Bidyadhar Bachar And Ors. v. Manindra Nath Das And Ors.

Walmsley, J.:— The facts which have given rise to this Reference have been fully set out by the learned Judges who made the Reference. It is only necessary to mention the more important of those facts. They are that the two suits were instituted in the Mnnsif's Court on 12th September 1911, and decreed on 20th February 1914: and that possession was delivered to the Plaintiffs on 2nd December 1915. The suits were for recovery of possession on declaration of title, and the relief was valued at a sum within the Munsif's pecuniary jurisdiction. After the Defendants had exhausted their rights of appeal without success the Plaintiffs applied to the Munsif for the ascertainment of mesne profits, claiming Rs. 3,000 in one suit and Rs. 12,000 in the other. The applications as first presented were for mesne profits ante litem motam and pendente lite, but the former were withdrawn, so that the applications are for mesne profits pendente lite, that is to say, for a period a little over four years.

The Munsif held that he had no jurisdiction to entertain the applications. The Subordinate Judge held that the Munsif had jurisdiction, and that in his own Court the applications must be treated as new suits affected by the law of limitation.

The questions referred to us are these:—

(1) Where a suit is brought in the Court of a Munsif for recovery of possession of land, and mesne profits pendente lite are claimed or assessed at a sum beyond the pecuniary jurisdiction of the Munsif, has the Munsif jurisdiction to fix such mesne profits and pass a decree beyond his pecuniary jurisdiction?

(2) If the above question is answered in the negative, does the presentation of the plaint, so far as it relates to the ascertainment of mesne profits, in the Court of the Subordinate Judge, amount to the institution of a fresh suit which is affected by the law of limitation?

It is unfortunate that the learned vakils who appeared before us were agreed in proposing a negative answer to the first question: they have, however, assisted us by placing before us all the leading decisions on the matter.

Act XII of 1887 is the statute which defines the powers of Civil Courts in Bengal. In sec. 19 the jurisdiction of a Munsif is set out in these words, “Save as aforesaid (i.e, otherwise provided by any enactment for the time being in force) the jurisdiction of a Munsif extend to all like suits (i.e, originally suits for the time being cognizable by Civil Courts) of which the value does not exceed one thousand rupees.” Then follow provisions about the forum of appeal. These rules are supplemented by the Civil Procedure Code, of which the fifteenth section enacts that every suit shall be instituted in the Court of lowest grade competent to try it. The sixth section may also be quoted: “Save in so far as is otherwise expressly provided nothing herein contained shall operate to give any Court jurisdiction over suits, the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.”

If it were not for the views that have been expressed in various decisions, I should have thought that the problem presented no difficulty. The pecuniary limits of a Munsif's jurisdiction are stated definitely, and there is no suggestion that circumstances may arise which will not merely enlarge those limits but even withdraw them altogether. Moreover the scheme of appeals is complete and coherent if the limitations to a Munsif's jurisdiction are invariable but it becomes full of inconsistencies if the proposition is admitted that the Munsif can in certain circumstances exceed his ordinary pecuniary limits.

In my opinion the Munsifis jurisdiction in dealing with an application for the ascertainment of mesne profits pendente lite remains subject to the pecuniary limitations contained in sec. 19 of Act XII of 1887. I should like to add that there is no harshness in this view, for a Plaintiff who values the land for which he sues at less than Rs. 1,000, and the mesne profits derived from it during four years and a quarter at Rs. 12,000 stands, self-convicted of either undervaluing the one or exaggerating the other.

There remains the question whether in determining the question of jurisdiction, the mesne profits pendente lite are to be added to the rest of the Plaintiff's claim or treated separately. It is obvious that it is impossible for a Plaintiff to make even an approximate guess at the mesne profits that may accrue before his suit is determined. Further those prospective mesne profits are not part of the cause of action on which his suit is brought. I hold therefore that they are not to be considered in determining the value of the suit, and deciding whether it has been brought before the right Court. If mesne profits pendente lite are not to be considered for those purposes it follows, I think, that when they are ascertained, the Munsif will have jurisdiction to pass a decree to the full extent of his pecuniary limits for mesne profits pendente lite over and above the decree already passed for the property and mesne profits prior to institution. This view, I think, is in accordance with the provisions of Or. 20, r. 12 which clearly contemplates two decrees. It does not assist the Plaintiffs in these cases, however, and I have mentioned it only to provide against misunderstanding.

My answer to the first question therefore is in the negative.

Next we have to consider what is the result, if a Plaintiff after winning a decree for the land in the Munsif's Court thereafter applies to a higher Court for the ascertainment of mesne profits on the footing that the amount exceeds the Munsif's pecuniary jurisdiction, it appears to me that the question admits of a very simple answer. If a Plaintiff forsakes the Court which passed the original decree for possession, he deliberately gives up his right to ask for the enquiry mentioned in sub-cl. (c) of cl. (1) of r. 12 of Or. 20, and the final decree mentioned in cl. (2) and giving up his right to those special forms of relief he must bring a fresh suit, entirely independent of the first suit, and that suit must be liable to the ordinary law of limitation.

My answer to the second question is therefore in the affirmative.

C.C Ghose, J.:— I have had the advantage of reading the judgment which my learned brother Mr. Justice B.B Ghose has prepared and I agree with him in the view which he has taken.

Suhrawardy, J.:— I also agree in the judgment about to be delivered by my learned brother Mr. Justice B.B Ghose.

B.B Ghose, J.:— Two questions have been referred to us by the Divisional Court. The second question arises only if the first is answered in the negative. The first question is therefore the more important of the two. It runs thus:—

“Where a suit is brought in the Court of a Munsif for recovery of possession of land, and mesne profits pendente lite are claimed or assessed at a sum beyond the pecuniary jurisdiction of the Munsif, has the Munsif jurisdiction to fix such mesne profits and pass a decree for a sum beyond his pecuniary jurisdiction?

The facts of the cases which have given rise to the question are fully stated in the Order of Reference and it is unnecessary to recapitulate them here.

It is somewhat to be regretted that we have not received much assistance in this matter from the arguments at the Bar, as both sides agreed in the contention that the first question should be answered in the negative. They only addressed us on the question of limitation with reference to the second question. The agreement, however, of the parties is not decisive of the question, and we have to arrive at our own conclusion.

I do not propose to deal with the several cases having a bearing on the question as there is clearly a divergence of opinion. I shall endeavour to approach the matter with (reference to the relevant sections of the Bengal, North-Western Provinces and Assam Civil Courts Act (XII of 1887) and sections and rules and orders of the Civil Procedure Code.

Sec. 19(1) of Act XII of 1887 provides:—“Save as aforesaid, the jurisdiction of a Munsif extends to all like suits of which the value does not exceed one thousand rupees.” For the present purpose it is not necessary to refer to sec. 18 or to sub-sec. (2) of sec. 19 which extends the jurisdiction of some Munsifs to Rs. 2,000 and I shall assume that the jurisdiction of the Munsif is limited to suits of the value of Rs. 1,000. The first inquiry is, what is the value of a suit in which the Plaintiff claims recovery of possession of immoveable property and also asks for mesne profits pendente lite? It must obviously be the value of the property. The Plaintiff is not required nor is it possible for him to value even approximately the amount of mesne profits pendente lite which must vary according to the period of time the Defendant retains possession of the property. Moreover, the Plaintiff has no right to such mesne profits at the date of suit and he is only allowed such profits in his suit by virtue of a special provision in the Civil Procedure Code. This provision has evidently been made with the object of prevention of a multiplicity of suits. When, therefore, the value of the property is one thousand rupees or less the Plaintiff must bring his suit in the Munsif's Court under the provisions of sec. 15 of the Civil Procedure Code, and he cannot resort to a Court of higher grade with reference to any prospective mesne profits. The Munsif has then full jurisdiction to entertain the suit having regard to its value, under sec. 19 of Act XII of 1887. The next question is, whether such jurisdiction is limited or affected in any way by any subsequent event. Under Or. 20, r. 12 (1), cl. (a) of the Civil Procedure Code, the Court may pass a decree in such a suit as this for possession of the property and under cl. (c), a decree directing an enquiry as to mesne profits from the institution of the suit, to a specified date which I need not reproduce here. Sub-r. (2) of r. 12 provides that where an inquiry is directed under cl. (c) a final decree in respect of the mesne profits shall be passed in accordance with the result of such inquiry. Where the Munsif has in the proper exercise of his jurisdiction passed a decree for possession and also a preliminary decree for mesne profits, he must, I think, be held to have jurisdiction to make a final decree in accordance with his decision. This jurisdiction is not limited, if, as a result of the inquiry directed by him, the mesne profits are found to exceed the amount of his pecuniary jurisdiction as regards the value of the suit.

The final decree for mesne profits must therefore be passed for the amount found on enquiry. It seems to me that sec. 19 of Act XII of 1887 and sec. 6 of the Civil Procedure Code have reference to the value of the suit for the purpose of entertaining jurisdiction, and if the value of the suit is in excess of his jurisdiction he cannot entertain it nor pass any decree in the suit. If a suit is rightly entertained as within the jurisdiction of the Munsif and a decree passed, his power to grant the proper and adequate relief is not affected as by any event which increases the value of the relief during the pendency of the suit. To hold that jurisdiction should depend on the amount for which the final decree should be passed would have this effect, that after the Munsif passes a preliminary decree and it is found after accounts taken that the final decree must be for an amount exceeding the pecuniary limit of his jurisdiction, the entire proceedings before him including the decree passed should be considered as being without jurisdiction. It would also lead to many other anomalies apart from the serious question that the Plaintiff would be denied his proper remedy for no fault of his. If the Munsif's jurisdiction to pass a decree is limited to the value of the suit he can entertain, he cannot pass any decree for mesne profits, the amount of which being addled to the value of the property would exceed his pecuniary jurisdiction. Thus, where the property was valued at, say Rs. 1,000, the Munsif will not be able to pass a decree for mesne profits for any further amount. I venture to think that it would not be a proper solution to hold that the Munsif could pass a decree for mesne profits for a further sum of Rs. 1,000 for although there must be two decrees in such a case, there is only one suit, and the Munsif would then have power to pass a decree of the value of Rs. 2,000 in the same suit. Moreover, if the amount of the mesne profits were taken into account in determining the value of the suit and the Munsif's jurisdiction, then, in the case I have stated, he should be considered to have no jurisdiction to entertain the suit or pass any decree, and therefore the decree for possession as well as the preliminary decree for mesne profits should be held to have been passed without jurisdiction. This result however cannot at all be contemplated. Nor can it be said that the Plaintiff must be considered to have abandoned a part of his claim by bringing his suit in a Court of limited jurisdiction. I have already shown that the Plaintiff had no option in the matter and he had no right to bring his suit in a Court of higher grade with reference to prospective mesne profits, and it would be manifestly wrong not to allow him a decree for what he would be entitled to. The Court must have jurisdiction either to grant the relief a party is entitled to or not, and in the latter case it must stay its hand and cannot grant only a partial relief by assuming jurisdiction. I am therefore of opinion that if a suit is rightly entertained by a Munsif he has the power to pass a decree for the proper relief even where the amount of the decree exceeds the value of the suit and his pecuniary jurisdiction.

Several instances may be cited where the decree of the Munsif may exceed the limit of his pecuniary jurisdiction as to the value of the suit he may entertain. A suit on a mortgage, where the mortgage money does not exceed Rs. 1,000 at the date of suit must be brought in the Munsif's Court. He passes a decree for subsequent interest from the date of suit until realization at the bond rate. The amount due on taking accounts may be found to exceed Rs. 1,000. I do not think that it has ever been doubted that the Munsif could pass a final decree for the amount due to the Plaintiff on taking such accounts. Again, where a successful party seeks for relief by way of restitution he is prevented from bringing a suit under sec. 144(2) of the Civil Procedure Code. But the costs, interest, damages, compensation and mesne profits allowed under sec. 144(1) may well be conceived to exceed Rs. 1,000 and it can hardly be held that the relief must be restricted to that amount, being the pecuniary limits of the jurisdiction of the Munsif. Such instances may be multiplied.

The only difficulty suggested in accepting the view I have stated is with regard to the forum of appeal if the Munsif passes a decree exceeding Rs. 5,000. An appeal from the decree of a Munsif lies in all cases under sec. 21(2) of Act XII of 1887 to the District Judge. But where the value of the original suit exceeds Rs. 5,000 the appeal from a decree of the Subordinate Judge lies to the High Court. The forum of appeal is determined with reference to the value of the suit, and not the amount decreed. It may be that the legislature did not contemplate the circumstance that a decree by a Munsif might exceed Rs. 5,000 in value. But do not think that the determination of the forum of appeal affects the question before us. For practical purposes this is negligible, as the instances where the Munsif would pass a decree for mesne profits exceeding Rs. 5,000, much in excess of the capitalized value of the property, must be very rare.

I have refrained from making any allusion to the fact of Plaintiff's claiming mesne profits in his application for an inquiry at a figure in excess of the Munsif's pecuniary jurisdiction, I consider the matter to be entirely irrelevant as the Plaintiff is neither required nor bound to state any amount in his application. The figure stated in his application need not be taken into consideration at all in this connection. The application is not a plaint, and the contention of both parties that the plaint should be returned for presentation to a higher Court, as was held in some of the decided cases, cannot be accepted for the reason that a preliminary decree has already been passed in the case by the Munsif on the original plaint, and the only thing that remains to be done is to give effect to the preliminary decree by a final decree. There is no provision in the law for the return of a plaint after a preliminary decree has been passed. To direct one suit to be converted into two suits would also cause the mischief which Or. 20, r. 12 of the Code seeks to prevent.

On the grounds stated I would answer the first question in the affirmative. The second question does not therefore arise.

Duval, J.:— I agree with the judgment and conclusions of my learned brother Mr. Justice B.B Ghose and wish only to add a few observations. In the absence of any rules to the contrary—rules which the Bengal Government is competent to make under sec. 3(1) of the Suits Valuation Act—a suit for recovery of khas possession of immoveable property must be valued for the purpose of jurisdiction under sec. 7(v), (a)—(e) or sec. 7(xi)(cc) of the Court Fees Act. The valuations may be, and in Bengal usually is, the market value of the property but it is not necessarily so; and in cases falling under sub-cls. (v)(a) to (c) and (xi)(cc) may be far less. But whatever may be the actual annual income of the property, a Plaintiff cannot value his suit for jurisdictions at a higher value than is allowable by law, i.e, the value of the land as calculated under sec. 7 of the Court Fees Act plus the value of mesne profits claimed up to the date of the institution of the suit. He cannot value subsequent mesne profits in advance as he cannot tell when he will get his decree or when he will recover possession. The Plaintiff must then bring his suit in the Munsif's Court if its valuation does not exceed one thousand rupees. In my opinion once the Court of the Munsif has jurisdiction to entertain a suit it must also have jurisdiction to give all the reliefs in that suit (including mesne profits and interest accruing after decree) which) the law allows. Thus in a suit for money, sec. 34 of the Code provides that the Court may decree interest up to the date of realization and I do not think that it has ever been disputed that a Munsif can give a decree for Rs. 1,000 with costs and interest in addition, i.e, his jurisdiction is not limited in passing his decree to Rs. 1,000 only. My learned brother has referred to a similar position in regard to mortgage suits.

It appears to me that Or. 20, r. 12 of the Code, taken as a whole and not split up into parts can only be interpreted to mean that the Court which has jurisdiction in the suit has power to give all the reliefs specified in that rule, independent of what in the first instance is its pecuniary jurisdiction for entertaining the suit, and the fact that mesne profits, subsequent to the decree, of over Rs. 1,000 are claimed can make no difference.

Nor do I find anything in the Bengal, Agra and Assam Civil Courts Act against this view. That Act limits the jurisdiction (usually) of Munsifs to suits of the value of Rs. 1,000, all suits above that value being triable by the Subordinate Judges. The District Judges hear all first appeals from decisions of Munsifs and certain first appeals from the decisions of Subordinate Judges, the High Court hearing other first appeals from the latter. But the respective jurisdictions of the High Courts, the District Judges, the Subordinate Judges and the Munsifs are determined not by the value of the decree, but by the value of the suit, and that value to my mind can only be the value of the suit as defined in the Suits Valuation Act read with the Court Fees Act. Both sec. 19 and sec. 21 of the Bengal, Agra and Assam Civil Courts Act speak only of the value of the suit and not of the value of the decree—a value made up of what the Court finds due out of the claim and what under the Code of Civil Procedure are legal additions thereto, e.g, costs, pleaders' fees and other subsequent reliefs such as mesne profits allowed by it.

Per Curiam:— As the appeals out of which this reference has arisen are appeals from original orders they are remitted to the Division Court to be disposed of in accordance with the opinion of the majority of this Bench. That Court will also pass orders as to the costs of the hearing before this Bench.

N.G