Grover, J. - (1.) This is an appeal by certificate from a judgment of the Calcutta High Court in which the sole question for determination is whether the suit was barred by limitation.
(2.) The material facts may be stated. The appellant before us was the defendant in a suit for recovery of damages with interest and costs. The suit was decreed by the trial judge and that decree has been upheld by the High Court. The defendant was a tenant under the predecessor of the plaintiffs in respect of the shed and structures described in Schedule A of the plaint. In or about the year 1939 the predecessor-in-interest of the plaintiffs filed a title suit in the Court of the Subordinate Judge, Alipore for ejectment and damages. A compromise took place between the parties but the defendant did not vacate the premises in terms of the compromise and continued to remain in occupation of the same. The property was requisitioned under Rule 75-A of the Defence of India Rules and Government took its possession on February 2, 1944. It was dere quisitioned on November 21, 1945. For the period from February 2, 1944 to November 21, 1945 the plaintiffs received monthly compensation from the government at the rate of Rs. 350/-. For the period of the defendant's alleged wrongful occupation the plaintiffs filed two suits against the defendant. The first was for and recovery of damages upto February 1, 1944 and the second was for damages from November 22, 1945 upto November 21, 1948. The plaintiffs also claimed future damages till recovery of possession although the suit was not one for possession. The suits were decreed by the learned Subordinate Judge in December 1951 at the rate of Rs. 300/- per month for the entire period of claim. In other words the claim for future mesne profits was also allowed. On appeal the High Court disallowed the claim for future mesne profits and reduced the rate to Rs. 200/- per month. The judgment disposing of those appeals along with certain other appeals which arose out of a suit filed by the defendant with which we are not concerned in the present appeal is reported in India Electric Works Ltd. v. Mrs. B. S. Mantosh, AIR 1956 Cal 148 at page No. 155. This is what was observed in that judgment with regard to the decree relating to future mesne profits at page 155:- "The rest of the decree in Suit No. 28 of 1948 was not according to law and cannot be maintained. The suit was a pure money suit and not a suit for recovery of possession of immovable property and for mesne profits under Order 20, Rule 12, Civil P. C. In such a suit a preliminary decree may be passed for possession and for assessment, but in a pure suit for recovery of money, no decree can be passed for recovery of compensation after the date of the suit upto the date of the decree or after the date of the decree until recovery of possession. This part of the decree should, therefore, be set aside." The plaintiffs then filed a suit on November 5, 1956 for recovery of an amount of Rs. 28,650/- together with interest thereon as damages at the rate of Rs. 300/- per month from November 22, 1948 to November 5, 1956 i.e. a period of 7 years, 11 months and 15 days. For the period beyond 3 years of the suit protection from limitation was claimed primarily under Section 14 of the Indian Limitation Act, 1908, hereinafter called the "Act" and on general principles of suspension of limitation owing to the pendency of the earliar suits. The defendant contested the suit principally on the ground that it was barred by limitation. The rate at which damages were claimed was also disputed. The trial Court was of the opinion that the plaintiffs were entitled to the benefit of Section 14 of the Act and that no part of the claim was barred by limitation. As regards the rate of compensation or damages the trial court fixed it at Rs. 250/- per month and decreed the suit accordingly.
(3.) The defendant appealed to the High Court. The High Court considered the question of the applicability of Section 14 and held that the plaintiff could take advantage of it. The rate of damages which had been determined by the trial Court was also upheld. The admitted and proved facts are that the claim made in the present suit was included in the previous money suit No. 28 of 1948 and a decree had been passed by the trial Court in favour of the plaintiffs for the entire claim including the claim for future damages. The plaintiffs were only required to pay additional court fee as provided by the Indian court Fees Act for the claim relating to future damages and the plaintiffs had in fact paid the required amount of additional Court fee. The High Court in the judgment mentioned before and in the portion extracted there from had negatived the claim for future damages on the sole ground that no decree could be granted for recovery of compensation after the date of suit or after the date of the decree in a pure money suit. In other words it was held that under the law the Court was not competent to decree such a suit.;