BHUPENDRA KUMAR CHAKRAVARTI Vs. PURNA CHANDRA BOSE

JUDGEMENT

(1.) This appeal is directed against an order of remand made by the Court of Appeal below in a suit for recovery of mesne profits. The history of this litigation, which has now lasted for twelve years and has unfortunately not yet come to an end, will be found narrated in our judgment in Bhupendra Kumar Chakravarti v. Puma Chandra Bose 8 Ind. Cass. 34 : 13 C.L.J. 132 : 15 C.W.N. 506. delivered at an earlier stage of these proceedings. The suit was commenced by the respondent on the 12th April 1902 in the Court of the Munsif of Baruipur. The claim was for recovery of possession of land, for mesne profits antecedent to the suit and for mesne profits pendente lite. In so far as the claim for possession was concerned, the plaintiff obtained a decree in the Court of first instance which was confirmed on appeal by the Subordinate Judge and ultimately by this Court. We are not concerned at this stage with the claim for possession as the decree in that respect has been executed and the plaintiff restored to possession on the 15th July 1907. The plaintiff subsequently applied to the primary Court for assessment of mesne profits and estimated the value of his, claim at Rs. 75,510. In this proceeding, it was held by this Court in the judgment, already mentioned that the Munsif had no power to entertain a claim in excess of his pecuniary jurisdiction. The plaintiff then abandoned the claim for mesne profits antecedent to the suit and restricted himself to the mesne profits pendente lite. Thereupon this Court ordered that the plaint, in so far as it embodied a claim for mesne profits from the institution of the suit on the 12th April 1902 to the delivery of possession on the 15th July 1907, be returned to the plaintiff for presentation to the proper Court,, that is, the Court of competent pecuniary jurisdiction. The plaint was returned to the plaintiff under this order on the 30th March 1911 and he presented it in the Court of the Subordinate Judge on the following day. It is necessary to state here that in the plaint as originally drawn up the value of the land in dispute had been fixed by the plaintiff at Rs. 686 and the mesne profits antecedent to the suit had been approximately estimated at Rs. 200 the mesne profits pendente lite had not been estimated even approximately, because the plaintiff could not make such an estimate as he could not anticipate at that stage the time which might elapse before he could obtain delivery of possession in the event of his ultimate success. But when the plaint after it was returned to him was presented to the Subordinate Judge, the plaintiff was in a position to estimate approximately the mesne profits pendente lite to which alone his claim was then restricted. The plaintiff also did not state in the plaint, as he was bound to do under Rule 6 of Order VII of the Code, the ground upon which he claimed exemption from the law of limitation. These defects were noticed by the Subordinate Judge and the plaintiff was called upon to remedy them. The amendment was not made and ultimately the plaint was rejected under Clauses (c) and (d) of Rule 11 of Order VII of the Civil Procedure Code. That rule provides that the plaint shall be rejected where the relief claimed has been undervalued and the plaintiff on being required by the Court to correct the valuation within the time to be fixed by the Court, fails to do so, or where the suit appears from the statement in the plaint to be barred by any law. The plaintiff appealed to the District Judge and contended that no question of limitation could arise as the proceedings before the Court were really a continuation of the proceedings begun in 1902. The District Judge gave effect to this contention and further held that Section 14 of the Indian Limitation Act governed that matter, although no reliance had been placed by the plaintiff on the provisions of that section. As regards the question of valuation and Court-fees, the District Judge held that the plaintiff was entitled to value the claim for mesne profits at Rs. 1,200, as he proposed to do quite arbitrarily, and that if the Court-fees were paid on the basis of that valuation, the plaintiff could proceed to the trial of the suit. The District Judge, however, added that if the mesne profits were found to exceed Rs. 1,200 considerably and it transpired in the end that the suit was grossly under valued, it would be dismissed. In this view, the District Judge allowed the appeal presented to him and remitted the case to the Subordinate Judge for trial. The propriety of this order of remand is now assailed before this Court on behalf of the first defendant. Two questions require examination, namely, first, whether the plaintiff is bound to value his claim approximately and to pay Court-fees on the basis of such valuation and, secondly, whether the claim is barred by limitation. The solution of both these questions depends upon the determination of one fundamental point, namely, whether the proceedings before the Subordinate Judge are a continuation of the proceedings instituted before the Munsif in 1902 or whether the plaint, when presented to the Subordinate Judge after it had been returned to the plaintiff, initiated a new suit. On behalf of the plaintiff it has been contended that for purposes of payment of Court-fees as also the determination of the question of limitation the proceedings before the Subordinate Judge should be treated as a continuation of the proceedings in the suit before the Munsif. If this contention, is well- founded, it is plain that the plaintiff is not liable to pay Court-fees on the plaint nor does any question of limitation arise. It was ruled in the cases of Ramkrishna Bhikaji v. Bhimabai 15 B. 416, Maiden , v. Janakiramayya 21 M. 371. and Bunwari Lal v. Daya sunker Misser 1 Ind. Cas. 670 : 13 C.W.N. (sic) that Court-fees cannot be levied in respect of a claim for mosne profits pendente lite. On behalf of the plaintiff reliance lias been placed upon this doctrine and it has been argued that after the return of the plaint and its presentation in the Court of the Subordinate Judge, he occupies precisely the same position as he would have occupied if that order had never been made and the question of mesne profits had been determined by the Munsif. If this view is well founded it is clear that no question of limitation also can arise. But the contention is manifestly unsound. It was held by this Court on the last occasion when the matter came before us that the Munsif had no jurisdiction to entertain a claim for mesne profits in excess of the limits of his pecuniary jurisdiction. If effect had, been given to this view, the plaintiff would have found himself in a position of inextricable difficulty. His application for assessment of mesne, profits was bound to be dismissed. But ho prayed for an opportunity to have the question of mesne profits investigated by a Court of competent jurisdiction. We decided to give him this opportunity and directed that the plaint, in so far as it embodied a claim for mesne profits pendente lite, that is, from the date of the institution of the suit on the 12th April 1902 to that of delivery of possession on the 15th July 1907, be returned to him for presentation to the proper Court, namely, the Court of competent pecuniary jurisdiction. He has availed himself of that order and has presented the plaint in the Court of the Subordinate Judge who is competent to deal with a claim for mesne profits of any amount. The presentation of the plaint in the Court of competent jurisdiction must, however, be deemed to be the institution of a new suit. It is impossible to adopt the principle that the institution of a proceeding in a Court which has no jurisdiction to entertain it is a valid initiation of a proceeding, which may thereafter be continued on transfer in a Court of competent jurisdiction. This view is not opposed to the decision of Khellat Chunder Ghose v. Nuseebunnissa Bibee 16 W.R. 47. which was explained in the case of Hedlot Khasia v. Ka Ran Khasiani 18 Ind. Cas. 377 : 15 C.L.J. 241. If the contention of the plaintiff were to prevail, Section 14 of the Indian Limitation Act would be superfluous. When a proceeding has been initiated in a Court which has no jurisdiction to entertain it and is, therefore, followed by a proceeding properly framed and instituted in a Court of competent jurisdiction, the question of limitation must be determined with reference to the point of time when the proceeding is instituted in the competent Court, although the plaintiff may be entitled to escape from the bar of limitation with the help of Section 14 of the Indian Limitation Act. We hold accordingly that the presentation of the plaint in the Court of the Subordinate Judge operated as the institution of a new suit for recovery of mesne profits.

(2.) The principle just explained indicates at once that the contention of the plaintiff upon the question of Court-fees must be overruled. The reason why a plaintiff is not required to value approximately the amount of mesne profits pendente lite and why he is not called upon to pay Court-fees thereon, does not exist in the present instance. When the proceeding was instituted before the Subordinate Judge the entire amount of mesne profits had accrued due and the plaintiff was in a position to value the amount claimed by him, at least approximately : In these circumstances, the principle laid down in Rule 2 of Order VII of the Code of 1908 applies. The second paragraph of that rule provides that where a plaintiff sues for mesne profits, the plaintiff shall state approximately the amount sued for. The plaintiff in this Court has stated that he approximately values his claim for mesne profits at Rs. 10,000. Consequently the plaint must be amended and the plaintiff called upon to pay Court-fees on the valuation now approximately made. He will, no doubt, be liable hereafter, if he is ultimately successful, to be called upon to pay Court-fees in accordance with the provision of Section 11 of the Court Fees Act, 1870.

(3.) As regards the question of limitation, we are not in a position to determine whether the facts necessary to make Section 14 applicable have all been established. The District Judge has not dealt with this part of the case in detail, and there is nothing to be found in his judgment on this point except the casual observation that Section 14 of the Limitation Act applies. It may be pointed out that in order to make Section 14 applicable, the plaintiff has to establish that he has in good faith prosecuted another proceeding in a Court which was not able to entertain it from defect of jurisdiction. The plaintiff has stated in this Court that he values his property at 15 times the annual profits, which he estimates at Rs. 2,000 a year : in other words, according to the plaintiff, the value of the property in dispute is at least Rs. 30,000, although he , instituted the suit for possession in the Court of the Munsif on the allegation that the value of the subject-matter was Rs. 668. Whether, in view of this, the plaintiff can be deemed to have prosecuted in good faith the previous proceeding, is a question which must be determined by the Subordinate Judge with regard to all the circumstances of the case. The rule of limitation applicable to the case is contained in Article 109 of the second Schedule of the Limitation Act, and if the plaintiff is not able to avail himself of Section 14 or of some other pro vision to which our attention has not been drawn, the whole of the claim would obviously be barred by limitation.