Final Order 1

Order Details: Copy of Judgment
Pdf Text: IN THE COURT OF SMALL CAUSES AT MUMBAI
(APPELLATE BENCH)
(BANDRA BRANCH)
[CNR MHSCA30015392022]
REVIEW APPLICATION NO.2 OF 2022
IN
MISC. APPEAL NO.40 OF 2022
IN
MESNE PROFIT APPLICATION NO.1 OF 2011
IN
RAE SUIT NO.20 OF 1993
Mr. Caesar De’sa, of Bombay … Applicant
(Org. Respondent)
V/s.
M/s. Atlas Copco Ltd., …Respondent
(Org. Appellant)
Mr. Mayank A. Chandan, Advocate for Applicant.
Ms. Priti Ramani, Advocate for Respondent.
Coram :Smt. A.S. Khadse
Additional Chief Judge
And
D. R. Mali, Judge
Court Room No. 31
Date : 09.12.2024
JUDGMENT : (Per A. S. Khadse, Additional Chief Judge)
1. By filing this review petition, the applicant has
prayed for making review of order dated 14.0.2022 passed by
predecessor of this court in Mis. Appeal No. 40 of 2022.
2. The applicant is original plaintiff and respondent is
original defendant. (Hereinafter, both the parties are referred
as per their said nomenclature in the said original suit.)
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In brief, facts of the case are as under :-
3. Admittedly, RAE Suit No.20 of 1993 (hereinafter
referred as ‘original suit’) is filed against defendant on the
grounds set out in the plaint. As per the judgment and decree
dtd.18.03.2010, the original suit has been decreed. In
pursuance thereof, plaintiff has filed mesne profit application
no.1 of 2011 for determination of mesne profit, it came to be
allowed as per order dtd.13.06.2019. Being aggrieved by the
same, defendant had filed Misc. Appeal No.40 of 2022.
4. According to plaintiff, as per order dtd.14.09.2022
in the said misc. appeal the defendant is directed to pay
Rs.50,000/-(Rupees Fifty Thousand only) per month as mesne
profit with interest @ 6% p.a from the date of decree in the
original suit w.e.f 18.03.2010 until the date of delivery of
possession of suit premises i.e.17.09.2012 with proportionate
costs of application to the plaintiff. That means, he is not
entitled to get the said amount of interest till actual payment of
all arrears of mesne profit to him by the defendant. Due to
oversight the predecessor of this court is erred in not directing
the defendant to pay the interest @6% p.a on the said amount
till actual realization of the entire amount. Thus, there is an
ambiguity in it. The same are sufficient reason for making
review/modification of said order dtd.14.09.2022. Therefore,
he has filed the said review application and prayed for the
same.
5. The defendant opposed the said application by
filing it’s reply (Exh.12) for the detail reasons mentioned
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therein. In it, it has stated that the said application is filed
belatedly without any basis, no case is made out in respect of
the same as there neither discovery of new and important
matter nor any mistake or error apparent on the face of the
record. It has further stated that as per the prayer of the
plaintiff in his mesne profit application no.1 of 2011, the said
order came to be passed, inspite of it incorrect submissions are
made in the said application. It has further stated that already
plaintiff has received entire amount from it. For the said
reasons, it has prayed for dismissal of application with
exemplary costs.
6. After considering pleadings, documents on record
and arguments of learned counsel for both the sides, the
learned predecessor of this court has passed the said order.
Against it, the plaintiff has preferred this review petition and
prayed to review/modify the order dtd.14.09.2022 by directing
the appellant to pay the entire amount of mesne profit with
interest @ 6% p.m. till actual payment.
7. On the basis of rival submissions of both the
parties following points arises for our consideration. We have
given our findings thereon for the reasons stated in subsequent
paras.
Sr.No
.
Points Findings
1 Does plaintiff has made out a case to
make review of order dtd.14.09.2022 as
alleged? In the negative
2. What order? This review petition is
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dismissed with costs.
REASONS
8. Heard learned advocates for both the sides at
length. They have once again reiterated the grounds in the said
application, and reply, while advancing their oral argument
before this court. Hence, to avoid repetition the same are not
re-produced over here once again.
9. In support of case of plaintiff, his learned advocate
has relied upon a case law filed alongwith list (Exh.13) viz.
Charu Bhatnagar V. H. P. M. C (AIR 2006 Himachal Pradesh
119) . He has relied upon its para no.22. It reads as under:-
“
In the circumstances, the plaintiff is not
entitled to any interest till the decree of the
trial court as her title over the fruits in
question was under cloud. She would only
be entitled to interest at the rate of 6% per
annum in terms of section 34 of the Code of
Civil Procedure from the date of decree fill
the realization of the amount in its entirety.
The question is answered accordingly.”
AS TO POINT NO.1:
10. It is pertinent to note that there is no rejoinder
filed to the reply (Exh.12) of defendant. Also, letter dated
08.12.2022 filed by the defendant alongwith the said reply is
also not disputed by the plaintiff. The said letter states that
defendant had paid Rs.17,86,566/- to plaintiff by cheque
bearing no.069652. It further states that the said cheque had
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been received by the advocate for plaintiff on 08.12.2022 at
6.10.p.m in view of his endorsement thereof.
11. In view of pleadings of both the parties and their
submission this court has gone through the record it appears
that plaintiff himself has prayed in his Mesne profit application
no.1 of 2011 that “to determine mesne profit till handing over
vacant possession of the suit premises only.” In pursuance of
the same, the predecessor of this court has determine the same
till the date of delivery of possession of suit premises as per
order dtd.14.09.2022. Thus, prima facie it appears that there
is no apparent error on the face of record of the said order.
12. In the said application plaintiff come with the case
that- “he is not entitled to get interest @ 6% p.a till actual
payment of all arrears of mesne profits to him by the
defendant. But, due to oversight the predecessor of this court
has not granted accordingly, it is an error.” However, in view of
above discussion no much substance is found therein. It
appears that he is claiming something more. The same is not
the scope of review. Besides, consideration of the same by this
court would amount to sit in appeal. Thus, for the said reasons
the said case of plaintiff does not come in the ambit of review.
Resultantly, plaintiff fails to make out a case for making review
of the order dtd. 14.09.2022 as alleged. Therefore, we answer
point no.1 in the negative.
AS TO POINT NO.2:
13. In view of answer to point no. 1, there is no substance in
the said case of plaintiff, his advocate and grounds raised in this
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petition. Consequently, it needs to be dismissed. Hence, the order.
ORDER
This review petition is dismissed with costs.
I agree,
(D. R. Mali) (A. S. Khadse)
Judge Additional Chief Judge
C. R. No. 31 C. R. No. 31
09.12.2024 09.12.2024
Dictated on : 09.12.2024
Transcribed on : 09.12.2024
Checked & signed on : 09.12.2024
/home/pa31/VARSHA/C. R. No.31/December-2024/Review/2-2022 Review .odt
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