Allowed

Pushpalata S. Sharma v. Brij Madanlal Sharma and Ors.

Bombay HC2 Aug 2024IA/624/2024

Case brief

AI extract

What is this about?

Interim application to delete the name of a deceased defendant and amend the plaint in a suit decree with a pending mesne profits inquiry. The court held such an inquiry is a continuation of the suit, so the application is maintainable, and allowed it.

What did the court decide?

Amendment deleting deceased Defendant No.1 from the cause title allowed; amendment within 14 days, amended copy served within 7 days thereafter; no order as to costs.

Pushpalata S. Sharma vs Brij Madanlal Sharma and Ors. — Property and Title | Bombay HC (2024)

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41 IA 624.24 in S 1342.2003 ...doc Dusane

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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INTERIM APPLICATION NO.624 OF 2024 IN SUIT NO.1342 OF 2003

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Pushpalata Sohanlal Sharma …Applicant/ Plaintiff In the matter between : Pushpalata Sohanlal Sharma ...Plaintiff V/s. Brij Madanlal Sharma & Ors. ...Defendants

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Mr. Mahek Kamdar (On VC) i/by Kanga & Co. for Applicant.

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Mr. Malcolm Singapaori (On VC) a/w Mr. Yash Sinha i/by Tushar Goradia Advocates for Defendant Nos. 2a and 3.

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Mr. Yatin Malwankar for Respondent- Rekha Sharma.

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CORAM : MADHAV J. JAMDAR, J. DATE : 9^th October 2024

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P.C. :

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The Interim Application is taken out for deletion of the name of Defendant No. 1 from the cause title of the captioned suit and to make other consequential amendments in the Plaint. It is stated in the Interim Application that the Defendant No.1 has passed away on 4^th December 2023.

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It is the contention of learned Counsel for the Defendants that

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the Suit itself is disposed of on 7^th August 2015 and therefore the

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1/5

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41 IA 624.24 in S 1342.2003 ...doc Dusane

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Application is not maintainable.

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The operative part of the judgment and decree passed on 7^th August 2015 in Suit No. 1342 of 2003 is as follows:

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“1. The plaintiff is declared to be the owner of the suit premises being Flat Nos.1 and 2 on the ground floor and a garage and servants' quarters in building Indrayani situate at Sophia College Lane, 61D, Bhulabhai Desai Road, Mumbai 400 026. It is declared that the defendants have no right, title and interest in the above suit premises or in the share certificate bearing No.7 for share Nos.31 to 35 which has been issued in the name of the plaintiff, Pushpa S Sharma.

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The plaintiff shall be entitled to be handed over and the defendants shall handover the share certificate of the above suit premises taken by Madanlal from the then secretary of the society on 20th February, 1984 to the plaintiff.

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The defendants shall handover vacant and peaceful possession of the suit premises to the plaintiff within 8 weeks from today.

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The plaintiff shall be entitled to mesne profits on account of the wrongful occupation of the defendants in the suit premises. The plaintiff shall be entitled to pursue her claim for mesne profits before the Commissioner for taking accounts in accordance with the rules of this Court in that behalf .

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The defendants shall pay costs of the suit fixed at Rs.2 lacs to the plaintiff.”

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(Emphasis added)

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41 IA 624.24 in S 1342.2003 ...doc Dusane

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Clause No.4 of the operative part of the judgment and decree dated 7^th August 2015 clearly directs that the Plaintiff shall be entitled to mesne profit on account of the wrongful occupation of Defendants in the suit premises and further that the Plaintiff shall be entitled to pursue her claim for mesne profits before the Commissioner for taking accounts in accordance with the rules of this Court in that behalf.

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Learned Counsel for the Applicant/Plaintiff relies on the judgment of the Supreme Court in the case of Choudappa & Another Vs. Choudappa since Deceased by LRs and Others¹ . He relies on paragraph nos. 11,12 and 13 of the same, which read as under:

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“ 11 . The aforesaid analogy with regard to the preparation of the final decree pursuant to the preliminary decree for partition can very well be applied to the cases where a decree is passed with a direction to hold an inquiry with regard to determination of mesne profits . This is evident from the plain reading of Order XX Rule 12 CPC For the sake of convenience, Order XX Rule 12 CPC is reproduced herein below:—

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“12. Decree for possession and mesne profits.—

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(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree—

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(a) for the possession of the property;

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(b) for the rents which have accrued on the property during the period prior to the

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1 (2024) SCC Online SC 2557

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41 IA 624.24 in S 1342.2003 ...doc Dusane

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institution of the suit or directing an inquiry as to such rent;

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(ba) for the mesne profits or directing an inquiry as to such mesne profits;

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(i) the delivery of possession to the decreeholder,

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(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or

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(iii) the expiration of three years from the date of the decree, whichever, event first occurs.

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(2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.”

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12 . It is in the light of the aforesaid provision that the Court of first instance while passing the judgment and order dated 12.07.1973 had specifically stated as under:

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“ An inquiry be held regarding future mesne profits of the said suit lands from the date of the suit, that is 249-1963 under Order 20 Rule 12(a) CPC”

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13 . Now, such an inquiry is nothing but a continuation of the suit and is in the nature of preparation of the final decree and as such, it cannot be said that any application moved as a reminder for completing the inquiry is barred by limitation or is liable to be dismissed on the ground of delay or laches .”

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(Emphasis added)

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4/5

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41 IA 624.24 in S 1342.2003 ...doc Dusane

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Thus, there is no substance in the contention raised by the learned counsel for the Defendants that the Suit is disposed of by Judgment and Decree dated 7^th August 2015 and therefore the Interim Application is not maintainable.

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Accordingly, Interim Application is allowed in terms of prayer clause (a).

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Amendment be carried out within a period of 14 days from today. Amended copy be served on all the Defendants within 7 days thereafter.

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The Interim Application is disposed of in above terms with no order as to costs.

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(MADHAV J. JAMDAR, J.)

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Pushpalata S. Sharma v. Brij Madanlal Sharma and Ors.

Case brief

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Pushpalata S. Sharma v. Brij Madanlal Sharma and Ors.

Case brief

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