A court has the discretion to award future mesne profits even in the absence of a prayer in the plaint, and such relief can be granted at any time before the suit is finally disposed of.

K. SUBBA RAO, C.J. : -

This revision has been referred to a Division Bench by Satyanarayana Raju J.

1a. The facts are simple and are not in dispute. One Rachepalli Nagireddi filed O. S. No. 42 of 1948 on the file of the Court of the Subordinate Judge, Anantapur, for a declaration of his title to the plaint schedule properties and for a permanent injunction restraining the respondent from interfering with his possession of the properties. Pending the suit, the plaintiff died and the petitioner was brought on record as his legal representative.

She applied for, and obtained amendment of the plaint to include an alternative prayer for possession. But, even in the amended plaint, there was no prayer for future mesne profits. The first Court substantially dismissed the suit but, on appeal, the High Court reversed the judgment of the first Court and gave a decree granting the aforesaid two reliefs. But the decree did not give the relief for future mesne profits. The respondent preferred an appeal against the decree of the High Court to the Supreme Court.

Pending the appeal to the Supreme Court, the petitioner took possession of the properties through Court and thereafter she filed on 13-12-1951, I. A. No. 46 of 1952 under O. 20, R. 12, Civil Procedure Code, for assessment and for recovery of future mesne profits due to her from the date of the plaint till 15-10-1950, the date on which she took possession.

The respondent opposed the application on the ground among others that, as the petitioner did not ask for that relief in the plaint, she was not entitled to have that relief under O. 20, R. 12, Civil Procedure Code. The learned Subordinate Judge accepted his contention and dismissed the application. The Supreme Court appeal also was subsequently dismissed.

Before the dismissal of the appeal in the Supreme Court, the question of mesne profits was not raised before that Court and no directions in respect of that relief were given in the judgment of the Supreme Court. The above revision petition was filed against the order of the learned Judge dismissing the application for future mesne profits.

2. Learned counsel for the petitioner contends that a claim to future mesne profits is based upon a cause of action different from that for possession and that, therefore, an application for the said relief, though it was not asked for in the plaint, would be maintainable at any time before the suit is finally disposed of and, in the present case, as the application was filed before the suit was finally disposed of by the Supreme Court, it was maintainable.

Learned counsel for the respondent counters this argument by stating that it has been authoritatively decided by the Supreme Court that a Court has no jurisdiction to order future mesne profits, if there is no prayer to that effect in the plaint and, that apart, as the suit was finally disposed of by the Supreme Court, the petitioner not having taken direction of the Supreme Court before the appeal pending therein was dismissed, is now precluded from agitating any further the question of mesne profits in the suit.

3. A full Bench of the Madras High Court in Basavayya v. Guravayya, (1951) 2 Mad LJ 176 : ILR (1952) Mad 173 : (AIR 1951 Mad 938) (A), had to consider the scope of O. 20, R. 18, Civil Procedure Code i.e., the provision governing enquiries as regards profits in a partition suit and incidentally in the course of the judgment had also reviewed the law, interpreting the provisions of O. 20, R. 12, Civil Procedure Code. Though the question did not directly arise in that case, the learned Judges considered the scope of O. 20, R. 12, Civil Procedure Code, to support their conclusion on the interpretation of O. 20, R. 18, Civil Procedure Code. The observations, therefore, are of great weight and cannot be brushed aside or ignored as obiter dicta. Viswantha Sastry J., summarised the law bearing on that provision at p. 177 (of Mad LJ) : (at p. 940 of AIR) thus :

"In view however, of the con