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IN THE HIGH COURT OF BOMBAY
S.M. Daud, J.
Indira Bhalchandra Gokhale (Mrs.) (since deceased
by her Executors) others... Appellants
Versus
Union of India, Secretariat, New Delhi another... Respondents.
First Appeal No. 450 of 1976, decided on 6-9-1989.
Advocates appeared :
C.R. Dalvi, with S.S. Pandit, for appellants.
Miss. S.M. Mutalik, A.G.P., for respondents
If plaintiff had brought a suit for compensation she would not have been entitled to mesne profits for more than three years preceding the date of wrongful occupation vide Article b7 of the Limitation Act, 1963. What cannot be done directly cannot be attained indirectly by taking recourse to the plea that Court is at liberty to give a direction as permitted by Order XX. Rule 12 (1) (b) of CPC. This provision has to be read consistently with the provisions of the Limitation Act and Court holds that for the past mesne profits plaintiff cannot get more than the mesne profits covering the period of three years preceding the institution of the suit.
Order 41, Rule 27- Production of additional evidence in appeal-Appellant finding that some material evidence which should have been produced before trial Court has been left out-Such evidence may till decision in his favour Requirement of certain contingencies to be filled before additional evidence is allowed-Held, none of contingencies are applicable and hence additional evidence not allowed.
Under Order XLI Rule 27 CPC production of additional evidence whether oral or documentary is permitted only in certain contingencies. The first contingency is the evidence sought to be produced in the appeal Court is that which the trial Court has refused to admit it ought to have been admitted. Next, is the contigenency where the evidence sought to be produced was not available to the party seeking to produce it notwithstanding the exercise of due diligence by him. The third contingency is the requirement of the Court of appeal for additional evidence so as to enable it to pronounce judgment. Neither of these contingencies is applicable to the present case. Defendants had ample opportunity when the case was before the trial Court to adduce the required evidence. Order XLI, Rule 27 CPC is not to be taken recourse to merely because a party at the stage of appeal finds that some material which could have titled the decision in its favour has not been produced but should have been.
2. The land in suit was purchased by the plaintiff from the Central Mutual Life Insurance Co. under a registered sale deed dated 16th April 1954. At the time the land was acquired it was laying vacant. The Defence of India Act, 1962 was enacted to provide for special measures to ensure the public safety and interest, the defence of India and civil, defence etc. It received the assent of etc. the President on 12-12-1962. Purporting to act under section 29(1) of the said Act, the Collector of Pune requisitioned lands located at Yerawada, Pune including the suit, land. In the order of requisition which is at Ex. 56 the interested person vis a vis the suit land was given out to be the Life Insurance Corporation of India. After the issue of the order of requisition the Collector of Pune passed an order for acquisition purported to be made under section 36 of the aforementioned Act. This order was of 31-3-1964 and is at Ex. 57. In this order, the plaintiff was shown as an interested person vis a vis the suit land. A copy of the order was addressed to the plaintiff's husband though the envelope in which the order was enclosed bore the name of the plaintiff and showed her to be residing at the same address as her husband. Plaintiff took exception to the order and this gave rise to an exchange of letters between her on the one hand and the Collector of Pune on the other. On 9-7-1968 an award was made and the compensation determined for the suit land was Rs. 6,048. When intimated of this determination, the plaintiff protested and filed a suit after service of the prescribed notice under section 80 C.P.C.
3. The plaint averred that the suit land was and continued to be a vacant plot. As soon as it had been acquired by her she had intimated respondent No. 2 the Collector of Pune as also the Pune Municipal Corporation of her having become the owner and had requested that her name be brought on their records so as to enable her to pay the revenue and taxes payable on the land. The order of requisition was per se bad in law as she had not been given notice of the same despite the fact that she had become the owner of the property aforementioned prior to the date of requisition. Compensation payable for the requisitioning of the property had not been determined and intimated to her. The order of acquisition was contrary to section 36 of the Act. Any action taken thereunder was void and ineffective to divest her of the title over the land. She consequently sought a declaration that the orders of requisition and acquisition were invalid and not binding upon her. Next, she sought the relief of possession and payment of Rs. 2,325/- representing compensation for the past wrongful use and occupation and determination of pendente lite and future compensation.
4. The written statement filed on behalf of the Collector defendant No. 2 is at Ex. 18. The claim advanced by the plaintiff was denied. In regard to the non-service of notice of requisition upon the plaintiff, defendant No. 2 contended that the records showed the land to be standing in the name of L.I.C and for that reason the notice was sent to that Corporation. It was not correct to say that the plaintiff had applied to the 2nd respondent to mutate the property in her name. The order of acquisition was in accordance with law. It was not correct to say that the acquisition was ultra vires. The land was acquired for the expansion of the existing Training Centre Bombay Engineering Group and Centre, Kirkee and was being used for the said purpose all along. The suit was not within time and was not maintainable in law. Defendant No. 1's written statement at Ex. 19 was more or less on the same lines, an additional plea being that the statutor
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