1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1464 OF 2008
M/s Raptakos, Brett & Co. Ltd. .... Appellant(s)
Versus
M/s Ganesh Property .... Respondent(s)
J U D G M E N T
R.K. Agrawal, J.
1) The above appeal has been filed against the judgment
and order dated 22.08.2006 passed by the High Court at
Calcutta in A.P.O. No. 350 of 2004, G.A. No. 3808 of 2004 and
A.P.O.T. No. 556 of 2004 in Civil Suit No. 457 of 1998 whereby
the Division Bench of the High Court partly allowed the appeal
filed by the appellant-Company.
2) Brief facts:
(a) The respondent herein leased out the premises bearing
No. 6, Marquis Street, Calcutta to the appellant-Company for a
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term of 21 years commencing from 16.03.1964 to 15.03.1985
under a registered Lease Deed dated 16.03.1964 at a monthly
rent of Rs. 2,045/-.
(b) Before the expiry of the lease period, the respondent filed
a suit for recovery of possession being Suit No. 1023 of 1982
before the City Civil Court, Calcutta, Third Bench for bona fide
use. Vide order dated 06.08.1986, Suit No. 1023 of 1982 for
recovery of possession was dismissed by the City Civil Court
with costs.
(c) On 11.08.1986, the respondent filed a Title Suit being
No. 1481 of 1986 before the 8th Bench, City Civil Court,
Calcutta for recovery of possession and mesne profit. Vide
order dated 18.04.1991, learned single Judge of the City Civil
Court decreed the suit in favour of the respondent while
declining the claim of mesne profit as the said claim was not
pressed.
(d) Being aggrieved by the order dated 18.04.1991, the
appellant-Company preferred an appeal being F.A.T. No. 1786
of 1991, re-numbered as First Appeal No. 253 of 1992. Vide
order dated 09.07.1991, the Division Bench of the High Court,
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restrained the respondent from executing the decree on the
condition that the appellant-Company will continue to pay
rent at the rate of Rs. 2,500/- per month. Further, on
11.08.1997, First Appeal No. 253 of 1992 was dismissed,
however, the appellant-Company was granted 6 (six) months’
time to vacate the suit premises.
(e) Feeling aggrieved by the order dated 11.08.1997, the
appellant-Company filed a petition for special leave to appeal
being No. 19695 of 1997 before this Court which was
converted into Civil Appeal No. 1657 of 1998. This Court, vide
order dated 09.09.1998, had dismissed the appeal with certain
directions. However, on an application filed by the
appellant-Company seeking modification in the said order,
this Court, vide order dated 25.09.1998 had passed the
following order on the said application:-
“On mentioning the IA is taken on Board.
Having heard learned counsel for the parties further
directions are issued as under:-
If the appellants hand over peaceful vacant possession of the
premises in question on or before 08th October, 1998 then
they will have to pay for the use and occupation charges only
Rs. 2,500/- only, for the month of October. If they fail to
deliver possession by that time they will have to pay use and
occupation charges for the month of October at the rate of
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Rs. 50,000/- only, as fixed by us earlier. Rest of the order
remains as it is.
IA is disposed of accordingly.”
(f) After a long drawn litigation between the parties at all
levels, the appellant-Company handed over the possession of
the suit premises to the respondent on 08.10.1998.
(g) The respondent filed a fresh suit being Civil Suit No. 457
of 1998 before the High Court against the appellant-Company
for loss and damages caused to the respondent due to
wrongful possession to the tune of Rs. 3,23,56,695/- . The
appellant-Company preferred G.A. No. 3380 of 2003 in Civil
Suit No. 457 of 1998 under Order VII Rule 11(a) of the Code of
Civil Procedure, 1908 (in short ‘the Code’) for dismissing the
suit. Learned single Judge of the High Court, vide order dated
28.07.2004, dismissed the application filed by the
appellant-Company
(h) Aggrieved by the order dated 28.07.2004, the
appellant-Company preferred APOT No. 556 of 2004 in Civil
Suit No. 457 of 1998 before the High Court. The Division
Bench of the High Court, vide judgment and order dated
22.08.2006, partly allowed the appeal holding that the suit is
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maintainable while leaving the question of mesne profit open
for the decision by the trial court.
(i) Aggrieved by the order dated 22.08.2006, the
appellant-Company has preferred this appeal by way of special
leave before this Court.
3) Heard Mr. Shyam Dewan, learned senior counsel for the
appellant-Company and Mr. Pranab Kumar Mullick, learned
counsel for the respondent and perused the records.
Point(s) for consideration:-
4) Whether in the facts and circumstances of the present
case, the subsequent suit filed by the respondent for mesne
profits is maintainable?
Rival submissions:-
5) Learned senior counsel for the appellant-Company
strenuously contended that the appellant-Company vacated
the property on 08.10.1998 pursuant to the order passed by
this Court on 25.09.1998 in Civil Appeal No. 1657 of 1998. In
Suit No. 1481 of 1986, the respondent had not pressed the
issue of mesne profit and accordingly the court had held that
“the Respondent-plaintiff was not entitled to mesne profits for
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occupation of the premises. In appeal also, the issue of mesne
profit was not pressed. Thus, the issue of mesne profit being
not pressed nor challenged has attained finality and the
respondent is estopped from raising the same by way of fresh
suit. Further, this Court, vide order dated 25.09.1998, had
directed that if the appellant-Company hands over peaceful
vacant possession of the premises in question on or before 8th
October, 1998, then they will have to pay Rs. 2,500/- for the
use and occupation charges for the month of October, 1998,
otherwise, Rs. 50,000/- for the same which order has been
complied with by the appellant-Company and, indisputably,
the possession has been handed over on 08.10.1998. In any
case, the respondent, after getting possession of the suit
premises, has filed a subsequent action being Suit No. 457 of
1998 for mesne profit. Learned senior counsel contended that
the suit is not maintainable at all and is barred by res-judicata
and the claim of mesne profit had already attained finality.
There is bar on the respondent to raise the point of mesne
profit in a subsequent suit when the same had not been
pressed before the courts below. Learned senior counsel
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finally submitted that the suit is not maintainable and is
contrary to law and facts and expressly hit by Order II Rule 2
of the Code and also barred by the principles of estoppel and
res-judicata. In support of his submissions, learned senior
counsel has relied upon a decision in the case of Bhanu
Kumar Jain vs. Archana Kumar and Another (2005) 1 SCC
787.
6) Learned counsel for the respondent submitted that the
present appeal is misconceived and is an abuse of the process
of law. The issue sought to be raised by the
appellant-Company, including the grounds of res judicata,
limitation etc. were never raised in the written statement nor
in the applications challenging maintainability of the suit. He
further submitted that the issue raised relates to mesne profits
after the decree for eviction has been passed on the ground of
wrongful occupation after expiry of lease. The cause of action
is entirely different. It was further submitted that the
respondent had waived its claim of mesne profits before the
City Civil Court at Calcutta only up to the date of disposal of
suit being Title Suit No. 1481 of 1986 and was not debarred
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from claiming mesne profits after the date of decree, i.e.
18.04.1991. It is well settled by a catena of judgments that a
landlord can maintain a second suit for mesne profits. Hence,
claim for mesne profits for the period after the decree
constitutes a distinct and separate cause of action. Learned
counsel finally submitted that the appeal is not maintainable
and the respondent is entitled to mesne profits. In support of
his submissions, learned counsel has relied upon the
decisions in the case of Ram Karan Singh and Others vs.
Nakchhad Ahir & Others AIR 1931 Allahabad 429 and
State Bank of India vs. Gracure Pharmaceuticals (2014) 3
SCC 595.
Discussion:-
7) The continuance in possession of the premises by the
appellant-Company on or after the passing of the decree in
Suit No. 1481 of 1986 was on the basis of the order passed by
the High Court of Calcutta in F.A. No. 253 of 1992 dated
09.07.1991 and orders dated 03.11.1997 in SLP (C) No. 19695
of 1997 and 25.09.1998 in Civil Appeal No. 1657 of 1998
passed by this Court. Thus, the appellant-Company was
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paying the amount as directed by the Courts, as a condition
for continuing in possession of the leased premises. The
appellant-Company was thus in occupation of the premises
from 18.04.1991 till possession was surrendered on
08.10.1998, pursuant to the court’s orders. Further, it is also
evident on record that in Suit No. 1481 of 1986, the issue of
mesne profit was not pressed by the respondent and the same
was also not pressed before the High Court in appeal nor was
it raised before this Court.
8) In the light of the above indisputable facts, the plaint
now filed cannot be considered as one disclosing a cause of
action for maintaining a suit for mesne profits or damages for
the same period for which a claim was raised in the earlier suit
and deliberately withdrawn or given up by the respondent
before the Court.
9) In the interim orders dated 09.07.1991 passed by the
High Court in appeal and this Court in SLP (C) No. 19695 of
1997 dated 03.11.1997, the respondent has not raised any
objection and has allowed the said orders to become final and
binding. Both parties have acted upon the said orders as fully
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valid and binding on them. The amount fixed as a condition
for allowing the appellant-Company to occupy the premises
was fixed at Rs. 2,500/- which was fixed by the court taking
note of the fact that the appellant-Company is being allowed to
continue even after the expiry of the lease period. If the
respondent was not satisfied with the amount fixed as
occupation charges, then it should have raised an objection
praying for varying the amount specified as a condition
precedent for continuing in possession of the said premises.
This is particularly relevant as the respondent has without any
objection accepted the interim orders allowing the
appellant-Company to continue in possession.
10) In this connection, it is relevant to note that the
respondent herein, in Suit No. 457 of 1998, has allowed the
decree passed by the Court in T.S. No. 1481 of 1986 to become
final, thus accepting the finding of the trial court that the
landlord is not entitled to claim mesne profits for the
occupation on or after 15.03.1985, i.e., the date of termination
of the lease deed. It is pertinent to note that such a decree
was passed mainly on the ground that the respondent in that
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suit had consciously given up the claim for mesne profits from
the expiry of the lease period till recovery of possession.
Therefore, the respondent is estopped from claiming any
mesne profits for the period after 15.03.1985, i.e. the period
for which mesne profits were claimed in Suit No. 457 of 1998.
11) Further, the appellant-Company, while complying with
the order dated 25.09.1998 passed by this Court in Civil
Appeal No. 1657 of 1998, handed over the vacant possession
of the premises to the respondent on 08.10.1998 as is evident
by the receipt issued by the respondent. From the above, it
can be said that the Respondent, by his own conduct,
accepted the orders passed by this Court in allowing the
appellant to occupy the premises conditionally on payment of
Rs. 2,500/- from the disposal of the appeal by the High Court
till the disposal of the SLP in this Court. It would suggest that
the averments in the plaint in Suit No. 457 of 1998 would not
disclose any cause of action and, therefore, the suit is not
maintainable.
12) Further, on and after 18.04.1991, the date of decree in
T.S. No. 1481 of 1986, the continuation of possession by the
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appellant-Company was fully on the basis of the orders passed
by the City Civil Court in F.A.T. No. 1786 of 1991, later
re-numbered as F.A. No. 253 of 1992. It was a conditional
order allowing the appellant-Company to continue in
possession on condition of paying an amount of Rs. 2,500/- .
The amount so fixed by the Court after considering the claim
of the Respondent for enhancement of the amount of
compensation for continuation of possession after the expiry of
the lease period. Though this order has not been challenged by
the respondent, it was allowed to stand for about six years
until the appeal was finally heard and dismissed on
11.08.1997. It was on the basis of the above conditional order
that the appellant-Company had acted upon and enjoyed the
benefits conferred by the order on both parties. In the
circumstances, the respondent is estopped from claiming any
amount as mesne profits during the period from 18.04.1991 to
11.08.1997, i.e., the date on which F.A. No. 253 of 1992 was
finally disposed off.
13) In view of the above, we are of the opinion that the High
Court erred in not appreciating that the respondent having
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given up its claim for mesne profits in Suit No. 1481 of 1986,
the subsequent suit being Suit No. 457 of 1998 is clearly hit
by Order II Rule 2 of the Code. For ease of reference, Order II
Rule 2 is extracted hereunder:
“2.Suit to include the whole of the claim:
(1) xxxxx
(2) Relinquishment of part of claim: Where a plaintiff omits
to sue in respect of, or intentionally relinquishes, any portion of
his claim, he shall not afterwards sue in respect of the portion
so omitted or relinquished.
(3) xxxxx”
14) In Ram Karan Singh (supra), a Full Bench of the
Allahabad High court while examining the issue of
maintainability of second suit for pendente lite and future
mesne profits where earlier suit for possession and past mesne
profits has already been decided has held as follows:-
“It seems to us that the cause of action for recovery of
possession is not necessarily identical with the cause of
action for recovery of mesne profits. The provisions of
order II Rule 4, indicate that the legislature thought it
necessary to provide specially for joining a claim for mesne
profits with one for recovery of possession of immovable
property, and that but for such an express provision, such
a combination might well have been disallowed. A suit for
possession can be brought within twelve years of the date
when the original dispossession took place and the cause
of action for recovery of possession accrued. The claim for
mesne profits can only be brought in respect of profits
within three years of the institution of the suit and the
date of the cause of action for mesne profits would in
many cases be not identical with the original date of the
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cause of action for the recovery of possession. Mesne
profits accrue from day to day and the cause of action is a
continuing one, and arises out of the continued
misappropriation of the profits to which the plaintiff is
entitled. In many cases, the plaintiff may not be in a
position to anticipate the exact amount of mesne profits to
which he may become entitled after the institution of the
suit. The object of Order II, Rule 2 is the prevention of the
splitting up of one cause of action and not to compel the
plaintiff to seek all the remedies which he can claim
against the same defendants on account of several causes
of action in one and the same suit. In one case, the
multiciplicity of suits is to be avoided and, in the other,
multifariousness of the causes of action. It is also clear
that the bundle of facts which would constitute the cause
of action in favour of the plaintiff would not necessarily be
identical in a suit for recovery of possession and in a suit
for mesne profits. In a suit for possession, the plaintiff
need only prove his possession within twelve years and
the defendant’s occupation of the property without right.
In a suit for mesne profits he has, in addition, to prove the
duration of the whole period during which the
dispossession continued, including the date on which it
terminated, as well as the amount to which he is entitled
by way of damages. Evidence to prove these latter facts
would undoubtedly be different from that which would be
required to prove the first set of facts. Again, if there are a
number of defendants who are in possession of different
portions of the property, there may be considerable
difficulty in ascertaining the amount which, each is liable
to pay and the plaintiff may think it convenient to
postpone an inquiry of such a complicated nature to a suit
after his right to possession has been fully established.”
15) In Bhanu Kumar Jain (supra), this Court has
considered the distinction between “issue estoppels” and “res
judicata” and has held as follows:-
“29. There is a distinction between “issue estoppel” and
“res judicata”. (See Thoday v. Thoday.)
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30. Res judicata debars a court from exercising its
jurisdiction to determine the lis if it has attained finality
between the parties whereas the doctrine issue estoppel is
invoked against the party. If such an issue is decided against
him, he would be estopped from raising the same in the latter
proceeding. The doctrine of res judicata creates a different
kind of estoppel viz. estoppel by accord.
31. In a case of this nature, however, the doctrine of
“issue estoppel” as also “cause of action estoppel” may arise.
In Thoday Lord Diplock held:
“… ‘cause of action estoppel’, is that which prevents a
party to an action from asserting or denying, as against
the other party, the existence of a particular cause of
action, the non-existence or existence of which has been
determined by a court of competent jurisdiction in
previous litigation between the same parties. If the cause
of action was determined to exist i.e. judgment was given
on it, it is said to be merged in the judgment.… If it was
determined not to exist, the unsuccessful plaintiff can no
longer assert that it does; he is estopped per rem
judicatam.
32. The said dicta was followed in Barber v. Staffordshire
County Council. A cause of action estoppel arises where in
two different proceedings identical issues are raised, in which
event, the latter proceedings between the same parties shall
be dealt with similarly as was done in the previous
proceedings. In such an event the bar is absolute in relation
to all points decided save and except allegation of fraud and
collusion. [See C. (A Minor) v. Hackney London Borough
Council.]”
16) In the case of State Bank of India (supra), this Court
has examined the provisions of Order II, Rule 2 of the Code
and has held as under:-
“7. We may, before examining the rival contentions,
extract the relevant provisions of Order 2 Rule 2 CPC for easy
reference which reads as under:
“2. Suit to include the whole claim.—(1) Every suit
shall include the whole of the claim which the plaintiff is
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entitled to make in respect of the cause of action; but a
plaintiff may relinquish any portion of his claim in order to
bring the suit within the jurisdiction of any court.
(2) Relinquishment of part of claim.—Where a
plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not
afterwards sue in respect of the portion so omitted or
relinquished.
(3) Omission to sue for one of several reliefs.—A
person entitled to more than one relief in respect of the
same cause of action may sue for all or any of such reliefs;
but if he omits, except with the leave of the court, to sue
for all such reliefs, he shall not afterwards sue for any
relief so omitted.”
8. The scope of the abovementioned provisions came up
for consideration before this Court in several cases. The
earliest one dealt by the Privy Council was reported in Naba
Kumar Hazra v. Radhashyam Mahish wherein the Privy
Council held that the plaintiff cannot be permitted to draw
the defendant to court twice for the same cause by splitting
up the claim and suing, in the first instance, in respect of a
part of claim only. In Sidramappa v. Rajashetty this Court
held that if the cause of action on the basis of which the
previous suit was brought, does not form the foundation of
subsequent suit and in the earlier suit the plaintiff could not
have claimed the relief which he sought in the subsequent
suit, the latter, namely, the subsequent suit, will not be
barred by the rule contained in Order 2 Rule 2 CPC.
9. In Gurbux Singh v. Bhooralal the scope of the
abovementioned provision was further explained as under:
(SCC p. 1812, para 6)
“6. In order that a plea of a bar under Order 2 Rule 2(3)
of the Civil Procedure Code should succeed the defendant
who raises the plea must make out; (1) that the second
suit was in respect of the same cause of action as that on
which the previous suit was based; (2) that in respect of
that cause of action the plaintiff was entitled to more than
one relief; (3) that being thus entitled to more than one
relief the plaintiff, without leave obtained from the court
omitted to sue for the relief for which the second suit had
been filed. From this analysis it would be seen that the
defendant would have to establish primarily and to start
with, the precise cause of action upon which the previous
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suit was filed, for unless there is identity between the
cause of action on which the earlier suit was filed and that
on which the claim in the later suit is based there would
be no scope for the application of the bar.”
10. In Sandeep Polymers (P) Ltd. case the abovementioned
principles were reiterated and this Court held as under: (SCC
p. 158, para 13)
“13. ‘22. Under Order 2 Rule 1 of the Code which
contains provisions of mandatory nature, the requirement
is that the plaintiffs are duty-bound to claim the entire
relief. The suit has to be so framed as to afford ground for
final decision upon the subjects in dispute and to prevent
further litigation concerning them. Rule 2 further enjoins
on the plaintiff to include the whole of the claim which the
plaintiff is entitled to make in respect of the cause of
action. If the plaintiff omits to sue or intentionally
relinquishes any portion of his claim, it is not permissible
for him to sue in respect of the portion so omitted or
relinquished afterwards.’*”
11. The abovementioned decisions categorically lay down
the law that if a plaintiff is entitled to seek reliefs against the
defendant in respect of the same cause of action, the plaintiff
cannot split up the claim so as to omit one part to the claim
and sue for the other. If the cause of action is same, the
plaintiff has to place all his claims before the court in one
suit, as Order 2 Rule 2 CPC is based on the cardinal
principle that the defendant should not be vexed twice for the
same cause.
12. Order 2 Rule 2 CPC, therefore, requires the unity of all
claims based on the same cause of action in one suit, it does
not contemplate unity of distinct and separate causes of
action. On the abovementioned legal principle, let us examine
whether the High Court has correctly applied the legal
principle in the instant case.”
17) From a reading of the provisions of Order II, Rule 2 and
Rule 4 of the Code and also the principles laid down in the
aforementioned cases, it is clear that under Order II, Rule 2
read with Rule 4, the plaintiff can also claim mesne profits or
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arrears of rent in a suit filed for ejectment of the tenant. The
plaintiff can further file a fresh suit for claiming mesne profits
or arrears of rent for the period subsequent to the decree
passed in the earlier suit having become final. But in a case
where the plaintiff has claimed mesne profits or arrears of rent
in a suit filed for ejectment of the tenant and has relinquished
his rights vis-à-vis mesne profits or arrears of rent in the suit
proceedings itself, the provisions of Order II, Rule 2 will come
into play and in comparison to the second suit for mesne
profits or arrears of rent till the decree, the earlier suit will
attain finality.
18) Applying the above principles to the facts of the present
case, we find that the decree in the earlier Suit No. 1481 of
1986 filed for ejectment of the appellant-Company and mesne
profits attained finality on 09.09.1998 and 25.09.1998 when
this Court had dismissed Civil Appeal No. 1657 of 1998 and
the application respectively filed by the appellant herein.
However, vide order dated 25.09.1998, this Court had directed
that if the appellant hands over the peaceful vacant
possession of the premises in question on or before
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08.10.1998 then they will have to pay Rs. 2,500/- for the use
and occupation charges for the month of October 1998
otherwise Rs. 50,000/- as fixed earlier. It is not in dispute
that in the present case, the appellant had handed over
peaceful vacant possession to the respondent on 08.10.1998
and also that the respondent had relinquished the plea of
mesne profits during the suit proceedings itself. Thus the
prohibition contained in Order II Rule 2 would squarely apply.
19) Having regard to the earlier proceedings, as mentioned
above, in Civil Suit No. 1481 of 1986, wherein a decree for
possession was passed but the claim for mesne profits was
relinquished by the respondent-landlord and in view of the
subsequent orders of the Division Bench and this Court, the
question of further payments on account of mesne profits
which had been fixed and paid in the earlier suit did not arise.
The subsequent suit claiming mesne profits for the very same
period during which a fixed amount was paid by the
appellant-Company and accepted by the respondent without
objection is clearly not maintainable. The plaint does not
disclose any cause of action or any clear right to sue and was
20
liable to be rejected. The above facts would clearly show
that the averments in the plaint read along with the orders
and pleadings relied upon by the respondent in support of the
reliefs prayed for in Civil Suit No. 457 of 1998 do not disclose
any cause of action for the prayer for mesne profits made
therein.
Conclusion:-
20) In view of the above, we are of the considered opinion
that the possession of the appellant-Company for the period
under consideration, pursuant to orders passed by the High
Court and this Court, cannot in any view be considered as
illegal or unauthorized or that of a trespasser. For that
reason, the plaint in Civil Suit No. 457 of 1998 does not
disclose any cause of action for filing a suit for mesne profits
till surrender of possession. Therefore, the issue of mesne
profit attained finality and the respondent is not entitled to
raise the same issue now by way of filing a fresh suit. In other
words, by not pressing the claim of mesne profits raised in a
suit before the Court, unconditionally and without any
21
reservation, the respondent cannot thereafter turn around and
claim the same relief by filing a fresh suit.
21) In view of the foregoing discussion, we allow the appeal
filed by the appellant-Company.
...…………………………………J.
(R.K. AGRAWAL)
…………….………………………J.
(R. BANUMATHI)
NEW DELHI;
SEPTEMBER 5, 2017.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1464 OF 2008
M/s Raptakos, Brett & Co. Ltd. .... Appellant(s)
Versus
M/s Ganesh Property .... Respondent(s)
J U D G M E N T
R.K. Agrawal, J.
1) The above appeal has been filed against the judgment
and order dated 22.08.2006 passed by the High Court at
Calcutta in A.P.O. No. 350 of 2004, G.A. No. 3808 of 2004 and
A.P.O.T. No. 556 of 2004 in Civil Suit No. 457 of 1998 whereby
the Division Bench of the High Court partly allowed the appeal
filed by the appellant-Company.
2) Brief facts:
(a) The respondent herein leased out the premises bearing
No. 6, Marquis Street, Calcutta to the appellant-Company for a
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term of 21 years commencing from 16.03.1964 to 15.03.1985
under a registered Lease Deed dated 16.03.1964 at a monthly
rent of Rs. 2,045/-.
(b) Before the expiry of the lease period, the respondent filed
a suit for recovery of possession being Suit No. 1023 of 1982
before the City Civil Court, Calcutta, Third Bench for bona fide
use. Vide order dated 06.08.1986, Suit No. 1023 of 1982 for
recovery of possession was dismissed by the City Civil Court
with costs.
(c) On 11.08.1986, the respondent filed a Title Suit being
No. 1481 of 1986 before the 8th Bench, City Civil Court,
Calcutta for recovery of possession and mesne profit. Vide
order dated 18.04.1991, learned single Judge of the City Civil
Court decreed the suit in favour of the respondent while
declining the claim of mesne profit as the said claim was not
pressed.
(d) Being aggrieved by the order dated 18.04.1991, the
appellant-Company preferred an appeal being F.A.T. No. 1786
of 1991, re-numbered as First Appeal No. 253 of 1992. Vide
order dated 09.07.1991, the Division Bench of the High Court,
3
restrained the respondent from executing the decree on the
condition that the appellant-Company will continue to pay
rent at the rate of Rs. 2,500/- per month. Further, on
11.08.1997, First Appeal No. 253 of 1992 was dismissed,
however, the appellant-Company was granted 6 (six) months’
time to vacate the suit premises.
(e) Feeling aggrieved by the order dated 11.08.1997, the
appellant-Company filed a petition for special leave to appeal
being No. 19695 of 1997 before this Court which was
converted into Civil Appeal No. 1657 of 1998. This Court, vide
order dated 09.09.1998, had dismissed the appeal with certain
directions. However, on an application filed by the
appellant-Company seeking modification in the said order,
this Court, vide order dated 25.09.1998 had passed the
following order on the said application:-
“On mentioning the IA is taken on Board.
Having heard learned counsel for the parties further
directions are issued as under:-
If the appellants hand over peaceful vacant possession of the
premises in question on or before 08th October, 1998 then
they will have to pay for the use and occupation charges only
Rs. 2,500/- only, for the month of October. If they fail to
deliver possession by that time they will have to pay use and
occupation charges for the month of October at the rate of
4
Rs. 50,000/- only, as fixed by us earlier. Rest of the order
remains as it is.
IA is disposed of accordingly.”
(f) After a long drawn litigation between the parties at all
levels, the appellant-Company handed over the possession of
the suit premises to the respondent on 08.10.1998.
(g) The respondent filed a fresh suit being Civil Suit No. 457
of 1998 before the High Court against the appellant-Company
for loss and damages caused to the respondent due to
wrongful possession to the tune of Rs. 3,23,56,695/- . The
appellant-Company preferred G.A. No. 3380 of 2003 in Civil
Suit No. 457 of 1998 under Order VII Rule 11(a) of the Code of
Civil Procedure, 1908 (in short ‘the Code’) for dismissing the
suit. Learned single Judge of the High Court, vide order dated
28.07.2004, dismissed the application filed by the
appellant-Company
(h) Aggrieved by the order dated 28.07.2004, the
appellant-Company preferred APOT No. 556 of 2004 in Civil
Suit No. 457 of 1998 before the High Court. The Division
Bench of the High Court, vide judgment and order dated
22.08.2006, partly allowed the appeal holding that the suit is
5
maintainable while leaving the question of mesne profit open
for the decision by the trial court.
(i) Aggrieved by the order dated 22.08.2006, the
appellant-Company has preferred this appeal by way of special
leave before this Court.
3) Heard Mr. Shyam Dewan, learned senior counsel for the
appellant-Company and Mr. Pranab Kumar Mullick, learned
counsel for the respondent and perused the records.
Point(s) for consideration:-
4) Whether in the facts and circumstances of the present
case, the subsequent suit filed by the respondent for mesne
profits is maintainable?
Rival submissions:-
5) Learned senior counsel for the appellant-Company
strenuously contended that the appellant-Company vacated
the property on 08.10.1998 pursuant to the order passed by
this Court on 25.09.1998 in Civil Appeal No. 1657 of 1998. In
Suit No. 1481 of 1986, the respondent had not pressed the
issue of mesne profit and accordingly the court had held that
“the Respondent-plaintiff was not entitled to mesne profits for
6
occupation of the premises. In appeal also, the issue of mesne
profit was not pressed. Thus, the issue of mesne profit being
not pressed nor challenged has attained finality and the
respondent is estopped from raising the same by way of fresh
suit. Further, this Court, vide order dated 25.09.1998, had
directed that if the appellant-Company hands over peaceful
vacant possession of the premises in question on or before 8th
October, 1998, then they will have to pay Rs. 2,500/- for the
use and occupation charges for the month of October, 1998,
otherwise, Rs. 50,000/- for the same which order has been
complied with by the appellant-Company and, indisputably,
the possession has been handed over on 08.10.1998. In any
case, the respondent, after getting possession of the suit
premises, has filed a subsequent action being Suit No. 457 of
1998 for mesne profit. Learned senior counsel contended that
the suit is not maintainable at all and is barred by res-judicata
and the claim of mesne profit had already attained finality.
There is bar on the respondent to raise the point of mesne
profit in a subsequent suit when the same had not been
pressed before the courts below. Learned senior counsel
7
finally submitted that the suit is not maintainable and is
contrary to law and facts and expressly hit by Order II Rule 2
of the Code and also barred by the principles of estoppel and
res-judicata. In support of his submissions, learned senior
counsel has relied upon a decision in the case of Bhanu
Kumar Jain vs. Archana Kumar and Another (2005) 1 SCC
787.
6) Learned counsel for the respondent submitted that the
present appeal is misconceived and is an abuse of the process
of law. The issue sought to be raised by the
appellant-Company, including the grounds of res judicata,
limitation etc. were never raised in the written statement nor
in the applications challenging maintainability of the suit. He
further submitted that the issue raised relates to mesne profits
after the decree for eviction has been passed on the ground of
wrongful occupation after expiry of lease. The cause of action
is entirely different. It was further submitted that the
respondent had waived its claim of mesne profits before the
City Civil Court at Calcutta only up to the date of disposal of
suit being Title Suit No. 1481 of 1986 and was not debarred
8
from claiming mesne profits after the date of decree, i.e.
18.04.1991. It is well settled by a catena of judgments that a
landlord can maintain a second suit for mesne profits. Hence,
claim for mesne profits for the period after the decree
constitutes a distinct and separate cause of action. Learned
counsel finally submitted that the appeal is not maintainable
and the respondent is entitled to mesne profits. In support of
his submissions, learned counsel has relied upon the
decisions in the case of Ram Karan Singh and Others vs.
Nakchhad Ahir & Others AIR 1931 Allahabad 429 and
State Bank of India vs. Gracure Pharmaceuticals (2014) 3
SCC 595.
Discussion:-
7) The continuance in possession of the premises by the
appellant-Company on or after the passing of the decree in
Suit No. 1481 of 1986 was on the basis of the order passed by
the High Court of Calcutta in F.A. No. 253 of 1992 dated
09.07.1991 and orders dated 03.11.1997 in SLP (C) No. 19695
of 1997 and 25.09.1998 in Civil Appeal No. 1657 of 1998
passed by this Court. Thus, the appellant-Company was
9
paying the amount as directed by the Courts, as a condition
for continuing in possession of the leased premises. The
appellant-Company was thus in occupation of the premises
from 18.04.1991 till possession was surrendered on
08.10.1998, pursuant to the court’s orders. Further, it is also
evident on record that in Suit No. 1481 of 1986, the issue of
mesne profit was not pressed by the respondent and the same
was also not pressed before the High Court in appeal nor was
it raised before this Court.
8) In the light of the above indisputable facts, the plaint
now filed cannot be considered as one disclosing a cause of
action for maintaining a suit for mesne profits or damages for
the same period for which a claim was raised in the earlier suit
and deliberately withdrawn or given up by the respondent
before the Court.
9) In the interim orders dated 09.07.1991 passed by the
High Court in appeal and this Court in SLP (C) No. 19695 of
1997 dated 03.11.1997, the respondent has not raised any
objection and has allowed the said orders to become final and
binding. Both parties have acted upon the said orders as fully
10
valid and binding on them. The amount fixed as a condition
for allowing the appellant-Company to occupy the premises
was fixed at Rs. 2,500/- which was fixed by the court taking
note of the fact that the appellant-Company is being allowed to
continue even after the expiry of the lease period. If the
respondent was not satisfied with the amount fixed as
occupation charges, then it should have raised an objection
praying for varying the amount specified as a condition
precedent for continuing in possession of the said premises.
This is particularly relevant as the respondent has without any
objection accepted the interim orders allowing the
appellant-Company to continue in possession.
10) In this connection, it is relevant to note that the
respondent herein, in Suit No. 457 of 1998, has allowed the
decree passed by the Court in T.S. No. 1481 of 1986 to become
final, thus accepting the finding of the trial court that the
landlord is not entitled to claim mesne profits for the
occupation on or after 15.03.1985, i.e., the date of termination
of the lease deed. It is pertinent to note that such a decree
was passed mainly on the ground that the respondent in that
11
suit had consciously given up the claim for mesne profits from
the expiry of the lease period till recovery of possession.
Therefore, the respondent is estopped from claiming any
mesne profits for the period after 15.03.1985, i.e. the period
for which mesne profits were claimed in Suit No. 457 of 1998.
11) Further, the appellant-Company, while complying with
the order dated 25.09.1998 passed by this Court in Civil
Appeal No. 1657 of 1998, handed over the vacant possession
of the premises to the respondent on 08.10.1998 as is evident
by the receipt issued by the respondent. From the above, it
can be said that the Respondent, by his own conduct,
accepted the orders passed by this Court in allowing the
appellant to occupy the premises conditionally on payment of
Rs. 2,500/- from the disposal of the appeal by the High Court
till the disposal of the SLP in this Court. It would suggest that
the averments in the plaint in Suit No. 457 of 1998 would not
disclose any cause of action and, therefore, the suit is not
maintainable.
12) Further, on and after 18.04.1991, the date of decree in
T.S. No. 1481 of 1986, the continuation of possession by the
12
appellant-Company was fully on the basis of the orders passed
by the City Civil Court in F.A.T. No. 1786 of 1991, later
re-numbered as F.A. No. 253 of 1992. It was a conditional
order allowing the appellant-Company to continue in
possession on condition of paying an amount of Rs. 2,500/- .
The amount so fixed by the Court after considering the claim
of the Respondent for enhancement of the amount of
compensation for continuation of possession after the expiry of
the lease period. Though this order has not been challenged by
the respondent, it was allowed to stand for about six years
until the appeal was finally heard and dismissed on
11.08.1997. It was on the basis of the above conditional order
that the appellant-Company had acted upon and enjoyed the
benefits conferred by the order on both parties. In the
circumstances, the respondent is estopped from claiming any
amount as mesne profits during the period from 18.04.1991 to
11.08.1997, i.e., the date on which F.A. No. 253 of 1992 was
finally disposed off.
13) In view of the above, we are of the opinion that the High
Court erred in not appreciating that the respondent having
13
given up its claim for mesne profits in Suit No. 1481 of 1986,
the subsequent suit being Suit No. 457 of 1998 is clearly hit
by Order II Rule 2 of the Code. For ease of reference, Order II
Rule 2 is extracted hereunder:
“2.Suit to include the whole of the claim:
(1) xxxxx
(2) Relinquishment of part of claim: Where a plaintiff omits
to sue in respect of, or intentionally relinquishes, any portion of
his claim, he shall not afterwards sue in respect of the portion
so omitted or relinquished.
(3) xxxxx”
14) In Ram Karan Singh (supra), a Full Bench of the
Allahabad High court while examining the issue of
maintainability of second suit for pendente lite and future
mesne profits where earlier suit for possession and past mesne
profits has already been decided has held as follows:-
“It seems to us that the cause of action for recovery of
possession is not necessarily identical with the cause of
action for recovery of mesne profits. The provisions of
order II Rule 4, indicate that the legislature thought it
necessary to provide specially for joining a claim for mesne
profits with one for recovery of possession of immovable
property, and that but for such an express provision, such
a combination might well have been disallowed. A suit for
possession can be brought within twelve years of the date
when the original dispossession took place and the cause
of action for recovery of possession accrued. The claim for
mesne profits can only be brought in respect of profits
within three years of the institution of the suit and the
date of the cause of action for mesne profits would in
many cases be not identical with the original date of the
14
cause of action for the recovery of possession. Mesne
profits accrue from day to day and the cause of action is a
continuing one, and arises out of the continued
misappropriation of the profits to which the plaintiff is
entitled. In many cases, the plaintiff may not be in a
position to anticipate the exact amount of mesne profits to
which he may become entitled after the institution of the
suit. The object of Order II, Rule 2 is the prevention of the
splitting up of one cause of action and not to compel the
plaintiff to seek all the remedies which he can claim
against the same defendants on account of several causes
of action in one and the same suit. In one case, the
multiciplicity of suits is to be avoided and, in the other,
multifariousness of the causes of action. It is also clear
that the bundle of facts which would constitute the cause
of action in favour of the plaintiff would not necessarily be
identical in a suit for recovery of possession and in a suit
for mesne profits. In a suit for possession, the plaintiff
need only prove his possession within twelve years and
the defendant’s occupation of the property without right.
In a suit for mesne profits he has, in addition, to prove the
duration of the whole period during which the
dispossession continued, including the date on which it
terminated, as well as the amount to which he is entitled
by way of damages. Evidence to prove these latter facts
would undoubtedly be different from that which would be
required to prove the first set of facts. Again, if there are a
number of defendants who are in possession of different
portions of the property, there may be considerable
difficulty in ascertaining the amount which, each is liable
to pay and the plaintiff may think it convenient to
postpone an inquiry of such a complicated nature to a suit
after his right to possession has been fully established.”
15) In Bhanu Kumar Jain (supra), this Court has
considered the distinction between “issue estoppels” and “res
judicata” and has held as follows:-
“29. There is a distinction between “issue estoppel” and
“res judicata”. (See Thoday v. Thoday.)
15
30. Res judicata debars a court from exercising its
jurisdiction to determine the lis if it has attained finality
between the parties whereas the doctrine issue estoppel is
invoked against the party. If such an issue is decided against
him, he would be estopped from raising the same in the latter
proceeding. The doctrine of res judicata creates a different
kind of estoppel viz. estoppel by accord.
31. In a case of this nature, however, the doctrine of
“issue estoppel” as also “cause of action estoppel” may arise.
In Thoday Lord Diplock held:
“… ‘cause of action estoppel’, is that which prevents a
party to an action from asserting or denying, as against
the other party, the existence of a particular cause of
action, the non-existence or existence of which has been
determined by a court of competent jurisdiction in
previous litigation between the same parties. If the cause
of action was determined to exist i.e. judgment was given
on it, it is said to be merged in the judgment.… If it was
determined not to exist, the unsuccessful plaintiff can no
longer assert that it does; he is estopped per rem
judicatam.
32. The said dicta was followed in Barber v. Staffordshire
County Council. A cause of action estoppel arises where in
two different proceedings identical issues are raised, in which
event, the latter proceedings between the same parties shall
be dealt with similarly as was done in the previous
proceedings. In such an event the bar is absolute in relation
to all points decided save and except allegation of fraud and
collusion. [See C. (A Minor) v. Hackney London Borough
Council.]”
16) In the case of State Bank of India (supra), this Court
has examined the provisions of Order II, Rule 2 of the Code
and has held as under:-
“7. We may, before examining the rival contentions,
extract the relevant provisions of Order 2 Rule 2 CPC for easy
reference which reads as under:
“2. Suit to include the whole claim.—(1) Every suit
shall include the whole of the claim which the plaintiff is
16
entitled to make in respect of the cause of action; but a
plaintiff may relinquish any portion of his claim in order to
bring the suit within the jurisdiction of any court.
(2) Relinquishment of part of claim.—Where a
plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not
afterwards sue in respect of the portion so omitted or
relinquished.
(3) Omission to sue for one of several reliefs.—A
person entitled to more than one relief in respect of the
same cause of action may sue for all or any of such reliefs;
but if he omits, except with the leave of the court, to sue
for all such reliefs, he shall not afterwards sue for any
relief so omitted.”
8. The scope of the abovementioned provisions came up
for consideration before this Court in several cases. The
earliest one dealt by the Privy Council was reported in Naba
Kumar Hazra v. Radhashyam Mahish wherein the Privy
Council held that the plaintiff cannot be permitted to draw
the defendant to court twice for the same cause by splitting
up the claim and suing, in the first instance, in respect of a
part of claim only. In Sidramappa v. Rajashetty this Court
held that if the cause of action on the basis of which the
previous suit was brought, does not form the foundation of
subsequent suit and in the earlier suit the plaintiff could not
have claimed the relief which he sought in the subsequent
suit, the latter, namely, the subsequent suit, will not be
barred by the rule contained in Order 2 Rule 2 CPC.
9. In Gurbux Singh v. Bhooralal the scope of the
abovementioned provision was further explained as under:
(SCC p. 1812, para 6)
“6. In order that a plea of a bar under Order 2 Rule 2(3)
of the Civil Procedure Code should succeed the defendant
who raises the plea must make out; (1) that the second
suit was in respect of the same cause of action as that on
which the previous suit was based; (2) that in respect of
that cause of action the plaintiff was entitled to more than
one relief; (3) that being thus entitled to more than one
relief the plaintiff, without leave obtained from the court
omitted to sue for the relief for which the second suit had
been filed. From this analysis it would be seen that the
defendant would have to establish primarily and to start
with, the precise cause of action upon which the previous
17
suit was filed, for unless there is identity between the
cause of action on which the earlier suit was filed and that
on which the claim in the later suit is based there would
be no scope for the application of the bar.”
10. In Sandeep Polymers (P) Ltd. case the abovementioned
principles were reiterated and this Court held as under: (SCC
p. 158, para 13)
“13. ‘22. Under Order 2 Rule 1 of the Code which
contains provisions of mandatory nature, the requirement
is that the plaintiffs are duty-bound to claim the entire
relief. The suit has to be so framed as to afford ground for
final decision upon the subjects in dispute and to prevent
further litigation concerning them. Rule 2 further enjoins
on the plaintiff to include the whole of the claim which the
plaintiff is entitled to make in respect of the cause of
action. If the plaintiff omits to sue or intentionally
relinquishes any portion of his claim, it is not permissible
for him to sue in respect of the portion so omitted or
relinquished afterwards.’*”
11. The abovementioned decisions categorically lay down
the law that if a plaintiff is entitled to seek reliefs against the
defendant in respect of the same cause of action, the plaintiff
cannot split up the claim so as to omit one part to the claim
and sue for the other. If the cause of action is same, the
plaintiff has to place all his claims before the court in one
suit, as Order 2 Rule 2 CPC is based on the cardinal
principle that the defendant should not be vexed twice for the
same cause.
12. Order 2 Rule 2 CPC, therefore, requires the unity of all
claims based on the same cause of action in one suit, it does
not contemplate unity of distinct and separate causes of
action. On the abovementioned legal principle, let us examine
whether the High Court has correctly applied the legal
principle in the instant case.”
17) From a reading of the provisions of Order II, Rule 2 and
Rule 4 of the Code and also the principles laid down in the
aforementioned cases, it is clear that under Order II, Rule 2
read with Rule 4, the plaintiff can also claim mesne profits or
18
arrears of rent in a suit filed for ejectment of the tenant. The
plaintiff can further file a fresh suit for claiming mesne profits
or arrears of rent for the period subsequent to the decree
passed in the earlier suit having become final. But in a case
where the plaintiff has claimed mesne profits or arrears of rent
in a suit filed for ejectment of the tenant and has relinquished
his rights vis-à-vis mesne profits or arrears of rent in the suit
proceedings itself, the provisions of Order II, Rule 2 will come
into play and in comparison to the second suit for mesne
profits or arrears of rent till the decree, the earlier suit will
attain finality.
18) Applying the above principles to the facts of the present
case, we find that the decree in the earlier Suit No. 1481 of
1986 filed for ejectment of the appellant-Company and mesne
profits attained finality on 09.09.1998 and 25.09.1998 when
this Court had dismissed Civil Appeal No. 1657 of 1998 and
the application respectively filed by the appellant herein.
However, vide order dated 25.09.1998, this Court had directed
that if the appellant hands over the peaceful vacant
possession of the premises in question on or before
19
08.10.1998 then they will have to pay Rs. 2,500/- for the use
and occupation charges for the month of October 1998
otherwise Rs. 50,000/- as fixed earlier. It is not in dispute
that in the present case, the appellant had handed over
peaceful vacant possession to the respondent on 08.10.1998
and also that the respondent had relinquished the plea of
mesne profits during the suit proceedings itself. Thus the
prohibition contained in Order II Rule 2 would squarely apply.
19) Having regard to the earlier proceedings, as mentioned
above, in Civil Suit No. 1481 of 1986, wherein a decree for
possession was passed but the claim for mesne profits was
relinquished by the respondent-landlord and in view of the
subsequent orders of the Division Bench and this Court, the
question of further payments on account of mesne profits
which had been fixed and paid in the earlier suit did not arise.
The subsequent suit claiming mesne profits for the very same
period during which a fixed amount was paid by the
appellant-Company and accepted by the respondent without
objection is clearly not maintainable. The plaint does not
disclose any cause of action or any clear right to sue and was
20
liable to be rejected. The above facts would clearly show
that the averments in the plaint read along with the orders
and pleadings relied upon by the respondent in support of the
reliefs prayed for in Civil Suit No. 457 of 1998 do not disclose
any cause of action for the prayer for mesne profits made
therein.
Conclusion:-
20) In view of the above, we are of the considered opinion
that the possession of the appellant-Company for the period
under consideration, pursuant to orders passed by the High
Court and this Court, cannot in any view be considered as
illegal or unauthorized or that of a trespasser. For that
reason, the plaint in Civil Suit No. 457 of 1998 does not
disclose any cause of action for filing a suit for mesne profits
till surrender of possession. Therefore, the issue of mesne
profit attained finality and the respondent is not entitled to
raise the same issue now by way of filing a fresh suit. In other
words, by not pressing the claim of mesne profits raised in a
suit before the Court, unconditionally and without any
21
reservation, the respondent cannot thereafter turn around and
claim the same relief by filing a fresh suit.
21) In view of the foregoing discussion, we allow the appeal
filed by the appellant-Company.
...…………………………………J.
(R.K. AGRAWAL)
…………….………………………J.
(R. BANUMATHI)
NEW DELHI;
SEPTEMBER 5, 2017.
