Jackson, J. — Plaintiff sued for possession with mesne profits. The Additional District Munsif of Rajahmundry dismissed his suit. The appellate Court decreed the suit on 3rd February, 1919. On the 30th November, 1921 the plaintiff put in an application under O. 20, R. 12 for the determination of mesne profits. He paid batta but service of notice was not effected and on his failure to pay additional batta, the Court dismissed the application. He applied again on 6th December, 1922 more than three years after the date of the appellate Court decree. The question for determination is whether plaintiff is not now debarred from having the mesne profits ascertained.
There can be no doubt that the application of December, 1922 is an application within the scope of Art. 181 of the Indian Limitation Act, and, being three years subsequent to the time when the right to apply accrued, it is clearly barred.
But the application of November, 1921 was within time and it is not so clear that plaintiff may not even now treat it as effective.
Under O. 20, R. 12 a statutory obligation is laid up on the Court to inquire into mesne profits and pass a final decree on the application of the decree-holder. Can the Court avoid this obligation if the decree-holder makes the application, but does not pursue it by paying additional batta? There is no provision in the Code of Civil Procedure for dismissing an application closing the proceedings in such or similar circumstances. R. 24 Civil Rules of Practice, provides that, within seven days from the admission of any proceeding in respect of which notice is to be issued by the Court to any person, the party shall bring into Court the stamped application for service. It is not, however, laid down what shall happen if the party fail to do so. If the Court then dismisses the application it can only be said to do so by virtue of Sect. 151 of the Code of Civil Procedure for the ends of justice or to prevent abuse of its process. If in these circumstances, a Court deliberately passed proceedings under Sect. 151, Code of Civil Procedure, pointing out how the ends of justice or its own process were safeguarded, it might be hard to say that it acted without propriety or jurisdiction. But when a Court merely records “dismissed” and leaves it to be inferred whether it was or was not acting under Sect. 151, it can hardly be assumed that the only possible inference is in the affirmative.
In this connection the observations in Lachmi Narain Marwari v. Balmakund Marwari are pertinent. In that case a suit had been remitted to the Court of first instance in order that necessary steps might be taken not for ascertaining mesne profits but to effect a partition already decreed. The Subordinate Judge fixed a day for hearing; the plaintiff failed to appear and the suit was dismissed “for want of further prosecution.” The Subordinate Judge explained this dismissal as meaning:
“the decree is certainly in existence, but the plaintiff is not entitled to further relief in the present litigation.”
Upon this the Judicial Committee observes:
“He puts the plaintiff into an intolerable position, not able to go on with his suit, and yet not in a position to bring a fresh suit. Their Lordships are fully sensible of the necessity of leaving the Judges in India with ample power of discipline and means to check neglect and delay. If, for instance, the Subordinate Judge had made an order adjourning the proceedings sine die, with liberty to the plaintiffs to restore the suit to the list on payment of all costs, it would have been a perfectly proper order. But the order was made without jurisdiction and was rightly set aside by the High Court.”
Of course this case is not precisely upon all fours with the one before us. The Subordinate Judge dismissed a suit which he had no jurisdiction to dismiss; which does not necessarily imply that he would have no jurisdiction to dismiss an application for failure to pay batta. But the spirit of the ruling would seem to be that a Court is not justified in depriving a party of the benefits of its decree, on the bare ground that he has failed to comply with some rule of procedure. It cannot be argued that the order of dismissal involves no deprivation, because on the next day the party, assuming that the three years have not elapsed, can put in a fresh application. In the same way it was suggested in the Privy Council case that the dismissal was merely in terrorem, and a petition for restitution would have re-opened the procedings. But this argument did not commend itself to their Lordships presumably because an order which is bad in itself cannot be called good because it is liable to be reversed or negatived. It must be considered on its own merits. Can it be said that if it were passed on the last day before limitation set in it would be bad; but if on the penultimate day, thus giving the party a chance to file a fresh application, it would be good? Obviously not. Therefore for the purpose of the argument it must be assumed that the order of dismissal was final, and the question is whether the Court had any right to make such an order. The Code of Civil Procedure and the rules framed under the Code of Civil Procedure give it no such right in terms. Sect. 151 can only give such right if the Court find that it is necessary to act for the ends of justice or to prevent abuse of its process. As the Judicial Committee points out the ends of justice are not served by depriving a party of the fruits of his decree. If the Court purports to prevent an abuse it must find what the abuse is. Mere failure to comply with R. 24 of the Civil Rules of Practice is hardly in every case an abuse of process, but, if the Court considers that it does amount to an abuse, it must find to that effect. Sect. 151 is not a general clause validating every act of a Court which cannot otherwise be justified. It is a section allowing a Court to exercise its powers in specified circumstances, and it cannot exercise that power until those circumstances are established.
As against this view it may be said that unless a Court have power of summary dismissal on failure to comply with the mandatory provision of R. 24, that rule becomes of no effect. This does not follow. The order indicated by the Judicial Committee in the passage quoted above is one of adjournment sine die, but such order is deprecated in R. 71, Civil Rules of Practice. If in order to exercise discipline and check neglect and delay a Court thinks it incumbent upon itself to dismiss the application, it should call upon the party to show cause, and then pass a considered order of dismissal.
It cannot pass an unconsidered order of dismissal leaving it to be inferred, firstly, that there were circumstances which would warrant its acting under Sect. 151, and secondly that it did so act.
I should find therefore that the dismissal of the application of November, 1921, is not such dismissal as can render that application inoperative and plaintiff is entitled to proceed upon it. I would mulct plaintiff in costs throughout, for, the difficulty has arisen entirely through his own neglect.
The order of the lower appellate Court is set aside. The execution petition should be disposed of according to law.
The respondednts will get their costs throughout.
Srinivasa Aiyangar, J.—I agree to the order proposed by my learned brother that the appeal should be allowed and that the application for ascertainment of profits made by the decree-holder on the 8th of October, 1921, should, for the purpose of such ascertainment, be treated as still subsisting and that the District Munsif's Court should now proceed to determine the mesne profits.
It seems to me however that the order of the lower appellate Court can be regarded as unsustainable, not on the ground that the last application for the ascertainment of the mesne profits, dated 6th December, 1922, may be regarded as a mere continuation of the previous petition for the same, nor on the ground that the Court has no power to dismiss an application because the batta directed to be paid for the purpose of serving the notice of the application has not been complied with, but on a more fundamental ground altogether.
It is possible that, in enacting amendment to R. 12 of O. 20 by way of addition of Cl. 3 thereto, the rule-making authority intended that there should be always an application by the decree-holder for the ascertainment of mesne profits where such ascertainment had been directed even by the very Court that has to ascertain it. But I am not satisfied that the language of R. 3 is sufficiently apt for that purpose. That clause itself speaks of a final decree being passed and it is clear that the scheme underlying the provision is that the direction for the order for the payment of mesne profits thereafter to be ascertained is in the nature of a preliminary decree and that the final decree has to be passed on such ascertainment being completed. If so, such a scheme clearly imports and necessarily implies the suit itself being regarded as pending till the final decree is passed. This again would necessarily imply that there can be no final disposal of the suit itself till a final decree comes to be passed in the suit. I consider however that, if it was contemplated that in every case before a Court proceeds to ascertain the mesne profits, there should be an application by the decree-holder, much clearer language for that purpose should have been used. But the rule runs thus:
“Where the appellate Court directs such an enquiry, it may direct the Court of first instance to make the enquiry; and in every case the Court of first instance shall, on the application of the decree-holder, inquire and pass the final decree.”
The whole thing is made into one sentence. If really the proper meaning of the latter part of this rule is, as it must be, that the expression “in every case” relates to the case of appellate Court ordering the ascertainment of mesne profits and also the Court of first instance ordering such ascertainment, the latter part should have been constituted into a separate grammatical sentence. The latter part of that rule, as it stands, if it should be regarded as referring to every case, must also be properly held to cover cases in which the appellate Court itself directs an enquiry into the mesne profits to be made by itself. In such a case it seems to me that this part of the rule referring to the Court of first instance would be not only meaningless but wrong. However, without being very meticulous about grammar we should assume that the rule refers only to cases where the duty is cast on the Court of first instance to ascertain mesne profits. When the rule says that the Court of first instance shall, on the application of the decree-holder, enquire and pass the final decree, the language is apt only for the purpose of indicating that on such application being made the obligation is peremptorily cast on the Court of first instance to do so. It is one thing however to say that on a condition being satisfied, a peremptory obligation is cast, and another thing altogether to state that the condition is imperative.
In my view therefore if the true intention of the rule-making authority was that, in every case where the Court of first instance has to ascertain mesne profits, there should be an application made to it before the decree-holder can be entitled to require such ascertainment to be made, the language should be revised and amended. However, assuming for the purpose of the present argument that such an application is really in the nature of a condition precedent, then it would follow that, on such an application being made within the period of limitation prescribed by the Limitation Act, the condition is satisfied and therefore the obligation is cast. It is possible that such an application was regarded as necessary because in cases in which the appellate Court directs the enquiry to be made by the Court of first instance, such a direction should naturally be required to be brought to the notice of the Court of first instance and that can only be by an application by the decree-holder. But having regard to the scheme otherwise of the provisions when there is a preliminary decree for ascertainment of mesne profits and a final decree has to be passed, there is no reason to suppose that the application should be regarded as if that were the proceeding for the ascertainment of mesne profits. The mesne profits come to be ascertained not because of the application but because of the direction to ascertain the same for the purpose of final decree. According to the proper language of the rule, the making of the application can, if at all, be regarded only as a condition precedent.
I am therefore of the opinion that on the making of the application the condition laid down in the rule is satisfied and the obligation comes to be cast on the Court of first instance to ascertain the mesne profits and it is then for the Court to proceed to ascertain mesne profits as in the case of any other pending suit. I do not however consider that it is necessary for the purposes of the present case to pursue the discussion of this matter further, as, in the result, I have agreed with my learned brother.
N. R. R.Appeal allowed.