Fazl Ali, J.This appeal arises out of a proceeding for ascertainment of mesne profits which was started upon the application of the plaintiff on the basis of a decree passed on 30th April 1929. It is common ground that the period for which the mesne profits are to be ascertained is the period from 12th Baisakh 1333 till the date of recovery of possession which was 18th October 1935. In AIR 1930 82 (Privy Council) , it was held that under the definition of "mesne profits" in the CPC the sum to be awarded is not what the plaintiff has lost by his exclusion from the land, but what the defendant has made or might with reasonable diligence have made by his wrongful possession. The Courts below have proceeded upon this principle and it has not been seriously questioned before us that the principle is applicable to the present ease. The point which is raised in this Court is a short one, but in order to understand it, it will be necessary to refer to certain facts.

2. The plaintiff had brought a suit for the recovery of possession of two annas out of 16 annas mukarrari interest in village Ukharmhi Tauzi No. 4858 with mesne profits. In the proceeding for the ascertainment of mesne profits one of the allegations made on behalf of the defendant was that

in fact the plaintiff continued in possession of the property and the delivery of possession which he got from Court was merely a paper transaction.

In other words, their case was that during the period for which the mesne profits had been claimed all the rents which were payable by the tenants for that period had been realised by the plaintiff himself and there, fore the defendants were not liable to pay any mesne profits to the extent those rents had been realised. The learned Subordinate Judge, who dealt with the application for the ascertainment of the mesne profits, appointed a commissioner to calculate the mesne profits after holding a local investigation. Before the commissioner the defendants filed two applications, one on 7th May 1938 for calling upon the plaintiff to produce the counter-foil receipts for the years 1332 to 1342 and another on 20th May 1938 for calling upon him to produce certain papers referred to in the application of that date. These papers were, to put the matter shortly, in the nature of collection papers and account books maintained by the plaintiff for the years 1331 to 1342 Fasli. The commissioner directed the plaintiff to produce the papers in question, but these papers were not produced. One of the plaintiffs servants gave an explanation for the non-production of the papers, but that explanation does not appear to have been accepted by the commissioner.

3. Now, the point which was raised by the appellants in the Courts below was that u/s 114, Evidence Act, it should be presumed as against the plaintiff that if the papers which had been called for by the appellants had been produced, they would have supported their case that in fact the rents for the period for which the mesne profits had to be ascertained had been collected not by the defendants but by the plaintiff in respect of the two annas share which was the subject of the litigation. Neither of the Courts below, however, was prepared to draw any such presumption against the plaintiff and what is now contended on behalf of the appellants is that the ground which has been given by the Courts for not drawing the presumption cannot be justified in law. The first Court dealt with the matter in this way. It was stated that upon the decree passed in the suit it was clear that the plaintiffs were not in possession during the period for which the mesne profits had to be ascertained and therefore the plaintiff could not be expected to have in his possession any collection papers for the period between 1322 and 1345 Fasli. The learned Subordinate Judge pointed out that u/s 106, Evidence Act, the onus was on the defendants to show the amount of mesne profits actually received by them, and that being so, it was for them to produce their own collection papers to prove the actual realisation of rent and they could not get round their own responsibility by simply asking the plaintiff to produce the village papers from 1332 to 1345, that is to say, for a period during which they had been held not to have been in possession. The learned District Judge approved of this reasoning but he also observed as follows:

As regards the non-production of papers by the plaintiffs it was certainly open to the defendants to call for documents from the plaintiffs if they wished to use such documents in evidence. For such purpose the procedure to be adopted was to get summons or notice issued through the Court. I find that no such summons or notice was ever given. The defendants, therefore, cannot ask that any inference should be drawn against the plaintiffs for failure to produce documents because the plaintiffs have never legally been required to produce them.

4. Now, if the last ground upon which the learned District Judge refused to draw any inference against the plaintiffs is found to be a good ground in law, then it seems to me that we cannot very well interfere with his judgment in a second appeal which has to be confined only to points of law. Advocate for the respondent has taken us through the rules of Order 11 to show that the view taken by the learned District Judge is the correct view. Order 11 relates to discovery and inspection of documents. Rule 12 provides that any party may without filing any affidavit apply to the Court for an order directing any other party to any suit to make discovery on oath of documents which are or have been in his possession or power relating to any question therein.

5. It further provides that upon hearing such an application the Court may either refuse the application if the discovery is not necessary or adjourn the same if the discovery is not necessary at that stage of the suit or make such order in regard to all or some of the documents referred to in the application of the party as may in the discretion of the Court be thought fit. Rule 13 provides that if the discovery is ordered the affidavit to be made by the party against whom the order is made should specify which of the documents he objects to produce and should be drawn up according to Form No. 5 of Appendix C with such variations as the circumstances of the case may require. Rule 14 provides that it shall be lawful for the Court at any time during the pendency of the suit to order the production by any party thereto, upon oath, of such of the documents in his possession or power relating to any matter in question in such suit as the Court may think and the Court is to deal with such documents in such manner as shall appear just. Rule 15 makes certain provisions in regard to the inspection of documents and Rule 16 lays down how the notice to produce that document is to be drawn up. Rule 21 lays down that where any party fails to comply with any order for discovery or inspection of documents he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution.

6. Now, it may be recalled here that in the present case the only step which was taken by the defendants was to ask the commissioner to direct the plaintiffs to produce certain documents. It is true that the commissioner did order the production of these documents and the plaintiff did not produce them. But it was still open to the defendants when the commissioners report was before the Court to press for the production of the documents by following the procedure laid down in Order 11 for the discovery of documents. The Court was not bound, to accept the commissioners report and in fact in this case it has not done so.

7. There was, however, nothing to prevent the defendants from asking the Court not to decide the case until the discovery had been ordered. The penalty prescribed in Rule 21 is of a very drastic nature and it seems only just that before it is imposed, the procedure laid down in Order 11 should be complied with. It is true that Section 114, Evidence Act, is a provision quite independent of the provisions of Order 11, but it is to be remembered that that provision is not mandatory and merely enables the Court to make a certain presumption in certain circumstances. Both the Courts below in this case refused to make any presumption and it cannot be said that the learned District Judge was in error in stating that he was not prepared to make the presumption because the procedure indicated in Order 11 had not been complied with.

8. In Ramakka v. Nagesam AIR 1925 Mad. 145 and several other cases it has been pointed out that although u/s 106, Evidence Act, the burden of proving the amount of mesne profits actually received is on the person receiving them, yet as regards the amount of profits that might with ordinary diligence have been received by the person in occupation, the burden of proving is on the person claiming it. It was contended on the strength of these cases that in the present case the plaintiff has not discharged the burden, because the plaintiff has not produced the papers for the years 1332 to 1342 Fasli. This argument cannot, in my opinion, avail the appellant, because it appears that the plaintiff did produce Ex. 2 series which were laggits of one of the co-sharers from 1832 to 1342 Fasli and it is stated by the learned Subordinate Judge that these laggits show the cash rent realised by one of the cosharers. The learned Subordinate Judge as well as the lower appellate Court considered that these laggits furnished a good basis for calculating the amount of rent which the defendants might with due diligence have realized. The result therefore is that even though we might have been of the opinion that the Courts below should have attached more importance than they have done to the fact that the papers which were called for by the defendants were not produced, we are powerless to interfere with the judgment under appeal because we are unable to say that it is vitiated by any error of law. The appeal therefore must fail.

9. I will now briefly deal with the cross-objection filed on behalf of the plaintiff which arises in the following circumstances. The defendants produced certain receipts before the Subordinate Judge in order to show that from some tenants at least the plaintiff had realized rent which was payable for a part of the period for which mesne profits had to be ascertained.

10. The learned Subordinate Judge was of the opinion that no reliance could be placed upon those receipts. The learned District Judge, on the other hand, held that the defendants were entitled to credit for the sums which had been realised under two of the, receipts, these being Exs. A-2 and A-3. It was contended on behalf of the plaintiff that the learned District Judge was in error in thinking that payments under these receipts related to the period for which mesne profits are claimed. This contention seems to be correct; but at the same time it is pointed out on behalf of the defendant-appellants that some of the other receipts which were filed on their behalf show that small amounts were realised by the plaintiff for the period in question. The amounts so realised were calculated by the learned advocates for the parties in this Court and they are both agreed that they came to about Rs. 20 and the learned advocate for the plaintiff consents that this amount may be deducted from the decree made by the Subordinate Judge. The cross-objection is therefore partly allowed and it is directed that the sum of Rs. 20 be deducted from the decree passed by the Subordinate Judge.

11. In other respects the decree of the lower appellate Court will be upheld.

12. Another point which was raised on be, half of the plaintiff was that the decree prepared in the appellate Court was not in conformity to the judgment and should, therefore be corrected. The decree of the trial Court provides among other things that the amounts ascertained as mesne profits and costs were to carry interest at the rate of six per cent, per annum from "this date" to the date of realization. There can be ho doubt that the words "this date" referred to the date of the judgment of the trial Court which was 8th February 1939. This provision in the decree was never altered by the lower appellate Court but in the decree which was prepared in that Court, the words "this date" were copied by mistake with the result that the decretal amount according to this decree would carry interest not from the date of the decree of the first Court but from the date of the decree passed by the District Judge which was 10th February 1941.

13. The mistake which is apparent should in my opinion be corrected and it should be made clear that the amount will carry interest from the date of the decree of the first Court. In the circumstances of the case, I would direct that the parties should bear their own costs in this Court.

Shearer, J.

I agree.