Decided on December 22,1967



M.U. Issac, J. - (1.) THIS is an appeal by the second plaintiff in O. S. No. 110 of 1119 in the court of the erstwhile Second Judge, Alleppey from an order under S.144 CPC. The suit was for recovery of 47 acres of paddy land with mesne profits from defendants Nos. 6 and 7, on deposit of Rs. 10,800/-. The suit was dismissed with costs. But in A. S. No. 336 of 1124 (T), it was decreed with costs by the Travancore-Cochin High Court. Pursuant to the decree of the High Court, the second plaintiff recovered possession of the property on 3-4-1954. Defendants Nos. 6 and 7 filed C, A. No. 744 of 1957 in the Supreme Court against the decree of the High Court. The appeal was allowed by the Supreme Court with costs, by its judgment dated 30-3-1961. Thereupon an application under S.144 CPC. was filed by defendants Nos. 6 and 7 on 12-6- 1961 for restoration of the property with mesne profits. Though the application was resisted by the second plaintiff on several grounds, the property was delivered back to the 6th and 7th defendants through court in November 1961; and thereafter only the question relating to the mesne profits remained to be determined.
(2.) THE claim for mesne profits relates to the period from April 1954 to November 1961. THE property concerned in this case formed part of a larger block of paddy land, having an extent of 257 acres. THEre was a suit for partition of the whole land, as O. S. No. 102 of 1116, in which the parties to this appeal were also parties. THE appellant herein was appointed receiver in that suit; and during all the relevant period, he was in management of the property. Regarding the claim of the respondents for mesne profits, the appellant contended that it had been fixed in the suit at 2090 parahs of paddy, and that the respondents were not entitled to get anything more than that rate. Secondly, it was contended that the appellant, as receiver, had accounted to the Court in O. S. No. 102 of 1116 for the income of the property, and that the respondents' right was only to get in that suit their share of the income from the property. Thirdly, it was contended that the whole property was leased out from year to year through Court in O. S. No. 102 of 1116 for cultivation, that the appellant had not been able to collect from the lessees the whole income, and that he was not liable for what he has not collected. THE appellant did not let in any evidence in support of his contentions. THE first respondent was partly examined, when it was agreed by the parties that the case can be disposed of by both parties filing statements with regard to the amounts payable as mesne profits, and after hearing their counsel. Accordingly, both parties filed statements; and the case was disposed, of by the lower court after hearing the counsel. The statements filed in the lower court showed that both the parties agreed that the mesne profits may be determined on the basis of the amount for which the property was leased out in O. S. No. 102 of 1116. The dispute related only to the market value of paddy, and the claim of the appellant for expenses, and the commission which he claimed to get as receiver's remuneration. With respect to these matters, the appellant's claims were finally conceded by the respondents; and the lower court passed an order fixing the mesne profits as the net amount shown in the statement filed by the appellant's counsel as payable to the respondents. The lower court also awarded interest on the mesne profits. Ordinarily, one would have thought that the above order would put an end to the litigation. The concessions made by the respondents in the lower court were apparently for buying peace, and getting out of the long drawn out litigation, which was started by the appellant about twenty three years ago. This application for restitution itself has been pending in that court for about six years. Paddy has been valued in fixing the mesne profits only at the rates fixed by the Government, though it is well-known that, during the years concerned in this case, paddy had a far higher price in the open market, which is sometimes called the black market. However, the same contentions as were originally raised by the appellant in the lower court were seriously pressed before us by his learned counsel. These contentions have no merit; and the appellant is also precluded from raising them, in view of the fact that the mesne profits were determined by the lower court in the manner agreed to by the parties The appellant's learned counsel however, contended that the lower court failed to consider the appellant's contention that his liability for mesne profits was only for what he had or might reasonably have received as income from the property, and that, therefore, he was liable only for what he actually received from the lessees. It was submitted that, in respect of the rent for one year, he received only part of the rent, and that he had filed a suit for the balance. It was also submitted that no rent for another year had been deposited by the lessee in court in O. S. No. 102 of 1116.
(3.) THESE are all matters of evidence. The appellant did not adduce any evidence in the lower court. If the lessee had deposited any amount in O. S. No. 102 of 1116, the appellant was the only person entitled to receive the same under the decree, as it then stood before it was reversed in the Supreme Court. One does not know whether he has not withdrawn from the court his share of the income in respect of this property. If he has not done it, he may do so even now; but that is no answer to the respondents' claim against him for mesne profits. Again, he cannot absolve himself from the liability by simply saying that he has not realised the whole amount, and that he has filed a suit. He has to establish that he acted in the ordinary course of business in giving the lease, that he took all reasonable steps in recovering the whole rent, and that, in spite of such efforts, he could not recover the same. Without these factual basis, his contention cannot be sustained. We also find from a perusal of the statement which he filed in the lower court that the difference between what he has been found liable to pay and what, according to his contention, he would have been liable, is only a small amount; and there is no justification to remand this case for a further enquiry on these questions of fact. The learned counsel also raised a contention that the lower court was not justified in awarding interest on the mesne profits, and that, at any rate, interest on the sum of Rs. 10,800/-, which the appellant deposited in court, when instituting this suit, should have been given credit to him. He submitted that restitution arises in equity, and that mesne profits have to be worked out according to the principles of justice, equity and good conscience. The learned counsel cited a decision of the Division Bench of the High Court of Allahabad in Wasic Ali Khan v. N and Kishore AIR. 1954 All. 119 in support of the above contention. In that case a mortgagor filed a suit for redemption of a usufructuary mortgage, which was decreed by the trial court; and the plaintiff took possession of the property in execution of the decree on depositing the mortgage amount. The decree was reversed in appeal; and the defendants claimed re-delivery of the property with mesne profits by way of restitution. The plaintiff contended, among other things, that the defendants should have withdrawn the mortgage amount, and that the amount which the defendants would have earned by way of interest, if the mortgage amount was drawn by them, should be deducted from the mesne profits. In accepting the above contention, Malik, C. J. who pronounced the judgment of the Court, said: "Here the successful defendants are claiming mesne profits from the plaintiff for the period during which they had been deprived of possession of the property under the decree of the trial court. These mesne profits have to be worked out according to the principle of justice, equity and good conscience, there being no other guide for the purpose. In working out the figures, it appears that the loss suffered by the defendants could have been mitigated by them to some extent if they had withdrawn the amount which had teen deposited and by reason of which deposit they had been deprived of possession of the property. It is not shown to us that the withdrawal of the amount would have, in any manner, prejudiced the defendants case. In the circumstances it appears to us that they voluntarily suffered part of the damage by allowing the money to remain in deposit in court when they could have easily withdrawn the amount. In calculating mesne profits, therefore, the courts can take that fact into consideration and allow them only such damage as they did not suffer voluntarily.";

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