V.K. Jhanji, J.@mdashShort question involved in this civil revision is as to what amount of court fee is leviable on the memorandum of plaint.
2. Plaintiff filed suit for declaration, possession and damages/mesne profits. In regard to the claim of mesne profits, he stated value for the purpose of court fee as Rs. 200/- and paid the court fee thereon. Defendant filed an application for issuance of a direction to the plaintiff to affix proper court fee on the memo or plaint. Upon contest, trial Court directed the plaintiff to determine the value of mesne profits for the last three years preceding the institution of the suit and pay court fee accordingly. Hence this civil revision.
3. It is contended by the learned counsel for the petitioner that the court fee paid by the plaintiff on the memorandum of plaint was correct because mesne profits were uncertain and, therefore, could not be assessed for the last three years preceding the filing of the suit. He further stated that in such suits plaintiff is always at liberty to state his own value and pay court fee thereon. In this regard, he placed reliance on
4. On the other hand, learned counsel for the defendant stated that in view of Order VI Rule 2 of the Code of Civil Procedure, plaintiff has to assess approximate amount of mesne profits which he put in his claim and pay court fee thereon. In this regard, he placed reliance on
5. After hearing the learned counsel for the parties and on going through the record, I am of the view that the order of trial Court does not call for any interference.
6. Suit for mesne profits are governed by Order VII Rule 2 of the CPC and the Court is empowered to pass a decree for mesne profits under Order XX Rule 12 of the Code of Civil Procedure.
7. A claim of mesne profits is in essence a claim for damages or compensation. There is a substantial difference between mesne profits, antecedents to the suit which may be always approximately valued as they have already accrued due during a definite period and mesne profits subsequent to the suit which at the date of plaint must be treated as uncertainable because it depends upon an uncertain element, namely, the period of time which would intervene between the date of the institution of the suit and the date of recovery of possession under the decree. The first category is governed by clause (i) of Section 7 of Court Fee Act and ad-valorem court fee is payable thereon whereas second category is governed by Section 11 of the Court Fee Act. For past mesne profits i.e. upto the date of filing of the suit, one can assess his claim by affixing a notional damages he has suffered, on the basis of rent etc. which the property adjoin- ing the property in dispute is fetching whereas for future, it is difficult to assess the same.
8. This issue game up for consideration before Hon''ble Apex Court in
"With regard to past mesne profits, a plaintiff has an existing cause of action on the date of the institution of the suit. In view of Order7 Rules 1 and 2 and Order 7 Rule 7 of the CPC and Section 7(1) of the Court Fee Act, the plaintiff must plead this cause of action, specifically claim a decree for the past mesne profits, value the claim approximately and pay court fee thereon. With regard to future mesne profits, the plaintiff has no cause of action on the date of institution of the suit and it is not possible for him to plead this cause of action or to value it or to pay court fee thereon at the time of institution of the suit. Moreover, he can obtain relief in respect of this future cause of action only in a suit to which the provisions of Order XX Rule 12 apply. But in a suit to which the provisions of Order XX rule 12 apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits and the Court may grant this general relief though it is not specifically asked for in plaint, xxxxx"
9. In view of the aforesaid law laid down by Apex Court, plaintiff is required to claim past mesne profits by valuing the claim approximately and pay court fee thereon. So far as future mesne profits are concerned, a fixed court fee as provided u/s 11 of the Court Fee Act shall be payable.
10. Case law laid down in case Commercial Aviation and Travel Company & Ors. (supra) and relied upon by learned counsel for the plaintiff has no applicability to the facts of the present case because in that case dispute was with regard to a partnership concern and rendition of accounts. In such cases no body is certain whether in a particular period firm was running into profits or losses. So, no approximate value for the purpose of court fee can be fixed.
11. Accordingly, this civil revision is dismissed with no order as to costs. However, plaintiff is granted two months time from the date of appearance before the trial Court to state the approximate value for the purpose of court fee for the past mesne profits and pay proper court fee thereon.
Parties are directed to appear before the trial Court on 11.12.2001.
