Dismissed

Dr. Rustom Behramji Colah(Decd.) - Dr.Aspi Framroze Golwala and Ors. v. M/S. Bharat Petroleum Corporation Ltd.

Bombay HC17 Mar 2009WP/1466/2009

Case brief

AI extract

What is this about?

This is a civil appeal arising from a writ petition. The single judge held that since no relief for mesne profits was claimed in the pleadings and the trial court passed a simplicitor decree for possession, the High Court could not entertain an application for future mesne profits as it has become functus officio.

What did the court decide?

The writ petition was dismissed as no interference in the exercise of writ jurisdiction was warranted.

Dr. Rustom Behramji Colah(Decd.) - Dr.Aspi Framroze… — Landlord and Tenant | Bombay HC (2009)

¶1

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

¶2

 CIVIL APPELLATE JURISDICTION

¶3

 WRIT PETITION NO.1466 OF 2009

¶4

 Dr.Rustom Behramji Colah (Deceased)
 & Ors. ...Petitioners

¶5

 V/s.

¶6

 M/s.Bharat Petroleum Corporation Ltd...Respondents

¶7

 Mr.P.S.Dani for Petitioners.

¶8

 Mr.Shashi K.Jain for Respondents.

¶9

CORAM: A.M.KHANWILKAR, J.

¶10

 MARCH 17, 2009.

¶11

 P.C.

¶12

 1. Heard Counsel for the Petitioners.

¶13

 2. In my opinion, the Court below has rightly

¶14

 rejected the Notice of Motion on the finding that
 in the present case, no relief of mesne profit was
 prayed by the Petitioners in the Suit as filed. In
 any case, the decree passed by the Trial Court was
 simplicitor for possession and no observation
 regarding mesne profit was made. That decree has

¶15

 : 2 :

¶16

 become final.

¶17

 3. In the circumstances, reliance placed on

¶18

 the decision in the case of Babburu Basavayya &
Ors. vs. Babburu Guravayya & Anr. reported in
AIR (38) 1951 Mad. 938 (Full Bench) will be of no
 avail. As a matter of fact, the observations in
 the said decision are in the context of sharing of
 profits accruing from lands pending the Suit for
 partition between the family members. It is not a
 case of simplicitor Suit for possession and mesne
 profit. On the other hand, the Apex Court in the
 case of R.S.Maddanappa (deceased) after him by his
legal representatives vs. Chandramma & Anr.
reported in AIR 1965 SC 1812, in Para 17 while
 referring to its earlier decision in the case of
Mohd. Amin v. Vakil Ahmed reported in 1952 SCR
1133 has noted that if the Plaintiffs had not
 claimed mesne profits at all in their Plaint but
 the High Court passes a decree in the Plaintiffs
 favour not only for possession but also for mesne
 profits, that cannot be countenanced.

¶19

 4. To get over this position, Counsel for the

¶20

 : 3 :

¶21

 Plaintiff submits that at least the relief of
 future mesne profits can be considered for which
 reliance is placed on the latter part of Para 17 of
 the same Apex Court Judgment. Once it is noticed
 that no relief of mesne profit was claimed and no
 decree in that behalf has been granted and the
 decree has been allowed to become final, the
 question of Court entertaining Application for
 future mesne profit after the execution of the
 decree does not arise as it has become functus
 officio.

¶22

 5. In the circumstances, no interference in
 exercise of writ jurisdiction is warranted.
 Dismissed.

¶23

 6. At this stage, Counsel for the Petitioners
 submits that this decision should not come in the
 way of the Petitioners in filing substantive Suit
 for damages against the Respondents and that Suit
 will have to be decided on its own merits. It is
 not necessary to clarify the position except to
 observe that such Suit, if filed, will have to be
 decided in accordance with law on its own merits.

¶24

 : 4 :

¶25

 A.M.KHANWILKAR, J.

Dr. Rustom Behramji Colah(Decd.) - Dr.Aspi Framroze Golwala and Ors. v. M/S. Bharat Petroleum Corporation Ltd.

Case brief

What is this about?

What did the court decide?

Dr. Rustom Behramji Colah(Decd.) - Dr.Aspi Framroze Golwala and Ors. v. M/S. Bharat Petroleum Corporation Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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