peals from the judgments and decrees dated the 23rd February 1945 of the High Court of Judicature at Calcutta Akram and Blank JJ in Second Appeals Nos 861 to 885 of 1939 from the judgments and decrees dated the 16th December 1938 of the Court of the District Judge Birbhum in Title Appeals Nos 23 to 47 of 1938
Sitaram Bannerjee Arun Kumar Dutta and Amiya Kumar Mukherjee with him for the appellant in Civil Appeals Nos
68 to 74 of 1951
Urukramdas Chakravarthy section N Mukherjee with him for the respondent No 1 in Civil Appeals Nos
68 to 74 of 1951
Sitaram Bannerjee Arun Kumar Dutta and Amiya Kurnar Mukherjea with him for the appellant in Civil Appeals Nos
75 to 92 of 1951
Panchanan Ghose Chadra Nath Mukherji with him for the respondents Nos 1 to 3 in Civil Appeals No 75 to 92 of 1951
April 2
The Judgment of the Court was delivered by MAHAJAN J
These appeals are directed against the judgment and decrees of the High Court of Judicature at Calcutta dated 23rd February 1945 reversing the judgment and decrees passed by the District Judge of Birbhum dated 16th December 1938
The principal questions for determina tion are the same in 102 784 all of them and can be conveniently disposed of by one judgment
It is necessary to set out briefly the history of this half a century old litigation I The seven suits out of which arise Appeals Nos
68 to 74 were filed in September 1904 by Maharaja Bahadur Singh in the court of the differ ent Munsifs at Rampurhat against Raja Ranjit Singh Bahadur deceased and others for a declaration of his title to the lands mentioned in the different suits and for mesne profits from the year 1899 till recovery of possession
It was alleged that the lands in the several suits were chowkidari chakran lands within the plaintiff s patnidari granted to his predecessors in interest on 14th November 1853 by the ancestors of the defendant that as the lands were in the possession of village watchmen on service tenures they were excluded from assessment of land revenue and no rent was paid on them that in the year 1899 under the provisions of sections 50 and 51 of Bengal Act VI of 1870 Government resumed the lands terminated the service tenures and settled them with the zamindar that in this situation the plaintiff as patnidar became entitled to their actual physi cal possession that the zamindar wrongfully took physical possession of them and denied the right of the plaintiff and hence he was entitled to the reliefs claimed
The suits were decreed on 17th August 1905 and 19th August 1905 by the two courts respectively and the decisions were affirmed on appeal by the District Judge
On special appeal to the High Court the suits were remanded for trial on the ques tion of limitation and after remand they were dismissed by the trial court and the Court of appeal as barred by limita tion
On second appeal it was held that the suits were within limitation and were then decreed for the second time
This decision was affirmed on appeal to His Majesty in Council
The plaintiff actually obtained possession of the lands involved in these suits in August 1913
An applica tion was made for ascertainment of mesne profits on 785 6th November 1918
This was resisted by the defendant and it was pleaded that the plaintiff was not entitled to inter est on mesne profits that the zamindar was entitled to receive the profits of the disputed lands and that deduc tion should be made out of the amount of the mesne profits on account of munafa and the amount of chowkidari dues as well as cesses due to him or paid by him
Five years later on 24th June 1927 another set of objections was filed by the zamindar claiming deduction out of mesne profits by way of equitable set off of the payments made by him subsequent to the date of delivery possession as well as for the amount of munafa that became payable to him after that date
After a prolonged enquiry the trial court on 18th December 1937 decreed the plaintiff s claim for mesne profits after allow ing the zamindar the deductions claimed by him up to the date of assessment of mesne profits but disallowed the amount claimed by way of equitable set off for the subse quent period
The learned District Judge on appeal reversed this decision and allowed the defendant the amount claimed by him by way of equitable set off subject however to the condition that the dues of the defendant should be deducted from the dues of the plaintiff till the defendant s dues were wiped off
The relevant part of his judgment runs thus  The broad fact is that they plaintiffs have been in possession of the lands since 1910 and have been in enjoy ment of rent from the tenants from that date and according to law they are not entitled to possess the land uncondi tionally
Now that all the facts are before the court and the time has come for final adjustment of accounts between the parties the court should try to do substantial justice between the parties
It is not sufficient answer to say that the plea of equitable set off was not raised in the beginning
The circumstances in all these cases are pecul iar and it could hardly be expected that such plea would have been taken in the very beginning
The course of liti gation in these cases has not run along 786 easy and smooth channels on the contrary its course has been extremely tortuous and disturbed frequently by con flicting decisions
No one could have reason ably antici pated in the beginning that the litigation would be pro tracted in this extraordinary way
It is the duty of the court to take notice of the subsequent events in order to do justice between the parties 
As we are dealing with the question of equitable set off no question of time barred debts or unascertained sum can arise 
The plea of equitable set off in respect of time barred debts can be set up as a shield by way of defence nor can any question of payment of court fees arise
There is in my opinion no substantial difference in the character of the respective parties during the entire period and it would be futile to make an attempt at distinction by oversubtle argument where there is really no difference in substance
There is considerable force in the argument advanced on the side of the appellant namely the appellant s claim to the equitable set off is really in the nature of cross demand arising out of the same transaction and connected in its nature and circumstances 
From whatever standpoint the matter may be looked at I am of the opinion that the claim of the appellant for equitable set off for the subsequent period by way of deduction of the chowkidari revenue and cess paid by him as well as on account of munafa should be allowed
This amount will also carry interest at 6 per cent per annum up to date
The subsequent period means the period since the date of delivery of possession up to 1927 28
 Against the judgment and decrees of the District Judge the plaintiff preferred appeals to the High Court at Calcut ta
The High Court by the judgment under appeal modified the decrees of the District Judge and disallowed the claim for equitable set off in its entirety for the subsequent period and restored the decree of the trial court
The zamindar filed applications for leave to appeal to His Majesty in Council
These applications were consolidated with similar applications filed in the second batch of suits
A certifi cate 787 was granted for leave to appeal to His Majesty in Council
By an order dated 9th June 1947 all the appeals were admitted and it was directed that the proceedings be printed and
transmitted to England
During the pendency of the proceedings in the High Court Raja Bhupendra Narayan Singh died and the present appellant was impleaded as his heir and representative
An application was also made in the High Court for permission to urge additional grounds not already taken
After the abolition of the jurisdiction of the Privy Council these appeals were transmitted to this Court
An application under Order XIX rule 4 of the Supreme Court Rules was presented at the hearing of the appeals that the appellant be allowed to urge the following additional grounds in support of the appeals viz  1 That the munafa rent should not be calculated on the basis of the principles laid down in Radhacharan vs Maharaja Ranjit Singh1
2 That the said munafa should have been assessed on a fair share of the profits from the land
The second batch of appeals Nos 75 to 92 of 1951 arises out of 18 suits instituted in the court of the Munsif of Rampurhat on 22nd December 1909 by Ganpat Singh and Narpat Singh predecessors in interest of respondents 1 to 3 against the predecessor in interest of the appellant late Raja Ranjit Singh Bahadur and also some other persons who were tenants under him for a declaration of the plaintiffs  title to the resumed chowkidari chakran lands and for khas possession of the same and for mesne profits
The allega tions in these suits were the same as in the first set of suits
The defence to the suits was also the same
The suits were decreed by the trial Judge on 30th September 1910 in the following terms  The plaintiffs  title is declared to the lands in suit and they will get khas possession of the same by ejecting the tenant defendants on condition of paying 1 788 to the defendant No 1 an additional rent to be deter mined on the principle that the original patni rent should bear the same ratio to the patni rent now payable by the plaintiffs as the original Hustbood at the time of the creation of the patni should bear to the present increased Hustbood or any other fair and equitable rent which may be determined at the time of assessing the mesne profits
The plaintiffs will get Wasilat from defendant No 1 up to the date of delivery of possession of the land in suit to them
The amount will be determined in a separate enquiry The District Judge on appeal remanded the cases for determination of the conditions and terms under which the patnidar was to hold the lands under the zamindar and directed ascertainment of profits
The plaintiffs ob tained delivery of possession of the lands in the mean while on 23rd November 1910
Against the remand order appeals were preferred to the High Court and the High Court decreed the appeals in these terms  We set aside the portion of the decision of the Dis trict Judge which remands the cases to the original court to determine the conditions under which the patnidar is to hold the lands under the zamindar
Rest of the remand order will stand
That portion of the Munsif s decree which imposes on the appellant as a condition of obtain ing khas possession the payment of additional rent to the zamindar will be set aside
 Against these decrees appeals were preferred to His Majesty in Council by special leave
The Privy Council set aside the decrees of the High Court and observed as follows  Their Lordships therefore see no reason for inter fering with the long series of authorities commencing as far back as the year 1900 which have established the right of the zamindar to have an additional rent fixed for such lands nor can their Lordships overlook the fact that in the cases already referred before this Board no exception was taken by the patnidar to the 789 fixing of such rents as a condition of being put into pos session
 On 8th December 1922 the plaintiffs filed applications in these suits for ascertainment of mesne profits for the years 1906 to 1910
Objections were taken on behalf of the defendant on the 17th April 1923 and it was contended that the plaintiffs may be allowed mesne profits to the extent of the amount that would be found due after deduction of the amount of rent to which the defendant was entitled in re spect of the lands in suit according to the judgment of the munsif
On the 28th May 1927 another application was filed by the zamindar claiming deduction by way of equitable set off of the amounts due to him for rent from 1910 onwards and on account of subsequent payment made by him towards revenue and cesses
After a prolonged enquiry the munsif ultimately on the 18th December 1937 decreed the plaintiff s claim for mesne profits after allowing deduc tions for the amounts claimed by the defendant up to the date of delivery of possession
He held that the appellant was not entitled to get any amount by way of equitable set off in respect of sums of money spent by him in payment of revenue and cesses or for the amount of munafa or profits for the period subsequent to the date of delivery of posses sion
The District Judge on appeal by his judgment dated the 16th December 1938 allowed the claim of equitable set off for the period subsequent to delivery of possession and directed that from the plaintiffs dues the dues of the defendant are to be deducted and if after these deduc tions any sum is due to the plaintiffs they will get a decree for that sum
If it is found on calculations in some cases that the dues of the defendant exceed the dues of the plaintiffs in such cases the prayer of the plaintiffs for mesne profits must be dismissed
 Against this decision special appeals were preferred to the High Court and by the judgment under appeal the decision of the trial court was restored
Applications were then made for leave to appeal to His Majesty in Council and 790 those were allowed and a certificate was granted for pre ferring those appeals
Because of the abolition of the jurisdiction of the Privy Council those appeals are now before us for decision
The points for decision in all these appeals are the following  1
Whether the appellant is entitled to deduct by way of equitable set off from the amount of mesne profits the amounts due to him on account of rent revenue and cesses for the period subsequent to the dates of delivery of pos session
Whether interest should be allowed on the amount of mesne profits found due and if so at what rate
Whether the rent due to the appellant from the patnidar on those funds should be calculated on the basis of annual assets of the land as in Radhacharan vs Maharaja Ranjit Singh 1 or on a fair and equitable basis
The claim for set off for the period for which mesne profits were claimed has been allowed and is not in these appeals
As regards the amounts due to the appellant by way of rent subsequent to the date of transfer of possession the claim is unconnected with the subjectmatter of the different suits
It seems clear that a plea in the nature of equita ble set off is not available when the cross demands do not arise out of the same transaction
Mesne profits due to the plaintiff relate to the period during which the appellant was in wrongful possession of the lands and the amounts claimed by the defendant relate tO a period when he was no longer in possession and had ceased to be a trespasser
No mesne profits are claimable for that period
The right of the appellant to recover additional rents from the plaintiff arises out of a different cause of action and independently of the claim for mesne profits
If the patnidar after having entered into possession had defaulted in the payment of the 1 191827 CL J 532 791 additional rents due for any period nothing stood in the way of the appellant from recovering the
in by appropriate legal proceedings
The prolongation of the enquiry for ascertainment of the mesne profits cannot support a claim for equitable set off for the period subsequent to the delivery of possession to the plaintiff
It is obvious that no claim for equitable set off against mesne profits during the pendency of the suits could be made for the sums deduction of which is now sought as the amounts had not then accrued due and his right to them had not yet arisen
The learned District Judge was in error in holding that the appellant s claim for equitable set off was in the nature of a cross demand arising out of the same transaction and connected in its nature and circumstances
He failed to appreciate that the transaction which led to plaintiff s demand resulted from the defendant s wrongful act as a trespasser while the transaction giving rise to the appellant s demand arises out of the relationship of landlord and tenant and the obligations resulting therefrom
A wrongdoer who has wrongfully withheld moneys belonging to another cannot invoke any principles of equity in his favour and seek to deduct therefrom the amounts that during this period have fallen due to him
There is nothing improper or unjust in telling the wrongdoer to undo his wrong and not to take advantage of it
Such a person cannot be helped on any principles of equity to recover amounts for the recovery of which he could have taken action in due course of law and which for some unexplained reason he failed to take and which claim may have by now become barred by limitation
It was contended that it was only after the decree of the Privy Council that the appellant s rights to the addi tional rent was finally established and till then no legal steps could be taken to enforce this demand
The contention is without force
The appellant s right to additional rent had been established by the decree of the trial court in execution of which possession passed from him to the patni dar
The Privy 103 792 Council only affirmed thisdecision
The patnidars under the decree were entitled to possession of the lands conditional on payment of the additional rent due for the period they had been out of possession
That condition having been fulfilled by adjustment of the appellant s claim against the mesne profits the decree must be held to have been satisfied thus completely settling the cross demands
The landlord s demand for subsequent rents has to be enforced in the ordinary way in the civil court if any default has been committed in the payment of these rents
This claim cannot for ever remain linked with the demand for mesne profits for any anterior period
The result is that the decision of the High Court on this point is maintained
On the question of future interest payable on the decretal amount the learned District Judge observed as follows  I may state however at this stage that if I were to rule out the fact that I am allowing the claim of the appel lant for equitable set off I would have allowed interest to the plaintiffs at the uniform rate of 4 per cent
per annum throughout ie from the beginning of the Washilat period up to date
As I am allowing the prayer for equitable set off I am of opinion however that interest at the usual rate at 6 per cent
per annum should be granted for the whole of this period
 The High Court disallowed equitable set off but yet maintained this decision
When the claim for equitable set off is being disallowed there is no justification for allowing future interest at the rate of more than four per cent
for such a long period particularly in a case where the plaintiff himself has not been prompt in getting the amount of mesne profits ascertained
The plaintiff did not even ask for an enquiry into this question for a period of about twelve years
Taking into consideration all the circumstances of the case we think that future interest should not have been allowed to the plaintiff in the several suits at a higher rate than four per cent
on the amount decreed in the various Suits by way of mesne profits
793 The appellant s last contention that the munafa rent should not be calculated on the principle laid down in Radhacharan vs Maharaja Ranjit Singh 1 but should have been assessed on a fair share of the profits of the land has no substance because the claim was not made in the grounds of appeal to the Privy Council and was not even mentioned in the additional grounds of appeal
It was for the first time made before us at the hearing and we see no valid grounds for entertaining it at this late stage
Moreover it seems to us that the claim has no substance in the absence of any evidence about the proportion the original patni rent bore to the revenue and cesses
For the reasons given above all these appeals fail except to the extent that the decree of the High Court is modified in that the amounts decreed by way of mesne profits in the various suits will bear interest at the rate of four per cent
instead of six per cent
The parties will bear their own costs in all these appeals
Appeals dismissed
Agent for the appellant in Civil Appeals No 62 to 74 and 75 to 92 PK Bose
Agent for respondent No 1 in Civil Appeals Nos
68 to 74 Ganpat Rai
Agent for the respondents Nos
1 to 3 in Civil Appeals Nos
75 to 92 Sukumar Ghose


Summary:
These appeals by special leave arose from applications made by the respondents who were employed as timekeepers in the time office of the Central Railway Workshop and Factory Parel Bombay claiming payment of overtime wages under the 4 of 1936
The case of the respondents was that they were workers within the meaning of section 21 of the LXIII Of 1948 and as such were entitled to overtime wages under section 59 of the said Act
Alternatively they urged that even if they were not workers within the meaning of section 21 of the said Act they would nevertheless be entitled to overtime wages under the section 59 by reason Of section 70 of the Bombay Shops and Establishments Act 1948 Bom
79 of 1948
The validity of the claim on both the grounds was disputed by the appellant
The Authority under the found that only four of the respondents who were required to do the work of progress timekeepers could claim the status of workers within the meaning Of section 21 Of the and the rest were merely employees of the workshop but the Authority accepted the alternative case made by the respond ents and directed the appellant to file a statement showing the overtime wages due to each of the respondents and ordered it to pay the same
Held that the Authority was right in the view that it took Of section 70 Of the Bombay Shops and Establishments Act 1948 and its decision must be affirmed
On a proper construction Of section 70 Of the Act it is clear that the first part of the section excludes a factory and its employees from the operation of the Act but the second part makes the relevant provisions of the applicable to them
The non obstante clause in the section shows that the employees in a factory although they might not be workers within the meaning Of section 21 of the  are entitled to claim overtime wages as provided for by that Act
It is not correct to say that section 4 Of the Bombay Shops and Establishments Act 1948 has the effect of excluding the operation Of section 70 Of the Act
Section 4 applies only to establishments and not to factories but even if it applied to factories 18 138 that cannot materially affect the application Of section 70 which is intended to operate not withstanding the other provisions of the Act
Consistently with its policy the Act which provides for overtime wages for employees in all establishments provides for overtime wages for employees in factories as well by making the relevant provisions of the applicable to them