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Bhumanna Poshalty Vs. Narayan Sadashiv Kelapure - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case Number Second Appeal No. 5 of 1959 (with Appeal Nos 8 and 9 1959)
Judge
Reported in(1961)63BOMLR269
AppellantBhumanna Poshalty
RespondentNarayan Sadashiv Kelapure
DispositionAppeal Dismissed
Excerpt:
.....v of 1908), order ii, rule 2 -- suits claiming mesne profits filed in successive years--when first suit filed, cause of action for claiming mesne profits covered by subsequent suits accruing--whether subsequent suits barred under order ii, rule 2, of code.;the plaintiffs who had obtained a decree for possession of lands and for rent filed a suit in 1953 claiming mesne profits from defendants for the year 1949-50. in the years 1954, 1955 and 1956 the plaintiffs filed three successive suits claiming mesne profits for the years 1950-51, 1951-52 and 1952-53 respectively. when the first suit for mesne profits for the year 1949-50 was filed the cause of action for claiming mesne profits covered by the three subsequent suits had already accrued. on the question whether the suits of the years..........of this litigation in this first suit no. 20-a of 1949, the plaintiffs filed four suits claiming mesne profits for four successive years, the said mesne profits having accrued after the filing of the first suit for possession. the defendants, in the four suits, contended by way of preliminary objection that the later three suits of the years 1954, 1955 and 1956 were barred by the provisions of order ii, rule 2, of the code of civil procedure, for the reason that the claims for mesne profits in these three suits had already accrued due on the date when the first suit for mesne profits was filed and that the plaintiffs had omitted to include the claims covered by the later three suits in that first suit for mesne profits which was filed on march 31, 1953. the first court held that the.....
Judgment:

Badkas, J.

1. This judgment will govern Appeals Nos. 5 of 1959, 8 of 1959 and 9 of 1959. In all the three appeals, the parties were common. The facts giving rise to these three appeals are as follows:-The plaintiffs, who are the respondents in the three appeals, had filed Civil Suit No. 20-A of 1949 against the defendants, who are the appellants in the three respective appeals, for possession of Survey Nos. 131 and 132 of mouza Kurli and for rent for the year 1948-49 on the ground that the land in question was leased out to the defendants and that the said lease having expired the plaintiffs were entitled to possession of the land. This suit was decreed by the lower Courts and the defendants had filed an appeal in the High Court which has also now been dismissed. During the pendency of this litigation in this first suit No. 20-A of 1949, the plaintiffs filed four suits claiming mesne profits for four successive years, the said mesne profits having accrued after the filing of the first suit for possession. The defendants, in the four suits, contended by way of preliminary objection that the later three suits of the years 1954, 1955 and 1956 were barred by the provisions of Order II, Rule 2, of the Code of Civil Procedure, for the reason that the claims for mesne profits in these three suits had already accrued due on the date when the first suit for mesne profits was filed and that the plaintiffs had omitted to include the claims covered by the later three suits in that first suit for mesne profits which was filed on March 31, 1953. The first Court held that the later three suits were barred under Order II, Rule 2, of the Civil Procedure Code, read with the Explanation, and proceeded to try the first suit only. In the first appeals, which were filed by the plaintiffs in respect of the three suits which were held to be barred under Order II, Rule 2, of the Civil Procedure Code, the learned lower appellate Court held that the three suits were not barred by Order II, Rule 2, of the Civil Procedure Code. The order passed by the trial Court was thus set aside. Against this decision, the defendants in the three suits have filed the three appeals.

2. The main point for consideration in these appeals is whether the claims for mesne profits for successive years can become the subject-matter of separate suits and whether it was necessary for the plaintiffs to include the claim in respect of these three suits in their first suit as, on the date when the first suit was filed, the cause of action had already accrued even in respect of the claims covered by those three suits. Order II, Rule 2, of the Civil Procedure Code provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and that where the 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) of Rule 2 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, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation to Rule 2 provides:

For the purposes 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.

Relying on the above provisions under Order II, Rule 2, Civil Procedure Code, it has been contended by the learned Counsel appearing for the appellants that it was incumbent on the plaintiffs to include their claims for mesne profits in respect of the three successive years in the first suit as, on the date the suit was filed, the plaintiffs had already obtained a right to claim such mesne profits for the subsequent years. The learned Counsel for the appellants has not been able to point out to me any authority dealing with a similar question and holding the view contrary to what has been taken by the learned lower appellate Court Various authorities were cited during the course of the arguments, but all those authorities related to suits for possession of property and suits claiming mesne profits which had accrued before the filing of the suits for possession. In the instant cases, the possession of the land was already decreed. Thereafter the first suit for possession was filed on March 31, 1953. Civil Suit No. 20-A of 1949, which was a suit for possession of the lands and for rent, was filed on April 18, 1949, and was declared on February 11, 1950. Therefore, the plaintiffs filed the first suit on March 31, 1953 (Civil Suit No. 28-B of 1953) claiming mesne profits for the year 1949-50. The second suit was filed on March 31, 1954, claiming mesne profits for the year 1950-51. The third suit was filed on March 29, 1955, claiming mesne profits for the year 1951-52 and the fourth suit No. 34-B of 1956 was filed on March 2, 1956, claiming mesne profits for the year 1952-53. It would appear that on March 31, 1953, when the first suit for mesne profits for the year 1949-50 was filed, the causes of action for claiming mesne profits covered by the three subsequent suits had already accrued. It is, therefore, contended by the defendants that the plaintiffs should have included the claim under the three subsequent suits in the first suit No. 28-B of 1953 which was filed on March 31, 1953. 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 made. 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 from the date when the profits 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. Under Sub-rule (1) of Rule 2 of Order II, Civil Procedure Code, it is incumbent on the plaintiff to sue for the whole claim to which he is entitled in respect of the cause of action on which such claim is based. It is only when the plaintiff omits to sue in respect of any portion of the claim arising from a cause of action that afterwards he is not entitled to sue in respect of the portion so omitted. Sub-rule (5) of Rule 2 of Order II, Civil Procedure Code, is an enabling provision for joinder of more than one claim or relief in respect of the same cause of action. The Explanation attached to Rule 2 also makes it clear that for the purposes 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. Order II, Rule 2, Civil Procedure Code, therefore, will not be attracted when the plaintiffs have filed separate suits on the basis of separate causes of action. In a case reported in Naba Kumar v. Radhasyam while interpreting Order II, Rule 2, Civil Procedure Code, their Lordships have observed (p. 230):

The rule in question is intended to deal with the vice of splitting a cause of action. It provides that a suit must include the whole of any claim which the plaintiff is entitled to make in respect of the cause of action on which he sues, and that if he omits (except with the leave of the Court) to sue for any relief to which his cause of action would entitle him, he cannot claim it in a subsequent suit.

3. The main question, therefore, to be considered is whether the claims in respect of the four suits arise on the same cause of action or whether these claims arise on different causes of action accruing in different years as stated by the plaintiffs. As already observed above, the plaintiffs become entitled to claim mesne profits only when the defendants, who are wrongfully in possession of the property, received the profits. The cause of action for mesne profits, therefore, arises separately in each year as and when the defendants wrongfully received the profits. It cannot, therefore, be held that the claims for mesne profits for the years 1950-51, 1951-52 and 1952-53 arose under the same cause of action or under the same obligation. It was, therefore, open for the plaintiffs to file separate suits in respect of the claim for mesne profits in each of those four successive years and that Order II, Rule 2, of the Civil Procedure Code would not come in their way. I, therefore, see no error in the decision of the learned lower appellate Court.

4. In the result, the three appeals shall stand dismissed with costs.


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