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Attorney(S)
  • S.N.Banerjee
  • Rai Parasnath
  • L.K.Chaudhry
  • Baldeva Sahay
Judges
  • Ramaswami
  • Narayan, JJ.
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Citation Codes
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Case Number
Attorney(S)
  • S.N.Banerjee
  • Rai Parasnath
  • L.K.Chaudhry
  • Baldeva Sahay
Judges
  • Ramaswami
  • Narayan, JJ.
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Smart Summary

Judgment Summary — Ramaswami, J. (Ranchi Subordinate Judge Order Challenge)

Factual and Procedural Background

The present rule challenges an order of the Subordinate Judge of Ranchi dated 15 July 1949 which set aside an ex parte final decree in exercise of the Court's inherent jurisdiction (Section 151, Civil Procedure Code). The underlying suit was instituted on 18 August 1942 by Mt. Balmati Kuari seeking partition of a 1/5th share in certain immovable properties. The trial Judge dismissed the suit and an appeal was taken to the High Court.

On 1 March 1946 the parties before the High Court entered into a compromise. The High Court disposed of the appeal in terms of that compromise and remitted the matter to the Subordinate Judge to ascertain the net income of the family properties. The compromise provided, inter alia, that Mt. Balmati Kuer shall be entitled to 1/8th of the total net income of the family properties in satisfaction of her claim and in lieu of maintenance, the share to be charged on the properties.

Following the remand, a pleader-commissioner was appointed and submitted his report on 28 January 1948. With no objections filed, the Subordinate Judge accepted the report and ordered that a final decree be prepared. On 30 July 1948 Rameshwar Pandey, curator of defendant 4, applied to the Court to set aside the final decree, alleging (i) defendant 4 was not properly represented before the commissioner, (ii) the commissioner calculated mesne profits for six years contrary to the High Court's consent order, and (iii) there had been an abuse of the court's process. The Subordinate Judge, after hearing, allowed the application and set aside the final decree under Section 151 CPC on the ground of gross mistake by the pleader-commissioner and miscarriage of justice.

A rule was thereafter directed to test the correctness of the Subordinate Judge's exercise of inherent jurisdiction. Counsel for the rule-petitioner (Mr. L.K. Choudhuri) contended that the Subordinate Judge lacked jurisdiction to set aside the ex parte final decree under inherent powers beyond the statutory period of limitation, relying on earlier authorities. The High Court (Ramaswami, J.) considered the factual record, legal distinctions between mesne profits and net income, relevant precedents on the scope of inherent jurisdiction, and upheld the Subordinate Judge's exercise of power. The rule was discharged and the application dismissed; there was no order as to costs. Narayan, J. concurred.

Legal Issues Presented

  1. Whether the Subordinate Judge could, in exercise of the inherent jurisdiction under Section 151 of the Civil Procedure Code, set aside an ex parte final decree where the decree resulted from a gross mistake or abuse of the court's process.
  2. Whether the existence of a statutory limitation period prevents a court from invoking its inherent jurisdiction (S.151) to set aside an ex parte final decree that is alleged to be tainted by mistake or abuse.
  3. Whether the pleader-commissioner's computation of "mesne profits" for six years fulfilled the remit to ascertain the "net income" of the family properties as required by the compromise decree recorded by the High Court (i.e., the legal distinction between mesne profits and net income and its relevance to the remand).

Arguments of the Parties

In support of the rule (counsel: Mr. L.K. Choudhuri)

  • The learned Subordinate Judge had no jurisdiction to set aside an ex parte final decree by invoking inherent powers beyond the period of limitation prescribed by statute.
  • Reliance was placed on Ajodhya Mahton v. Mussammat Phul Kuer to argue that where a definite statutory period is provided, the Court cannot extend it by invoking inherent jurisdiction (S.151).
  • Reference was also made to Surendra Kumar Singh v. Mukund Lal Sahu to support the proposition that inherent power is intended to remedy abuse of process only and not to create ad hoc new procedures or to deprive a party of a vested right (e.g., in foreclosure cases).

On behalf of the applicant who sought setting aside of the decree (as presented in the record)

  • The application to set aside the final decree alleged that defendant 4 was not properly represented before the commissioner, that the commissioner had calculated mesne profits for six years in direct contravention of the High Court's consent order, and that there had been an abuse of the process of the Court.
  • On behalf of the applicant (as recorded), learned counsel contended there was no difference between the calculation of net income and the calculation of mesne profits (this contention was considered and rejected by the Court).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Ajodhya Mahton v. Mussammat Phul Kuer, 1 Pat. 277 (A.I.R. (9)1922 Pat. 479) Where a definite period of limitation is provided by law, a Court cannot extend that period by purportedly acting under its inherent powers (S.151/CPC). The Court distinguished the present facts from Ajodhya Mahton because that case lacked any allegation of mistake or abuse of process; thus Ajodhya Mahton did not preclude exercise of inherent jurisdiction where a gross mistake or abuse existed.
Surendra Kumar Singh v. Mukund Lal Sahu, A.I.R. (36) 1949 Pat. 68 Inherent power of a Court is to be exercised primarily to grant relief against abuse of process and not to invent new procedures or to deprive parties of vested rights (e.g., setting aside ex parte final decree for foreclosure). The Court noted the distinction that in Surendra Kumar Singh there was no finding of abuse; by contrast, in the present case a gross mistake/abuse was found, permitting exercise of inherent jurisdiction.
Girish Chander v. Soshi Shikhareswar, 27 I.A. 110 (27 Cal. 951 P.C.) Mesne profits are in the nature of damages and may be moulded by the Court according to justice of the case. The Court used this authority to explain the legal concept of mesne profits and to show that mesne profits differ in principle from a share of net income; thus the commissioner's approach was legally inappropriate for the net-income remit.
Abdul Ghafur v. Raja Ram, 23 All. 252 (1901 A.W.N. 80) When trespass is aggravated, the Court has discretion to refuse to allow collection expenses incurred by the trespasser in computing mesne profits. Relied upon to illustrate that mesne profits are compensatory/damages-based and differ from the calculation of a share of net income charged on property.
Debi Bakhsh Singh v. Habib Shah, 35 All. 331 (40 I.A. 151 P.C.) S.151/CPC may be invoked where there has been an abuse of the process of the Court or a miscarriage of justice caused by acts/oversights of the Court; inherent power can rectify such mistakes. The Court held the present case falls within the principle of Debi Bakhsh Singh and relied on it to support the exercise of inherent jurisdiction to set aside the decree which resulted from a court-related mistake and miscarriage of justice.
Balgobind v. Sheo Kumar, A.I.R. (11) 1924 All 818 (46 All. 864) S.151 can correct gross mistakes on the face of the record and prevent an abuse of process or a miscarriage of justice (example: wrong preliminary decree for foreclosure instead of for sale). The Court treated this case as authority for the proposition that S.151 is apt to correct clear miscarriages and applied the principle by analogy to the present facts where a gross mistake by court officers led to an improper final decree.
Rodger v. Comptoir d'Escompte de Paris, (1871) L.R. 3 P.C. 465 (40 L.J. P.C. 1) It is inherent in the Court's jurisdiction to act rightly and fairly so that no act of the Court injures the suitors; the collective Court must guard against acts throughout proceedings that cause injustice. Quoted to underscore the general, quasi-equitable foundation for inherent jurisdiction to correct injustices or oversights arising from the acts of court officers or processes.
Pulteney v. Warran, (1801) 6 Ves. 73 (31 E.R. 944) Courts ought to relieve parties against injustices occasioned by the Court's own acts or oversights. Quoted to reinforce the historical principle that courts should correct injustices caused by their own mistakes, supporting the exercise of inherent jurisdiction in the present matter.

Court's Reasoning and Analysis

The Court's analysis proceeded in a series of discrete steps, grounded in the factual record and established principles concerning inherent jurisdiction and the legal meaning of mesne profits:

  1. Factual finding of error: The pleader-commissioner was appointed to ascertain the net income of the family properties pursuant to the High Court's compromise decree recorded on 1 March 1946. The commissioner's report, however, expressly stated he was appointed "to ascertain mesne profits of the suit properties for the period directed in the decree" and proceeded to calculate mesne profits for six years (1942–1947), acknowledging there was no period mentioned in the decree. The Court found this to be a gross mistake and inconsistent with the terms of the compromise.
  2. Distinction between mesne profits and net income: The Court rejected the applicant's counsel's contention that there is no difference between net income and mesne profits. The Court explained (and cited authority) that mesne profits are compensatory damages recoverable for wrongful possession (measuring what the plaintiff might reasonably have made), whereas a share of net income charged on family properties, payable in lieu of maintenance, is a different species of entitlement. This conceptual distinction made the commissioner's approach legally inappropriate for the remit.
  3. Failure of the Subordinate Judge to apply mind initially: After the commissioner filed his report, the Subordinate Judge mechanically accepted it without verifying whether it conformed to the compromise decree. This compounded the initial error by not scrutinising whether the report addressed "net income" as required.
  4. Proper scope of S.151/CPC and prior authorities: The Court considered authorities cited for the proposition that inherent power cannot be used to override statutory limitation periods or to invent new procedures. The Court distinguished those authorities on their facts (notably Ajodhya Mahton and Surendra Kumar Singh) because they lacked a finding of mistake or abuse. Conversely, authorities such as Debi Bakhsh Singh and Balgobind were invoked to demonstrate that S.151 is appropriately available to correct miscarriages of justice and abuses of process arising from mistakes on the face of the record or court-related oversights.
  5. Equitable/legal principle supporting correction: The Court cited English authorities (Rodger v. Comptoir and Pulteney v. Warran) to show the long-standing principle that courts possess an inherent duty to prevent acts of the court (or its officers) from causing injustice to suitors, which underpins S.151's proper exercise in appropriate cases.
  6. Conclusion on exercise of inherent jurisdiction: Given the pleader-commissioner's evident misdirection (treating the remit as one for mesne profits), the Subordinate Judge's subsequent mechanical acceptance of the report, and the resulting miscarriage of justice, the present case constituted a clear instance warranting application of the Court's inherent powers under Section 151 to set aside the ex parte final decree.

Holding and Implications

Holding: The High Court held that the learned Subordinate Judge rightly exercised his inherent jurisdiction under Section 151 of the Civil Procedure Code in setting aside the ex parte final decree. The Court accordingly discharged the rule challenging that exercise and dismissed the application.

Implications:

  • The direct effect: The Subordinate Judge's order setting aside the ex parte final decree stands upheld by the High Court — the challenge to that order was dismissed.
  • Reasoning scope: The decision emphasizes that where a final decree or proceeding results from a gross mistake by court officers (e.g., a commissioner) or there has been an abuse of the court's process producing a miscarriage of justice, a court may legitimately invoke its inherent jurisdiction (S.151) to correct the error, notwithstanding arguments based on limitation or procedural bars — provided the facts show abuse or mistake on the face of the record.
  • Costs: The Court ordered dismissal of the application but made no order as to costs.
  • Precedential effect: The judgment applies established principles from earlier authorities to the facts; it does not announce novel legal doctrine beyond affirming that S.151 is available to correct clear miscarriages or abuses of process. (The opinion itself relies on and distinguishes earlier precedents rather than purporting to create a new rule.)

Judge Narayan concurred. The formal disposition recorded: "Application dismissed." (Ramaswami, J.; Narayan, J. — concurrence.)

Show full summary ...

    Mt. Balmati Kuari v. Jagbandhan Nath Tewary And Others Opposite Party.

    Ramaswami, J.:— This rule is directed against an order of the Subordinate Judge of Ranchi dated 15th July 1949 setting aside a final decree passed ex parte in exercise of his inherent jurisdiction.

    2. On 18th August 1942 applicant Mt. Balmati Kuari brought the suit asking for partition of 1/5th share of certain immovable properties. The suit was dismissed by the trial Judge and an appeal was preferred before the High Court. On 1st March 1946 the parties agreed to a compromise and the High Court disposed of the appeal in term thereof. According to the compromise (1) the case was to be remitted to the learned Subordinate Judge for ascertaining the net income of the family properties regarding which the suit was brought, (2) Mt. Balmati Kuer shall be entitled to 1/8th of the total net income of the family properties as ascertained by the learned Subordinate Judge in satisfaction of her claim in the suit and in lieu of maintenance, (3) the above share of the income shall be paid by the respondent annually to the appellant and shall be a charge on the properties.

    3. After the remand the learned Subordinate Judge issued a writ to a pleader-commissioner who submitted his report on 28th January 1948. As no objections were filed the Subordinate Judge accepted the report and ordered that a final decree should be prepared. On 30th July 1948 Rameshwar Pandey, curator of defendant 4, applied to the Court asking that the final decree should be set aside on the ground that defendant 4 was not properly represented before the commissioner, that the latter calculated mesne profits for six years in direct contravention of the consent order passed by the High Court and that there had been an abuse of the process of the Court. After hearing the parties the learned Subordinate Judge allowed the application, and set aside the final decree under Section 151 of the CPC, on the ground that there had been a gross mistake on the part of the pleader, commissioner and there had occurred miscarriage of justice. In support of this rule Mr. L.K Choudhuri contended that the learned Subordinate Judge had no jurisdiction to set aside the ex parte final decree in exercise of his inherent powers beyond the period of limitation prescribed by the statute. In support of his argument learned counsel cited Ajodhya Mahton v. Mussammat Phul Kuer*, 1 Pat. 277 : (A.I.R (9) 1922 Pat. 479) in which a Bench of this Court held that an ex parte final decree could not be set aside under O. 9, R. 13, on the ground that the application for the final decree was barred by time that if a definite period of limitation has been provided by law within which action must be taken a Court is not entitled to extend such period by purporting to act under S. 181. But the facts of this case must be distinguished for there was no allegation that there has been any mistake or abuse of the process of the Court. Learned counsel also referred to Surendra Kumar Singh v. Mukund Lal Sahu, A.I.R (36) 1949 Pat. 68, in which Ray, J. observed that the inherent power of Court is intended to be exercised only for granting relief against abuse of process of Court and not for spinning out a new procedure for a particular suit or proceeding, that such a power cannot be exercised for setting aside an ex parte final decree for foreclosure as it would necessarily involve loss of a vested right in plaintiff. It should again be noticed that in this case Ray J. clearly found that there was no abuse of process of Court and it was only for granting relief against such abuse that inherent power is given.

    4. In the present case it is manifest that the pleader commissioner made a gross mistake in not ascertaining the total net income according to the terms of the compromise decree which the High Court recorded. The pleader-commisioner commenced his report by stating that he had been appointed “to ascertain mesne profits of the suit properties for the period directed in the decree.” At p. 5 of his report the pleader commissioner states that he had been ordered to ascertain mesne profits for the year directed in the decree but

    “as there is no period mentioned in the decree he calculated mesne profits of the properties for six years, i.e from the year 1942 when the property was released from the management of the Encumbered Estates and up to the year 1947.”

    It is not disputed that; the compromise decree was passed in the High Court on 1st March 1946 and it is not clear upon whit bans the pleader-commissioner calculated the mesne profits for six years from the date of the institution of the suit. On behalf of the applicant learned counsel contended that there was no difference between the calculation of net income and mesne profits. In my opinion it is not possible to accept this argument. The term ‘mesne profits’ is used to denote compensation that is to say damages recoverable from a person who has been in wrongful possession, and in such circumstances means that which the plaintiff has lost by reason of the wrongful act of the defendant; and it is not the profit actually made by the defendant but that which the plaintiff right reasonably be expected to have made, had his possession not been wrongfully disturbed. When the wrongful possession is of a very aggravated character the Court may in computing mesne profits refuse to take into account even the collection expenses incurred by the wrong-doer during the period of his possession. In Girish Chander v. Soshi Shikhareswar, 27 I.A 110 : (27 Cal. 951 P.C), the Judicial Committee observed that mesne profits were in the nature of damages which the Court may mould according to the justice of the case. In Abdul Ghafur v. Raja Ram, 23 All. 252 : (1901 A.W.N 80), the High Court held that when the trespass is of an aggravated character the Court had full discretion to refuse collection expenses incurred by a trespasser for the period he was in possession. It is manifest, therefore, that there is a great difference in principle between calculating “mesne profits” recoverable from a person who is in tortious possession and “a share of net income” due from the defendant who is in possession of the joint family properties which sum is given in lie of maintenance and which is to be charged on the family properties. Instead of determining the total net income of the properties it would seem that the Court bad issued a writ to the Commissioner for “ascertainment of mesne profits for the period directed in the decree” which decree is silent about mesne profits or about the period for which it should be computed. After the commisioner had submitted his final report the learned Subordinate Judge again committed it mistake in mechanically accepting it without applying his mind to the question whether the commissioner's report was in accordance with the terms of the compromise decree which the High Court recorded. In my opinion there is no clearer case for exercising inherent jurisdiction than the present one and the learned Subordinate Judge properly exercised it for setting aside the final decree passed.

    5. It is manifest that the present case falls within the principle of Debi Bakhsh Singh v. Habib Shah, 35 All. 331 : (40 I.A 151 P.C) in which for non appearance of the plaintiff an order was made dismissing the suit for default. The plaintiff was in fact dead at the time the order was made and his son, the appellant, was engaged in performing his father's funeral ceremonies and was unable to attend the Court, These facts were brought to the notice of the Deputy Commissioner and an application was made under O. 22, Rr. 3 and 9 by the son as the heir and legal representative of the plaintiff. The application was accepted by the Deputy Commissioner within the time allowed by law and an order was made setting aside the dismissal of the suit and substituting the name of the son on the record in place of the deceased plaintiff. On an application for revision of the Deputy Commissioner's order under S. 11 of the Code the Court of the Judicial Commissioner reversed it holding that the order of dismissal of the suit was a proper order under O. 9, R. 8 and the application to set-aside the order was not within time and was barred and O. 22, R. 3 applied only to a still pending suit and not to one that had been dismissed. On appeal the Judicial Committee held that there was an abuse of the process of the Court within the meaning of S. 151 of the Code, that the order of the Deputy Commissioner setting aside the dismissal was manifestly sensible and correct and ought to be restored. In pronouncing the opinion of the Judicial Committee Lord Shaw observed:

    “Quite apart from S. 151, any Court might have rightly considered itself to possess an Inherent power to rectify the mistake which had been inadvertently made. But S. 151 could never be invoked in a case dearer than the present, and their Lordships are at a loss to understand way, apart from points of procedure and otherwise, It was not taken advantage of.”

    6. The principle was followed in Balgobind v. Sheo Kumar, A.I.R (11) 1924 All 818 : (46 All. 864) in which there was a gross mistake on the part of the Court. A preliminary decree for foreclosure had been passed in a mortgage suit instead of a preliminary decree for sale. The High Court observed that even if the parties had not shown a prompt sense of their obligation or a right appreciation of the appropriate procedure it was nonetheless the object of Courts to decide the rights of parties and not to punish them for mistake they had made in the conduct of their case, that S. 151 could not be invoked more appropriately than for the purpose of correcting a miscarriage of justice appearing on the face of the proceedings and to prevent an abuse of the process of the Court. The High Court added that it would be absolutely shocking, if the Court were to enforce against a mortgagor or any one interested in the equity of redemption a foreclosure decree when he had been misled by its duly accredited agent owing to the issue of a notice for a decree for sale. Accordingly High Court set aside the decree absolute for foreclosure made in the case.

    7. In this context reference should be made to Rodger v. Comptoir d'Escompte de Paris, (1871) L.R 3 P.C 465 at p. 475 : (40 L.J P.C 1), in which Lord Cairns L.C laid down the principle that it is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved. At page 475, Lord Cairns states:

    “One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression ‘the act of the Court’ is used, it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court.”

    8. In this connection, the language of Lord Eldon in Pulteney v. Warran, (1801) 6 Ves. 73 at p. 92 : (31 E.R 944) has application:

    “If there be a principle, upon which Courts of justice ought to act without scruple, it is this; to relieve parties against that injustice occasioned by its own acts or oversights at the instance of the party, against whom the relief is sought. That proposition is broadly laid down in some of the cases.”

    9. Upon these grounds I think that the learned Subordinate Judge rightly acted under his inherent jurisdiction in setting aside the ex parte final decree made in this case. I should accordingly discharge the rule.

    10. The application is dismissed but there will be no order as to costs.

    11. Narayan, J.:— I agree.

    V.S.B

    12. Application dismissed.

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    Comments

    Mt. Balmati Kuari v. Jagbandhan Nath Tewary And Others Opposite Party.
    (May 11, 1950)