1. I agree with the referring Judges. Explanation V to Section 11 of the present Code of Civil Procedure is in exactly the same terms as the corresponding explanation III to Section 13 in the Code of 1882. Under the Code of 1882 it was held by a Pull Bench of this Court in Kuppusamy Aiyar v. Venkataramier (1908) 15 M.L.J. 462 in conformity with the decisions of other High Courts that the word 'relief' in the explanation means relief arising out of a cause of action which had accrued at the dale of suit and on which the suit was brought, and did not include relief such as mesne profits accruing after the date of suit as to which no cause of action had then arisen, but which the Court was nevertheless expressly empowered to grant. The explanation having been reproduced in exactly the same words, the presumption is that it was intended to have precisely the same effect. I do not find any sufficient indication to Rebut this presumption in the fact that Sections 211 and 212 of the old Code were amalgamated to form Order 20, Rule 12. The change introduced by the new rule is that the award of mesne profits in all cases is to be by preliminary decree, and that when ascertained they are to be embodied in a final decree, whereas under Sections 211 and 212 they were to be ascertained in execution. This change does not appear to me to affect the construction of explanation V to Section 11, nor do I think is effected by the omission in Section 47 of the new Code of the proviso to the corresponding Section 244 of the old Code. I answer the question in the affirmative.
2. I regret that I am unable to concur. The point referred is identical with that considered by Hannay, J. arid myself in Ramasami Aiyar v. Sri Rangaraja Aiyangar (1914) 2 L.W 8 and with all respect after hearing it reargued I remain of the same opinion.
3. I would answer the question in the negative.
Kumaraswami Sastri, J.
4. The question referred to us for decision is. 'whether after a suit for possession of lands and mesne profits past and future has been brought and decided and a decree has been obtained for possession and past mesne profits without the claim to future mesne profits being decided, a second suit will lie to recover mesne profits from the institution of the first suit till delivery of possession'.
5. I agree with the Chief Justice whose Judgment I have had the advantage of perusing and with Sadasiva Aiyar and Spencer, JJ., the referring Judges that the question should be answered in the affirmative.
6. As there has been no adjudication as to future mesne profits the second suit can only be barred if it can be brought under explanation V to Section 11, Civil Procedure Code, 1908. It is now well settled that the word ' relief' in explanation V mear a relief which the plaintiff can claim as a matter of right in respect of a cause of action which has accrued to him at the date of suit and that relief in respect of future mesne profits is not claimable as a matter of right no cause of action accruing to the plaintiff at the date of suit in respect of the future injury he might suffer if the defendant continues to be in wrongful possession in spite of the suit and that explanation III of Section 13 of the Code of 1882 which is the same as explanation V of Section 11 of the Code of 1908 will not bar a second suit. Mon Mohun Sircar v. The Secretary of State for India in Council I.L.R. (1890) C. 968 Jiban Das Oswal v. Durga Pershad Adhikari I.L.R (1898) C. 252 Bhivrav v. Sitaram I.L.R. (1894) B. 532 Ram Dayal v. Madan Mohan Lal I.L.R. (1899) A. 425 and Kuppusawmy Aiyar v. Venkatramier (1903) 15 M.L.J. 462.
7. There is nothing in the present Code that alters the nature of the claim for future mesne profits. It is still a claim in respect of a cause of action that has not accrued to the plaintiff at the date of suit and it cannot be contended after the recent decision of the, Full Bench in Ponnammal v. Ramamirtha Aiyar I.L.R. (1914) M. 829 that if the plaintiff had omitted to ask for the relief in his plaint a separate suit would be barred.
8. The main contention for the respondents is that Order 20, Rule 12 has now rendered it obligatory on the Court to pass a decree as to mesne profits from date of suit to date of delivery of possession if the plaintiff makes out a claim for such relief and that consequently the decisions under the Code of 1882 have no application.
9. I do not think that the Code of 1908 which enacts as Order 20, Rule 12 what was contained in Sections 21l and 212 of the Code of 1882 has made any material alteration in the nature of the claim as to future mesne' profits. Rule 12 provides that the Court may pass (1) a decree for possession of the property (2) a decree for rent or mesne profits up to suit or direct an enquiry as to the same and may (8) direct an enquiry as to future mesne profits. It provides for a final decree being passed after the enquiry directed is made and the liability ascertained. So far as Clause (c) of Order 12 is concerned the power of the Court is still discretionary as all the Order does is to provide that the Court may pass a decree directing an enquiry as to rent or mesne profits from the institution of the suit till the period provided for by Clauses (i), (ii), and (iii). It has been argued that even as regards Clauses (a) and (b) the word used is ' may ' and not ' shall ' though the Court is bound to pass a decree in terms of Clauses (a) and (b) if plaintiff's claim is established. Section 212 of the old Code provides that the Court may either determine the amount by the decree itself or may pass a decree for the property and direct an enquiry into mesne profits and dispose of the same on further orders and the legislature in including in one section what was embodied in two by using the word 'may' which occurred in both the sections cannot be said to have introduced any new principle as regards 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 nature of the claim which it deals with does not necessarily mean that the word cannot be construed in its ordinary sense as regards other clauses. With all respect I am unable to agree with the decision in Ramaswamy Aiyar v. Sri Ranga Raja Aiyangar (1914) 2 L.W. 8 that the grouping into one section of past and future mesne profits affects the nature of future mesne profits so as to attract to it the provisions of explanation V to Section 11. The omission of the proviso to Section 244 in Section 47 of the Code of 1908 is due to the fact that under the Code of 1908 the determination of questions as to mesne profits was to be in the suit itself and not subsequent to decree in execution proceedings. Under the scheme of the present Code there is no necessity for any such proviso to Section 47 which corresponds to Section 244 of the old Code.
10. There being in my opinion no material difference between Section 211 of the old Code and Rule 12 Clause (c) of Order 20 of the present Code there is no reason for departing from the decisions of this and the other High Courts as to the second suit not being barred by explanation V of Section 11 of the Code.