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Dwarkadas Nathamal Vs. Vimal Alias Yamuna and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 160 of 1957
Judge
Reported inAIR1964Bom42; (1963)65BOMLR588; ILR1964Bom68
ActsCode of Civil Procedure (CPC), 1908 - Order 2, Rules 1 and 2, 2(2) and 2(3) - Order 21, Rules 100 and 103; Limitation Act - Sections 2 - Schedule - Article 109
AppellantDwarkadas Nathamal
RespondentVimal Alias Yamuna and ors.
Appellant AdvocateR.N. Deshpande, Adv.
Respondent AdvocateD.R. Baxy and ;G.B. Gandhe, Advs.
Excerpt:
civil procedure code (act v of 1908), order ii, rule 2 - suit by plaintiff jar mesne profits for particular year decreed--suit for mesne profits for subsequent years filed by plaintiff on same cause of action--whether suit barred under order ii, rule 2.;in february 1954 the plaintiff filed a suit against the defendants to recover mesne profits in respect of certain fields for the year 1950-51. the cause of action as set out in the plaint was that the defendants were in wrongful possession of the fields and they had received the profits for that year. this suit was decreed. the plaintiff thereafter filed another suit against the defendants claiming mesne profits for the years 1951-52 and 1952-53, alleging that the defendants were in wrongful possession for those two years and stated that..........falls for decision in this second appeal is whether the suit filed by the appellant to recover mesne profits of the years 1951-52 and 1952-53 is barred under order 2, rule 2 of the code of civil procedure by reason of a previous suit which was filed by him on the 17th of february 1954 to recover mesne profits of the year 1950-51.2. two agricultural lands bearing survey nos. 41/1 and 63, situated at brahma, district akola, originally belonged to uttamrao and others. in execution of a decree which was obtained by one nathamal, the lands were put to sale and were purchased by the appellant who obtained actual possession thereof on the 5th of august 1950. the 1st defendant and the predecessors-in-title of some of the other defendants hereafter filed an application under order 21, rule.....
Judgment:

1. The question which falls for decision in this Second Appeal is whether the suit filed by the appellant to recover mesne profits of the years 1951-52 and 1952-53 is barred under Order 2, Rule 2 of the Code of Civil Procedure by reason of a previous suit which was filed by him on the 17th of February 1954 to recover mesne profits of the year 1950-51.

2. Two agricultural lands bearing survey Nos. 41/1 and 63, situated at Brahma, District Akola, originally belonged to Uttamrao and others. In execution of a decree which was obtained by one Nathamal, the lands were put to sale and were purchased by the appellant who obtained actual possession thereof on the 5th of August 1950. The 1st defendant and the predecessors-in-title of some of the other defendants hereafter filed an application under Order 21, Rule 100 of the Civil Procedure Code stating that they were in lawful possession of the property and complaining that the appellant had unlawfully dispossessed them. That application was granted, as a result whereof possession was restored to the defendants on the 16th of July 1951. The appellant then brought a suit under Order 21, Rule 103 of the Civil Procedure Code to establish his right to the present possession of the property. That suit was decreed and the appellant regained possession on the 2nd December 1953. It shall have been noticed that as a result of the order which was passed in the proceedings taken by the defendants under Order 21, Rule 100, they were In possession from 16th of July 1951 till the 2nd of December 1953. On the 17th of February 1954 the appellant filed Civil Suit No. 12/B of 1954 against the defendants to recover mesne profits for the year 1950-51. The cause of action as set out In the plaint was as follows:

(a) that though the plaintiff was put In possession or the fields on the 5th of August 1950, the defendants continued to receive the profits for the whole of the agricultural season of 1950-51:

(b) that the defendants were in wrongful possession of the fields for the year 1950-51; and

(c) that the defendants were, therefore, liable to repayto the appellant the profits which they had made as personsin wrongful possession of the property. The suit was decreed on the 16th February 1955. The appellant, thereafter, filed the present suit on the 7th of March1955 claiming mesne profits for the years 1951-52 and52-53. In paragraph 2 Clause (c) of the plaint, the appellant has repeated the basic allegations which he had madeagainst the defendants in the earlier suit and has staredthat the defendants were in wrongful possession of theproperty for the years 1951-52 and 1952-53. In paragraph6 of the plaint which sets out the cause of action, it isstated that the cause of action to recover mesne profitsfor the year 1951-52 arose on the 31st of March 1952,'being the end of the agricultural year 1951-52', and thatthe cause of action to recover mesne profits for 1952-53 arose on the 31st of March 1953, 'which is the end of that agricultural year'.

3. The principal defence to the suit was that the clam for mesne profits for the years 1951-52 and 1952-53 should have been included in the earlier suit which was filed on the 17th of February 1954 for the mesne profits of the year 1950-51. It was contended on behalf of the defendants that the right to relief in the two suits arose out of the same cause of action and as the present claim could have been included in the earlier suit, the present suit was barred under Order 2, Rule 2 of the Code of Civil Procedure. The contention of the defendants has found favour with both the Courts, below who have dismissed the suit on the narrow ground of the bar arising under Order 2 Rule 2. Being aggrieved by the decree passed by the learned Additional District Judge, Washim, the plaintiff has filed this Second Appeal.

4. The question which falls for determination is whether the present suit which was filed on the 7th of March 1955 to recover mesne profits of the years 1951-52 and 1952-53 is barred under Order 2, Rule 2 of the Code of civil Procedure by reason of the plaintiff's omission to include this relief in the earlier suit which was filed on the 17th of February 1954 to recover mesne profits of the year 1950-51 only. Order 2, which deals with the frame of suits, provides by Rule 1 that every suit shall as far is practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Sub-rule (1) of Rule 2 provides that every suit must include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. Sub-rule (2), which is the bone of contention between the parties, says that 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. Sub-rule (3), which is in the nature of a corollary to Sub-rule (2), provides that where a person entitled to more than one relief in respect of the cause of action omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted. The explanation to Rule 2, in so far as is material, provides that successive claims arising under the same obligation shall be deemed to constitute but one cause of action.

5. Mr. Deshpande, who appears in support of this appeal, contends that the cause of action for the suit of 1954 was essentially different from the cause of action for the present suit, and that, therefore, the provisions of Order 2, Rule 2 can have no application. There can be no doubt that in order that the stringent provisions contained in Order 2, Rule 2 may apply, It is necessary that in the earlier suit the plaintiff should have omitted to ask for a relief which arises out of the same cause of action which forms the foundation of the subsequent suit. In other words, though the object of the Rule is to prevent multiplicity of litigation, the Rule can have no application if the causes of action for the two suits are different. The test of the application of Order 2, Rule 2 is not whether the plaintiff could not have avoided the fresh litigation by including in the earlier suit the relief for which he had prayed in the subsequent suit; the test rather is whether the relief which is claimed in the subsequent suit arises out of the same' cause of action on which the first suit was founded. It is only if this test is satisfied that the second suit would be barred under Order 2, Rule 2.

6. To be able to deal with the contention of Mr. Deshpande, it is necessary to consider the question as to what primarily constitutes cause of action in a suit for mesne profits. The argument of the learned Counsel is that the cause of action to recover mesne profits for the year 1950-51 is different from the cause of action to recover mesne profits for the years 1951-52 and 1952-53, because whereas in the earlier suit the plaintiff was called upon to prove that the defendants were in wrongful possession of the property for the year 1950-51, what the plaintiff is required to prove in the present suit in order to support his claim to the decree of the Court is that the defendants were in wrongful possession of the property for an entirely different period, namely, 1951-52 and 1952-53. This contention has been advanced by the learned Counsel as a foundation in support of the plea that the evidence in the two suits would be essentially different and the argument proceeds that one of the tests for ascertaining the identity of the causes of action is whether the same evidence will sustain the claims in the two suits. I find it difficult to agree that the cause of action in the suit of the year 1954 is different front that in the present suit. The principles which are applicable in the decision of the question as to the identity of the causes of action are summarized in a judgment of the Privy Council in Mohammad KhaliI Khan v. Mahbub Ali Mian . Those principles are; (1) that the correct test in cases falling under Order 2, Rule 2 is whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation of the former, suit. (2) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment. (3) If the evidence to support the two claims is different, then the causes of action are also different. (4) The causes of action in the two suits may be considered to be the same if in substance they are identical and (5) The cause of action has no relation whatever to the defence that may be set up by the defendant, nor does it depend on the character of the relief prayed for by the plaintiff. Applying these tests to the facts of the present case, it seems to the clear that the right of the plaintiff to claim mesne profits of the years 1951-52 and 52-53 rests on the same foundation on which his right to recover the mesne profits of the year 1950-51 rests. In order to establish his right to the decree of the Court, what the plaintiff was require to prove in the earlier suit was: (a) that he was the rightful owner of the property, and (b) that the defendants were in wrongful possession thereof. It is these very facts which the plaintiff is required to prove in the present suit. Mr. Deshpande urges that whereas the earlier suit could Have been defeated by the defendants by establishing that they were not in possession for the relevant year, namely, 1950-51, the present suit could be defeated only by showing that they were not in possession during the years 1951-52 and 52-53. The short answer which one can make to this argument is that a good or possible defence to the suit does not form a part of the cause of action for the suit, and as stated by the Privy Council, the cause of action has no relation to the defence that may be set up by the defendant. All that the plaintiff is interested in and is required to establish in the two suits is that he, being a rightful owner is entitled to be in possession of the property, that he has been unlawfully kept out of possession by the defendants and that, therefore, the defendants are liable to make over the rents and profits which they have received or which, with reasonable diligence, they may have received. The circumstance that in the two suits the plaintiff may be required to establish that the defendant was in possession of the property during two different periods will not justify the conclusion that the cause of action for the two is different. The cause of action is substantially identical in the two suits and it is no answer that because the periods covered by the two suits are different, therefore we suits are founded on distinct causes of action. If the cause of action for the two suits is substantially identical, then the present suit would be clearly barred under Order 2, Rule 2 of the Code of Civil Procedure, for, as observed by the Privy Council, in Mohammad Hafiz v. Mohanunad Zakariya 49 Ind App 9: AIR 1922 PC 23:

'.. . .. .the cause of action is the cause of action which gives occasion for and forms the foundation of the suit, and if that cause enables a man to ask for larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.'

7. Some support to the conclusion to which I have come can be sought from the illustration to Order 2, Rule 2, though, of course, illustrations cannot control the meaning of the statute. The illustration shows that if a tenant is in arrears of rent, say, for the years 1905, 1906 and 1907, and if the landlord files in the year 1908 a suit to recover the rent only of the year 1906, a subsequent suit to recover the rent for the years 1905 and 1907 is barred. If Mr. Deshpande's agument were to be accepted, the second suit for the rent of these years could not be barred because the years involved in the two suits are different. Whereas in the first suit the landlord had to prove that the tenant was in possession of the property in the year 1908 and had failed to pay rent for that year, the landlord would be required to prove in the subsequent suit that the tenant was in possession of the property in the years 1905 and 1907 and had not paid rent for those years. The mere circumstance that it was necessary to prove the possession of the defendants and their default for different years was obviously not deemed to be a circumstance affecting the identity of the causes of action in the two suits. In the present case, when the appellant instituted the earlier suit In 1954, he could have claimed the mesne profits of the years 1951-52 and 1952-53 which he is now attempting to recover. In my opinion, the causes of action for the two suits being identical and the appellant having omitted, in his earlier suit, to ask for a larger and wider relief which he could have claimed, the omission must attract the consequences provided for under Order 2, Rule 2 of the Code of Civil Procedure.

8. Mr. Deshpande says that the view indicated above is contrary to a decision of Boakas J. in Bhumanna Poshatty v. Narayan Sadashiv Kelapure, 1960 Nag L J 765. The facts of that case are that on the 31st of March 1953, the plaintiff filed a suit for mesne profits of the year 1949-50, Subsequently, he filed three separate suits to recover mesne profits of the years 1950-51, 1951-52 and 1952-53. It was contended on behalf of the defendants that the three subsequent suits were barred under Order 2, Rule 2 of the Code of Civil Procedure, as the claim in respect of those years could have been included in the earlier sun. The contention was repelled by Boakas J. on the ground that '. . . .the cause of action for claiming mesne profits for each successive year would arise separately in each year when the defendants wrongfully received the profits.' According to the learned Judge, the claim in the two suits pertained to different periods and was therefore based on different causes of action. In a passage at page 767 of the report, the learned Judge says:

'It Is clear that the claim for mesne profits can arise only when the defendant wrongfully appropriates the profits from the property in respect of which a claim is Mesne profits of property mean those profits which the person in wrongful possession of property actually received or might with ordinary diligence have received therefrom. Therefore, a right to claim mesne profits by a suit can accrue only when the person in wrongful possession of the property has actually received such profits. The crops from the lands were appropriated by the defendants in each year separately after the crops were harvested. The cause of action for claiming the mesne profits for each successive year would thus arise separately in each year when the defendants wrongfully received the profits. Even under Article 109 of the Limitation Act, the limitation for filing a suit for mesne profits begins front the date when the proms are received by the defendants. As the cause of action in respect of the mesne profits of each year has separately accrued, it was open for the plaintiffs to file a suit for claiming mesne profits in respect of each year separately. It cannot, therefore, be said that the four suits are based on the same cause of action.'

With very great respect, I am unable to agree with the view which the learned Judge has taken. It is clear from the passage quoted above that the basis of the view is that 'the claim for mesne profits can arise only when the defendant wrongfully appropriates the profits from the property in respect of which a claim is made'. In the first place, in order to sustain a claim for mesne profits, it is not necessary that the defendant must wrongfully appropriate the profits of the property in respect of which a claim is made. What the plaintiff is required to establish in a suit for mesne profits is that the defendant Is In wrongful possession of the property, and if that fact is established then the profits which the defendant has received or which he may with reasonable diligence have received must be paid to the plaintiff. Secondly, to hold that what gives rise to a right to claim mesne profits is the appropriation of the profits by the defendant and that 'a right to claim mesne profits by a suit can accrue only when the person in wrongful possession of the property had actually received such profits', is to ignore that the liability of we defendant to pay mesne profits is not dependent upon the actual receipt of the profits. Section 2 Clause (12) at the Code of Civil Procedure defines 'mesne profits' as profits which are either actually made or which might with reasonable diligence have been made by the person in wrongful possession of the property. Then again, the reference made by the learned Judge to Article 109 of the Limitation Act is, with respect, not apposite, because, column (3), of the several articles in the 1st Schedule to the Limitation Act concerns itself with the 'time from which period begins to run' and not with the date on which the cause of action for the suit accrues. The only implication of the third column of Article 109 is that a suit which is filed more than three years after the date on which the defendant received the profits would he barred by limitation. As stated by Sir John Beaumont in Dullabhbhai Mansji v. Gulabbhai Morarji Desai 40 Bom LR 100: AIR 1938 Bom 158:

'. . . . .Article 109 does not provide that the starting point of time for the recovery of mesne profits wrongfully received shall be the date when the cause of action to recover those profits arose; the starting point is the date when the profits were received.'

In coming to the conclusion that the cause of action for claiming mesne profits for each successive year is different. Mr. Justice 8adkas seems to have been partly influenced by the consideration that a suit to recover mesne proms would be barred if it was not filed within three years.the date on which the profits we're actually received by the defendant. As f have stated earlier, and as is clear from the observations of Beaumont C. )., the starting point of limitation 'for a suit to recover mesne profits may be we date on which the profits are received by the wrongful occupier and yet the cause of action for a suit to recover mesne profits may not necessarily be the date on which the profits are thus received.

9. I should have hesitated to take a view different from the one which has been taken by a Court of co-ordinate jurisdiction, but it does not seem necessary to refer the matter to a larger Bench, for, there are two decisions the ratio of which is clearly contrary to the decision of Mr. Justice Boakas. The first of these cases is a decision of the Privy Council reported in Naba Kumar Hazra v. Radhashyam Mahish AIR 931 PC 229. In that case, the 1st appellant who was a trustee for the mortgagors of a mortgage decree as also of certain properties which he had purchased in the name of his wife at a Court sale, was ordered to transfer the mortgage decree and the properties to the plaintiffs upon their recouping to him the sum which he had paid for the purchase of the decree and the amount which he had to expend for saving the properties from being proceeded against in certain execution proceedings. The respondents before the Privy Council had filed a suit in the year is for a declaratory relief without in the first instance praying for the assignment of the mortgage decree. They subsequently amended the plaint and prayed for assignment which prayer was granted by the trial Court. They were, however, dissatisfied with the decree and in the memorandum of appeal which they presented in the High Court, they specifically asked for the conveyance of the properties 'with necessary accounts'. The High Court varied the decree by issuing a direction that the property should be conveyed to the respondents but no order for accounts was made. The respondents thereafter, brought a fresh suit on the allegation that after the execution purchase of the properties by the appellant, the latter was in receipt of the rents and proms, and that, therefore, he was liable to pay the same to the respondents. On these facts, it was held by the Privy council that the two suits were based on the same cause of action as 'the right to the rents and profits rested on the same foundation of facts and law as the right to have the purchases of the decree and of 'the properties declared to be purchases for the mortgagors,'. Their, Lordships have observed in the Judgment that the relief which was asked for in the subsequent, suit 'could have been claimed in the previous suit' and as the plaintiffs had failed to so claim it, the relief could not be claimed in the subsequent suit by reason of the. provisions contained in Order 2, Rule 2. Mr. Deshpande argues that the question involved before, the Privy Council was different, as. the Privy Council was not concerned with successive suits for mesne profits. Mr. Deshpande is right that the Privy Council was dealing with a different kind of suit, but it seems to me dear that the decision of Boakas J. is contrary to the ratio of the decision of the Privy Council. In this behalf, it would be useful to call attention to two decisions of our own Court, which may facilitate a clearer appreciation of the ratio or the Privy Council decision. In Ramchandra Adaram v. Loana Court 26 Bom LR 288: AIR 1924 Bom 363 a Division Bench consisting of Sir Norman Macleod, C. J., and Shah J. had held that the omission to sue for mesne profits for a period prior to the date of the suit by which the plaintiffs asked for possession of immovable property does not bar a subsequent suit for mesne profits. In that case, the plaintiff who had purchased a house in March 1921 filed a suit for possession of the house and obtained a decree. He thereafter filedanother suit to 'recover rent of the house which had accrued due. prior to the date of the institution of the suit for possession. It was held that the claim for possession and the claim for rent prior to the suit for possession are separate causes of action and that there was no obligation on the plaintiff to join these two different causes of action in the same suit In coming to this conclusion, the learned Judges relied upon the 'decision of a Full Bench of the High Court of Madras reported in Ponnammal v. Ramamirda Aiyar ILR 38 Mad 829: AIR 1915 Mad 912, in which it was held that:

'Where a plaintiff sued for possession of lands only when he 'might have joined in the same action claims for mesne profits and damages, it was open to him to bring a subsequent suit against the same defendant for we profits which became payable before the institution of the former suit and which might have been included in such suit. After the decision in 26 Bom LR 288: AIR 1924 Bom 368 came the decision of the Privy Council in referred to above. In 1941, a question similar to the one which was decided in 26 Bom LR 288: AIR 1924 Bom 368 arose before a Division Bench of this Court, which held in Channappa Girimallappa v. Bagalkot Bank : AIR1942Bom338 that the decision in 26 Bom LR 288: AIR 1924 Bom 368 was irreconcilable with the decision of the Privy Council, in and that in view of the Privy Council decision, the proper view to take was that the right to the rents and profits or the properties wrongfully alienated rested on exactly the same facts and law as the claim to the corpus of those properties and that a subsequent suit for mesne proms which could have been claimed in the earlier suit for possession was barred under Order 2, Rule 2 of the Code of Civil Procedure. Sir John Beaumont, who delivered the. judgment of the Bench, observes in the judgment that it was difficult to reconcile 26 Bom LR 288: AIR 1924 Bom 368 with the opinion of the Privy Council and that the reliance which was placed in Ramchandra's case 26 Bom LR 288: AlR 1924 Bom 368 on the provisions contained in Order 2, Rule 4 was misplaced. The learned Chief Justice has also observed that it may well be that the expression 'cause of action' in Order 2, Rule 2'has a wider meaning than the similar expression used in Order 2, Rule 4, and the provisions in the latter rule which says that 'No cause of action, shall, unless with the leave of the Court, be joined with a suit for the-recovery of immoveable property except (a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof', may have been inserted out of abundant caution without intending to lay down that the cause, of action for possession and for mesne profits or for arrears of rent were distinct. Now, if causes or action in a suit for possession and in a suit for mesne profits are not distinct, then it would be difficult to hold that the causes of action In two separate suits for mesne profits between the same parties, though for different periods, would be distinct. The cause of action is what gives occasion for and forms the foundation of the suit; the cause of action is something different from the starting point of limitation; and the cause of action in a suit for mesne profits is not the actual receipt of the profits by the person in wrongful possession as held by Boakas J., but the cause of action is the wrongful possession of the defendant. If in respect of any particular year the defendant could show that he himself was ousted by a third party, or that he was not in possession, the liability of the defendant to that extent may cease but the answer made by the defendant or a possible defence to the suit which may be open to the defendant cannot form a part of the cause of action of the plaintiff.

10. The other decision to which reference must the made is the one in Second Appeal No. 342 of 1950 which was decided by Kotwal J. on 31-8-1956. One of the questions which the learned Judge referred to the Division Bench by his order of reference dated 15-44958 was 'where once a suit for possession and future mesne proms is decided, can a subsequent suit lie under Order 2 Rule 2, Civil Procedure Code, for past mesne profits prior to the date of the institution of the first suit.' Unfortunately, the judgment of the Division Bench is not available as the record of the. appeal was transferred to the High Court of Madhya Pradesh, but it is clear from the final judgment or Kotwal J. dated 31-8-1956 that the Division Bench consisting of Kidaytullah C. J. and Mangalmurti J. took the view that as the plaintiff had failed to ask for past mesne profits in the earlier suit, the subsequent suit for that relief was barred under Order 2 Rule 2. The ratio of this decision is clearly contrary to the decision of Boakas J.

11. For these reasons, I am of the opinion that the present suit which was filed by the appellant on the 7th of March 1955 to recover mesne profits of the years 1951-52 and 1952-53 is barred under Order 2, Rule 2 of the Code of Civil Procedure, as the appellant had omitted to claim those mesne profits in the earlier suit which he had filed on the 17th of February 1954 in which he only claimed the mesne profits for the year 1950-51. To permit successive suits for mesne profits to be filed in such circumstances is to permit the plaintiff to sue subsequently in respect of a portion of the claim which he was entitled to make In the earlier suit and which arose out of the same cause of action but which he had omitted to make.

12. The appeal will, therefore, be dismissed and the decree passed by the learned Additional District judge will be confirmed. There will, however, be no order as to costs.

13. Appeal dismissed.


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