1998 PLP 225 (MLD)

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 present proceedings. 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, Rule 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 mesne 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 had 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 cases of (a) (Goswami) Gordhan Lalji Mahraj v. Bishamber Nath (AIR 1927 Allahbad 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 bringing 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- II, 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, though 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 Ahmed v. Ghulam Ali (PLD 1963 SC 382), wherein 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 filing 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 mesne profits 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 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 Curt 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 follows:- "(12)'mesne profits' of property means those profits which the person in wrongful possession of such property actually received or might with ordinary deligence have 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 he read alongwith plaint which was duly verified and the other documentary evidence as has come on record. The plaint in Suit No. 105 of 1970 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 that the appellants were found to have trespassed over the subject land and were in wrongful possession thereof. The decree for possession was passed in consequence of the said finding. The pleadings and the evidence, in the present case, thus sufficiently establish that the appellants were in unauthorised and wrongful possession of the suit property and were cultivating the same earning profits therefrom. The learned Counsel for the appellant, therefore, is not correct in asserting that there was no material before that learned Civil Judge, who has passed the impugned Judgment and decree, to hold that the appellants were in wrongful possession of the subject land. As regards the 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 above-cited case supports the respondents in the present case for the reason that the appellants were to wrongful possession of the subject land and 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 learned Counsel 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 Buy, 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 data 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 Civil Judge 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. Nizam 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 finding (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 Appellate Court. I find no substance in this 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. An 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 of boundary line, had proceeded to devise a more equitable way of dividing the house which was not approved, being in deviation of the direction issued by the Court. Such contention, patently, has no bearing in the present case. In the last case, local Commissioner was appointed for assessment of amount of compensation under section 23 of Land Acquisition Act. Obviously section 23 of the Land Acquisition Act invests such power unto the Court, and therefore, it was held by the Honourable Judges of the Supreme Court that appointment of local Commissioner for determination of compensation amounted to abdication of the power of the Court in favour of Commissioner which was improper and illegal. Again, this case does not apply to the present matter since the Court had lawfully exercised its power to hold that the appellants were liable for mesne profits and after submission of report by the Commissioner, the learned Civil Judge had applied his mind to the terms of the report. As to the question of notice, suffice to observe that the Commissioner had not issued notice to either of the parties. The requirement for issuance of such notice would have become important, had the report of the Commissioner been taken on record and adopted without further proceedings. In the present case the Commissioner had examined himself and could be cross-examined by both or either of the parties. Indeed he was cross-examined by the learned counsel for the appellants. The record further shows that all the parties were provided ample opportunity to submit their objections to the report of the Commissioner However, despite requirement of rule 131 (2) Sindh Civil Courts Rules no objections were filed and the report having been found to be proper and lawful was approved by the learned Civil Judge through order dated 22-1-1980. The above-referred order dated 22-1-1980 shows that the report was not adopted mechanically and the appellants had rather failed to avail the opportunity to question the same during the proceedings. In appeal, a party cannot be permitted to fill up lacunas and its short-comings. What is required to be seen is as to whether on the material available before the Court, the finding was properly and correctly reached? The learned counsel for the appellants has failed to show any such defect or error in the impugned judgment and decree. I may observe here that the mesne profits have been allowed to the respondents by the learned Civil Judge for a period of 3 years prior to date of institution of the suit. In my view, the respondents would have been entitled to mesne profits 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 the respondents on 29-4-1971 and in view of the permission granted to the respondents vide Judgment dated 30-4-1956 for filing separate suit for mesne profits, such period ought to have been treated as period of suspension of the right to sue for mesne profits. I have refrained from modifying the decree on the said ground since the respondents have not 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. A.A/F-23/K Appeal dismissed.