The court has discretionary power to award mesne profit at a higher rate than claimed, but must provide sufficient reasons for doing so and give the parties an opportunity to be heard.

( 1 ) RESPONDENTS/plaintiffs have preferred this appeal under Section 100 of CPC being aggrieved by the judgment and decree dated 17/1/1990, passed by Additional District Judge, Harda Camp Sohagpur in Civil Regular Appeal No. 27-A/97 reversing the judgment and decree dated 9-12-1986 passed by Civil Judge, Class-II, sohagpur in Civil Original Suit No. 4-A/1984 regarding dismissal of the suit.

( 2 ) THIS appeal was admitted by this Court on dated 29-11-1990 on the following substantial questions of law : "whether the decree for mesne profits at the rate of Rs. 50/- per month from the year 1981 to the date of delivery of possession granted by the first appellate Court in excess of the claim made by the plaintiff in para 8 and relief Clause 12 (Kh) of the plaint

( 3 ) THE facts of the case are that Kishanlal the predecessor of the respondents' has filed a suit for possession and the mesne profit against appellants in respect of a plot situated on Survey No. 103 measuring 40' x 60' at village Ajabgaon, Tahsil Sohagpur. The mesne profit was claimed at the rate of Rs. 120 per annum. In written statement of the appellant the averments of the plaint are denied. The claim of mesne profit was also denied.

( 4 ) AFTER framing the issues the evidence was recorded by the trial Court and on appreciation of it the suit of the respondents was dismissed by the trial Court. On appeal the decree of the trial Court was set aside and the suit was decreed for possession and also for mesne profit @ of Rs. 50/- per month instead Rs. 120 per annum. Hence this appeal has been preferred and the same was admitted on the aforesaid substantial question of law.

( 5 ) LEARNED counsel for appellants has submitted that as per pleadings of the respondents in para 12 of the plaint, the mesne profit was claimed @ only Rs. 120 per annum thus appellate Court could not have decreed more than this as the Court cannot travel beyond the pleadings of the parties but contrary to this the mesne profit was awarded on a higher rate for which sufficient reasons have also not been supplied by thus such finding is not sustainable under the law and prayed for setting aside the same.

( 6 ) WHILE on the, other hand, Shri Ashish shroti, Counsel for respondents has submitted that the suit was filed on 21 -11 -1984 and the appeal was decided on 17th January, 1990 after more than six years. He fairly concedes that the mesne profit was claimed by respondents in the pleadings @ Rs. 120 per annum but simultaneously his version was that it was mentioned only on the basis of date of the suit on available cause of action. So far subsequent mesne profit is concerned, the Courts have vested discretionary jurisdiction to award the mesne profit by keeping in view the pendency and longevity of litigation and he placed his reliance on two decided cases of the Apex Court and prayed for dismissal of this appeal.

( 7 ) HAVING heard the learned counsel, I have gone through the record. It is true that the plaintiff has claimed the mesne profit only @ Rs. 120 per annum but it is awarded rs. 50 per month i. e. Rs. 600 per annum. In view of the law laid down by the Apex court in the matter of Gopalkrishna Pillai v. Meenakshi Ayal reported in AIR 1967 SC 155 the Courts are empowered to award the mesne profit on a higher rate in the facts and circumstances of the case. The Apex court has held as under :

"7. Order 20, R. 12 enables the Court to pass a decree for both past and future mesne profits but there are important distinctions in the procedure for the enforcement of the two claims. With regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of O. 7, Rr. 1 and 2 and O. 7, R. 7 of the Code of Civil Procedure and S. 7 (1) of the Court-fees Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately; and pay court-fees thereon. With regard to future mesne prof

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