1. In this case a Rule was issued on the opposite parties 2 to 139, the tenants defendants, to show cause why a certain order of the Subordinate Judge, Pabna, dated 30th November 1932, should not be set aside. It appears that there was a suit for khas possession of about 400 bighas of land and for mesne profits. Some of the plaintiffs succeeded before the Subordinate Judge who made a decree for khas possession of the lands which they claimed and for mesne profits. With regard to the rest of the plaintiffs he held that their suit failed owing to some question of notice. The result was that there was an appeal to the High Court where it was decided that notice had been waived and that the rest of the plaintiffs were entitled to the property which they claimed and that otherwise the decree of the Subordinate Judge would stand. In passing it may be noted that the High Court decreed khas possession in favour of the second lot of plaintiffs, but seems to have forgotten to pass a decree for mesne profits. A question may arise at some time hereafter, whether the effect of the judgment of the High Court is to apply that part of the Subordinate Judge's judgment which decreed mesne profits, to the second lot of plaintiffs in whose favour the High Court passed a decree for possession, or whether the judgment of the High Court amounts simply to a decree for possession, and not for mesne profits.
2. The Subordinate Judge passed a decree Under Order 20, Rule 12, Civil P.C. for (a) possession, (b) mesne profits, and (c) directing an inquiry as to mesne profits. He did not however decide at the time when he passed the preliminary decree, what was to be the basis upon which the mesne profits were to be assessed. He said that that matter could be decided thereafter, when the plaintiffs made an application for the appointment of a commissioner to hold the inquiry. The result was that at a subsequent date and after the decision given by the High Court, the Subordinate Judge heard an application for the appointment of a commissioner and then proceeded to decide the basis upon which the mesne profits should be assessed. In my opinion this procedure was wrong. There is no provision in the Code for deciding the basis upon which mesne profits are to be assessed, at a date subsequent to the passing of the preliminary decree. When the Judge passed the preliminary decree Under Order 20, Rule 12 and directed an inquiry as to mesne profits he should have at the same time, decided the basis upon which the mesne profits were to be assessed. Then at a subsequent date an application could have been made by one or other of the parties for the appointment of a commissioner who would proceed to hold an enquiry, and assess the mesne profits upon the basis which the Judge had already directed when he passed the preliminary decree.
3. It is against the decision of the Judge as to the basis upon which the mesne profits are to be assessed, that the present application has been made, under Section 115, Civil P.C. The Judge decided that the basis as against the Secretary of State, should be the rent which he had realized from the tenants, if this was a fair and proper rent, or the rent which he could have realized by the exercise of due diligence, having regard to the rate of rent of similar lands in the locality. The latter factor of course need only be considered if the rent realizable by the exercise of due diligence would have been greater than the rent which he actually realized. With regard to the tenants the Judge decided that the basis for calculation of mesne profits should be the rate of rent which would be fair and equitable for the lands in question.
4. The petitioners who were the plaintiffs in the suit, have objected to this order on the ground that the meaning of mesne profits has been defined in Section 2, Sub-section 12, Civil P.C. In my opinion their contention is correct. It may be that the basis laid down by the Judge would work out substantially at the same figure as would be ascertained by adhering to the principle laid down in Section 2(12). But the petitioners have argued very strongly that this is not so, and that the figure which would be arrived at according to the basis in Section 2(12), would be much larger than the figure which would be arrived at on the basis of fair and equitable rent.
5. The question then arises whether we ought to interfere with this order. It is doubtful whether such an order comes within the provisions of Section 115, Civil P.C., which provides that the High Court may call for the record of any case which has been decided by any Subordinate Court and in which no appeal lies to the High Court. On the question whether such an order as this and similar interlocutory orders are cases within the meaning of that section, there has been a good deal of judicial disagreement. I should be inclined to think that the section is not intended to apply to orders of this kind. But if the learned Judge had acted as, in my opinion, he ought to have done in the first place, and had included this decision in his preliminary decree, other considerations might have arisen, and it may be that a preliminary decree Under Order 20, Rule 12, is a case within the provisions of Section 115, Civil P.C. That being so, and bearing in mind that a great deal of money, time and labour will be wasted if this inquiry be held upon the basis laid down by the Judge, assuming that this basis is a wrong one, which I believe it to be, I think that the circumstances ought to be considered sufficient to induce us to interfere with the order which the Judge has made. I am led to this conclusion because I feel that a great deal of money may be saved to both parties if a decision on the point be given now.
6. In my opinion, the learned Judge's direction was wrung, and must be set aside and he must direct the commissioner to inquire what are the mesne profits to which the plaintiffs are entitled and to assess them upon the basis that mesne profits have the meaning as defined in Section 2(12), Civil P.C. That is to say, he has to ascertain with regard to the tenants, what profits they actually received or might with ordinary diligence have received from their wrongful possession of the property, together with Interest on such profits.
7. With regard to the Secretary of State, his order seems to be correct. Mesne profits, as against him, are rightly assessed upon the basis of the rent actually received by him, unless it can be shown that with due diligence he could have obtained a higher rent. In order to provide for any dispute which may arise hereafter, as to the exact meaning of 'profits' in Section 2(12) which meaning it is not necessary for us at the moment to decide the Judge should direct the commissioner to ascertain (1) the gross profits which the tenant did obtain (or could reasonably, have obtained) from his cultivation of the soil; (2) what ought, reasonably, to be deducted from that gross sum for (a) costs of cultivation, and (b) on account of rent paid to the Secretary of State, and (3) the cost of maintenance of the cultivators.
8. After deducting the cost of cultivation, and the rent paid, and the cost of maintenance, the balance left appears to me to be the profit referred to in Section 2(12). If the plaintiffs disagree with any of these deductions, as for example the cost of maintenance of the cultivator it will be open to them to raise such points when the Judge makes his final decree Under Order 20, Rule 2(12), which of course is subject to appeal. In view of the fact that the points discussed herein are not free from difficulties and that the necessity for coming to this Court has arisen owing to the fact that the learned Judge seems to have misdirected himself in law, this rule will be made absolute but without costs.
M.C. Ghose, J.
9. I agree. The Rule must be made absolute on the ground that the learned Subordinate Judge committed an error of law in directing that the basis of calculation of mesne profits shall be the rate of rent which would be fair and equitable. The basis should be the profits which the cultivating tenants received or might with ordinary diligence, have received from the cultivation of the lands together with interest on such profits.
10. The learned advocate for the opposite party has urged that if a fair and equitable deduction be made for the rents and out of pocket expenses of the cultivation, namely the costs of cattle, ploughs and implements, the costs of feeding the workers who worked on the lands including the women who helped in threshing or otherwise, the net profit which would remain to the cultivators, would hardly exceed the amount which would be ascertained to be a fair and equitable rent. The learned Subordinate Judge will be particular in giving proper direction, on this basis, to the commissioner, but the basis must be according to the provisions in Section 2(12), Civil P.C., and not on the basis of rent.