Dargahan Bibi vs Jyoti Prasad Singh Deo

Wort, J.—This matter comes before us after remand in a case in which the plaintiffs were the appellants to this Court. It arises out of an action which was brought by the plaintiffs who claimed that a certain rent sale in which defendants 2 and 3 were purchasers were not binding upon them. Incidentally I might mention that the sum paid by the appellants was Rupees 83,000.

The contention of the plaintiffs originally in the action was that the sale was not binding on them for the reason that they were minors at the time of the action and they were not properly represented at the trial. The learned. Subordinate Judge came to the conclusion that they were minors, but he held that they were represented. On appeal to this Court, however, the learned Judges came to the conclusion (the point that they were minors was not seriously disputed at that stage of the action) reversing the decision of the Subordinate Judge, that the plaintiffs were not represented and therefore the action, the decree and the sale were not binding upon them in so far as their interest was concerned namely, one-third of the property.

In these circumstances, this Court found it necessary to remand the case for determination of certain matters which in substance were the taking of an account. The learned Subordinate Judge thereupon appointed a Commissioner who investigated the matters in question and made a report which, on the objection of one of the parties, was set aside. He then made a further report and presented it to the Court of the Subordinate Judge. The learned Subordinate Judge adopted the procedure of sending the report to this Court and it is now before us, without investigating the objections of either party, if any, without considering the report, and without coming to any independent judgment upon the matters in dispute. Now it is that procedure to which the defendants object, it having been found by the Commissioner that all that is due from the plaintiffs to the defendants is the sum of Rs. 118-3-8.

Mr. P.R. Das who appears on behalf of defendants 2 and 3, lays great stress upon the actual wording of the order of this Court, and I therefore think it necessary to read the relevant portions of it. Ross, J., in the course of his judgment states:

It follows from the above conclusion that the plaintiffs have title to the property in suit and that their title was not affected by the decree in the rent suit and the sale in execution thereof. They are therefore entitled to a decree for recovery of possession. But it would be inequitable that they should recover possession without making good to the respondents the benefit which they have received from the payment made by the respondents on their behalf.

The learned Judge then goes on to refer to define items which were paid but to creditors from this sum of Rupees 83,000, being the purchase money which was lodged in Court and states that these sums must be paid by the plaintiffs. He refers to certain other doubtful debts and then makes this statement:

The balance of the purchase money was paid to other creditors and we are not in a position to say whether the plaintiffs were liable for these debts or not, and the Subordinate Judge will have to ascertain, on taking the account, how much, if anything, of these other debts the plaintiffs were liable for and that amount, when ascertained, will also have to be paid.

He then holds that the plaintiffs'' account would carry interest at the market rate and that market rate should be determined by the Subordinate Judge. And then in a very important part of his judgment the learned Judge says:

Against this amount, so ascertained, will be set off the rents and profits received by the respondents from the time that they were put into possession of the land in suit, but deducting from the said rent and profits all allowances which shall be justly made to the respondents in respect of land revenue, or rent cesses, etc.

Now, when the matter went before the Subordinate Judge on remand a Commissioner was appointed by the Subordinate Judge. Included in the items which Ross, J., stated must be set off, which were the mesne profits enjoyed by the defendants, were profits from lac cultivation according to the plaintiffs'' case. This particular liability was denied by the defendants.

The learned Subordinate Judge, as I have said already, appointed this Commissioner to investigate these matters. The Commissioner determined the amount which the defendants had received by way of rent, salami and other profits and also found that they had been engaged in lac cultivation and had made considerable profits therefrom; and it is vary largely against that item that the argument of Mr. Das is directed.

The points which Mr. Das argues on behalf of the defendants are these. He contends in the first instance that having regard to the order of Ross, J., that is to say the Subordinate Judge was to determine this matter of the taking of an account, the learned Subordinate Judge had no jurisdiction whatever to appoint a Commissioner.

But as an alternative argument contends that if he lad jurisdiction to appoint a Commissioner, the Commissioner had one duty alone and that was to take an account and that so far as the question of liability in contradistinction to quantum was concerned, that was a matter for the Subordinate Judge; and as a last point he argues that in any event, the learned Subordinate Judge was obliged by law to come to his own conclusion as regards these matters and consider if necessary the commissioner''s report and deliver a judgment on the matters which were remanded to him by the order of this Court. So far as the first point is concerned, Mr. Das relies upon the case of Sabri v. Ganeshi (1892) 14 All 23.

It appears that that case by way of second appeal came up to the Allahabad High Court and it was remanded to the Subordinate Judge, the appellate Judge, to determine certain matters. The Subordinate Judge, instead of deciding them himself, remanded the case in turn to the Munsif, and when the Munsif''s judgment had been delivered, he merely transferred that judgment to the High Court. In those circumstances Mahmood, J. decided in these words:

I am of opinion that the procedure of the learned Subordinate Judge was entirely erroneous that the order of this Court of 25th February 1891, directed as it was to the lower appellate Court, was to be carried out by that Court, and that the learned Subordinate Judge in delegating his functions to the Munsif by his order, dated 13th March 1891, acted ultra vires and without jurisdiction.

In my judgment however that case gives no assistance to the defendants on this point. The question of one Judge delegating his jurisdiction to another is quite another matter from that of a Judge appointing a commissioner under the powers given to him by the Civil Procedure Code.

I take it that when this order was made by this Court and the case was remanded to the Subordinate Judge for the purpose of determining certain questions, that in trying those questions the learned Subordinate Judge had all the jurisdiction which the CPC gave him including the appointment of a commissioner to take accounts if it was found necessary. The jurisdiction in the Judge to remand a case is limited and from the report of the case in Allahabad which I have just quoted there does not appear to be any fact which would make it necessary nor any fact which would show that the Judge, that is to say, the Subordinate Judge, had any power to remand as he did, a procedure which was condemned by Mahmood, J. As I have said the point which has been argued by Mr. Das in this connexion is not supported by the authority which he quotes.

The next question is whether the commissioner, when one was appointed under the jurisdiction which I hold the Subordinate Judge had, was entitled to investigate the questions both of quantum and liability. On the face of it would appear, and the law is clear in this respect, that in so far as they were merely questions of liability they were, both by the rules of law and under the order which was made by this Court, matters which were to be determined by the Subordinate Judge. But it does not appear to me that the Commissioner when he investigated these matters was investigating questions of pure liability, if I may use that expression. That the defendants were in possession was not denied by anybody. The question was what mesne profits were they liable for; in other words what amount.

One branch of those mesne profits was the lac cultivation, if in fact there was such, and I do not think that it could be denied that the defendants must have been taken to admit that if they had in fact cultivated lac, they were liable to be assessed in mesne profits as regards that item. It is a very nice distinction at times whether a matter is a mere question of account or whether it is a question of liability. The two matters are so co-mingled at times that it is almost impossible to distinguish them.

Now, what procedure did the Commissioner adopt? He examined the books, the various documents produced before him by the parties as regards such matters as rent and salami, and when he came to the question of lac cultivation, again documents were produced and evidence was called. The first matter that he had to determine was whether lac had in fact been cultivated. The second matter was, what was the amount of the profit which the defendants had made in that connexion.

Is it to be said that when he came to the difficult point of whether lac had in fact been cultivated, always remembering that they had been in possession and were liable for mesne profits, that that point was to be remitted to the Subordinate Judge for him to determine, and then when the Subordinate Judge had determined that question, the Commissioner could proceed to assess the amount.

I do not think that that argument could be sustained. It is true that in this matter the question of liability was to some extent involved in the question of quantum, but that the Commissioner had some such jurisdiction as this seems to me is clearly contemplated by the provisions of the CPC itself. Order 26, Rule 16 provides that a Commissioner appointed under this order--and a Commissioner was appointed under that order--has power to examine parties and any witnesses whom they or any of them produce. That is the procedure he adopted, and it seems to me a procedure which is in accordance with law, and it cannot be said that, although the Commissioner had a right, and this is admitted by Mr. Das, to discover whether they had received rents or not, it was not open to him to investigate the question of whether they had received profits regarding the lac.

The admission on the one hand and the argument on the other seem to me destructive one of the other. If an admission is made as regards one matter, in my judgment it necessarily carries with it the proposition that the Commissioner had jurisdiction to determine both questions. In my judgment that argument also fails. In this connexion however there is one matter which it seems to me was a matter for determination by the learned Subordinate Judge alone, and that was, what was the market rate of interest. In remanding this case, as we shall have to do having regard to the decision to which I have arrived, it will be necessary for the Subordinate Judge to determine that matter.

Having regard to the fact that the defendants are not prepared to dispute the findings of the commissioner on that point, there may be very little discussion of that question in the Court below, but it is a matter for the decision of the Subordinate Judge and the course of conduct to be adopted by the parties in the Court below must be left to them as advised.

Now on the last point which is argued, and that is whether the Subordinate Judge ought to have delivered a judgment on these matters, it seems to me that that argument is quite unanswerable. This was not a remand order by this Court to the Subordinate Judge for the purpose of appointing a commissioner; it was a remand order to the Subordinate Judge to determine certain questions and for his assistance in the determination of those questions as I have held he had jurisdiction to appoint a Commissioner.

But that does not excuse him from coming to a conclusion on these matters himself. It was necessary for him to investigate the Commissioner''s report and to consider the objections of the parties to that report. Incidentally I might say that they were entitled to put forward objections and be heard on them; and then, after considering these matters and examining the Commissioner if he thinks it necessary, to come to a conclusion, an independent conclusion, on the matters referred to him.

In the circumstances it seems to me unnecessary to say anything further regarding the matter excepting to hold that the case must be remanded to the Subordinate Judge for him to hear and determine it according to law. Incidentally I might say that the learned Subordinate Judge will have to consider very seriously the question of the documents which the parties sought to produce but which were rejected. Each party will bear his own costs.

Fazl Ali, J.

I agree.