TaxTMI 
TaxTMI 
1964 (12) TMI 46
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....rst 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 the properties in Schedules A and C was delivered to the decree-holder on February 17, 18 and 20, 1943. On June 23, 1945, the decree-holder filed 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 off on September 25, 1944. On July 28, 1948, the Subordinate Judge decreed the mesne profits and interest thereon for the period from 1926-27 to 1942-43 with respect to the A and C schedule properties. The amount decreed was Rs. 17,883-8-3 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. On April 22, 1949, Chitturi Subbanna, 1st defendant, appealed to the High Court. The decree-holder filed cross- objections and claimed Rs. 19,000/- more stating that the amount of mesne profits actually ....
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....ties 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 the appeal." In Yeswant Deorao Deshmukh v. Walchand Ramchand Kothari(2) this Court allowed a question of law to be raised at the hearing of the appeal even though no reference to it had been made in the Courts below or in the grounds of appeal to this Court. This Court said : "If the facts proved and found as established are sufficient to make out a case of fraud within the meaning of section 18, this objection may not be serious, as the question of the applicability of the section will be only a question of law and such a question could be raised at any stage of the case and also in the final court of appeal. The following observations of Lord Watson in Con- necticut Fire Insurance Co. v. Kavanagh ([1892] A.C. 473) are relevant. He said : 'When a question of law is raised for the first time in a court of last resort upon the construction of a document or upon facts either admitted or proved beyond controversy, it is not only competent but expedient in the interests of justice to ente....
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....of pure law can be urged at any stage of the litigation, be it in the court of the last resort. There was no question of the appellant's conceding before the Commissioner that mesne profits could be legally allowed up to the date of delivery of possession. No party had raised the question as to whether mesne profits could be allowed up to three years subsequent to the -date of the High Court decree or up to the later date when possession was delivered. When no such dispute arose, there was no question of the appellant's making any such concession. Similarly, no question of the appellant's electing to have the profits determined by the trial Court up to the date of delivery of possession could have arisen when no dispute about this matter had arisen between the parties. The utmost that can be said is that both the parties, the decree-holder and the judgment-debtor, 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 such objection before the Commissioner or the trial Court, does not mean that he had given his consent for the determination ....
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....n the point regarding the ouster of jurisdiction of the Court were before the House of Lords for decision. The prayer was rejected. The parties went on with the trial of this action and got a judgment of the Court upon the evidence on the matter in dispute between them. It was urged in the Court of Appeal that the Court had no jurisdiction to try that matter and that it could be determined only in arbitration. The Court of Appeal said that the Court was not deprived of its jurisdiction to determine the matters in dispute if neither party insisted on arbitration and that the parties ought not to be allowed to raise the point of jurisdiction. The reason given by Cotton, L.J., Lit p. 105, is stated thus "If when they can insist on the Court not going into the merits of the case and deciding questions between the parties, they abstain from doing so, and are defeated on the merits'. in my opinion it is too late to insist before the Court of Appeal on any right to object to the jurisdiction of the Court which they might have had if they had insisted on it in a proper way and at a proper time." In the present case the appellant did not let the trial Court determine the question of ....
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....te of the decree, whichever event first occurs. (2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry." It is urged that the direction in the decree for an inquiry into the mesne profits up to the date of delivery of possessions should be L4Sup.165-9 construed to mean a direction for an inquiry into the mesne profits up to the date of delivery of possession or up to three years from the date of the decree, whichever be earlier, as that would be consistent with what the law provides. In support of the contention, reference has been made to Girish Chunder Lahiri v. Shoshi Shikhareswar Roy(1) and to other cases which followed that decision. The contention for the decree-holder is that the preliminary decree directed the enquiry into the mesne profits from the date of the institution of the suit up to the date of delivery of possession and that this direction in the decree cannot be ignored, when inquiring into the mesne profits or when passing the final decree, even if it be not in full conformity with the law laid down in r. 12 of O. 20. It has also be....
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....n at such rate as the Court may think proper. It is to be seen that the Court was not merely to direct an enquiry about mesne profits and then to pass a decree as the present provisions require and that there was no limitation about decreeing mesne profits for a period of 3 years only from the date of the decree. Mesne profits could be decreed up to the delivery of possession. The decree was for mesne profits which were 'Lo be determined in execution. In Fakharuddin Mahomed Ahsan Chowdhry v. Official Trustee of Bengal(1) the High Court decree declared the plaintiff to be entitled to possession of the land mentioned in the kabinnama with wasilat from the commencement of Srabun 1267 and did not say in express terms the time up to which the wasilat were to be paid. The plaint was also not very clear in stating the time up to which wasilat were claimed. The Privy Council construed the decree to award mesne profits up to the delivery of possession as the reasonable construction would be that the Court, with a view to carrying out the object of the legislature, viz., the prevention of unnecessary litigation and multiplication of suits, intended to give, with possession, that wasilat ....
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....construe the decree when the actual language of the decree did not indicate the other terminus of the period for which mesne profits could be claimed. It was however not so in Girish Chunder's Case(4) where the decree provided that the decree holder would get mesne profits for the period of dispossession. Similarly in Godayarti Raja v. Ramachandraswami(5), Narayan v. Sono(6), Kunwar Jagdish Chandra v. Bulaqi Das (7 ) and Kanai Lal v. Shvam Kishore(8) the decree allowed mesne profits for the period of dispossession. It cannot be said that the decree in these cases was in any way vague or incomplete in the sense that its meaning was not clear. Yet in all these cases the Courts construed the decree in a manner as would make it in accordance with the law as laid down in r. 12, O.20, C.P.C. The decrees have been so construed not on account of the vagueness of the expressions used for decreeing mesne profits or directing the inquiry about mesne profits but on account of the fact that the decree for future mesne profits or directing enquiry about them is not based on the decision of any controversy between the parties but is made in the exercise of the discretionary power vested in....
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....e preliminary decree. The provisions of this section appear to be inapplicable to the present case. The preliminary decree directed an inquiry about the mesne profits from the date of the institution of the suit up to the date of delivery of possession to the decree-holder. The decree-holder could not have felt aggrieved against this order. The judgment debtor could 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 the plaintiff- decree holder before the institution of the 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 direc....
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.... cl. (c) of sub-r. (1) of r. 12 will determine the period for which mesne profits would be payable to the decree-holder Either, 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 profits 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 that the final decree follows in due course while in fact no possession had been delivered by then. It would not be possible for the judgment-debtor 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 only for the period of 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....
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....missioner divided the period of 17 years from Septem- ber 1926 to March 1943 into three periods, viz., 1926 to 1930, 1931 to 1940 and 1941 to 1943. The middle period between the years 1931 and 1940 was a period of depression and the last period was one in which prices of commodities had risen to some extent on account of World War 11. In view of these considerations, the Commissioner fixed the rate of profits from land differently for each period. 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 allowance for the period of 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 rate for the period of ten years. It fixed one rate for the period 1926 to 1940 and another rate for the period 1941 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 am....
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....s report shows that the plaintiff claimed mesne profits for the mango grove at Rs. 150 per acre up to 1940 and later at Rs. 200 per acre, and thus claimed about Rs. 94 a year up to 1940 and about Rs. 126 a year for the later period, the area of the item being .63 cents. The High Court could not be justified to award the mesne profits higher than what are claimed by the decree-holder. The third is that the finding of the High Court is not consistent with its reasoning with respect to items Nos. 10 and 11 which were pasture lands. The Commissioner suggested mesne profits at Rs. 10 per acre and said that tax on item No. 10 was at Rs. 6 per acre and on item No. 11 at Rs. 5 per acre. The Subordinate, Judge fixed mesne profits at Rs. 10 for the .95 acres in area and the proper tax for these items at Re. 1. The High Court raised the rate of mesne profits to Rs. 20 for the period up to 1940 and Rs. 30 for the subsequent period, but confirmed the finding about the amount of tax. In making this order the High Court seems to have been under some confusion, for, the basis of its increasing the profits seemed to be the fact that the tax on these items was Rs. 5, as it said : "He (the Subordi....
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.... given by the Subordinate Judge for fixing the monthly rent at Rs. 4 are, in his own words : "The Commissioner has however fixed the mesne profits for these items at Rs. 2 per month. The Union tax itself on this house appears to be Rs. 6-4-0 per year. The annual tax is generally equivalent to about 2 month's rent. The tax may be taken as a fairly correct basis for fixing the mesne profits. In that case, the rate fixed by the Commissioner is too low and I would fix the profits for these items at Rs. 4 per month." Items Nos. 1, 4 and 8 : The Subordinate Judge fixed the actual profits for the land comprised in these items at Rs. 35 per acre. His reasons were "It is seen from the evidence of R.W. 26 that the prices of land and maktas rose about 10 years after China Bapanna's death which took place in 1915. If this statement were to be taken as correct and if, according to Exhibits P 1O and P- 1 1, the rent realised by dry lands works out to Rs. 30 per acre, it cannot be said to be unreasonable or excessive to fix the profits on these dry lands at Rs. 35 per acre from 1925 onwards. It may also be remembered that prices rose after the close of the 1918 war. The Commissioner....
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....increased from 1925. In view of what we have said above, we are unable to say that the 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 Schedule A and C and, especially, for the period between 1926 and 1940. 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 are for the period between 1926 and 1943 and that any further enquiry about mesne profits would further put off a final decree for mesne profits. In view of such a consideration, learned counsel for the appellant had ex- pressed, without prejudice, his client's 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 fo....
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....dule properties being ascertained till 1946. The contest is only in regard to the quantum and not to the periods mentioned above." The appellant preferred an appeal from the final 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 mesne 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 hi 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....
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....r to be made, for a period longer than three years from the date of the decree and participated therein. The reason why a new ground ought not to be allowed to be raised at the hearing of an appeal has been so well stated by Lord Birkenhead in Wilson v. United Counties Bank Ltd.(1) that I need do no more than reproduce what he has said: "The object of indicating in detail the grounds of appeal, both to the Court of Appeal and to your Lordships' House, is that the respondent parties may be accurately and precisely informed of the case which they have to meet. Their efforts are naturally directed to the contentions which are put forward by the appellants. They are entitled to treat as abandoned contentions which are not set forth. lf in 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 the appeal. In the present case, both in the Court of Appeal and before your Lordships, entirely new contentions have been submitted on behalf of the defendants. The practice is extremely inconvenient and ought in my judgment to be disc....
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....or the trial court than to dismiss the suit on the ground of limitation if the plea was seriously raised before it. Had the point been pressed, it would not have been required to discuss in detail the various questions of fact pertaining to the merits of the case before it could dismiss the suit. In the plaint the respondents claimed that the period of limitation for the suit commenced on 15-2-1113 when the High Court dismissed the revision petition preferred by the respondents. The appellant has not stated that under Art. 47 of the Limitation Act, the period of limitation is to be computed not from the date of the revisional order but from the date of the original order. Had he done so, we have no doubt that the respondents would at least have placed on record by amending the plaint the date on which the plaint was instituted in the court of the Munsiff. Thus had the plaint been instituted in the court of the Munsiff say two months before the expiry of the limitation, the suit would have been within time on 4-3-1118 when the plaint was represented to the District Court, computing the period of limitation even from the date of the original order. Moreover, the appellants could well....
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....urt challenge its power to make the direction. In London Chatham and Dover Railway Co. v. South Eastern Railway Co. (s) all the Lords Justices of the Court of Appeal have emphatically said that an omission of a kind of which the appellant in this case is guilty must be treated as a waiver even of a plea of jurisdiction. In that case there was an agreement between the parties, two railway companies, which provided for a reference of all matters of difference between them to arbitration under the Railway Companies Arbitration Act. Section 26 of the Act required the court where one of the parties to the agreement insisted upon it, to give effect to and to act in accordance with the agreement, so far as the submission to arbitration was concerned. The defendant pleaded the arbitration agreement in defence while the plaintiff challenged its validity. A question was raised by the defendant about the competency of the court to adjudicate upon the validity of the agreement. 'Me trial Judge held in favour of the plaintiff and his decision was upheld by the court of appeal. The defendant took the matter to the House of Lords and while the appeal was pending there the case came up before ....
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....ave waived it as parties who have not done so." This is not an isolated decision, nor indeed does it lay down a novel rule of practice. It is right and proper that parties to a litigation should not be permitted to set up the grounds of their claims or defence in driblets or at different stages and embarrass the opponents. Considerations of public policy require that a successful party should not, at the appellate stage, be faced with new grounds of attack after having repulsed the original ones. The proper function of an appellate court is to correct an error in the judgment or proceedings of the court below and not to adjudicate upon a different kind of dispute a dispute that was never taken before the court below. It is only in exceptional cases that the appellate court may in its discretion allow a new point to be raised before it provided there are good grounds for allowing it to be raised and no prejudice is caused thereby to the opponent of the party permitted to raise such point. But where the appellate court in exercise of its discretion refuses leave to a party to raise such point there is little scope for any indulgence being shown by this Court. This would suffice to....
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....inal decree and, therefore, the appellant is precluded from making a challenge to a direction in the preliminary decree. I am fortified in this view not only by what we have said in Ittyavita Mathai's case(1) in para 8 at p. 910 but also by the recent judgment of this Court in Smt. Gvarsi Bai & Ors. v. Dhansukh Lal & Ors. (7 There, Subba Rao J., speaking for the unanimous Court has observed "In a case where a decree is made in Form No. 5A, it is the duty of the Court to ascertain the amount due to the mortgagee at the date of the preliminary decree. How can the amount due to the mortgagee as on the date of preliminary decree be declared unless the net profits realized by him from the mortgaged property are debited against him ? The statutory liability of the mortgagee to account up to the date of the preliminary decree would be the subject-matter of dispute in the suit up to the date of the said decree. The Court has to ascertain the amount due under the mortgage in terms of the mortgage deed and deduct the net realizations in the manner prescribed in s. 76(h) of the Transfer of Property Act and ascertain the balance due to the mortgagee on the date of the preliminary decree....
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....ss, ambiguity or such incompleteness as will make its enforcement impossible. It may be that the High Court in making the direction wrongly thought that it had discretion to specify any of the three events set out in cl. (1) (c) of r. 12 of O. XX or that it expected that possession would be delivered by the appellant to the respondent before the expiry of three years. Or it may be that the High Court had overlooked the limitations cl. (c) of O. XX, r. 12(1). But whether it was one or the other, does not render the direction in question vague, ambiguous or incomplete. In order to ascertain whether a particular term or direction in a decree is clear and complete or vague and ambiguous the court must ordinarily confine its attention to the direction itselfl. It will be justified in looking to the other provisions in the decree if there appears to be a doubt about the meaning of its terms or if any of the terms conflict with another part of the decree. But where there is no such doubt or conflict the occasion to look at the other terms of the decree cannot arise. It is, however, not the suggestion of Mr. Viswanatha Sastri that this Particular term is inconsistent with any of the other ....