MUHAMMAD ISHAQ KHAN Vs. MUHAMMAD RUSTAM ALI KHAN

JUDGEMENT

(1.) This appeal arises out of a suit for mesne profits. A previous suit had been brought, in which possession of the land had been claimed. A. certain sum was also claimed as mesne profits for the period prior to the institution of the suit, There was a further claim for mesne profits during the pendency of the suit and after decree. The suit resulted in a decree for the plaintiffs for possession of the land and also a decree for a portion of the amount claimed by the plaintiffs for mesne profits. The rest of the plaintiffs claim was dismissed. On referring to the judgement it is quite clear that the court never dealt or purported to deal with the mesne profits during the pendency, of the suit or after decree. In the present suit mesne profits are claimed from the date of the institution of the suit up to the date of delivery of possession. The defence is that the decree in the previous suit operates as res judicata, and reliance is placed upon the provisions of Section 11, Explanation V. Section 11 provides that "No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties . . . in a court competent to try such subsequent suit." Explanation V provides that "Any relief claimed in the plaint which is not expressly granted by the decree shall for the purposes of this Section be deemed to have been refused." This explanation corresponds exactly with Explanation III of Section 13 of the old Code. Reliance is also placed upon the provisions of order II, rule 2, which provides that "Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action." The contention on behalf of the defendants is that the court in the previous suit not having granted mesne profits during the pendency of the suit and from the date of the decree up to the date of delivery of possession must be deemed to have refused it. Further, the decree ought to be interpreted as having expressly dismissed the suit in respect of mesne profits save to the extent that mesne profits were granted. The very same question had frequently arisen in the High Courts in India before the coming into operation of the present Code of Civil Procedure. All the courts appear to have held that, notwithstanding the provisions of the old Code, a suit for mesne profits pendente lite and from the date of the decree to delivery of possession could be maintained. This was expressly held in the case of Ram Dayal v. Madan Mohan Lal (1890) I. L. R., 21 All., 425. In that case, just like the present, there bad been in a previous suit a claim for mesne profits prior to the institution of the suit and also future mesne profits. Nevertheless the court held that the subsequent suit for mesne profits from the date of the institution of the suit up to delivery of possession could be maintained when the court in the previous suit had not decided the right of plaintiff to these mesne profits. We think that we are bound to fallow this decision, unless it is Shown that the Legislature, when enacting the present Code of Civil Procedure, altered the law. It is a recognized rule that where there have been decided cases before an Act is amended, if the amendment does not expressly show that the law as interpreted by the decisions is altered, the rule laid down by the decisions, is to be adhered to.

(2.) We now propose to consider whether the provisions of the Code of Civil Procedure of 1908 altered the law in respect of the matter with which we are dealing. Section 211 of the Code of Civil Procedure of 1882 provided that in a "suit for the recovery of possession of immovable property yielding rent or other profits the court may provide in the decree for the payment of rent or mesne profits in respect of such property from the institution of the suit until the delivery of possession to the party in whose favour the decree was made."

(3.) It is to be noted that in this Section there is no reference to a claim in the plaint being made for mesne profits. Section 212 provided that where the suit was a suit for "possession of immovable property and for mesne profits which have accrued on the property during the period prior to the institution of the suit and the amount of such profits is disputed, the court may either determine the amount by the decree itself or may pass a decree for the property and direct an inquiry into the amount of mesne profits and dispose of the same on further orders."