Tejkumar vs Subhashchandra - 1989 Supreme(MP) 762

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : M.L. Agarwal
For the Respondent: M.G. Upadhyaya

Headnote:(1) Civil Procedure Code, 1908 – 0. 33, R. 5 and 7 and O. 7, R. 10 – rejection of application under O. 33, R. 5 – can be barred on grounds provided there in return of plaint may be ordered while deciding question of indigency.
       (2) Civil Procedure Code, 1908 – 0. 7, R.10 and O. 33. R. 7 – question of over valuation of suit – rate of mesne profits – should be decided after enquiry before return of plaint.
        Short Note
       1. This appeal was earlier heard by this Court and on hearing the counsel, the matter was referred for the opinion of the Full Bench on the questions framed by me on 4 – 7 – 1988. The facts and the rival contentions of the learned counsel for the parties have already been referred in my order of reference dated 4 – 7 – 88, hence are not repeated here with a view to burden the order. Hon'ble the Chief Justice constituted the Full Bench, which heard the matter and concurring order on reference was passed on 12 – 8 – 1988, which was delivered by Hon'ble A. G. Qureshi, J. answering the questions in para 9 of the order of reference, which reads as under : –
       "In the result, the answers to the questions referred to us are that the Court while passing an order under O. 33, rule 5 C.P.C. can reject the application only on the grounds enumerated in O. 33 rule 5 C.P.C., however, the Court is not precluded from returning the plaint for presentation to the proper Court, if on the basis of the allegations made in the application/plaint it finds that the suit has been grossly over – valued or under – valued and as a result the suit is not within the pecuniary jurisdiction of that Court. The Court is also not precluded from examining the question of its pecuniary jurisdiction and pass orders under 0.7, R. 10 C.P C. even while deciding the question of indingency under O. 33, R. 7 C.P.C.".
       2. Held: After hearing the rival contentions of the parties and after going through the record, I am of the opinion that the order of return of the plaint deserves to be set aside with a direction to the trial Court to re – determine the objections of the respondents whether the suit is maintainable in the said Court or not or whether it bas to be returned for presentation to the proper Court. My reasons for the same are as under:
       3. After going through the pleadings admittedly, except para 22 and relief clause, there is nothing in the application how the plaintiff – appellant has reasonably valued the mesne profits @ Rs. 1200/ – per month. In para 12 of the application under O. 33, R. 1 C.P.C. there is a reference that the plaintiff is entitled for mesne profits from 8 – 6 – 77 because of wrongful possession of property this pleading too has not given any definite and positive material of the claim of the plaintiff. Under O. 7, R. 2 C.P.C. when a suit is for recovery of the money, the plaintiff has to state the precised amount claimed but where the plaintiff sues for the mesne profits, he has to estimate in the plaint and has to state approximately amount or value sued for. It would not be enough for him to value the relief or to value the suit for the purposes of the jurisdiction. The plaintiff was bound to state, in the body of the plaint, the material how he claimed Rs. 300/ – per month. which can be said to be reasonable mesne profits. Having not done so, the trial Court was right in ordering the return of the plaint as the suit Was over valued and the relief claimed was not based on certain, definite and positive pleadings in the plaint. The plaintiff thus put an arbitrary valuation and the Court was well within its jurisdiction, to give a finding, on the basis of the pleadings of the parties, that the suit was over valued. According to the mandate of S. 15 C.P.C., a suit has to be instituted in the Court of the lowest grade competent to try it and as the Court was of the opinion that for claiming mesne profits, an arbitrary valuation has been put, an order for return of the plaint was made for presentation of the same to the Court of competent jurisdiction.
       4. The order of the trial Court holding that the appellant was entitled to mesne profits, according to his 1/4th share @ Rs. 25/ – per month for 30 months, the mesne profits comes to Rs. 750/ – cannot be sustained. How the trial Court came to the conclusion, without any enquiry or trial that the appellant is entitled to mesne profits on the basis of the standard rent and the standard rent of the house is Rs. 100/ – per month and the share of the appellant is 1/4th, as such he is entitled to Rs. 25/ – per month only. This could not have been decided without recording any evidence and without coming to a definite finding about the mesne profits and about the right and share of the plaintiff. As per S. 2 (12) C.P.C., mesne profits from the tenant can be claimed more than rent rate. Therefore, according to the definition in the C.P.C. also, the question of mesne profits could not have been decided without an enquiry. The Apex Court in Nandita Bose's case [1988 (I) MPWN 26] has observed that the rate of mesne profits should be decided along with the all other issues. Moreover, the right and entitlement of the plaintiff III the share of the property, which has been sold and the question of mesne profits was not a question, which could have been decided merely on the basis of the pleadings of the parties but was a complicated and mixed question of fact and law. In such circumstances, the trial Court committed an illegality in deciding that the question of mesne profits, which the appellant would be entitled to is only @ Rs. 25/ – per month, in all Rs. 750/ – .
       5. In view of the above discussion, this appeal is allowed and the impugned order of the trial Court is set aside with a direction to the trial Court that without going into the question of the rate of mesne profits, which has to be decided along with other issues on merits, the trial Court shall re – determine the question whether the suit is over valued or properly valued. On the basis of the allegations made in the application/plaint, if it is found that the suit has been grossly over valued so as to avoid the Court of lowest pecuniary jurisdiction then it shall pass an order under O. 7, R. 10 C.P .C. for directing the plaintiff – appellant to present the valuation in the proper Court for deciding the question of indigency on the application of the plaintiff under O. 33, R. 7 C.P.C. 1988 (I) MPWN 26 followed. AIR 1960 MP 56, 1972 JLJ 664 and AIR 1963 All. 249 referred to.
       Appeal allowed.