The claim for past mesne profits must be made at the time of the institution of the suit and is subject to limitation, while the claim for future mesne profits is not time-barred if the cause of action had not accrued at the time of the suit.

JUDGMENT :

Sandeep K. Shinde, J.

The petitioner's Chamber Summons to amend the plaint was rejected by the Judge, City Civil Court on 5th September, 2015; against which this Writ Petition is preferred under Article 227 of the Constitution of India.

2. Petitioner's father was owner of the Flat, being Flat No.2 ("suit flat" for short) in the respondent no.4-Society. After the demise of the plaintiff's father and pursuant to the Will made by him, the suit flat was transferred in favour of his mother in the records of the Society. During her lifetime, mother recorded the name of defendant no.2 as a nominee in the books of defendant no.4, Society. Mother died in the year 2005. Respondents no.1 and 3 are brother and sister of petitioner and defendant no.2 is son of the defendant no.1.

3. It is the petitioner's case that, since his mother's death, the suit flat was lying vacant and respondent no.1 was in it's possession. Somewhere in September, 2007, defendant discovered a fact that, respondents no.1, 2 and 3 in collusion, with one another, agreed to sell the suit flat to the respondent no.5. Soon, thereafter, respondent no.5 applied to the Society for transfer of shares/membership, however, Society rejected the said application.

4. The petitioner in the circumstances filed suit in October, 2007 seeking declaration that, he has undivided one-third share in the suit flat and also sought vacant possession of the suit flat from the respondent no.5 herein. Pending suit, the petitioner applied for appointment of the Court Receiver and for injunction against creating third party rights. Vide order dated 12th July, 2010 the said application was allowed (Notice of Motion No. 1165 of 2010) wherein it is observed :

"3. In my view, on the facts as disclosed, defendant no.5 appears to be a person in whose favour the document has been executed only by a nominee who is not an heir since defendant no.1 who is the father of defendant no.2 is still alive. In the circumstances, since defendant no.5 is residing in the suit premises on the basis of what prima-facie appears to be a defective title, I am inclined to allow the prayer for Receiver subject to conditions. Notice of Motion is therefore, made absolute in terms of prayer clause-(a) subject to the condition that the Court Receiver to take only formal possession and will appoint defendant no.5 who is admittedly in actual physical possession, as an agent of the Court Receiver subject to royalty but without security. Notice of Motion stands disposed off."

5. In Appeal, Hon'ble Supreme Court modified this order as under :

"It is pointed out, with reference to the prayers in the suit, that there is no prayer made by the respondents for damages or mesne profits for use or occupation of the property in dispute. Under the circumstances, the requirement that the appellant should pay royalty is beyond the relief prayed for by the respondents.

We are of the view that what appellant says is correct. Under the circumstances, we modify the order passed by the Division Bench and direct that the Court Receiver may continue to have formal possession of the property in dispute, the factual possession of which is with the appellant. The appellant will continue as the agent of the Court Receiver. However, he will not be obliged to pay any royalty for use or occupation of the property in dispute."

6. On 24th March, 2015 plaintiff filed the Chamber Summons and sought amendment of the plaint, under Order 6 Rule 17 Civil Procedure Code. In the schedule of amendment, the plaintiff would assert that, the defendant no.5 having purchased the suit flat from the defendant no.2 vide transfer deed dated 16th May, 2006, has acquired no right, title or interest in the suit flat and thus, he is a tresspasser and he is liable to pay mesne profits for unlawfully taking possession and remaining in possession of the suit flat at the rate of Rs.67,000/- per month or at such higher rate as may be determined by the Court from the date he entered in