ATMARAM BHASKAR DAMLE Vs. PARASHRAM BALLAL KELKAR

JUDGEMENT

(1.) The plaintiff .sued to recover on account of profits of the plaint lands Rs. 150 for the three years 1915, 1916 and 1917 as per decree in Suit No. 35 of 1916.

(2.) There was a partition suit in which partition was asked for and possession with a claim not only for past mesne profits, but also for future mesne profits. The decree which granted partition made no reference to future profits although prior profits were awarded. The trial Court allowed the plaintiff s claim, saying that "because the Court did not notice it, it does not follow that plaintiff must lose future profit;;". This decree was reversed by the District Judge on the ground that as future profits were expressly asked for and had not been expressly granted by the decree, the case came within Explanation V to Section 11 of the Civil Procedure Code. Therefore the claim should, for the purposes of that section, be deemed to have been refused. At first- sight that would seem to be the obvious meaning of Explanation V. But we have been referred to two decisions, one Doraisivami Ayyar v. Subramania (1917) I.L.R. 41 Mad. 188 F.B. and the other Muhammad Ishaq Khan v. Mnhantmud Rustam All Khan (1918) I.L.R. 40 All. 292 in which the contrary was decided. A distinction was made between a claim for past profits and a claim for future profits, because the claim for the latter would not have accrued when the suit was filed.

(3.) It was held that the word relief in the Explanation meant relief arising out of the cause of action which had accrued at the date of suit and on which the suit was brought and did not include relief such as mesne profits accruing after the date of suit as to which no cause of action had arisen. We have not been referred to any decision of this Court on the point. No doubt there are authorities to the effect that the relief claimed must have been one which the Court was bound to grant and not one which it was discretionary with the Court to grant, but I see no logical basis in this case for such a distinction. The authorities with regard to future mesne profits which are cited by Mr. Mulla at p. 60 (5th Edition) of his Commentary on the Civil Procedure Code of 1908 are all cases under the Code of 1882. Granted that a claim for future profits can be made by a plaintiff, and can be granted by the Court in its decree, then it is difficult to see, with all due respect to the learned Judges who decided in favour of the opposite view in the cases I have referred to, why a claim for future profits, if made, cannot be considered as relief claimed in the plaint within the meaning of Explanation V. Under the Code of 1882 the amount of mesne profits had to be determined in execution proceedings and Section 244, which dealt with the questions which had to be decided by the Court in execution of a decree and not by a separate suit, enacted by Clause (c) that nothing in that section should be deemed to bar a separate suit for mesne profits accruing between the institution of the first suit and the execution of the decree therein, where such profits were not dealt with by such decree. That is to say, I presume, in execution of such decree. Therefore it could be deduced from that clause that even if future profits were claimed but were not dealt with by the decree, then in spite of Explanation III to Section 13 which corresponded to Explanation V of Section 11 of the Code of 1908, a separate suit for future profits was not barred. That clause does not appear in Order XX, Rule 12 the corresponding provision in the Code of 1908, and there must be some very cogent reason for its not having been re-enacted. That rule deals with the question what the Court may decree in a suit for the recovery of possession of immoveable property. It was for the first time provided that the Court might direct an inquiry as to future profits and then a final decree would be passed in accordance with the result of such inquiry. Now it appears to me that the last clause of Section 244 of the Code of 1882 was not re-enacted because there was no longer any necessity that the bar against multiplicity of suits provided by Section 11 should not apply to claims for future profits if made. The question whether a subsequent suit for future mesne profits would lie was decided in the affirmative under the Code of 1882 in Sheo Kumar v. Narain Das (1902) I.L.R. 24 All 501 Whether such a suit, if the claim has not been made in the fresh suit, will still lie, considering the provisions of f Order II, Rule 2 and the alterations made in the Code of 1908, Order XX. Rule 12, remains to be decided. On the whole I prefer to agree with the opinion expressed by Mr. Justice Ayling in Doraiawami v. Subramania (1917) I.L.R. 41 Mad. 188 adhering to the decision of himself and Mr. Justice Hannay in Ramasami Iyer v. Srirangaraja Iyengar (1914) 2 L.W. 8. It appears to me desirable to give its plain meaning to Explanation V of Section 11, so that in this case the plaintiff having claimed future mesne profits and the Court having in its decree said nothing with regard to the future profits, we must take it that the Court refused to grant them.