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Baikuntha Nath Kundu and ors. Vs. Mohananda Borat Modak - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in58Ind.Cas.170
AppellantBaikuntha Nath Kundu and ors.
RespondentMohananda Borat Modak
Cases ReferredPuran Chand v. Roy Radha Kishen
Excerpt:
mesne profits during pendency of suit, whether can, be claimed in suit - suit, nature of--transfer of suit to court having higher pecuniary jurisdiction effect of. - .....sued the defendants to recover possession of certain lands valued at rs. 1,100 and claimed also mesne profits valued at rs. 5 for the period before the suit from the date of the alleged dispossession, about two months prior to the suit, and also for the subsequent period until delivery of possession under the decree which the plaintiffs might obtain. on the 31st marsh 1910 the plaintiffs obtained a decree for khas possession and mesne profits up to the delivery of possession. against this decision the defendants appealed unsuccessfully both to the district judge and to the high court and their appeal in the latter court was dismissed on the 27th march 1914, in the meantime the plaintiffs had taken out execution of their decree of possession and possession had been delivered to them on.....
Judgment:

1. This is an appeal against a decree for mesne profits. The only question that has been argued before us is whether the plaintiff's claim should not have been dismissed on the ground that it is forced by limitation.

2. In order to understand how this point arises it is necessary to state the dates and history of the litigation. On the 21st September 1908 the father of the present plaintiffs sued the defendants to recover possession of certain lands valued at Rs. 1,100 and claimed also mesne profits valued at Rs. 5 for the period before the suit from the date of the alleged dispossession, about two months prior to the suit, and also for the subsequent period until delivery of possession under the decree which the plaintiffs might obtain. On the 31st Marsh 1910 the plaintiffs obtained a decree for khas possession and mesne profits up to the delivery of possession. Against this decision the defendants appealed unsuccessfully both to the District Judge and to the High Court and their appeal in the latter Court was dismissed on the 27th March 1914, In the meantime the plaintiffs had taken out execution of their decree of possession and possession had been delivered to them on the 6th July 1911. Subsequent to the delivery of possession the plaintiffs applied for assessment of mesne profits for the period they were out of possession and valued these mesne profits at Rs. 5,582 15 annas. This application was made to the Munsif in whose Court the suit had been tried, and on the 27th May 1912 the Munsif came to a decision that he had no jurisdiction to entertain this application as it exceeded his pecuniary jurisdiction. The Munsif in passing this order directed that the plaint should be returned to the plaintiffs and in so doing followed the procedure prescribed in the case of Bhupendra Kumar Chakraoarti v. Purna Chandra Bose 8 Ind. Cas. 34 : 13 C.L.J. 132 : 15 C.W.N. 506. As the records of the case were in the High Court on account of the appeal, the plaint could not be returned to the plaintiffs until the 5th December 1914. Ten days later on the 15th December 1914 the plaintiffs filed the original plaint and the application for mesne profits in the Court of the Subordinate Judge. In dealing with the question of limitation the lower Appellate Court has held that Section 14 of the Limitation Act is applicable and prevented the plaintiffs' claim from being barred.

3. On behalf of the appellants reliance is placed on the decision of this Court in the Base of Abhoya Churn Chuckerbutty v. Gour Mohun Butt 24 W.R. 26, in which it was held that in cases were the plaintiff had filed the plaint in a wrong Court, he was not entitled to exclude, when calculating the period of limitation, the time which elapsed after the order returning the plaint was passed and until the plaint was actually returned. Belying on this decision it is contended that in the present case the plaintiffs are not entitled to exclude from limitation the period between the 27th May 1912 when the Munsif held that the application must be made to another Court and the 15th December 1914 when the application in the Subordinate Judge's Court was filed.

4. In our opinion the contention of the learned Vakil for the respondents is correct, namely, that the question of the applicability of Section 14 of the Limitation Act does not arise in this case. The law provides that when a person sues for recovery of possession, he can in the same suit recover mesne profits which have accrued before the suit and also which is exceptional, the mesne profits which have accrued pending the litigation, that is to say, can obtain relief on a cause of Act ion which had not arisen when his plaint was filed. When the plaintiff proceeds to take advantage of this provision of the law and enforce his claim on his subsequent cause of Act ion, he must be, we think, held to be continuing one and the same suit. The fact that on the subsequent cause of action the relief claimed by him amounts, owing to the action of the defendant, to a sum exceeding the pecuniary jurisdiction of the Court which decided the suit on the first cause of Act ion, necessitates a transfer of the proceedings in the suit to a Court of higher jurisdiction, but it does not amount to an interruption, so as to make the subsequent proceeding in the higher Court a different suit. Taking this view that the proceedings throughout are continuous, no question of limitation arises, as was pointed out in the Full Bench case of Puran Chand v. Roy Radha Kishen 19 C. 132 : 9 Ind. Dec. (N.S.) 534.

5. We must, therefore, affirm the decision of the lower Appellate Court though on different grounds, and dismiss this appeal with costs.


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