Memorandum of Grounds of Civil Revision Petition

(Filed under Article 227 of Constitution of India)

IN THE COURT OF THE HON’BLE COURT OF PRINCIPAL DISTRICT
JUDGE, VISAKHAPATNAM
I.A.No.321 of 2024
IN
A.S. No.17 of 2024

IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI

C.R.P.No. of 2024
Between:
M/s.Gothi Sons Enterprises Private Limited
Rep., Managing Director Sri.Mahavir Gothi
And Director Mahima Gothi having business at
D.No.28-16-23, Suryabagh, Visakhapatnam.

….Petitioner/Appellant/Defendant.
AND

Ankit Banthia, S/o. Shri Ridh Karan Banthia,

Aged about 39 years, Occ:Business,
R/o.#32-1, Girish Avenue, Bagh Bazar, Kolkata-700003,
And also R/at D.No.28-16-23, Suryabagh, Visakhapatnam
….Respondent/Respondent/Plaintiff.

The address for service of all notices, process and summons on the above
named petitioner is that of his Counsel B.ABHAY SIDDANTH (22694) &
N.RUPESHWAR REDDY Advocates, Office at Ground Floor, KRISH RIVIERA,
2nd Lane, Raja Rajeswari Nagar, Opp: C.S.R Kalayana Mandapam, Tadepalli,
Guntur District. (CELL No.9700533434)

The above named petitioner begs to present this Memorandum of Grounds

of Civil Revision Petition aggrieved by the Order inpart directing the parties to
assist the Court on mesne profits or compensation to be assessed, dated 13.02.2024
in I.A.No.321 of 2024 in A.S.No.102 of 2024 on the file of the Hon’ble Principal
District Judge, Visakhapatnam filed under Order XLI Rule 5 for stay of the
Execution of the Judgment and Decree, dated 10.11.2023 made in
O.S.No.688/2019 on the file of the Hon’ble Principal Senior Civil Judge,
Visakhapatnam for the following and among other:
 GROUNDS

1. The order of the Court below is contrary to law, well established legal

principles, facts and circumstances of the case.

2. The Hon’ble Court below exceeded in exercising its jurisdiction in ordering

an enquiry for calculation of mesne profits while granting a stay of the execution of

the Execution of the Judgment and Decree, dated 10.11.2023 made in

O.S.No.688/2019 on the file of the Principal Senior Civil Judge, Visakhapatnam,

when no application has been filed by the respondent herein for mesne profits for

calculation of the same and hence committed grave irregularity and illegality in

ordering an enquiry for determination of mesne profits in an application under

Order XLI Rule 5 for stay of the Execution of the Judgment and Decree, dated

10.11.2023.

3. The Hon’ble Court below failed to see that it is a settled principle of law that

mesne profits can be granted only when there is a prayer seeking mesne profits for

the damages sustained by the landlord and in the absence of the same the mesne

profits cannot be granted and hence committed gross illegality and irregularity in

ordering an enquiry for determination of mesne profits while granting a stay of the

Execution of the Judgment and Decree, dated 10.11.2023.

4. The Court below failed to see that the respondent herein had initially in the

suit prayed for damages for unauthorized use and occupation i.e., mesne profits for

a sum of Rs.20,000/- (Rupees Twenty Thousand Only) from 01.05.2019 subject to

an increase @ 25 % P.A from the date of the suit i.e., for each month till the

petitioner herein handsover the possession of the property and the said relief for

mesne profits was denied by the Hon’ble Trail Court on the ground that the

respondent herein failed to pay the court fee on the same and when such is the case

determination of mesne profit at the appellate stage would not at all arise till either

a separate appeal or a cross objection is filed by the respondent herein against the

Judgment and Decree, dated 10.11.2023 made in O.S.No.688/2019 on the file of

the Principal Senior Civil Judge, Visakhapatnam.

5. The Court below failed to see that when the relief of mesne profit was

specifically prayed by the respondent herein and the same was denied by the

Hon’ble Trail Court for want of non-payment of Court Fee, the Hon’ble Court

below cannot now proceed with an enquiry for determination of mesne profits

under the pretext of reasonable conditions being imposed for granting stay. It is a

well settled legal principal that what cannot be done directly cannot be done

indirectly and that as once the Hon’ble Trail Court held that the mesne

profits/damages cannot be determined for the want of non payment of court fee,

the said relief cannot be granted till an appeal or cross objection is filed against the
Judgment and Decree, dated 10.11.2023 made in O.S.No.688/2019 on the file of

the Principal Senior Civil Judge, Visakhapatnam by the respondent for the said

issue.

6. The Court below failed to see that in case of Atma Ram Properties (P) Ltd

Vs.Federal Motors (P) Ltd reported in (2005) 1 SCC 705 the issue was whether

mesne profits can be granted to the decree holder, when appeal was pending

adjudication and in the said case the mesne profits were not prayed in the suit and

hence the Hon’ble Supreme Court had opined that a reasonable condition of mesne

profit can be imposed on the appellant praying for execution of the judgment and

decree. In the said judgment, the mesne profits were not prayed at the trail stage

and hence it was found just and reasonable to impose such a condition and the case

of Atma Ram Properties (P) Ltd Vs.Federal Motors (P) Ltd is factually different

from the case at hand, as in the present case mesne profit was sought for in the suit

and the same was denied by the Trail Court and hence the case Atma Ram

Properties (P) Ltd Vs.Federal Motors (P) Ltd has no application to the present case,

as the factual matrix is completely different from the case at hand.

7. The Court below failed to see that in case of Atma Ram Properties (P) Ltd

Vs.Federal Motors (P) Ltd reported in (2005) 1 SCC 705 the issue never arouse as

to whether mesne profits can be granted at the stage of stay application in an

appeal, when the said relief was denied by the Trail Court and no appeal is
preferred against that portion of the Judgment appealed against and hence

committed grave irregularity and illegality in ordering an enquiry for determination

of mesne profit by relying upon the judgment referred supra.

8. The Court below failed to see that the case of Atma Ram Properties (P) Ltd

Vs.Federal Motors (P) Ltd reported in (2005) 1 SCC 705 has no application

whatsoever as the factual matrix of the case at hand is completely different from

the factual matrix of the case at hand, as the plea of mesne profit was denied by the

Trail Court in the present case and no appeal has been preferred by the respondent

herein against that portion of the order.

9. The petitioner craves the leave of this Hon’ble Court to urge the other

grounds at the time of hearing.

For the grounds raised above in the Civil Revision Petition and the grounds
that may be urged at the time of hearing, the petitioners herein pray that this
Hon’ble Court may be pleased to allow the Civil Revision Petition by setting aside
the portion of the order, dated 13.02.2024 in I.A.No.321 of 2024 in A.S.No.102 of
2024 on the file of the Hon’ble Principal District Judge, Visakhapatnam wherein
the parties are directed to assist the Court on mesne profits or compensation to be
assessed and dispose of the same forthwith and pass such other order or orders as
are deemed fit and proper in the circumstances of the case.
MEMO OF VALUATION

The value of the above C.R.P. is more than Rs.1,000/-. A fixed court fee of
Rs.100/- is paid herewith.

Vijayawada.
Date: Counsel for Petitioner