BIPUL BEHARI CHAKRAVARTY Vs. NIKHIL CHANDRA CHAKRAVARTY

JUDGEMENT

(1.) This rule which was obtained on behalf of the plaintiff relates to a suit in which the plaintiff claimed mesne profits for the years 1332 to 1334 B.S. a period subsequent to the period when ha obtained a decree for khas possession in title Suit No. 102 of 1921 brought by him in the Munsif's Court at Brahmanbaria. His case is that he took delivery of possession of the land decreed to him in that suit on 25 February 1923 which corresponds to 12 Falgoon 1334 B.S. He. consequently asks for recovery of mesne profits from 1332 up to 1334 Falgoon the date of his taking possession. The defendants took a preliminary objection that the claim for mesne profits was barred by Section 11, Civil P.C., as there was a prayer in the previous suit for future mesne profits and as the decree in that suit No. 102 of 1924 was silent with regard to future mesne profits it must be held that the claim was disallowed. This preliminary objection prevailed with the Small Cause Court Judge who tried the suit and the Munsif exercising the Small Cause Court powers followed the decision of the Bombay High Court in the case of Atmaram Bhaskar V/s. Parashram Ballal [1920] 44 Bom. 954, in support of his view that plaintiff's suit was barred by the doctrine of res judicata. He accordingly dismissed the suit.

(2.) The plaintiff has obtained this rule and it is contended on his behalf that the decision of the Bombay High Court does not take the correct view and is opposed to decisions of the Madras High Court and the Allahabad High Court. It is further contended that the decisions were unanimous under the Code of 1882 that in circumstances like the present a fresh suit for future mesne profits would not be barred and that the change effected by the Code of 1908 does not in any way affect the decisions under the old Code. I think the contention of the petitioner is sound and must be given effect to. It appears that in a series of cases under the Code of 1882 it was held in this Court that Section 13, Civil P.C., of 1882 did not bar a suit for future mesne profits which was claimed in a previous suit between the parties, but in regard to which the decree was silent, the mesne profits being for a period subsequent to the institution of the first suit. It is not necessary to refer to all the cases but reference may be made to one case as a type.

(3.) The case of G.S. Hays V/s. Padmanand Singh [1905] 32 Cal. 118, may so be referred to. The question for consideration is if there is any change in the Code of 1908 which justifies the view which has been taken by the learned Judges of the Bombay High Court in the ease which has been cited by the Munsif. It appears to me that the provision with regard to mesne profits was contained in Secs.211 and 212 of the Code of 1882 and Order 20, Rule 12 of the present Code is, in my opinion, substantially the same and all that has been done in the present Code is that the two sections of the old Code have been amalgamated into one. The Legislature when enacting the Code of 1908 was certainly familiar or must be taken to have been aware of the unanimity of the decisions of all the High Courts in India as to the view, viz., that a fresh suit for mesne profits would not be barred if the decree in the suit for recovery of possession is silent with regard to the same. It is a well-settled principle of construction that the legislature must be presumed to know not only the general principles of law but the constructions which the Courts have put upon particular statute and when a section of an Act which had received a judicial construction is re-enacted in the same words such re-enactment must be treated as a legislative recognition of the construction. If the Legislature had intended to overrule the unanimous decision of all the High Courts on the point I should think that it would have used clear and apt language for that purpose. Such intention would not be inferred indirectly or by mere implication. That being the position, I think the learned Judges of the Madras High Court took the right view and I agree with what has been said by Sir John Wallis, C.J., of the Madras High Court in this behalf in the case of Doraiswami Ayyar V/s. Subramania Ayyar [1917] 41 Mad. 188. The learned Chief Justice said: the word relief in the explanation means relief arising out of a 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 the suit as to which no cause of action had then arisen, but which the Court was nevertheless expressly empowered to grant. The explanation having been reproduced in exactly the same words, the presumption is that it was intended to have precisely the same effect. I do not find any sufficient indication to rebut this presumption in the fact that Secs.211 and 212 of the old Code were amalgamated to form Order 20, Rule 12. The change introduced by the new rule is that the award of mesne profits in all cases is to be preliminary decree, and that when ascertained they are to be embodied in a final decree, whereas under Secs.211 and 212 they were to be ascertained in execution. This change does not appear to me to affect the construction of Expln. 5. Section 11, nor do I think is affected by the omission in Section 47 of the new Code of the proviso to the corresponding Section 244 of the old Code.