Authored By : Mookerjee, William Teunon

Mookerjee and William Teunon, JJ.

1. This appeal is directed against an order made in courseof proceedings in execution of a decree in a suit for recovery of possession ofland and mesne profits. The Respondent commenced his suit on the 12th April1902 in the Court of the Munsif at Baruipur. His claim, valued at Rs. 886-8,was composed substantially of three parts, namely, first, for recovery ofpossession of about 100 bighas of laud valued at Rs. 686-8 which was stated tobe the price paid by him to his vendor on the 24th March 1899; secondly, mesneprofits from the date of dispossession on the 12th April 1899 to the date ofthe institution of the suit, valued approximately at Rs. 200; and thirdly,mesne profits from the date of institution of the suit up to the date ofrecovery of possession in execution of the decree to he made in the suit. Noobjection was taken by the Defendant to the valuation of the suit, although theclaim was contested upon the merits in every particular. On the 27th November1905 the Munsif made his decree in favour of the Plaintiff. This decreeentitled the Plaintiff to recover possession of the land. As regards the amountof mesne profits, the Munsif left them to be determined in execution. Uponappeal by the Defendant, this decree was affirmed by the Subordinate Judge onthe 8th February 1907. Upon appeal to this Court, the decree of the SubordinateJudge was confirmed on the 17th August 1908. Meanwhile the decree-holder hadexecuted his decree and recovered possession of the land on the 15th July 1907.On the 9th January 1909, the decree-holder applied to the Munsif for assessmentof mesne profits. In this application he claimed the mesne profits for nearly aperiod of ten years. The claim was laid at Rs. 3,750 per year for the first sixyears and Rs. 6,300 per year for the remaining four years. The aggregate claiminclusive of interest amounted to Rs. 75,510. As soon as this application was presented,the judgment-debtor objected that the Munsif had no jurisdiction to make adecree for any sum in excess of what taken with the value of the land wouldmake up Rs. 1,000 which was the statutory limit of the pecuniary jurisdictionof the Munsif. As this difference amounted to Rs. 313-8 the judgment-debtoroffered to deposit the amount in Court. The Munsif, thereupon, held that he hadjurisdiction to award mesne profits for any sum that might be found due, eventhough it exceeded the limit of his pecuniary jurisdiction, provided that suchsum was awarded on account of the mesne profits between the institution of thesuit and the delivery of possession in execution of the decree. As regardsmesne profits antecedent to the suit, the Munsif did not express any opinion asto the amount no to which he was competent to make an award. The judgmentdebtor then appealed to the District Judge who has affirmed the order of theMunsif. The judgment-debtor has now appealed to this Court and on his behalfthe decision of the Court below has been assailed on the ground that theMunsif, as a Court of limited pecuniary jurisdiction, cannot make a decree morethan Rs. 313-8 (the difference between Rs. 1,000 the limit of the pecuniaryjurisdiction of the Munsif and Rs. 686-8 the value of the land). In support ofthis proposition reliance has been placed upon the decision of this Court inGolapsingh v. Indra Kumar Huzra (1909) 9 C.L.J. 367. This position has beendisputed on behalf of the decree-holder, audit has been argued that even if itcould be maintained in respect of the mesne profits antecedent to theinstitution of the suit, it could not be supported in respect of the mesneprofits pendente lite in view of the decision of this Court in the case ofRamesvar Mahton v. Dilu Mahton I.L.R. (1984) Cal. 550. The question raised isone of some nicety and its solution must ultimately depend upon the true effectto be attributed to the provisions of the Bengal Civil Courts Act of 1887 andthe Code of Civil Procedure of 1882.

2. Section 18 of Act XII of 1887 provides that thejurisdiction of the District Judge and the Subordinate Judge shall, subject tothe provisions of Section 15 of the Code of Civil Procedure of 1882, extend toall original suits for the time cognizable by the Civil Courts. Section 19,Sub-section (1) then provides that the jurisdiction of a Munsif shall extend toall like suits of which the value does not exceed Rs. 1,000. Sub-section (2) ofthe same section provides that in certain cases, a Munsif may be invested withjurisdiction to try suits not exceeding in value Rs. 2,000. Section 21 thenprovides that appeals from any decree of the Subordinate Judge lie to theDistrict Judge in all cases in which the value of the suit does not exceed Rs.5,000. In cases in which the value exceed Rs. 5.000 the appeal lies to the HighCourt. Appeals from the decrees of the Munsif lie to the District Judge. Thepolicy of the Legislature as indicated by these provisions is obvious. Suits ofwhich the value exceed Rs. 1.000 or in certain instances Rs. 2,000 shall betried by a Subordinate Judge. If the value of the suit exceed Rs. 5,000, afirst appeal shall lie to this Court in which not merely questions of law butalso questions of fact may be investigated.

3. Let us now turn to the provisions of Sections 211 and 212of the Code of Civil Procedure of 1882. The first of these authorises theCourt, which has seizin of a suit for recovery of possession of immoveableproperty, to provide in the decree for recovery of mesne profits from theinstitution of the suit to the delivery of possession. The second section dealswith cases in which the claim is for recovery of possession and mesne profitsantecedent to the suit. The Court may either determine the amount of the decreeitself or direct an enquiry and dispose of the matter on further orders.Section 214 then provides that an enquiry into the amount of mesne profits ineither of these contingencies must be made by the Court executing the decree.Clause (a) deals with mesne profits antecedent to the institution of the suit,that is, refers to cases covered by Section 212. Clause (b) refers to mesneprofits pendente lite and covers cases mentioned in Section 211. Now, in so faras mesne profits antecedent to the decree are concerned, the Plaintiff isrequired under Section 50 of the Code of Civil Procedure to name the amountclaimed only approximately and the court-fees have to be paid under Section 7,Clause (1) of the Court Fees Act, according to the amount claimed. Section 11 ofthe Court Fees Act then provides that if the amount decreed ultimately exceedsthe amount claimed, the decree is not to be executed till the deficitcourt-fees have been paid. This applies whether the mesne profits are awardedby the decree itself or are left to be ascertained in the course of theexecution of the decree. In so far as mesne profits between the institution ofthe suit and the delivery of possession under the decree to be made areconcerned, it does not appear that the Plaintiff is required to state theamount even approximately. In fact, even an approximate statement isimpossible, as the amount must vary with the length of the period during whichthe litigation continues. On this principle, it has been ruled by the BombayHigh Court in Bam Krishna v. Bhimabai I.L.R. (1890) Bom. 416, by the MadrasHigh Court in Maiden v. Janakiramayya I.L.R. (1893) Mad. 271 and by this Courtin Bunwari Lal v. Daya Sanker (1909) 13 C.W.N. 815, that no court-fees arerequired to be paid, either in the original or in the Court of Appeal, inrespect of the possible value of mesne profits pendente lite. It is manifest,therefore, that mesne profits antecedent to the suit and mesne profits pendentelite stand on very different grounds. In fact, as regards the latter, there isno cause of action at the time of the commencement of the suit and it is onlyby means of statutory provisions framed with the obvious purpose of shorteninglitigation, that they can be awarded in the suit even though they accruedsubsequent to the institution of the suit. The mesne profits antecedent to thesuit have, on the other hand, accrued before the commencement of the suit andalthough, therefore, the amount may not be stated with absolute certainty, theamount can be mentioned with some approach to approximation. When, therefore, aPlaintiff institutes his suit for possession and mesne profits antecedent tothe suit in a Court of limited pecuniary jurisdiction, he may, on the principleexplained in Golap Singh v. Indra Kumar Hazra (1909) 13 C.W.N. 493 : 9 C.L.J.367, to which we adhere in spite of the decision in Sudarshan Dass v.Rampershad (1910) 7 All. L.J.R. 963, be rightly deemed to have limited hisclaim to the maximum amount for which that Court can entertain a suit. In fact,in such a case, if the Plaintiff subsequently puts forward a claim in excess ofthe jurisdiction of the Court, he may justly be required to remit the excess,because he has with his eyes open brought his suit deliberately in a Court oflimited pecuniary jurisdiction. In the case before us, therefore, the Plaintiffcannot rightly claim more than Rs. 813-8 on account of mesne profits antecedentto the suit. Indeed, the decree-holder has through his learned vakil offered toabandon the claim in respect of mesne profits antecedent to the suit.Consequently, no assessment need be made on account of these mesne profits.

4. The question next arises as to mesne profits pendentelite. It has been suggested that the learned Munsif should be deemed to havejurisdiction to assess these profits and to make a decree for any amount he maydetermine, however much such amount may exceed the limit of the pecuniaryjurisdiction of the Court. In support of this proposition, reliance has beenplaced upon the case of Rameswar v. Dilu I.L.R. (1894) Cal. 550. In ouropinion, that case is clearly distinguishable. There a suit was brought torecover land valued at Rs. 950. Mesne profits antecedent to the suit were notclaimed, but there was a prayer for award of mesne profits pendente lite. Whenthe suit was instituted, the limit of the pecuniary jurisdiction of the Munsifwas Rs. 1,000. By the time the Munsif made his decree for recovery of the landand for assessment of mesne profits pendente lite, the pecuniary limit of hisjurisdiction had been raised to Rs. 2.000. The Plaintiff subsequently invitedthe Court to ascertain the mesne profits and estimated them at Rs. 1,595. Thejudgment-debtor objected that an award could be made for only Rs. 50, that isthe difference between Rs. 1,000 (the limit of the pecuniary jurisdiction ofthe Court at the date of the institution of the suit and Rs. 950 the value ofthe land). This contention was overruled. It may be remarked that at the dateof the institution of the suit, there was no cause of action for recovery ofmesne profits pendente lite. The jurisdiction of the Munsif was extended to Rs.2,000 before the decree for mesne profits was made. In fact, the cause ofaction for mesne profits accrued from day to day after the institution of thesuit and when the Court made the order for assessment, it had jurisdiction, ifa suit for mesne profits had been then commenced, to make a decree for Rs.2,000. As a matter of fact, the amount claimed was Rs. 1,595. The actualdecision, therefore, in Rameswar v. Dilu I.L.R. (1894) Cal. 550, may possiblybe defended, though there are expressions in the judgment which may be open tocriticism But as was observed by Lord Halsbury in Quinn v Leathern (1901) A.C.49, 506, "every judgment must be read as applicable to the particularfacts proved or assumed to be proved, since the generality of the expressionswhich may be found there are not intended to be expositions of the whole law,but governed and qualified by the particular facts of the case in which suchexpressions are to be found." It may further be observed that Courts havealways been reluctant to extend the application of the case of Rameswar v. DiluI.L.R. (1894) Calc. 550 to cases not precisely similar: see Gulab Khan v. AbdulWahab Khan I.L.R. (1904) Cal. 365 Ijjatulla v. Chandra Mohan I.L.R. (1907) Cal.954, Golap Singh, v. Indra Kumar (1909) 13 C.W.N. 493 and Manna Lal v. Samonda(1906) P.R. 46. We are clearly of opinion that the rule laid down in Rameswarv. Dilu I.L.R. Cal. 550 cannot possibly be extended to the case before us fortwo weighty and obvious reasons, namely, first that the value of the claim forthe mesne profits pendente lite which the decree-holder now invites the Courtto investigate, is much in excess of the value of a suit which a Munsif isgenerally competent or may specially be authorised to try : and secondly, thatif the Munsif investigated the claim, there would be insuperable difficulty asto the forum of appeal, which could not be either the Court of the DistrictJudge, who can hear appeals only in suits of which the value does not exceedRs. 5,000, or this Court, because the Legislature never contemplated an appealdirect from a decision of the Munsif to the High Court. We must hold,therefore, that the Munsif cannot entertain the application for investigationof mesne profits pendente lite as the claim is laid at over Rs. 60,000. In ouropinion, the proper course to follow is to direct the return of the plaint, inso far as it embodies a prayer for assessment of mesne profits from theinstitution of the suit to the date of delivery of possession, for presentationto the proper Court, that is, the Court of the Subordinate Judge. In fact, theplaint may be treated us including two, if not three, distinct claims as wehave already explained and we may very well direct that the plaint, in so faras it includes a claim for mesne profits pendente lite, should be returned forpresentation to a Court of competent pecuniary jurisdiction. The decree-holderhas no objection to the adoption of this course. But the judgment-debtor urgesthat if the mesne profits have been now estimated by the decree-holder with anyapproach to accuracy, the value of the property itself must have been very muchhigher than Rs. 686-8 and the case should not have been tried by a Munsif. Weare unable to give effect to this contention at the present stage after thesuit, in so far as it is for recovery of land, has terminated and the decree ofthis Court has become final. It must further be remembered that the Defendantdid not take any exception to the value of the land and cannot now be heard toquestion the jurisdiction of the Court in that respect.

5. The result, therefore, is that this appeal is allowed andthe orders of the Courts below discharged. The claim for mesne profitsantecedent to the suit is dismissed as it is abandoned by the decree-holder.The plaint in so far as it embodies a claim for mesne profits from theinstitution of the suit on the 12th April 1902 to the deliver of possession onthe 5th July 1907, will be returned to the Plaintiff for presentation to theproper Court, that is, the Court of competent pecuniary jurisdiction. We do notdecide whether, when the plaint is so presented, an question of limitation willarise, or if any question of limitation arises, whether Section 14 of theLimitation Act will be of any assistance to the Plaintiff. The Appellant isentitled to his costs in the present proceedings in all the Courts.

6. The Rule will stand discharged.

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