Tuesday, 19 November 2013

PLJ 1999 Karachi 181
Present: MUSHTAQ AHMAD MEMON, J. FAIZOO and others-Appellants
versus
RAEES BAQAR, KHAN and others-Respondents
F.A. No. 25 of 1980, decided on 24.9.1997.
(i) Administration of Jwstiee-
—Any step which advances justice could always be adopted; in absence of specific powers and procedure, inherent powers could always be invoked.
[P. 185] A
AIR 1927 All. 716; AIR 1942 Bom. 338 and!970DLC817re/:
(ii) Civil Procedure Code, 1908 (V of 1908)-
—O.XXVI, R. 6--Sindh Chief Court Rules (O.S.), R. 131-For assessment of mesne profits-Report of commission appointed by Court-Status-No, objection was filed by any of the parties-Appellants had failed to avail opportunity to question the same during proceedings-Such report having been found to be proper was lawfully approved by Trial Court.
[PI. 185 & 188] B & C
(iii) Civil Procedure Code, 1908 (V of 1908)-
—Ss. 2(12) & 115-Grant of mesne profits for period of three years prior to date of institution of suit-Status-Plaintiffs would have been entitled to mesne profits for period of three years prior to institution of earlier suit i.e. from 31.7.1946, since possession of land in question was delivered by plaintiffs on 29.4.1971 and in view of permission granted to them vide judgment of Court for filing separate suit for mesne profits, such period ought to have been treated as period of suspension of the right to sue for the same-Failure of plaintiffs to file cross-objections-Modification in decree refrained-Decree and judgment of Court below were maintained.
[Pp. 188 & 189] D
Mr. M.M. Aqil Awan, Advocate for Appellants.
Nemo for Respondents.
Dates of hearing: 26 & 28.5.1997 and 14.3.1997.
JUDGMENT
Through this appeal preferred under Section 96 of the Code of Civil Procedure, the appellants have assailed the judgment dated 28.6.1978 and the final decree dated 22.3.1980 passed in Suit No. 105 of 1970 by the Senior Civil Judge, Gambat whereby the suit filed by the respondents have been decreed for a sum of Rs. 1,07,044.
The facts leading to the present proceedings, briefly stated, are that the Respondents Nos. 1 and 2 had filed Civil Suit No. 5 of 1946 seeking decree for possession of agricultural land measuring 190.34 acres and for mesne profits for the period from 1937. It was averred in the plaint that the subject land was ancestral property of the respondents and the appellants had taken over physical possession thereof through trespass on 15.7,1937. After appreciation of evidence, as was produced by the parties, the suit was decreed with costs on 30.4.1956 by the First Class Sub-Judge, Khairpur Mirs, for possession only. As regards claim for mesne profits, it was observed that the respondents could bring a separate suit. The decree was challenged through Civil Appeal No. 17 of 1956 before the erstwhile High Court of West Pakistan, which was re-numbered as Civil Appeal No. 18 of 1962 upon transfer to the District Judge, Khairpur Mirs. Eventually, on 14.1.1964, the appeal was dismissed and Second Appeal No. 70 of 1964 preferred before the High Court of West Pakistan was also dismissed on 15.11.1968. Thedirection with regard to filing separate suit for mesne profits was also not modified at any stage. In the meantime, on 2.5.1956, Execution Application No. 14 of 1956 was preferred by the Respondent No. 1 and on 29.4.1971, the respondents were put in possession of the subject land. Before the respondents got possession, as above, on 25.5.1970 Suit No. 105 of 1970 was filed by them claiming mesne profits with effect from 15.7.1937. The suit was subsequently re-numbered as 26 of 1976. On 18.12.1975, the matter was ordered to proceed exparte against the appellants. On 18.2.1976, affidavit in exparte proof was filed by the respondent No. 1. In such affidavit, as to the amount of mesne profits the following averments were made :
That I have tentatively shown the value of mesne profits as Rs. 16,000. But it is a question of determining the mesne profits by actual cultivation of the survey numbers in each crop, a separate application is being under Order 26, rule 14 and Section 151, C.P.C. for determining the actual mesne profits."
This was followed by affidavit of one Ghulam Muhammad who was apparently managing the lands of the respondents as an employee, wherein net profit from the subject land was claimed as Rs. 20,000 to Rs. 25,000. On the basis of the unchallenged material produced by the respondents, as above, judgment and preliminary decree dated 28.6.1976 was passed. However, the learned Judge found that Article 109 of the Limitation Act was applicable to the case and awarded mesne profits for a period of 3 years from 25.5.1970 when the Suit was filed up to 29.4.1971 when possession of the subject land was handed over to the respondents. Mr. Abdul Sattar Dosi, Advocate was appointed as Commissioner to ascertain quantum of actual profits received by the appellants severally or collectively through local investigation and to submit report. On 15.1.1978, the above named Commissioner submitted his report after visiting the subject land and recording statements of the concerned persons and neighbouring land owners. The Learned Commissioner on the basis of the investigation conducted by him worked out the approximate amount of total income and after deducting therefrom the approximate amount of expenditure and share of cultivator (Hari) reported that a sum of Rs. 1,07,044-11-00 was due from the appellants as mesne profits for the period from 25.5.1967 to 29.4.1971, The learned Commissioner also gave breakup of the amount of mesne profits worked out by him as was due from the seven appellants and one Ghulam Hyder. It appears from record that on 7.3.1978 statement was filed by the Advocate for the appellants in the following terms :
"It is stated that Ghulam Haider and Rasool Bux defendants in the suit have died long ago."
Pertinently, the actual date of death of Ghulam Haider and Rasool Bux was not mentioned so as to determine if they had died before promulgation of Land Reforms Ordinance 1972 or thereafter. However, in the absence of any material on the record, I would proceed on the assumption that such persons expired after the amendment in the provisions of Order 22, Rules 3 and 4, C.P.C. with the result that the proceedings did not abate. On 12.6.1979, the above-named Commissioner was examined but it appears that he was not cross-examined on behalf of appellants despite their representation through one Mr. S. Hassan Imam, Advocate who had field Vakalatnama on 5.12.1978. It appears from the record that applications were then filed by some of the appellants under Order 9 rule 13, C.P.C for setting aside the exparte judgment. However the record does not show if any order was passed on such applications. On 22.1.1980, the matter came up forhearing in respect of the report submitted by the Commissioner when the Learned Senior Civil Judge, Gambat, after consideration of the report passed order in the following terms :
"2. Mr. Zaheer Hassan learned counsel for plaintiff/decree-holder has submitted that since the defendants/Judgment debtor have failed to file any objection within 10 days of service of notice on them of the filing of report by Commissioner as required under rule 131 (2) of Sindh Civil Court Rules, therefore, the report has become final and now no exception can be taken on it. Mr. Zaheer has further contended that even on merits the report submitted by the Learned Commissioner is very elaborate and exhaustive and the Learned Commissioner has worked out very mainute details and has considered each and every aspect of the matter, such as the cost of expenses and other allied matters. I have gone through the report of Learned Commissioner and I am of the view that no exception can be taken to the report submitted by the learned Commissioner and, thus, the report submitted by Learned Commissioner is approved. The suit is decreed in terms thereof and a final decree should be prepared accordingly. The plaintiff has paid court-fee on the amount of Rs. 16,000 only, therefore, deficit amount of the court-fee on theremaining amount would be first charge on the decree. The total amount of mesne profits comes to Rs. 1,07,044. The Learned Commissioner has been paid fee of Rs. 200 already only tentatively. The learned Commissioner is allowed commission fees at the rate of 2-1/2% on the total amount of mesne profits. Rs. 200 already paid to the Learned Commissioner should be deducted from the total amount of commission fees."
On the basis of findings as above, final decree was passed on 22.3.1980 in the sum of Rs. 1,07,044-11-00 which has been challenged as above in the presentproceedings.
Mr. M.M. Aqil Awan appearing on behalf of the appellants has urged as follows :—
(i) Filing of suit for mesne profits in the year 1970 was barred by the provisions of Order 2, Ride 2, C.P.C. in view of the earlier proceedings in Suit No. 5 of 1946.
(ii) The impugned judgment and decree for mesne profits shows that the primary ingredients for grant of mense profits were neither alleged nor established by the respondents.
(iii) The report of the Commissioner, is illegal and beyond scope of reference/preliminary decree.
Elaborating his first submission, the learned counsel for the appellants has urged that the respondents has filed Suit No. 5 of 1946 for possession and mesne profits in respect of the subject land. The mesne profits were claimed with effect from 15.7.1937. The matter was contested and by Judgment dated 30.4.1956, the suit was decreed with cost for possession of land. According to the learned counsel, the prayer for grant of mesne profits is to be treated to have been declined. The learned counsel further submits that the observation contained in the Judgment dated 30.4.1956 permitting the respondents to file separate suit for mesne profits could not lawfully be granted and in any event, cannot be considered a justification for bye-passing or circumventing the provisions of Order II, Rule 2, C.P.C. The learned counsel in support of his submission has referred to Judgments in the case of
(a)             (GoswamV Gordhan Lalji Mahraj v. Bishamber Nath (AIR 1927 Allahabd 716);
(b)             Channappa Cirimalappe Golad v. Sagalkot Bank, (AIR 1942 (29) Bombay 338 and
(c)             Province of East Pakistan v. Upendra Narayan Lala and others (1970 DLC 817).
Instead of referring to each of the above referred cases cited by the Learned Counsel for the appellants, suffice to observe that the dictum laid down in the above cases is not applicable to the present case for the reason that the facts involved in the present case are different from those in the cited Judgments. Indeed the provisions or Order II, Rule 2, C.P.C. would have barred the respondents from brining fresh suit for mesne profits if such prayer had not been made in the earlier proceedings. It is significant to note that the respondents had specifically pleaded the necessary details and sought decree for specific performance in Suit No. 5 of 1946. The provisions of Order n, Rule 2, C.P.C. manifestly do not apply to the present case. As regards grant of permission to bring separate suit for mesne profits, through the reason to justify such observation has not been stated in the Judgment dated 30.4.1956, the logic for such observation is not for from reason since the respondents would have been entitled to mesne profits up to the date of restoration of possession and though a decree for mesne profits could have directly been passed by the learned Senior Civil Judge who had passed Judgment dated 30.4.1956, he had considered it more appropriate to permit filing of separate proceedings in that behalf. Any view contrary to the above would amount to entrapping the respondents into technicalities. Any step which advances justice can always be adopted and in the absence of specific powers and procedure, inherent powers can always be invoked. Reference may be made to the Judgment in Imtiaz Ahmad v. Ghulam All (PLD 1963 SC 382), herein following observation was made which has consistently been followed:
 .................. the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy................... system which by giving effect to the form and not the substance defeats substantive rights (and) is defective to the extent."
The Learned Civil Judge, in exercise of inherent powers vesting in the Court, could permit filing of separate suit. Obviously the direction for Sling separate suit had brought inconvenience, if any, to the respondents who would have got their relief much earlier and in the very proceedings when decree for possession was passed. Moreover, another reason which might have weighed with the learned Civil Judge for putting the respondents' to another round of litigation could be that grant of mesneprofits would have resulted in passing preliminary decree and for such reason decree for possession would have been delayed exposing appellants to long-period and obviously, larger amount of mesne profits. In any event, a B party cannot be made to suffer on account of act of the Court. The Judgment dated 30.4.1956 was affirmed up to the stage of second appeal by a Bench of the erstwhile High Court of West Pakistan and in the event of any illegality, the judgment dated 30.4.1956 would not have sustained. The point urged by the learned Counsel for the appellants, thus, is without force and is repelled.
In support of next contention, the learned Counsel has first referred to definition of the term mesne profits as appearing in Section 2(12) of the Code of Civil Procedure which for the sake of convenience is reproduced as foDows :-
"(12)'mesne profits' of property means those profits which the person  in wrongful  possession  of such  property  actually received or might with ordinary deligence has received therefrom, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession :"
It is submitted by the learned counsel that in order to claim mesne profits, a plaintiff is required to show that the subject property was in wrongful possession of another person and cannot include profits due to improvements made by such person. It is urged by the learned Counsel that the two affidavits Exh : 28 and Exh : 31 did not contain even an averment that the subject land was in wrongful possession of the appellants. The learned Counsel has referred to Judgment in the case of House Building Finance Corporation v. Mrs. Sarwar Jehan reported in (PLD 1993 Karachi 21), wherein it was held that mesne profits are recoverable only from the person in wrongful possession of the subject property.
The affidavits Exh. 28 and Exh. 31 are to be read alongwith plaint which was duly ve ified arid the othei 'documentary evidence as has come on record. The plaint in Suit No. 105 of 1870 in Paragraphs 2, 7, 8 and 9 contains reference to previous proceedings in Suit No. 5 of 1946 and the pleadings and Judgment in such proceedings have been produced in evidence. The above documents do show tr-at the appellants were found to have trespassed over the subject land and were in wrongful possession thereof. The decree for possession Tvas passed in consequence of the said finding. The pleadings and the evidence, in the present case, thus sufficiently establish that the appellants were in unauthorit 8d and wrongful possession of the suit property and were cultivating the same earning profits therefrom. The learned Counsel for the appellanc, therefore, is not correct in asserting that there was no material before that learned CiviJ Judge, who has passedthe impugned Judgment and decree, to hold that the appellants were in wrongful possession of the subject land. As regards ;he judgment in House Building Finance Corporation case, cited by the learned Counsel, the peculiar facts involved therein make it distinguishable. However, the dictum laid down by the learned Single Judge of this Court who had decided the abovecited case supports the respondents in the present case for the reason that the appellants were in wrongful possession of the subject land arid the mesne profits are recoverable from them. As to the second aspect of the arguments that the respondents cannot have the profits which were earned due to the improvements made by the appellants, I may note that there was no evidence on the record to show that the appellants had carried out any improvements. In the result, I do not feel inclined to upset the impugned Judgment and decree on the basis of second contention of the learnedCounsel for the appellants.
3. As to his final contention, the learned Counsel submits that the local Commissioner had admittedly failed to give any notice to the parties before inspection of the subject land. It is further urged that the learned Commissioner had relied on the data provided to him by Khan Muhammad and Pir Bux who were owners of land in the adjoining deh. The learned Counsel submits that the absence of any material to show that owners of land in the same deh were not available, reliance cannot be placed upon the figures provided by the abovenamed landowners. The Learned Counsel further submits that the report of the Learned Commissioner has mechanically been followed in drawing the final decree. It is further urged by the learned Counsel for the appellants that evidence regarding quantum of mesne profits should have been recorded by the Court itself and the date collected by the Commissioner on the basis whereof report was prepared could not be taken into account. The grievance further urged by the Learned Counsel for the appellant is that the said course adopted by the learned CivilJudge amounts to abdication of the powers of Court in favour of the Commissioner. The learned Counsel in support of his above submission has referred to the following judgments :
1.                   Muhammad Bakhsh v. Nazim Din (PLD 1978 Lahore 31).
2.                   Muhammad Juman and others v. Mst. Aqlan and 2 others (PLD 1980 Karachi 108).
3.                   N.M. Khan and others v. Dr. Abdur Rauf and others (1980 SCMR 528).
4.                   Land   Acquisition    Collector,    Abbottabad    and    others    v. Muhammad Iqbal and others (1992 SCMR 1245).
In the first case, it was held that the law does not allow delegation of powers by the Court to the Local Commissioner to decide material issues and that the report of the Commissioner cannot be considered to be final. It is merely in the nature of proceedings of an inquiry, for the information of the Court after which the Court is bound to give its own findings (s) on each and every issue. In the present case, however, the material issues were decided by the Court itself and the Commissioner was appointed only to collect information with regard to the mesne profits as could be granted to the respondents. The cited judgment, therefore, does not help the appellants.
In the second case, the request by one of the parties for inspection of subject land to determine as to who was in possession thereof was declined and the contention questioning such order was repelled in the following terms by Zafar Hussain Mirza, J. (as he then was):
"8. Mr. Fazeel lastly contended that the impugned orders are bad in law as the request of the applicants for inspection of the land to determine as to who was in possession thereof submitted under Order XVIII, Rule 18, C.P.C. was not considered by the trial Court and was rejected for uncogent reason by the Appellant Court. I find no substance in his contention. It is well-settled that a Court only decides a matter on the basis of evidence on record and not on its view or impressions evidence and in the matter of possession of agricultural land such  inspection will be of no value. AM enquiry conducted at the site by a Court would obviously be improper and contrary to law unless the parties agree to be bound by such procedure."
The above judgment also does not help the appellants.
In the third case, the local Commissioner appointed for demarcation if boundary line, had proceeded to devise a more equitable way of dividing he house which was not approved, being in deviation of the direction issued >y the Court. Such contention, patently, has no bearisig in the present case.
In the last case, local Commissioner was appointed for assessment of unount of compensation under Section 28 of Land Acquisition Act. Jbviously Section 23 of the Land Acquisition Act invests such power unto he Court, and therefore, it was held by the Honourable Judges of the Supreme Court that appointment of local Commissioner for determination of :ompensation amounted to abdication of the power of the Court in favour of Commissioner which was improper and illegal. Again, this case does not ipply to the present matter since the Court had lawfully exercised its power o hold that the appellants were liable formesne profits and after submission if report by the Commissioner, the learned Civil Judge had applied his mind o the terms of the report. As to the question of notice, suffice to observe that he Commissioner had not issued notice to either of the parties. The equirement for issuance of such notice would have become important, had he report of the Commissioner been taken on record and adopted within urther proceedings. In the present case the Commissioner had examined dmself and could be cross-examined by both or either of the parties. Indeed le was cross-examined by the learned counsel for the appellants. The record urther shows that all the parties were provided ample opportunity to lubmit their objections to the report of the Commissioner. However, despite 'equirement of rule 131(2) Sindh Civil Courts Rules no objections were filed ind the report having been found to be proper and lawful was approved by he learned Civil Judge through order dated 22.1.1980. The above-referred >rder dated 22.1.1980 shows that the report was not adopted mechanically ind the appellants had rather failed to avail the opportunity to question the same during the proceedings. In appeal, party cannot be permitted to fill up acunas and its short-comings. What is required to be see is as to whether on lie material available before the Court, the finding was properly and lorrectly reached ? The learned counsel for the appellants has failed to showiny such defect or error in the impugned judgment and decree. I may )bserve here that the mesne profits have been allowed to the respondents by he learned Civil Judge for a period of 3 years prior to date of institution of he suit. In my view, the respondents would have been entitled to mesne >rofits for the period of 3 years prior to institution of the earlier Suit No. 5 of 1946 i.e. from 31.7.1946 since possession of the subject land was delivered to he respondents on 29.4.1971 and in view of the permission granted to the •espondents vide Judgment dated 30.4.1956 for filing separate suit for mesne >rofits, such period ought to have been treated as period of suspension of the profits, such period ought to have been treated as period of suspension of th{ right to sue for mesne profits. I have refrained from modifying the decree or the said ground since the respondents hti'w aot filed any cross-objections.
In the result, the appeal fails which is hereby dismissed. However, the respondents shall not be entitled to any cost for the present proceedings since no one had appeared on their behalf at the time of hearing.
(K.K.F.)                                                                            Appeal dismissed

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