GANPATI MADHAV SAWANT (D) BY LRS.versusDATTUR MADHAV SAWANT

                         [2008] 1 S.C.R. 1083


A           GANPATI MADHAV SAWANT (D) BY LRS.                         ~
                               v.
                 DATTUR MADHAV SAWANT
                (Civil Appeal No. 583 of 2008)
                        JANUARY 22,.2008
B
       [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]
                                                                      y
          Code of Civil Procedure, 1908 - s. 100 and 0. XX r. 12 -
    Second appeal - Dismissal of- On the ground that no question
c   of law involved - However, at the time of issuance of notice,
    the question regarding requirement of enquiry under 0. XX r.
    12 before grant of mesne profit was pointed out - On appeal,
    held: In the circumstances of the case, matter remitted to High
    Court.
D        High Court dismissed, second appeal holding that
    no question of law was involved. However, while issuing           :.-

    notice in the appeal, it had noticed that grant of mesne
    profit without any enquiry in terms of 0. XX r. 12 CPC was
    not permissible. Hence the present appeal.
E
         Partly allowing the appeal and remitting the matter
    to High Court, the Court
        HELD: The High Court while deciding the second
  appeal, failed to notice that while issuing notice it was
F categorically noted that the plaintiff had not prayed for an        ~     ,
  inquiry relating to mesne profit in terms of Order XX Rule
  12 CPC and in the absence of any specific prayer for any
  inquiry into that aspect, the same could not have been
  granted. Though at the time of issuance of notice, the High
G Court had noted that this substantial question of law did
  arise for consideration, while deciding the second appeal,
  this aspect was lost sight of. In the circumstances, it would       ,r
  be appropriate to remit the matter to the High Court to
  consider that aspect. [Paras 7 and 8] [1086-A, B, C]
H                                1083
               GANPATI MADHAV SAWANT (D) BY LRS. v.                  1084
                DATTUR MADHAV SAWANT [PASAYAT, J.]
,   ~        Mohammad Amin and Ors. v. Vakil Ahmed and Ors. AIR A
         1952 SC 358 - referred to.
              CIVILAPPELLATE JURISDICTION: Civil Appeal No. 583
         of 2008.
              From the final Judgment and Order dated 6.5.2004 of the        B
         High Court of Bombay, Bench atAurangabad in Second Appeal
    "(   No. 485 of 2001.
              C.G. Solshe and Vinesh C. Solshe for the Appellants.
              The Judgment of the Court was delivered by                     c
              Dr. ARIJIT PASAYAT, J. 1. Leave granted.
               2. Challenge in this appeal is to the order passed by a
         learned Single Judge of the Bombay High Court Aurangabad
         Bench, dismissing the appeal filed by the appellant under D
    ~    Section 100 of the Code of Civil Procedure, 1908 (in short the
         'CPC'). The appellants, heirs of the original Defendant Nos. 1
         to 3 questioned correctness of the decree and judgment passed
         by learned Additional District Judge, Osamabad in Regular Civil
         Appeal No. 89 of 1999 confirming the decree in Regular Civil
         Suit No. 62 of 1981 passed by the Civil Judge, Jr. Division, E
         Kallam. The High Court dismissed the Second Appeal holding
         that there was no question of law involved and therefore, the
         Second appeal was without merit.
; -t·          3. Learned counsel for the appellant submitted that while     F
         issuing notice in the Second appeal, the High Court categorically
         observed as follows:
              "The next ground argued by the learned counsel for the
              appellant is that the plaintiff did not pray for an inquiry with
              the mesne profit to be held under Order XX Rule 12 in the G
              plaint and in the absence of specific prayer for an inquiry
              into the mesne profits the same should not have been
              granted by the courts below. The said directions is
              contained in clause IV in the operative part of the judgment
              and decree of the trial court. The learned counsel for the H
    1085       SUPREME COURT REPORTS                    [2008] 1 S.C.R.


A          appellant has placed reliance of the judgment of the Apex
           Court reported in AIR 1952 Supreme Court 358
           Mohammad Amin and Others v. Vakil Ahmed and Others
           and to precise para 20 thereof. In this view of the matter
           issue notice before admission returnable in six weeks
B          touching only clause IV of the operative part of the order
           passed by the trial court directing the inquiry in regard to
           mesne profits under Order XX Rule 12. The respondents
           be intimated that the appeal will be finally heard and
           decided at admission stage."
C         4. It was, therefore, pointed out that the grant of mesne
    profit without any enquiry in terms of Order XX Rule 12 CPC
    was not permissible.
           5. There is no appearance on behalf of respondent.
D          6. In Mohammad Amin and Ors. v. Vakil Ahmed and Ors.
    [AIR 1952 SC 358) it was, inter-alia, observed as follows.
                "It was however pointed out by Shri S.P. Sinha that
           the High Court erred in awarding to the plaintiffs mesne
           profits even though there was no demand for the same in
E          the plaint. The learned Solicitor General appearing for the
           plaintiffs conceded that there was no demand for mesne
           profits as such but urged that the claim for mesne profits
           would be included within the expression "awarding
           possession and occupation of the property aforesaid
F          together with all the rights appertaining thereto." We are
           afraid that the claim for mesne profits cannot be included
           within this expression and the High Court was in error in
           awarding to the plaintiffs mesne profits though they had
           not been claimed in the plaint. The provision in regard to
G          the mesne profits will therefore have to be deleted from
           the decree. We dismiss the appeal of defendants 1 to 5
           and affirm the decree passed by the High Court in favour
           of the plaintiffs, deleting therefrom the provision in regard
           to mesne profits. The plaintiffs will of course be entitled to
H          their costs throughout from defendants 1 to 5."
                  GANPATI MADHAV SAWANT (D) BY LRS. v.                1086
                   DATTUR MADHAV SAWANT [PASAYAT, J.]

               7. The High Court while deciding the Second Appeal, failed A
.   ~-
    '
         to notice that while issuing notice it was categorically noted that
         the plaintiff had not prayed for an inquiry relating to mesne profit
         in terms of Order XX Rule 12 CPC and in the absence of any
         specific prayer for any inquiry into that aspect, the same could
         not have been granted.                                               B
               8. As rightly contended by learned counsel for the
         appellants that though at the time of issuance of notice the High
         Court had noted that this substantial question of law did arise
         for consideration, while deciding the second appeal, this aspect
         was lost sight of. In the circumstances it would be appropriate C
         to remit the matter to the High Court to consider that aspect.
              9. The appeal is allowed to the aforesaid extent with no
         order as to costs.
         K.K.T.                                   Appeal partly allowed. D