 1979 she had lent an amount of Rs.65,000/- to her son to join a partnership firm along with his 2 father. She claims that this investment had earned certain dividends and the entire amount was invested in buying Flat No.602 (East Wing), 6th floor in the proposed Swagat Co-op. Housing Society, Off LBS Marg, Ghatkopar (West), Mumbai admeasuring about 560 sq.ft. sometimes in the year 1980. The possession of the flat was received in May 1986 and it was in the joint ownership of herself and her son. The respondent was given a power of attorney by the son. The entire case of the appellant before the Family Court was that the respondent on some pretext or the other did not allow her to rent out the said flat which ought to have fetched about Rs.3000/- per month and thus she was deprived of the income. 3. The respondent by his reply at Exhibit 2 denied the entire claim and further contended that the claim made was time barred and was false. The Family Court framed the following Issues: (1) Whether the Petitioner’s claim is within limitation? Finding: Claim is time barred by Article 51 of the Limitation Act. 3 (2) Whether Petitioner is entitled to the award of mesne profits vide Order XX Rule 12 of CPC? Finding: In the negative. 4. The appellant submitted before us that the Family Court did not allow her to adduce any evidence by examining witnesses and she had also amended the plaint so as to claim damages instead of mesne profits. While the learned Judge of the Family Court held that the suit was beyond limitations he also recorded a finding that the claim of mesne profits was not maintainable as the "wrongful possession over the property" was absent. The Family Court also noted that from May 1986 till November 1993 the suit flat remained in the joint ownership, whereas in November 1993 it came to the exclusive ownership of the appellant. It further noted that for some period the appellant had rented out the suit flat and at least for four months to the trainees who were engaged by Larsen and Toubro. As per the Family Court the appellant was not entitled to claim any mesne profits 4 from November 1993 onwards. 5. We have perused the impugned judgment and heard the parties. Misc. Application No.33 of 1996 was filed before the Family Court on 4th March 1996. The plaint was amended for recovery of damages instead of mesne profits. Article 51 of the Limitations Act which has been relied upon by the Family Court sets out a period of limitation of three years to claim money recovery by way of damages. In the instant case even if the reasoning set out by the Family Court is accepted, the appellant’s case for recovery of damages from March 1993 onwards was required to be adjudicated on merits. In addition, we find that the appellant was handicapped because she was not allowed to examine any witness by the Family Court. There is nothing on record to show that the plaintiff had become exclusive owner of the suit flat prior to November 1993. Under these circumstances the appellant’s claim for recovery of damages is required to be reconsidered by allowing her to examine witnesses and this cannot be done by us. We, therefore, deem it appropriate to restore the application filed by the appellant before the Family Court for fresh trial. 5 6. In the premises, this appeal succeeds partly. The impugned judgment and order dated 18th November 2006 is hereby quashed and set aside and Misc. Application No.33 of 1996 is restored to the file of the Family Court at Mumbai. The Family Court is directed to adjudicate upon the appellant’s claim for recovery of damages afresh and by allowing her to examine the witnesses. Both the parties will appear before the Family Court on 6th April 2009 and the appellant shall submit the list of her witnesses before the Family Court on that day. We direct that the application on remand be heard and decided as expeditiously as possibly and in any case within a period of six months from 6th April 2009. No order as to costs. (D.G.KARNIK,J.) (B.H.MARLAPALLE,J.)