ORDER
Srinivasan, J.
1. This is an application for fixing the future mesne profits at Rs. 1,500 per month in respect of the half share of the applicant. In the suit a decree has been passed in favour of the applicant declaring her half share in the suit property. It is also decreed that she is entitled to mesne profits in respect of the suit property at the rate of Rs. 300 per month for three years prior to the filing of the suit i.e., 21.11.1981. The decree also declares that future mesne profits shall be decided in separate appropriate proceedings. Accordingly when this application was filed, an order was made by the Court directing ascertainment of mesne profits and a Commissioner was appointed therefor. Later the Commissioner was relieved of his responsibility and the Master was directed to take evidence and ascertain the mesne profits. The Master has passed an order on 24.10.1986 fixing the mesne profits at Rs. 1,400 towards the share of the applicant. The Master has discussed the evidence adduced before him in detail for arriving at the said conclusion.
2. The order of the Master is challenged by the respondent in the application. Several contentions have been put forward by learned Counsel for the respondent. The first contention is that the decree-holder has not given evidence in the enquiry though she was P.W. 3 in the main suit. According to learned Counsel when the decree-holder failed to give evidence herself, the evidence let in by her could not be accepted. I do not agree with this contention. It is a question of ascertaining the mesne profits. The decree-holder may not personally be aware of the income that may be fetched in the locality for similar properties. But, that would not prevent the decree-holder from letting acceptable evidence regarding the quantum of mesne profits before court. Hence, the fact that the decree-holder has not examined herself is not a matter to be taken into account for negativing the claim made by the decree-holder.
3. The second contention urged is that the value of the improvements made to the building by the respondent has not been considered by the Master. It is also argued that the benefits derived from the improvements madeby the respondent should have been taken into account before fixing the mesne profits. This contention is not acceptable for the simple reason, that the question of improvement was decided against the respondent in the main suit itself. The Court held that the respondent failed to prove that he effected any improvement. The court observed as follows:
There is no evidence about the improvements made by the defendant, as the defendant has not examined himself as a witness. The defendant, therefore, will not be entitled to any improvements made by him.
Hence, the respondent cannot claim any benefit on the basis of the improvement alleged to have been made by him.
4. The next contention is that the evidence of P.W. 1 which has been accepted by the Master, relates to the fair rent fixed in rent control proceedings with reference to a building. P.W. 1 has produced a copy of the order of this Court. C.R.P. No. 554 of 1983 dated 16.2.1984. That arose out of proceedings for fixation of fair rent under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. In that proceeding, fair rent was fixed at Rs. 373 for an extent of 360 sq.ft. It is contended by learned Counsel for the respondent that the fair rent for a building cannot be taken to be a relevant criterion for fixing mesne profits. According to him, the test applicable for ascertainment of mesne profits will be entirely different from the test application for fixing fair rent. Learned Counsel submits that the provisions of the Act prescribe certain essential requisites for fixation of fair rent and they cannot apply to the fixation of mesne profits. I do no accept the contention of Learned Counsel. Fair rent is rent which a building will fetch in a particular locality. The Rent Control Act prescribes certain conditions in order to ascertain fair rent. On the basis of that, such will be the rent which the building can fetch if it is let out normally in open market. That will be certainly a relevant criterion for fixation of mesne profits. 'Mesne Profits' has been defined in Section 2(12), Code of Civil Procedure, as profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits; but shall not include profits due to improvements made by the person in wrongful possession. It is well-known that very often the fair rent fixed under the Tamil Nadu Building (Lease and Rent Control) Act is less than the rent fetched in open market. Hence, mesne profits will be much more than the fair rent of a building fixed under the Tamil Nadu Buildings (Lease and Rent Control) Act. Hence, this contention of learned Counsel cannot be accepted.
5. It is next urged by learned Counsel for the respondent that Ex. A-1 order in C.R.P. No. 554 of 1983 was made on 16.2.1984. The relevant period for which the mesne profits have to be ascertained commences from 21.11.1981. It is argued by learned Counsel that an order fixing fair rent in 1984 cannot be taken into account for fixing mesne profits from 1981 onwards. There is a clear fallacy in this contention. The C.R.P. arose out of H.R.C. No. 3993 of 1980. Hence, the fair rent fixed in that proceeding related to the period commencing from 1980. Consequently the fair rent fixed in C.R.P. No. 554 of 1983 is quite relevant for the period which is under consideration in this proceeding.
6. The next contention urged by learned Counsel is that the evidence of P.W. 2 should not have been accepted by the Master. According to the evidence of P.W. 2, for an extent of 240 sq. ft. the rent was Rs. 325 per mensem in 1980. There is no reason whatsoever as to why the evidence of P.W. 2 should be rejected, I do not agree with the contention of learned Counsel for. the respondent on this aspect also.
7. The next contention urged by learned Counsel is that the annual value of the building in question was Rs. 4,368 during the relevant period and the same has been proved by the tax receipts produced by the respondent. According to learned Counsel, when the Municipal authorities, namely, Corporation of Madras, have fixed the annual rental value of the building, that should only be the criterion for fixing the mesne profits with reference to that building and there cannot be any other basis. In this connection, learned Counsel also places reliance on the sale deed under which plaintiffs 3 and 4, who have come on record as the owners of the property on 10.2.1986. Learned Counsel refers to Schedule 1-A in the sale deed. The annual rental value mentioned therein is only the same as fixed by the Corporation, namely, Rs. 4,368. According 'to learned Counsel, when plaintiffs 3 and 4 themselves have purchased the property showing the annual rental value at Rs. 4,368, they are not entitled to anything more than that by way of mesne profits. There is no substance in this contention. The annual rental value fixed by the Corporation, particularly with reference to the building in which the owner resides, does not have any reference to the income which the building will fetch in open market. When there is positive evidence available on record in the shape of depositions of P. Ws. 1 and 2 as well as records produced by them, there is no question of fixation of fair rent on the basis of the annual rental value fixed by the Corporation. Hence, this contention is rejected.
8. The next contention put forward by learned Counsel is that the plaintiff has claimed only a sum of Rs. 600 per mensem by way of future mesne profits in the plaint. In paragraph 10 of the plaint it is stated that the plaintiffs sent notice dated 11.10.1981 through their advocate calling upon the defendant to surrender possession and claiming damages for wrongful use and occupation of the suit property at Rs. 600 per month from 205.1971. In paragraph 11 of the plaint, it is stated that having regard to the location of the property and the prevailing rates of rent in the locality, the damages claimed by the plaintiffs for wrongful use and occupation of the schedule premises at the rate of Rs. 600 per month is moderate, reasonable and proper. In the prayer paragraph the plaintiffs have claimed damages for use and occupation at the rate of Rs. 600 per month for the past three years prior to the filing of the suit. With regard to future damages, the plaintiffs have claimed expressly at the rate of Rs. 600 per month from 1.11.1981 till the date of delivery. The question is whether the plaintiffs will be entitled to get a decree for more than what is claimed in the suit actually.
9. Before considering the question as a question of law, I would refer to one other passage in the plaint which is relevant in this case. After setting out the value of the reliefs claimed in the plaint, the following passage is found in the plaint:
The plaintiffs undertake to pay court fee which may become payable by them in respect of their claim for further damages to be ascertained later from 1st November, 1981 till the date of delivery of possession of the schedule mentioned property by the defendant.
This shows that the claim made in the plaint with regard to future mesne profits was not a restricted claim and that it has to be finally ascertained. The plaintiffs only indicated that they would be entitled at least to Rs. 600 per month by way of future mesne profits. It was only a sort of estimate of future damages in the opinion of the plaintiffs. That cannot be treated as the final claim made by the plaintiffs.
10. Under Order 7, Rule 2, Code of Civil Procedure, where the plaintiffs sue for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant of which the value he cannot, after the exercise of reasonable diligence, estimate, the plaint shall state approximately the amount or value sued for. It is only under this profits at Rs. 600 per mensem. The recitals in paragraphs 10 and 11 as well as in the prayer paragraphs with regard to future damages will not show that the plaintiffs conclusively intended to claim only Rs. 600 per mensem by way of future damages. A reading of the entire plaint shows that the plaintiff wanted future damages to be ascertained by court and assured the court that they will pay the court fee after the future mesne profits are ascertained.
11. Learned Counsel for the applicant invited my attention to the judgment of a Division Bench of Kerala High Court in Saraswathi Pillai v. Parameswara Kurup 1977 K.L.T. 638. The question whether plaintiff who has claimed a particular amount by way of future mesne profits in the plaint can claim more than that amount after the same is ascertained on enquiry under Order 20, Rule 12 Code of Civil Procedure, was considered by the Division Bench and it was held that the plaintiff was entitled to make such a claim and he could get a decree for a higher amount than what is claimed in the plaint. The Division Bench relied on the judgment of another' division bench reported in K.C. Alexander v. Nair Service Society Limited : AIR1966Ker286 , and extracted a passage therefrom. It is useful to extract the same passage here also, which is as follows:
It is pointed out on behalf of the 1st defendant that the claim made in the Plaint in respect of mesne profits is only at the rate of Rs. 5,000 per annum and it is contended that the decree cannot award anything more. This is to misunderstand the nature of the claim for mesne profits made in this particular case and the nature of such a claim in general. Having regard to the definition of 'mesne profits' in Section 2(12) of the Code, it is apparent that mesne profits are something which a plaintiff cannot evaluate and which it is solely for the court to determine on the evidence before it. As in a suit for an account, the plaintiff can only mention rough figure as the amount which will be found due to him, and that is why the second paragraph of Order 7, Rule 2 of the Code makes an exception to the general principle laid down in the first paragraph that in a suit for money the plaint shall state the precise amount claimed and says that when the claim is for mesne profits, or for an amount which will be found due on taking unsettled accounts, the plaint need only state approximately the amount sued for. Section 11 of the Court-fees Act, 1870 makes the position even clearer. It shows that the claim in a suit for mesne profits is only a rough estimate even if a precise amount is stated and that it is for the court to ascertain the true amount. And this can be in excess of the amount claimed. For, it says that in suits for mesne profits or for an account, if the profits or amount decreed are in excess of that claimed, the decree shall not be executed until the difference in court fee is paid. In this particular case, the relief sought in respect of mesne profits (by prayer No. 2 in the plaint) is that the court should award all profits received by the defendants from the property, both before and after the institution of the suit, at the rate estimated by 'the plaintiff at 35625 fanams (Rs. 5,000) per annum. This, it seems to us, is just what is required by Order 7, Rule 2 of the Code.
12. The Bench referred to the fact that the judgment in K.C. Alexander v. Nair Service Society Limited : AIR1966Ker286 , was affirmed by the Supreme Court in Nair Service Society Ltd. v. K.C. Alexander : [1968]3SCR163 . No doubt, the Supreme Court had no occasion to consider the question specifically as no argument was advanced before that court on the question of mesne profits. The decree of the Kerala High Court was confirmed on that aspect of the matter.
13. I am in agreement with the reasoning of the Division Bench of the Kerala High Court in the two cases referred to above. Hence there is no impediment in granting a decree in favour of the application for an amount higher than that mentioned in the plaint.
14. The next contention urged by learned Counsel is that the building was not rented out to any person by the respondent and he was throughout occupying the same himself. It is therefore argued that mesne profits should not be fixed on the basis of rent which it could have fetched. I have already extracted the definition of 'mesne profits' in Section 2(12) of the Code. It refers not only to the profits actually received but also profits which might with ordinary diligence have been received. Hence there is no substance in this contention.
15. It was next urged that P.W. 1 (first plaintiff) in the suit gave evidence as follows:
A. At present it will fetch Rs. 1,000 to Rs. 2,000 per month.
Q. Tell the Court how much you have claimed in the plaint.
A. In order to avoid payment of court fees we have claimed lesser rent at Rs. 600 per month. Again, she has deposed in cross-examination as follows:
Q. You said that the property will fetch Rs. 1,000 or Rs. 2,000 per month. How do you know it?
A. My Advocate told me and my sister's husband told me that the property will fetch Rs. 1,000 or Rs. 2,000 per month.
Q. Then why do you confine it to Rs. 600 per mensem?
A. Since I do not have the means to pay any Court-fee, I have confined it Rs. 600.
Learned Counsel places reliance on the above passages and submits that the first plaintiff was the only person who spoke about the mesne profits and that her evidence was worthless as seen from the above passage. Learned Counsel for the applicant points out that this application has been taken out only by the second plaintiff and in so far as the first plaintiff is concerned, the suit was dismissed and an appeal is pending against the same. The second Plaintiff is not bound by the above evidence. Even otherwise, the evidence referred to above would not militate against the positive evidence which has been adduced by the applicant in the enquiry before the Master. The evidence of P.W. 1 in the suit does not prevent this Court from accepting the evidence of P.Ws. 1 and 2 in the enquiry before the Master.
16. The last contention of learned Counsel for the respondent is that according to the defendant when he purchased the property in 1970 the rental income was only Rs. 60 per month and that should have been the basis for fixing the mesne profits. I do not agree. The relevant period for which the future mesne profits is directed to be ascertained is from 21.11.1981. The rent which prevailed in 1970 has nothing to do with the mesne profits for the period in question. In the circumstances, the contentions of learned Counsel for the respondent against the acceptance of the order of the Master are rejected. The order of the Master is accepted. This mesne profits payable by the respondent to the applicant from 21.11.1981 is fixed at Rs. 1,400 per month towards the share of the applicant.