Chitturi Subbanna Vs. Kudapa Subbanna
& Ors [1964] INSC 298 (18 December 1964)
18/12/1964 DAYAL, RAGHUBAR DAYAL, RAGHUBAR
MUDHOLKAR, J.R.
SIKRI, S.M.
CITATION: 1965 AIR 1325 1965 SCR (2) 661
CITATOR INFO:
R 1979 SC1214 (21,26) D 1984 SC1696 (14)
ACT:
Code of Civil Procedure (Act 5 of 1908), O.
XX. r. 12Preliminary decree not in accordance with rule-Not appealed
against-Effect.
Practice and Procedure-Point of law-Raised
for the first time at hearing of appeal-If permissible.
HEADNOTE:
In a suit for possession and mesne profits
the High Court gave a direction in the preliminary decree that the trial court
should make an enquiry into the mesne profits payable by the appellant
(judgment debtor), from the date of the institution of the suit, and pass a final
decree for payment of the amount found due up to the date of delivery of
possession of the properties to the respondent (decree holder). The trial court
appointed a Commissioner for making the enquiry, and after considering his
report, passed a final decree for a certain amount. No objection was taken by
the appellant, either before the Commissioner or the trial court that accounts
could be taken under O. XX r. 12 Civil Procedure Code, only for 3 year from the
date of the preliminary decree and not till the later date when possession was
delivered to the respondent. In his appeal to the High Court also, the
appellant did not raise the ground in the memorandum of appeal, but when the
appeal was argued he sought to raise the contention. The High Court did not
allow him to do so and dismissed the appeal. Along with the appeal the High
Court dealt with the cross objections preferred by the respondent in which he
claimed enhancement of the amount of mesne profits and partially allowed the
cross objections. In the appeal to the Supreme Court it was contended that (i)
the High Court was in error in not allowing the appellant to raise the
objection based on O.XX, r. 12 of the Code, (ii) the respondent was not
entitled to be granted mesne profits for a period beyond three years from the
date of the preliminary decree and (iii) the High Court was in error in
enhancing the amount of mesne profits.
HELD (Per Raghubar Dayal and Sikri, JJ.) :
(i) The High Court was in error in not allowing the appellant to urge the additional
ground before it. [669 B-C] It was a pure question of law not dependent on the
determination of any question of the fact and such questions are allowed to be
raised for the first time even at later stages. Even though the High Court has
discretion to allow or refuse an application for raising an additional ground,
the order refusing permission could be interfered with by the Supreme Court,
because, it was not in conformity with the principle that a question of pure
law can be urged at any stage of a litigation. [664 H; 666D-F-G] There was no
question of the appellant conceding before the Commissioner or electing before
the trial court that mesne profits could be calculated till the date of
delivery of possession when no dispute about the matter had arisen between the
parties. [666 H] Further, the respondent could not have been prejudiced by the
appellant raising the new ground at the hearing of the appeal and not earlier,
662 for, even if the appellant had raised it before the Commissioner the respondent
could not have sued for mesne profits beyond three years, as, by that time, the
period of limitation for such a suit had expired. [669 A-B] (ii) A decree under
O.X.X., r. 12 of the Code, directing enquiry into mesne profits, however
expressed, must be construed to be a decree directing the -enquiry in
conformity with the requirements of r. 12(1) (c), and so the respondent would
not be entitled to mesne profits beyond a period of three years from the date
of the preliminary decree. [676 A-B] It is open to the court to construe the
direction in accordance with the provisions of the rule when such direction is
not fully expressed so as to cover all the alternatives mentioned therein. [673
F] The direction in the preliminary decree could not have been appealed against
because, the question about the proper period for which mesne profits was to be
decreed really comes up for decision at the time of passing the final decree,
by which time, the parties would be in a position to know the exact period for
which future mesne profits could be decreed-. and so, the appeal could be filed
only after a final decree is passed and s. 97 of the Code would be
inapplicable. Nor would the direction in the preliminary decree operate as res
judicata either under s. 11 of the Code or on general principles, because there
was no controversy between the parties. [674 A; E-H] Instead of insisting that
the court should repeat in the judgment the various alternatives mentioned in
the rule, it would be preferable to construe the judgment in accordance with
those provisions, and so construed, there is no possibility of a decree holder
gaining by his own default.
[675DE, G.] Case law reviewed.
Per Mudholkar, J. (Dissenting) : (i) The High
Court was right in refusing leave to the appellant to raise a new ground at the
hearing since not only had be not raised it in the memorandum of appeal but he
had also allowed an enquiry into mesne profits by the Commissioner for a period
longer than 3 years from the date of the decree and participated therein. [683
G] Further, the grant or refusal of permission was within the discretion of the
High Court and the High Court had given very good and cogent reasons for
refusing permission. [684 D-E] When a party omits to raise an objection to a
direction given by a lower court in its judgment, he must be deemed to have
waived his right and cannot, for the first time at the hearing of an appeal
from that decision challenge the courts' power to give the direction. The
proper function of an appellate court is to, correct an error in the judgment
or proceedings of the court below and not to adjudicate upon a different kind
of dispute a dispute that had been never taken before the court below. It is
only in exceptional cases that the appellate court may, in its discretion allow
a new point to be raised before it, provided there are good grounds for
allowing it to be raised and no prejudice is caused to the opponent. [686G; 688
E-G] Case law considered.
(ii) On the merits of the contention, even
assuming that the direction in the preliminary decree was wrong, that decision
has to be given -effect to as it was not challenged in appeal and therefore had
become final under s. 97 of the Code. Unless it is corrected in the manner
provided in the Code, it will operate as res judicata between the parties in
all subsequent stages of the lis. [689 D-E; 692 B] 663 It may be that where the
meaning of a term is not clear or is ambiguous, the question of construing it
may arise and the court would be doing the right thing in placing upon it a
construction conformable to law. But the direction in the instant case did not
suffer from vagueness, ambiguity or such incompleteness as well make its
enforcement impossible.
[691 B-C] (iii) (By Full Court) : The High
Court had raised the rates of mesne profits without expressing its reasons for
holding that the Subordinate Judge was wrong in his findings. The case should
therefore be remanded to the High Court and the quantum of mesne profits
determined afresh, but oniy up to three years from the date of the preliminary
decree according to the majority judgment. [676 E; 681 F; 692 E]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 598 of 1961.
Appeal from the judgment and decree dated
September 13, 1958, of the Andhra Pradesh High Court in Appeal Suit No. 736 of
1952.
A. V. Viswanatha Sastri, K. Rajindra
Chaudhuri and K. R. Chaudhuri, for the appellant.
K. Bhimasankaram, K. N. Rajagopala Sastri and
T. Satyanarayana, for respondent No. 1.
The Judgment of Raghubar Dayal and Sikri JJ.
was delivered by Raghubar Dayal J. Mudholkar J. delivered a dissenting Opinion.
Raghubar Dayal, J.-This appeal, presented on
a certificate granted by the High Court of Andhra Pradesh, arises out of
execution proceedings in execution of a decree dated March 7, 1938. Kudapa
Subbanna, plaintiff No. 2 and respondent No. 1 here, was held entitled to the
properties mentioned in Schedules A and C and to 1/24ths share in the
properties mentioned in Schedule B attached to the plaint. The defendants in
possession of the properties were directed to deliver possession to the
decree-holder. The properties in Schedule B were first to be divided in
accordance with the shares specified in para 9 of the plaint and the
decreeholder was to be allowed the share to which the first plaintiff was shown
to be entitled. The trial Court was directed to make an enquiry into the mesne
profits from the date of the institution of the suit and pass a final decree
for payment of the amount that be found due up to the date of delivery of possession
to the second plaintiff.
Possession over the properties in Schedules A
and C was delivered to the decree-holder on February 17, 18 and 20, 1943. On
June 23, 1945, the decree-holder filed I.A 558 of 1949 to revive and continue
the earlier I.A. 429 of 1940 which had been presented for the ascertainment of
future profits and was struck off on September 25, 1944. On July 28, 1948, the
Subordinate Judge 664 decreed the mesne profits and interest thereon for the
period from 1926-27 to 1942-43 with respect to the A and C schedule properties.
The amount decreed was Rs. 17,883-8-3 including Rs. 10,790/for mesne profits.
He also decreed mesne profits with respect to the B-schedule properties upto
1946. They are not in dispute now.
On April 22, 1949, Chitturi Subbanna, 1st
defendant, appealed to the High Court. The decree-holder filed crossobjections
and claimed Rs. 19,000/more stating that the amount of mesne profits actually
due to him would be about Rs. 45,0001but he confined his claim to Rs.
19,000/only.
On September 13, 1958, the High Court
dismissed the appeal, but allowed the cross-objection, the result of which was
that the amount of mesne profits decreed by the Subordinate Judge with respect
to the A and C schedule properties was increased very substantially. The amount
decreed for mesne profits was raised to Rs. 17,242-12-0 and, consequently, the
amount of interest also increased. Chitturi Subbanna then obtained leave from
the High Court to appeal to this Court as the decree of the High Court was one
of variance and the value of the subject matter in dispute was over Rs.
10,000/-.
Chitturi Subbanna, appellant, applied to the
High Court for permission to raise an additional ground of appeal to the effect
that the trial Court was not entitled to grant mesne profits for more than 3
years from the date of the decree of the High Court. The High Court disallowed
that prayer for the reasons that he had not taken such a ground in the
memorandum of appeal and had, on the other hand, conceded before the Commissioner
and the trial Court that accounts could be taken upto 1943 in respect of A and
C schedule properties, that he had elected to have the profits determined by
the trial Court upto the date of delivery of possession and that if he had
taken the objection earlier, it would have been open to the second
plaintiff-respondent to file a suit for the recovery of mesne profits beyond
the three years upto the date of deliG very of possession. It is urged before
us for the appellant that the High Court was in error in not allowing the
appellant to have raised the objection based on the provisions of O .20, r. 12,
C.P.C. We agree with this contention. The question sought to be raised was a
pure question of law and was not dependent on the determination of any question
of fact. The first appellate Court ought to have allowed it. Such pure
questions of law are allowed for the first time at later stages too.
665 The appellant could not have claimed-and
did not claim a right to urge the new point which had not been taken in the
grounds of appeal. He made a separate application for permission to take up
that point. The procedure followed was in full conformity with what had been
suggested in Wilson v. United Counties Bank, Ltd. (1) to the effect :
"If in exceptional cases parties desire
to add new grounds to those of which they have given notice, it will usually be
convenient, by a substantive application, to apply to the indulgence of the
Court which is to hear the appeal." In Yeswant Deorao Deshmukh v. Walchand
Ramchand Kothari(2) this Court allowed a question of law to be raised at the
hearing of the appeal even though no reference to it had been made in the
Courts below or in the grounds of appeal to this Court. This Court said :
"If the facts proved and found as
established are sufficient to make out a case of fraud within the meaning of
section 18, this objection may not be serious, as the question of the
applicability of the section will be only a question of law and such a question
could be raised at any stage of the case and also in the final court of appeal.
The following observations of Lord Watson in Connecticut Fire Insurance Co. v.
Kavanagh ([1892] A.C. 473) are relevant. He said :
'When a question of law is raised for the
first time in a court of last resort upon the construction of a document or
upon facts either admitted or proved beyond controversy, it is not only
competent but expedient in the interests of justice to entertain the plea.
The expediency of adopting that course may be
doubted when the plea cannot be disposed of without deciding nice questions of
fact in considering which the court of ultimate review is placed in a much less
advantageous position than the courts below." Again, it was said in M. K.
Ranganathan v. Government of Madras (3) :
"The High Court had allowed the
Respondent 3 to raise the question even at that late stage inasmuch as it was a
pure question of law and the learned Solicitor(1) L.R. [1920] A.C. 102,106.
(2) [1950] S.C.R. 852.
(3) (1955) 11 S.C.R. 374, 381.
666 General therefore rightly did not press
the first contention before us." In Ittyavira Mathai v. Varkey Varkey(1)
this Court did not allow the question of limitation to be raised in this Court
as it was considered to be not a pure question of law but a mixed question of law
and fact. This Court said at p. 911 :
"Moreover, the appellants could well
have raised the question of limitation in the High Court in support of the
decree which had been passed in their favour by the trial Court.
Had they done so, the High Court would have
looked into the records before it for satisfying itself whether the suit was
within time or not. The point now raised before us is not one purely of law but
a mixed question of fact and law. No specific ground has even been taken in the
petition made by the appellant before the High Court for grant of a certificate
on the ground that the suit was barred by time. In the circumstances, we
decline leave to the appellant to raise the point of limitation before
us." The High Court had discretion to allow the application or to refuse
it. The discretion exercised by the High Court is certainly not to be
interfered with by this Court except for good reasons.
We shall deal with the reasons given by the
High Court for in rejecting the application and, in so doing, indicate why we
consider those reasons not to be good reasons for disallowing the prayer made
in the application.
In Rehmat-un-Nissa Begam v. Price(2) the
observations at p.66 indicate that a discretionary order can be justifiably
disturbed if the Court acts capriciously or in disregard of any legal principle
in the exercise of its discretion. This, however, cannot be taken to be
exhaustive of the grounds on which the discretionary order is to be interfered
with. In this particular case the order passed by the High Court was not in
conformity with the principle that a question of pure law can be urged at any
stage of the litigation, be it in the court of the last resort.
There was no question of the appellant's
conceding before the Commissioner that mesne profits could be legally allowed
up to the date of delivery of possession. No party had raised the question as
to whether mesne profits could be allowed up to three years (1) A.I.R.1964 S.C.
907.
(2) L.R. 45 I.A. 61.
667 subsequent to the -date of the High Court
decree or up to the later date when possession was delivered. When no such
dispute arose, there was no question of the appellant's making any such
concession. Similarly, no question of the appellant's electing to have the
profits determined by the trial Court up to the date of delivery of possession
could have arisen when no dispute about this matter had arisen between the
parties. The utmost that can be said is that both the parties, the
decree-holder and the judgment-debtor, were under the impression that mesne
profits could be awarded till the date of delivery of possession as directed by
the decree of the High Court. The fact that -the appellant raised no such
objection before the Commissioner or the trial Court, does not mean that he had
given his consent for the determination of mesne profits for the period
subsequent to the expiry of 3 years from the date of the High Court decree and
that the order of the trial Court for the payment of mesne profits up to the
date of delivery of possession is an order based on the consent of the parties.
In the circumstances of the case, we are not
prepared to hold that the omission of the appellant to raise the point before
the trial Court amounts to his waiving his right to raise the objection on the basis
of O.20, r. 12, C.P.C.
The case reported as London, Chatham and
Dover Railway Co. v. South-Eastern Railway Co.(1) is not to the point. The
facts of that case were different. An agreement between two railway companies
under the authority of an Act of Parliament contained a provision that all
matters in difference between them would be referred to arbitration under the
Railway Companies Arbitration Act (22 & 23 Vict. c. 59). Section 26 of that
Act provided that full effect should be given by all the superior Courts of law
and equity in the United Kingdom, according to their respective
jurisdiction.... to all agreements, references, arbitrations and awards, in
accordance with the Act. This provision was construed not to oust the
jurisdiction of the ordinary Courts, but in case of any party insisting on the
compliance of the condition in the agreement of disputes being referred to
arbitration, the Court was to stay its hands and to order the case to be
withdrawn from the Court. The case was decided by the Court when an appeal
against the finding that the agreement was valid was pending before the House
of Lords. It is not clear and may, however, be assumed that one of the
questions in the appeal was whether the jurisdiction of the Court was ousted if
the agreement be a good one.
The (1) L.R. (1889) 40 Ch.D. 100.
668 House of Lords and the Court of Appeal
did not decide that point as it is noted at p. 101 :
"but their Lordships expressly stated
that the judgment of the House of Lords, and also the judgment of the Court of
Appeal, only decided that the High Court of Justice had jurisdiction to try the
question of the validity of the agreement, and did not decide the question
whether the matters in dispute arising under the agreement ought to be tried by
arbitration." One of the parties applied to the -Court to postpone the
trial of the action on the ground that certain points other than the point
regarding the ouster of jurisdiction of the Court were before the House of
Lords for decision. The prayer was rejected. The parties went on with the trial
of this action and got a judgment of the Court upon the evidence on the matter
in dispute between them. It was urged in the Court of Appeal that the Court had
no jurisdiction to try that matter and that it could be determined only in
arbitration. The Court of Appeal said that the Court was not deprived of its
jurisdiction to determine the matters in dispute if neither party insisted on
arbitration and that the parties ought not to be allowed to raise the point of
jurisdiction. The reason given by Cotton, L.J., Lit p. 105, is stated thus
"If when they can insist on the Court not going into the merits of the
case and deciding questions between the parties, they abstain from doing so,
and are defeated on the merits'. in my opinion it is too late to insist before
the Court of Appeal on any right to object to the jurisdiction of the Court
which they might have had if they had insisted on it in a proper way and at a
proper time." In the present case the appellant did not let the trial
Court determine the question of the period up to which mesne, profits could be
decreed, as he had raised no controversy in this respect. He did not take a
chance of the judgment being given one way or the other and therefore the
attempt of the appellant to raise the question in the High Court was not to get
round the judgment of the Court which happened to go against him.
The Commissioner conducted the enquiry about
mesne profits from August 29, 1946 till December 4, 1947. Suits for mesne
profits for the periods between March 7, 1941 and February 28, 1943 could not
be instituted in August 1946 as the period of 3 years' limitation for the
institution of a suit for mesne profits of those years had expired by then. It
follows that even if the appellant had raised the objection that mesne profits
could not be decreed for the period subsequent to March 7, 1941, the decree
holder respondent could not have sued in Court for the recovery of those mesne
profits when he had failed to sue for them within the specified period of
limitation and therefore could not have been prejudiced by the appellant's
raising the new ground at the hearing of the appeal.
We are therefore of opinion that the High
Court was in error in not allowing the appellant to urge this additional ground
before it.
The main point for determination in this
appeal is whether mesne profits could be awarded to the decree-holder for a
period subsequent to the expiry of three years from the date of the High
Court's decree, i.e., subsequent to March 7, 1941. The contention for the
judgment-debtor is that mesne profits cannot be awarded for the period
subsequent to March 7, 1941 in. view of the provisions of Order 20, r. 12,
C.P.C. which reads "12. (1) Where a suit is for the recovery of possession
of immovable property and for rent or mesne profits, the Court may pass a
decree(a) for the possession of the property;
(b) for the rent or mesne profits which have
accrued on the property during a period prior to the institution of the suit or
directing an inquiry as to such rent or mesne profits;
(c) directing an inquiry as to rent or mesne
profits from the institution of the suit until(i) the delivery of possession to
the decree-holder, (ii) the relinquishment of possession by the judgment debtor
with notice to the decree holder through the Court, or (iii) the expiration of
three years from the date of the decree, whichever event first occurs.
(2) Where an inquiry is directed under clause
(b) or clause (c), a final decree in respect of the rent or mesne profits shall
be passed in accordance with the result of such inquiry." It is urged that
the direction in the decree for an inquiry into the mesne profits up to the
date of delivery of possessions should be L4Sup.165-9 670 construed to mean a direction
for an inquiry into the mesne profits up to the date of delivery of possession
or up to three years from the date of the decree, whichever be earlier, as that
would be consistent with what the law provides. In support of the contention,
reference has been made to Girish Chunder Lahiri v. Shoshi Shikhareswar Roy(1)
and to other cases which followed that decision. The contention for the
decree-holder is that the preliminary decree directed the enquiry into the
mesne profits from the date of the institution of the suit up to the date of
delivery of possession and that this direction in the decree cannot be ignored,
when inquiring into the mesne profits or when passing the final decree, even if
it be not in full conformity with the law laid down in r. 12 of O. 20. It has
also been urged that the judgment-debtor is estopped from raising the
contention that he is not liable to pay mesne profits subsequent to March 7,
1938 in view of his conduct amounting to his consent in the award of mesne
profits subsequent to March 7, 1938. We have already held that the appellant's
conduct did not amount to his consenting to mesne profits being decreed for the
period subsequent to March 7, 1941.
There is no provision of law other than the
provision of r. 12, O.20, C.P.C. which empowers the Court to decree mesne
profits subsequent to the institution of a suit for the recovery of possession
of immovable property and mesne profits. It is not disputed for the respondent
decreeholder that r. 12, O.20, does not empower a Court to direct an inquiry
and pass a final decree with respect to mesne profits for a period exceeding 3
years from the date of the decree. This is very clear from the language of this
rule.
The only question is whether a decree wherein
the Court does not mention the period for which mesne profits would be paid or
the Court states that mesne profits would be payable up to the delivery of
possession, should be construed to be a decree directing that mesne profits
would be decreed for a period of 3 years from the date of the decree, if
possession be not delivered within that period. The precedent case law is in
favour of the contention for the appellant. The ratio decidendi mainly is that
the Court had no power to pass a decree against the clear provisions of r. 12, O.20,
and that therefore the decree should be so construed as to be in accordance
with these provisions.
The law with respect to the decree for mesne
profits had been changing from time to time, but all the same the expressions
in the decree about the period for which mesne profits were to be (1) L.R. 27
1.A. 110.
671 awarded have been considered to be
matters of construction and had been construed in accordance with the law at
the relevant time.
Sections 196 and 197 of the Code of Civil
Procedure of 1859 (Act VIII of 1859) dealt with the decree for mesne profits.
Section 196 provided that when the suit was
for land or other property paying rent, the Court might provide in the decree
for the payment of mesne profits or rent on such land or other property from
the date of the suit until the date of delivery of possession to the
decree-holder, with interest thereon at such rate as the Court may think
proper.
It is to be seen that the Court was not
merely to direct an enquiry about mesne profits and then to pass a decree as
the present provisions require and that there was no limitation about decreeing
mesne profits for a period of 3 years only from the date of the decree. Mesne
profits could be decreed up to the delivery of possession. The decree was for
mesne profits which were 'Lo be determined in execution.
In Fakharuddin Mahomed Ahsan Chowdhry v.
Official Trustee of Bengal(1) the High Court decree declared the plaintiff to
be entitled to possession of the land mentioned in the kabinnama with wasilat
from the commencement of Srabun 1267 and did not say in express terms the time
up to which the wasilat were to be paid. The plaint was also not very clear in
stating the time up to which wasilat were claimed. The Privy Council construed
the decree to award mesne profits up to the delivery of possession as the
reasonable construction would be that the Court, with a view to carrying out
the object of the legislature, viz., the prevention of unnecessary litigation
and multiplication of suits, intended to give, with possession, that wasilat
which was by law claimable up to the time of possession.
Section 211 of the Code of Civil Procedure,
1882 (Act XIV of 1882) provided for decreeing the mesne profits up to delivery
of possession or up to 3 years after the decree, whichever event took place
earlier. The change of law therefore restricted the power of the Court to grant
mesne profits to a period up to 3 years from the date of the decree. In Girish
Chunder's Case(2) the Privy Council had to consider a decree for mesne profits
which was passed when s. 211 was in force. The decree in that case, which went
up to the Privy Council, was passed in 1883 and had provided that the decree
holder would get mesne profits for the period of dispossession. Possession over
the village N was not recovered till 1892. The trial Court allowed mesne
profits with respect to that village (1) L.R. I I.A.197.
(2) L.R. 27 I.A. 110.
672 up to the date of delivery of possession.
The High Court did not agree and allowed mesne profits for only 3 years after
the date of the decree. It was said at p. 126 :
"As to the village of N, their Lordships
agree with the High Court. The Subordinate Judge gives the plaintiff mesne
profits up to the date of possession. But that is more than three years from
the date of the decree, and to the extent of the excess is unauthorised by s.
211 of the Code." The principle enunciated in this case about the
construction of the decree for mesne profits for the period of dispossession
was followed subsequently by the various High Courts on the ground that the
Court had no power to award mesne profits for a period beyond three years from
the date of the decree and that therefore the decree should be construed to be
subject to the condition that if possession is not delivered within three years
of the decree, the mesne profits would be awarded for the period of three years
from the date of the decree. These views were expressed in connection with
decrees which either did not specify any period for the payment of mesne profits
or expressly stated that mesne profits would be payable only until delivery of
possession.
In Venkata Kumara v. Subbayamma(1), Uttamram
v. Kishordas ( 2 ) and Trailokya v. Jogendra(3) the decree simply mentioned the
starting point of the period for which mesne profits were decreed or for which
an enquiry about them was to be made. It may be said, as urged for the
respondent, that it was open to the Courts to construe the decree when the
actual language of the decree did not indicate the other terminus of the period
for which mesne profits could be claimed. It was however not so in Girish
Chunder's Case(4) where the decree provided that the decree holder would get
mesne profits for the period of dispossession. Similarly in Godayarti Raja v.
Ramachandraswami(5), Narayan v. Sono(6), Kunwar Jagdish Chandra v. Bulaqi Das
(7 ) and Kanai Lal v. Shvam Kishore(8) the decree allowed mesne profits for the
period of dispossession. It cannot be said that the decree in these cases was
in any way vague or incomplete in the sense that its meaning was not clear. Yet
in all these cases the Courts construed the decree in a manner as would make it
in accordance with the law as laid down in r. 12, O.20, C.P.C.
(1) A.I.R. 1953 Mad. 226, (2) I.L.R. 24 Bom.
149.
(3) I.L.R. 35 Col. 1017. (4) L.R. 27 1 A 110.
(5) A.1,R. 1943 Mad. 354. (6) I.L.R. 24 Bom.
345.
(7) I.L.R. [1959] 1 All. 114.(8) I.L.R. 1959
Cal. 76.
673 The decrees have been so construed not on
account of the vagueness of the expressions used for decreeing mesne profits or
directing the inquiry about mesne profits but on account of the fact that the
decree for future mesne profits or directing enquiry about them is not based on
the decision of any controversy between the parties but is made in the exercise
of the discretionary power vested in the Courts by the provisions of O.20, r.
12 (1 ) (c), C.P.C. The Court is deemed to exercise the power in accordance
with law and therefore a decree which decrees or directs enquiry about mesne
profits for the period of dispossession or until delivery of possession is
construed as a decree for mesne profits for a period of three years from the
date of the decree if possession is not delivered within that period.
This power was given to the Court in order to
avoid multiplicity of suits between the decree-holder and the judgment-debtor
for mesne profits which the decree-holder could rightly claim. The period was,
however, restricted to three years in order to discourage decree-holders from
making delays in taking possession. If a decree-holder be not diligent in
executing the decree, he would have to forego mesne profits for the period in
excess of three years or would have to institute separate suits to recover
them.
The Privy Council did not pass its order in
Girish ChundCase(1) on the basis of the decree being vague or incomplete. It
simply held that the decree for a period in excess of three years was not
authorized by s. 21 1 of the Code of Civil Procedure of 1882.
We are therefore of opinion that it is open
to the Court to construe the direction in the preliminary decree about the
inquiry with respect to future mesne profits when such direction is not so
fully expressed as to cover all the alternatives mentioned in O 20, r. 12 (1)
(c), C.P.C. and to hold that the decree be construed in accordance with those
provisions.
It is urged for the decree-holde respondent
that the trial Court, when passing the final decree, could not have ignored
what had been decreed under the preliminary decree as no appeal against the
preliminary decree had been preferred and s. 97, C.P.C., provided that where
any party aggrieved by a preliminary decree passed after the commencement of
the Code did not appeal from such decree, it would be precluded from disputing
its correctness in any appeal which might be preferred from the final decre.
The object of s. 97 is that questions which had been urged by the parties and
decided by the Court at the stage of the preliminary decree will not be open
for re-agitation at the stage of the preparation of the final (1) L.R. 27 I.A.
110.
67 4 decree and would be taken as finally
decided if no appeal had been preferred against the preliminary decree. The
provisions of this section appear to be inapplicable to the present case.
The preliminary decree directed an inquiry about
the mesne profits from the date of the institution of the suit up to the date
of delivery of possession to the decree-holder.
The decree-holder could not have felt
aggrieved against this order. The judgment debtor could not have insisted for
detailing all the various alternatives mentioned in O.20, r.
12(1) (c) and he could not have expected that
possession would not be taken within three years of the decree. The direction
about the enquiry with respect to future mesne profits does not amount to an adjudication
and certainly does not amount to an adjudication of any controversy between the
parties in the suit. It has no reference to any cause of action which had
arisen in favour of the plaintiff decree holder before the institution of the
suit. The direction was given on account of a special power given to the Court
under O.20, r. 12(1) (c) of the Code to make such a direction if it considered
it fit to do so. It was within the discretion of the Court to make the
direction or not.
The Court does not decide, when making such a
direction, the period for which the decree-holder would be entitled to get
mesne profits. No such point can be raised before it. The judgment debtoes
liability to mesne profit's arose under the ordinary law and a suit for realizing
mesne profits could be separately filed, by the decree holder. The provisions
of O.20, r. 12(1)(c), are just to avoid multiplicity of suits with consequent
harassment to the parties. The mere fact that the direction for an enquiry into
mesne profits is contained in a preliminary decree does not make it such a part
of 'the decree against which alone appeal could have been filed. The appeal
could be filed only after a final decree is passed decreeing certain amount for
mesne profits to the decree-bolder. It follows that the question about the
proper period for which mesne profits was to be decreed really comes up for
decision at the time of passing the final decree by which time the parties in
the suit would be in a position to know the exact period for which future mesne
profits could be decreed in view of the provisions of O.20, r. 12(1) (c).
The direction in the preliminary decree
cannot operate, in terms of s. 1 1 C.P.C. or on general principles, as res
judicata for the simple reason, as stated earlier, that the direction is not
based on the decision of any matter in controversy between the parties and is
given in the exercise of the power vested in the Court under O.20, r. 12 (1 )
(c).
Again, for similar reasons, the principle
that a Court can decide a question within its jurisdiction wrongly as well 67 5
as rightly and, if the decision said to be wrong had become final, the Courts
have to respect it, will not apply to these cases.
We therefore hold that the judgment-debtor
appellant is not precluded from contending that mesne profits could not be
awarded for a period exceeding three years from the date of the decree.
We may now consider the question from another
aspect. Rule 12, O.20, C.P.C. requires the Court to direct, at the time of
passing the preliminary decree, an inquiry as to mesne profits from the
institution of the suit until the actual delivery of possession of the property
to the decree-holder or until the expiration of three years from the date of
the decree whichever event first occurs. The Court at the time of the passing
of the decree is not in a position to say which of the three events mentioned
in cl. (c) of sub-r. (1) of r. 12 will determine the period for which mesne
profits would be payable to the decree-holder Either, therefore, the Court has
to repeat the various alternatives mentioned in this clause in the judgment and
the decree which is to follow the judgment or the judgment and the decree for
mesne profits is to be construed in accordance with these provisions. It is
preferable to construe it in this way rather than to insist that the Court
should mechanically repeat in the judgment and decree the various provisions of
cl. (c). It may sometimes even happen that the enquiry into mesne profits is
completed before the expiry of 3 years and that the final decree follows in due
course while in fact no possession had been delivered by then. It would not be
possible for the judgment-debtor to contend at that time that the decree has
not been properly prepared and that it should state that in case possession is
not delivered within the period of three years, mesne profits would be payable
only for the period of three years from the date of the decree. It does not
appear to be desirable that the passing of the final decree be put off till either
possession is delivered or a period of three years had expired from the date of
the decree.
Lastly, we may draw attention to a
possibility of the decree holder gaining by his own default, if he did not take
possession for a period longer than 3 years after the date of the decree, when
the decree did not specify the period for which mesne profits would be allowed
or merely stated that mesne profits would be paid until delivery of possession.
The law did not contemplate such a case and therefore clearly provided the
maximum period for which mesne profits would be allowed to the decree-holder
after the passing of the decree. Such a case was Kunwar Jagdish Chandra v.
Bulaqi Das(1).
(1) I.L.R. [1959] 1 All. 114.
676 We therefore hold that a decree under r.
12, O.20, C.P.C.
directing enquiry into the mesne profits,
however expressed, must be construed to be a decree directing the enquiry into
the mesne profits in conformity with the requirements of r.
12(1) (c) of O.20 and that the decree-holder
in this case cannot get mesne profits for the period subsequent to March 7,
1941 when the three year period from the date of the High Court decree expired.
The other question urged for the appellant is
that the High Court was in error in arbitrarily fixing a higher amount of mesne
profits than what had been adjudged by the trial Court which had itself
arbitrarily increased the mesne profits suggested by the Commissioner. It was
urged for the respondent decree-holder that even if -the High Court had not
given any reason for fixing the rate of mesne profits at a higher rate than the
rate fixed by the trial Court, it must be presumed that the High Court had
fixed the higher rate after considering the material on record and that
therefore it cannot be said that the High Court had fixed mesne profits
arbitrarily.
It is therefore first necessary to consider
whether the High Court had given good reasons for decreeing mesne profits at a
higher rate than that fixed by the trial Court. We are of opinion that the High
Court had not really come to grips with the question of proper mesne profits
and that it varied the rates in most cases, without expressing its reasons for
holding that the Subordinate Judge was wrong in his findings regarding the
quantum of mesne profits. This is clear from certain circumstances. The first
is that the High Court overlooked the period of depression in considering the
quantum of mesne profits.
The Commissioner divided the period of 17
years from September 1926 to March 1943 into three periods, viz., 1926 to 1930,
1931 to 1940 and 1941 to 1943. The middle period between the years 1931 and
1940 was a period of depression and the last period was one in which prices of
commodities had risen to some extent on account of World War 11. In view of
these considerations, the Commissioner fixed the rate of profits from land
differently for each period.
The trial Court fixed at first a normal rate
i.e., a rate which was considered adequate for the first and the last period,
then made allowance for the period of depression and calculated mesne profits
at a lower rate for the ten years between 1931 and 1940. The High Court appears
to have missed noticing the fact of the trial Court calculating mesne profits
at a lower rate for the period of 677 ten years. It fixed one rate for the
period 1926 to 1940 and another rate for the period 1941 to 1943, and thus
overlooked the long period of depression. It is on this account that the mesne
profits ordered by the High Court are very much higher than what were fixed by
the trial Court.
If this fact had not been ignored, the
difference between the two amounts would not have been so much and might have
been in the neighbourhood of Rs. 2,000 plus a corresponding increase in the
amount of interest. The High Court appears to have missed this point as it was
considered by the learned Subordinate Judge practically at the end of his
judgment, at para 25. Below is given the Table showing reduced rates of profits
allowed by the Subordinate Judge for the period 1931 to 1940:
|-----|------------|-----------------|------------------|
Item of | profit allowed | profit allowed per Sl | Schedule | per acre by |
acre by sub-judge No | | sub-judge for | for period 1931-40 periods 1926-30 |
& 1941-43 | ------|----------|-----------------|------------------
1. |1,4, 8, 12 | Rs. 35 | Rs. 25 |of A-Schdu|
| |le & C-sche-| | |dule | |
2. | 9 of A-sch-| Rs.50 (for garden | Rs. 40
(for garden | edule | produce) | produce) | |
3. | 10,11, of | Rs. 10 | Rs. 7-8-0 | -do| |
4. | 18 to 20 | Rs. 30 | Rs. 2 | of -do| |
5. | Rest of | No change | No change | items
of | | |A-Schedule | | | viz,; 2, 3,| | | 5,6, 7 & | | | 13 to 17 | |
----------------------------------------------------------The second is that
the High Court ordered profits at a rate higher than what was even claimed by
the decreeholder in regard to item No. 9 of the A-Schedule properties.
The trial Court fixed the annual profits at
Rs. 50. The High Court said :
"We are inclined to think that it is too
low.
We enhance the amount to Rs. 100 per year up
to 1940 and to Rs. 150 for the years 1941 to 1943." The Commissioner's
report shows that the plaintiff claimed mesne profits for the mango grove at
Rs. 150 per acre up to 1940 and later at Rs. 200 per acre, and thus claimed
about Rs. 94 a year up to 1940 and about Rs. 126 a year for the later period,
the area of the item being .63 cents. The High Court could not be justified to
award the mesne profits higher than what are claimed by the decree-holder.
The third is that the finding of the High
Court is not consistent with its reasoning with respect to items Nos. 10 and 11
which were pasture lands. The Commissioner suggested mesne profits at 678 Rs.
10 per acre and said that tax on item No. 10 was at Rs. 6 per acre and on item
No. 11 at Rs. 5 per acre. The Subordinate, Judge fixed mesne profits at Rs. 10
for the .95 acres in area and the proper tax for these items at Re. 1.
The High Court raised the rate of mesne
profits to Rs. 20 for the period up to 1940 and Rs. 30 for the subsequent
period, but confirmed the finding about the amount of tax.
In making this order the High Court seems to
have been under some confusion, for, the basis of its increasing the profits
seemed to be the fact that the tax on these items was Rs. 5, as it said :
"He (the Subordinate Judge) confirmed
the finding of the Commissioner in this behalf.
The Commissioner gives no reasons as to how
he fixed the profits at Rs. 10 for the items. It is stated that the tax paid on
the land is Rs. 5. We are inclined to think that it would be proper to fix Rs.
20 for the items up to 1940 and Rs. 30 for 1941 to 1943. The tax of Re. I
deducted by the Subordinate Judge is confirmed." The basis for raising the
amount of mesne profits vanishes, when the High Court finally agrees with the
Subordinate Judge that the tax would be Re. 1.
Another consideration is that the Subordinate
Judge calculated mesne profits for item No. 12, consisting of dry land, at Rs.
35 per acre. The High Court enhanced the amount to Rs. 50 per acre, probably
thinking that garden crops could be raised on this land as it said :
"The learned Subordinate Judge stated in
paragraph 18 that garden crops could be grown on the surrounding lands."
This is not a very precise summing up of what the Subordinate Judge had said in
para 18 of his judgment. He stated there that the Commissioner had fixed
profits for this item at Rs. 30 per acre per year as in the case of other dry
lands and that he was fixing profits at Rs. 35 per acre as he had done so in
respect of other dry lands. He however referred to the observation of the
Commissioner :
"He observes that there is evidence to
show that on the surrounding lands, garden crops were being raised and that
there is no reason to hold that no such crops were raised on this item."
The Subordinate Judge did not fix the rate on the basis that garden crops could
be raised or were raised on the land of item No. 12 679 and fixed the rate on
the basis that it was dry land. The Commissioner too does not appear to have
fixed the rate on the basis that garden crops could be raised on this land.
We may now consider how the High Court dealt
with the various items of property in A and C Schedules to show that the
variations made by it in the rates were not based on any basic material on the
record. We refer to them in the order in which they were dealt with by the High
Court.
Schedule A Items Nos. 13 to 17 : The
Subordinate Judge fixed the rent of these houses at Rs. 4 a month. The High
Court raised it to Rs. 6 per month merely stating :
"We are inclined to think that the rent
of Rs. 6 per month might be fixed in regard to these items." The reasons
given by the Subordinate Judge for fixing the monthly rent at Rs. 4 are, in his
own words :
"The Commissioner has however fixed the
mesne profits for these items at Rs. 2 per month.
The Union tax itself on this house appears to
be Rs. 6-4-0 per year. The annual tax is generally equivalent to about 2
month's rent.
The tax may be taken as a fairly correct
basis for fixing the mesne profits. In that case, the rate fixed by the
Commissioner is too low and I would fix the profits for these items at Rs. 4
per month." Items Nos. 1, 4 and 8 : The Subordinate Judge fixed the actual
profits for the land comprised in these items at Rs.
35 per acre. His reasons were "It is
seen from the evidence of R.W. 26 that the prices of land and maktas rose about
10 years after China Bapanna's death which took place in 1915. If this
statement were to be taken as correct and if, according to Exhibits P 1O and P1
1, the rent realised by dry lands works out to Rs. 30 per acre, it cannot be
said to be unreasonable or excessive to fix the profits on these dry lands at
Rs. 35 per acre from 1925 onwards. It may also be remembered that prices rose
after the close of the 1918 war. The Commissioner has fixed it at the rate of
Rs. 30 only. I would however fix the profits on these dry lands at Rs. 35/per
acre per year and the petitioner would be entitled to profits at this rate on
items 1 and 4 also from 1926." 680 The High Court reduced the rate of
profits to Rs. 30 per acre for the period up to 1940 and raised it to Rs. 60
per year for the period 1941 to 1943 and stated, in this connection :
"The learned Subordinate Judge increased
the rent from Rs. 30 to Rs. 35 without giving any reasons. We are inclined to
hold that in respect of all these three items, the rate ought to have been
fixed at Rs. 30 per year up to 1940. After 1940 there was an increase in
prices. We are inclined to hold that for all these three items the rate might
he fixed at Rs. 60 per year for the period 1941 to 1943." The High Court
was in error in noting that the Subordinate Judge had given no reasons for
raising the rate recommended by the Commissioner. It is really the High Court
which gave no reason for lowering the rate up to 1940 and doubling the arte
from 1941 onwards.
Items Nos. 9, 10, 11 and 12 : We have already
dealt with items 9, 10, 11 and 12 and shown how the High Court had gone wrong
in increasing the rate of profits from them.
Items Nos. 18 to 20 : The Commissioner
recommended profits at the rate of Rs. 30 a year. The Subordinate Judge agreed
with him and so did the High Court, for the period up to 1940. It however
raised the rate to Rs. 60 a year from 1941 onward stating simply :
"But, so far as the years 1941 to 1943
are concerned, we think it would be reasonable to fix the rate at Rs. 60 per
acre." Item Nov. 2, 3, 5, 6 and 7 : The High Court confirmed the findings
of the Subordinate Judge with respect to the profits for the period up to 1940
but fixed the rate per bag at Rs. 10 for the period subsequent to 1941 stating
:
"However, for the years 1941 to 1943, we
fix the rate per bag at Rs. 10-0-0 as the prices had increased after
1940." Schedule C The Commissioner allowed profits at Rs. 30 per acre as
in the case of dry lands. The Subordinate Judge fixed profits at Rs. 35 for the
same reason as he bad fixed that rate for dry lands of items 1, 4 and 8 of
Schedule A. The High Court reduced the 681 rate to Rs. 30/relying on leases
Exhibits P. 10 and P. 1 1 of 1915. It ignored the statement of R.W. 26,
considered by the Subordinate Judge, that rents increased from 1925.
In view of what we have said above, we are
unable to say that the High Court was right in considering the rates of profits
fixed by the Subordinate Judge to be wrong and in increasing the rate of
profits for most of the items of Schedule A and C and, especially, for the
period between 1926 and 1940.
Two courses are now open for us. One is to
set aside the decree for mesne profits and send back the case to the Court
below for deciding it with respect to the quantum of mesne profits. The other
is to set aside the decree of the High Court and restore that of the
Subordinate Judge with respect to the quantum of mesne profits up to March 7,
1941, in view of the facts that the mesne profits awarded against the appellant
are for the period between 1926 and 1943 and that any further enquiry about
mesne profits would further put off a final decree for mesne profits. In view
of such a consideration, learned counsel for the appellant had expressed,
without prejudice, his client's agreeing to the calculation of mesne profits at
the rate determined by the trial Court and, consequently, to the decree for
mesne profits passed by that Court, but the learned counsel for the
decree-holder respondent had stated that his client would prefer a fresh
decision of the High Court on the point in case this Court found that the High
Court was not justified to raise the amount of mesne profits. The respondent is
more interested in the early finalisation of the mesne profits than the
appellant and so we would order in conformity with his wishes.
We therefore allow the appeal with costs of
this Court, set aside the decree of the Court below and remand the case to the
High Court to determine afresh the quantum of mesne profits up to March 7,
1941, when the three years from the decree of the High Court expired and to
dispose of the appeal according to law.
Mudholkar J. This is an appeal from the
judgment of the High Court of Andhra Pradesh which arose out of a suit for
possession and mesne profits instituted in the year 1926. The suit was
dismissed by the trial court but on appeal the High Court of Madras passed a
decree therein in favour of the second plaintiff who is the first respondent
before us, on March 7, 1938. The decree which the High Court passed, in so far
as mesne profits were concerned, was a preliminary decree and therein the High
Court made the following provision with respect to the claim for mesne profits
:
"that the lower court do make an enquiry
as to the mesne profits 682 from the date of the institution of the suit and
pass a final decree for payment of the amount that may be found due up to the
date of delivery of possession to the second plaintiff." No further appeal
was taken by the first respondent, who is the appellant before us, against whom
the decree was passed.
Respondent No. 1 obtained delivery of
possession of some of the property with respect to which his claim had
succeeded in the year 1943 and of another item of property on January 1.5,
1948.
On an application preferred by respondent No.
1 a Commissioner was appointed by the court of first instance for making an
enquiry into mesne profits. After considering that report the court passed
final decree for a certain amount in favour of respondent No. 1. In the course
of the judgment it observed "So far as the A and C schedule properties are
concerned, there is no dispute about the mesne profits in regard to their
having to be ascertained for a period of 17 years, i.e., from 1926 to 1943
February and for the mesne profits in regard to the B schedule properties being
ascertained till 1946. The contest is only in regard to the quantum and not to
the periods mentioned above." The appellant preferred an appeal from the
final decree before the High Court of Madras which was eventually transferred
to the High Court of Andhra Pradesh. The appellant, however, did not raise any
ground in his memo of appeal to the effect that mesne profits could not be
awarded for a period in excess of three years from the passing of the
preliminary decree. He had not raised this question either in his counter
affidavit in answer to the application made by respondent No. 1 for the
appointment of a Commissioner for determining mesne profits nor had he raised
it before the Commissioner. On the other hand it was conceded before the
Commissioner, as also the Subordinate Judge, that accounts can be taken up to
the year 1943 in respect of the properties described in Schedules A and C to
the plaint and up to 1946 in respect of properties described hi Schedule B to
the plaint. For the first time, however, when the appeal was argued before the
High Court of Andhra Pradesh the appellant raised the contention that by virtue
of the provisions of O.XX, r. 12 the respondent No. 1 was not entitled to the
award of mesne profits beyond three years from the date of the preliminary
decree. In regard to this objection the High Court observed :
"As the appellant raised no dispute and
elected to have the profits determined by the subordinate Judge 683 up to the
date of delivery of possession we are not inclined to permit the appellant to
raise this new ground of appeal." However, as the decision of the High
Court was open to further appeal it heard the parties on the new ground raised
by the appellant and decided it against him. Along with the appeal the High
Court dealt with the cross-objection preferred by the first respondent in which
he claimed enhancement of the amount of mesne profits. The High Court dismissed
the appellant's appeal and partially allowed the cross-objection preferred by
the first respondent and modified the final decree passed by the court.
Eventually the High Court granted a certificate to the appellant and that is
how the matter has come up before us.
Two points were urged on behalf of the
appellant before this Court. The first is that respondent No. 1 was not
entitled to be granted mesne profits for a period beyond three years from the
passing of the preliminary decree and the other is that the High Court was in
error in enhancing the amount of mesne profits. Along with this appeal we have
also heard an appeal preferred by the respondent which is C.A. 926 of 1963 in
which he claimed a further enhancement of the amount of mesne profits.
I have had the advantage of reading the
judgment of my learned brother Raghubar Dayal in which he has held that the
High Court was in error in refusing leave to the appellant to raise a new
ground at the stage of argument and after allowing it to be raised has upheld
it. In regard to the second ground he has observed that the High Court was not
right in raising the amount of mesne profits and has expressed the opinion that
the matter be remanded to the High Court for fresh decision on the point. He
has also expressed the view that the cross-appeal preferred by the respondent
should be dismissed.
I am clearly of the opinion that the High
Court was right in refusing leave to the appellant to raise a new ground at the
hearing since not only had he not raised it in the memo of appeal but he had
also allowed an enquiry into mesne profits by the Commissioner to be made, for
a period longer than three years from the date of the decree and participated
therein. The reason why a new ground ought not to be allowed to be raised at
the hearing of an appeal has been so well stated by Lord Birkenhead in Wilson
v. United Counties Bank Ltd.(1) that I need do no more than reproduce what he
has said:
(1) [1920] A.C. 102,106.
684 "The object of indicating in detail
the grounds of appeal, both to the Court of Appeal and to your Lordships'
House, is that the respondent parties may be accurately and precisely informed
of the case which they have to meet. Their efforts are naturally directed to
the contentions which are put forward by the appellants. They are entitled to
treat as abandoned contentions which are not set forth.
lf in exceptional cases parties desire to add
new grounds to those of which they have given notice, it will usually be
convenient, by a substantive application, to apply to the indulgence of the
Court which is to hear the appeal. In the present case, both in the Court of
Appeal and before your Lordships, entirely new contentions have been submitted
on behalf of the defendants. The practice is extremely inconvenient and ought
in my judgment to be discouraged in every possible way." (Italics mine).
Further, we cannot lose sight of the fact
that the grant or refusal of permission to raise a new ground was within the
discretion of the High Court. The High Court has given very good and cogent
reasons for refusing permission to the appellant to raise the new plea and not
acted capriciously, as would be clear from the following passage in its
judgment :
"In the original grounds of appeal, no
objection was taken as to the period for which mesne profits had to be paid.
Before the appeal was taken up, the appellant sought to raise an additional
ground of appeal viz., that the Subordinate Judge was not entitled to grant
mesne profits for more than 3 years from the date of the High Court's decree.
This question was not raised in the counter affidavit in I.A. No. 558 of 1945
on the file of the Subordinate Judge, Eluru or before the Commissioner ,or
before the Subordinate Judge.
On the other hand, it was conceded before the
Commissioner as also the Subordinate Judge that accounts can be taken up to
1943 in respect of A and C schedule properties and up to 1946 in respect of B
schedule properties.
It is for the first time that this objection
based on provisions of Order XX Rule 12 C.P.C.
is raised before this Court. If the objection
had been raised in the counter or before the Commissioner, it would have been
open to the 2nd plaintiff to file a suit for recovery of the mesne profits
beyond the 3 years up to the date of delivery of possession. As the 685
appellant raised no dispute and elected to have the profits determined by the
Subordinate Judge up to the date of delivery of possession, we are not inclined
to permit the appellant to raise this new ground of appeal." We would be
going against all precedents as for instance the decision of the Privy Council
in Rehmat-un-Nisa Begum v. Price() and our recent judgment in lttyavira Mathai
v. Varkey Yarkey(2) if we say that despite what the High Court did, we shall go
into the question ourselves. In that case we have observed in col. 2 page 911 :
"It would thus be clear that the
appellant has not raised a sufficiently clear plea of limitation by stating
relevant facts and making appropriate averments. It is apparently because of
this that the trial court, though it did raise a formal issue of limitation,
gave no finding thereon. Nothing would have been simpler for the trial court
than to dismiss the suit on the ground of limitation if the plea was seriously
raised before it. Had the point been pressed, it would not have been required
to discuss in detail the various questions of fact pertaining to the merits of
the case before it could dismiss the suit. In the plaint the respondents
claimed that the period of limitation for the suit commenced on 15-2-1113 when
the High Court dismissed the revision petition preferred by the respondents.
The appellant has not stated that under Art. 47 of the Limitation Act, the
period of limitation is to be computed not from the date of the revisional order
but from the date of the original order. Had he done so, we have no doubt that
the respondents would at least have placed on record by amending the plaint the
date on which the plaint was instituted in the court of the Munsiff. Thus had
the plaint been instituted in the court of the Munsiff say two months before
the expiry of the limitation, the suit would have been within time on 4-3-1118
when the plaint was represented to the District Court, computing the period of
limitation even from the date of the original order. Moreover, the appellants
could well have raised the question of limitation in the High Court in support
of the decree which had been passed in their favour by the trial court. Had
they done so, the High Court would have looked into the records before it for
satisfying itself whether the suit was within (1) 45 I.A. 61.
(2) A.I.R. 1964 S.C. 907.
L4Sup./65 686 time or not. The point now
raised before us is not one purely of law but a mixed question of fact and law.
No specific ground has even been taken in the petition made by the appellant
before the High Court for grant of a certificate on the ground that the suit
was barred by time. In the circumstances, we decline leave to the appellant to
raise the point of limitation before us." We refused permission to the
appellant to raise a new ground for two independent reasons. One was that the
appellant had not raised a sufficiently clear plea in his written statement.
The other was that the question was a mixed one of fact and law.
I am aware that in Yeswant Deorao Deshmukh v.
Walchand Ramchand Kothari(1) this Court has quoted with approval at pp. 861-2
the following passage from the decision in Connecticut Fire Insurance Co. v.
Kayanagh (2) :
"When a question of law is raised for
the first time in a court of last resort upon the construction of a document or
upon facts either admitted or proved beyond controversy, it is not only
competent but expedient in the interests of justice to entertain the plea.
The expediency of adopting that course may be
doubted when the plea cannot be disposed of without deciding nice questions of
fact in considering which the court of ultimate review is placed in a much less
advantageous position than the courts below." But there a question of
limitation had in fact been raised in the court below and what was sought by
the appellant was leave to press in aid s. 18 of the Limitation Act. It was in
this connection that the observations quoted earlier were referred by this
Court. Moreover, since this Court negatived the plea based on s. 18 on the
ground that the necessary facts were not established the approval of Lord
Watson's view could at best be said to be a mere obiter.
We must also not lose sight of the principle
that where a party omits to raise an objection to a direction given by the
lower court in its judgment he must be deemed to have waived his right and he
cannot, for the first time at the hearing of an appeal from the decision of
that court challenge its power to make the direction. In London Chatham and Dover
Railway Co. v. South Eastern Railway Co. (s) all the Lords Justices of the
Court of Appeal have (1) [1950] S.C.R. 852.
(2) [1892] A.C. 473.
(3) [1889] 40 Ch. D. 100, 106-109.
687 emphatically said that an omission of a
kind of which the appellant in this case is guilty must be treated as a waiver
even of a plea of jurisdiction. In that case there was an agreement between the
parties, two railway companies, which provided for a reference of all matters
of difference between them to arbitration under the Railway Companies
Arbitration Act. Section 26 of the Act required the court where one of the
parties to the agreement insisted upon it, to give effect to and to act in
accordance with the agreement, so far as the submission to arbitration was
concerned. The defendant pleaded the arbitration agreement in defence while the
plaintiff challenged its validity. A question was raised by the defendant about
the competency of the court to adjudicate upon the validity of the agreement.
'Me trial Judge held in favour of the
plaintiff and his decision was upheld by the court of appeal. The defendant
took the matter to the House of Lords and while the appeal was pending there
the case came up before Kekewich J. One of the questions in the appeal was
whether, if the agreement was a good one, the jurisdiction of the Court was
ousted.
The defendant made an application for
postponement of the action because certain other points decided by the Court of
Appeal which had gone to the House of Lords would be material. But the defendant
did not say in the application that the question about the jurisdiction of the
Court was also before the House of Lords and that for this reason it ought not
to be put to the trial of the action till it was finally decided. The trial
then proceeded and judgment was given on the basis of the evidence. When the
matter went to the Court of Appeal the defendant contended that the Court had
no jurisdiction to go into the merits of the case.
Negativing it, Cotton L. J. said :
"........ the defendants did not say,
'While the decision in the House of Lords is pending we cannot contend that
this point ought to go to an arbitrator, but we do not abandon it, we still
desire to keep it open;' but they go on with the trial and they get the
judgment of a Court upon the evidence on the question which they now say the
Court ought never to have entertained. In my opinion parties ought not to be
allowed to do that. If when they can insist on the Court not going into the
merits of the case and deciding questions between the parties, they abstain
from doing so, and are defeated on the merits, in my opinion it is too late to
insist before the Court of Appeal on any right to object to the jurisdiction of
the Court which they might have had if they 688 had insisted on it in a proper
way and at a proper time." (p. 105).
Lindley L. J., observed:
"Having regard to the course which was
adopted in the Court below, I think the Defendants must be treated as having
waived this objection in the Court below, and it would not be right for us to
entertain it on appeal." (p. 107).
Bowen L. J., agreeing with the other Lords
Justices said "I agree with the Lord Justice that here, if the point had
been taken and insisted upon from the first, there might have been no answer to
it; but, at all events, when the point is not taken from the first, it is to be
treated as having been abandoned in that way; and when a point such as this is
waived and not insisted upon, the Court is not compelled at any stage of the
litigation to go back and treat the parties who have waived it as parties who
have not done so." This is not an isolated decision, nor indeed does it
lay down a novel rule of practice. It is right and proper that parties to a
litigation should not be permitted to set up the grounds of their claims or
defence in driblets or at different stages and embarrass the opponents.
Considerations of public policy require that
a successful party should not, at the appellate stage, be faced with new
grounds of attack after having repulsed the original ones.
The proper function of an appellate court is
to correct an error in the judgment or proceedings of the court below and not
to adjudicate upon a different kind of dispute a dispute that was never taken
before the court below. It is only in exceptional cases that the appellate
court may in its discretion allow a new point to be raised before it provided
there are good grounds for allowing it to be raised and no prejudice is caused
thereby to the opponent of the party permitted to raise such point. But where
the appellate court in exercise of its discretion refuses leave to a party to
raise such point there is little scope for any indulgence being shown by this
Court. This would suffice to dispose of the question whether mesne profits
could be awarded till the date of delivery but as my learned brother has
considered that question on merits, I must deal with it as well.
I regret my inability to agree with the
decision of my learned brother on the merits of the first point. There is no
doubt whatsoever that under O.XX, r. 12 (c) of the Code, a court has to direct
689 enquiry as to mesne profits from the date of institution of the suit until
(i) the delivery of possession to the decreeholder; (ii) the relinquishment of
possession by the judgment-debtor and notice to the decree-holder through the
Court or (iii) the expiration of three years from the date of the decree,
whichever event occurs first. Therefore, when the Madras High Court passed a
preliminary decree on March 7, 1938 it ought to have given directions with
regard to the determination of mesne profits in the manner provided for in cl.
(c) of r. 12(1) of O.XX, C.P.C. The High Court however, chose to make only a
single direction and that is that mesne profits be determined up to the date of
the delivery of possession and nothing more. It may be that the High Court did
not expect that the delivery of possession would be delayed beyond three years
of the passing of the decree or that the High Court overlooked the possibility
of possession being delivered more than three years after its decree.
Therefore, it does not necessarily follow that the failure of the High Court to
make it clear that in any case the determination of mesne profits shall not be
for a period in excess of three years from the date of preliminary decree was
an error. Even assuming that the direction in the preliminary decree that mesne
profits shall be determined and consequently will be payable right up to the
date of delivery of possession, whenever the event occurred, was wrong, that
decision has to be given effect to. This decree, as already pointed out, was
not challenged by taking a further appeal and has, as between the parties,
become final by the operation of the provisions of s. 97 of the Code of Civil
Procedure which says :
"Where any party aggrieved by a
preliminary decree passed after the commencement of this Code does not appeal
from such decree, he shall be precluded from disputing its correctness in any
appeal which may be preferred from the final decree." The appeal before us
is an appeal from the final decree and, therefore, the appellant is precluded
from making a challenge to a direction in the preliminary decree. I am
fortified in this view not only by what we have said in Ittyavita Mathai's
case(1) in para 8 at p. 910 but also by the recent judgment of this Court in
Smt. Gvarsi Bai & Ors.
v. Dhansukh Lal & Ors. (7 There, Subba
Rao J., speaking for the unanimous Court has observed "In a case where a
decree is made in Form No. 5A, it is the duty of the Court to ascertain the
amount due to (1) A.I.R. 1964 S.C. 907.
(2) [1965] 2 S.C.R.
690 the mortgagee at the date of the
preliminary decree. How can the amount due to the mortgagee as on the date of
preliminary decree be declared unless the net profits realized by him from the
mortgaged property are debited against him ? The statutory liability of the
mortgagee to account up to the date of the preliminary decree would be the
subject-matter of dispute in the suit up to the date of the said decree. The
Court has to ascertain the amount due under the mortgage in terms of the
mortgage deed and deduct the net realizations in the manner prescribed in s.
76(h) of the Transfer of Property Act and ascertain the balance due to the
mortgagee on the date of the preliminary decree. If the mortgagor did not raise
the plea, he would be barred on the principle of res judicata from raising the
same, as the said matter should be deemed to have been a matter which was
directly and substantially in issue in the suit up to that stage. It is settled
law that though a mortgage suit would be pending till a final decree was made,
the matters decided or ought to have been decided by the preliminary decree
were final. Suppose the mortgagor paid certain amounts to the mortgagee before
the preliminary decree; if these were not given credit to the mortgagor and a
larger amount was declared by the preliminary decree as due to the mortgagee,
can the mortgagor, after the preliminary decree, reopen the question ?
Decidedly he cannot. This is because the preliminary decree had become final in
respect of the disputes that should have been raised before the preliminary
decree was made." That the general principles of res judicata would apply
to such a case as this was held long ago in Ram Kirpal Shukul v. Mussumat Rup
Kuari(1) and the view taken therein has been followed by this Court in
Gulabchand Chhotalal Parikh v. The State of Bombay (now Gujarat) (2).
It is, however, contended that what the
appellant seeks in this ,appeal from the final decree is merely an
interpretation of a direction in the preliminary decree and that that direction
should be construed in such a way as to make it a decree according to law i.e.,
in accordance with the provisions of O. XX, r. 12, C.P.C. The question of
construction of a decree can only arise where the decree is ambiguous. A number
of cases were relied upon before (1) 11 I.A. 37. (2) [1965] 2 S.C.R. 546.
691 us on behalf of the appellant and some of
them have been discussed in the judgement of my learned brother as also in the
judgement of the full Bench in Kudapa Subbanna v.
Chitturi Subbanna & ors.(1). That
decision is subject of the appeal preferred respondent No. 1 in C.A. No. 926 of
1963. It may be conceded that where the meaning of a term of a decree is not
clear Or is ambiguous the question of construing that term would arise. In such
a case the court whose duty it is to construe it would be doing the right thing
in placing upon it a construction which will make it conformable to the law.
The direction in question contained in the preliminary decree of the High Court
does not, in my opinion, suffer from vagueness, ambiguity or such
incompleteness as will make its enforcement impossible. It may be that the High
Court in making the direction wrongly thought that it had discretion to specify
any of the three events set out in cl. (1) (c) of r. 12 of O. XX or that it
expected that possession would be delivered by the appellant to the respondent
before the expiry of three years. Or it may be that the High Court had overlooked
the limitations cl. (c) of O. XX, r. 12(1).
But whether it was one or the other, does not
render the direction in question vague, ambiguous or incomplete. In order to
ascertain whether a particular term or direction in a decree is clear and
complete or vague and ambiguous the court must ordinarily confine its attention
to the direction itselfl. It will be justified in looking to the other
provisions in the decree if there appears to be a doubt about the meaning of
its terms or if any of the terms conflict with another part of the decree. But
where there is no such doubt or conflict the occasion to look at the other
terms of the decree cannot arise. It is, however, not the suggestion of Mr.
Viswanatha Sastri that this Particular term is inconsistent with any of the
other terms of the decree. His argument is that if the term is taken by itself
it would be in conflict with law and so we must read in it the whole of the
provisions of O. XX, r. _12(1) (c). But then the High Court has clearly
selected only a portion of this provision and made that alone as a term of its
decree, omitting the rest of it. The argument of learned counsel in substance
amounts only to this : that the High Court in acting in this manner committed
an error of law, but mere error of law does not vitiate the direction made by
the High Court. Even assuming that one of the terms of a decree is erroneous in
law the decree is nonetheless binding upon the parties until and unless it is
corrected in appeal or other appropriate proceeding. Such a decree (1) Appeal
No. 368 of 1956 decided on 23-2-1962.
692 cannot be treated as one which was passed
without jurisdiction. For, it is well settled that while it is the duty of a
court to decide right it may well happen that it decides wrong. Whichever way
it decides, it acts within its jurisdiction and not beyond it, as was observed
by the Privy Council in Malkarjun v. Narhari(1) which was followed by this
Court in Ittyavira Mathai's case(2). A wrong decision is no doubt vulnerable
but it does not automatically become unenforceable. Unless corrected in the
manner provided for in the Code it will operate as res judicata between the
parties in all subsequent stages of the lis.
I have not thought it necessary to discuss
the various decisions cited at the Bar and noted by my learned brother because
the decrees construed in them were found to be vague or incomplete. To my mind
it would not be right for a court to characterise a term of a decree which upon
its face appears to be clear and complete, as being vague or incomplete merely
because in its view that term is erroneous and then proceed to interpret it. So
far as a Court whose duty it is to give effect to a decree of a Court of
competent jurisdiction is concerned it is immaterial whether the term or direction
as it stands is contrary to law. So long as it is, on its face, complete and
capable of enforcement it has no power to go behind. For these reasons I am of
opinion that the first contention raised on behalf of the appellant must fail.
As regards the question of quantum of mesne
profits I agree with my learned brother that the High Court has given no good
reasons for enhancing the amount. In dealing with various items it seems to
have proceeded on assumptions or raised the rates of profits to be allowed without
referring to the basis for the enhancement. In the circumstances I would agree
to the course proposed by him.
The appeal, therefore, succeeds only
partially and in the circumstances the appropriate order for costs would be for
each party to bear its costs in this Court.
Appeal allowed.
(1) 27 I.A. 216. (2) A.I.R. 1964 S.C. 907.
Back
