Patna High Court
Ramjanam Singh And Anr. vs Babu Khub Lal Singh And Ors. And Babu Ram ... on 19 June, 1924
Equivalent citations: 80IND. CAS.710, AIR 1925 PATNA 145(2)
JUDGMENT Dawson Miller, C.J.
1. The suit out of which this appeal arises was instituted on the 31st May 1922 by the plaintiffs claiming from the defendants mesne profits in respect of an occupancy holding from the 1st June 1919 to the 21st January 1922 as well as the price of certain trees cut down by the defendants. A preliminary point was taken at the trial that the suit was barred by res judicata, the question of the plaintiffs' right to mesne profits from these defendants in respect of this property having been determined in a previous suit.
2. The Munsif before whom the case came for trial took the view that the suit was barred.
3. On appeal the learned District Judge of Darbhanga reversed the decision of the Munsif and directed the case to proceed and an investigation to be held as to the amount of mesne profits due.
4. It appears that the plaintiffs were the landlords of the holding in question which had been purchased by the defendants sometime in the year 1915. Subsequently the landlords sued for possession from the defendant on the ground that they were mere trespassers the holding in question being non-transferable without their consent. In that suit in addition to possession of the property they claimed also mesne profits. The claim with respect to mesne profits was put thus. In paragraph 8 of the plaint in that suit, after stating the value of the property in dispute and the amount of the Court-fee payable thereon, they futher state that the sum of Rs. 5-4-0 was the Court-fee on account of Rs. 69 mesne profits on a rough calculation and in their prayer they claim in addition to possession of the property that the Court may be pleased to pass a decree for mesne profits in favour of the plaintiff and the defendants' 4th party, the defendants' 4th party being some of their co-sharers who had not joined as plaintiffs, and that after passing the decree the amount of mesne profits may be ascertained and then they undertake to pay the deficit amount of Court-fee upon the mesne profits as calculated if there should be a deficiency.
5. In that suit the Court awarded the plaintiffs possession of the property but the judgment and the decree were absolutely silent as to mesne profits. No mention is made apparently in the judgment as to mesne profits and no determination is come to expressly upon the question of whether the mesne profits were recoverable or not. There was an application in review from that decree filed by the plaintiffs asking the learned Judge who decided the suit to amend the judgment by introducing into it a clause about the mesne profits but he refused to do so and it seems to me obvious that he had no power on an application in review to deal with a fresh matter which had never been put before him at the trial and for which so far as I can see there was no reason justifying the omission.
6. The matter went on appeal to the High Court and the High Court remanded the case for re-hearing not on the question of mesne profits but for other reasons. When the case went back again on remand, again some mention was made about the mesne profits but the learned Judge who re-heard the case on remand simply stated that he refused upon this point to interfere with the decision of his predecessor and there the matter stood.
7. In the present suit the claim of the plaintiffs is for mesne profits from the 1st June 1919 up to the 21st January 1922, that is for the mesne profits for three years prior to the suit except that there is no claim apparently for the period between the 21st January and the 31st May 1922 when the plaint was filed. The period for which mesne profits are claimed in the present suit it will be observed is a period subsequent to the institution of the previous suit. The first question which arises for determination is whether these mesne profits which were the profits accruing after the institution of the previous suit were in fact claimed in the previous suit because if they were not then it seems to me quite clear that there could be no question of res judicata arising here because the previous suit can only be conclusive of questions arising between the parties which were raised in that suit or which ought to have been raised or arose out of the same cause of action. I have already referred to the plaint in the previous suit and the conclusion I have come to on reading that plaint is that there was no claim whatever for future mesne profits. If that is so then it seems to me that that determines the question and that the learned District Judge in appeal was right in overruling the decision of the trial Court and sending the case back for re-hearing.
8. The argument which has been put before us on behalf of the appellants is based upon the construction of Section 11, Order II, Rule 2 and Order XX of the Civil Procedure Code. Shortly the argument is this that the plaintiffs were entitled in the previous suit to claim mesne profits not only for the period ending with the institution of the suit but for the subsequent period up to the delivery of possession or up to three years from the date of the decree whichever might be shorter and either that they did claim such profits, a point which I have already stated I find against them, or that if they did not that they were entitled to and if they failed to claim such relief as they were entitled to and the judgment was silent upon the question it must be taken that the point was decided against them and they cannot raise it in a subsequent suit. 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." It is clear that in so far as future mesne profits were concerned, that was not a matter directly and substantially in issue or indeed in issue at all in the previous suit but explanation V of that section is relied upon and it says "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." Again that part of the section is of no avail in the present case unless the claim to future mesne profits was a part of the relief claimed in the plaint. But it is said that with that section one must read Order II, Rule 2 which provides:
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
9. Again in this Order the relief referred to is the relief arising out of the cause of action and this Order does not appear to me to assist the appellants in this case because it is clear that at the date of the suit no cause of action had accrued for the subsequent mesne profits. But it is contended that the case is covered by Order XX, Rule 12 which provides that, (1) Where a suit is for the recovery of possession of immoveable property and for rent or mesne profits, the Court may pass a decree
(a) for the possession of the property;
(b) for the rent or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits;
(c) directing an inquiry as to 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". It is contended that this was a relief which was open to the plaintiffs in the previous suit and that the Court was bound by its decree to deal with all the reliefs which the plaintiffs were entitled to sue for and if it did not deal with those matters then, under the former provisions of the Code to which I have referred, it must be taken that the Court had decided against the plaintiffs, I cannot accede to this view. It seems to me quite dear that both in Section 11 and in Order II, Rule 2 the issues and claims there referred to are those which arise out of the cause of action and not those which arise out of some possible future cause of action, although for the sake of convenience it is provided by Order XX, Rule 12 that future mesne profits, although no cause of action may have arisen for such at the date when the suit was instituted, may be dealt with by the Court. It is noticeable that under Order XX, Rule 12 there is no obligation whatever upon the Court to determine any question as to the future mesne profits. It may, if it likes, direct an enquiry as to the rent or mesne profits from the institution of the suit until the date of delivery of possession or until one of the other periods mentioned in the rule. But if the Court does not choose to do so, and there may be good reasons for its refusing to exercise its jurisdiction, then it seems to me that it cannot be said that any question has been decided with regard to the mesne profits especially where they have not been claimed in the suit as here. We have been referred to certain cases in the Madras and Allahabad High Courts Doraiswami Aiyar v. Subramania Aiyer 42 Ind. Cas. 929 : 41 M. 188 : 22 M.L.T. 484; 33 M.L.J. 699 : (1917) M.W.N. 847 : 6 L.W. 784 and Mohammad Ishaq Khan v. Mohammad Rustum Ali Khan 44 Ind. Cas. 88 : 40 A. 292 : 16 A.L.J. 182 in which it was held that even where future mesne profits had been claimed in a previous suit, if the Court had not dealt with the matter at the hearing this did not amount to res judicata and did not bar a subsequent suit for those future mesne profits when the cause of action had in fact accrued. The Bombay High Court on the other hand in the case of Atmaram Bhaskar Damle v. Par ashram Ballal Kelkar 68 Ind. Cas. 419 : 44 B. 954 : 22 Bom. L.R. 982 took a contrary view. It is unnecessary for us to decide which of these conflicting views is, in our opinion, right, because in both cases the future mesne profits had been claimed in the previous suit whereas in the present suit the future mesne profits, which are the subject matter now in controversy, were not claimed at all in any previous suit. In my opinion the learned District Judge was right and the trial Court was wrong and this appeal must be dismissed with costs.
Foster, J.
10. I agree.