Delhi High Court
Jayant Kumar Trehan vs Hdfc Bank Ltd on 25 February, 2015
Author: Jayant Nath
Bench: Jayant Nath
$~A-14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 04.02.2015
Judgment pronounced on : 25.02.2015
+ CS(OS) 497/2013
JAYANT KUMAR TREHAN ..... Plaintiff
Through: Mr. Kirti Uppal, Sr. Adv. with Mr.
Aman Bhalla, Adv.
versus
HDFC BANK LTD ..... Defendant
Through: Mr. Sumit Bansal, Adv.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH,J.
IA No.13608/2013 (under Order 7 Rule 11 CPC)
1. The present application is filed under Order 7 Rule 11 CPC for rejection of the plaint.
2. The plaintiff has filed the present suit for recovery of mesne profits. The plaintiff is the owner of premises C-17, Ground Floor, Anand Niketan, New Delhi admeasuring 1800 square feet. The defendant entered into a lease for the said property in 2004. The lease deed was executed between the plaintiff and the defendant on 11.03.2005. The date of commencement of the lease was 01.06.2004 and it was for a period for five years i.e. up to 31.05.2009. On or before expiry of the lease the plaintiff sought possession. As the defendant did not vacate the premises, a civil suit was filed for possession in this court being Suit No. 1179/2009 on 27.11.2009 along with CS(OS) 497/2013 Page 1 of 7 the said suit an application under Order 2 Rule 2 CPC was filed. The suit was decreed on 31.10.2012. The defendant sought time up to 31.05.2013 to vacate the premises which time was granted by the court. The defendant agreed to pay use and occupation charges from 01.11.2012 to 31.05.2013 @ Rs.400 per sq.ft. The plaintiff has now filed the present suit seeking mesne profits for the period 01.02.2010 to 31.10.2012 @ Rs.400 per sq.ft.
3. The defendant has filed the present application for rejection of the plaint. It is averred that during pendency of the earlier suit the plaintiff never claimed mesne profits. In fact in the earlier suit the plaintiff had filed an application under Order 2 Rule 2 CPC seeking permission to press for mesne profits at a later date. The application was not pressed in that suit. It is averred that this court passed no orders on the application. Hence it is further averred that the present suit is barred under Order 2 Rule 2 CPC and the plaint is liable to be rejected.
4. Learned counsel appearing for the defendant relies on Shiv Kumar Sharma vs. Santosh Kumari, (2007) 8 SCC 600 and State Bank of India vs. Gracure Pharmaceuticals Ltd., (2014) 3 SCC 595 to contend that the present suit is barred by Order 2 Rule 2 CPC.
5. Order II Rule 2 CPC reads as follows:
"2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim-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.CS(OS) 497/2013 Page 2 of 7
(3) Omission to sue for one of several reliefs-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-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."
6. In the case of State Bank of India vs. Gracure Pharmaceuticals Ltd.(supra) the Supreme Court held as follows:
"12. Order 2 Rule 2, Code of Civil Procedure, therefore, requires the unity of all claims based on the same cause of action in one suit, it does not contemplate unity of distinct and separate cause of action. On the above-mentioned legal principle, let us examine whether the High Court has correctly applied the legal principle in the instant case."
7. Reference may be had to the judgment of the Supreme Court in the case of Shiv Kumar Sharma vs. Santosh Kumari (supra). The facts of the case were that the parties entered into an agreement to sell for their respective properties situated at Paharganj. It appears from the facts that the parties had implemented the agreement in part and had exchanged the possession of the respective properties owned by each other. It appears that the defendant's title for his property was defective. The plaintiff filed the suit seeking decree of possession of the property that was owned by him. The suit was decreed in favour of the plaintiff. In appeal the Division Bench granted liberty to the plaintiff to claim relief by way of damages/mesne profits in a separate suit filed before the competent court.
8. The Supreme Court noted the submissions of the senior counsel for CS(OS) 497/2013 Page 3 of 7 the defendant that the said liberty granted is not legally sustainable as the parties have been in possession of the premises belonging to the other and hence the question of payment of damages or compensation by way of mesne profits would not arise. The plaintiff had defended the judgment of the Division Bench contending that the defendant had accepted that its business had flourished at the premises belonging to the plaintiff. It was in those facts this court held as follows:-
"18. A suit is ordinarily tried on the issues raised by the parties. The plaintiff - respondent did not ask for payment of any damages. No prayer for payment of damages by way of mesne profit or otherwise was also made by the plaintiff. If the plaintiff was to ask for a decree, he was required to pay requisite court fees on the amount claimed. In such a situation, having regard to Order XX, Rule 12 of the Code, a preliminary decree was required to be passed. A proceeding for determination of the actual damages was required to be gone into.
...
20. ....... A suit for recovery of possession on declaration of one's title and/ or injunction and a suit for mesne profit or damages may involve different cause of action. For a suit for possession, there may be one cause of action; and for claiming a decree for mesne profit, there may be another. In terms of Order II, Rule 4 of the Code, however, such causes of action can be joined and therefore no leave of the court is required to be taken. If no leave has been taken, a separate suit may or may not be maintainable but even a suit where for a prayer for grant of damages by way of mesne profit or otherwise is claimed, must be instituted within the prescribed period of limitation. ...
21. If the respondent intended to claim damages and/ or mesne profit, in view of Order II, Rule 2 of the Code itself, he could have done so, but he chose not to do so. For one reason or the other, he, therefore, had full knowledge about his right. Having omitted to make any claim for damages, in our opinion, the CS(OS) 497/2013 Page 4 of 7 plaintiff cannot be permitted to get the same indirectly.
22. Law in this behalf is absolutely clear. What cannot be done directly cannot be done indirectly."
9. Hence, that was a case in which the Supreme Court was dealing with a direction passed by the Division Bench granting liberty to one of the parties to file a suit for mesne profits/damages.
10. In fact a similar contention as made by the learned counsel for the applicant has been already considered by the Division Bench on this High Court in the case of Syndicate Bank vs. Raj Kumar Tanwar, 154 ( 2008) DLT 230. That was a case in which the only contention raised was that the landlord had filed the suit seeking ejectment of the appellant from the tenanted premises stating that the lease has come to an end by efflux of time. A second suit was filed by the landlord claiming damages for unauthorised use and occupation. The issue was as to whether the second suit is barred under Order II Rule 2 CPC. The appellant in that case also relied upon the judgment the Supreme Court in the case of Shiv Kumar Sharma vs. Santosh Kumari (supra).
11. The Division Bench held as follows:-
"9. Discussing the ambit of Order 2 Rule 2, a Division Bench of this Court, in the decision dated 24.02.2004 disposing of FAO(OS) No. 350/2001 Union of India, K. Paints Sales v. Madho Ram Budh Singh observed as under:
The principle enshrined under Order 2 Rule 2 is aimed against a multiplicity of suits in respect of the same cause of action. The Rule is based on the principle that a party should not be vexed twice for the one and the same cause of action. However, the said rule must be applied with caution. The plea of bar under Order 2 Rule 2 defeats, what otherwise CS(OS) 497/2013 Page 5 of 7 may be legitimate claim of a party, and therefore, care must be taken to see that complete identity of cause of action is established. Can it be said that the recovery of damages for unauthorized use and occupation of a premises for different periods constitutes a single cause of action. To our mind it does not. Cause of action to recover rent for a premises or damages for unauthorized use and occupation would arise each month for which possession is retained by the tenant or the person in unauthorized occupation as the case may be. Reference may be made to the decision of the Calcutta High Court reported as ILR 1973 (1) CAL
343. It was held that recovery of rent from Badrapad to Kartik 1377, B.S. would not bar a subsequent suit for recovery of rent from Baisakh to Shrawan 1377 B.S. The principle of law was set out with clarity by the judgment of the Privy Council reported as 26 IC 228 titled Payana v.
Panna Lal. It was held that the rule is directed to securing the exhaustion of the relief in respect of cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transaction."
12. While coming to the said conclusion the Division Bench relied upon the decision of the Full Bench of Madras High Court in the case of Ponnamal v. Ramairda Aiyar & Ors., AIR 1915 Mad. 912, the Full Bench of Bombay High Court in Shankarlal Laxminarayan Rathi & Ors. v. Gangabisen Maniklal Sikchi & Anr. MANU/MH/0071/1972 and the Full Bench of Punjab Haryana High Court in Sadhu Singh & Ors. v. Pritam Singh son of Narain Singh & Anr. MANU/PH/0007/1976.
13. The Division Bench concluded as follows:-
CS(OS) 497/2013 Page 6 of 7"14. Thus, the Code of Civil Procedure itself clarifies that an action for recovery of immovable property is a distinct cause of action vis-a-vis a cause of action for a claim for mesne profits.
15. If the two are different causes of action, the bar of Order 2 Rule 2 of the Code of Civil Procedure would obviously be not attracted."
14. The Division Bench noted the ratio of the judgment of the Supreme Court in Shiv Kumar Sharma vs. Santosh Kumari (supra) as follows:-
"24....
No Civil Court can grant liberty to resort to a civil action and an issue of maintainability of a civil suit has to be decided with reference to the law applicable."
15. The Division Bench did not accept the contention of the appellant and dismissed the appeal.
16. The submissions akin to that as made by the applicant/defendant were rejected by the Division Bench. There is no merit in the present application. None of the ingredients of Order 7 Rule 11 CPC are made out. Normally, the cause of action for ejectment of a tenant and for damages and mesne profits are different. It cannot be said that the present suit is barred by law.
17. The application is accordingly dismissed.
CS(OS)497/2013 List on 22nd April, 2015 before the Joint Registrar.
JAYANT NATH (JUDGE) FEBRUARY 25, 2015 rb CS(OS) 497/2013 Page 7 of 7