Rajiv Sahai Endlaw, J.
CM Nos.20772/2014 in RFA No.406/2013 & 20832/2014 in RFA No.351/2013 (both for exemption)
1. Allowed, subject to all just exceptions.
2. The applications are disposed of.
Review Petition No.559/2014, CMs No.20770/2014 (for stay) & 20771/2014 (for condonation of 284 days delay) in RFA 406/2013 & Review Petition No.562/2014, CMs No.20830/2014 (for stay) & 20831/2014 (for condonation of 284 days delay) in RFA 351/2013
3. The appellant seeks review of the judgment dated 27th January, 2014 of dismissal of RFAs No.351/2013 & 406/2013. The said appeals were preferred impugning the common judgment dated 7th February, 2013 of the Additional District Judge (ADJ) of dismissal of a suit filed by the appellant against the respondents and of allowing the counter claim therein filed by the respondents.
4. While the appellant/review applicant in its suit had claimed the reliefs of, (i) permanent injunction restraining the respondents from interfering with the peaceful ingress and egress of the appellant to an immovable property; (ii) mandatory injunction directing the respondents to remove the locks put by them on the said immovable property; and, (iii) recovery of Rs.10 lakhs as damages from the respondents, the respondents in their counter claim had sought, (a) recovery of possession of the said immovable property from the appellant; (b) recovery of amounts agreed to be paid by the appellant to the respondents for use of the said property; and, (c) recovery of future mesne profits / damages for use and occupation.
5. The appellant/review applicant preferred SLP(C) CC No.17592/2014 and SLP(C) CC No.17721/2014 against the judgment dated 27th January, 2014 of which review is sought. Vide order dated 10th November, 2014, the Supreme Court dismissed the Special Leave Petitions (SLPs) observing that 'in the facts and circumstances, we are not inclined to interfere'. However, it was left open to the appellant to seek review of the judgment dated 27th January, 2014 of this Court, 'if so advised' and it was further observed that the appellant 'will be at liberty to challenge such orders as may be passed in the event it become so necessary'. Armed with the aforesaid order of the Supreme Court, these review petitions with applications for condonation of delay in filing thereof and for stay of execution of the decree of the Trial Court have been filed.
6. The senior counsel for the appellant/review applicant was heard to an extent yesterday but upon queries being put by this Court, sought time to prepare better. Accordingly, the matter was posted for today. The senior counsel for the appellant/review applicant has been heard further.
7. The first contention of the senior counsel for the appellant/review applicant is that a decree for recovery of mesne profits pendente lite and future @ Rs.25,000/- per month and to be increased 10% every three years has been passed, without any enquiry under Order XX Rule 12 of the CPC being ordered. It is argued that the same is impermissible. Reliance in this regard is placed on Ganapati Madhav Sawant Vs. Dattur Madhav Sawant (2008) 3 SCC 183.
8. No merit is found in the said contention much less in exercise of review jurisdiction, for the following reasons:
(A) The decree for mesne profits has not been passed by this Court but was passed by the Trial Court. This Court has merely dismissed the appeals preferred by the appellant/review applicant;
(B) Admittedly, no such argument was raised at the time of hearing of the appeals;
(C) No such ground was even taken in the memorandum of appeals;
(D) The jurisdiction of review is not meant to give a second chance to the counsel to argue the matter;
(E) Even otherwise, the respondents/defendants/counter claimants having claimed the relief of recovery of possession of immovable property as well as mesne profits in the counter claim, while framing the issues, issues as to the entitlement of the respondents/defendants/counter claimants to the relief of recovery of possession as well as to the relief of mesne profits were framed and the parties led evidence thereon and the learned ADJ in the judgment decided all the said issues as he was mandated by the CPC, including as to the entitlement of the respondents/defendants to mesne profits and the rate thereof. The said aspect having already been decided in the final judgment, the question of ordering any enquiry under Order XX Rule 12 of the CPC did not arise;
(F) The need for ordering an enquiry under Order XX Rule 12 of the CPC, after pronouncing on the entitlement to the relief of recovery of possession, is felt where the Court has, while adjudicating on the entitlement for possession not adjudicated on the entitlement for mesne profits; I have in Chemons India Pvt. Ltd. Vs. Vijay Singh Sandhu 204 (2013) DLT 260 held that without raising any objection at the stage of recording evidence in the suit as to entitlement to and rate of mesne profits, it cannot be subsequently contended that a decree for mesne profits ought not to have been passed and an enquiry under Order XX Rule 12 CPC ought to have been ordered (SLP (C) CC No.3279/2014 preferred thereagainst was dismissed in limine on 21st February, 2014); another Single Judge of this Court also in Trivender Singh Vs. Motia Wanti MANU/DE/1823/2013 held that the statutory provision envisages that a suit for recovery of immovable property can be decreed alongwith a decree for mesne profits and that directing of an inquiry as to such mesne profits is in the alternate (SLP(C) No.25605/2013 preferred thereagainst was dismissed in limine on 27th September, 2013);
(G) When the aspect of mesne profits including quantum thereof is decided simultaneously with the aspect of entitlement to the recovery of possession, it would be travesty of law and procedure to again order an enquiry;
(H) The senior counsel for the appellant/review applicant faced therewith has no response.
9. All that the senior counsel for the appellant/review applicant could contend was that the respondents/defendants had in their counter claim not even claimed the relief of mesne profits.
10. However, a perusal of the counter claim shows the respondents/defendant/counter claimants to have claimed a decree for recovery of Rs.50,000/- per month from the date of institution of the suit till the actual and physical possession of the immovable property was restored by the appellant/review applicant to the respondents/defendants. Of course, the respondents/defendants have not used the expression 'mesne profits', however the claim in the counter claim is clearly for damages for use and occupation / mesne profits, during the period the appellant/review applicant continues to unauthorizedly hold possession of the property. It has as such been enquired from the senior counsel for the appellant/review applicant, whether not the appellant/review applicant also understood the said claim as a claim for mesne profits and if did not, whether the appellant/review applicant in its written statement to the counter claim had taken any such plea.
11. The senior counsel for the appellant/review applicant admits that no such plea was taken in the written statement to the counter claim. He however points out the issues framed and contends that the issue framed is also qua the entitlement of the counter claimant to the 'relief of damages' and not to the relief of 'mesne profits'.
12. I have enquired from the senior counsel for the appellant/review applicant, whether not the expression 'mesne profits' and 'damages for use and occupation' are used interchangeably and mean the same thing and whether the appellant/review applicant in the written statement or at any other time took any plea that the claim for damages would not be a claim for mesne profits and whether not the parties proceeded to and participated in the trial treating the claim of the respondents/defendants/counter claimants as of mesne profits.
13. The senior counsel could not controvert.
14. The senior counsel for the appellant/review applicant then contended that the reasoning in the judgment of the learned ADJ as well of this Court, for fixing the rate of mesne profits at Rs.25,000/- per month, that the same was the rate at which the appellant/review applicant had agreed to pay rent / use and occupation charges for the premises, is erroneous.
15. However, on attention of the senior counsel for the appellant/review applicant being drawn to the admitted agreement between the parties and which inter alia provides that upon the appellant/review applicant not paying the sum of Rs.10 lakhs to the respondents/defendants as agreed, the appellant/review applicant shall be liable to pay interest thereon @ 30% per annum, he states that even on that basis the rate would be about Rs.27,000/- per month and not Rs.25,000/- per month.
16. The calculation done by the counsel for the appellant/review applicant to arrive at Rs.27,000/- is clearly a misrepresentation. 30% per annum on Rs.10 lakhs is equivalent to Rs.25,000/- per month. The senior counsel agrees and states that the appellant/review applicant was calculating interest @ 30% per annum on Rs.11 lakhs. However, there is no reason for the appellant/review applicant to do so inasmuch as the agreement is clear that the said interest is to be calculated on Rs.10 lakhs and not on Rs.11 lakhs.
17. The senior counsel for the appellant/review applicant then contends that the said agreement cannot be looked at, being unregistered.
18. I have enquired whether any such plea was taken in the written statement or pressed at any stage.
19. The senior counsel for the appellant/review applicant states that such a plea was taken for the first time in the Supreme Court and wants me to peruse the SLP paper book.
20. I am afraid, the appellant/review applicant is putting the cart before the horse. In a civil suit proceeding, determination has to be on the basis of pleadings in the suit and not on the basis of pleadings in the SLP. Rather, I have enquired from the senior counsel, whether not the appellant/review applicant itself in its pleadings had admitted such an agreement for payment of interest @ 30% per annum on the amount of Rs.10 lakhs.
21. The senior counsel for the appellant/review applicant though not able to controvert, finally left it to this Court to decide.
22. I may record that the appellant/review applicant at the time of hearing of the appeals which led to the decision dated 27th January, 2014 (of which review is sought) had raised only the said argument and which was dealt with in the judgment of which review is sought by observing that the appellant/review applicant itself in its plaint had
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admitted the said fact and thus de hors the agreement, even if required to be registered, also there was admission of the appellant/review applicant to the said effect. In fact, the appellant/review applicant, as recorded in para 13 of the judgment of which review is sought, had stated that the appellant/review applicant is not interested in the property and was interested only in getting a refund of the monies paid by it to the respondents/defendants but which claim had not been made in the suit. 23. There is thus no merit in any of the arguments raised. 24. The senior counsel for the appellant/review applicant has not urged any other argument. Even otherwise, the review petition, rather than pointing out any error on the face of the record, is argumentative and drafted like an appeal and is beyond the scope of review jurisdiction. However, need to deal with the contents thereof does not arise, since sufficient time for oral hearing was given and no other argument except those dealt with above, has been urged. 25. Thus, without going into the aspect of delay in filing the review petitions, no case for review is otherwise found to have been made out. Dismissed.