Sm. Sarapati Devi vs Bishwanath Mistry

Manohar Lall, J.—This is an application on behalf of the plaintiff whose suit has been dismissed by the learned Small Cause Court Judge of Patna. The question raised is that the learned Small Cause Court Judge had no jurisdiction to entertain the suit. The plaintiff instituted the suit for reimbursement in these circumstances. The defendants are co-sharer landlords along with the plaintiff in respect of some garden. It is said that the defendants sold away the fruits of the garden for Rs. 190 to some persons Langra and Phulha and appropriated the entire amount and did not give the plaintiff''s share which was six annas. Hence the suit to recover Rs. 71-4-0 being the plaintiff''s share out of Rs. 190 together with interest and costs.

The defence was that all the co-sharers had sold the fruits and all had received the price according to their share and, therefore, nothing was due to the plaintiff. The learned Small Cause Court Judge came to the conclusion that the present suit was an outcome of enmity between the plaintiff and defendant 2, Acheylal Mistri, and that he was satisfied on the evidence that all the co-sharers had jointly sold the fruits of the garden and that they received the money value according to their shares, and that it was not established that Acheylal Mistri alone received the entire sale proceeds on behalf of all the co-sharers. The learned Judge believed the defendant, who was D.W. 1, specially when he was corroborated by Ram Gopal, D.W. 2, who also was a co-sharer of the other six annas. He also points out that at first the plaintiff stated in the plaint that the defendant had sold the garden to Barhu, but later on she amended the plaint and stated that the fruits were sold to Langra Turha and Phulwa Turha. Langra Turha has not been examined by the plaintiff to prove that he made over the entire money to defendant 2 nor was Langra or Phulwa made defendants in the action. Accordingly the learned Small Cause Court Judge dismissed the suit. Hence the application in revision.

The principal point argued by learned Counsel for the petitioner is that the learned Small Cause Court Judge had no jurisdiction to maintain the suit because under Article 81, Small Cause Courts Act the present suit was not cognisable under the Small Cause Court jurisdiction.

The ambit of Article 31 is that "any other suit for an account, including a suit by a mortgagor, after the mortgage has been satisfied, to recover surplus collections received by the mortgagee, and a suit for the profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant" are not cognisable by the Court of Small Causes. It will be observed that in the two cases mentioned the suit would involve the taking of an account from the mortgagee who has been in possession and from the defendant who has received the profits of immovable property.

As far back as the year 1896 the interpretation of this article was considered by a Pull Bench of the Calcutta High Court consisting of seven Judges in Kunjo Behary Singh v. Madhub Chundra Ghose (96) 23 Cal. 884. In that case a suit was instituted to recover a sum of Rs. 86-8-0 as mesne profits from the defendant on the allegation that the defendant had dispossessed the plaintiffs. The learned Chief Justice stated at p. 889 that a suit for mesne profits was an action for damages for a trespass to immovable property in which the measure of the damages may or may not be the amount of the profits which the wrong-doer had actually received from the property and that this was not a suit to recover the profits of the immovable property but a suit for damages of which the profits of the property actually received by the wrong-doer may not even be the measure and then observed:

In what I have said I have assumed that the latter part of Article 31 may be read alone, but this I do not think ought to be done, and if the whole article is read, it becomes, I think, quite clear that it cannot include a simple action for damages for a trespass to property.

He then quotes the whole article and observes:

The article, I think, clearly contemplates cases in which the plaintiff claims an account of monies which the defendant has received, and to an account of which the plaintiff is entitled, because the monies received belonged to him. This is not the case in a simple action for damages, and what is called an action for mesne profits is nothing more. It may be objected that in many suits for damages in the nature of mesne profits, a question of title, which a Court of Small Causes cannot finally decide, may arise, and this is no doubt true, but the appropriate remedy is provided by Section 23, Provincial Small Cause Courts Act.

Trevelyan J. agreeing with this view further observed that the jurisdiction of the Small Clause Court is

only excluded by the Ant where such suit is a suit for an account, that is, a suit which seeks for a decree, not for a definite sum of money but ordering the defendant to account to the plaintiff for monies received by him. The machinery necessary for the putting in force of that decree is of a kind with which Small Cause Courts have never been supplied, and it has always been the object of the Legislature to confine Small Cause Courts to simple suits which are concluded by the first decree. A suit for an account is a suit which seeks for recovery in pursuance of the decree. No such right of recovery is given to a person who is merely asking for mesne profits.

Ghose J. who was one of the dissentient Judges observed at p. 893:

No doubt a suit for mesne profits is not a suit for account, properly so called, nor is also a suit by a mortgagor to recover surplus collections received by a mortgagee a suit of that description. They are, however, akin to it. In such suits, accounts have more or less to be gone into; and when accounts are produced by the defendant, either at the requisition of the plaintiff, or at his own instance, they have to be examined for the purpose of determining what was received by the defendant during the period of his possession

and concluded that in his opinion the addition of the last three lines in Article 31 indicated to him that the Legislature intended to bring in other cases which though not strictly speaking cases for account are akin to them. He also pointed out that in a suit for mesne profits, a question of title to the immovable property, in respect of which such mesne profits are sought to be recovered, is often raised, and it is not desirable that such a question should be, though incidentally, decided by that Court. Banerjee J. the other dissentient Judge, came to the same conclusion.

The next Calcutta case upon which strong reliance was placed on behalf of the petitioner was the case in Uzir v. Haricharan Pal AIR 1917 Cal. 367 decided in the year 1916. In that case the plaintiff instituted a suit for recovery of arrears of rent from defendant 1 described as the principal defendant. The other three persons were joined as pro forma defendants. No cause of action was asserted in the plaint as against these defendants as the plaintiff wanted a decree for Rs. 12 to be made in his favour against the principal defendant. In the course of the trial it transpired that defendant 2, a cosharer of the plaintiff, had realised from the tenant defendant the amount claimed. Accordingly the suit was dismissed against the tenant but decreed against defendant 2 who came to the High Court in revision. The learned Judges observed that there was no doubt that a suit was maintainable by one of several joint landlords for recovery of the balance of rent due from a tenant and in the alternative for recovery of sums which may have been collected by his cosharers in excess of their legitimate share, but observed that if relief was sought in the alternative in that manner, the foundation for the claim must be laid in the allegations in the plaint and that the plaintiff cannot be allowed that relief merely in the garb of a general prayer as such a general prayer cannot cover a relief arising from a different cause of action. On this ground they held that as the relief granted was not consistent with and founded on the allegations in the plaint, no decree could be properly made against a defendant, who on the face of the plaint, was not called upon to meet any claim. This was a sufficient reason to set aside the decision of the trial Court, but the learned Judges went on to observe that it was clear to them that the claim against defendant 2 was in substance a claim for recovery of profits of immovable property wrongfully received by him and that it was not a suit for money had and received. Accordingly they held that on the special facts of this case the suit against defendant 2 would not be cognizable by a Court of Small Causes. It will be observed that the second reason was wholly unnecessary for allowing the application of the petitioner. Therefore, the decision on this point must be treated as obiter dictum. However, as the judgment is by Sir Ashutosh Mukherji, it is entitled to great weight, but with great respect, I am unable to agree with the reasoning. It has been well settled in a series of cases in all the High Courts in India that such a suit, where a specific sum is claimed not on the ground of being wrongfully received by the defendant but on the ground of having been wrongfully retained by him as in the case of a cosharer who cannot be said to wrongfully receive the amount, is cognisable by the Court of Small Causes as this would be a case of claiming money had and received for the plaintiff''s use. No accounting is involved. But the Calcutta case may be supported on the view that perhaps an accounting was involved as the cosharers may have collected other amounts from the tenants.

This case has been followed by a Single Judge of this Court in Jagarnath Saran Singh v. Biswa Mohan Kumar AIR 1934 Pat. 2, But if the facts of the Patna case are examined, it will be observed that the suit was in its essentials a suit for account and recovery of the profits of immovable property belonging to the plaintiff which was wrongfully received by the defendant. The applicant before the High Court being owner of seven annas share had obtained a decree for rent on behalf of the owners of eleven annas share against the tenants. On the decree being obtained, opposite parties Nos. 1 to 8 who were the owners of the remaining four annas served a notice on the applicant''s pleader asking him not to hand over the decretal amount to the applicant alone but distribute it amongst all the landlords according to their respective shares; the pleader was willing to hand over the money to all the parties provided that all gave him a joint receipt. The applicant demanded Rs. 506 odd as being costs incurred in the litigation and gave to the opposite party No. 5 a certain sum as representing their four annas interest and the balance was paid to the applicant. Thereafter opposite parties 1 to 8 filed a suit for recovery of Rs. 300 which they alleged was their share in Rs. 825 and they denied that there was any agreement that the applicant would be entitled to take whatever expenses were incurred from the amount recovered. The Court disbelieved the case made by the applicant and granted a decree to opposite parties 1 to i only as opposite parties 5 to 8 had been gained over by the applicant. It will be noticed that in this case there was a serious dispute between the parties not as to the exact amount which had been received by the applicant but as to whether the accounting should not be made by which a certain sum was deductible by the applicant on account of the costs incurred by him. This was not a simple suit for recovery of a specific sum which was wrongfully received by the defendant. The amount was rightly received, but there was a dispute as to how much out of it was payable to the applicant. It is true that Agarwala J. (as he then was) made certain observations which are relied on by the learned Counsel for the petitioner, but as I have said above, if the facts are examined, the suit was essentially a suit for accounts even though the amount to be recovered was profits of immovable property.

The next Calcutta case decided in the year 1927 Srinath Roy Vs. Taraprasanna Roy and Others, , does not support the petitioner. In that case Mitter J. held that if the suit is not a suit for account but for a specified sum representing the price of fruits taken by the defendant, the suit is not hit by-Art. 31. In that case the plaintiffs instituted a suit for realising the profits of homestead land in which there were a number of fruit trees and other trees which had been taken by the defendant and compensation was claimed as the price of betel nuts and other fruits which had been taken by the defendant. On examining para. 4 of the plaint, the learned Judge found that the allegation was that the defendant divided the share of the fruits of the trees which he himself appropriated and, therefore, the case was not a case of any wrongful receipt of the fruits but was rather a case where the defendant was said to have rightfully received the fruits but wrongfully retained the same. The learned Judge went further that even if the plaintiff''s allegation may be treated as meaning an allegation of wrongful receipt by the defendant, the clause in Article 31 required as a condition precedent to its applicability that the suit must be a suit for an account and the present suit was not a suit for an account.

In Bombay, it is enough to refer to the case in Girjabai v. Raghunath (05) 30 Bom. 147 where a suit was instituted to recover three specific sums of money being the share of the revenue and profits of three sets of lands which were alleged in the plaint to be wrongfully received by the defendant. It was held that the suit was cognizable by the Court of Small Causes. The Court observed that Clause 31 referred to suit for accounts and that it was impossible to say that a suit for three specific items which were upon the face of the plaint itself ascertained and defined, could be said to be a suit for an account. They pointed out the distinction in Antone v. Mahadev (01) 25 Bom. 85 where the suit was not brought for a specific sum of money but for the profits of three years and that to ascertain the profits of these years it will be necessary to ascertain what the profits would come to. The ruling of the majority of the Full Bench of the Calcutta High Court in Kunjo Behary Singh v. Madhub Chundra Ghose (96) 23 Cal. 884 was noticed by the learned Chief Justice in Wasudeo v. Damodar (04) 6 Bom. L.R. 370 where he pointed out the true distinction.

The Lahore High Court takes the same view. In Budha Ram v. Ram Chand AIR 1930 Lah. 613 decided in the year 1930 Bhide J. held that a suit which was instituted by certain cosharers for recovery of the value of their share of the produce realised by other cosharers who were in possession of their joint land was not excepted from the cognizance of the Small Cause Court by Article 31 because the possession of one cosharer is deemed to be on behalf of all in law and neither such possession nor receipt of the profits could be considered to be wrongful. It is the failure of these cosharers to give plaintiff their share which was wrongful. This is also the position in the present case and the allegations in the plaint are that the defendant had sold away the fruits of the garden and instead of making over the share of the plaintiff to the extent of six annas appropriated the entire money, that is to say, the defendant rightly received the amount from the vendee but was not handing over the share to the plaintiff.

Our attention was also drawn to the case in Mt. Ram Kali Vs. Kamta Prasad and Others wherein Kendall J. referred to the view of Niamatullah J. in Amjad Ali and Another Vs. Azizuddin and Others, that Article 31 does not apply to a suit for mesne profits by persons in respect of their shares of an occupancy holding held in common by the parties. But no reasons are given |in the judgment. For these reasons I must hold that the learned Small Cause Court Judge had full jurisdiction to entertain the suit. It is to be observed that it hardly lies in the mouth of the plaintiff to question the jurisdiction of the Small Cause Court Judge to entertain the suit when she herself filed a suit in that Court upon the allegations in the plaint which attracted the jurisdiction of the learned Small Cause Court Judge to entertain the suit.

It was then argued that the petitioner had not had a fair trial as some of her witnesses were not examined and that the onus was on the defendant to examine Langra Turha. No such ground, however, is to be found in the grounds of the application to this Court, and in any case upon the materials as they are at present, we are not disposed to prolong this litigation. The amount involved is a petty one and the learned Judge has taken a fair view of the evidence in the case. I would dismiss this application with costs.

Imam, J.

I agree.