Patna High Court
Kapilman Misser vs Kokilman Misser And Ors. on 19 March, 1918
Equivalent citations: 62IND. CAS.747, AIR 1919 PATNA 581
JUDGMENT
1. This first appeal comes before as from the decision of the learned Subordinate Judge of Muzaffarpur, dated the 10th January 1917.
2. The suit was originally instituted by the plaintiff claiming partition and possession of a four-annas share of the lands specified in the plaint, coupled with a claim for mesne profits in respect thereof from the date of dispossession to the date of the recovery of possession of the same.
3. The learned Judge granted a preliminary, in a sense, but final decree for partition, and directed that the plaintiff was entitled to possession of his share of the lands so partitioned; and against that decree no appeal has been preferred to this Court; and in so far as the relief sought and granted by that decree qua partition and possession, the same has been effectually disposed of and finally determined.
4. By Item No. 5 of the claim and prayer to the plaint, the plaintiff sought compensation for mesne profits from the date of his dispossession until the recovery of possession of the property in suit; and the plaintiff has approximately estimated the value thereof at the sum of Rs. 500.
5. The plaintiff on the 15th of January 1914 filed a petition under Order XX, Rule 12, inviting the Court to exercise its jurisdiction and to direct an enquiry as to the ascertainment of the mesne profits due to the plaintiff and to pass a decree in respect thereof in favour of the plaintiff; and to this petition was added a schedule, showing exactly how the mesne profits claimed by the plaintiff were calculated; and that they amounted to the sum of Rs. 47,647-2-0.
6. On the 19th January the matter came before the learned Subordinate Judge, who directed notice to issue to the opposite party to show cause why a supplementary decree under Order XX, Rule 12 of the Civil Procedure Code, for the amount claimed by the plaintiff by way of mesne profits should not be granted; and the learned Judge directed that the case should be put up for final disposal on the 28th February 1914. The learned Subordinate Judge also by this order directed that the necessary process fee be paid by the plaintiff within three days.
7. The Court being unable to dispose of this application on the 28th of February, an order was made that the matter should be again put up for disposal on the 7th March 1914.
8. Accordingly on the 7th March when the application was called on for hearing, it appeared that the plaintiff had failed to pay the necessary process fee directed to be paid by the order of the 19th February; and accordingly the learned Judge was pleased to make the following order: "Application refused" Now the application that was refused was the application to assess mesne profits; and this disposed of the only remaining part of the original suit that was up to that time un disposed of.
9. On the 25th July 1914 the plaintiff filed another petition claiming an assessment of the mesne profits to which he was entitled, exactly similar to the petition which he filed on the 15th January 1914 and which had been dismissed on the 7th March 1914. The second petition was exactly in identical terms with the previous petition and the claim for mesne profits was exactly the same.
10. The learned Judge disposed of this application on the 15th of September 1914, and appointed Commissioners to enquire into the plaintiff's claim and assess whatever sum they thought fit and proper on the evidence adduced before them as to the amount of mesne profits to which the plaintiff was entitled. The learned Commissioners who were appointed by the learned Subordinate Judge a warded the plaintiff the sum of Rs. 6,000 as the measure of mesne profits to which the plaintiff was entitled.
11. The matter came before the learned Subordinate Judge on the 10th January 1917 for final disposal on the Commissioner's report; and objection was taken before the learned Subordinate Judge, as now before us, to the following effect that the learned Subordinate Judge had no jurisdiction to entertain the application presented on the 25th of July, 1914, inasmuch as the previous petition or application for the assessment of mesne profits, which was filed on the 15th January 1914, had been finally disposed of and dismissed by the lower Court' order of the 7th March; and that consequently the disposal of the application for mesne profits on the 7th of March was a disposal of all that was left remaining undisposed of in the original suit, and that thus no suit was pending in July 1914 in which any subsequent application could be made.
12. It is conceded that the order of the 7th March was an order properly made within the provisions of Order IX, Rule 2; and that the learned Judge was justified in dismissing the application for assessment of mesne profits on the grounds he did; and that the only available remedy open to the plaintiff against such order is that provided by Order IX, Rule 4, where under the plaintiff must elect to adopt one of the two courses, either to abide by the order dismissing the application for assessment of mesne profits and bring a fresh sail, or apply to set aside the order of dismissal, and seek to have the application for an enquiry and assessment of messe profits restored for hearing. The latter alternative course the plaintiff did not pursue.
13. It is unnecessary for us to determine whether the plaintiff still has a right to pursue his remedy by independent suit to recover the mesne profits which he claims for the years 1317 to 1321 F.S.
14. The learned Subordinate Judge disallowed the objection preferred before him by the defendant-appellant and on the plaintiff's second application for assessment of mesne profits awarded the plaintiff a decree for the sum of Rs. 1704-3-8. The learned Judge appears to us to have been entirely wrong in the conclusion at which he arrived in point of law. He summarises his conclusion in three lines in the following words:--"In the second place it was not the suit but the application of the plaintiff for the determination of profits that was dismissed for default: and so I do not think there is any bar to a fresh application of a similar nature." With great respect to the learned Judge he completely misunderstood the legal position of the parties and the relief which had been claimed in the original suit, which had been in part disposed of, and in respect of which only one item remained to be disposed of, viz., the assessment of mesne profits, and the condition in which the original suit then was.
15. We have been referred to the case of Upendra Chandra Singh v. Sakhi Chand 15 Ind. Cas. 700 : 16 C.L.J. 3. The facts of that case appear to us to be identical with the facts of the present case. It is impossible to distinguish the two cases. In the case reported as Upendra Chandra Singh v. Sakhi Chand 15 Ind. Cas. 700 : 16 C.L.J. 3 an order almost similar in terms to that in the present case was made, the difference only being that in the case cited the application for mesne profits was dismissed on the ground that the plaintiff failed to deposit the necessary Commissioner's fee incidental to the holding of the enquiry as to the assessment of mesne profits. The learned Judge who heard the case originally, by reason of the laches of the plaintiff in making the necessary payment, directed that the Commissioner should return the commission, "and that the case should be dismissed for default on behalf of the plaintiff."
16. Now the learned Judges on appeal who decided that case, Mr. Justice Mookerjee and Mr. Justice Carnduff, reviewed all the authorities with the greatest care and the learned Judges-were of opinion that there was no room for controversy on the question raised for their decision, and they held that once such an application for assessment of mesne profits was dismissed all that remained of the original suit was gone, and must be deemed dismissed, and that no fresh or subsequent application for assessment of mesne profits was entertain able. The learned Judges say as follows:--"The result was that on the 7th January 1910 the Court recorded an order to the effect that 'the Commissioner be directed to return the commission, and that the case be dismissed for default on behalf of the plaintiff' Now what was the 'case' thus dismissed? Clearly it was the claim of the plaintiff for recovery of mesne profits from the defendant; as that case was dismissed on the 7th of January 1910, it was obviously not open to the plaintiff to make a fresh application on the 13th January 1910 because there was no pending suit wherein that application could be deemed to have been made."
17. The learned Judges then dealt in detail with all the decisions touching and concerning the point arising now for our determination; and there seems to be general uniformity of opinion that once an application such as that in the present case was presented on the 15th of January 1914 and was dismissed on the 7th March 1914 that then the Court ceased to have seisin of the case; and that then no jurisdiction existed in the Court to entertain any fresh application with regard to the assessment of mesne profits. To the law so declared and laid down by the Judges of the Calcutta High Court we beg respectfully to subscribe.
18. A point has been taken before us with regard to the amount of Court-fee which should have been paid by the plaintiff in respect of his claim for mesne profits. However, having regard to the view we take on the question of law arising for our determination touching the invalidity of the decree of the learned Judge passed on the 23rd March 1917, it becomes unnecessary for us to determine the question arising with regard to the Court-fee payable. However, we desire to add that we are not by any means satisfied that the ruling of the learned Judge with regard to the Court-fee payable, which was debated before him, as before us, was correct.
19. Accordingly we allow this appeal and set aside the decree of the learned Subordinate Judge and direct that the plaintiff shall pay to the defendant his costs in the lower Court and the costs of this appeal.