KBP 1428-09.sxw 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1428 OF 2009 Laxmi Industrial Estate ..Petitioner Vs. Pramukh Development Corporation and ors. ..Respondents ......... Mr.H.S.Shreepad Murthy, for petitioner. Ms.Sindha Shreedhran, for respondent no.1. ......... CORAM : A.S.OKA, J.. DATE : 5 th August, 2009. JUDGMENT : 1] I have heard the submissions of learned counsel appearing for the parties. The submissions were heard on 28 th July, 2009. Notice for final disposal was already issued. 2] The petitioner is first defendant in a suit filed by the first respondent. The challenge in this petition under Article 227 of the constitution is to the order dated 8 th December, 2008 by which chamber summons taken out by the first respondent – plaintiff for amendment of plaint has been made absolute. 3] The first respondent claims to be the owner of land admeasuring 2787 square meters bearing C.T.S. No.652 of village Oshiwara, situated at New Link Road, Andheri (West), Mumbai. The suit is filed for injunction restraining the petitioner from trespassing, encroaching upon the suit property and constructing a culvert over the suit property. Consequential reliefs have been prayed for in the plaint. KBP 1428-09.sxw 2 4] The chamber summons was taken out by first respondent praying that the first respondent be permitted to incorporate additional prayer clause “c-b” in the plaint. The said additional prayer clauses read thus: “c-b. That this Hon’ble Court be pleased to direct Defendant No. 1 to pay adequate compensation to the plaintiff as deemed fit and proper by this Hon’ble Court for use of the said illegal culvert, being wrongful use of the Suit Property, from the date of completion of construction of the said illegal culvert till the date of demolition thereof.” In the affidavit in support of the chamber summons it is stated that on 28 th June, 2004 the trial court declined to grant ad-interim relief in favour of first respondent and in appeal, this court on 14 th July, 2004, passed an order of status-quo. The contention is that in between 28 th June, 2004 to 14 th July, 2004, the petitioner continued with and completed the construction of a culvert over the suit property. The order dated 16 th February, 2008 passed in appeal from order by this court has been relied upon. It is stated that by the said order, the petitioner was directed to deposit a sum of Rs.50 lacks and accordingly petitioner has deposited the said amount. By the impugned order, the first respondent has been permitted to carry out the amendment to the plaint. 5] The submission of the learned counsel appearing for petitioner is that the first respondent has incorporated a prayer for passing decree of compensation against the petitioner without even roughly quantifying the amount of compensation to which the first respondent is claiming entitled to. He has submitted that in view of Rule 2 of Order VII of the Code of Civil KBP 1428-09.sxw 3 Procedure, 1908 (hereinafter referred as “said code”) it was necessary for the first respondent to quantify the amount of compensation claimed from the petitioner. He has submitted that only on this ground, the amendment incorporating such a vague prayer could not have been allowed. He has placed reliance on certain decisions of this Court as well as the Apex Court. 6] Leaned counsel appearing for the first respondent invited my attention to the order passed by this Court in Appeal From Order on 16 th February, 2008 by which this court directed the petitioner to deposit a sum of Rs.50 lacks. She submitted that the amount of Rs.50 lacks was ordered to be deposited by the petitioner so that the said amount can be adjusted towards compensation payable by the petitioner. She submitted that an application for amendment was taken out on the basis of liberty granted by this court by the said order. She submitted that, in view of quantification of amount at Rs. 50 lacks made by this court, it is not necessary to specify the amount claimed by way of compensation. She submitted that no interference is called for. 7] I have carefully considered the submissions. The first respondent- plaintiff claims to be the owner of suit property. The contention is that after prayer for ad-interim relief was rejected by the trial court and before this court granted ad-interim relief, the petitioner completed the construction of a culvert on the suit property thereby illegally and wrongfully using the suit property. The prayer permitted to be added by the amendment allowed under the impugned order is that a decree be passed directing the petitioner to pay adequate compensation to the first respondent for wrongful use of suit property from the date of completion of construction of culvert till the date of demolition thereof. It must be stated here that prayer clause c-a was already added to the plaint seeking decree of demolition of the said culvert. 8] It will be necessary to refer to Rule 2 of Order VII of the said code KBP 1428-09.sxw 4 which provides that where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed. There are exceptions to the said rule. The first exception is where the plaintiff sues for mesne profits. The second exception is where the claim is for an amount which will be due to the plaintiff on taking unsettled accounts between him and the defendant. In such a case the plaint shall state approximately the amount sued for. The third exception is where the plaintiff sues for movables in the possession of the defendant or for debts the value of which he cannot, after the exercise of reasonable diligence, estimate. In such case, the proviso requires that the plaint shall state approximate amount or value sued for. 9] On this aspect it will be necessary to refer to the decision of the Apex Court in the Case of Gopalkrishna Pillai and others Vs. Meenakshi Ayal and others (AIR 1967 SC 155). The Apex court had an occasion to deal with a decree for mesne profit. The Apex Court also dealt with rule 2 of the Order VII of the said Code. It will be necessary to refer to what is held by the Apex Court in paragraph 7 which read thus: “(7) 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 & Rule 1 and 2 and Order & 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 regards to future mesne profits the plaintiff has no cause of KBP 1428-09.sxw 5 action on the date of 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 suit to which the provisions of O.20 R.12 apply. But in a suit to which the provisions of O.20 R 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, through it is not specifically asked for in the plaint.” (emphasis added) Thus, what has been held by the apex court is that there can be decree for both past and future mesne profit. With regard to the past mesne profit, the plaintiff has existing cause of action and, therefore, the plaintiff has to plead the cause of action and specifically claim a decree for past mesne profits. The Apex Court held that in such a case the plaintiff has to claim the mesne profit approximately and pay court fees thereon. The Apex court observed that in regard to future mesne profit, the plaintiff has no cause of action on the day of institution of suit and, therefore, it is not possible for him to plead approximate value or to pay the court fees. 10] In the present case, perusal of averments made in the plaint shows that the Municipal Corporation permitted the petitioner to carry out Construction of a culvert. Specific averment has been made in paragraph 10 of the plaint that the petitioner was carrying out construction activities of culvert on the suit property. Thus, when the suit was filed, the construction of a culvert was being carried out by the petitioner (original defendant). Thus when the suit was filed, the property was already being used by the plaintiff. KBP 1428-09.sxw 6 The text of the amendment shows that during the pendency of the suit the construction of culvert has been completed. On the date of the suit the petitioner was aware as to the extent of area occupied by the petitioner for construction of the culvert. Assuming that the prayer “c-b” which sought to be added by the amendment is a prayer for mesne profit, it was necessary for the first respondent to put approximate valuation of the compensation claimed. The first respondent was aware on the date of claiming amendment as to how much area is occupied by culvert already constructed by the petitioner. There is another aspect of the matter. The suit is pending in the court which is having a limited pecuniary jurisdiction. The said court can try the suits having valuation upto Rs.50,000/-. Thus, the valuation for the claim for compensation has a direct bearing on the jurisdiction of the said court to entertain the suit. The present case is not covered by the exceptions carved out to Rule 2 Order VII of the code and it was necessary for the first respondent to put approximate valuation of the claim for compensation and to pay court fees on the said claim. 11] The submission of the learned counsel appearing for first respondent was that in the order passed in Appeal From Order, this Court has already quantified the amount of compensation. It must be stated here that the order dated 16 th February, 2008 notes that the petitioner on his own showed willingness to deposit a sum of Rs.50 lacks. On plain reading of clause 4 of the said order it is apparent that amount of Rs.50 lacks is by way of deposit and this court has not quantified the compensation amount. This court by said order granted liberty to the first respondent plaintiff to apply for amendment to the plaint. Therefore, the said order is of no help to the first respondent for contending that it is not necessary for the first respondent to make approximate valuation of the claim for compensation at least upto date on which application for amendment of plaint was filed. Therefore in KBP 1428-09.sxw 7 absence of first respondent making at least an approximate valuation of the claim for compensation, the application for amendment of plaint could not have been entertained. Therefore, the impugned order deserves to be quashed only on that ground. However, a reasonable time deserves to be granted to the first respondent plaintiff to make an approximate valuation of the claim for compensation in terms of the decision of the Apex Court in case of Gopalkrishna Pillai and others Vs. Meenakshi Ayal and others (supra) and to pay court fees thereon. Hence I pass the following order: (a) Time is granted to the first respondent of ten weeks for the purpose of making approximate valuation of the claim for compensation payable at least up to the date of filing the application for amendment and to pay court fees on the said claim. On formal application being made by the first respondent-plaintiff for amending the plaint for incorporating approximate valuation, the learned Judge shall permit the amendment. If the amendment as aforesaid carried out and court fees is paid within the stipulated time, the impugned order will stand confirmed. (b) On failure of the first respondent to take steps as aforesaid within a period of ten weeks from today, the impugned judgment and order dated 8 th December, 2008 will stand quashed and set aside and the Chamber Summons No.233 of 2008 will stand dismissed. (c) It is made clear that if necessary compliance is made by the first respondent within ten weeks from today, the KBP 1428-09.sxw 8 impugned order shall stand and in such event it will be open for the defendants to file additional written statement. (d) Writ Petition is partly allowed in above terms with no order as to the costs. ( A.S.OKA, J. )