SANT RAMversusDHAN KAUR & ORS.

                  [2015] 12 S.C.R. 1029


                        SANT RAM                                A

                             v.
                   OHAN KAUR & ORS.
                    I.A. N0.4 OF 2014
                                                                B
                             IN
     (Special Leave Petition (Civil) No.13915 of 2008)
                   OCTOBER 16, 2015
            [J. CHELAMESWAR AND ABHAY                           c
                 MANOHAR SAPRE, JJ.]
     Supreme Court Rules, 1966 - Order XVIII r.5 -
Application under- Against the order of Registrar (J-11) of
Supreme Court, refusing to register the application for         D
clarification/interpretation of the order dated 21.4. 2009
passed by Supreme Court - Propriety of- In a suit, filed by
the predecessor-in-interest of the applicant, mesne profit
determined at Rs.2001- p.m.by the trial court - The same
was reduced to Rs.301- p.m. by appellate court and further      E .
confirmed by High Court ..:. In Supreme Court, the Special
Leave Petition was closed by order dated 21.4.2009 on the
basis of statement of the counsel for the applicant that he
did not want to press the prayer for mesne profit - The         F
execution petition of the applicant seeking execution of the
order of mesne profit@ Rs.301- p.m. was dismissed -
Revision petition thereagainst was also dismissed -
Applicant's application before Registrar (J-11) of Supreme
Court for clarification of the order dated 21.4.2009, was       G
dismissed - Hence, the application u!Or. XVIII r.5 - Held:
Only those issues can be given up by a party which are the
subject matter of lis before the Court - The issue for
adjudication before this Court was whether; the applicant was
                                                                H
                            1029
1030         SUPREME COURT REPORTS               [2015] 12 S.C.R.


 A     entitled to claim mesne profit for the balance amount
       i.e.Rs.1701- p.m. and not for his entitlement to the entire
       mesne profit - The order dated 21.4.2009 could not have
       been construed so as to deprive the applicant to claim mesne
       profit@ Rs.301- p.m. as the same was already adjudicated
 8     upon and that was not challenged by the respondents -
       Therefore, what was given up by the applicant was claim for
       the balance mesne profit of Rs. 1701- p.m. and not for his
       entitlement for the entire mesne profit - Executing Court
 c     directed to decide the execution petition.
         Allowing the application, the Court
         HELD: 1. Since the applicant was already awarded
   mesne profits at the rate of Rs.30/- p.m. with 10%
   increase every three years from the date of filing of suit
 D till 21.08.1990 together with interest@ 12% at the amount
   accruing due month after month, which was not under
   challenge at the instance of respondents and hence the
   question was whether the applicant was entitled to claim
 E mesne profits for the balance amount, i.e. Rs.170/-p.m.
   from the respondents. It is this claim, i.e., Rs. 170/- p.m.,
   which was given up by the applicant that being the
   subject matter of the petition which this Court recorded
   and accordingly disposed of the applicant's petition by
 F order dated 21.04.2009. [Paras 31 and 32] [1039-F-H;
   1040-A]

         2. The order dated 21.04.2009 could not have been
     construed so as to deprive the applicant to claim mesne
 0 profits at the rate of Rs.30/- p.m. with 10% increase every
     three years from the date of filing of suit till 21.08.1990
     together with interest@ 12% at the amount accruing due
     month after month from the respondent. Indeed, this
     claim which was already adjudicated in applicant's favour
 H . by the Courts below and which was neither challenged
     by the respondents and nor was it the subject matter of
           SANT RAM v. OHAN KAUR & ORS.                       1031


dispute in applicant's petition, the same could not ·be A
held to have been given up by the applicant by order
dated 21.04.2009. [Para 33] [1040-B-C]
     3. It is a settled principle of law that only those issues
could be given up by the party which are the subject 8
matter of the /is before the Court. Since in the petition
before this Court, the issue with regard to award of mesne
profits at the rate of 30/- p.m. was not the subject matter
at the instance of any party to the /is, the question of its
giving up at the instance of the applicant did not arise. c
The order dated 21.04.2009, has to be interpreted
keeping in view these background facts. [Para 34] [1040-
D-E]
    4. It is, therefore, clarified that the applicant's right
                                                              D
to claim mesne profits Rs.30/- p.m. with 10% increase
every three years from the date of filing of suit till
21.08.1990 together with interest @ 12% at the amount
accruing due month after month from the respondents
would remain intact for recovery from the respondents E
and is not affected in any manner by order dated
21.04.2009. In other words, it was not given up. [Para 35)
[1040-F-G]
     5. The Executing Court is, therefore, directed to take
up the applicant's execution application and decide the        F
same in accordance with law in the light of clarification
made hereinabove of the order dated 21.04.2009. [Para
37) [1041-A-B]
    CIVILAPPELLATE JURISDICTION: I.A. NO. 4 OF 2014            G
                              IN
    Special Leave Petition No(s). 13915 of 2008.
    From the Judgment and Order dated 03.01.2008 of the
High Court of Delhi at New Delhi in RA No. 340 of 2007 and
CMM No. 135 of 2003.                                       H
1032         SUPREME COURT REPORTS                   [2015) 12 S.C.R.


 A          D. N. Goburdhan, Prabal Bagchi, AbhishekAgrawal and
     · Lal Ramtiamma,Adv., forthe Petitioner.

          D. K. Thakur, Devendra Jha, Bhupendra Sharma, Nitin
       Kumar Thakur and Uma Datta, Advs., for the Respondents.
 B
           The Judgment of the Court was delivered by

            AB HAY MANOHAR SAPRE, J. 1) This is an application
       filed by the applicant-petitioner-in-person under Order XVIII
 c     Rule 5 of the Supreme Court Rules, 1966 (for short 'the Rules')
       for appeal against the order dated 13.02.2014 of the
       Registrar(J-11) refusing to register the application
       (l.A.No.D.123226) for clarification/interpretation of this Court's
       order dated 21.04.2009 passed in SLP(c) No.13915 of 2008.
 D
           2) This application was listed for appropriate orders on
       01.07.2014. This Court directed issuance of notice to the
       respondents. They were served and duly represented through
       counsel.
 E
            3) On 09.10.2015, this Court requested Mr. D.N.
       Goburdhun, Advocate, who was present in Court, to assist the
       petitioner-in-person.
            4) We heard Mr. D.N. Goburdhan, learned counsel for the
 F     applicant/petitioner and Mr. D.K. Thakur and Mr. Uma Datta
       learned counsel forthe respondents.

           5) In order to appreciate the issue involved in this
   application, it is necessary to set out the relevant facts in brief
 G infra.
        6) On 29.08.1966, Smt. Satyawati-the predecessor-in-
   interest and wife of the applicant herein, purchased a plot
   admeasuring 96 sq. yds. contained in Khasra No. 526/508/
 H 340 situated at Mauza Shahdhawa, Sarai Rohilla, New Delhi
   for a consideration of Rs.4000/- through a registered sale deed
            SANT RAM v. OHAN KAUR & ORS.                           1033
             [ABHAY MANOHAR SAPRE, J.]

from one Shri Nakul Dev. The said vendor had also assigned A .
on 14.10.1966 the right to recover damages because it was
noticed that the predecessor-in-interest of the respondents
herein had.encroached a portion of the said land and had also
illegally constructed a room thereon.
                                                                   B
    7) On 20.10.1966, the applicant's ·wife instituted a suit
being Suit No. 278 of 1966 in the Court of sub-Judge, 1st class,
Delhi against the predecessor-in-interest of the respondents
herein for possession of an area measuring 14'x9' and
damages forthe .Period 29.08.1964 to 28.08.1966@ Rs.200/           C
-p.m.

    8) By judgment/decree dated 10.11.1967, the Trial Court
dismissed the said suit.
                                                                   D .
     9) Being aggrieved by the said judgment/decree, the wife
of the applicant filed an appeal before the Additional District
Judge, Delhi. The Additional District Judge, by order dated
07.06.1972, allowed the appeal and decreed the suit of the
applicant for recovery of possession of the lal')d and an amount E
of Rs. 500/- towards the claim of mesne profits.

      10) Questioning the said order, the respondents filed
second appeal being RSA No. 78 of 1972 before the High
Court of Delhi. The learned Single Judge of the High Court,        F
by judgment dated 26.05.1975, allowed the same and set
aside the judgments and decrees of both the courts below and
remanded the matter to the Trial Court for determination in the
light of the observations made in the judgment.
                                                                   G
     11) After remand, the Trial Court, by its judgment and
decree dated 20.10.1981, again decreed the suit in favour of
the applicant for recovery of vacant possession of the disputed
land and awarded damages/mesne profits@ Rs.100/- p.m.
from the date of filing of the suit till realization/recovery with H
1034            SUPREME COURT REPORTS            [2015] 128.C.R.


 A     costs.

       12) The respondent, felt aggrieved, filed an appeal being
   Appeal No. 135of1981. The Additional District Judge, by
   judgment and decree dated 13.12.1984, allowed the same
 B and dismissed the suit of the applicant herein.

         13) Being aggrieved, the applicant filed an appeal being
   R.S.A. No. 41 of 1985 before the High Court. By order dated
   03.02.1988, the learned Single Judge of the High Court allowed
 c the same and decreed the suit and granted one month's time
   to the respondents to remove the room or any other
   encroachment on the suit land. A decree for Rs.500/- was
   also passed along with interest @ 6% p.a. from the date of
   institution of the suit up to realization and further directed to
 D make an enquiry under Order XX Rule 12 ofC.P.C. regarding
   determination of mesne profits from the date of institution of
   the suit till delivery of possession.

         14) In pursuance of the order dated 03.02.1988 passed
· E by the High Court, the question of determination of the mesne
    profits came up before the Court of Civil Judge. The Civil
    Judge, Delhi by order dated 24.02.2001 in Suit No. M-136/
    1996 fixed mesne profits as Rs.200/- p.m. from 20.10.1966
    and the damages were enhanced 25% of the existing rate w.e.f.
  F 20 .10.1966 after every three years. The mesne profits were
    decreed up to 21.08.1990.

         15) Against the said order, the respondents filed an appeal
   being R.C.A. No.9of2001 beforetheA.D.J. Delhi. By order
 G dated 04.01.2003, the appellate Court disposed of the appeal
   and directed the appellants therein (respondents herein) to
   pay mesne profits to the applicant herein@ Rs.30/- p.m. with
   10% increase every three years from the date of filing of suit
   till 21.08.1990 together with interest @ 12% at the amount
 H accruing due month after month. It was also held that the Trial
             SANT RAM v. DHAN KAUR & ORS.                            1035
              [ABHAY MANOHAR SAPRE, J.]

Court committed an error in determining mesne profits for the A
entire land whereas the disputed land was a piece of land .
measuring 14'x9' only and notthe entire land.

     16) Being aggrieved, the applicant filed a petition under
Article 227 of the Constitution being Civil Misc.(M) No. 135 of B
2003 before the High Court of Delhi. The learned Single Judge
of the High Court, by order dated 21.11.2005, dismissed the
same.

     17) Challenging the said order, the applicant filed S.L.P.(c)   c
No. 6927 of 2006 before this Court. By order dated 05.02.2007,
this Court dismissed the same.

    18) Thereafter, the applicant filed a review petition being
RA. No. 340 of 2007 for review of order dated 21.11.2005 D
before the High Court. By order dated 03.0:1 .2008, the learned
Single Judge of the High Court dismissed the same.

     19) Dissatisfied with the said order, the applicant had f)led
this S.L.P., namely, S.L.P.(c) No. 13915 of 2008 .before this         E
Court. During the pendency of the petition before.this Court,
possession was handed over to the applicant in 2009.

     20) On 21.04.2009, when the special leave petition was
being heard, the amicus curiae appearing on behalf of the F
applicant submitted to the Court that the applicant does not
want to press the prayer for mesne profits. Therefore, on that
statement, this Court passed an order dated 21.04.2009
recording that statement and accordingly closed the matter.
                                                                     G
    21) Thereafter, the applicant filed an application being I.A.
No. 3 of 2009 before this Court for recalling the order dated
21.04.2009 passed in the SLP. However, the said application
was dismissed by this Court on 26.04.2010.

    22) After the order passed by this Court, the applicant filed    H
1036          SUPREME COURT REPORTS                    [2015] 12 S.C.R.


 A     an application being M-39/12 under Section 151 of the Civil
       Procedure Code, 1908 before the Civil Judge for complying
       with its order dated 24.02.2001 in Suit No. M-136 of 1996
       and to execute the said order of mesne profits as confirmed
       by the High Court@ Rs.30 p.m. with 10% increase every three
 8
       years from the date of filing of suit till 21. 08.1990 together with
       interest@ 12% at the amount accruing month after month. In
       that application, the respondents raised an objection by
       showing the order dated 21.04.2009 passed by this Court
 c     recording therein that the applicant herein had given up his
       claim of mesne profits. On that basis, the Execution Petition
       was dismissed.

        23)Againstthe said order, the applicant filed Civil Revision
   No. 118 of 2013 before the High Court. On the basis of the
 D
   statement made by the applicant before this Court, the civil
   revision was dismissed by the High Court on 26.08.2013.

         24) Instead of challenging the said order, further the
   applicant filed an application before this Court being I.A.
 E D. l\Jo.123226 for clarification/interpretation of this Court order
   dated 21.04.2009 stating therein inter alia that on the date
   when the matter was listed, due to non-communication
   between him and the amicus curiae, he could not give any
 F instruction regarding the mesne profits to amicus curiae and
   the statement given by the amicus curiae was on his own and
   lastly, what was at best given up by the applicant was his right
   to recover mesne profits at the rate of Rs.170/- which were not
   awarded to him and for which the petition was filed and not
 G what was already awarded to him by the Courts below i.e.
   mesne profits at the rate of Rs.30/- p.m. with 10% increase
   every three years from the date of filing of suit till 21.08.1990
   together with interest@ 12% at the amount accruing due month
   after month.
 H
            25. On 13.02.2014, the said application was listed before
            SANT RAM v. OHAN KAUR & ORS.                        1037
             [ABHAY MANOHAR SAPRE, J]

the Registrar (J-11) for registration. However, the same was A
not allowed to be registered.

      26) With this background facts, the applicant filed this
application against the order dated 13. 02.2014 of the Registrar
(J-11) under Order XVIII Rule 5 of the Rules which was registered B
as I.A. No.4.

     27) Mr. D.N. Goburdhan, learned Counsel for the applicant,
has urged only one contention. According to him, the Executing
Court and the High Court were not justified in dismissing the c
applicant's execution application on the ground that the
applical)t having given up his right to recover the mesne profits
in terms of order dated 21.04.2009 of this Court had no right
to recover mesne profits at all from the respondents. Learned
counsel pointed out that the applicant had originally claimed D
mesne profits at the rate of Rs.200/- p.m. whereas the Courts
below awarded only at the rate of Rs.30/-p.m. with 10%
increase every three years from the date of filing of suit till
21.08.1990 together with interest@ 12% at the amount
accruing due month after month and, therefore, the applicant E
was pursuing his claim for the balance, i.e., Rs.170/- p.m. in
the petition in this Court, which he gave up in the order dated
21.04.2009. Learned counsel submitted that the claim
therefore which was given up in this Court was the claim in F
relation to mesne profits forthe balance amount, i.e., Rs.170/
- p.m. which was not awarded by the Courts below. Learned
counsel submitted that there was therefore no justification on
the part of the courts below to dismiss the applicant's execution
application to recover mesne profits already awarded by the a
courts below at the rate of Rs.30/- p.m. with 10% increase
every three years from the date of filing.of suit til: 21.08.1990
together with interest@ 12% at the amount accruing due month
after month from the respondents by placing reliance on order
dated 21.04.2009. Learned counsel, therefore, prayed that H
1038         SUPREME COURT REPORTS                 (2015] 128.C.R.


. Athis Court may clarify the order dated 21.04.2009to this extent
   so as to enable the applicant to recover the mesne profits at
   the rate of Rs.30/- p.m. with 10% increase every three years
   from the date of filing of suittill 21.08.1990 togetherwith interest
   @ 12% at the amount accruing due month after month from
 8 the respondents.

           28) Learned counsel for the respondents supported the
       order made in the execution application and prayed for
       dismissal of the application under consideration.
 c
           29) Having heard learned counsel for the parties and on
       perusal of the record of the case, we are inclined to allow the
       application under consideration.

            30) The order dated 21.04.2009 passed by this Court,
                                                                      -
 D
       which was made basis by the two courts below, for dismissal
       of the applicant's execution application reads as under:

            "The learned senior counsel appearing on behalf
 E          of the petitioner informed that in pursuance of the
            order dated 03.02.2009 passed by this Court for
            execution of the decree obtained by the petitioner,
            with police help the petitioner has obtained. the
            possession of the property.
  F
             Learned senior counsel further submitted that there
             was considerable difficulty in obtaining the
             possession of the property and the petitioner had
             to ultimately obtain possession by demolishing the
  G          wall that had been put up by the respondent in a
             portion of the Galli (Lane) which.was situated to the
             West of the property belonging to the petitioner.

             Learned counsel for the respondent stated that
  H
             though the property of the respondent was situated
            SANT RAM v. OHAN KAUR & ORS.                       1039
             [ABHAY MANOHAR SAPRE, J.]

     fo the South of petitioner's property, the respondent A
     was also in occupation of a triangular portion of
     the land to the West of the petitioner's property.
     Learned Senior Counsel appearing for the
     petitioner pointed out that it could not be the
     position, as the western boundary of the petitioner's B
     property is clearly shown as a Galli and not
     defendant's property.

     In view of the delivery of possession and clearance
     on the western side, the petitioner will report full        C
     satisfaction of the decree before the Executing
     Court.

     The learned counsel for the petitioner states that
     the petitioner does not want to press the prayer for D
     mesne profits ..Therefore, this special leave petition
     is closed as no longer surviving for consideration."

                                       (emphasis supplied)
                                                                 E
     31) As rightly urged by the learned counsel for the
applicant, the question before this Court was whether the
applicant was entitled to claim mesne profits at the rate of_
Rs.200/- p.m. Since the applicant was already awarded mesne
profits at the rate of Rs.30/- p.m. with 10% increase every three F
years from the date of filing of suit till 21.08.1990 together with
int~rest@ 12% at the amount accruing due month after month,
which was not under challenge at the instance of respondents
and hence the question was whether the applicant was entitled
to claim mesne profits for the balance amount, i.e. Rs.170/- G
p.m. from the respondents.

     32) It is this claim, i.e., Rs. 170/- p.m., which was given up
by the applicant that being the subject matter of the petition
which this Court recorded and accordingly disposed of the H
·1040         SUPREME COURT REPORTS                   [2015) 12 S.C.R.


  A     applicant's petition by order dated 21.04.2009.

         33) In our opinion, the order of this Court dated 21.04.2004
    could not have been construed so as to deprive the applicant
    to claim mesne profits at the rate of Rs.30/- p.m. with 10%
  B increase every three years from the date of filing of suit till
    21.08.1990 together with interest@ 12% at the amount
    accruing due month after month from the respondent. Indeed,
    this claim which was already adjudicated in applicant's favour
    by the Courts below and which was neither challenged by the
  C respondents and nor was it the subject matter of dispute in
    applicant's petition, the same could not be held to have been
    given up by the applicant by order dated 21.04.2009.

          34) It is a settled principle of law that only those issues
  D could be given up by the party which are the subject matter of
    the lis before the Court. Since in the petition before this Court,
    the issue with regard to award of mesne profits at the rate of
    30/- p.m. was not the subject matter atthe instance of any party
    to the lis, the question of its giving up at the instance of the
  E applicant did not arise. The order dated 21.04.2009, in ~ur
    view, has to be interpreted keeping in view these background
    facts.

           35) In the light of foregoing discussion, it is hereby clarified
  F that the applicant's right to claim mesne profits Rs.30/- p.m.
      with 10% increase every three years from the date of filing of
      suittill 21.08.1990 together with interest@ 12% atthe amount
      accruing due month after month from the respondents, which
  G has already been determined and awarded to the applicant
      and which was not the subject matter of the petition in this Court
    . would remain intact for recovery from the respondents and is
      not affected in any manner by order dated 21.04.2009. In other
      words, it was not given up.
  H          36) I.A. No. 4 thus stands allowed. The order dated
              SANT RAM v. OHAN KAUR & ORS.                          1041
               [ABHAY MANOHAR SAPRE, J.]

21.04.2009 passed by this Court is accordingly clarified.            A

 · . 37) The Executing Court is, therefore, directed to take up
the applicant's execution application and decide the same in
accordance with law in the light of clarification made
hereinabove of the order dated 21.04.2009.                      B

    38) Before parting, we place on record our appreciation
to Mr. D.N. Goburdhan, Advocate, who, on our request,
assisted the applicant.
Kalpana K. Tripathy                                I. A. allowed.    C