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Judgment
Hobhouse, J. 1. This case exhibits as lamentable a waste of time and money in litigation as ever came under their Lordships'' observation. An account which the plaintiff asked for in the year 1879, and to which her right was affirmed in the year 1880, has not even been commenced; the defendant having been allowed to delay it by objections to the formal regularity of the procedure. The question still is whether the respondents, who represent the original plaintiff, shall have the account taken. The High Court has decreed in their favour. The appellant, who was the original defendant, contends that their right has been extinguished. 2. In May, 1879, Fatima Bibi, the mother of the respondents, filed her plaint against Abdul Majid, claiming possession of a share in her father''s estate, and mesne profits for three years. She valued the profits at nearly a lae of rupees. The defendant denied the plaintiff''s right to possession. He admitted her right to some profits, which he put at somewhat more than Rs.15,000. He paid that sum into court, whence it has been paid out to the plaintiff. 3. In an early stage of the suit it was declared by order of Babu Kashi Nath Biswas, then Subordinate Judge of Jaunpur, that the adjudication on the title should be taken first, and that then the question of profits should be taken up; and the Court adhered to that arrangement, though the times contemplated for the two trials were put off. On June 18, 1880, Kashi Nath Biswas delivered judgment on the question of title. As to some items the plaintiff''s claim was dismissed. As to the bulk of the property the decree was in her favour. 4. On the other part of the case the Subordinate Judge made the following statement:
As the question of mense profits was to have taken a very long time in the examination of jamabandi accounts of numerous villages, it was proposed by the parties that the Court should take up and decide other issues in the case. I should have been glad to decide the whole case together, and with that view I purposely delayed giving judgment on the issues on which I have taken down evidence and heard the arguments on both sides, but as I am leaving the district, I cannot, in fairness to both parties, any longer refuse to give judgment on the issues tried by me. 5. And after he had given his decision on the title he added: "The last two issues cannot now be decided, and must be left to my successor to decide." Those issues related to mesne profits and to costs. 6. The formal decree was confined to the question of title and possession. It is now contended by the defendant that this mode of proceeding was wholly beyond the power of the Court, and therefore cannot be the ground of any further proceeding in the suit. If indeed the decree had gone on to direct an inquiry as to profits, that, it is admitted, would have been right; but because the postponed inquiry is only mentioned in the judgment, everything is wrong; and that though the course taken was proposed by the parties, was adopted by the Court, was attended by manifest advantage, and by no inconvenience that any one can suggest. It is difficult to imagine a more frivolous pretext for resisting a just claim. Their Lordships agree with the High Court that the proceedings were competent to the Court and were substantially right. 7. The defendant appealed from the decree of June, 1880, first to the High Court, who affirmed it in January, 1882, and secondly to Her Majesty in Council, who affirmed it in June, 1885. The plaintiff was put into possession of her share, it does not appear when, nor is it material, and then there remained no question except those reserved, namely, the profits and the costs of suit. 8. In the years 1880 and 1881 occurred some not very intelligible transfers of the case from the new Subordinate Judge to the District Judge, Mr. Howell, and back again from the District Judge to the Subordinate Judge; with the result that the question of profits was postponed till after the decision of the High Court on the question of title. After that decision, in February and March, 1882, the then Subordinate Judge, Mr. Banerji, settled fourteen issues, but did not proceed to try them. The plaintiff complained to the High Court of the delay, and on July 19, 1882, the High Court ordered the Subordinate Judge to proceed without any further delay. This order appears to have been wholly ineffectual. The Subordinate Judge ordered postponements extending to May 29, 1883. On that day he refused further postponement because of the High Court Order, but no progress was made. 9. The defendant now appears to have changed his tactics, and for the first time we hear him complain that the proceedings of June, 1880, were illegal. In some way (we have not got his petition) he brought that question before the High Court, who delivered the opinion in which their Lordships have stated their concurrence. That was on July 21, 1883. The defendant then endeavoured to appeal on this point to Her Majesty in Council, but leave was refused on December 12, 1883 . 10. After that it seems that the High Court transferred the case into the Court of the District Judge of Jaunpur; but still the suit made no progress. On January 24, 1886, the then judge, Mr. Hudson, delivered judgment, but only to begin fresh causes of delay. In direct disregard of the decision of the High Court, he gives effect to the defendant''s frivolous objection to the procedure of 1880, decides that he is not in a position to dispose of the case, and directs that it shall be restored to the file of the Subordinate Judge. With that, he makes a suggestion that the decree should be rectified, and should "determine the period over which the inquiry into mesne profits shall extend, before entering on the subject-matter of inquiry." 11. As regards this suggestion, which the Subordinate Judge appears to have taken as an order binding on the parties, the first part is unsubstantial, and the second impracticable. The arrears of profits recoverable are limited by law; but the inquiries necessary to ascertain what the arrears are cannot be limited until the facts are known; which is usually in the course of making the inquiries. 12. The District Judge also intimates that it is illegal to have a separate trial for the costs of a suit. But the judgment of June, 1880, does not contemplate any such thing. Doubtless the costs of the suit would depend on the results of the two disputes, as to profits and as to title, and it was most reasonable and convenient to postpone the decision on costs till all the rest of the suit could be determined. 13. The plaintiff appealed to the High Court against Mr. Hudson''s order; but on November 15, 1889, she withdrew her appeal, which was struck off the file. No explanation is given of the long delay or of the reason for withdrawal. It is now contended by the defendant that the effect of withdrawal was to bind the plaintiff to Mr. Hudson''s view of the invalidity of the proceedings of 1880. It seems to their Lordships that it bound her to nothing except submission to the transfer made by the order which the withdrawal left standing. 14. On June 2, 1890, a third Subordinate Judge, Nil Madhab Rai, delivered his decision. He follows Jaunpur precedents in disregarding the order of his immediate superior and in refusing to touch the question of mesne profits. He holds that in restoring the case to the Subordinate Judge Mr. Hudson acted illegally, and that he, Nil Madhab Rai, had no jurisdiction. But he adds that, if he had, it would be necessary to follow the suggestions (he calls them orders) of Mr. Hudson, which the plaintiff declined to do. He refuses to send back the case to the District Court; he refuses to report it for order of that Court, not being able to find in the Code any directions for such an emergency. Then, having again stated that there was no case before him, he deals with the case by striking it off the file and apportioning costs. 15. The plaintiff appealed to the High Court, who delivered judment on July 20, 1892. In recounting the dismal history of the case the learned judges express an opinion that the delays, which they attribute to the action of the defendant, amount to an abuse of the process of the Courts, and they intimate that the Jaunpur Courts have not done their duty. They reaffirm the opinion given in July, 1883, that the course taken by Subordinate Judge Kashi Nath Biswas was a lawful one. They discharge the decree of Subordinate Judge Nil Madhab Rai, and direct the file to be sent to the Court of the District Judge. 16. The amount in question being above the appealable value, and the order being final in its nature as regards the defendant''s liability to account, the defendantt applied for leave to appeal as in ordinary course, to Her Majesty in Council. The High Court refused leave. By a petition which the defendant presented for special leave it appeared that the main ground for that refusal was that the defendant''s grounds for appeal were the same as he might have raised on appeal in 1883; hut that is not a valid reason for refusing a certificate for appeal in a case which in other respects is fit for appeal in ordinary course. Of course their Lordships were not aware, and on an ex parte application they hardly could have been aware, of that which appears after argument and examination, namely, the worthless character of the defendant''s objections to the account demanded by the plaintiff. 17. The learned Judges of the High Court have examined the Code minutely to shew that Subordinate Judge Kashi Nath Biswas acted under its provisions. Their Lordships think that such an examination is hardly necessary. The Subordinate Judge had before him a case consisting of two parts: a question of title, and an incidental question of account depending largely on the title. It was for the obvious advantage of the parties, and they proposed, that the first part should be decided and the second reserved for decision. In point of fact the first part has been the subject of successive appeals by the defendant, who successfully struggled against the trial of the second part pending these appeals. If the Code forbade the parties and the Court so to arrange the disposal of a lawsuit, it would be a very startling thing. It is not pretended that the Code contains any such prohibition. Neither can it be pretended that the Court did not do justice in giving a decision on the leading part of the case at a time when it was not possible to decide on the subsidiary part. Even if the Court had erred in form, it was in form only, not misleading or injuring anybody; and to treat such an error as a bar to the proceedings reserved for further decision is a serious miscarriage of justice. Their Lordships are not so well placed as are the judges of the High Court for forming an opinion on the way in which the Jaunpur Courts discharge their functions; but they think it right to add that nothing in this record leads them to form any opinion of the action of those Courts, since the first judgment in January, 1882, more favourable than the opinion expressed by the High Court. 18. Their Lordships will humbly advise Her Majesty that this appeal ought to be dismissed, and the decree of the High Court affirmed. Whether a fresh reference to the District Judge will bring about an examination of the merits of the case, or only a renewed tossing of it from Court to Court, is, having regard to its previous history, a very obscure problem. But that is all their Lordships can do, except to order the appellant to pay the costs of this appeal.