P.N. Mookerjee, J.
1. The appellant before us was the defendant in a suit for recovery of damages with interest and costs. The suit has been decreed in part by the learned trial Judge. Hence this appeal by the defendant. The material facts lie within a short compass and they may be stated as follows:
2. The defendant was a tenant under the predecessor of the plaintiffs in respect of the shed and structures, described in Schedule A of the plaint. In or about the year 1939, the plaintiffs' said predecessor filed Title Suit No. 8 of 1939 in the Sixth Court of the Subordinate Judge, Alipore, for ejectment and damages. The suit was eventually compromised between the parties, but the defendant company did not vacate the disputed property in terms of the said compromise but remained in wrongful occupation of the same. While they were in such wrongful occupation, the property was requisitioned under Rule 75-A of the Defence of India Rules and the Government took possession of the same on February 2, 1944. The property was derequisitioned on November 21, 1945, and for the interval or intervening period, that is, from February 2, 1944, to November 21, 1945, the plaintiffs received monthly compensation from the Government at the rate of Rs. 350/- per month. For the rest of the period of the defendant's alleged wrongful occupation, the plaintiffs filed two Money suits against the defendant, viz., Money suit No. 1 of 1946 and Money suit No. 28 of 1948, in the above Sixth Court of the Subordinate Judge at Alipore, the first for recovery of damages upto February 2, or, more, correctly February 1, 1944, and the second from November 22, 1945, upto November 21, 1948, and for future damages till recovery of possession.
3. The suits were decreed by the learned Subordinate Judge on December 15, 1951, at Rs. 300/-per month for the entire period of claim, that is, Upto recovery of possession, and, under the Court's direction, the plaintiffs paid additional Court-fees for the claim for future damages, that is, for the period from November 22, 1948, up till recovery of possession.
4. On appeal, however, the claim for future mesne profits was disallowed by this Court and the rate also was reduced to Rs. 200/- per month.
5. This was followed by a suit on the part of the defendant company, praying for a declaration, that the plaintiffs' title to the above property had been extinguished and in the alternative, for a direction upon the plaintiffs to remove the disputed structures. The declaration was refused but the structures were ordered to be removed by the present plaintiffs and, failing that, under the supervision of an engineer, to be appointed by the trial Court, and the defendant was directed to assist the same by stopping work and by removing their machineries, tools etc. The defendant, however, failed to comply with the above direction and continued to work to their benefit and to the plaintiffs' prejudice. Hence the instant suit.
6. The claim here is for damages at the rate of Rs. 300/- per month from November 22, 1948, to November 5, 1956, that is, a period of seven years eleven months and fifteen days, and, for the period beyond three years of the suit, protection from limitation is claimed, primarily, under Section 14 of the Indian Limitation Act, and, also, otherwise, that is, on general principles of suspension of limitation.
7. The suit was contested by the defendant and its main defence, which is material for our present purpose, was that the major part of the plaintiffs' claim was barred by limitation. It also disputed the rate, namely, Rs. 300/- per month, at which the claim was made in the suit.
8. On the question of limitation, the learned trial Judge was of the view that, whichever Article of the Indian Limitation Act applies,--and the contest there was between Article 49 and Article 120, --the plaintiffs would be entitled to the benefit of Section 14 of the Indian Limitation Act and the whole of their claim would be saved from limitation.
9. On the other question, namely, as to the rate of compensation, the learned trial Judge was of the opinion that, although, under the previous decree of this Court, for the period, there involved, namely, upto 1944, the rate was Rs. 200/- per month, under the changed circumstances, noted by the trial Judge, that rate should reasonably be fixed at Rs. 250/- per month. On the above basis, the plaintiffs' suit was decreed by the learned trial Judge. Hence this appeal by the defendant company.
10. In support of the appeal, both the above points (defences) have been urged by Mr. Syama Charan Mitter, who appears for the defendant appellant. Mr. Mitter contends, in the first place, that this is not a case, where Section 14 of the Indian Limitation Act can apply, nor is it a case where any principle of suspension of limitation can legitimately come in. He, accordingly, contends that the plaintiffs, in any view, cannot be entitled to a decree for more than three years. He submits, further, that the learned trial Judge was wrong in assessing damages at Rs. 250/- per month and, in no view, should damages have been decreed at more than Rs. 200/- per month, which was the assessment of this Court on that account in the previous proceeding.
11. In our view, none of the above contentions of the appellant should be accepted and this appeal should fail. From what we have stated above, it is clear that the present claim of the plaintiffs was also included in the previous suit, which, eventually, came up to this Court. It was, no doubt, ultimately rejected by this Court on the ground that, in a suit, merely for money, in which there was no claim for recovery of possession, future mesne profits cannot be decreed. That decision of this Court is reported in India Electric Works Ltd. v. Mrs. B.S. Mantosh, : AIR1956Cal148 . With all respect to the learned Judges, it may be pointed put that a different view was taken by this Court in a later decision in the case of Makhan Lal v. Girish Chandra Jana, 66 Cal WN 692, where it was held that a claim for mesne profits, even without a suit for ejectment or a prayer for recovery of possession, may well be maintainable. It is true that the attention of the Court in this last-mentioned case was not drawn to the above earlier decision. But this much is clear from the above two decisions that, when a party includes such a claim in a purely money suit, the matter cannot be said to have been done in bad faith or without due diligence. If, therefore, Section 14 otherwise applies, its said two elements, namely, good faith and due diligence, would be amply satisfied in the instant case. The question, however, is whether Section 14 would, on its terms or on principle, apply to a case of the present type.
12. Upon this point, there is a sharp conflict of judicial opinion. An acute controversy has been raised on this point and certain decisions have laid down that, when a party pursues what they have called a misconceived remedy. Section 14 would not apply. This, however, has to be properly understood. A misconceived remedy, in the above context, would connote only a misconception, which is not bona fide. If, however, as we have held above, in view of the position, as indicated in the above two decisions of this Court. : AIR1956Cal148 and 66 Cal WN 692 (supra), the inclusion of the claim for future mesne profits in the previous suit cannot be held to be mala fide or in bad faith or without due diligence, and the remedy, even if otherwise misconceived, would not fall within the mischief of the law, so as to put the present suit outside Section 14 of the Indian Limitation Act. Indeed, the weight of authority is in favour of the view that, in such a case, Section 14 of the Indian Limitation Act would apply and would aid the plaintiff. Reference, if necessary, may be made to the decision of the Patna High Court in the case of Janki Prasad v. Ram Kripal, : AIR1951Pat486 , following its earlier Full Bench decision in the case of Lal Bihari Lall v. Bani Madhava Khatri, AIR 1949 Pat 293 (FB). There are other earlier decisions on the point, supporting the same view, but it is not necessary to refer to the same.
13. A point may be raised that, in this case, the previous suit in its entirety cannot be said to have been misconceived or suffering from this defect and it is only this claim, which was part of the claim in the said suit, which suffered from this infirmity. We do not, however, think that, on principle, and, at any rate, in the particular circumstances before us, -- the said distinction would make any difference. We would, accordingly, hold that the plaintiffs would be entitled to the benefit of Section 14 of the Indian Limitation Act for the entire period, for which the defective proceeding, in which the claim for future mesne profits was originally made until it ultimately failed in this Court, remained pending. If this is excluded, there can be no question that no part of the plaintiffs' present claim would be barred by limitation.
14. We may add that, if Section 14 had not applied and the plaintiffs had to rely upon the principle of suspension of limitation, otherwise available, they would have been under the compelling necessity of losing, at least, a part of their present claim as the suspension of limitation could not have helped them except for the period from after the disposal of the previous suit by the trial Court until the disposal of the appeal in this Court. That would, no doubt, have covered the major part of the period in question but would not have availed the plaintiffs for the entire period. How-ever, as, in our view, the plaintiffs are entitled to the benefit of Section 14 of the Indian Limitation Act, their entire claim would be saved from limitation. We would, accordingly, answer this question of limitation in favour of the plaintiffs in agreement with the learned Subordinate Judge and overrule the appellant's objection on the point.
15. Coming, now, to the question of rates, it is true that this Court assessed the damages at Rs. 200/- per month. That, however, was for the period upto November 21, 1948. The evidence on the record shows that, since that date, prices of materials have increased, necessarily, also, bringing, in its trail, increase of rent and, accordingly, damages or compensation for use and occupation. The learned Subordinate Judge has, upon the evidence before him, found that, in the circumstances, Rs. 250/- per month would be a fair assessment for the period in suit. We are not inclined to differ from the said view of the learned Judge. We would, accordingly, affirm the said rate and maintain the decree of the learned Subordinate Judge, made on the basis of the same.
16. In the result, this appeal will fail and it will be dismissed. The respondents will be entitled to their costs of this appeal, hearing-fee being assessed at Rs. 340/-.
17. I agree.