1. This appeal arises out of a suit brought by the plaintiff-appellant for his share of profits for the years 1311, 1312 and 1313 fasli. A preliminary objection has been taken to the hearing of the appeal on the ground that it is time-barred. The circumstances under which this objection has been urged are these. The suit was filed in the Court of the Assistant Collector and the amount claimed was a sum of Rs. 6,000. The Assistant Collector made a decree in the plaintiff's favour for Rs. 1,635-7-0. The plaintiff claimed a farther sum of about Rs. 1,200, and in respect of this amount he preferred an appeal in the Court of the District Judge. In that Court no objection was taken on behalf of the defendant that an appeal did not lie to that Court. The result was that the appeal was heard by the learned District Judge and he varied the decree of the Court of first instance. Thereupon, an appeal was preferred to this Court, and this Court was of opinion that no appeal lay to the learned Judge, and that as the value of the suit was Rs. 6,000 the appeal should have been preferred to this Court. Accordingly, the memorandum of appeal was ordered to be returned to be presented in the proper Court, and has now been presented in this Court. No doubt, the appeal to this Court is beyond time but the appellant has asked us to exercise our discretion under Section 5 of the Limitation Act and to entertain the appeal although it has been filed beyond time. We are of opinion that, in view of all the circumstances, we should exercise our discretion in favour of the appellant. It appears that there were six suits instituted in the Court of first instance for profits against the lambardar by the same parties and one was brought by the plaintiff-appellant against the same lambardar to recover Rs. 6,000. In all the other suits the amount claimed was below Rs. 5,000. In two of these suits, appeals were filed in the Court of the District Judge; and as the amount claimed by the appellant in his appeal was about Rs. 1,200, his Pleader, through an oversight, filed the appeal in the lower Court whereas it should have been presented in this Court. We think that there was a bona fide mistake, which was not very unnatural, and that, under the circumstances, we ought to allow the appeal to be heard. We have accordingly heard the appeal.
2. Three questions have been raised before us. The first is that the Court below made a decree for an amount which was less than the amount due to the plaintiff according to the account filed by the defendant himself in the Court below. In the abstract of accounts which the defendant filed in the lower Court the total amount shown as due to the plaintiff for his share of profits was Rs. 1,754 7-3. The lower Court made a decree for Rs. 1,635-7-0 only so that it awarded a sum of Rs. 119-0-3 less than what according to the defendant was payable to the plaintiff. Mr. Gokul Prasad on behalf of the appellant admits that in the defendant's account there is a mistake of Rs. 2-15-6. So that the plaintiff ought to get Rs. 116 0-9 more than what the lower Court has awarded to him. Mr. Agarwala on behalf of the respondent contends that the abstract of accounts filed on behalf of the defendant was incorrect and that this is due to the fact that shares held by the plaintiff in different mahals were mixed up. He has not shown us in what respects the account is erroneous. The document is at least a clear admission of the amount actually collected by the defendant on account of the plaintiff's share. So that, prima facie, the account must be deemed to be correct unless it is shown that it is erroneous in any particular. That has not been attempted to be shown, and we see no reason why he should not be bound by the figures given by himself. Therefore, it is manifest that the plaintiff ought to have got a decree for Rs. 116 0-9 in addition to the amount awarded to him by the lower Court.
3. The next objection is that the Court below has not allowed for interest the period preceding the institution of the suit and for the period of the pendency of the suit. It cannot be denied that in the judgment of the learned Assistant Collector no reason is assigned for not awarding such interest. Ordinarily, a plaintiff to whom profits are due would be entitled to interest for the period during which the lamhardar withheld the profits and he would also be entitled to interest for the period of the pendency of the suit. It would lie upon the lamhardar to show that there were special circumstances which relieved him of liability for the payment of interest. In his written statement the defendant no doubt urged that he offered to render an account of the profits to the plaintiff and that the plaintiff refused to take such an account, but no issue was joined in the Court below on that point. There the parties agreed that two issues should be tried, namely, an issue as to whether the profits should be calculated on the basis of the gross rental or on the basis of actual collections and second, what was the amount payable to the plaintiff. From this we infer that the defendant did not adhere to the plea put forward by him in the written statement on the question of interest. There is apparently no reason why the plaintiff should not get interest and we think he is fully entitled to it.
4. The third point is that the lower Court, although it professed to include in the calculation of profits the income arising from the land known as the holding of Zainab Bibi, did not in fact include those profits in the account. This is manifest from the account prepared by the learned Assistant Collector. In his written statement the defendant did raise an objection as to the profits arising from the land mentioned above, but the objection he put forward was a very technical one, and it was one which, in our opinion, had no foundation for it. The Court of first instance, however, refused to go into that point solely on the ground that the parties had agreed upon the questions which were to be determined and this was not one of the questions so to be determined. From the account prepared by that Court and the foot-note appended to it, it is manifest that the Assistant Collector intended to allow the rent of these lands to be included in the account. The plaintiff is, therefore, entitled to his proportionate share of the profits arising from the holding known as the holding of Zainab Bibi. There is no dispute between the parties as to the figures. They are admitted by the defendant in the account filed by him.
5. The decree of the Court below should, therefore, be varied by adding to the amount of that decree Rs. 116-0-9 and the plaintiff's share of the profits of Zainab's land, and on the total amount which will be found due to the plaintiff he will be entitled to interest at the rate of 12 per cent, per annum, up to the date of the institution of the suit, and thereafter at the rate of 6 per cent, per annum. We accordingly allow the appeal and vary the decree of the Court below by adding to the amount of that decree the two items mentioned above, the latter of which is to be calculated and specified in the decree and we allow interest as mentioned above. The parties will pay and receive costs in the Court of first instance in proportion to failure and success. In all other Courts they will abide their own costs.