Doraiswami Ayyar and Others vs T. Subramania Ayyar and Others

John Wallis, Kt., C.J.—I agree with the referring Judges. Explanation V to Section 11 of the present CPC is in exactly the same terms as

the corresponding explanation III to Section 13 in the Code of 1882. Under the Code of 1882 it was held by a Full Bench of this Court in

Kuppusamy Aiyar and Another Vs. Venkataramier and Others, , in conformity with the decisions of other High Courts, that the word ''relief'' in the

explanation means relief arising out of a cause of action which had accrued at the date of suit and on which the suit was brought, and did not

include relief such as mesne profits accruing after the date of suit as to which no cause of action had then arisen, but which the Court was

nevertheless expressly empowered to grant. The explanation having been reproduced in exactly the same words, the presumption is that it was

intended to have precisely the same effect. I do not find any sufficient indication to rebut this presumption in the fact that Sections 211 and 212 of

the old Code were amalgamated to form Order XX, Rule 12. The change introduced by the new rule is that the award of mesne profits in all cases

is to be by preliminary decree, and that when ascertained they are to be embodied in a final decree, whereas under Sections 211 and 212 they

were to be ascertained in execution. This change does not appear to me to affect the construction of explanation V to Section 11, nor do I think is

effected by the omission in Section 47 of the new Code of the proviso to the corresponding Section 244 of the old Code. I answer the question in

the affirmative.

Ayling, J.

I regret that I am unable to concur. The point referred is identical with that considered by Hannay, J., and myself in Ramaswami Iyer v. Sri

Rangaraja Iyangar (1915) 2 L.W. 8, and with all respects after hearing it reargued. I remain of the same opinion.

I would answer the question in the negative.

Kumaraswami Sastriyar, J.

The question referred to us for decision is:

Whether after a suit for possession for lands and mesne profits fast and future has been brought and decided and a decree has been obtained for

possession and past mesne profits without the claim to future mesne profits being decided, a second suit will lie to recover mesne profits from the

institution of the first suit till delivery of possession.

I agree with the Chief Justice whose Judgment I have had the advantage of perusing and with Sadasiva Ayyar and Spencer, JJ., the referring

Judges, that the question should be answered in the affirmative.

As there has been no adjudication as to future mesne profits the second suit can only be barred if it can be brought under explanation V to

Section 11, Civil Procedure Code, 1908. It is now well settled that the word ''relief'' in explanation V means a relief which the plaintiff can claim as

a matter of right in respect, of a cause of action which has accrued to him at the date of suit and that relief in respect of future mesne profits is not

claimable as a matter of right no cause of action accruing to the plaintiff at the date of suit in respect of the future injury he might suffer if the

defendant continues to be in wrongful possession in spite of the suit and that explanation III of Section 13 of the Code of 1882 which is the same

as explanation V of Section 11 of the Code of 1908 will not bar a second suit. Mon Mohun Sirkar v. The Secretary of State for India in Council

I.L.R.(1890) Calc 968 Jiban Das Oswal v. Durga Pershad Adhikari ILR (1894) Calc. 252, Bhivrav v. Sitaram ILR (1995) Bom. 532, Ram Dayal

v. Madan Mohan Lal ILR (1899) All. 425 and Kuppusamy Aiyar and Another Vs. Venkataramier and Others, .

There is nothing in the present Code that alters the nature of the claim for future mesne profits. It is still a claim in respect of a cause of action

that has not accrued to the plaintiff at the date of suit and it cannot be contended after the recent decision of the Pull Bench in Ponnammal v.

Ramamirda Aiyar I.L.R.(1915) Mad.829, that if the plaintiff had omitted to ask for the relief in his plaint a separate suit would be barred.

The main contention for the respondents is that Order XX, Rule 12, has now rendered it obligatory on the Court to pass a decree as to mesne

profits from date of suit to date of delivery of possession if the plaintiff makes out a claim for such relief and that consequently the decisions under

the Code of 1882 have no application.

I do not think that the Code of 1908 which enacts as Order XX, Rule 12, what was contained in Sections 211 and 212 of the Code of 1882

has made any material alteration in the nature of the claim as to future mesne profits. Rule 12 provides that the Court may pass: (1) a decree for

possession of the property, (2) a decree for rent or mesne profits up to suit or direct an inquiry as to the same and may (3) direct an inquiry as to

future mesne profits. It provides for a final decree being passed after the inquiry directed is made and the liability ascertained. So far as Clause (c)

of Order XX, Rule 12, is concerned the power of the Court is still discretionary as all the Order does is to provide that the Court may pass a

decree directing an inquiry as to rent or mesne profits from the institution of the suit till the period provided for by Clauses (i), (ii) and (iii). It has

been argued that even as regards Clauses (a) and (b) the word used is ''may'' and not ''shall'' though the Court is bound to pass a decree in terms

of Clauses (a) and (b) if plaintiff''s claim is established. Section 212 of the old Code provides that the Court may either determine the amount by

the decree itself or may pass a decree for the property and direct an inquiry into mesne profits and dispose of the same on further orders and the

legislature in including in one section what was embodied in two by using the word ''may'' which occurred in both the sections cannot be said to

have introduced any new principle as regards future mesne profits. When different claims are dealt within one rule under various sub-sections the

fact that the word ''may'' should be construed as ''shall'' in respect of one of the sub-sections owing to nature of the claim which it deals with, does

not necessarily mean that the word cannot be construed in its ordinary sense as regards other clauses. With all respect I am unable to agree with

the decision in Ramaswami Iyer v. Sri Rangaraja Iyangar (1915) 2 L.W. 8, that the grouping out one section of past and future mesne profits

affects the nature of future mesne profits so as to attract to it the provisions of explanation V to Section 11. The omission of the proviso to Section

244 in Section 47 of the Code of 1908 is due to the fact that under the Code of 1908 the determination of questions as to mesne profits was to be

in the suit itself and not subsequent to decree in execution proceedings. Under the scheme of the present Code there is no necessity for any such

proviso to Section 47 which corresponds to Section 244 of the old Code.

There being in my opinion no material difference between Section 211 of the old Code and Rule 12, Clause (c) of Order XX of the present

Code, there is no reason for departing from the decisions of this and the other High Courts as to the second suit not being barred by explanation V

of Section 11 of the Code.