A claim for future mesne profits is a distinct cause of action and can be validly pursued even if not initially included in a decree for possession, negating previous res judicata arguments.

JUDGMENT :

ROHIT W JOSHI , J.

The present Second Appeal arises out of the judgment and decree dated 03.10.2022 passed by the learned District Judge-1, Bhandara in Regular Civil Appeal No.61/2018. By the said judgment and decree, the learned District Judge has allowed the aforesaid appeal, thereby quashing and setting aside the judgment and decree dated 11.11.2011 passed by the learned Civil Judge, Junior Division, Bhandara, in Special Mesne Profit Case No.1/2004, thereby dismissing the said mesne profit case.

02. The appellants had filed a suit for eviction and possession against the respondent being S.C.S. No.29/1997. The said suit was decreed vide judgment and decree dated 30.04.2002. It will be pertinent to mention that a prayer for enquiry into future mesne profit from the date of institution of the suit till the date of delivery of possession was also made in the plaint. Although the suit was decreed and mesne profit for the period preceding to the date of filing of the suit was also awarded, the decree is silent with respect to future mesne profits. The learned Civil Court did not pass decree directing enquiry into future mesne profits. The judgment is also silent on this aspect.

03. The plaintiffs thereafter filed an application purporting under Section 152 of the Code of Civil Procedure (C.P.C. for short) inter alia, seeking direction for enquiry into future mesne profit. The said application was registered as M.J.C. No.1/2002. The said application was rejected by the learned trial Court vide order dated 07.04.2003. The learned trial Court observed that the prayer made in the application was beyond the scope of Section 152 of the Code of Civil Procedure and that a relief which was not granted in the original judgment and decree would not be granted by taking recourse to Section 152 of C.P.C. The learned Court also observed that a relief which is not granted, is deemed to be rejected.

04. The plaintiffs challenged the said order dated 07.04.2003 before this Court vide Civil Revision Application No.156/2003. The said civil revision application came to be disposed of vide order dated 17.09.2003, which is at Page No. 104 and reads as under :-

“Heard.

By consent, the revision-petitioner shall be entitled to make an application for future mesne profits under Order XX Rule 12 of Code of Civil Procedure.

CRA is disposed of accordingly.”

05. Perusal of the order will demonstrates that the matter was not adjudicated on merits. This Court recorded consent of the parties to the effect that the plaintiffs shall be entitled to file application for future mesne profits under Order 20 Rule 12 of C.P.C.

06. In view of the aforesaid order, the plaintiffs filed Special Mesne Profit Case No.1/2004 praying for grant of future mesne profit. The defendant appeared in the said matter to contest the same. Apart from merits of the claim, the respondent also raised an objection that the proceeding was not maintainable since the decree passed in the suit for eviction did not include any direction for enquiry into future mesne profit and further, that the application for modification of the decree was also rejected. As regards order dated 17/09/2003 passed in the revision application, defendant contended that the consent was given for filing of mesne profit case, which does not mean that objection to maintainability of the said case was given up by the defendant.

07. The learned trial Court decreed the mesne profit case filed by the plaintiffs. The application was allowed, granting mesne profit at the rate of Rs.1.00 per sq.ft. from the date of institution of the suit i.e. 05/02/1997 till 31/12/2004 and at the rate of Rs.1.50 per st.ft. f