* THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN LETTERS PATENT APPEAL No.77 OF 1997 % 27.07.2011 # G.Subrahmanyam (died) per LRs ... Appellants VERSUS $ G.Leela and others. ... Respondents < GIST: > HEAD NOTE: ! Counsel for Petitioners: Sri T.S.Anand ^Counsel for Respondents: Dr P.B.Vijay Kumar ? Cases referred 1. AIR 1973 SC 171 2. AIR 1976 SC 49 3. AIR 1966 SC 735 : (1966) 2 SCR 286 4. AIR 1967 SC 155 5. (1975) 1 SCC 770 : AIR 1975 SC 1409 6. AIR 1941 FC 5 7. (1934) 294 US 600 8. (2000) 3 SCC 335 : AIR 2000 SC 1226 THE HON’BLE SRI JUSTICE V.V.S.RAO AND THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN LETTERS PATENT APPEAL No.77 of 1997 27.07.2011 Between: G.Subrahmanyam (died) per LRs …. Appellants AND G.Leela and others. … Respondents THE HON'BLE SRI JUSTICE V.V.S.RAO AND THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN LETTERS PATENT APPEAL No.77 OF 1997 JUDGMENT: (Per Hon’ble Sri Justice V.V.S.Rao) This plaintiff’s Letters Patent Appeal, under clause 15 of the Letters Patent, is against the Judgment of the learned Single Judge dated 17.04.1995 dismissing the cross-objections in A.S.No.2582 of 1989. Be it noted that, during the pendency of this appeal, the sole appellant died, and his legal representatives have been brought on record as appellants 2 and 3. For the sake of convenience, the parties are referred to herein as they are arrayed in the original suit being O.S.No.211 of 1982 on the file of the Court of the Additional Subordinate Judge, Tirupati. The plaintiff instituted the suit for declaration of his right to perform Tharigonda Vengamamba Mirasi Service in the temple of Lord Venkateswara at Tirumala, for permanent injunction, and for recovery of items 1, 2 and 3 of Plaint Schedule properties. These properties were originally owned by Tharigonda Vengamamba, a great devotee of Lord Venkateswara. She was rendering midnight Harathi known as ‘Mutyala Harathi Service’, and was celebrating Narasimha Jayanthi for ten days annually. The service came to be recognized as mirasi service. All the successors of Tharigonda Vengamamba acquired the right to perform the said service. In 1930 or so Garmitta Gammanna performed the mirasi service. Chidambarappa was his brother. Gammanna executed a Will on 02.04.1931 bequeathing/authorizing the right to perform the mirasi service to Gandepalli Suryanarayana with a condition that the right and property would revert back to the heirs of Chidambarappa. After Suryanarayana, his son Kuppaiah Sarma performed the service. He was succeeded by his son G.V.L.N.Murthy, the husband of the first defendant. Murthy died issueless on 27.12.1981. The plaintiff, being the son of Chidambarappa, staked his claim for the mirasi right, as well as the properties, based on Ex.B.1 Will. He issued legal notice on 16.09.1961 claiming right as successor-in-interest of Vengamamba family being the nephew of Gammanna, and then filed the suit. The first defendant opposed the suit contending that, after the death of her husband Murthy, she had adopted the second defendant under registered adoption dated 16.06.1982; that the fourth respondent had recognized him as mirasidar; that, as he was a minor, mirasi services were being discharged through the third defendant; and that, as per Ex.B.1, it is the successors of Suryanarayana alone who had the right to perform the service. The fourth defendant, namely, Tirumala Tirupati Devasthanams (TTD) opposed the suit contending that the first defendant was recognized for rendering service; that she was also paid compensation; and that all hereditary mirasi rights stood abolished after the enactment of Andhra Pradesh Charities and Hindu Religious Institutions and Endowments Act, 1987 (hereafter called, the Endowments Act). On considering the evidence – oral evidence of P.W.1 to P.W.3, and D.W.1 and D.W.2 as well as documentary evidence Exs.A.1 to A.17 and Exs.B.1 to B.17 – the trial Court granted declaration of the right of the plaintiff to Tharigonda Vengamamba Mirasi Service at Lord Sri Venkateswara Temple at Tirumala, and also granted permanent injunction restraining the defendants from performing the said service. In so far as the relief of recovery of possession is concerned, having regard to the evidence that out of Acs.0.58 cents of land in item No.1, Acs.0.45½ cents and the backyard portion of item No.3 (house) were acquired by the fourth defendant, the relief of recovery of possession was granted only in respect of item No.2 while denying the same in respect of portions of item Nos.1 and 3, which were acquired by fourth defendant. The defendants 1 to 3 filed appeal. The plaintiff filed cross objections claiming the relief of recovery of possession of item Nos.1 and 3, which are said to have been acquired by the fourth defendant. The learned single Judge construing Ex.B.1, executed by Gammanna, as well as other evidence came to the conclusion that what was bequeathed thereunder was the right to mirasi service as a proxy on behalf of Gammanna and his successors; that, in lieu of rendering such service, the right to enjoy properties was given as consideration; and that, if the legatee under the Will failed to have male issues, the properties would revert back to the family of the plaintiff. The learned single Judge also held that the subsequent adoption created by the first defendant would not affect the rights of the plaintiff under Ex.B.1. The judgment of the trial Court granting the declaration was thus confirmed. But, after noticing the fact that portions of item Nos.1 and 3 of plaint ‘A’ schedule were acquired by the fourth defendant in respect of which compensation was already paid to the first defendant, the learned single Judge did not find fault with the trial Court Judgment in denying the relief of recovery of possession for these two items to the plaintiff. The cross-objections were accordingly dismissed. The counsel for the appellant would submit that, under Ex.B.1, the plaintiff acquired the right to perform mirasi service; the same also provided for bequeathing the properties attached to Tharigonda Vengamamba Mutt; hence, denial of relief of possession for the items, which were acquired by the fourth defendant, was erroneous; even if, during the pendency of the suit, portions of item Nos.1 and 3 were acquired it is only the plaintiff who is legitimately entitled to claim compensation; the fourth defendant paid compensation to the first defendant illegally and, therefore, the plaintiff is entitled to the decree directing the fourth defendant to pay the compensation to the plaintiff or a direction to the first defendant to pay the compensation which she received illegally. He would contend that, taking into consideration Order VII Rule 7 and Order XLI Rule 33 of the Code of Civil Procedure, 1908 (CPC), the High Court can mould the relief to do complete justice, even if there is no prayer for the alternative relief of recovery of possession. He would rely on M.Laxmi and Co., v A.R.Deshpande[1] and Rameshwar v Jot Ram[2]. Learned counsel for respondents 1 to 3 would submit that, under Ex.B.1, Gandepalli Suryanarayana and his successors- in-interest were conferred the right to perform mirasi service as well as enjoy all the properties; therefore, if the compensation had been paid to them by the fourth defendant, the plaintiff would not have any claim to the same; during the pendency of the suit before the trial Court, or in the appeal before the learned Single Judge, the plaintiff did not seek the alternative relief of payment of compensation in lieu of possession of a portion of item Nos.1 and 3 and therefore, at the stage of Letters Patent Appeal, the plaintiff cannot be permitted to raise such a plea. According to the learned counsel, failure to amend the plaint asking for payment of compensation in lieu of possession would disentitle them from seeking such a relief; and the conduct of the plaintiff would amount to acquiescence and, therefore, no interference is called for. The background facts, and the rival submissions, would give rise to two inter-related points for consideration, namely, whether the appellants/plaintiffs are entitled to the relief of compensation in lieu of possession of item No.1 and the backyard portion of item No.3 of plaint ‘A’ schedule; and whether the plaintiff can seek a direction to the first respondent to reimburse the compensation amount, she had received from the fourth defendant, to the plaintiff. Before taking up the main issue for consideration, we will consider two submissions made on behalf of respondents 1 to 3. The submission that, under Ex.B.1, the respondents would be entitled to claim compensation or enjoy the income from the plaint schedule properties cannot be permitted to be agitated in this Letter Patent Appeal. There is no denial that, against the Judgment of the learned single Judge, the respondents had filed a Special Leave Petition under Article 136 of Constitution of India before the Supreme Court, and the same was already dismissed. The issue raised by the respondents, therefore, stands concluded and cannot be permitted to be re-opened. The other plea of acquiescence barring the appellant from claiming the compensation paid by the TTD is also not permissible. The appellants never raised such a plea nor cross-examined P.W.1 on this aspect. Further, acquiescence disentitling a person to seek redressal for the legal injury is a question of fact. No factual foundation was laid in the pleadings, in the absence of which it would not be possible for the Court, at the stage of Letters Patent Appeal, to adjudicate upon it. An extent of 45½ cents out of 55 cents forming part of item No.1, which is a tomb of Tharigonda Vengamamba (Samadhi Topu), was acquired by the fourth defendant prior to the filing of the suit, as evidenced by Ex.B.12 and Ex.B.13. In fact, D.W.1 testified that, even during the life-time of her father-in-law Suryanarayana, an extent of 12½ cents was only in their possession, and the remaining land was acquired by the TTD. The counsel for appellant/plaintiff does not seriously press the point in so far as item No.1 is concerned. There is no dispute whatsoever that subsequent to the death of the husband of the first defendant, TTD acquired the backyard of house item No.3, and paid compensation. This acquisition was during the pendency of the suit. As the land was not available for delivery of possession the relief, to the extent of backyard portion which was taken over by the fourth defendant, was denied. The relevant principles, touching upon the question posed by us supra, can be conveniently considered under three distinct heads, namely, (i) the power of the Court under Order VII Rule 7 of the CPC to grant the relief not asked for; (ii) the power of the Court under Order XX Rule 12 of the CPC to pass a decree for mesne profits; and (iii) under Order XLI Rule 33, and the impact of subsequent events. (i) Grant of relief not specifically stated Order VII Rule 1, quoted below, provides that, inter alia, the plaint shall contain the relief which the plaintiff claims, and where the plaintiff has allowed a set off or relinquished a portion of the claim, the amounts so allowed or relinquished. 7. Relief to be specifically stated.- Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement. The rule is that every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative. But, it shall not be necessary to ask for general or other reliefs which can always be given as the Court may think just to the same extent as if it had been asked for. Though the Court cannot ordinarily grant any relief to the plaintiff against the defendant which is not asked for, if a larger or a wider relief is claimed, the lesser relief can always be granted. If the plaintiff establishes facts which entitled him to the relief not claimed, ordinarily the relief cannot be denied. In Bhagwati Prasad v Chandramaul[3], it was held. If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely, in the issues, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is: did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. The Supreme Court also held that, if the Court reaches conclusion as to the right of the plaintiff to the main relief, it would be a matter of law as to whether he should also be granted the incidental or lesser relief if, by reason of subsequent events, the grant of relief, as originally prayed, becomes impossible. The emphasis in Order VII Rule 7 is “other relief which may always be given as the Court may think just”. Even if a relief is not asked for, and if such lesser relief comes within the general relief claimed, the relief cannot be denied. Appendix ‘A’ to the CPC contains various forms of pleadings. It is a general practice that most of the plaints have a prayer in general terms ‘such other relief as the Court may deem fit and proper’ or ‘such further or other relief as the nature or case require’. Such general relief would be sufficient to empower the Court to grant a lesser relief which is incidental to the general relief. For instance, in a suit for possession and mesne profits, the Court can grant future profits as a general relief, even if not asked for expressly or specifically (Gopalakrishna Pillai v Meenakshi Ayal[4]) and, in a suit for recovery of money, the Court can award future interest on the sum determined to be due even if it is not claimed by the plaintiff. (ii) Scope of Order XX Rule 12 Order XX of CPC though not exhaustive on the subject deals with delivery of the Judgment, and the drawing of a decree by the Court after disposal of the Suit. In addition to general principles, rules regarding various types of decrees in different suits are also taken care of. Order XX Rule 12 deals with decree for possession and mesne profits and reads as under. Order XX Rule 12 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 even first occurs. (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. In a suit for decree of possession, the Court is required to pass a decree for possession of the property, and for rent or mesne profits. Rent and mesne profit are different concepts. Though mesne profits may include the rent, it is not vice versa. Be that as it is, in a suit for decree of possession, the Court can pass a decree for possession, for rents accrued during the period prior to institution of the suit, and/or mesne profits, either by ordering enquiry or suo motu. Reading Order XX Rule 12 and Order VII Rules 1 and 7 together, there cannot be any doubt that, even in a suit for recovery of possession, the plaintiff has to seek relief specifically for rent or mesne profits in addition to the decree of possession. Whether the Court can grant mesne profits for the period after institution of the suit or post decree till the decree is obeyed even if such relief is not asked for? This question is no more res integra. Courts have held that the Court can pass a decree for mesne profits even if such a relief is not asked for. In Gopalakrishna Pillai a Division Bench of the Supreme Court considered this aspect and held that, even in the absence of a specific prayer, the Court has jurisdiction to pass a decree for mesne profits. It is apt to quote the following. Order 20 Rule 12 enables the Court to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of Order 7 Rules 1 and 2 and Order 7 Rule 7 of the Code of Civil Procedure and Section 7(1) of the Court Fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay court-fees thereon. With regard to future mesne profits, the plaintiff has no cause of action on the date of the institution of the suit, and it is not possible for him to plead this cause of action or to value it or to pay court-fees thereon at the time of the institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which the provisions of Order 20 Rule 12 apply. But in a suit to which the provisions of Order 20 Rule 12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits, and the Court may grant this general relief, though it is not specifically asked for in the plaint. (iii) Order XLI Rule 33 and Subsequent events There is no gainsaying that a trial, in a Civil Court, proceeds with reference to the relevant issues necessary for resolving the dispute. The contentious issues are identified with reference to specific pleadings which have to comply with the essential Rules in Orders VI, VII and VIII, and various forms in Appendix ‘A’, as the case may be. The pendency of proceedings in the Civil Court more often than not results in either altering the cause of action for the suit or introducing drastic changes in the respective positions of the parties to the suit with regard to the rights and obligations. The legal injury complained by the plaintiff might get aggravated warranting additional relief, or the legal injury might get lessened, warranting moulding the relief or the legal injury might get aggravated necessitating multiple reliefs. In all such cases, the Civil Court as an adjudicatory forum of law, justice and equity is not precluded from giving effect to events that have changed the historical facts forming the background of the case. There could be a situation where the law governing the parties might have undergone drastic changes altering rights and obligations. In such a case, the Court is not barred from giving effect to such change in law. Order XLI Rule 33 was inserted in the CPC by the CPC (Amendment) Act 1974 with effect from 01.02.1977. The reason for introducing the same, as visualized by the objects and reasons, is that the appellate Court should have the fullest power to do complete justice between the parties. The rule postulates that the appellate Court has the power to pass a decree, and make an order which ought to have been passed or made as the case may require, even if the respondents/parties have not filed any appeal or objection. The rule is couched in such a wide language that the appellate Court can always consider the subsequent events as to facts and law and grant relief. What was a common law practice has now become a codified provision as in Order XLI Rule 33. Such a course of action is necessary to shorten litigation, and attain ends of justice. The legal position is indeed not seriously disputed by the counsel. In Laxmi & Co., the Supreme Court reiterated the principle that the subsequent events cannot be ignored by the Court. It was held: It is true that the Court can take notice of subsequent events. These cases are where the Court finds that because of altered circumstances like devolution of interest it is necessary to shorten litigation. Where the original relief has become inappropriate by subsequent events, the Court can take notice of such changes. If the Court finds that the judgment of the Court cannot be carried into effect, because of change of circumstances the Court takes notice of the same. If the Court finds that the matter is no longer in controversy the Court also takes notice of such event. If the property which is the subject matter of suit is no longer available the Court will take notice of such event. The Court takes notice of subsequent events to shorten litigation, to preserve rights of both the parties and to subserve the ends of justice. (emphasis supplied) Pasupuleti Venkateswarlu v Motor and General Traders[5] is a case under the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960. The landlord filed eviction petition on the ground of bona fide requirement to start business in automobile spares. The Rent Controller, as well as the appellate authority, dismissed the landlord’s case. This Court allowed the revision and remanded the matter to the appellate authority which, in turn, remitted the case to the Rent Controller for fresh disposal. Again the landlord carried the matter by way of revision to this Court. At this stage, the tenants alleged that the landlord took possession of another shop during the pendency of Rent Control proceedings. Taking this subsequent event into consideration, this Court dismissed the eviction petition as no longer maintainable under the relevant provision. The question before the Supreme Court was whether the High Court was justified in taking cognizance of subsequent events. The Apex Court referred to Lachmeshwar Prasad Shukul v Keshwar Lal Chaudhuri[6] and reiterated the principles as below: First about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising