1. The question which has been referred to a Full Bench is whether, on the facts of this case, the claim of the plaintiff in O.S. No. 95 of 1898 for mesne profits in respect of the period between the institution of O.S. No. 21 of 1804 and the decree therein is res judicata or is barred by the provisions of Section 373 of the Code. The facts are as follows:
On January 26th 1894 the plaintiff instituted a suit (O. S. No. 21 of 1894) in which he claimed the recovery of possession of certain land, mesne profits for the three faslies prior to the institution of the suit and future mesne profits until delivery of possession. This suit was dismissed. The plaintiff preferred an appeal and in his memorandum of appeal stated that mesne profits would be made the subject of a separate suit. The Lower appellate Court reversed the judgment of the Court of First Instance and allowed the plaintiff's claim with mesne profits as claimed in the plaint. The defendants then preferred a second appeal to this Court, and the plaintiff put in a memorandum of objections stating that the Lower Appellate Court ought to have allowed interest on the mesne profits and ought to have distinctly provided in the decree for mesne profits subsequent to the institution of the suit. This Court dismissed, the defendant's second appeal on the ground that the statement in the memorandum of appeal by the plaintiff to the lower appellate Court with reference to mesne profits being made the subject of a separate suit referred only to future mesne profits.
2. On February 26th, 1898, the plaintiff in Suit No. 21 of 1894 instituted a suit (O.S. No. 95 of 1898) against the defendants to the suit of 1894 in which he claimed mesne profits from the date of the plaint in the suit of 1894 up to the date of delivery of the lands for the recovery of which that suit had been brought. The suit was dismissed by the District Munsif upon the ground that the claim was res judicata and the lower appellate Court affirmed the decree of the Munsif.
3. In support of the contention that the claim made in the suit of 1398 for mesne profits for the period between the date of institution of the suit of 1894 and decree therein is barred, it was argued that the dismissal of the suit of 1894 by the Munsiff amounted to an adverse decision against the plaintiff as regards his claim for future mesne profits, and that inasmuch as he had not appealed against this decision he was bound by it and that by stating in his memorandum of appeal to the lower appellate Court that his claim for future mesne profits, would be made the subject of another suit, he could not prevent the operation of law of the res judicata. In our opinion, the claim to the mesne profits made in the suit of 1898 for the period in question is not barred. It is conceded that the plaintiff is not precluded from claiming in the suit of 1898 ' future' mesne profits for the period between the date of the decree in the suit of 1894 and delivery of possession. On principle it seems difficult to draw a distinction between the period from the date of suit up to decree and the period after decree and before delivery of possession.
4. In his suit of 1894, the plaintiff was not entitled to claim 'future' mesne profits as of right. All that he could ask the Court to do was to make provision for 'future' mesne profits in exercise of the discretion conferred upon it by Section 211 of the Code. A plaintiff is entitled to claim 'future' mesne profits and the Court is empowered, if it thinks fit, to make provision therefor, but it cannot be said that a plaintiff who sues to recover possession of land has ' a cause of action' for future mesne profits. Non constat that the defendant will not submit to a decree and deliver possession forthwith. In that case no mesne profits would accrue. Further, on the facts of the present case, it seems to us that it cannot be said that there was an express refusal by the Munsif to provide in the decree for future mesne profits. Inasmuch as he dismissed the suit, it was not necessary for him to address himself to the question whether he would or would not exercise the discretion conferred upon him by Section 211. By way of ancillary relief, the plaintiff claimed ' future' mesne profits. Inasmuch as in the view taken by the Munsif the plaintiff failed to establish a right to possession, his claim by way of ancillary relief never came up for consideration and was never in fact considered. We think the principle of the decisions is that when a decree for possession is silent as regards future mesne profits, a separate suit will lie therefor (see for instance, Mon Muhen Sircar and Ors. v. The Secretary of State for India in Council I.L.R. 17 C. 968 which is applicable to the facts of the present case). In our judgment the claim is not barred by the provisions of Section 13 of the Code. The words of Explanation iii 'relief claimed in the plaint' mean relief which assuming the defence fails, the plaintiff is entitled to as of right.
5. Provision for future mesne profits which the Court has a discretion in any event, either to make or to refuse is not 'relief' within the meaning of the Explanation. As was pointed out in the judgment of the Calcutta High Court in the case of Pratap Chandra Burua v. Rani Swarnamayi 4 B. L.R future mesne profits accruing after the institution of the suit, do not form part of the cause of action and cannot be claimed as of right and could not, but for Section 211 be asked for at all, and may, in any case, be refused by the Court at its discretion.
6. As regard3 Section 373 of the Code, we think the word ' claim' in that section means such a claim as, if the allegations on which it is based are true, gives the plaintiff a cause of action quoad that particular claim--not a claim which is not a cause of action and which the Court may, in any event in the exercise of its discretion, either grant or refuse.
7. As regards the case of Ramabadra and Anr. v. Jagannatha I.L.R. 14 M. 328 so far as the question of res judicata is concerned, we do not think that there is any, real distinction in principle between ' future' Mesne profits between date of suit and decree and ' future' mesne profits between decree and possession. The real distinction is between mesne profits up to the date of the suit which but for Section 211, are all the plaintiff could claim and future mesne profits which by Section 211 he can also ask for. We think the law is rightly laid down in the decisions of the Calcutta, Bombay and Allahabad High Courts in the, cases referred to in the order of reference. Our answer to the questions referred is that the claim of the plaintiff is not res-judicata and is not barred by the provisions of Section 373 of the Code.