Satyataran Chaudhury vs Raja Sri Sri Jyoti Prasad Sinha Deo and others

Dawson Miller, C.J.—This is an appeal on behalf of the plaintiff from a decree of the Subordinate Judge of Manbhum dismissing the suit.

The suit was instituted on the 12th August 1919 by the appellant claiming a declaration of his title to, and possession over, certain lease-hold property in mauza Dhekbera of which he claimed to be the sub-lessee under a mining lease granted by the proprietor, Raja Jyoti Prosad Singh Deo, the first defendant, to Ram Charan Sinha, the father of the third defendant and sub-let by the latter to him. He further claimed a declaration that the property had not been sold or affected by a sale of the Court in pursuance of a decree granted in suit No. 104 of 1913, instituted in the Court of the Subordinate Judge of Purulia. The appellant contends that the decree and the subsequent sale thereunder were without jurisdiction and were null and void and not binding upon him. It is admitted that if the decree and the subsequent sale are binding, the present appeal must fail and this is the only question for determination.

The circumstances out of which the present dispute arises are as follows:- By an instrument dated the 5th April 1909 the defendant No. 1, who is the Raja of Kashipur, granted a lease of the coal mining rights in mouza Dhekbera, measuring 121 Bighas, within his Zamindari for a term of 999 years to Ram Charan Sinha. On the 31st May 1909 Ram Charan Sinha granted to the plaintiff Satyataran Chaudhury what purported to be a sub-lease of the same property, but which the defendants contend amounted to an assignment. The original lease stipulated that the tenant should pay Rs 4,840 Salami and a commission of 7 annas per ton on all species of coal raised with a minimum royalty of 10 rupees per bigha. By clause 12 of the kabuliat executed by the lessee, and which admittedly contains the terms of the lease, it is provided that the leasehold land and the colliery together with the machinery, colliery houses, etc., shall stand pledged as a security for the realisation of commission and minimum royalty payable by the lessee. The commission and royalty were payable by half yearly kists. The translation of the kabuliat printed with the papers on the record is not quite accurate in some respects and we have had an accurate translation of clauses 30 and 31, which are important, made by the Peshkar of the Court. When properly rendered, these clauses in effect provide that if any commission or royalty or any part thereof be not paid by the appointed time and for 60 days thereafter, the landlord shall be entitled to enter upon the leasehold land, and shall'' be competent to attach or remove into his own possession the machinery, tools, animals and other articles brought upon the land so long as the amount of arrears is not realised with costs. Clause 31 in effect provides that if the tenant does not pay, according to the terms of the kabuliat, commission or royalty for six months from the date on which it is due and if the terms relating to non-payment are not complied with, whether a demand is made or not, or if any other terms of the kabuliat be violated, the landlord shall serve a notice stating the amount due for commission, or for compensation by reason of the breach of any other term of the contract, and if the tenant shall pay the amount within the time appointed by the notice, the landlord shall not exercise his right of retaking possession. By the sub-lease granted to the plaintiff on the 31st May 1909 the plaintiff undertook to be bound by the terms of the head lease The term demised under the said lease is also for 999 years expiring on the same date as the head lease. The other terms and conditions are similar with regard to Salami and minimum royalty but the rate of commission per ton on the coal raised is 9 annas instead of 7.

On the 17th March 1913, the royalty having fallen into arrears, the landlord brought a suit No. 104 of 1913 against his lessee Ram Charan Sinha claiming a sum of Rs. 4,105-10-0 royalty from the year 1909 after giving credit for certain payments on account. He also claimed interest until realisation and prayed to be put in possession over the leasehold property according to the terms of the kabuliat. On the 5th May 1913 the plaintiff was added as a defendant in the suit upon a petition filed by the landlord, the plaintiff in that suit, alleging that he had come to know that the property had been transferred to Satyataran Chaudhury and that he was in possession, and as difficulty might arise in future in selling the leasehold land, he asked that Satyataran Chaudhury should be added as a defendant. The original defendant did not enter appearance but the appellant filed a written statement on the 17th September 1913. Therein he pleaded payment and a tender of the money due which had been returned. He further pleaded that the claim for khas possession was untenable in law and that such a claim being a penal clause in the lease was not enforceable. He also objected to the interest charged and pleaded that he was ready to pay the amount which was justly due.

At the trial the appellant produced no evidence in support of his plea and the learned Judge framed two issues for trial:-

(1) Are the defendants liable to ejectment?

(2) Is the plaintiff''s plea of payment true?

On the first point he said "The Plaintiff does not press the prayer for ejectment, although there is a stipulation for it in the kabuliat executed by the defendant No. 1. So the prayer for ejectment is rejected." On the second point he said "The defendant No. 2 cannot produce any evidence to-day in support of his plea. In fact the payments alleged by him have been credited in the plaint. The plea is disallowed" and he ordered that "The suit be decreed with costs and interest at the stipulated rate till date for payment; defendants shall pay into Court the decretal money in six months. In default the decree be made final and satisfied by sale of the mortgage property. Add post diem interest at 6 per cent per annum. Exparte against defendant No. 1." By the decree drawn up in pursuance of this order it was ordered "That the suit be decreed for Rs. 4,105-10-0 with costs and interest at 12 per cent per annum on the principal money till date of payment. The defendant shall pay into Court the decretal money in six months. In default the decree be made final and satisfied by sale of the mortgaged property. Add post diem interest at 6 per cent per annum." The rest of the decree deals with the costs and interest at 6 per cent per annum from the date of the decree until realisation. The appellant did not appeal from that decision. The decretal amount was not paid, and on the 13th May 1915 the final decree was passed ordering a sale of the property and in due course the property was sold and purchased by the first defendant in the suit. Before the sale the appellant endeavoured to have the case reinstated under Order 9 rule 13 of the CPC put his application was dismissed for default in December 1914. He attempted to have it revived but again his application was struck off for default. In the course of the execution proceedings to recover the unsatisfied balance of the decree after the sale, he filed an objection contending that he was not personally liable under the decree and further that the decree was without jurisdiction, ultra vires, null and void and could not be executed. His objection, brought u/s 47 of the Civil Procedure Code, was dismissed by the executing Court on the ground that the decree could not be questioned in execution, and that order was confirmed on appeal to the District Judge and a further appeal to the High Court was likewise dismissed. The appellant then instituted the present suit challenging the decree passed in suit No. 104 of 1913 as null and void and claiming possession of the leasehold property.

The learned Subordinate Judge was of opinion that the sub-lease to the appellant being for the whole term but subject to a power to re-enter on non-payment of royalty operated as an assignment and not as an under-lease. He further considered that the previous decision u/s 47 of the CPC when the appellant attempted to have the decree set aside as a nullity operated as res judicata. He was further of opinion that the Court in the original suit was entitled to pass a decree for sale although there was no prayer for such relief.

From that decision the present appeal is brought. The only point which has been urged before us and which it is necessary to decide, is that the decree in suit No. 104 of 1913 was a nullity. It is contended that the decree which was passed was in effect a mortgage decree and that the suit was not so framed as to permit of such a decree. In considering this question it is necessary to revert to the plaint in that suit. It recites the material terms in the kubuliat. Paragraph 3 of the plaint alleges "That it is stated in paragraph 12 of the said kabuliat that if the defendant does not pay the said commission or minimum royalty in the aforesaid manner, the leasehold land together with all other properties including the colliery, machinery, tools etc., thereon shall remain pledged as a security for any money which will remain due in the said manner." The fourth paragraph provides as follows:-

That it is further stipulated in the said bond that if the defendant keeps any dues of the plaintiff on the basis of this lease, viz., the amount of commission or minimum royalty, etc. unpaid for more than 60 days, the plaintiff or his agent shall be competent to enter into the leasehold land, sell or remove any machineries, tools and any other articles and realise his own dues, and if the said dues of the plaintiff remain unpaid for more than 6 months he shall be competent to take the leasehold property into his khas possession again.

It then refers to certain payments on account and the balance which still remains due. The 6th paragraph is as follows:-

"That as the defendant did not pay the minimum royalty from Chaitra 1315 B.S. to Aswin Kist of 1319 B.S. the plaintiff has become entitled to khas possession of the leasehold property" and it asks as already stated for a decree for the sum claimed and for khas possession over the leasehold property according to the terms of the kabuliat. It will be observed that the plaint alleges that the leasehold property was pledged as security for the unpaid commission or royalty and although no specific prayer is inserted for enforcement of that charge the facts upon which an enforcement of the charge might have been asked for are stated, and the plaintiff does in fact pray for a much wider remedy, namely, possession of the leasehold property according to the terms of the kabuliat which gave him a right to re-enter. In my opinion the decree in fact passed was not a mortgage decree but was what is in form similar, namely, a decree enforcing a charge, and although the learned Judge in his Judgment speaks about the "mortgage property" this does not, in my opinion, convert it into a mortgage decree. We are not concerned with the question whether the learned Judge was right or wrong in rendering the appellant personally liable for the decretal amount, nor is it material to consider whether by the terms of the kabuliat he was right in assuming that a valid charge had been created upon the property to secure the unpaid royalty. If he was wrong in deciding these points against the appellant the proper remedy was by way of appeal, and, even assuming that the decision could not have been supported on appeal about which I offer no opinion, the learned Judge had jurisdiction to decide these questions one way or the other even if his judgment should turn out to be wrong. The only question is whether the form of decree which he passed was one which it was within his competency to pass having regard to the scope of the suit and the manner in which the pleadings were framed.

The appellant relied upon certain English decisions to the effect that if the defendant makes default in pleading or does not appear at the trial, the plaintiff cannot obtain any relief which is not expressly asked for. (See Tacon v. National Standard Investment Co. 56 L.T. 165 Faithful v. Woodley C. 43 D. 287. The English practice under Order 27 of the rules of the Supreme Court in case of default of pleading by the defendant gives the plaintiff certain summary remedies which are not provided for in our rules, and in such cases different considerations may well apply. But even assuming that the Court should not allow an amendment, or grant a relief not specifically asked for in the plaint in cases in which the defendant does not appear, in the present instance he did enter appearance by filing a written statement and the decree was passed in the presence of his pleader as appears from the decree itself. Had a formal amendment of the prayer in the plaint been asked for there seems no reason why it should not have been granted as the facts were pleaded in the plaint and not traversed in the written statement upon which such relief might be founded. Moreover, as the plaintiff did not press for ejectment, it might perhaps reasonably be inferred from the order made that he did ask for the lesser remedy, namely, an enforcement of the charge, which the Court granted. But be this as it may, I prefer to rest my judgment upon the broader ground that upon the facts pleaded in the plaint a case was made which would lay the foundation for the relief granted although not specifically asked for, whilst at the same time a decree for ejectment and immediate possession, a much wider relief, was claimed. In my opinion the relief granted was within the scope of the suit as framed. As long ago as 1806 Lord Erskine L.C., where a bill was preferred in Chancery to enforce an equitable mortgage by deposit of title deeds in priority to a purchase with notice where the relief granted had not been specifically claimed, stated the rule thus:

As to that the rule is, that, if the bill contains charges, putting facts in issue, that are material, the plaintiff is entitled to the relief, which those facts will sustain, under the general prayer; but he cannot desert specific relief prayed; and under the general prayer ask specific relief of another description; unless the facts and circumstances, charged by the bill, will consistently with the rules of the Court maintain that relief: Hiern v. Mill 13 Vesey 114 at p. 119.

In the present case the facts which sustain the relief are pleaded and not traversed. It must therefore be assumed that the right to a charge was not challenged if the pleas raised in the written statement should fail which was the case. It is true there was no prayer for general relief, but now, under Order 7 rule 7 of the Civil Procedure Code, this is no longer necessary, and the Court may always give general or other relief, as it may think just, to the same extent as if it had been asked for.

In none of the cases relied upon was a decree treated as a nullity but reliance was placed upon a dictum of James L.J. in Robinson v. Duleep Singh IL.R. 11 C.D. 798 at p. 813. The question under consideration there was whether the verdict of the jury in a previous suit between the predecessors-in-title of the parties amounted to res judicata. The verdict taken alone and without regard to the pleadings, or the order directing the issues, or the mode in which the decree afterwards dealt with them, might be so interpreted and James L.J. observed., "The issues are only a proceeding in a case for the purpose of ascertaining a fact for the guidance of the Court in dealing with the right; and what determines the right between the parties is decree, and in order to determine what the decree really decides it is essential to see what were the rights which were in dispute between the parties and which were alleged between them. Because if the Court had gone beyond the rights which were properly in issue between the parties the decree of the Court would be absolutely null and void". It can hardly be supposed that James L.J. intended to lay down a broad rule that unless relief is specifically asked for it can is no case be granted, even where such relief was within the scope of the suit viewed in the light of the facts pleaded, but rather that if no issue was raised and no averment made upon which the relief could be based the Court was not competent to grant it.

In my opinion the decree impugned in this appeal was one which the Court was competent to make and cannot be treated as a nullity. It is unnecessary in view of my finding on this point to consider whether the decision in the previous proceedings in execution, where the same point was raised, operates as res judicata, but for the reasons already given I think that this appeal fails and should be dismissed with costs.