Plaintiff will be liable to pay the additional Court fees on the mesne profits payable till the date of judgment

Plaintiff will be liable to pay the additional Court fees on the mesne profits payable till the date of judgment

Bombay High Court

 Faredoon Maneckji Dalal vs Phiroze Bomanji Javeri

Decided on 24.4.1994

Equivalent citations: 1995 (4) Bom CR 512

Bench: A Shah

JUDGMENT A.P. Shah, J.

  1. On a plain reading of the section, it is clear that where a claim is for possession of immovable property and for past and future profits and future mesne profits are ascertained and decreed, an additional Court-fee will be leviable on such future profits under Section 13 before decree in respect thereof can be executed. It is required to be mentioned that under the old Code of Civil Procedure, the Court could determine the amount of mesne profits pendente lite up to the institution of the suit and pass a decree for it along with a decree for possession. The Court could not, under the old Act, determine the future mesne profits in the suit and pass a decree therefore. Under the present Code, the Court can determine past and future mesne profits in the suit itself and make a decree called a final decree for the mesne profits capable of execution. Therefore, where the plaintiff in his plaint for recovery of possession of immovable property claims a determination of his right to past and future mesne profits, his suit is a “suit for immovable property and mesne profits” in terms of Section 13. Mesne profits, past and future, are to be regarded in such a plaint as one entire claim for mesne profits. In such a case, the plaintiff approximately states the amount of past mesne profits which had already accrued to him at the time the suit is instituted and accordingly values the amount of mesne profits, which, at that time, was not capable of ascertainment, becomes so and is actually ascertained by the Court and a decree is passed thereon under Order XX, Rule 12. If the amount of mesne profits thus found and decreed exceeds the amount of past mesne profits approximately stated by the plaintiff, sub-section (3) of Section 13 says that the decree shall not be executed until the difference between the fee actually paid and the fee which would have been payable had the suit comprised the whole of the amount of profits or the amount so decreed would have been paid. Thus, Section 13 has made adequate provision for the collection of the deficit Court fee from the plaintiff depending on the decree ultimately granted by the Court.
  2. Similar provision contained in the Central Acthas been construed by various High Courts and it has been held that the plaintiff will be liable to pay additional Court fees on the mesne profits upto the date of the decree. In Veeran Chetti v. Veeran Chetti, A.I.R. 1938 Madras 727, it has been observed by Madras High Court :

“It is perfectly competent to the Court, without directing an inquiry, to pass a decree finally determining the amount of profits payable subsequent to the institution of the suit, if it is made out that it is not necessary to make such an inquiry and it cannot be said that such a decree is not final or is incapable of execution nor would it be in contravention of the provisions of Order 20, Rule 12…………

…..Where a claim is for possession of immovable property and past profits or where a claim is for possession of immovable property and for past profits and future profits, and future mesne profits are ascertained and decreed, a Court-fee will be leviable on such future profits under section 11 Clause (1), Court-fees Act, before decree in respect thereof can be executed. It is no doubt true that a claim for mesne profits subsequent to the date of suit is upon a cause of action which is not existing on the date of the suit, but nevertheless the Legislature has made an exception to the general rule by permitting a claim in respect thereof in order to avoid multiplicity of suits.”

The High Court of Patna has also taken a similar view in Dhanukdhari v. Ramadhikari, A.I.R. 1933 Patna 81. An inescapable conclusion, therefore, is that the plaintiff will be liable to pay the additional Court fees on the mesne profits payable till the date of judgment. Reference of the Taxing Master is answered accordingly.

  1. On the oral application of the learned Advocate for the plaintiff, the operation of this order is stayed for a period of eight weeks from today.

Reference by Taxing Master answered.

 

 

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