Full Judgment
Kulkarni, J.
1. This is a revision by Respondent-3 Rajajai Singh against the order dated 27th July 1984, passed by the Civil Judge, Madhugiri, in Misc. No. 63 of 1983 allowing the same and amending the judgment and decree passed in O. S. No. 336 of 1966 so as include the relief of future mesne profits in the said judgment and decree and to order that there shall be an enquiry with regard to mesne profits under Order 20 Rule 12 C.P.C.
2. The parties have been referred to with reference to their position in the Court below.
3. The plaintiff-petitioner filed O. S. No. 336 of 1966 against Respondents-1 to 3 for a declaration of his title to the suit property and for possession. It was decreed against all the defendants on 25-9-1973. The defendants being aggrieved by the said decree filed R. A. No. 195 of 1973 in the Court of the Civil Judge, Tumkur. It was dismissed. The defendants approached this Court with R.S.A. No. 556 of 1975 This Court set aside the judgment and decree passed by the lower appellate Court and remanded the matter to the Court of the Civil Judge, Madhugiri, as a new Court of Civil Judge was established at Madhugiri. On remand, the lower appellate Court confirmed the decree passed by the Munsiff.
4. Thereafter the petitioner-plaintiff filed the present Miscellaneous Case No. 63 of 1983 under Sections 151, 152 and 153 C.P.C. praying that the judgment and decree in O.S. No. 336 of 1966 should be amended as there has been an omission to mention the plaintiff's prayer for future mesne profits.
5. It was resisted by the defendants.
6. The Court below allowed it. Hence the revision.
7. The argument of the Learned Counsel Shri Gopal is that when the decree passed by the Munsiff was silent about the award of the future mesne profits, it was not open to the Court below to allow the present application filed under Sections 151, 152 and 153 C.P.C. regarding the future mesne profits.
8. The plaintiff has made it clear in the plaint that he prays for future mesne profits also. The decree passed by the Munsiff has not stated specifically that the plaintiff's request for future mesne profits is rejected. This decree passed by the Munsiff has been affirmed by the lower appellate Court. The learned Author Shri Mulla has clearly stated in his C.P.C. 14th Edition, on page 13(sic)3 as :--
'The power of the Court to direct enquiry into future mesne profits is discretionary. In Maddanappa v. Chandramma : [1965]3SCR283 the Supreme Court held that whereas mesne profits prior to the suit cannot be awarded unless a claim therefor is made in the plaint, awarding mesne profits subsequent to the suit is governed by this rule and observed that 'when a suitable occasion arises it may become necessary to reconsider the decision in Mohd. Amin v. Vakil Ahmed (AIR 1952 SC 348) as to future mesne profits.' This would be so even if a claim for mesne profits is not specifically prayed for.'
This only goes to show that even if there is no specific prayer made by the plaintiff about the future mesne profits, it is for the Court to order award of the future mesne profits. The future mesne profits is only incidental to the relief of possession. When the Court grants the relief of possession, the incidental prayer for future mesne profits can be gone into by the Court unless the Court has specifically refused the relief. Therefore, under these circumstances, in view of the said clear opinion contained in Mulla's C.P.C. and in view of the clear principle laid by down the Supreme Court, it follows that so long as the prayer for future mesne profits is not rejected, it is open to the Court to enquire into the question of mesne profits. Therefore, under these circumstances, the argument of the Learned Counsel Shri Gopal in this connection is rejected.
9. Then the next question is whether an application to amend the judgment and decree to include the prayer for future mesne profits is maintainable under Sections 151, 152 and 153 C.P.C. Section 151 C.P.C. is only meant to correct such unintentional mistakes committed by the Courts. Section 152 C.P.C. clearly says that clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties. The non-mention of the plaintiff's prayer for mesne profits in the judgment and decree is only an accidental slip or omission committed by the Court. Therefore even Section 152 C.P.C. can be very well resorted to in such cases. Section 153 C.P.C. is the general power given to the Court to amend any defect or any error in any proceeding in a suit. Therefore such an application as the one filed by the plaintiff is maintainable under Sections 151, 152 and 153 C.P.C. I am prepared to go even to the extent of saying that even without such an application the Court can investigate into the plaintiff's prayer for the determination of the future mesne profits. If he had filed a simple application for determination of mesne profits under Order 20 Rule 12(c) C.P.C. that would have met the requirement of the law itself. Therefore, under these circumstances, the Court below was justified in allowing the amendment sought for. The amendment allowed reads as follows :--
'It is hereby ordered that Mis. 63/83 is hereby allowed and it is directed to amend the judgment and decree in O. S. No. 336/63 so as to include the relief of future mesne profits in the said judgment and decree saying that there shall be an enquiry with regard to future mesne profits under Order 20 Rule 12 C.P.C.'
This amendment would only amount to correcting an accidental slip or error committed by the Court below itself. It does not fasten the liability specifically on any one of the defendants and an investigation has to be made into that question. The definition of the mesne profits as given in Section 2(12) C.P.C. reads as :--
'Mesne profits' of property means those 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.'
Therefore while investigating into the question of mesne profits, the Court will have to find out (1) as to which person is in possession of the property and (2) whether the possession of such a person is wrongful within the meaning of Section 2(12) C.P.C. and (3) what is the quantum.
10. With these observations, the revision is dismissed.