Maulvi Imamuddin Khan vs Kishundeo Narain Mahatha

Dawson Miller, C.J.—In this case the plaintiff has applied for a certificate u/s 110 of the CPC with a view to appealing to His Majesty in Council from a decree of this Court, which reversed the judgment of the Subordinate Judge in a suit brought by the plaintiff claiming possession of certain property and mesne profits. The judgment being one of reversal, the duly question for determination is whether the value of the subject-matter of the suit is Rs. 10,003 or upwards. In the lower Court the plaintiff succeeded and he was awarded possession of the property which in the plaint was valued at Rs. 4,500. He further claimed mesne profits up to the date of the suit, which was the 16th January 1915, estimated at Rs. 7,102 as well as future mesne profits, and under the Rules, if the Court should decide in his favour, it would be entitled, in addition to passing a decree for the recovery of the property and for the mesne profits which had accrued during the period prior to the institution of the suit, to direst an inquiry as to the mesne profits from the institution of the suit either until the delivery of possession to the decree-holder or the relinquishment of possession by the judgment-debtor or the expiration of three years from the date of the decree, whichever event falls first. It is quite clear, therefore, that so far as the claim, in this suit is concerned, the amount or value claimed by the plaintiff was over Rs. 10,000. It is contended, however, by the respondents that the mesne profits having been ascertained and assessed at Rs. 5,290 by the lower Court, that sum added to the value of the property over which possession is claimed falls short of the appealable amount, namely, Rs. 10,000. In order to ascertain how far this argument is justified, it is necessary to see exactly what has taken place in the Bourse of the case, but before doing so I think that it is desirable that I should dispose of a contention which was put forward on behalf of the respondents regarding the practice which has been followed in such cases in this Court. Following the decision of the Calcutta High Court in the case of Basanta Kumar Roy v. Secretary of State 6 Ind. Cas. 792 : 14 C.W.N. 872, this Courts has laid down a general rule that, in ascertaining the amount or value of the subject-matter of a suit in the Court of first instance for the purposes of Section 110 of the Civil Procedure Code, where the suit involves a claim for mesne profits, the mesne profits which might be awarded by the Court, whether they had actually accrued at the date when the suit was instituted or whether they were future mesne profits, should be taken into consideration in assessing the value of the subject-matter of the suit. This interpretation, of the Section was that given to it by the High Court at Calcutta in the case just mentioned, where it is laid down that in a suit for recovery of possession of Immovable property with mesne profits, the subject matter to be valued would include mesne profits claimable from the institution of the suit to the date of the delivery of possession or until the expiration of three years from the date of the decree with interest. It is true that other High Courts have adopted a different view and have applied the decision in the case of Moti Chand v. Ganga Prasad Singh 24 A. 174 : 6 C.W.N. 362 : 29 I.A. 40 : 4 Bom. L.R. 159 : 8 Sar. P.C.J. 247 to cases where the question is whether or not future mesne profits-ought to be added. In the case just mentioned their Lordships of the Privy Council had laid down a ruling that interest could not be added to the decretal amount so as to being it up to the statutory value. The High Court at Calcutta, however, had not applied that principle, to mesne profits and the reason given by Sir Lawrence Jenkins in the case of Basanta Kumar Roy v. Secretary of State 6 Ind. Cas. 792 : 14 C.W.N. 872 was that "what we have to ascertain is the amount or value of the subject-matter of the suit in the Court of first instance, and seeing that under the Code of Civil Procedure, 1882, the Court could provide in the decree for the payment of mesne profits in respect of the property from the institution of the suit until the delivery of possession or until the expiration of three years from the date of the decree with interest, such mesne profits and interest can, I think, be legitimately regarded as pact of the subject matter of the suit."

It is true that in an earlier case decided in this Court, in which it was not necessary to give a decision upon this point. I had doubted whether the interpretation given to the Section by the High Court at Calcutta should be preferred to that given in a recent decision of the Madras High Court. That was in the case, of Kesho Prasad Singh v. Shiva Saran Lal 44 Ind. Cas. 475 : 3 P.L.J. 317 : 4 P.L.W. 240, but in the later case of Mahabir Prasad Singh v. Anup Narain Singh 46 Ind. Cas. 137 : 3 P.L.J. 377 : (1918) Pat. 246 : 5 P.L.W. 327 the Court distinctly laid down that the ruling of the High Court at Calcutta should be followed in such cases. Until, therefore, that decision is overruled or dissented from by a higher Tribunal, I see no reason to depart from the rule laid down in that case. That being so, it becomes necessary to ascertain from what actually took place in the present case whether or not the subject-matter of the suit can in, the particular circumstances be regarded as having been above Rs. 10,000, The respondents contend that in any event it cannot, because, although there was an appeal by the present respondents from the decision of the lower Court, nevertheless there had been an ascertainment of mesne profits notwithstanding the appeal to this Court and the mesne profits were in these proceedings ascertained and determined at the sum of Rs. 5,290 which, added to the value of the property, was not sufficient to bring the sum up to the appealable amount. The mesne profits so ascertained, however, were not, it is contended by the appellant, the whole of the mesne profits which he was entitled to under the decree, and that in fast up to the present moment there has been no ascertainment of the mesne profits which he will ultimately be entitled to, if he should be successful in this appeal. According to the decree and judgment of the lower Court possession having been decreed in favour of the plaintiff, the further issue as to mesne profits was dealt with quite shortly. The learned Additional Subordinate Judge simply said this:

Plaintiff is entitled to magna profits from the defendant first party. As prayed by plaintiff, the determination of the account of mesne profits may be reserved for the present.

As I interpret these words which were subsequently incorporated in the decree they mean this, that the plaintiff, having claimed not only possession but mesne profits, was entitled to mesne profits up to the time either when he got possession by the ant of the Court or by the surrender of possession by the defendants or up to the expiration of 3 years, but the actual ascertainment of the annual value of the mesne profits was still to be determined. The reason why I arrive at that conclusion is because future mesne profits, after the actual date when the suit began, were claimed by the plaintiff in his plaint, as indeed is usual in such cases. He had, however, not paid the Court-fee to cover mesne profits as estimated by him beyond the date when the suit was instituted. He, however, offered to pay such Court-fee as should be necessary upon the ascertainment of the future mesne profits. That decision of the Additional Subordinate Judge was given on the 16th February 1917, and subsequently on the 14th July the plaintiff presented a petition to the same Court asking for the ascertainment of mesne profits. In that petition he contended that he was entitled to mesne profits at that date from the year 1319 to the year 1324 F., that would be up to the date of the petition. He then stated that the Court I fee had been paid upon the approximate mesne profits for the years 1319 to 1322 F., that is, up to the institution of the, suit, the plaint having been filed on the 16th January 1915. In the same petition he points out that he bad promised to pay, the Court-fee for the years subsequent to 1322 F., and he stated that the mesne profits for the subsequent years up to the date of delivery of possession would be claimed hereafter.

When the petition for ascertainment of mesne profits was heard, the defendants did not contend that the plaintiff was not entitled to mesne profits up to the date when he recovered possession or up to 3 years from the date of the suit, but they objected that it was premature and unnecessary to have an enquiry for the ascertainment of mesne profits at that time, because, even if it were decided that mesne profits were due, there would hereafter, when the decision of the High Court was known, if it ware still-in favour of the plaintiff, have to be a further ascertainment of mesne profits for the subsequent years, at all events up to the expiration of three years. This contention, however, was not acceded to by the learned Judge, who directed an enquiry to be made by a Commissioner and report. That enquiry was made and the actual annual value of the land was ascertained at Rs. 1,420, and this sum was awarded for the three years prior to the commencement of the suit together with interest, these sums together amounting, as I have said, to the sum of Rs. 5,290. The reason why mesne profits were only awarded up to the date of the commencement of the suit appears to have been that up to that time the Court-fee had been paid upon an estimated valuation of the profits up to that date and pending the decision of the High Court it was not thought necessary at that time, nor indeed convenient, to apply for anything else. The respondents contend that that ascertainment of mesne profits put an end to the matter and determined the whole of the plaintiff''s rights in the suit and that whatever may be the ultimate end of this suit, he will be unable to recover anything more than Rs. 5,290 in respect of mesne profits. Having regard to the course which the case has taken, I am unable to accept that view, It seems to me that the ascertainment of mesne profits was merely an ascertainment of the profits which the plaintiff was entitled to up to a certain date and as the case was pending in appeal, he did not think fit at that time to pay the necessary Court-fee in order to obtain the mesne profits for the full three years or up to the time when he got possession, neither of which events at that time had happened. If, however, the mesne profits for the three years are added to the value of the property, it is clear that the value of the subject-matter of the suit arrived at upon the principle adopted by the Calcutta High Court, and followed in this Court, will be more than Rs. 10,000. There is no question that the subject-matter in dispute on appeal to His Majesty in Council is also above Rs. 10,000, and in these circumstances it seems to me that we ought to issue a certificate that this case complies with the provisions of Section 110 of the Civil Procedure Code.

Owing to the course which this case has taken, it became necessary to enter a separate appeal from the decision of this Court relating to the decree for mesne profits granted by the lower Court. The two cases, Appeals Nos. 49 and 50, although decided by different judgments and at different times, are really different parts of the same action and in these circumstances, as we have given leave to appeal in the main suit which really involves the determination of the questions decided in the subsidiary suit, I think that it is necessary in the ends of justice that we should grant leave to appeal in Appeal No. 49 in the particular circumstances which have arisen, because it is merely a formal matter. The rights of the parties will in fact be the subject of the decision in the other appeal. I think, therefore, although the value of the subject-matter in dispute is not Rs. 10,000, Appeal No. 49 is a fit one u/s 109 of the Civil Procedure Code.

Adami, J.

I agree.