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Case Number

First Appeal No. 3 of 1917, from a decree of Man Mohan Sanyal, Additional Subordinate Judge of Meerut

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The Hon'ble Dr. Tej Bahadur Sapru (with him Pandit Kailas Nath Katju and Maulvi Sheikh Abdullah), for the appellants, contended that the suit was maintainable and the claim as to future mesne profits not having been tried at all in the earlier suit, section 11 did not apply. The plaintiff could not in that suit claim any decree for pendente lite and future mesne profits as a matter of right, no cause of action having arisen for the same at the date of the institution of that suit. It was entirely in the discretion of the court to grant or to refuse relief as to future mesne profits. Non-exercise of the discretion in the plaintiff's favour would not take away his right to future mesne profits when they actually become due; Ram Dayal v. Madan Mohun Lal and Man Mohun Sirkar v. The Secretary of State for India in Council. The lower court is of opinion that by reason of some change in arrangement and phraseology there had been a change in the law and the decisions under the old Code were no longer good law. This was not so. The language of sections 211 and 212 of the Old Code and order XX, rule 12, of the present Code was substantially the same, and the two sections in the Old Code had now been amalgamated into one. It was a well-settled principle of construction that the Legislature was presumed to know not only the general principles of law but the construction which the courts had put upon particular Statutes, and where a section of an Act which had received a judicial construction was re-enacted in the same words, such re-enactment must be treated as a legislative recognition of the construction; Ex parte Campbell. If the Legislature had intended to over rule the unanimous decisions of all the High Courts on the point, it would have done so by the use of char and apt language and not indirectly and by mere implication. Under the present Code all matters and inquiries relating to mesne profits were to be decided in the suit itself and could not be relegated to the execution department. In that view the retention of clauses (1) and (2) and the proviso to section 244 of the Code of 1882 had become useless, and consequently no similar provisions were to be found in section 47 of the present Code, which had been entirely recast. The insertion of the proviso to section 244 of the old Code under section 47 of the present Code, would have been entirely meaningless and out of place, and his omission therefore did not at all imply that a separate suit for future profits not dealt with by the decree would no longer lie. Reports of select committees there not admissible on questions of construction of statutes, and the lower court ought not to have referred to the report of 1903. But even if the report were looked at, it would favour the plaintiff's argument. The report of 1903 referred to by the lower court was appended to a bill which contained an express clause purporting to change the law and to overrule the previous decisions. But that bill had been withdrawn and in the report to the bill which was subsequently introduced and passed, there was no indication that any change in the law in that direction was ever contemplated, the lower court had relied upon the decision of the Madras High Court in Ramasami Iyer v. Srirangaraja Iyengar but that case had been subsequently overruled by a Full Bench of the Madras High Court; Doraiswami Ayyar v. T. Subramania Ayyar.
The Hon'ble Sir Sundar Lal (with him Mr. A.E Ryves), for the respondents, submitted that, if it were open to him, he was prepared to argue that the case of Ram Dayal v. Madan Mohan Lal(4) had been wrongly decided. Bui if that decision was one by which the Court was bound, it was submitted that there had been a change in the law, and by the amalgamation of old sections 211 and 212 in one section in the, present Code the Legislature had intended to place claims to all mesne profits (whether past or future) on an equal footing. The cause of action for recovery of immovable property and its rents and mesne profits was one and indivisible, and the plaintiff having once claimed mesne profits, could not bring a fresh suit for the same purpose. On a proper construction of order XX, rule 12, he could have insisted for a decree for future mesne profits. The omission of any provision in the present Code corresponding to the proviso to section 244 of the old Code was most significant and indicated that Explanation V, appended to section 11 of the present Code, would fully apply to the present case. He referred to section 34 of the present Code.
Pandit Kailas Nath Katju, in reply, submitted that causes of action for recovery of immovable property and for its mesne profits were separate and distinct; Nandan Singh v. Ganga Prasad.

Judges

Hon'ble Mr. Pramoda Charan Bannerji
Hon'ble Sir Henry George Richards
Hon'ble Sir Charles Ross Alston

Acts

Section 211 of the Code of Civil Procedure of 1882
section 244 of the Code of Civil Procedure of 1882,
provisions of section 11, Explanation V. Section 11
provisions of order XX, rule 12, of the new Code.
section of the Code of 1908 is section 47.
provisions of order II, rule 2,
section 47 of the new Code

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Smart Summary

Structured Summary of the Opinion (Richards, C.J. and Banerji, J.)

Factual and Procedural Background

The appeal arises from a suit for mesne profits. In an earlier suit the plaintiffs claimed possession of land and also claimed mesne profits for three periods: (a) prior to the institution of that earlier suit, (b) during the pendency of that earlier suit, and (c) after decree. The earlier suit resulted in a decree awarding the plaintiffs possession and a portion of the mesne profits claimed; the remainder of the mesne profits claim was dismissed. The earlier judgment did not deal with (or purport to deal with) mesne profits accruing during the pendency of that earlier suit or after decree.

In the present (subsequent) suit the plaintiffs sought mesne profits from the date of institution of the earlier suit up to the date of delivery of possession. The defendants relied on res judicata, arguing that the previous decree, and statutory provisions, precluded the subsequent suit. The appeal contested the dismissal of the subsequent suit by the lower court; this Court allowed the appeal, set aside the lower court's decree, and remanded the case with directions to re-admit and determine the suit according to law.

Legal Issues Presented

Whether a subsequent suit for mesne profits accruing from the date of institution of a prior suit up to the date of delivery of possession can be maintained when the prior suit resulted in a decree of possession and partially granted mesne profits but did not deal with mesne profits pendente lite or post-decree.
Whether the decree in the previous suit operates as res judicata under section 11 (Explanation V) and order II rule 2 of the Code of Civil Procedure so as to bar the subsequent suit for mesne profits.
Whether the provisions of the Code of Civil Procedure, 1908 (in particular order XX rule 12 and section 47) altered the law such that a second suit for mesne profits of the type in question could no longer be maintained.

Arguments of the Parties

Defendants' Arguments

The decree in the previous suit operates as res judicata under section 11, Explanation V, of the Code of Civil Procedure because any relief claimed in the plaint which is not expressly granted by the decree is deemed to have been refused; therefore the plaintiffs' present claim for mesne profits must be treated as refused by the prior decree.
Reliance was placed on order II, rule 2 (every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action) to contend that the prior suit should have included and finally determined the mesne profits now claimed.
The omission of the proviso in the new Code (section 47 corresponding to the old section 244 proviso) demonstrates legislative intent to preclude a separate suit for mesne profits accruing between the institution of the first suit and execution of the decree where such profits are not dealt with by the decree.

Note: The opinion does not contain a detailed, separate enumeration of the plaintiffs' (appellants') pleaded arguments in the same level of detail as the defendants' contentions. The Court's opinion, however, discusses authorities and statutory provisions that reflect the legal position relied upon by the appellants and earlier case-law supporting maintenance of a subsequent suit for mesne profits.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ram Dayal v. Madan Mohan Lal	Held that where a previous suit had claimed mesne profits both prior to institution and future mesne profits, a subsequent suit for mesne profits from the date of institution up to delivery of possession could be maintained if the previous court had not decided the right to those mesne profits.	The Court treated this decision as binding precedent that must be followed unless the Legislature altered the law in the new Code; it relied on Ram Dayal to support the proposition that a subsequent suit for mesne profits of the kind now before the Court can be maintained.
Doraiswami Ayyar v. T. Subramania Ayyar	Full Bench of the Madras High Court was of the opinion that, notwithstanding the provisions of the new Code, a suit for mesne profits like the present could be maintained.	The Court noted this recent Full Bench view as further authority supporting the maintainability of the subsequent suit; it was cited as consistent with the conclusion that the new Code did not abolish the right to bring such a suit.

Court's Reasoning and Analysis

The Court proceeded in a sequence of legal analysis grounded in the facts of the prior decree and statutory comparison:

Fact-based starting point: The earlier judgment granted possession and part of the mesne profits claimed by plaintiffs but did not deal with mesne profits pendente lite or after decree; therefore, the question was whether the earlier decree precluded a second suit for those mesne profits.
Res judicata argument: The defendants relied on section 11 (Explanation V) and order II rule 2 to assert that any relief not expressly granted by decree should be deemed refused and thus barred. The Court considered this contention but examined statutory scheme and precedents.
Precedent: The Court identified binding high court decisions, particularly Ram Dayal v. Madan Mohan Lal, which had held that a subsequent suit for mesne profits from the date of the institution of the prior suit up to delivery of possession could be maintained when the prior court had not decided the right to those mesne profits. The Court stated it was bound to follow this decision unless the Legislature by the new Code altered the law.
Comparative statutory analysis (old vs new Code): The Court reviewed the relevant provisions of the old Code — section 211 (authority to provide for payment of rent/mesne profits from institution until delivery of possession), section 212 (determination or inquiry into mesne profits accrued prior to institution), and section 244 (power of executing court to make inquiries, with a proviso expressly preserving a separate suit for mesne profits not dealt with by decree).
New Code provisions: The Court examined order XX, rule 12 of the 1908 Code (which consolidates the prior rules and provides that the court hearing the suit may pass decree for possession and for mesne profits prior to institution and may direct inquiry for mesne profits from institution to delivery of possession) and noted that section 47 of the new Code (corresponding to old section 244) omits references to mesne profits and the old proviso.
Significance of omissions: The defendants argued that omission of the old proviso in the new Code evidenced legislative intent to bar a second suit. The Court rejected that argument as not compelling: the proviso in the old Code applied to that specific section and would have been meaningless in the new Code because the new structure (order XX rule 12 and section 47) changed where mesne profits inquiries were to be made (i.e., by the court hearing the suit rather than the executing court). Thus omission of the proviso did not evidence a legislative intention to eliminate the right to sue separately.
Select committee and withdrawn bill: The Court observed that reference to a select committee report and a provision in a withdrawn Bill (which would have made clear that a second suit could not be maintained) did not survive in enacted law; if anything, the absence of that provision in the final Act tended to suggest the Legislature accepted existing judicial rule rather than intending to change it.
Practical considerations: The Court noted practical difficulties in ascertaining mesne profits pendente lite and future mesne profits in the original suit (for example, differing liabilities of multiple defendants and uncertainty until actual delivery of possession), supporting the view that a separate suit may be appropriate in some circumstances.
Reliance on other authority: The Court noted the Madras High Court Full Bench decision in Doraiswami Ayyar v. T. Subramania Ayyar as further support for the proposition that the new Code did not abolish the right to maintain such a subsequent suit.
Conclusion of law: On the combined footing of precedent, statutory construction, and practical considerations, the Court concluded that the new Code did not alter the pre-existing rule that allowed a subsequent suit for mesne profits of the kind now before it.

Holding and Implications

Holding: The Court allowed the appeal, set aside the decree of the court below, and remanded the cause with directions to re-admit the suit in its original number and to proceed to hear and determine it according to law. The appellants were awarded the costs of the appeal; other costs were to follow the event.

Implications:

The direct effect for the parties is that the lower court's dismissal/decree (as to the maintainability of the subsequent suit for mesne profits) has been set aside and the subsequent suit is to be re-admitted and heard on its merits.
The Court relied upon and followed existing judicial authorities (notably Ram Dayal v. Madan Mohan Lal and a Madras Full Bench decision) and concluded that the Code of Civil Procedure, 1908 (as enacted) did not alter the pre-existing rule permitting such subsequent suits where the prior decree had not dealt with the mesne profits in question. The opinion therefore adheres to established case law rather than announcing a novel departure from prior authorities.

Appeal decreed and cause remanded.

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Muhammad Ishaq Khan v. Muhammad Rustam Ali Khan

Richards, C.J and Banerji, J.:— This appeal arises out of a suit for mesne profits. A previous suit had been brought, in which possession of the land had been claimed. A certain sum was also claimed as mesne profits for the period prior to the institution of the suit. There was a further claim for mesne profits during the pendency of the suit and after decree. The Suit resulted in a decree for the plaintiffs for possession of the land and also a decree for a portion of the amount claimed by the plaintiffs for mesne profits. The rest of the plaintiff's claim was dismissed. On referring to the judgement it is quite clear that the court never dealt or purported to deal with the mesne profits during the pendency of the suit or after decree. In the present suit mesne profits are claimed from the date of the institution of the suit up to the date of delivery of possession. The defence is that the decree in the previous suit operates as res judicata, and reliance is placed upon the provisions of section 11, Explanation V. 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 … in a court competent to try such subsequent suit.” Explanation V provides that “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.” This explanation corresponds exactly with Explanation III of section 13 of the old Code. Reliance is also placed upon the provisions of order II, rule 2, which provides that “Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.” The contention on behalf of the defendants is that the court in the previous suit not having granted mesne profits during the pendency of the suit and from the date of the decree up to the date of delivery of possession must be deemed to have refused it. Further, the decree ought to be interpreted as having expressly dismissed the suit in respect of mesne profits save to the extent that mesne profits were granted. The very same question had frequently arisen in the High Courts in India before the coming into operation of the present Code of Civil Procedure. All the courts appear to have held that, notwithstanding the provisions of the old Code, a suit for mesne profits pendente lite and from the date of the decree to delivery of possession could be maintained. This was expressly held in the case of Ram Dayal v. Madan Mohan Lal. In that case, just like the present, there had been in a previous suit a claim for mesne profits prior to the institution of the suit and also future mesne profits. Nevertheless the court held that the subsequent suit for mesne profits from the date of the institution of the suit up to delivery of possession could be maintained when the court in the previous suit had not decided the right of plaintiff to these mesne profits. We think that we are bound to follow this decision, unless it 13 shown that the Legislature, when enacting the present Code of Civil Procedure, altered the law. It is a recognized rule that where there have been decided cases before an Act is amended, if the amendment does not expressly show that the law as interpreted by the decisions is altered, the rule laid down by the decisions, is to be adhered to.

We now propose to consider whether the provisions of the Code of Civil Procedure of 1908 altered the law in respect of the matter with which we are dealing. Section 211 of the Code of Civil Procedure of 1882 provided that is a “suit for the recovery of possession of immovable property yielding rent or other profits the court may provide in the decree for the payment of rent or mesne profits in respect of such property from the institution of the suit until the delivery of possession to the party in whose favour the decree was made.”

It is to be noted that in this section there is no reference to a claim in the plaint being made for mesne profits. Section 212 provided that where the suit was a suit for “possession of immovable property and for mesne profits which have accrued on the property during the period prior to the institution of the Suit and the amount of such profits is disputed, the court may either determine the amount by the decree itself or may pass a decree for the property and direct an inquiry into the amount of mesne profits and dispose of the same on further orders.”

The provisions of these two sections seem to have been amalgamated in the provisions of order XX, rule 12, of the new Code. That order provides that “where there is a suit for the recovery of possession of immovable property and for rent of mesne profits, the court may pass a decree (a) for possession of the property, (b) for the rent or mesne profits which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent or mesne profits, and (c) directing an inquiry as to the 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 judgement-debtor with the notice to the decree-holder through the court, or (iii) the expiration of three years from the date of the decree whichever event first happens.” Clause (2) of this rule provides “where an inquiry is directed under clause (b) or clause (c) a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of the inquiry.”

Under the old Code the practice was that, excepting those cases in which the court had actually found a certain amount due for mesne profits, the court executing the decree used to be called upon to make an inquiry and to ascertain in execution the amount of mesne profits, whether they were mesne profits which had accrued prior to the institution of the suit or mesne profits which had accrued between that date and the delivery of possession. The authority to make this inquiry was conferred on the court executing the decree by section 244 of the Code of Civil Procedure of 1882, to which we shall presently refer. It would seem, therefore, that the only substantial change that has been made in the law is that it is the court which hears the suit which is to ascertain the mesne profits, whether those mesne profits be mesne profits which accrued before the institution of the suit or afterwards up to date of delivery of possession, and it is this court which is to make the final decree for mesne profits which has to be executed by the court executing the decree. We do not think that any significance is to be attached to the fact that in section 211 of the old Code there is no reference to a claim for mesne profits or to the fact that order XX, rule 12, purports to deal with suits in which mesne profits are claimed. Section 244 of the old Code dealt with certain matters which were to be determined by the court executing the decree and not by a separate suit, and amongst other questions the very first mentioned were questions regarding the amount of any mesae profits as to which the decree had direct I an inquiry. There is a proviso at the end of the section in the following words:— “Nothing in this section shall be deemed to bar a separate suit for mesne profits accruing between the institution of the first suit and the execution of the decree therein where such profits are not dealt with by such decree.” The corresponding section of the Code of 1908 is section 47. In this section reference to all questions of mesne profits is omitted and the proviso which we have quoted from section 244 is also omitted. The argument is that this last mentioned omission is most significant and that it demonstrates the intention of the Legislature, that suits for the recovery of mesne profits alter a previous suit for possession cannot be maintained. A little consideration shows that this argument is not so forcible as might appear at first sight. The proviso to section 244 of the old Code seems to have presumed that there was nothing in the Code itself which would prevent a second suit for mesne profits, but that it might be contended that the provisions of section 244 would preclude a second suit, and accordingly the words of the proviso are not that nothing “in the Code” shall be deemed to bar a separate suit for mesne profits, but that nothing “in the section” shall be deemed to bar such a suit. It becomes apparent that the retention of this proviso in the new Code would have been altogether meaningless and out of place, because in section 47 of the new Code there is no reference to inquiries as to mesne profits at all, and order XX, rule 12, to which we have already referred, expressly takes away the jurisdiction of the court executing the decree to make any inquiry in respect of mesne profits. The learned Judge in the court below has referred to the report of the select committee on the provisions of the contemplated amendment of the Code of Civil Procedure. If it were permissible to consider the report at all, the inference would seam to be rather against the respondents than in their favour. The quotation had reference to a Bill which was subsequently withdrawn. In this Bill there was a provision which would have made it quite clear that a second suit for mesne profits could not be maintained. This provision does not find a place in the measure which was actually enacted. If any legitimate inference could be drawn at all, it would seem as if the Legislature, knowing well the course of decisions in the Courts in India had come to conclusion that it was best to maintain the rule of law as established by the cases. In this connection it may not be altogether out of place to suggest that there are some practical difficulties in the way of ascertaining mesne profits pendente lite and particularly future mesne profits in the original suit. Where there are more defendants than one, their liability may not be altogether the same, and the final ascertainment of the amount due for mesne profits from the date of the decree to the time of delivery of possession can never be made until possession is actually taken by relinquishment on the part of the defendants or through the court. We may mention here that the question recently arose in the Madras High Court in the case of Doraiswami Ayyar v. T. Subramania Ayyar, in which the majority of a Full Bench of that Court were of opinion that, notwithstanding the provisions of the new Code, a suit for mesne profits like the present could be maintained.

We allow the appeal, set aside the decree of court below and remand the case to that court with directions to re-admit the suit in its original number and to proceed to hear and determine the same according to law. The appellants will have their costs of this appeal. Other costs will follow the event.

Appeal decreed and cause remanded.

Muhammad Ishaq Khan v. Muhammad Rustam Ali Khan

Structured Summary of the Opinion (Richards, C.J. and Banerji, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Defendants' Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Muhammad Ishaq Khan v. Muhammad Rustam Ali Khan

Comments