AN APPEAL AGAINST AN ORDER PASSED IN A MESNE PROFIT CASE IS NOT A CONTINUATION OF ORIGINAL SUIT PROCEEDINGS FOR EVICTION AND POSSESSION.

JUDGMENT - A.A. DESAI, J.:---This revision raises a question whether appeal against an order passed in a Mesne Profit Case, is a continuation of original suit proceedings for eviction and possession.

2. The non-applicants/plaintiffs in 1963 inducted applicant defendant as a tenant in breach of clauses 22 and 23 of the Rent Control Order. The plaintiffs filed a suit bearing No. 834 of 1966 for eviction, possession and future mesne profits. The applicant defendant resisted the claim amongst other on the ground that proceedings for eviction and possession are not tenable for want of requisite permission from Rent Controller. The learned trial Court rejected the plea and on 19-12-1968 decreed the suit. The decree for eviction, possession and enquiry into future mesne profits has been confirmed in 1970 by this Court in Second Appeal. The non-applicants by executing decree, on 22-12-1972 took possession of the suit premises.

3. The decree-holders/N. As. thereafter on 29-11-1975 filed Mesne Profits Case No. 21 of 1975. The learned trial Court on 14-12-1982 awarded mesne profits at the rate of Rs. 200/- per month. The decree holders/N. As. since dissatisfied, preferred an appeal, wherein the judgment-debtor/applicant filed the cross-objection . During the pendency, the Supreme Court in (Nanakram v. Kundalrai)1, 1986(3) Bom.C.R. 98 declared that contravention of Clause 22 of Rent Control Order does not render the contract between the landlord and tenant as void. The applicant-defendant, therefore, on 11-8-1987, under Order 41, Rule 2 of the Code, applied for permission to incorporate additional grounds in his cross-objection. The applicant-defendant proposed to urge that judgment and decree passed on 19-12-1968 is null and void since the suit was instituted for eviction and possession without permission of the Rent Controller. The applicant-defendant further proposed to urge that the original decree being a nullity, no final decree can be passed under Order 20, Rule 12 of the Code. Hence, the order dated 14-12-1982 awarding mesne profits is liable to be set aside.

4. The learned Appellate Court held that the suit proceedings are not subsisting and the decree for eviction, possession and mesne profit has become final. It is observed that the present appeal is only against the order, ascertaining the mesne profits and the original decree cannot be re-opened and the applicant is not entitled to re-agitate on the question of validity of decree for recovery of possession. The learned appellate Court, therefore, refused the permission for addition of grounds.

5. Mr. Mehadia submitted that Memo of Appeal is in the nature of plaint. As per Order, Rule 17, the parties are entitled to make amendment in the pleading at any state of the proceedings. It is, therefore, urged that the applicant has right to add the grounds in his cross-objection. Mr. Mehadia made a further submission that while considering the application for addition of grounds, the Court is not competent to examine the merit or availability of the grounds. He placed reliance on the decision reported in (Mangal Das v. Union of India)2, A.I.R. 1973 Delhi 96 I perused the decision. In para 5, the Court has observed that the effect of recording of finding on the merits of the plea sought to be raised by way of amendment and then refusing to allow the amendment, was to shut out the plea of the petitioner , with the result that the party would not have the advantage of canvassing the said plea later on in appeal against the judgment in the suit as the plea would not be in the plaint. According to me, this ruling observes that merit of the plea raised cannot be examined at the stage of considering the application for permission for addition of grounds. However, it is not explicit there from, that the Court has no jurisdiction to examine the availability of the grounds in the proceedings pending before him. Even if Memo of Appeal is treated to be analogous to the pleadings, Order 6, Rule 17 p

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