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Mohammed Ishaq Khan and ors. Vs. Mohammed Rustum Ali Khan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in44Ind.Cas.88
AppellantMohammed Ishaq Khan and ors.
RespondentMohammed Rustum Ali Khan and ors.
Cases ReferredDoraisami Aiyar v. Subramania Aiyar
Excerpt:
.....section 11, expl. v, order ii, rule 2, order xx, rule 12 - res judicata--suit for possession and mesne profits--subsequent suit for mesne profits from date of institution of suit up to delivery of possession, maintainability of--amendment of statute, effect of--precedents, value of. - - ) 979. in that case just like the present there had been in a previous suit a claim for mesne profits prior to the institution of the suit and also future mesne profits. if any legitimate inference could be drawn at all, it would seem as if the legislature knowing well the course of decisions in the courts in india had come to the conclusion that it was best to maintain the rule of law as established by the cases. 188 in which the majority of a full bench of that court were of opinion that..........to deal with the mesne profits during the pendency of the suit or after decree. in the present suit mesne profits are claimed from the date of the institution of the suit up to the date of delivery of possession. the defence is that the decree in the previous suit operates as res judicata, and reliance is placed upon the provisions of section 11, explanation v. section 11 provides that 'no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties...in a court competent to try such subsequent suit.' explanation v provides that 'any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have.....
Judgment:

1. This appeal arises out of a suit for mesne profits. A previous suit had been brought in which possession of the land had been claimed. A certain sum of monies was also claimed as mesne profits for the period prior to the institution of the suit. There was a further claim for mesne profits during the pendency of the suit and after decree. The suit resulted in a decree for the plaintiffs for possession of the land and also a decree for a portion of the amount claimed by the plaintiffs for mesne profits. The rest of the plaintiffs' claim was dismissed. On referring to the judgment, it is quite clear that the Court never dealt or purported to deal with the mesne profits during the pendency of the suit or after decree. In the present suit mesne profits are claimed from the date of the institution of the suit up to the date of delivery of possession. The defence is that the decree in the previous suit operates as res judicata, and reliance is placed upon the provisions of Section 11, Explanation V. Section 11 provides that 'no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties...in a Court competent to try such subsequent suit.' Explanation V provides that 'any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.' This explanation corresponds exactly with Explanation 3 of Section 13 of the old Code.

2. Reliance is also placed upon the provisions of Order II, Rule 2, which provides that 'every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.'

3. The contention on behalf of the defendant is that the Court, in the previous suit not having granted mesne profits during the pendency of the suit and from the date of the decree up to the date of delivery of possession, must be deemed to have refused it. Further, the decree ought to be interpreted as having expressly dismissed the suit in respect of mesne profits save to the extent that mesne profits were granted. The very same question had frequently arisen in the High Courts in India before the coming into operation of the present Code of Civil Procedure. All the Courts appear to have held that notwithstanding the provisions of the old Code a suit for mesne profits pendent lite and from the date of decree to delivery of possession could be maintained. This was expressly held in the case of Ram Dayal v. Madan Mohan Lal 21 A. 425 : A.W.N. (1899) 153 : 9 Ind. Dec. (N.S.) 979. In that case just like the present there had been in a previous suit a claim for mesne profits prior to the institution of the suit and also future mesne profits. Nevertheless the Court held that the subsequent suit for mesne profits from the date of the institution of the suit up to delivery of possession could be maintained when the Court in the previous suit had not decided the right of the plaintiff to these mesne profits. We think that we are bound to follow this decision, unless it is shown that the Legislature when enacting the present Code of Civil Procedure altered the law. It is a recognised rule that where there have been decided cases before an Act is amended, if the amendment does not expressly show that the law as interpreted by the decisions is altered, the rule laid down by the decisions is to be adhered to.

4. We now propose to consider whether the provisions of the Code of Civil Procedure of 1908 altered the law in respect of the matter with which we are dealing. Section 211 of the Code of Civil Procedure of 1882 provided that 'in a suit for the recovery of possession of immoveable property yielding rent or other profit the Court may provide in the decree for the payment of rent or mesne profits in respect of such property from the institution of the suit until the delivery of possession to the party in whose favour the decree is made'.

5. It is to be noted that in this section there is no reference to the claim in the plaint being made for mesne profits. Section 212 provided that whether the suit was a suit for ' possession of immoveable property and for mesne profits which have accrued on the property during the period to the institution of the suit, and the amount of such profits is disputed, the Court may either determine the amount by the decree itself, or may pass a decree for the property and direct an inquiry into the amount of mesne profits, and dispose of the same on further orders.'

6. The provisions of these two sections seem to have been amalgamated in the provisions of Order XX, Rule 12 of the new Code. That Order provides that 'where there is a suit for the recovery of possession of immoveable, property and for rent or mesne profits, the Court may pass a decree (a) for possession of the property, (b) for the rent or mesne profits which have accrued on the property during the period prior to the institution of the suit or directing an enquiry as to such rent or mesne profits, and (c) directing an enquiry as to the rent or mesne profits from the institution of the suit until (i) the delivery of possession to the decree-holder, (ii) the relinquishment of possession by' the judgment-debtor with notice to the decree-holder through the Court, or (iii) the expiration of three years from the date of the decree, whichever event first occurs.' Clause 2 of this rule provides: 'Where an enquiry is directed under Clause (6) or Clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of the enquiry.'

7. Under the old Code the practice was that excepting those cases in which the Court had actually found a certain amount due for mesne profits, the Court executing the decree used to be called upon to make an enquiry and to ascertain in execution the amount of mesne profits whether they were mesne profits which had accrued prior to the institution of the suit or mesne profits which had accrued between that date and the delivery of possession. The authority to make this enquiry was conferred on the Court executing the decree by Section 244 of the Code of Civil Procedure of 1882, to which we shall presently refer. It would seem, therefore, that the only substantial change that has been made in the law is that it is the Court which hears the suit which is to ascertain the mesne profits, whether those mesne profits be mesne profits which accrued before the institution Of the suit or afterwards up to the date of delivery of possession, and it is this Court which is to make the final decree for mesne profits which has to be executed by the Court executing the decree. We do not think that any significance is to be attached to the fact that in Section 211 of the old Code there is no reference to a claim for mesne profits or to the fact that Order XX Rule 12, purports to deal with suits in which mesne profits are claimed. Section 244 of the old Code dealt with certain matters which were to be determined by the Court executing the decree, and not by a separate suit, and amongst other questions the very first mentioned were questions regarding the amount of any mesne profits as to which the decree, had directed an enquiry. There is a proviso at the end of the section in the following words: 'Nothing in this section shall be deemed to bar a separate suit for mesne profits accruing between the institution of the first suit and the execution of the decree therein, where such profits are not dealt with by such decree.' The corresponding section of the Code of 1908 is Section 47. In this section reference to all questions of mesne profits is omitted and the proviso which we have quoted from Section '244 is also omitted. The argument is that this last mentioned omission is most significant and that it demonstrates the intention of the Legislature that suits for the recovery of mesne profits after a previous suit for possession cannot be maintained. A little consideration shows that this argument is not so forcible as might appear at first sight. The proviso to Section 244 of the old Code seems to have presumed that there was nothing in the Code itself which would prevent a second suit for mesne profits but that it might be contended that the provisions of Section 244 would preclude a second suit, and accordingly the words of the proviso are, not that nothing 'in the Code' shall be deemed to bar a separate suit for mesne profits, but that nothing 'in the section' shall be deemed to bar such a suit. It becomes apparent that the retention of this proviso in the new Code would have been altogether meaningless and out of place, because in Section 47 of the new Code there is no reference to enquiries as to mesne profits at all and Order XX, Rule 12, to which we have already referred, expressly takes away the jurisdiction of the Court executing the decree to make any enquiry in respect of mesne profits. The learned Judge in the Court below has referred to the report of the Select Committee on the provisions of the contemplated amendment of the Code of Civil Procedure. If it were permissible to consider the report at all, the inference would seem to be rather against the respondents than in their favour. The question had reference to a Bill which was subsequently withdrawn. In this Bill there was a provision which would have made it quite clear that a second suit for mesne profits could not be maintained. This provision does not find a place in the measure which was actually enacted. If any legitimate inference could be drawn at all, it would seem as if the Legislature knowing well the course of decisions in the Courts in India had come to the conclusion that it was best to maintain the rule of law as established by the cases. In this connection it may not be altogether out of place to suggest that there are some practical difficulties in the way of ascertaining mesne profits pendents lite and particularly future mesne profits in the original suit. Where there are more defendants than one, their liability may not altogether be the same and the final ascertainment of the amount due for mesne profits from the date of the decree to the time of delivery of possession can never be made until possession is actually taken by relinquishment on the part of the defendants or through the Court. We may mention here that the question recently arose in the Madras High Court in the case of Doraisami Aiyar v. Subramania Aiyar 42 Ind. Cas. 929 : 33 M.L.J. 699 : 22 M.L.T. 484 : (1917) M.W.N. 847 : 6 L.W. 784 : 41 M. 188 in which the majority of a Full Bench of that Court were of opinion that notwithstanding the provisions of the new Code a suit for mesne profits like the present could be maintained.

8. We allow the appeal, set aside the decree of the Court below and remand the case to that Court with direction to re-admit the suit in its original number and to proceed to hear and determine the same according to law. The appellants will have their costs of this appeal, including fees on the higher scale. Other costs will follow the event.


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