Case: Chitturi Subbanna Vs. Kudapa Subbanna &amp; Others

Kudappa Subbanna, plaintiff No. 2 and respondent No. 1 here, was held entitled to the properties mentioned in schedules A and C and to 1/24th 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 theThe properties in Schedule B were first to be divided in accordance with the shares specified in para. 9 of the plaint and the decree holder 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 properties in Schedules A and C was delivered to theon February 17, 18 and 20, 1948. On June 23, 1945, thefiled 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 of on September 25, 1944. On July 28, 1948, the Subordinate Judge decreed the mesne profits and interestfor the period48 with respect to the A and C schedule properties. The amount decreed was Rs.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.2. On April 22, 1949, Chittoori Subbanna, 1st defendant, appealed to the High Court. Thens and claimed Rs. 19,000 more stating that the amount of mesne profits actually due to him would be about Rs.45,000 but he confined his claim to Rs. 19,000 only.3. On September 13, 1958, the High Court dismissed the appeal, but allowed thethe 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.and, consequently, the amount of interest also increased. Chittoori 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 thein dispute was over Rs. 10,000.4. Chittoori 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 secondto file a suit for the recovery of mesne profits beyond the three years upto the date of delivery of possession.his 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 to make an enquiry as to the mesne profits 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."50. No further appeal was taken by the first respondent, who is the appellant before us, against whom the decree passed.51. 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 15, 1948.52. 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 observedfar 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 mentionedappellant preferred an appeal from the 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 mensne 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 in 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 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 observedthe 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 ofas 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 thepreferred by the first respondent in which he claimed enhancement of the amount of mesne profits. The High Court dismissed the appellants appeal and partially allowed thepreferred 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.

Reasoning: We agree with this contention.The question sought to be raised was 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.5. The appellant could not have claimedand did not claima right to urge the new point which has 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., 1920 AC 102   at p. 106, to thein 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 theutmost that can be said is that both the parties theor, 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 question at the trial Court, does not mean that he had given his consent for the determination of mesne profitsfor the periodsubsequent 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 upto the date of delivery of possession is an order based on the consent of the parties.12. 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.In the present case the appellant did a not let the Trial Court determine the question of the period upto 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.15. The Commissioner conducted the enquiry about mesne profits from August 29, 1946 till December 4, 1947. Suits for mesne profitseen March 7, 1941 and February 28, 1943 could not be instituted in August 1946 as the period of 3 yearshe institution of a suit formesne 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 decreedfor the periodsubsequent to March 7, 1941 therespondent 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 appellants raising the new ground at the hearing of the appeal.16. We are, therefore, of opinion that the High Court was in error in not allowing the appellant to urge this additional ground beforehave already held that the appellants conduct did not amount to his consenting to mesne profits being decreedfor the periodsubsequent to March 7, 1941.18. 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 tothe institution ofa suit for the recovery ofpossession of immovable property and mesne profits. It is not disputed for the respondentthat R, 12, O. 20, does not empower a Court to direct an inqury 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 thisprecedent case law is in favour of thent. 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.19. 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 awarded have been considered to be matters of construction and had been construed in accordance with the law at the relevantprinciple enunciated in this case about the construction of the decree for mesne profitsfor the periodof 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 awardedfor the periodof 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.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 thoseobject 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 forat the stage of the preparation of the final 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.27. The preliminary decree directed an inquiry about the mesne profits from the date ofthe institution ofthe suit upto the date of delivery of possession to ther could not have felt aggrieved against this order. Thecould 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 thehe institution ofthe 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 thewould be entitled to get mesne profits. No such point can be raised before it. Theliability to mesne profits arose under the ordinary law and a suit for realizing mesne profits could be separately filed by theThe 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 theIt 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).28. The direction in the preliminary decree cannot operate, in terms of S. 11, 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 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.29. We, therefore, hold that the judgmentdebtor 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.30. 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 frominstitution of the suit untilthe actual delivery of possession of the property to theor 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(1) of R. 12 will determine the period for which mesne profits would be payable to theEither, 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 profit 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 the final decree follows in due course while in fact no possession had been delivered by them. It would not be possible for the judgmentdebtor 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 onlyfor the periodof 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.31. Lastly, we may draw attention to a possibility of thegaining 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 theafter the passing of the decree. Such a case was ILR (1959) 1 All 114 : (AIR 1959 All 242  ).32. 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 thein this case cannot get mesne profitsfor the periodsubsequent to March 7, 1941 when the three years period from the date of the High Court decreeare 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 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 allowancefor the periodof 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 ratefor the periodof ten years. It fixed one ratefor the period1926 to 1940 and another ratefor the period1941 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 Judgefor the periodhe 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. 1.39. 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 itlearned Subordinate Judge stated in paragraph 18 that garden crops could be grown on the surroundingis not a very precise summing up of what the Subordinate Judge had said in para. 18 of hisSubordinate 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 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 thisHigh 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 rate from 1941 onwards.In view of what we have said above, we are unable to say that 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 Schedules A and C and, especially,for the periodbetween 1926 and 1940.47. 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 arefor the periodbetween 1926 and 1943  that any further enquiry about mesne profits would further put off a final decree for mesne profits. In view of such consideration, learned counsel for the appellant had expressed, without prejudice, his clients 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 decreeholder 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.