Maskandar Ali and Others vs Kala Raja Choudhury and Others

C.S. Nayudu, J.—The simple question that has to be determined in the preliminary objection taken to the maintainability of this second appeal is whether a suit for mesne profits is not of a nature cognisable by a court of Small Causes under the Provincial Small Cause Courts Act.

2-3. The Plaintiffs in the instant case prayed for a sum of Rs. 784/- as mesne profits on First Schedule land for the years 1958-59 and 1959-60 and also for a sum of Rs. 264/- as mesne profits on the Second Schedule land for the years 1958-59, 1959-60 and 1960-61, totaling a sum of Rs. 1,048/-. They, however, give up Rs. 48 out of their claim and confined their claim to Rs. 1,000. As the subject matter of the plaint is confined to a sum of Rs. 1,000, if the suit were a suit in the nature of a suit cognisable by a Court of Small Causes, there would be no right of second appeal having regard to Section 102 of the Code of Civil Procedure, and if it is not cognisable by a Court of Small Causes, then obviously a Second Appeal would lie as Section 102 of the CPC would not be a bar.

In this connection the relevant Article of the Provincial Small Cause Courts Act that requires to be referred to is Article 31 of Schedule II of the said Act, which runs as follows:

Any other suit for an account, including a suit by mortgagor, after the mortgage has been satisfied, to recover surplus collections received by the mortgagee, and a suit for the profits on immovable property belonging to the Plaintiff which have been wrongfully received by the Defendant.

It is clear from the above that this Article covers two types of suits, one is a suit for an account not covered by the previous Article which is a general Article relating to account of property and for its due administration under decree, and the other is a suit for the profits on immovable property belonging to the Plaintiff which have been wrongfully received by the Defendant. The former type includes also the specific type of cases mentioned in the Article, namely a suit by a mortgagor in respect of surplus collection received by the mortgagee.

It is also clear from the above that the suit for mesne profits on immovable property belonging to the Plaintiff which have been wrongfully received by the Defendant occurs independently in the Article as a separate type of suits referred to and covered by it, and having regard to the plain meaning of the Article and the English language, the latter has to be read disjunctively. We are, therefore, clearly of opinion that Article 31 not merely covers any other suit as indicated in the Article including the type of suits mentioned there in but also covers suits for profits on immovable property wrongfully received by the Defendant on property belonging to the Plaintiff. In the instant case the suit is clearly one for mesne profits; in other words, profits which the Defendants are said to have received on the property of the Plaintiffs wrongfully. Such a suit, in our opinion, is clearly covered by Article 31 Schedule II of the Act and, therefore, exempt from the jurisdiction of the Court of Small Causes under the Provincial Small Causes Courts Act.

In the view we have taken we are fortified by the Full Bench decision of the Rangoon High Court in the case of U Min Din v. U Po Thaung, reported in AIR 1928 Rang 102, wherein their Lordships held that a suit for mesne profits is not of a nature cognizable by a Small Cause Court under the Provincial Small Cause Courts Act. This view is also supported by the decisions of the other High Courts.

If the Legislature had intended that Article 31 should only apply to cases of accounts for mesne profits, nothing could have been simpler than to include the suits for mesne profits in the inclusive clause, and the Article would have read like this: Any other suit for an account including a suit by the mortgagor after the mortgage has been satisfied etc., and for profits on immovable property belonging to the Plaintiff which have been wrongfully received by the Defendant. In other words, if the test is that the suit should be one for an account of mesne profits so as to claim exemption under Article 31, this would have been the way the article would have been worded.

As it is, it leaves no room for doubt in our mind that any suit for mesne profits on immovable properties is covered by Article 31 and is exempted from the jurisdiction of the Court of Small Causes. In this connection it would also be useful to refer to Order 20 Rule 12 of the CPC which deals with the decree for mesne profits. There is provision therein for directing an enquiry as to the past profits as well as for directing an enquiry as to the future profits. It is apparently for this reason that the legislature intended, to exempt suits for, mesne profits from the purview of the Court of Small Causes. We are therefore, clearly of opinion that there is not substance in the preliminary objection taken and the appeal is clearly maintainable.

In the view we have taken, the appeal will be posted for hearing before a single bench in the usual course.