Authored By : William Comer Petheram, Macpherson, OKinealy, Trevelyan, S.C. Ghose, Beverley, Banerjee

William Comer Petheram, C.J.

1. My answer to the question referred to this Bench is thatno second appeal lies from a suit for mesne profits, where the value of thesubject-matter in dispute is less than Rs. 500. In other words, I think thatsuch a suit is cognizable in Courts of Small Causes and is within theprovisions of Section 586 of the Civil Procedure Code.

2. By the Provincial Small Cause Courts Act (IX of 1887),Section 15, jurisdiction is given to Courts of Small Causes to take cognizanceof all suits of a civil nature of which the value does not exceed Rs. 500,except such suits as are specified in the second schedule of the Act; and thequestion to be determined by this Bench is whether a suit for mesne profits isone of the suits specified in the schedule. A suit for mesne profits is notmentioned in the schedule by name, but it is said that it is included in thedescription of a suit in the latter part of Article 31 of the schedule. Thatdescription is "a suit for the profits of Immovable property belonging tothe plaintiff which have been wrongfully received by the defendant," Inorder to ascertain whether a suit for mesne profits is within this definition,it is necessary to consider carefully what a suit for mesne profits really is.

3. If any person, by force or fraud, takes possession ofImmovable property which belongs to another and deprives the true owner of thepossession of his property, he commits a trespass, for which trespass the ownerof the property may compel him by civil suit to pay him damages in the natureof mesne profits, the measure of such damages being as described in the CivilProcedure Code, Section 211 (explanation), "mesne profits of property meanthose profits which the person in wrongful possession of such property actuallyreceived, or might, with ordinary diligence, have received therefrom, togetherwith interest on such profits." So that a suit for mesne profits is anaction for damages for a trespass to Immovable property in which the measure ofthe damages may, or may not, be the amount of the profits which the wrong-doerhas actually received from the property.

4. This is not a suit to recover the profits of theImmovable property, but is a suit for damages of which the profits of theproperty actually received by the wrong-doer may not even be the measure.

5. In what I have said I have assumed that the latter partof Article 31 may be read alone, but this I do not think ought to be done; andif the whole article is read, it becomes, I think, quite clear that it cannotinclude a simple action for damages for a trespass to property. The wholearticle is, "Any other suit for an account, includings a suit by themortgagor, after the mortgage has been satisfied, to recover surpluscollections received by the mortgagee, and a suit for the profits of Immovableproperty belonging to the plaintiff which have been wrongfully received by thedefendant."

6. The article, I think, clearly contemplates cases in whichthe plaintiff claims an account of monies which the defendant has received, andto an account of which the plaintiff is entitled, because the monies receivedbelonged to him. This is not the case in a simple action for damages, and whatis called an action for mesne profits is nothing more. It may be objected thatin many suits for damages in the nature of mesne profits, a question of title,which a Court of Small Causes cannot finally decide, may arise, and this is nodoubt true; but the appropriate remedy is provided by Section 23 of theProvincial Small Cause Courts Act.

7. I think that the case of Sriram Samanta v. Kali Das DeyI.L.R. 18 Cal. 316 [LQ/CalHC/1891/16] was wrongly decided, and my answer to the question referredis that which I have already indicated.

Macpherson, J.

8. I concur.

O Kinealy, J.

9. I agree with the Chief Justice.

Trevelyan, J.

10. The question in this case is whether a Small Cause Courthas jurisdiction to make a decree for mesne profits. The decision of thisquestion depends upon the construction which should be placed upon Article 31,Schedule II, of the Provincial Small Cause Courts Act. That article excludesfrom the jurisdiction of the Small Cause Court "any other suit for anaccount including a suit for the profits of Immovable property belonging tothe plaintiff which have been wrongfully received by the defendant." Ithas been argued that a suit for mesne profits is a suit "for the profitsof Immovable property belonging to the plaintiff which have been wrongfullyreceived by the defendant." It may be so; but the jurisdiction of theSmall Cause Court is, in my opinion, only excluded by the Act where such suitis a suit for an account, that is, a suit which seeks for a decree, not for adefinite sum of money but ordering the defendant to account to the plaintifffor monies received by him. The machinery necessary for the putting in force ofthat decree is of a kind with which Small Cause Courts have never been supplied,and it has always been the object of the Legislature to confine Small CauseCourts to simple suits which are concluded by the first decree. A suit for anaccount is a suit which seeks for discovery in pursuance of the decree. No suchright of discovery is given to a person who is merely asking for mesne profits.Mesne profits are only damages and were recognized as such by the decisions ofthis Court in construing the Small Cause Courts Act (XI of 1865), the place ofwhich has been taken by the present Act. Before this Act came into force, thereis no doubt that suits of this kind could be tried by the Small Cause Courts.The scheme of this Act is different from the scheme of the Act which itreplaced. In the present Act, suits excluded from the jurisdiction of the SmallCause Courts are detailed; whereas in the earlier Act, suits the jurisdictionover which was given to it were set, forth. I cannot think that Article 31 is asufficient indication of the intention of the Legislature to exclude from thejurisdiction of the Small Cause Court a class of suits which were, according tomany decisions of the Courts, included in that jurisdiction up to the passingof the present Act.

11. For the reasons 1 have given, Article 31 has, in myopinion, no application to a suit like the present; and I would answer thequestion referred to us by holding that no second appeal lies, and woulddismiss this appeal with all costs.

S.C. Ghose, J.

12. The question that has been referred to the Full Benchfor decision is, whether in a suit for mesne profits, where the value of thesubject-matter in dispute is less than Rs. 500, a second appeal lies to thisCourt.

13. The solution of the question depends upon anotherquestion, which is, whether a suit for recovery of mesne profits is cognizableby a Small Cause Court. If it is, then, no doubt, under the provisions ofSection 586* of the Code of Civil Procedure, no second appeal lies; if,however, it is not so cognizable, there can be no question that a second appealdoes lie.

14. The Provincial Small Cause Courts Act (IX of 1887)declares that all suits of a civil nature, of which the value does not exceedRs. 500, shall be cognizable in the Court of Small Causes, subject however tothe exception of such suits as are specified in the second schedule annexed tothe Act; and the contention for the appellant is that a suit for mesne profitsfalls within Article (31) of that schedule, and is not, therefore, cognizableby the Small Cause Court.

15. The old Act, which was repealed and substituted by ActIX of 1887, was XI of 1865." The classification of suits given in that Actas cognizable by the Small Cause Courts, and as not cognizable by that Court,was rather unsatisfactory; and this led to some conflicting decisions of the differentHigh Courts; and one of the objects which Act IX of 1887 had apparently in viewwas to make it clear as to the suits which should not be cognizable by theSmall Cause Court.

16. Section 6 of Act XI of 1865 was as follows:

The following are the suits which shall be cognizable byCourts of Small Causes, namely, claims for money due on bond or other contract,or for rent, or for personal property, or for the value of such property, orfor damages, when the debt, damage, or demand does not exceed in amount orvalue the sum of five hundred rupees, whether on balance of account orotherwise; provided that no notion shall lie in any such Court:

(1) On a balance of partnership account, unless the balanceshall have been struck by the parties or their agents.

(2) For a share or part of a share under the intestacy, orfor a legacy or part of a legacy under a will.

(3) For the recovery of damages on account of an allegedpersonal injury, unless actual pecuniary damage shall have resulted from theinjury.

(4) For any claim for the rent of land or other claim forwhich a suit may now be brought before a Revenue officer, unless, as regardsarrears of rent for which such suit may be brought, the Judge of the Court ofSmall Causes shall have bean expressly invested by the Local Government withjurisdiction over claims to such arrears.

17. And it was held in several cases by this Court that asuit for mesne profits should be regarded as a suit for damages falling withinthat section, though a question of title to Immovable property might in such asuit be raised. But the Bombay High Court seems to have expressed a differentview upon the matter. In the case of Jamna Das v. Bei Shivkur I.L.R. 5 Bom. 572where in a suit brought in the Small Cause Court for damages sustained by theplaintiff owing to the wrongful dispossession from a house, and where thatCourt, regarded the suit as one for use and occupation, the learned Judges heldthat the suit could not rightly be viewed as one for use and occupation; thatit was an action of trespass brought to try a question of title; and that theplaintiffs proper remedy was by an action of ejectment in the Civil Court, towhich he might add a claim for mesne profits for the period during which thedefendant had been in occupation. And they accordingly reversed the decree ofthe Small Cause Court.

18. It will be observed, on a reference to Section 6 of ActXI of 1865, that the only class of suits for account which was then expresslyexempted from the cognizance of a Small Cause Court was partnership account.The Provincial Small Cause Court has, however, made a considerable departure inthat respect: we have there introduced other cases of account (see Articles 29and 30); and Article (31) of the second schedule adds:

Any other suit for an account, including a suit by amortgagor, after the mortgage has been satisfied, to recover surpluscollections received by the mortgagee, and a suit for the profits of Immovableproperty belonging to the plaintiff which have been wrongfully received by thedefendant.

19. It has been said that a suit for mesne profits is not asuit for account, but a suit for damage caused by the trespass committed by thedefendant; and, therefore, notwithstanding the use of the words "profitsof Immovable property belonging to the plaintiff which have been wrongfullyreceived by the defendant," such a suit is not excepted from thecognizance of the Small Cause Court.

20. No doubt a suit for mesne profits is not a suit foraccount properly so called, nor is also a suit by a mortgagor to recoversurplus collections received by a mortgagee a suit of that description. Theyare, however, akin to it. In such suits, accounts have, more or less, to begone into; and when accounts are produced by the defendant, either at therequisition of the plaintiff, or at his own instance, they have to be examinedfor the purpose of determining what was received by the defendant during theperiod of his possession.

21. It seems to me that, if the Legislature had reallyintended that a suit must be a suit for account properly so called, in order tobring it within the words "including a suit, &c," as occurring inArticle (31), they would have stopped with the words , any other suit foraccount," and would not have added those words. The addition of the wordsindicates, to my mind, that the Legislature meant to bring in other cases,which, though not strictly speaking cases for account, are akin to them.

22. In this connection it may be useful to refer to theIndian Limitation Act. There are various cases of account provided therein (seeArticles 85, 88, 106); but the suit of a mortgagor to recover surpluscollections received by the mortgagee is not treated as one for account (seeArticle 105), nor is a suit for recovery of profits of Immovable propertybelonging to the plaintiff wrongfully received by the defendant (Article 109);and yet these are the two classes of suits which are specially mentioned inArticle 31 of the Small Cause Courts Act. Indeed, the words in that article havebeen taken almost verbatim from Articles 105 and 109 of the Limitation Act. Aclaim for mesne profits in respect of Immovable property has always beenunderstood as one falling within Article 109 of the Limitation Act, and therecan, I think, be no doubt as to this, as the words in the last column of thatarticle clearly indicate : for a dispossession is therein contemplated.

23. A distinction, and, I think, a proper distinction, hasbeen drawn in some cases between a suit for recovery of value of cropswrongfully carried away by a defendant while in plaintiffs possession, and asuit for profits realized by the defendant after the plaintiff has beendispossessed. The former has been regarded as a suit for damage cognizable inthe Small Cause Court; and the latter for mesne profits cognizable only in theordinary Civil Courts : see the cases of Krishna Prosad Nag v. Maizuddin BiswasI.L.R. 17 Cal. 707, and Sriram Samanta v. Kali Das Dey I.L.R. 18 Cal. 316 [LQ/CalHC/1891/16] ; andthese cases were approvingly quoted by the Madras High Court in the case ofAnnamalai v. Subramanyan I.L.R. 15 Mad. 298.

24. In a suit for mesne profits, a question of title to theImmovable property, in respect of which such mesne profits are sought to berecovered, is often raised, and it is not desirable that such a question shouldbe, though incidentally, decided by that Court; and the Provincial Small CauseCourts Act has, in Section 23, provided that when the right of a plaintiff andthe relief claimed by him depend upon the proof of title to Immovable property,and the Small Cause Court cannot finally determine it, the Court may return theplaint for presentation to the Civil Court.

25. I should here add that the words in Article (31),"and a suit for the profits of Immovable property belonging to theplaintiff which have been wrongfully received by the defendant," mightalso include suits other than suits for mesne profits; but 1 need hardly saythat that is no reason to hold that a suit for mesne profits does not fallwithin those words.

26. With reference to Article (31), the question, to mymind, is not so much, whether a suit for mesne profits is. a suit for accountproperly so called, as it is, whether such a suit falls within the words"a suit for the profits of Immovable property belonging to the plaintiffwhich have been wrongfully received by the defendant;" I think, it does.

27. For these reasons I would answer the question referredin the affirmative.

Beverley, J.

28. Although I adhere to the opinion I expressed in the caseof Sriram Samanta v. Kali Das Dey I.L.R. 18 Cal. 316 [LQ/CalHC/1891/16] , that by the concludingwords of Clause 31, Schedule II of the Provincial Small Cause Courts Act, theLegislature intended to withdraw suits for mesne profits from the jurisdictionof Courts of Small Causes, still I am bound to admit that the wording of thatclause is not so explicit as to justify me in dissenting from the decision ofthe majority. ,

Banerjee, J.

29. The question that arises for determination in this caseis, whether a second appeal lies from a suit for mesne profits where the valueof the subject-matter in dispute is less than Rs. 500. If this question isanswered in the negative, the appeal must be dismissed. If it is answered inthe affirmative, the appeal will have to be heard and determined on the merits.

30. The answer to the question depends upon the constructionto be put on Article 31 of Schedule II of the Provincial Small Cause Courts Act(IX of 1887). If the suit comes within that Article, it is excepted from thecognizance of a Court of Small Causes, and so the second appeal is not barred.If, on the other hand, the suit does not coma under that Article, then, asthere is no other Article under which it can come, it is a suit of the naturecognizable in the Small Cause Court by Section 15, Sub-section (2) of Act IX of1887, and a second appeal in such a suit is barred by Section 586 of the Codeof Civil Procedure.

31. Article 31 of Schedule II of Act IX of 1887 runs thus:

Any other suit for an account, including a suit by a mortgagor,after the mortgage had been satisfied, to recover surplus collections receivedby the mortgagee, and a suit for the profits of Immovable property belonging tothe plaintiff which have been wrongfully received by the defendants.

32. Now a suit for mesne profits is, in most cases, a suitfor the profits of Immovable property belonging to the plaintiff which havebeen wrongfully received by the defendant, though the term mesne profits asdefined in the explanation to Section 211 of the Code of Civil Procedureincludes not only the profits which the person in wrongful possession of suchproperty actually received, but also those which he might, with ordinarydiligence, have received, therefrom. And as regards the former, the amount hasto be ascertained by taking an account of what the defendant has realized from,and spent for, such property, though, as regards the latter, the taking of anaccount may be unnecessary. Thus, though a suit for mesne profits is, strictlyspeaking, not a suit for an account, it is a suit in which in most cases anaccount has to be taken of profits received from, and expenses incurred in themanagement of, Immovable property.

33. The words "any other suit for an account includinga suit, &c," in Article 31 quoted above, mean, in my opinion,"any other suit for an account, taking the expression suit for anaccount as comprehending also a suit, &c." For if the wordincluding was meant to exclude everything that did not come within the strictsense of the expression suit for an account, then the specification of the twodistinct classes of suits that follows would be unnecessary.

34. In my opinion, therefore, a suit for mesne profits comesunder the last clause of Article 31, Schedule II of Act IX of 1887, and is.excepted from the cognizance of a Court of Small Causes, and so a second appeallies in such a suit, although it may be valued at less than Rs. 500.

* No second appeal in certain suits.

[Section 586: No second appeal shall lie in any suit of thenature cognizable in Courts of Small Causes, when the amount or value of thesubject-matter of the original suit does not exceed five hundred rupees.]

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Kunjo Behary Singhvs. Madhub Chundra Ghose(02.05.1896 - CALHC)