The State of Madras by the Collector of Thanjavur Vs. Ramanatha Rao and anr. - Court Judgment

M. Natesan, J.

1. These revisions ought not to have been preferred by the State-Clearly the liability of the State is undisputed and without further demand the moneys could properly have been brought into Court for payment out to the petitioner. The State wants to defeat the claim on wholly unsubstantial and technical grounds that do not in the least touch the merits of the case. The lower Court has done the best to avoid manifest injustice, and got round a patently erroneous earlier order wholly devoid, of jurisdiction. But the State has chosen to challenge the correctness of the lower Court's action. So, I shall deal with the case on its merits.

2. Ramanatha Rao, the first respondent herein, the plaintiff in the suit, out of which these proceedings arise, filed a suit for recovery of possession of the suit properties and for mesne profits from the date of the institution of the suit. The Government had started escheat proceedings against the properties, which had been left by one Jagannathan and proceeded in the view that he left no heirs. Ramanatha Rao instituted the suit contending that himself and his brother, the second respondent in these proceedings, were heirs of the said Jagannathan entitled to the properties. The plaintiff succeeded in this Court in A.S. No. 523 of 1951 having lost in the trial Court. A decree for possession was given with future profits from the date of suit. The State's Letters Patent Appeal No. 26 of 1956 was dismissed on 18th December, 1959. The plaintiff had meanwhile pursuant to, the decree of this Court on appeal taken possession of the properties on 18th April, 1956. After the disposal of the Letters Patent Appeal, by I .A. No. 115 of 1962, the plaintiff applied in the trial Court for ascertainment of future mesne profits from the date of the suit till delivery of possession under Order 20, Rule 12, Civil Procedure Code, and for a final decree for the profits as ascertained. The income derived by the Government had been deposited by the State in the Treasury and there was no dispute as to the correctness of the amount deposited by the State as the income from the properties. In a partition between the plaintiff and his brother, the second respondent herein the plaintiff became entitled to the sum of Rs. 12,463-45, as and for his share of the profits and in the circumstances in the proceedings under Order 20, Rule 12, Civil Procedure Code, on 10th September, 1962, the Sub-Court, Mayuram, gave the plaintiff a final decree in the sum of Rs. 12,463-45. But while passing the decree, the Court added:

The first respondent is granted two months' time to pay this amount. The petitioner will pay the Court-fee in two weeks. Call on 25th September, 1562.

3. The petition was adjourned to 1st October, 1962 for payment of Court-fee subsequently. On that date, despite the contention on behalf of the plaintiff, that he cannot be called upon to pay Court-fee at that stage and that he may pay the Court-fee when seeking to execute the decree, the Court dismissed the petition for non-compliance with the direction as to payment of Court-fee. The Validity of the order was not questioned then and later the petitioner came out with the two applications I.A. No. 213 of 1964 and I.A. No. 214 of 1964, the orders on which have given rise to these revision petitions. In these applications the plaintiff prayed once again for a final decree for the amount of mesne profits ascertained offering to pay the Court-fee due and in the alternative he prayed for extension of the time originally fixed for payment of the Court-fee after excusing the delay in paying the same. On these applications it was contended for the State that the prior order in I.A. No. 115 of 1962 dismissing the application had become final and the Court had no further jurisdiction in the matter to extend the time and grant a further final decree.

4. The learned Subordinate Judge examined the provisions of the Code and the old Court-fees Act and having regard to the decisions placed before him granted a final decree for the amount claimed against the State, directing the plaintiff to pay the necessary Court-fee on the amount decreed before executing the decree. The learned Subordinate Judge took the view that in view of the dismissal of I.A.No. 115 of 1962, no final decree has been passed and that in the absence of a final executable decree as directed by the preliminary decree, the Court could now pass an executable final decree. He was of the view that even assuming that the order in I.A.No. 115 of 1962 was conclusive and had become final, the present applications could be treated as applications for review and for continuation of I.A. No. 115 of 1962.

5. There can be no doubt that the Court in the first instance in I.A. No. 115 of 1962 had no jurisdiction to dismiss the application for non-payment of Court-fee. The application was for determination of future mesne profits accrued pending suit under Order 20, Rule 12, Civil Procedure Code. This Court on appeal had directed the ascertainment of the future profits and passing a final decree on such ascertainment. No Court-fees can be demanded on such an application at the initial stage or before the drafting of the decree. Section 11 of the old Court-fees Act which governs the recovery of Court-fees in respect of mesne profits ran thus:

In suits for mesne profits or for immovable property and profits or for an account if the profits of amount decreed are or is in excess of the Profits claimed or the amount at which the plaintiff valued the relief sought the decree shall not be executed until the difference between the fee actually Paid and the fee would have been payable had the suit comprised the whole of the profit or amount so decreed shall have been paid to the proper officer. Where a decree direct an enquiry as to mesne profits which have accrued on the property during a period priori to the institution of the suit, if the profits ascertained on such enquiry exceed the profits claimed, no final decree shall be passed till the difference between fee actually paid and the fee which would have been payable had the suit com prised the whole of the profits so ascertained is paid If the additional fee is not paid within such time as the Court shall fix, the claim for the excess shall be dismissed, unless the Court, for sufficient cause, extends the time for payment Where a decree directs an enquiry as to mesne profits from the institution suit, and a final decree is passed in accordance with the result of such enquiry, the decree shall not be executed until such fee is paid as would have been payable on the amount claimed in execution if a separate suit had been instituted therefor.

6. In this provision for realisation of Court-fee on mesne profits paragraphs I and 3 alone relate to profits accrued after the suit. In relation to future profits, the embargo is against the execution of the decree until the Court fees due on profits as ascertained is paid. It is only in cases, where an enquiry has been direct-ed into past mesne profits, that is profits accrued prior to the institution of the suit, we find provision for demanding Court-fee before the passing of the final decree In such cases, no final decree shall be passed till the difference between the fee actually paid for past profits and the fee which would have been payable had the suit comprised the whole of the profits ascertained is paid. In such cases shall fix a time for payment of the additional Court-fee If the additional Court-fee is not paid, the claim should be dismissed, unless the Court for sufficient cause extends the time for payment. No jurisdiction is given to the Court to editor Court fee on future mesne profits before passing of the final decree, nor is it empowered to dismiss an application for ascertainment of future mesne profits and for a decree thereon for non-payment of Court-fee within the time fixed. The point in Order 20, Rule 12, Clause (3) which applies in this case does not even require an application for the purpose.

7. In Kunjammal v. Krishna Chettiar : AIR1954Mad170 , with reference to the claim for profits, the decree provided that the Court-fee should be paid within a week from the date of the decree. It was a decree falling under Section 11, para, 1 of the Court-fees Act regarding claim for past and future profits. The Division Bench of this Court observed:.under this paragraph (section 11, para, 1) the only penalty non-payment of Court-fee is that the decree could not be executed until they are paid. It will be noticed that this paragraph does not contemplate the need for fixing any time within which the Court-fee has to be paid There is no need for it inasmuch as the plaintiff could not execute the decree unless he paid the Court fees. In this case, the decree in providing that the Court-fee should be paid within one week, went in our opinion beyond what is permitted under section II, para. 1.

8. This Court observed that the clause in the decree requiring the plaintiff to pay Court-fee within a week of the decree cannot be construed as involving a decision that the suit should stand dismissed if the Court-fee was not paid.

9. The earlier decision of this Court in Perianna Chetti v. Nagappa Musali : (1906)16MLJ543 , was referred to. In that decision with reference to future profits ascertained was not was fixed by the decree for payment of the Court-fee and the Court-fee was not paid within the time provided. In such circumstances this Court said .

The real question is whether the direction regarding payment of Court-fee set forth in the concluding part of the decree forms any part of the decree so as to necessitate the amendment of the decree before the time limited can be extended. We are of opinion that the words in question do not form any part of the decree and that no amendment of the decree is necessary to enable the Court to extend the time.

10. In Vishoo Ditti v. Ramaskri (1937) L.R. 64 IndAp 191 : (1937) 2 M.L.J. 1, the Judicial Committee observed:

The words ' if the additional fee is not paid....the suit shall be dismissed ' can apply only to cases falling within the second paragraph of Section 11. Therefore, the lower Court had no jurisdiction to make the order dismissing the plaintiff's suit (if it falls under paragraph 1 of Section 3).

11. As pointed out in In re Kantheswaram Ekanathalingaswami Koil through its Trustee Venanayagam I.L.R.(1937)Mad. 284 : 71 M.L.J. 677, the point to note with reference to Section 11 of the Court-fees Act is and it is, an important point, that in respect of future mesne profits no portion of the Court-fee is payable before the final decree is pasted, and even then, if the plaintiff does not seek to execute the decree, which he has invited the Court to pass, in his favour, he may altogether escape the payment of the Court-fee. If despite the final decree, the decree should be satisfied out of Court without the need for execution no Court-fee can be levied : the parties may avoid paying the Court-fee.

12. It is rather surprising that when the law is so clear and Well-established, a Court should have on 5th October, 1962 dismissed an application for passing of a final decree for profits pendente lite when the profits had been ascertained and the quantum was beyond dispute, on the simple ground that Curt-fee as directed by the Court had not been paid within the time fixed. This order was passed notwithstanding the contentions on behalf of the plaintiff that no Court-fee need be paid under the old Act and that he need pay Court-fee only at the time of the execution. It is this order of dismissal that is wholly erroneous and clearly beyond jurisdiction that is sought to be maintained by the State while not otherwise disputing the liability for mesne profits. It passed my comprehensive how the State could appropriate itself this money it had deposited in Treasury as representing the income from property to which it was found not entitled. A third party would have in such circumstances, passed on money to the decree-holder and settled the matter without payment of Court-fees. I cannot understand a Court dismissing the petition straightaway for non-payment of Court-fee if the effect of the order would be to deprive the party of what had been decreed. No law required the Court to so act in a case of this kind.

13. The order of the lower Court in this case could be maintained on one of several grounds. The original order providing time for payment of Court-fee was an unnecessary direction and incorrect conditions that cannot be and should not be given effect to. The condition in the original order was a surplus age, which if enforced with penal consequences would nullify the rights recognised in a manner wholly unwarranted by law. But that is what is stated to have happened in this case. The question is, should I construe now the order passed by the learned Subordinate Judge dismissing the application as a final rejection of the plaintiffs' claim for profits though unwarranted in law, or should I interpret it in harmony with law.

14. The mesne profits had been deposited in the Treasury. There was no dispute about it. At any time the money could be transferred by the State to the Court to the credit of the suit in execution. The Court had granted time for payment of the amount. It may be that the learned Subordinate Judge expected that the petitioner would apply in execution for payment out and directed the realisation of the Court-fee. It was an irregular order and could have been ignored. As pointed out in the case above cited, non-compliance with the direction cannot necessarily lead to the dismissal of the application. Why should I assume that the learned Subordinate Judge was unaware of the law, when I can interpret the order of dismissal as merely an order adjourning the matter sine die or a closure of the application for the time being. Such orders have been common in execution proceedings. Execution applications, when really closed for statistical purposes were often termed as dismissed. Such orders have been construed as orders adjourning the petition sine die. In Tammaraju v. Narasimharaju : AIR1928Mad522 , where an application under Order 20, Rule 12, was stated as dismissed by the Court on default of payment of additional batta, Jackson, J., interpreted the order of dismissal of the application as not such dismissal as would render that application inoperative and that plaintiff was entitled to proceed upon the original application. This case was no doubt dissented from in the decision of the Full .Bench in Rdmasubramania Pattdr v. Karimbil Pali : AIR1940Mad124 , but on a different aspect of the questions raised. Why should one readily assume that the Court intended to deprive the plaintiff of the mesne profits which had been ascertained and about the realisation of which there could be the least difficulty. The proper inference, in the circumstances, would be that the Court, in view of the failure or inability of the plaintiff in not bringing the Court-fee as directed closed the proceedings for the time being, that is adjourned it sine die to be revived, when the plaintiff could secure the necessary Court-fee. As stated earlier the order was not called for then. But I cannot say that the learned Subordinate Judge intended to pass a final order debarring the plaintiff thereafter from claiming the mesne profits, which had rightfully been found to be due to him. The summary manner in which the matter had been treated even after the attention of the Court had been drawn to the fact that no Court-fee could be demanded at this stage, inclines me to the view that the learned Subordinate, Judge was not dismissing the application in the sense of finally ending the matter once and for all. In terms of the direction on the appeal, the preliminary decree having directed the ascertainment of the mesne profits, the Court was bound to ascertain the mesne profits and pass a final decree. Its hands were tied in this regard and it cannot refuse to pass a final decree. No final decree had yet been passed and a final dismissal of the proceedings under Order 20, Rule 12., Civil Procedure Code, would go against the preliminary decree. In these circumstances, rightly, it can be said that the order of dismissal for non-payment of Court-fee was merely a statistical closure and that the original application wherein the mesne profits had already been ascertained, was pending in the Court when the plaintiff filed the present applications in question, out of which, these revisions arise. There has been no final refusal of any substantial relief to the plaintiff on the earlier occasion to preclude him from claiming a final decree now.

15. Even if the original order was the final order, there is nothing in law to preclude a subsequent application for passing a final decree. Reference in this connection may be made to the decision of the Full Bench in Ramasubramanid Pattar v. Karimbil Pati : AIR1940Mad124 , already referred to, where with reference to the sub-rule of Order 20, Rule 12 as it stood before its amendment, it was said that the application of the decreeholder for ascertainment of mesne profits when the appellate Court directs such an enquiry, is not an application falling under Article 181 of the Limitation Act. Order 20, Rule 12, Sub-rule (3) as it now stands reads thus:

Where an appellate Court directs such an enquiry, it may direct the Court of first instance to make the enquiry ; and in every case the Court of first instance may of its own accord, and shall whenever moved to do so by the decreeholder, inquire and pass the final decree.

16. In the present case, it is the appellate Court that granted the decree for possession and directed an enquiry into profits pendente lite and for a final decree in regard to the same. In such a case, the Court is bound to move on its own accord or when moved by the decreeholder. As pointed out above, there is yet no final decree in the matter. There is no provision of law precluding the Court from reconsidering the matter and passing a final decree for the mesne profits found accrued. Order 20, Rule 12 (3) does not contemplate any application for the purpose. The Code casts the duty on the Court of first instance either of its own accord or whenever moved to do so by the decree-holder to enquire and pass the final decree. No question of bar of res judicata or any analogous principle can arise in this case. There was no disposal of the matter on the merits. Viewed thus also, the applications made have been properly entertained by the lower Court. In this view it is unnecessary to consider whether a decree or order made by a Court without jurisdiction could in the Very proceedings at later stages be ignored and treated as nullity or non est when it is not a case of inherent want of jurisdiction. Neither Counsel placed any direct authority before me on the question.

17. As noticed by the trial Court now, if need be the applications could be dealt with as one for review of the earlier order and on review further proceeded with. If it were necessary this Court could under Section 115, Civil Procedure Code, suo motu revise the earlier order of dismissal and regularise the present proceedings.

18. The present revisions can be disposed of on a less complicated ground also. The powers of this Court under Section 115, Civil Procedure Code, are intended to subserve and not to defeat the ends of justice. When substantially justice has been done by the Court below, this Court will not interfere in revision notwithstanding that the reasons given by the Court below for the impugned order are not correct. The liability of the Government has been established and is not disputed. The defence taken is purely technical. In the circumstances, if the discretionary power under Section 115, Civil Procedure Code, is not exercised it will be only for perpetuating an injustice and approving an illegality. It is not in every case that this Court should interfere in revision on the ground that an order has been made in an irregular or erroneous exercise of jurisdiction. Interference would be warranted, only if injustice or hardship would result from failure to interfere. In Kelu Kurup v. Subramania Aiyar (1973) 2 M.L.J. 299 : A.I.R. 1937 Mad. 644, before Beasley, C.J., the question arose whether the High Court is not bound to interfere in a revision when the trial Court had no jurisdiction to try the suit, that is where the District Munsif had wrongly tried an original suit on the Small Cause side or conversely had tried a small cause suit on the original side. The learned Judge observed that he was satisfied from the cases which have been put before him that the majority opinion in this Court was that the High Court was not bound to allow the point under such circumstances to be taken or if it is allowed to be taken, the High Court is not bound to interfere in revision if it is satisfied that the lower Court's decree was correct. Adopting this principle, on the short ground that this Court is not bound to interfere in every case under Section 115, Civil Procedure Code, for the reason only that the impugned order is not warranted by the law and that there is jurisdictional defect in the making of it, these revision petitions could be disposed of.

19. In the result, the revision petitions fail and are dismissed with costs of the first respondent in each case.