JUDGMENT

An interesting question of law arises in this appeal as to whether the suit filed for mesne profits that accrued during the pendency of the earlier suit is maintainable. The respondent herein instituted an earlier suit against the appellant in O.S No. 355 of 1989 on the file of the Court of District Munsif, Maduranthagam on the ground that the appellant trespassed into the suit property and the appellant was in illegal possession of the suit property. The said suit was instituted for declaration and recovery of possession of the suit property. The said suit was decreed on 2.4.1992 Against the judgment and decree of the trial Court, the appellant herein, who was the defendant in the suit, preferred an appeal in A.S No. 47 of 1992 on the file of Subordinate Judge's Court, Chengalpattu and the said appeal came to be dismissed on 30.10.1992 The appellant herein preferred a further appeal before this Court in S.A No. 1801 of 1992 and the same was also dismissed on 15.4.1999 Thereafter, the respondent herein, who was the plaintiff in the earlier suit, filed an execution petition in E.P No. 127 of 1999 to execute the decree and in the execution of the decree, he obtained possession of the suit property on 30.9.1999 It is relevant to mention here that in the earlier suit filed by the respondent herein, the respondent has prayed only for declaration and recovery of possession of the suit property and there was no relief sought either for past mesne profits or for mesne profits that accrued during the pendency of the suit.

2. The respondent herein, after taking possession of the suit property instituted the present suit in O.S No. 86 of 2000 on the file of Subordinate Judge's Court, Maduranthagam claiming mesne profits for the period from April, 1997 to September, 1999 when the possession was taken at the rate of Rs. 1,500/- per month totalling a sum of Rs. 45,000/- with interest at the rate of 12% p.a and probably the rest of the claim was barred by limitation. The appellant, who is the defendant in the suit, raised several defences and one such defence was that the suit instituted by the respondent for recovery of mesne profits for the period from April, 1997 to September, 1999 is not maintainable as the suit is hit by Order II, Rule 2, Code of Civil Procedure. Learned Subordinate Judge, on the basis of pleadings, framed necessary issues for consideration and after considering the evidence let in on behalf of the parties, ultimately held that the suit is maintainable and the plaintiff/respondent herein would be entitled to a decree for a sum of Rs. 21,000/- along With interest at the rate of 6% p.a from the date of plaint till the date of realisation. The appellant herein preferred an appeal in A.S No. 22 of 2001 on the file of District Court, Chengalpattu raising the plea that the suit instituted by the plaintiff is hit by Order II, Rule 2 C.P.C as the claim of mesne profits is part of the cause of action for the relief of declaration and recovery of possession and hence, the suit is not maintainable. Learned Additional District Judge (Fast Track Court No. I), Chengalpattu, however, did not accept the contention raised on behalf of the appellant and dismissed the appeal. It is against the judgment and decree of the learned Additional District Judge, the present appeal has been preferred.

3. The only point that has been urged before me by Mr. M. Kalyanasundaram, learned senior counsel for the appellant is that the present suit instituted for recovery of mesne profits for the period from April, 1997 to September, 1999 is not maintainable as the cause of action for the claim for mesne profits is part of the cause of action which led the plaintiff to file the earlier suit in O.S No. 355 of 1989 for declaration and recovery of possession of the suit property on the ground that the appellant herein was in illegal possession of the suit property. Learned senior counsel submitted that the respondent herein has not obtained prior leave of the Court to file the present suit for mesne profits as required under Order II, Rule 2 C.P.C and since no leave of the Court was obtained, the present suit instituted by the respondent is squarely hit by Order II, Rule 2 C.P.C and the view of learned trial Judge as well as the appellate Judge is not correct.

4. Learned senior counsel strongly relied upon the decision of the Supreme Court in Shankar Sitaram v. Balkrishna Sitaram (AIR 1954 SC 352= (1954) 67 L.W 637), particularly paragraph-10 of the judgment wherein the Supreme Court considered the scope of Order II, Rule 2 C.P.C and submitted that on the basis of the decision of the Supreme Court, the cause of action for the first suit and the cause of action for the second suit instituted by the respondent herein are one and the same, and the earlier suit embraced the entire property and no reservation has been made in the earlier suit for mesne profits and hence, it must be held that the plaintiff, who is the respondent herein, has abandoned his right to claim mesne profits either past or future in the earlier suit itself. Learned senior counsel also relied upon the Full Bench decision of this Court in Basavayya v. Guravayya (AIR (38) 1951 Madras 938= (1951) 64 L.W 669) and submitted that in a suit for ejectment or recovery of possession of immovable property from a person in possession without title, the claim for past or/and future mesne profits should also be included and the provisional amount should be evaluated and necessary court fee should be paid and since the plaintiff has not claimed any relief in the earlier suit for past or future mesne profits, the present suit is hit by Order II, Rule 2 C.P.C Learned senior counsel also relied upon the decision of the Supreme Court in Gopalakrishna Pillai v. Meenakshi Ayal (AIR 1967 S.C 155) and submitted that on the basis of the decision of the Supreme Court, the present suit is not maintainable. Learned senior counsel also relied upon the Full Bench decision of this Court In re Lakshminarayana (AIR 1954 Madras 594= (1954) 67 L.W 123) to contend that the cause of action means a bundle of essential facts which is necessary for the plaintiff to prove before he can succeed in the suit and the cause of action for future mesne profits arose out of the illegal occupation of the appellant herein and hence, the relief of mesne profits should have been claimed in the earlier suit itself and since the plaintiff has not claimed the same in the earlier suit, it must be held that the plaintiff, who is the respondent herein, has abandoned his claim for mesne profits in the earlier suit. Learned senior counsel strongly relied upon the decision of the Supreme Court in Devaram v. Ishwar Chand (1995) 6 SCC 733) and submitted that in view of the decision of the Supreme Court in Devaram case, the present suit is not maintainable. Learned senior counsel submitted that a reading of Order II, Rule 4 C.P.C suggests that the claim for mesne profits, either past or future, should have been included in the suit for recovery of possession of immovable property and since the respondent herein has not made the claim for mesne profits or obtained the leave of the court in the suit earlier instituted for recovery of possession, the present suit for mesne profits is not maintainable on the ground that it is barred under Order II, Rule 2 C.P.C

5. When the appeal came up for admission, Mr. Jagadeesh, learned counsel took notice for the respondent. He submitted that on the basis of decision of this Court in Ponnammal v. Ramamirda Aiyar (AIR 1915 Madras 912) the present suit is maintainable in law. Learned counsel also referred to the decision of this Court in Ramiah v. Thathiah (AIR 1937 Madras 849) wherein this Court held that the suit for mesne profits instituted subsequent to the suit for possession is different from the suit for possession and the suit for mesne profits is not barred by Order II, Rule 2 C.P.C Learned counsel also relied upon the decision of this Court in Venugopal Pillai v. Thirugnanavalli Ammal (1940 (II) MLJ 427 = (1940) 52 L.W 533) and submitted that the present suit is maintainable on the basis of the decision of this Court in Venugopal Pillai case. Learned counsel also referred to the Full Bench decision of Punjab & Haryana High Court in Sadhu Singh v. Pritam Singh (AIR 1976 Punjab & Haryana 38) and submitted that the suit for recovery of mesne profits instituted subsequent to the suit for possession of property is not barred.

5. I have carefully considered the submissions of Mr. Kalyanasundaram, learned senior counsel for the appellant and Mr. Jagadeesh, learned counsel for the respondent. The only point that arises for consideration is whether the suit instituted by the respondent is maintainable in view of Order II, Rule 2 C.P.C I make it clear that though I have not admitted the appeal, the above question of law is framed for consideration.

6. Order II, Rule 2 C.P.C reads as under:—

“2. Suit to include the whole claim:— (1) Every suit shall include the whole of the claim which the plaintiff is 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.

Explanation:— For the purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

A close reading of Order II, Rule 2 C.P.C indicates that where the plaintiff omits to sue in respect of any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Sub-rule (3) of Order II, Rule 2 C.P.C provides that 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, he is debarred from claiming such relief so omitted to claim unless he obtains prior leave of the Court.

7. The question that arises for consideration is whether the cause of action for future mesne profits is part of the cause of action for recovery of possession and whether the respondent herein is prevented from instituting the present suit for recovery of future mesne profits that accrued during the pendency of the earlier suit. It is also relevant to refer to Order II, Rule 4 C.P.C which reads as under:—

“4. Only certain claims to be joined for recovery of immovable property:— No cause of action shall, unless with the leave of the court, be joined with a suit for the recovery of immovable property, except-

(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof;

(b) claims for damages for breach of any contract under which the property or any part thereof is held; and

(c) claims in which the relief sought is based on the same cause of action;

Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.”

Order II, Rule 4 C.P.C deals with the cause of action for the claim of mesne profits. I am of the view that the cause of action for recovery of mesne profits is distinct and different from the cause of action for recovery of possession of immovable property and if it is a part of the same cause of action leading to the filing of the suit for recovery of possession, the legislature need not have introduced Order II, Rule 4 C.P.C Order II, Rule 4 C.P.C, though couched in negative form, gives a clue that without obtaining the leave of Court, it is open to the party to join in a suit instituted for recovery of immovable property the claim for mesne profits or arrears of rent in respect of the property claimed or any part thereof meaning thereby that the cause of action for recovery of immovable property and the cause of action for mesne profits are different, and if they are one and the same, there is no need for the legislature to incorporate a specific provision in Order II, Rule 4 C.P.C In my view, it is open to the plaintiff in a suit for recovery of immovable property not to claim mesne profits either past or future arising out the said property in the same suit and to institute a separate suit for mesne profits that accrued during the pendency of earlier suit, of course, subject to the law of limitation. I make it clear that I am not dealing with a suit instituted for the recovery of past mesne profits.

8. The definition of the expression ‘mesne profits’ is also relevant. The expression ‘mesne profits’ is defined in section 2 (12) C.P.C and it is nothing but the profits the person in wrongful possession actually received or might, with ordinary diligence, have received from the property in his wrongful possession. I am of the view that the definition of the expression, ‘mesne profits’ indicates that the plaintiff should be in a position to establish that the person actually received the profits or might, with ordinary diligence, have received the same from the property and to establish the same he must be in a position to lead evidence on that aspect. To take an instance that in a suit for recovery of possession of immovable property, if the plaintiff has included the claim for mesne profits that accrued during the pendency of the suit, a situation may arise that it may not be possible for the plaintiff to lead evidence with reference to the mesne profits that the defendant might have received as profits from the property after the closure of his evidence during the period of trial and also during the progress of appeal, if any appeal is preferred. Hence in such cases, after the decree, a separate inquiry has necessarily to be ordered by relegating the matter for mesne profits inquiry.

9. The Full Bench decision of this Court in Ponnammal v. Ramamirda (AIR 1915 Madras 912) held that the claim for recovery of land and the claim for mesne profits are separate causes of action and the provisions under Order II, Rule 2 C.P.C do not bar the subsequent suit instituted for past mesne profits. I am of the view that the ratio of the Full Bench decision would apply to the facts of the case as in the case before the Full Bench, the suit was instituted for recovery of past mesne profits and the plaintiff herein is on a stronger foundation as it is a suit for recovery of mesne profits that accrued during the pendency of the earlier suit.

10. This Court considered a similar question in Ramiah v. Thathiah (AIR 1937 Madras 849 = (1938) 47 L.W 547) and the learned Judge has held that the claim for mesne profits that accrued subsequent to the institution of the suit for possession is a separate cause of action and not one arising out of the same cause of action on which the claim for possession is based. The same view has also been taken by this Court in Venugopal Pillai v. Thirugnanavalli Ammal (1940 (II) MLJ 427 = (1940) 52 L.W 573). I also find that a Full Bench of the Punjab and Haryana High Court in Sadhu Singh v. Pritam Singh (AIR 1976 Punjab & Haryana 38) has held that Order II, Rule 2 C.P.C does not bar the suit for mesne profits filed subsequent to a suit for possession of the property though the claim for the accrued mesne profits was not included in the earlier suit.

11. As far as the decisions relied upon by the learned senior counsel for the appellant are concerned, the decision in Shankar Sitaram v. Balkrishna Sitaram (AIR 1954 SC 352 = (1954) 67 L.W 637) is distinguishable as in that case it was found that the causes of action for the two suits were one and the same and the plaintiff in that suit had omitted to claim the relief and abandoned his right to claim the relief and the Supreme Court held that the subsequent suit instituted by the plaintiff for the abandoned right was not maintainable. The decision of Full Bench of this Court in Basavayya v. Guravayya (AIR (38) 1951 Madras 938 = (1951) 64 L.W 669) is also not helpful to the appellant as the decision deals with as to what is meant by the mesne profits under Order XX, Rule 18 C.P.C As far as the decision of the Supreme Court in Gopalakrishna Pillai v. Meenakshi Ayal (AIR 1967 S.C 155) is concerned, the decision far from supporting the case of the appellant really supports the case of the respondent herein. The Supreme Court in Gopalakrishna Pillai case has held that with reference to future mesne profits the plaintiff has no cause of action on the date of institution of the suit for possession and it is not possible for the plaintiff to plead this cause of action or to value it or to pay court fees thereon at the time of institution of the suit. The decision of the Supreme Court in Gopalakrishna Pillai case makes it clear that with reference to future mesne profits, the plaintiff has no cause of action on the date of institution of the suit for recovery of possession and hence, the submission that the claim for future mesne profits would form part of the same cause of action for recovery of immovable property is not acceptable. The Supreme Court also noticed the decision of this Court in Basavayya v. Guruvayya (ILR (1952) Mad 173=(1951) 64 L.W 669) where this Court held that in a suit to which the provisions of Order XX, Rule 12 C.P.C apply, the Court has a discretionary power to pass a decree directing an enquiry into the future mesne profits and the Court may grant the relief, though it is not specifically prayed for in the plaint. The above decision makes it clear that the Court has the discretionary power to order inquiry regarding the ascertainment of future mesne profits and such an inquiry would be relegated in separate proceedings in a suit for recovery of possession and at the same time, the plaintiff is also not prevented from instituting a separate suit for recovery of future mesne profits that accrued during the pendency of the suit for recovery of possession of the suit property. In so far as other decisions relied upon by learned senior counsel for the appellant, namely, (i) Deva Ram v. Ishwar Chand (1995) 6 SCC 733), (ii) In Re Lakshminaraya (AIR 1954 Madras 594= (1954) 67 L.W 123), (iii) Gurbux Singh v. Bhooralal (AIR 1964 S.C 1810) and (iv) Gnanaprakasam v. Sabasthi Ammal (1980 (I) MLJ 182) are concerned, they are general in nature and not applicable to the facts of the case.

12. I am therefore of the view that the respondent herein who is the plaintiff is not precluded in any way from instituting the present suit for recovery of mesne profits that accrued during the pendency of the earlier suit for recovery of possession of the suit property and the bar under Order II, Rule 2 C.P.C does not apply as there was no cause of action for the plaintiff to institute the suit for future mesne profits on the date when the earlier suit was instituted for recovery of possession of the suit property from the appellant herein who was found to be in unlawful possession of the property without title. I have already held that Order II, Rule 4 C.P.C also gives a clue that it is open to the plaintiff to institute a separate suit for mesne profits that accrued during the pendency of the suit for recovery of possession of the suit property. I am fortified in my view by several decisions of various High Courts wherein an uniform view has been entertained that such a suit for recovery of mesne profits is maintainable.

13. A Full Bench of Allahabad High Court in Ram Karan Singh v. Nakchhed Ahir (ILR 53 Allahabad Series 951) has taken a view that the cause of action for recovery of possession is not necessarily identical to the cause of action for recovery of mesne profits and the provisions of Order II, Rule 4 C.P.C recognise the said position and indicate that the legislature thought it necessary to provide specially for joining the two causes of action in the same suit and that but for such an express provision such a combination might well have been disallowed. A Division Bench of Oudh High Court in Wajid Khan v. Wahid Husain (AIR 1931 Oudh 131) has held that the relief for possession and the relief for future mesne profits would arise out of different causes of action. The Bombay High Court in Rama Kallappa v. Saidappa Sidrama (ILR 59 Bombay Series 454) has also taken the view and held that though in the suit for possession no claim was made for mesne profits, the subsequent suit for mesne profits is maintainable and both the suits are based on different causes of action and the subsequent suit is not barred by the provisions of Order II, Rule 2 C.P.C In Damodaran v. Thariath (AIR 1954 TRA-CO. 377) the Travancore-Cochin High Court has held that the omission to claim mesne profits in the suit for possession could not be said to be an omission or to relinquish a part of cause of action within the scope of Order II, Rule 2 C.P.C so as to bar a subsequent suit for recovery of future mesne profits. A Division Bench of Assam High Court in Tara Kishore v. Beharu (AIR 1958 Assam 67) and the Orissa High Court in Mukunda v. Krupasindhu (AIR 1954 Orissa 202) have also taken the same view and held that when the first suit is for recovery of possession, the second suit for recovery of mesne profits is not barred by Order II, Rule 2 C.P.C as the claim for future mesne profits arises subsequent to the suit for possession and not on the date when the suit for recovery of possession was instituted and Order XX, Rule 12 C.P.C is permissive in nature.

14. The decisions of the Supreme Court and various High Courts indicate that the present suit instituted by the respondent herein for recovery of mesne profits that accrued during the pendency of the earlier suit for recovery of possession of the suit property is maintainable. I am of the view that the provisions of Order II, Rule 2 C.P.C do not preclude the plaintiff in any way from instituting the present suit for recovery of mesne profits that accrued during the pendency of the earlier suit for recovery of possession of the suit property. I hold that the view entertained by the trial Court which has been confirmed by the learned Additional District Judge is in accordance with law. I do not find any justifiable reason to interfere with the judgment and decree of the learned Additional District Judge, Chengalpattu. Consequently, the question of law that has been framed is answered in favour of the respondent and the second appeal stands dismissed, in limine, at the admission stage itself. There will be no order as to costs. Connected C.M.P No. 3656 of 2004 is closed.

VCJ/VCS