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M. Mukand Sarup Vs. Th. Krishna Chandra Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1938All86; 173Ind.Cas.654
AppellantM. Mukand Sarup
RespondentTh. Krishna Chandra Singh and ors.
Excerpt:
- - 2500 to the plaintiff in respect of the latter's share of the profits for the year 1332 fasli and 'that in case the defendants failed to deliver possession as agreed, they would be liable to pay rs. it is alleged in the plaint that the defendants failed to give possession in terms of the agreement. 4. in a suit like the one before us, it is not desirable, and may be even unjust, to stay it so far as the plaintiff claims possession and mesne profits. we also think that the court failed to exercise its jurisdiction which it undoubtedly possessed in ordering a separate trial of two sets of causes of action disclosed by the plaint......reliefs are not affected by section 7, encumbered estates act, while the third is such that the suit in respect thereof must be stayed. any difficulty that may arise in staying a suit, so far as it is for some reliefs and not as regards the rest is, in our opinion, easily met by applying the provisions of order 2, rule 6, civil p.c., which provides:where it appears to the court that any cause of action joined in one suit cannot conveniently be tried or disposed of together, the court may order separate trials or make such other order as maybe expedient.4. in a suit like the one before us, it is not desirable, and may be even unjust, to stay it so far as the plaintiff claims possession and mesne profits. proceedings under the encumbered estates act before the first court und all the.....
Judgment:

Niamatullah, J.

1. This is an application in revision under Section 115, Civil P.C., against an order passed by the Civil Judge of Bulandahahr, confirming a previous order passed by his predecessor staying a suit pending before him. The stay was ordered under Section 7, Encumbered Estates Act as the defendants had represented to the Court that they had applied to the Collector under Section 6 and that their application had been forwarded to the Special Judge. The suit has been brought by the plaintiff, appellant for three reliefs : (1) for possession, (2) mesne profits with effect from 1333 Fasli, and (3) Rs. 2500, with interest, being the profits due to him from the defendants in respect of 1332 Fasli. It is alleged in the plaint that the parties to the suit are mortgagees under a deed dated 17th August 1904 executed by persons who are no parties to this litigation. By an agreement dated 21st October 1924, it was stipulated that the plaintiff would be given by the defendants possession of certain villages in lieu of his three-fifth share in the mortgagee rights with effect form the beginning of 1333 Fasli, that they (the defendants) would pay Rs. 2500 to the plaintiff in respect of the latter's share of the profits for the year 1332 Fasli and 'that in case the defendants failed to deliver possession as agreed, they would be liable to pay Rs. 4000 as damages. It is alleged in the plaint that the defendants failed to give possession in terms of the agreement. It is also alleged that the defendants did not pay the sum of Rs. 2500 which they had stipulated to pay as profits for 1332 Fasli, Accordingly the plaintiff claimed three reliefs, namely recovery of possession, mesne profits tentatively fixed at Rs. 4000 and the sum of Rs. 2500 being the profits for the year 1332 Fasli.

2. During the pendency of the suit, the defendants applied to the Collector under Section 6, Encumbered Estates Act. Their application was admitted and forwarded to the Special Judge. The lower Court, professing to act under Section 7, Encumbered Estates Act, stayed the proceedings of the suit pending in his Court. The plaintiff subsequently moved the Court to re-consider its order of stay pointing out that the suit was not only in respect of a debt bud also for other reliefs. The lower Court however confirmed its order of stay as regards the whole suit. The plaintiff has applied to this Court in revision. Section 7(1)(a), Encumbered Estates Act, provides that all proceedings pending at the date of the said order (Collector's order under Section 6) in any Civil or Revenue Court in the United Provinces in respect of any public or private debt to which a landlord is subject or with which his immovable property is encumbered shall be stayed. The suit which has given rise to this revision, so far as the plaintiff claims the relief of possession, is obviously not one in respect of any debt. So far as it is for mesne profits, it is equally in our judgment not one for a debt, which is declared by the Act to include any 'pecuniary liability, except a liability for unliquidated damages'. Mesne profits are unliquidated damages. They have been defined in the Code of Civil Procedure as meaning profits payable by a person in wrongful possession of the immovable property. This view is in accord with what has been held by another Division Bench of this Court, in Civil Revn. No. 100 of 1936. Mt. Champa Devi v. Mt. Asa Devi reported in : AIR1938All8 . As regards the claim of Rs. 2500 being the profits for 1332 Fasli, there can be no doubt that it is a debt as contemplated by the Encumbered Estates Act.

3. The position then is that we have a composite suit in which two reliefs are not affected by Section 7, Encumbered Estates Act, while the third is such that the suit in respect thereof must be stayed. Any difficulty that may arise in staying a suit, so far as it is for some reliefs and not as regards the rest is, in our opinion, easily met by applying the provisions of Order 2, Rule 6, Civil P.C., which provides:

Where it appears to the Court that any cause of action joined in one suit cannot conveniently be tried or disposed of together, the Court may order separate trials or make such other order as maybe expedient.

4. In a suit like the one before us, it is not desirable, and may be even unjust, to stay it so far as the plaintiff claims possession and mesne profits. Proceedings under the Encumbered Estates Act before the first Court und all the Courts of Appeal may take a considerable length of time. The suit for possession and mesne profits should not be held up till the proceedings before the Special Judge are finished. We think that in the circumstances of the case the Court should order separate trial of the suit so far as it relates to the cause of action in respect of the sum of Rs. 2500 and qua that cause of action the suit should be stayed. With regard to the rest it should proceed.

5. We think that the Court acted with material irregularity in the exercise of its jurisdiction in ordering the stay of the suit in its entirety. We also think that the Court failed to exercise its jurisdiction which it undoubtedly possessed in ordering a separate trial of two sets of causes of action disclosed by the plaint. The result is that we allow this revision with costs and set aside the orders of stay passed by the lower Court which is directed to act according to law as herein indicated.


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