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Case Number

Appeal from Appellate Decree no. 292 of 1941, from a decision of R.B Beevor, Esq., I.C.S, District Judge of Gaya, dated the 10th February, 1941, modifying a decision of Babu Jamini Mohan Mukherji, Subordinate Judge of Gaya, dated the 8th February, 1939,Appeal No. 292 of 1941

Advocates

S.M Mullick and Rajkishore Prasad, for the appellants.
Syed Ali Khan, for the respondent.

Judges

Fazl Ali
Shearer, JJ.

Acts

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Smart Summary

Structured Summary of the Judgment (Fazl Ali, J.)

Factual and Procedural Background

This appeal arises from a proceeding for ascertainment of mesne profits initiated by the plaintiff pursuant to a decree dated 30 April 1929. The period for which mesne profits were to be ascertained ran from 12 Baisakh, 1333 until the date of recovery of possession on 18 October 1935.

The original suit sought recovery of possession of 2 annas out of 16 annas mukarrari interest in village Ukharmhi (tauzi no. 4858) together with mesne profits. In the mesne-profits ascertainment proceedings the defendants alleged that the plaintiff had, in fact, continued in possession and had realised rents for the period in question, so that defendants were not liable for mesne profits to the extent those rents had been realised by the plaintiff.

The Subordinate Judge appointed a commissioner to hold a local investigation and calculate mesne profits. Before the commissioner the defendants applied (7 May 1938 and 20 May 1938) for production of counterfoil receipts and collection/account papers maintained by the plaintiff for the years 1332–1342 Fasli. The commissioner ordered production, but the plaintiff did not produce the papers; an explanation by one of the plaintiff's servants was not accepted by the commissioner.

The defendants relied on section 114 of the Evidence Act and sought a presumption against the plaintiff for failure to produce documents; both the Subordinate Judge and the District Judge refused to draw that presumption. The courts below proceeded on principles (including the definition of mesne profits) affirmed in prior case law and on statutory provisions including sections 106 and 114 of the Evidence Act and the discovery provisions of Order XI of the Code of Civil Procedure.

Legal Issues Presented

Whether, in the circumstances of non-production of documents ordered by a commissioner, the court should draw a presumption under section 114 of the Evidence Act against the plaintiff.
How the burdens imposed by section 106 of the Evidence Act operate in an ascertainment of mesne profits — specifically, whether the onus of proving amounts actually received rests on the person receiving them and how the claimant must prove what the possessor might with reasonable diligence have obtained.
Whether failure to follow the discovery procedure under Order XI (e.g., by not issuing summons or notice through the court) precludes drawing adverse inferences under section 114 for non-production of documents.
Whether the receipts produced by the defendants warranted credit against the decree for mesne profits and, relatedly, whether the appellate decree contained a clerical error as to the date from which interest should run.

Arguments of the Parties

Appellants' Arguments (Defendants)

The defendants contended that the plaintiff in fact realised the rents for the period in question and therefore defendants should not be liable for mesne profits to the extent those rents were realised by the plaintiff.
Relying on section 114 of the Evidence Act, the appellants argued that because the plaintiff did not produce the collection papers and receipts that had been called for, a presumption ought to be drawn against the plaintiff that the produced-but-withheld documents would have supported the defendants' case (i.e., that rents had been realised by the plaintiff).

Respondent's Arguments (Plaintiff and/or Respondent's Counsel)

The respondent (as presented through counsel and through produced material) relied on the principle that under section 106 the onus of proving the amount of mesne profits actually received is on the person who received them, and therefore the defendants should produce their own collection papers rather than rely on the plaintiff's village papers for the entire period.
Counsel for the respondent also relied on the rules in Order XI (discovery and inspection) to submit that the defendants did not follow the prescribed procedure (no summons/notice through the court) for compelling production of documents, and therefore no adverse inference under section 114 should be drawn.
The plaintiff produced exhibit series (the "laggits" of a co-sharer) for 1332–1342 Fasli which the trial and appellate courts found to furnish a basis for calculating rents that the defendants might with due diligence have realised.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Harry Kempson Gray v. Bhagu Mian	The measure of mesne profits under the Code of Civil Procedure: the sum awarded is not what the plaintiff lost by exclusion, but what the defendant has made or might with reasonable diligence have made by wrongful possession.	The courts below applied this principle to the present case; the appellate court accepted that the principle was applicable and treated the calculation of mesne profits accordingly.
Ramakka v. Negasam	Clarification of burdens under section 106: burden of proving the amount actually received is on the person receiving; as to what might with ordinary diligence have been received, the burden lies on the person claiming it.	The appellants relied on these authorities to argue that the plaintiff had not discharged the burden of proof by failing to produce the papers; the court held that this argument did not assist appellants because the plaintiff had produced "laggits" which the courts considered a sufficient basis for calculation of what might have been realised.

Court's Reasoning and Analysis

The court set out the controlling proposition on mesne profits from Harry Kempson Gray v. Bhagu Mian and accepted that both lower courts had proceeded on that legal principle. The narrow point before the Court concerned whether an adverse presumption under section 114 of the Evidence Act should be drawn against the plaintiff for the non-production of documents ordered by the commissioner.

The court examined two strands of reasoning adopted by the lower courts:

Substantive onus: Under section 106 of the Evidence Act the onus of proving the amount of mesne profits actually received lies on the person who received them (i.e., the person in occupation). The Subordinate Judge reasoned that therefore the defendants should produce their own collection papers to prove actual realisation of rent; they could not shift that burden by merely asking the plaintiff to produce village papers for a period during which the defendants had been held not to be in possession.
Procedural compliance with Order XI: The District Judge additionally held that the defendants had not resorted to the formal discovery procedure under Order XI (no summons/notice issued through the court for production). The District Judge observed that although the commissioner had ordered production, the defendants could, when the commissioner's report was before the court, press for production by following Order XI procedures. Because rule 21 of Order XI prescribes a drastic penalty for failure to comply with discovery, it is appropriate that the prescribed procedure be followed prior to drawing adverse inferences or imposing such penalties.

The appellate court observed that section 114 is independent of Order XI but emphasised that section 114 is discretionary and not mandatory. Both lower courts declined to make the presumption under section 114, and the appellate court found no error of law in that discretionary conclusion. The appellate court noted that even if greater weight might arguably have been placed on the plaintiff's non-production, it could not interfere in second appeal because there was no legal error that vitiated the judgment.

The court also considered the evidential material actually produced by the plaintiff: exhibit 2 series (laggits of a co-sharer for 1332–1342 Fasli). Both the Subordinate Judge and the District Judge treated those laggits as furnishing a basis for calculating rents that the defendants might with due diligence have realised; this weighed against the appellants' contention that the plaintiff had failed to discharge any burden in respect of what might have been earned.

On the cross-objection, the Subordinate Judge had rejected reliance on certain receipts produced by the defendants, while the District Judge allowed credit under two receipts (exhibits A-2 and A-3). The plaintiff challenged whether those receipts related to the relevant period; the parties agreed that other receipts demonstrated that about Rs. 20 had been realised by the plaintiff for the period in question, and counsel for both parties agreed that Rs. 20 might be deducted from the decree. The court directed this deduction.

Finally, the court identified a clerical mistake in the decree prepared in the appellate court: the phrase "this date" was intended to refer to the date of the trial court judgment (8 February 1939) but had been copied in a way that made interest run from the date of the District Judge's decree (10 February 1941). The court directed correction so that interest would run from the trial court decree date.

Holding and Implications

Core Ruling: The appeal is dismissed; the cross-objection is partly allowed.

Direct consequences and orders made by the court:

The appellate judgment upholding the lower court's approach to the discretionary question under section 114 is sustained — the court found no error of law in the refusal to draw the presumption against the plaintiff for non-production of documents.
The court directed that Rs. 20 be deducted from the decree passed by the Subordinate Judge, reflecting amounts conceded to have been realised by the plaintiff for the period in question.
The clerical mistake in the appellate decree as to the date from which interest should run is to be corrected so that interest runs from the date of the decree of the first court (the trial court's judgment dated 8 February 1939), not from the District Judge's decree dated 10 February 1941.
The parties were directed to bear their own costs in this Court.

The opinion applies and interprets existing authorities and statutory provisions in the facts of this case; it does not purport to establish a novel precedent beyond applying established principles concerning mesne profits, burdens under section 106, the discretionary nature of section 114 of the Evidence Act, and the requirement of complying with discovery procedure in Order XI before imposing drastic consequences for non-production.

Judges: Fazl Ali, J. (author of the opinion); Shearer, J. agreed. Result stated: "Appeal dismissed. Cross-objection partly allowed."

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Ram Kishun Lal v. Abu Abdullah Sayed Hussain Imam

Fazl Ali, J.:— This appeal arises out a proceeding for ascertainment of mesne profits which was started upon the application of the plaintiff on the basis of a decree passed on the 30th April, 1929. It is common ground that the period for which the mesne profits are to be ascertained is the period from 12th Baisakh, 1333, till the date of recovery of possession which was 18th October, 1935. In Harry Kempson Gray v. Bhagu Mian it was held that under the definition of “mesne profits” in the Code of Civil Procedure the sum to be awarded is not what the plaintiff has lost by his exclusion from the land, but what the defendant has made or might with reasonable diligence have made by his wrongful possession. The courts below have proceeded upon this principle and it has not been seriously questioned before us that the principle is applicable to the present case. The point which is raised in this Court is a short one, but in order to understand it, it will be necessary to refer to certain facts.

The plaintiff had brought a suit for the recovery of possession of 2 annas out of 16 annas mukarrari interest in village Ukharmhi, tauzi no. 4858, with mesne profits. In the proceeding for the ascertainment of mesne profits one of the allegations made on behalf of the defendant was that

“in fact the plaintiff continued in possession of the property and the delivery of possession which he got from court was merely a paper transaction.”

In other words, their case was that during the period for which the mesne profits had been claimed all the rents which were payable by the tenants for that period had been realised by the plaintiff himself and therefore the defendants were not liable to pay any mesne profits to the extent those rents had been realised. The learned Subordinate Judge, who dealt with the application for the ascertainment of the mesne profits, appointed a commissioner to calculate the mesne profits after holding a local investigation. Before the commissioner the defendants filed two applications, one on the 7th May, 1938, for calling upon the plaintiff to produce the counterfoil receipts for the years 1332 to 1342 and another on the 20th May, 1938, for calling upon him to produce certain papers referred to in the application of that date. These papers were, to put the matter shortly, in the nature of collection papers and account books maintained by the plaintiff for the years 1332 to 1342 Fasli. The commissioner directed the plaintiff to produce the papers in question, but these papers were not produced. One of the plaintiff's servants gave an explanation for the non-production of the papers, but that explanation does not appear to have been accepted by the commissioner.

Now the point which was raised by the appellants in the courts below was that under section 114 of the Evidence Act it should be presumed as against the plaintiff that if the papers which had been called for by the appellants had been produced, they would have supported their case that in fact the rents for the period for which the mesne profits had to be ascertained had been collected not by the defendants but by the plaintiff in respect of the two annas share which was the subject of the litigation. Neither of the courts below, however, was prepared to draw any such presumption against the plaintiff and what is now contended on behalf of the appellants is that the ground which has been given by the courts for not drawing the presumption cannot be justified in law.

The first court dealt with the matter in this way: It was stated that upon the decree passed in the suit it was clear that the plaintiffs were not in possession during the period for which the mesne profits had to be ascertained and therefor the plaintiff could not be expected to have in his possession any collection papers for the period between 1332 and 1345 Fasli. The learned Subordinate Judge pointed out that under section 106 of the Evidence Act the onus was on the defendants to show the amount of mesne profits actually received by them, and that being so, it was for them to produce their own collection papers to prove the actual realisation of rent and they could not get round their owe responsibility by simply asking the plaintiff to produce the village papers from 1332 to 1345, that is to say, for a period during which they had been held not to have been in possession. The learned District Judge approved of this reasoning but he also observed as follows:—

“As regards the non-production of papers by the plaintiffs it was certainly open to the defendants to call for documents from the plaintiffs if they wished to use such documents in evidence. For such purpose the procedure to be adopted was to get summons or notice issued through the court. I find that no such summons or notice was ever given. The defendants, therefore, cannot ask that any inference should be drawn against the plaintiffs for failure to produce documents because the plaintiffs have never legally been required to produce them.”

Now, if the last ground upon which the learned District Judge refused to draw any inference against the plaintiffs is found to be a good ground in law, then it seems to me that we cannot very well interfere with his judgment in second appeal which has to be confined only to points of law. The learned Advocate for the respondent has taken us through the rules of Order XI to show that the view taken by the learned District Judge is the correct view. Order XI relates to discovery and inspection of documents. Rule 12 provides that any party may without filing any affidavit apply to the court for an order directing any other party to any suit to make discovery on oath of documents which are or have been in his possession or power relating to any question therein. It further provides that upon hearing such an application the court may either refuse the application if the discovery is not necessary or adjourn the same if the discovery is not necessary at that stage of the suit or make such order, in regard to all or some of the documents referred to in the application of the party as may in the discretion of the court be thought fit. Rule 13 provides that if the discovery is ordered the affidavit to be made by the party against whom the order is made should specify which of the documents he objects to produce and should be drawn up according to form 5 of Appendix C with such variations as the circumstances of the case may require. Rule 14 provides that it Shall be lawful for the court at any time during the pendency of the suit to order the production by any party thereto, upon oath, of such of the documents in his possession or power relating to any matter in question in such suit as the court may think right and the court is to deal with such documents in such manner as shall appear just. Rule 15 makes certain provisions in regard to the inspection of documents and rule 16 lays down how the notice to produce a document is to be drawn up. Rule 21 lays down that where any party fails to comply with any order for discovery or inspection of documents he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution.

Now, it may be recalled here that in the present case the only step which was taken by the defendants was to ask the commissioner to direct the plaintiff to produce certain documents. It is true that the commissioner did order the production of these documents and the plaintiff did not produce them. But it was still open to the defendants when the commissioner's report was before the court to press for the production of the documents by following the procedure laid down in Order XI for the discovery of documents. The court was not bound to accept the commissioner's report and in fact in this case it has not done so. There was, however, nothing to prevent the defendants from asking the court not to decide the case until the discovery had been ordered. The penalty prescribed in rule 21 is of a very drastic nature and it seems only just that before it is imposed, the procedure laid down in Order XI should be complied with. It is true that section 114 of the Evidence Act is a provision quite independent of the provisions of Order XI, but it is to be remembered that provision is not mandatory and merely enables the court to make a certain presumption in certain circumstances. Both the Courts below in this case refused to make any presumption and it cannot be said that the learned District Judge was in error in stating that he was not prepared to make the presumption because the procedure indicated in Order XI had not been complied with.

In Ramakka v. Negasam and several other cases it has been pointed, out that although under section 106 of the Evidence Act the burden of proving the amount of mesne profits actually received is on the person receiving them, yet as regards the amount of profits that might with ordinary diligence have been received by the person in occupation, the burden of proving is on the person claiming it. It was contended on the strength of these cases that in the present case the plaintiff has not discharged the burden, because the plaintiff has not produced the papers for the years 1332 to 1342 Fasli. This argument cannot, in my opinion, avail the appellants, because it appears that the plaintiff did produce exhibit 2 series which were laggits of one of the co-sharers from 1332 to 1342 Fasli, and it is stated by the learned Subordinate Judge that these laggits show the cash rent realised by one of the co-sharers. The learned Subordinate Judge as well as the lower appellate court considered that these laggits furnished a good basis for calculating the amount of rent which the defendants might with due diligence have realised.

The result, therefore, is that even though we might have been of the opinion that the courts below should have attached more importance than they have done to the fact that the papers which were called for by the defendants were not produced, we are powerless to interfere with the judgment under appeal because we are unable to say that it is vitiated by any error of law. The appeal, therefore, must fail.

I will now briefly deal with the cross-objection filed on behalf of the plaintiff which arises in the following circumstances. The defendants produced certain receipts before the Subordinate Judge in order to show that from some tenants at least the plaintiff had realised rent which was payable for a part of the period for which mesne profits had to be ascertained. The learned Subordinate Judge was of the opinion that no reliance could be placed upon those receipts. The learned District Judge, on the other hand, held that the defendants were entitled to credit for the sums which had been realised under two of the receipts, these being exhibits A-2 and A-3. It was contended on behalf of the plaintiff that the learned District Judge was in error in thinking that payments under these receipts related to the period for which mesne profits are claimed. This contention seems to be correct; but at the same time it is pointed out on behalf of the defendant-appellants that some of the other receipts which were filed on their behalf show that small amounts were realised by the plaintiff for the period in question. The amounts so realised were calculated by the learned Advocates for the paries in this Court and they are both agreed that they same to about Rs. 20, and the learned Advocate for the plaintiff consents that this amount may be deducted from the decree made by the Subordinate Judge. The cross-objection is therefore partly allowed and it is directed that the sum of Rs. 20 be deducted from the decree passed by the Subordinate Judge. In other respects the decree of the lower appellate court will be upheld.

Another point which was raised on behalf of the plaintiff was that the decree prepared in the appellate court was not in conformity with the judgment and should therefore be corrected. The decree of the trial court provides among other things that the amounts ascertained as mesne profits and costs were to carry interest at the rate of six per cent per annum from “this date” to the date of realisation. There can be no doubt that the words “this date” referred to the date of the judgment of the trial court which was 8th February, 1939. This provision in the decree was never altered by the lower appellate court but in the decree which was prepared in that court, the words “this date” were copied by mistake with the result that the decretal amount according to this decree would carry interest not from the date of the decree of the first court but from the date of the decree passed by the District Judge which was 10th February, 1941. The mistake which is apparent should, in my opinion, be corrected and it should be made clear that the amount will carry interest from the date of the decree of the first court. In the circumstances of the case I would direct that the parties should bear their own costs in this Court.

Shearer, J.:— I agree.

S.A.K

Appeal dismissed.

Cross-objection partly allowed.

Ram Kishun Lal v. Abu Abdullah Sayed Hussain Imam

Structured Summary of the Judgment (Fazl Ali, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellants' Arguments (Defendants)

Respondent's Arguments (Plaintiff and/or Respondent's Counsel)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Ram Kishun Lal v. Abu Abdullah Sayed Hussain Imam

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