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Mohammed Ishaq Khan And Ors. v. Mohammed Rustum Ali Khan And Ors.
Structured Summary of the Opinion (Mesne Profits Appeal)
Factual and Procedural Background
This appeal arises from a suit for mesne profits following an earlier suit for possession of immovable land. In the earlier suit the plaintiffs sought (a) possession of the land, (b) mesne profits for the period prior to the institution of that suit, and (c) mesne profits during the pendency of that suit and after decree. The earlier suit resulted in a decree granting possession to the plaintiffs and a decree for a portion of the mesne profits claimed; the remainder of the mesne profits claim in that suit was dismissed. The earlier judgment, however, did not deal with mesne profits accruing during the pendency of the earlier suit or after the decree.
In the present suit (the subject of this appeal) the plaintiffs claim mesne profits from the date of institution of the earlier suit up to the date of delivery of possession. The defendant contends that the earlier decree operates as res judicata and bars the present suit, relying on Section 11 (Explanation V) of the Code of Civil Procedure and Order II, Rule 2. The appeal challenges the decision of the Court below that (implicitly) sustained that contention.
Legal Issues Presented
- Whether a subsequent suit for mesne profits accruing from the date of institution of an earlier suit up to the date of delivery of possession is barred by res judicata where the earlier decree did not expressly grant those mesne profits, having regard to Section 11 (Explanation V) and Order II, Rule 2 of the Code of Civil Procedure.
- Whether the enactment of the Code of Civil Procedure, 1908 (including provisions such as Order XX, Rule 12 and Section 47) altered the pre-existing law so as to preclude a second suit for mesne profits when the earlier decree did not deal with or expressly grant those mesne profits.
Arguments of the Parties
Defendant's Arguments
- The defendant contended that the earlier decree operates as res judicata under Section 11 of the Code of Civil Procedure because the mesne profits claimed in the present suit were matters "directly and substantially in issue" in the former suit.
- Reliance was placed on Explanation V to Section 11, which provides that any relief claimed in the plaint but not expressly granted by the decree shall be deemed to have been refused, and on Order II, Rule 2, which requires that a suit include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action.
- From these provisions the defendant argued that, because the earlier court did not grant mesne profits for the pendency period or for the period after decree up to delivery of possession, the right to those mesne profits was deemed refused and cannot be the subject of a subsequent suit.
Plaintiff's Arguments
The opinion does not contain a detailed account of the plaintiffs' specific legal arguments in the present summary beyond their seeking mesne profits from the date of institution up to delivery of possession and reliance on prior authorities permitting such subsequent suits when the prior decree did not decide those profits.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ram Dayal v. Madan Mohan Lal, 21 A. 425 : A.W.N. (1899) 153 : 9 Ind. Dec. (N.S.) 979 | Held that a subsequent suit for mesne profits from the date of the institution of the first suit up to delivery of possession could be maintained where the earlier suit had not decided the plaintiffs' right to those mesne profits. | The court treated this decision as binding precedent and stated it was bound to follow it unless the Legislature had clearly altered the law in the new Code of Civil Procedure. The decision supported the proposition that the present suit can be maintained. |
| Doraisami Aiyar v. Subramania Aiyar, (1917) M.W.N. 847; reported also at 42 Ind. Cas. 929; 33 M.L.J. 699; 22 M.L.T. 484; 6 L.W. 784; 41 M. 188 | Full Bench of the Madras High Court held that notwithstanding the provisions of the new Code a suit for mesne profits like the present could be maintained. | The court cited this Full Bench decision as additional authority supporting the conclusion that the new Code did not bar a subsequent suit for mesne profits where the earlier decree had not dealt with those profits. |
Court's Reasoning and Analysis
The court set out the defendant's res judicata argument based on Section 11 (Explanation V) and Order II, Rule 2, and then examined the prior case-law and the statutory scheme to determine whether the Code of Civil Procedure, 1908, changed the prior rule that permitted a subsequent suit for mesne profits where the earlier decree had not decided them.
First, the court observed that decided cases under the old Code (specifically the Ram Dayal decision and other High Court authorities) had held that a subsequent suit for mesne profits pendent lite and for the period after decree up to delivery of possession could be maintained when the earlier court had not adjudicated those profits. The court stated it was bound by those authorities unless the Legislature clearly altered the law.
Second, the court compared the provisions of the old Code with those of the 1908 Code:
- Under the old Code, Section 211 authorized the court in a suit for recovery of possession of immovable property yielding rent or profit to provide in the decree for payment of rent or mesne profits from institution until delivery of possession. Section 212 addressed determination or inquiry into mesne profits accrued prior to institution.
- Under the new Code, Order XX, Rule 12 consolidates these functions: it permits the court to decree possession, to decree or direct inquiry as to mesne profits accrued before institution, and to direct an inquiry as to mesne profits accruing from institution to events such as delivery of possession (or other enumerated events), with a final decree in accordance with the inquiry result.
- Under the old Code, Section 244 empowered the executing court to make certain inquiries (including as to mesne profits where the decree directed an inquiry) and contained a proviso stating that nothing in that section should be deemed to bar a separate suit for mesne profits accruing between the institution of the first suit and execution where such profits are not dealt with by the decree.
- In the new Code the corresponding provision is Section 47, from which the reference to mesne profits and the proviso have been omitted; instead Order XX, Rule 12 expressly assigns to the trial court (the court which heard the suit) the function of finally determining mesne profits and removes the executing court's jurisdiction to make such enquiries.
The court reasoned that the omission of the proviso from the executing-court section of the new Code is not, by itself, sufficient to show that the Legislature intended to alter the previously established rule permitting a second suit. The opinion explained that the proviso in the old Section 244 referred only to that section and would have been meaningless in the new Code, given the different allocation of enquiry jurisdiction under Order XX, Rule 12 and Section 47. Thus the absence of the old proviso does not demonstrate a legislative intention to bar subsequent suits for mesne profits.
The court also referred to the report of the Select Committee and to a withdrawn Bill that would have clearly barred a second suit for mesne profits; the court noted that because that Bill was withdrawn and the final enacted measure did not include that provision, if any inference is to be drawn it is that the Legislature chose to preserve the existing rule as established by the decisions.
Finally the court observed practical difficulties in determining future mesne profits in an original suit (for example, differing liabilities among multiple defendants and the impossibility of quantifying post-decree mesne profits until possession is taken). The court further relied on the Madras Full Bench decision (Doraisami Aiyar v. Subramania Aiyar) as supportive of its interpretation.
On the basis of this analysis the court concluded that the Code of 1908 did not alter the rule permitting a subsequent suit for mesne profits when the earlier decree had not dealt with those profits, and therefore the defendant's res judicata contention failed.
Holding and Implications
APPEAL ALLOWED; DECREE SET ASIDE; CASE REMANDED FOR RE-ADMISSION AND TRIAL
The court allowed the appeal, set aside the decree of the Court below and remanded the case with a direction 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, including fees on the higher scale; other costs were directed to follow the event.
Implications: The direct effect is that the plaintiffs' subsequent suit for mesne profits (from the date of institution of the earlier suit to the date of delivery of possession) is to be re-admitted and heard on its merits. The opinion affirms the pre-existing line of authority that a subsequent suit for such mesne profits may be maintained where the earlier decree did not deal with those profits; the opinion does not purport to establish a novel legal rule beyond applying and following the earlier decisions and construing the 1908 Code consistently with that precedent.
1. 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 of monies 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 plaintiffs' claim was dismissed. On referring to the judgment, 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 3 of Section 13 of the old Code.
2. 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."
3. The contention on behalf of the defendant 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 pendent lite and from the date of decree to delivery of possession could be maintained. This was expressly held in the case of Ram Dayal v. Madan Mohan Lal 21 A. 425 : A.W.N. (1899) 153 : 9 Ind. Dec. (N.S.) 979. 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 the plaintiff to these mesne profits. We think that we are bound to follow this decision, unless it is shown that the Legislature when enacting the present Code of Civil Procedure altered the law. It is a recognised 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.
4. 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
"in a suit for the recovery of possession of immoveable property yielding rent or other profit 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 is made".
5. It is to be noted that in this section there is no reference to the claim in the plaint being made for mesne profits. Section 212 provided that whether the suit was a suit for ' possession of immoveable property and for mesne profits which have accrued on the property during the period 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."
6. 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 immoveable, property and for rent or 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 enquiry as to such rent or mesne profits, and (c) directing an enquiry 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 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." Clause 2 of this rule provides: "Where an enquiry is directed under Clause (6) or Clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of the enquiry."
7. 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 enquiry 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 enquiry 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 the 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 mesne profits as to which the decree, had directed an enquiry. 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 after 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 enquiries 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 enquiry 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 seem to be rather against the respondents than in their favour. The question 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 the 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 pendents lite and particularly future mesne profits in the original suit. Where there are more defendants than one, their liability may not altogether be 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 Doraisami Aiyar v. Subramania Aiyar 42 Ind. Cas. 929 : 33 M.L.J. 699 : 22 M.L.T. 484 : (1917) M.W.N. 847 : 6 L.W. 784 : 41 M. 188 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.
8. We allow the appeal, set aside the decree of the Court below and remand the case to that Court with direction 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, including fees on the higher scale. Other costs will follow the event.
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