1. This second appeal raises an interesting point which has led to some divergence of opinion. The plaintiff-respondent purchased two plots No. 1227 and No. 1712, and brought a suit O. S. No. 298 of 1943 in the Court of the 2nd Munsif, Cuttack, for recovery of possession of the same from the defendants who had trespassed upon the suit lauds. In that suit he had prayed for subsequent mesne profits till recovery of possession. The suit was decreed ex parte and the decree directed that the plaintiff should be put in possession of the disputed properties, but contained no directions with regard to the claim for future mesne profits. In execution of the decree the plaintiff took delivery of possession of the disputed plots through Court, on 7-8-1946 and on 31-1-1947. Thereafter, he filed another suit for mesne profits, from the date of institution of the suit till the date of delivery of possession. The defendants contended that the second suit was barred under Order 2, Rule 2 as well as under Explanation 5 to Section 11, Civil P. C. Both the courts below have overruled the contention, and the point for decision is whether the plea taken by the defendants should be upheld.
2. The plaint in the earlier suit has not been exhibited, but it appears from Ext. 4, the certified copy of the decree in that suit (O. S. 298 of 1943) that no direction had been given with regard to the ascertainment of the mesne profits. The decree is silent about it. But it is clear that if the plaintiff was bound to include this claim for subsequent mesne profits in his earlier suit, the second suit out of which the present second appeal arises must be held to be barred by the provisions of Order 2, Rule 2 of Civil P. C. That rule lays down 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 is intended to deal with the vice of splitting the cause of action.
It provides that the suit must include the whole of any claim which the plaintiff is entitled to make in respect of any 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. The object of this salutary rule is doubtless to prevent multiplicity of suite. See -- 'Naba Kumar v. Radheshyam', AIR 1931 PC 229 (A). The question, therefore, is whether the plaintiff was entitled to the claim which he now makes when he filed the first suit, and whether that claim arose out of the cause of action upon which the earlier suit was founded.
3. There can be no doubt that the claim for mesne profits which accrued from the date of the sale deed in favour of the plaintiff to the date of institution of the suit arose out of the same cause of action. But it can hardly be said that the claim for mesne profits subsequent to the institution of the suit also arose before the suit was instituted.
Order 20, Rule 12 of the Civil Procedure Codeprovides the rule as to what the Court may doin a suit for possession and mesne profits. Thatrule is as follows:
'12. (1) Where a suit is for recovery of possessionof immovable property and for rent or for mesneprofits, the Court may pass a decree
(a) for possession of the property,
(b) for the rents or mesne profits which have accrued on the property during a period prior to the institution of the suit or directing an enquiry as to such rents or mesne profits,
(c) directing an enquiry as to rents or mesneprofits from the institution of the suit until--
(i) delivery of possession;
(ii) relinquishment of possession by the judgment-debtor with notice to the decree-holder through court; or
(iii) the expiration of three years from the date of the decree, whichever event first occurs; and
(2) Where an enquiry is directed under Clause (b) or Clause (c), a final decree in respect of the rents or mesne profits shall be passed in accordance with the result of such enquiry.'
It will be seen that all the reliefs which the Court is empowered to grant in a suit for possession are enumerated in Rule 12. The word 'may' used in the Rule would seem to indicate that it was discretionary with the Court to grant the prayer of the plaintiff with regard to mesne profits from the institution of the suit until delivery of possession to the decree-holder, or the expiration of three years from the date of the decree, whichever event first occurs. But it has been held in some cases that the power of the Court to direct an enquiry into future mesne profits has been placed precisely on the same footing as the power of the Court to pass a decree for possession, or for past mesne profits. There is nothing to indicate that the one relief is more a matter of discretion and less of right than the other. See -- 'Ramaswami Iyer v. Sri Rangaraja Iyengar', AIR 1915 Mad 1132 (B) and the dictum of Das J. in -- 'Haranandan Rai v. Baliram Prasad', AIR 1931 Pat 1 (C) at p. 11. See also -- 'Atmaram Bhaskar v. Parasram', AIR 1920 Bom 39 (D).
According to this view the word 'may' used in Rule 12 of Order 20 has a compulsory force even if, ordinarily, it is an enabling word. It confers a power on the Court to use that power whenoccasion arises and in such circumstances the Court is bound to exercise that power if that would avoid a multiplicity of suits. It has accordingly been held that the power should be exercised on all occasions on which the successful claimant establishes his right on merits. This view follows the well-known principle laid down in -- 'Macdougall v. Patterson', (1851) 138 ER 672 (E) that where a statute confers an authority to do a judicial act in certain cases, it is imperative on those so authorised, to exercise the authority when the case arises and its exercise is duly applied for by a party interested and having the right to make the application. But so far as the interpretation of Rule 12 is concerned there is abundant authority for the contrary view in several reported decisions of the High Courts where it has been held that the word 'may' has no such compulsory force and that it is still discretionary with the court whether or not to grant the relief for future mesne profits.
When different claims are dealt with in one rule under various sub-sections, the fact that the word 'may' should be construed as 'shall' in respect of one of the sub-sections owing to the nature of the claim which it deals with, does not necessarily mean that the word cannot be construed in its ordinary sense as regards the other clauses. See--'Mohammed Ishaq Khan v. Mohammed Rustom Alikhan', AIR 1918 All 412 (F); --'Doraiswami Iyer v. Subramania Iyer', AIR 1918 Mad 434 (PB) (G). In -- 'Ramjanam Singh v. Khub Lal, AIR 1925 Pat 145 (2) (H) it was held that a subsequent suit for mesne profits is not barred either under Section 11 or under Order 2, Rule 2 of the Civil P. C. as the claim for future mesne profits arises subsequent to the suit for possession and not at the date when the suit was instituted. It has also been held that Order 20, Rule 12, Civil Procedure Code is permissive in nature and casts no obligation on the Court to direct an enquiry. Where therefore the decree is silent a second suit is not barred. This decision was followed in -- 'AIR 1931 Pat 1 (C) by Wort J. to whom the matter was referred on a difference of opinion between Fazl Ali and Das JJ.
The consensus of opinion among the several High Courts is that where a decree for possession is silent as regards the mesne profits which had accrued between the dates of institution of the suit and delivery of possession, a separate suit will lie for subsequent mesne profits: See -- Mon Mohun v. Secy of State', 17 Cal 968 (I); Bhivrao v. Sitaram', 19 Bom 532 (J); 'Ram Dayal v. Madan Mohan Lal', 21 All 425 (PB) (K); and 'Kuppuswamy v. Venkataramier', 15 Mad LJ 462 (FB) (L) -- which are all cases decided under the old Code. But even prior to these decisions the Judicial Committee had accepted that construction as the settled law in -- 'Sadasiva Pillai v. Ramalinga Pillar, 2 Ind App 219 (PC) (M).
4. It was then argued that irrespective of the provision contained in Order 2, Rule 2, Civil P. C. Section 11, Explanation 5, constitutes a bar to the maintainability of the second suit. Section 11, Explanation 5 says:
'Any relief claimed in the plaint which is not expressly granted by the decree shall, for the purpose of this section, be deemed to have been refused.'
The main argument advanced in support of the view taken in the latter group of decisions cited above is that the mesne profits that accrue subsequent to the institution of the suit formed no part of the cause of action on which the plaintiff comes to court, and therefore, the plaintiff cannot as a matter of right claim any decree for such mesne profits, except by filing another suit for that purpose.
It is, therefore, argued for the respondent that, before this relief is barred under Explanation V to Section 11, Civil Procedure Code it must be shown that the relief claimed is one which the Court was bound to grant and not one which was discretionary for the Court to grant. Under the old Code, a subsequent suit for mesne profits was not barred and there does not appear to be any reason why it should be barred under the present Code. The expression 'relief claimed' used in Explanation 5 to Section 11 refers to a relief which the Court is bound to grant and not to one which it is discretionary for the Court either to grant or not to grant. In other words, it must form part of the relief claimed in the plaint, that is, something which the plaintiff can claim as of right and something included in his cause of action. If the cause of action is established then the Court has, no discretion to refuse.
This view was given expression to by Wallis C. J. in 'AIR 1918 Mad 484 (F.B.) (G)', and his Lordship observed that the word 'relief' occurring in Explanation 5 did not include reliefs such as mesne profits accruing after the institution of the suit as to which no cause of action had then arisen, but which the Court has been expressly empowered to grant, and was followed by Fazl Ali J., in 'AIR 1931 Pat 1(C) at p. 11'. See also -- 'Bipul Behari v. Nikhil Chundra', AIR 1929 Cal 566 (N), and in -- 'In re Kantheeswaram E, Koil', AIR 1937 Mad 46 (O).
5. Furthermore, it appears to me that Explanation 5 should be read along with the parent Section 11, which says that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the parties. In the plaintiff's earlier suit, where there was a decree ex parte, there was no issue raised as to the right of the plaintiff to claim such mesne profits or as to the quantum to which he may be entitled. All that appears from the record is that he prayed for an enquiry and the decree is silent with regard to the relief claimed. In these circumstances it cannot be said that the issue had been tried and decided in the earlier suit. I have, therefore, arrived at the conclusion that neither Order 2, Rule 2, nor Explanation 5 to Section 11 of the Civil Procedure Code constitutes a bar to the present suit.
6. The appeal fails and is dismissed with costs.