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Ramjanam Singh v. Khub Lal Singh
Case Summary — Dawson Miller, C.J. (Appeal concerning mesne-profits and res judicata)
Factual and Procedural Background
The suit giving rise to this appeal was instituted on 31 May 1922 by the plaintiffs, who sought mesne-profits in respect of an occupancy holding for the period 1 June 1919 to 21 January 1922 and also claimed the price of certain trees cut down by the defendants. At trial the defendants raised a preliminary plea of res judicata, contending that the plaintiffs' right to mesne-profits in respect of this property had already been determined in an earlier suit.
The Munsif who tried the case held the suit barred by res judicata. On appeal the District Judge of Darbhanga reversed that finding and directed the case to proceed, ordering an inquiry into the amount of mesne-profits due.
Background to the earlier litigation: the plaintiffs were the landlords of the holding, which the defendants purchased around 1915. The landlords earlier sued the defendants for possession on the ground that the holding was non-transferable without the landlords' consent and that the defendants were trespassers. In that previous suit the plaintiffs claimed possession and mesne-profits; paragraph 8 of the plaint mentioned a nominal court-fee calculated on an assumed Rs. 69 mesne-profits and sought a decree for mesne-profits with a later ascertainment and payment of any deficient court-fee.
In the earlier suit the Court awarded possession to the plaintiffs but the judgment and decree were silent as to mesne-profits. The plaintiffs' review application to insert a clause regarding mesne-profits into that judgment was refused. The matter was later remanded by the High Court for re-hearing on other grounds; on re-hearing the judge refused to interfere with his predecessor's silence on mesne-profits.
In the present suit the mesne-profits claimed (1 June 1919 to 21 January 1922) were for a period subsequent to the institution of the earlier suit; there was no claim for the period 21 January 1922 to 31 May 1922 (the date the plaint was filed).
Legal Issues Presented
- Whether mesne-profits accruing after the institution of the previous suit were in fact claimed in that previous suit, and if not, whether the doctrine of res judicata (Section 11, Civil Procedure Code) bars the plaintiffs from claiming those mesne-profits in a subsequent suit.
- How Section 11 (including Explanation V), Order II, Rule 2 and Order XX, Rule 12 of the Civil Procedure Code apply to claims for future mesne-profits: in particular, whether omission to claim or the court's silence operates as refusal such that a subsequent suit is barred.
Arguments of the Parties
Appellants' Arguments (defendants)
- The appellants argued from a construction of Section 11, Order II, Rule 2 and Order XX of the Civil Procedure Code.
- They contended that the plaintiffs were entitled in the previous suit to claim mesne-profits not only up to institution of that suit but for the subsequent period until delivery of possession or until three years from the date of the decree (whichever was shorter) under O. XX, r. 12.
- The appellants argued either that the plaintiffs did claim those future mesne-profits in the previous suit (a point which the court found against the plaintiffs), or that if they failed to claim a relief to which they were entitled, Explanation V to Section 11 operates so that a relief claimed but not expressly granted is deemed refused and thus the plaintiffs cannot now raise it in a subsequent suit.
Plaintiffs' / Respondents' Position (as reflected in the opinion)
- The opinion reflects the plaintiffs' position that the previous plaint did not, in fact, claim future mesne-profits (i.e., mesne-profits accruing after the institution of the earlier suit) and therefore those mesne-profits were not directly and substantially in issue in the prior litigation.
- Implicitly, the plaintiffs maintained that because no claim for those future mesne-profits had been made and the court had not decided upon them, res judicata did not apply to bar the present suit.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Doraiswami Aiyar v. Subramania Aiyar (Madras High Court) | Holds that where future mesne-profits had been claimed in a previous suit but the Court had not dealt with the matter at the hearing, that omission did not amount to res judicata and did not bar a subsequent suit when the cause of action for the future mesne-profits had in fact accrued. | The court cited this case as supporting authority for the proposition that omission to decide future mesne-profits does not necessarily create res judicata. It noted, however, that in the present case future mesne-profits had not even been claimed in the prior suit, so the cited authority was not directly determinative here. |
| Mohammad Ishaq Khan v. Rustum Ali Khan (Allahabad High Court) | Expressed the view (similar to the Madras case) that a previous court's failure to deal with future mesne-profits does not bar a subsequent suit for those profits once the cause of action has accrued. | The court referenced this case for the same general principle as above and observed that it aligned with the Madras High Court's decisions; again, it found the cases not directly decisive because those earlier cases involved claims that had been made in the prior suits. |
| Atmaram Bhuskar v. Parashram Ballal (Bombay High Court) | Contrary view: the Bombay High Court took a different position on whether the omission to decide on future mesne-profits can operate as res judicata (i.e., more likely to treat silence as barring a subsequent suit in some circumstances). | The court noted the conflicting view but declined to resolve the conflict because the Bombay decision, like the Madras and Allahabad cases, concerned situations where future mesne-profits had been claimed in the prior suit, which is not the situation before the court in the present appeal. |
Court's Reasoning and Analysis
The court proceeded in the following analytical steps, applying the statutory provisions and the facts of the earlier litigation strictly as presented in the record:
- Identify the crucial factual point: the mesne-profits now claimed in the present suit relate to a period after the institution of the earlier suit. The court framed the threshold question as whether those future mesne-profits had been claimed in the earlier plaint.
- Examine the earlier plaint: the court reviewed paragraph 8 of the earlier plaint and concluded that no claim was made for the future mesne-profits now in controversy. The earlier plaint's reference to a rough court-fee on account of Rs. 69 mesne-profits did not constitute a clear claim for future mesne-profits covering the period now sued upon.
- Analyze Section 11 (res judicata) including Explanation V: the court observed that Section 11 bars re-litigation only of matters directly and substantially in issue in a former suit. Explanation V deems any relief claimed in the plaint but not expressly granted by decree to have been refused for the purposes of res judicata. The court held Explanation V inapplicable here because the future mesne-profits were not part of the relief actually claimed in the earlier plaint.
- Interpret Order II, Rule 2 (comprehensiveness of the plaint): the court explained that this provision concerns reliefs arising out of the cause of action existing at the date of the plaint. Since, at the date of the earlier suit, no cause of action had yet accrued for the subsequent mesne-profits, O. II, r. 2 did not oblige inclusion of those future mesne-profits in the earlier suit.
- Consider Order XX, Rule 12 (powers of Court in suits for recovery of possession and mesne-profits): the court noted this rule permits a court to pass a decree for possession and for mesne-profits accrued prior to institution, and empowers the court to direct an inquiry as to mesne-profits from institution until delivery of possession or other events up to three years. Crucially, the court emphasised that O. XX, r. 12 imposes no obligation on the court to decide or inquire into future mesne-profits; it leaves that to the court's discretion. If the court does not direct an inquiry (and particularly where such future mesne-profits were not claimed), silence cannot be treated as a decision on the point.
- Treat authorities: the court acknowledged conflicting High Court decisions (Madras and Allahabad in one line, Bombay in another) about whether a court's failure to deal with future mesne-profits when they had been claimed bars a subsequent suit. The court declined to resolve the conflict because the present case differed: in the cited cases future mesne-profits had been claimed, whereas here they were not.
- Conclude legal effect: because the future mesne-profits now claimed were not claimed in the earlier suit and no cause of action for them had existed at the earlier suit's date, res judicata could not operate to bar the present suit. Thus the District Judge was correct to overrule the trial Court and order further proceedings.
Holding and Implications
HOLDING: The appeal is REJECTED (appeal dismissed with costs).
Direct effect on the parties: The decision affirms the District Judge's reversal of the Munsif's finding of res judicata and leaves the case to proceed (including the inquiry into mesne-profits as directed by the District Judge). The trial Court's ruling that the suit was barred was held to be wrong.
Broader implications: The court expressly refrained from resolving the existing conflict among High Court authorities about whether a court's failure to deal with future mesne-profits (when they have been claimed) constitutes res judicata. Because the present case involved future mesne-profits that were not claimed in the earlier suit, the court limited its decision to the facts before it and did not lay down a binding rule resolving the conflict. No new precedent was asserted beyond the case-specific holding.
Justice Foster concurred ("I agree").
Dawson Miller, C.J:— The suit out of which this appeal arises was instituted on the 31st May 1922 by the plaintiffs claiming from the defendants mesne-profits in respect of an occupancy holding from the 1st June 1919 to the 21st January 1922 as well as the price of certain trees out down by the defendants. A preliminary point was taken at the trial that the suit was barred by res judicata, the question of the plaintiffs' right to mesne-profits from these defendants in respect of this property having been determined in a previous suit.
2. The Munsif before whom the case came for trial took the view that the suit was barred. On appeal the learned District Judge of Darbhanga reversed the decision of the Munsif and directed the case to proceed and an investigation to be held as to the amount of mesne-profits due.
3. It appears that the plaintiffs were the landlords of the holding in question, which had been purchased by the defendants some time in the year 1915. Subsequently the landlords sued for possession from the defendants on the ground that they were mere trespassers, the holding in question being non-transferable without their consent. In that suit in addition to possession of the property they claimed also mesne-profits. The claim with respect to mesne-profits was put thus. In paragraph 8 of the plaint in that suit, after stating the value of the property in dispute and the amount of the Court-fee payable thereon, they further state that the sum of Rs. 5-4-0 was the Court-fee on account of Rs. 69 mesne-profits on a rough calculation and in their prayer they claim in addition to possession of the property that the Court may be pleased to pass a decree for mesne-profits in favour of the plaintiff and the defendants' 4th party, the defendants' 4th party being some of their co-sharers who had not joined as plaintiffs, and that after passing the decree the amount of mesne-profits may be ascertained and then they undertake to pay the deficit amount of Court-fee upon the mesne-profits as calculated, if there should be a deficiency.
4. In that suit, the Court awarded the plaintiffs' possession of the property, but the judgment and the decree were absolutely silent as to mesne-profits. No mention is made apparently in the judgment as to mesne-profits and no determination is come to expressly upon the question of whether the mesne profits were recoverable or not. There was an application in review from that decree tiled by the plaintiffs asking the learned Judge who decided the suit to amend the judgment by introducing into it a clause about the mesne-profits but he refused to do so and it seems to me obvious that he had no power, on an application in review, to deal with a fresh matter, which had never been put before him at the trial and for which so far as I can see, there was no reason justifying the omission.
5. The matter went on appeal to the High Court and the High Court remanded the case for re-hearing, not on the question of mesne-profits, but for other reasons. When the case went back again on remand, again some mention was made about the mesne-profits but the learned Judge who re-heard the case on remand simply stated that he refused, upon this point, to interfere with the decision of his predecessor and there the matter stood.
6. In the present suit the claim of the plaintiffs is for mesne-profits from the 1st June 1919 up to the 21st January 1922, that is for the mesne-profits for three years prior to the suit except that there is no claim apparently for the period between the 21st January and the 31st May 1922 when the plaint was filed. The period for which mesne-profits are claimed in the present suit, it will be observed is a period subsequent to the institution of the previous suit. The first question which arisen for determination is whether these mesne-profits which were the profits accruing after the institution of the previous suit were in fact claimed in the previous suit because if they were not then it seems to me quite clear that there could be no question of res judicata arising here because the previous suit can only be conclusive of questions arising between the parties which were raised in that suit or which ought to have been raised or arose out of the same cause of action. I have already referred to the plaint in the previous suit and the conclusion I have come to on reading that plaint is that there was no claim whatever for future mesne-profits. If that is so, then it seems to me that determines the question and that the learned District Judge in appeal was right in overruling the decision of the trial Court and sending the case back for re-hearing. The argument which has been put before us on behalf of the appellants is based upon the construction of Section 11, O. II, r. 2 and O. XX of the CPC. Shortly the argument is this: that the plaintiffs were entitled in the previous suit to claim mesne-profits not only for the period ending with the institution of the suit but for the subsequent period up to the delivery of possession or up to three years from the date of the decree, whichever might be shorter and either that they did claim such profits, a point which I have already stated I find against them, or that if they did not that they were entitled to and if they failed to claim such relief as they were entitled to and the judgment was silent upon the question it must be taken that the point was decided against them and they cannot raise it in a subsequent suit. 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.” It is clear that in so far as future mesne-profits were concerned, that as not a matter directly and substantially in issue or indeed in, issue at all in the previous suit but Explanation V of that Section is relied upon and it says. “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.” Again that part of the section is of no avail in the present case; unless the claim to future mesne-profits was a part of the relief claimed in the plaint. But, it is said, that with that section one must read O. 11, r. 2 which provides:—
“(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in older to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect Of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue foe all such reliefs, he shall not afterwards sue for any relief so omitted.”
7. Again, in this Order, the relief referred to is the relief arising out of the cause of action and this Order does not appear to me to assist the appellants in this case because it is clear that at the date of the suit no cause of action had accrued for the subsequent mesne-profits. But it is contended that the case is covered by O. XX, r. 12 which provides that,
“(1) Where a suit is for the recovery of possession of immoveable property and for rent or mesne-profits, the Court may pass a decree—
(a) for the possession of the property;
(b) for the rent or meme-profits which have accrued on the property during a period prior to the institution of the suit of directing an inquiry as to such rent of mesne-profits;
(c) directing an inquiry as to 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.”
8. It is contended that this was a relief which was open to the plaintiffs in the previous suit and that the Court was bound by its decree to deal with all the reliefs which the plaintiffs were entitled to sue for and if it did not deal with those matters then, under the former provisions of the Code to which I have referred, it must be taken that the Court had decided against the plaintiffs. I cannot accede to this view. It seems to me quite clear that both in Section 11 and in O. II, r. 2 the issues and claims there referred to are those which arise out of the cause of action and not those which arise out of some possible future cause of action, although for the sake of convenience it is provided by O. XX, r. 12 that future mesne-profits, although no cause of action may have arisen for such, at the date when the suit was instituted, may be dealt with by the Court. It is noticeable that under O. 20, r. 12 there is no obligation whatever upon the Court to determine any question as to the future mesns-profits. It may, if it likes, direct an enquiry as to the rent or mesne-profits from the institution of the suit until the date of delivery of possession or until one of the other periods mentioned in the rule. But if the Court does not choose to do so, and there may be good reasons for its refusing to exercise its jurisdiction, then it seems to me that it cannot be said that any question has been decided with regard to the mesne-profits, especially where they have not been claimed in the suit, as here. We have been referred to certain cases in the Madras and Allahabad High Courts, Doraiswami Aiyar v. Subramania Aiyar(1), and Mohammad Ishaq Khan v. Rustum Ali Khan(2) in which it was held that even where future mesne-profits had been claimed in a previous suit, if the Court had not dealt with the matter at the hearing, this did not amount to res judicata and did not bar a subsequent suit for those future mesne-profits when the cause of action had in fact accrued. The Bombay High Court on the other hand in the case of Atmaram Bhuskar v. Parashram Ballal(3) took a contrary view. It is unnecessary for us to decide which of these conflicting views is, in our opinion, right, because in both cases the future mesne-profits had been claimed in the previous suit whereas in the present suit the future mesne-profits, which are the subject matter now in controversy, were not calmed at all in any previous suit. In my opinion the learned District Judge was right and the trial Court was wrong and this appeal must be dismissed with costs.
9. Foster, J.:— I agree.
10. Appeal rejected.
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