Delhi High Court
Gurudwara Baba Zorawar Singh And Baba ... vs Shri Piara Singh And Sons on 6 December, 2006
Equivalent citations: 141(2007)DLT228, AIR 2008 (NOC) 621 (DEL.)
Author: T.S. Thakur
Bench: T.S. Thakur, S.L. Bhayana
JUDGMENT T.S. Thakur, J.
1. This is a plaintiff's appeal arising out of a suit for recovery of mesne profits which the trial court has dismissed on the ground that the same was hit by Order 2 Rule 2 of the Code of Civil Procedure.
2. A certain property comprehensively described in the plaint situate in Shiv Nagar Extension area of New Delhi is owned by the plaintiff society. In O.S. No. 413/1987, the plaintiff-appellant herein prayed for a decree for possession of the said property against the defendants-respondents who are in occupation of the same. During the pendency of the said suit, the plaintiff filed Civil Original Suit No. 55/2000 against the defendants for recovery of a sum of Rs. 4,14,000/- towards mesne profits/compensation for unauthorised use and occupation of the said property. Proceedings in the said suit were stayed by the trial court pending disposal of the earlier suit for possession filed by the plaintiff. After the suit for possession was decreed, the trial court resumed proceedings in the suit for recovery of mesne profits/damages and eventually dismissed the same in terms of the judgment and decree impugned in this appeal. The trial court was of the view that the suit for mesne profits/damages was hit by the provisions of Order 2 Rule 2 of the CPC inasmuch as the causes of action for the earlier suit for possession and later suit claiming damages being the same, the plaintiff could and ought to have claimed the relief for mesne profits in the earlier suit. The present appeal assails the correctness of the said view.
3. We have heard learned Counsel for the parties and perused the record. The provisions of Order 2 Rule 2 of the CPC are intended to discourage multiplicity of legal proceedings. It inter alia provides that if the plaintiff omits without the leave of the court to sue for any relief which was available to him on the basis of the same cause of action, he shall not afterwards be permitted to do so. In every case where the defendant raises the bar of Order 2 Rule 2 as a defense to the suit, the question that would fall for consideration would be whether the relief claimed in the subsequent suit is based on the same cause of action as was set up in the prior suit. The expression "cause of action" has not however been defined in the CPC. Judicial pronouncements broadly define the said expression to mean 'the bundle of facts that party must traverse in order to justify grant of relief prayed for by him'. See Kunjan Nair Shivaraman Nair v. Narayanan Nair and Ors. . We need not however dilate any further on that aspect. We say so because the provisions of Rule 4 of Order 2 provide a complete answer to whether the cause of action in a suit for recovery of immovable property can be said to be the same as in a suit for mesne profits or arrears of rent in respect of such property. Rule 4 of Order 2 of the Code of Civil Procedure runs as under:
4. Only certain claims to be joined for recovery of immovable property.-
No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except-
(a) claims for mesne profits or arrear of rent in respect of the property claimed or any part thereof;
(b) claim for damages for breach of any contract under which the property or any pat thereof is held; and
(c) claims in which the relief sought is based on the same cause of action.
4. A careful reading of the above would show that as a general rule in a suit for recovery of immovable property, the plaintiff cannot join any other cause of action. There is however an exception to that rule inasmuch as a claim for mesne profits or for arrears of rent or for damages for breach of any contract under which the property is held can be made in the same suit. This implies that the court recognises the cause of action underlying a suit for recovery of immovable property to be independent of the cause of action for recovery of mesne profits, damages or arrears of rent in relation to any such property. If that were not so, there would have been no necessity of making a provision in Rule 4 supra specifically permitting the joinder of the two reliefs in one suit. It follows that the subsequent suit filed by the plaintiff appellant out of which the present appeal arises did not fall within the mischief of Order 2 Rule 2 of the CPC. We are supported in that view by a full bench decision of the High Court of Bombay in Shankarlal Laxminarayan Rathi and Ors. v. Gangabisen Maniklal Sikchi and Anr. where the provisions of Order 2 Rule 4 were interpreted in the following words vis a vis a suit for mesne profits or damages:
Now, it is clear upon a plain reading of Order 2, Rule 4, that it regards the cause of action or claim for mesne profits or for damages as different from the cause of action for the recovery of immovable property. If it was the same, then there was no need to state the exceptions in Clauses (a), (b) and (c), because Order 2, Rules 1 and 2, make ample provision for the same cause of action. It seems to us therefore that there is the amplest indication in Order 2, Rule 4 that the cause of action for a suit for recovery of immovable property is not the same as the cause of action for damages for breach of any contract under which the property or any part thereof is held.
We cannot read Order 2, Rule 4 as entirely divorced from Order 2, Rule 2. No doubt Order 2, Rule 4 is an exception to Order 2, Rule 3 but it does not therefore follow that it has nothing to do with Order 2, Rule 2. On the other hand, it seems to us that Order 2, Rule 4, forms an important qualification to both Order 2, Rule 2, and Order 2, Rule 3. Order 2, Rule 2(1) as we have already said, lays down the general principles that a suit must include the whole claim which the plaintiff is entitled to make in respect of a cause of action, and if he does not, then he is visited with the penalty in Order 2, Rule 2(2). Similarly, Order 2, Rule 2(3) provides that all reliefs arising out of the same cause of action shall be sued for in one and the same suit and again attaches a penalty if the plaintiff omits to do so. Thus Order 2, Rule 2, deals with one and the same cause of action. Order 2, Rule 3, on the other hand, deals with several causes of action and makes the contrary provision. It permits the plaintiff to unite several causes of action in one suit under certain circumstances. Where Order 2, Rule 2, deals with the same cause of action and prohibits its splitting, Order 2, Rule 3 provides for the joinder of several causes of action. Therefore, inter alia they deal with two different aspects of the same subject viz. joinder of causes of action. Now, no doubt an exception to Order 2, Rules 2 and 3 is created by Order 2, Rule 4. Its opening part says that no cause of action shall be joined with a suit for the recovery of immovable property. To that extent this provision is an exception to Rule 2(1) and Rule 2(3) which respectively enjoin that a plaintiff must include his whole claim in respect of a cause of action and claim all the reliefs he is entitled to in respect of the same cause of action. It is also an exception to Order 2, Rule 3(1) which permits several causes of action to be joined by the plaintiff against the same defendant or the same defendants jointly. Clauses (a), (b) and (c) of Order 2, Rule 4 create further exceptions to the general principle laid down in the opening part of Order 2, Rule 4; Order 2, Rule 4, therefore deals with a specific subject, namely, claims which could be joined in a suit for the recovery of immovable property, and to the extent that special provision is so made on a special topic, its provisions qualify the general provision of both Order 2, Rule 2 and Order 2, Rule 3. In fact, Order 2, Rule 3 is expressly made subject to the Order 2, Rule 4 by the use of the words "save as otherwise provided". Thus, though Order 2, Rule 4, is in part an exception to the general principle laid down in Order 2, Rule 3. It is also an exception to Order 2, Rules 2(1) and 2(3). We cannot regard it as only an exception to Order 2, Rule 3, and completely divorced from Order 2, Rule 2.
5. To the same effect is the decision of a full bench of the Punjab and Haryana High Court in Sandhu Singh v. Prtam Singh . Relying upon the decision of the Privy Council in Mohd. Khalil Khan v. Mahbub Ali Mian and the definition of the expression "mesne profits" given in Section 2(12) of the Code of Civil Procedure, the court held the cause of action in a suit for possession to be different from a cause of action in a suit for mesne profits. The court observed:
As is plain from the above-said provision the claim for mesne profits may well require evidence of the duration of wrongful possession of profits which the person in wrongful possession may have actually received or in the alternative constructively which he might with ordinary diligence have received; and the quantum of interest on such profits. Can it possibly be said that evidence of the above said nature is equally required to support the claim of possession? In my view, it is hardly so. In a suit for possession it might well suffice the plaintiff to prove his title to the property and the factum of possession within 12 years of the filing of the suit in order to succeed. At the highest it can be said that some facts in the two suits may be either common or similar. But as has often been said mere similarly is not identity. Merely because in the two cases the facts may substantially run to an extent parallel to each other or simply because certain matters are common in the two suits cannot warrant a conclusion that the evidence in a suit for possession and in a suit for mesne profits may necessarily be identical. I find, therefore, that by the application of the above-said test also it would be manifest that the two causes of action are distinct and separate.
6. In the light of what we have stated above, we have no hesitation in holding that the impugned judgment and order cannot be sustained. The present appeal accordingly succeeds and is hereby allowed. The judgment and decree passed by the trial court is set aside and the suit remitted back to the trial court for a fresh disposal in accordance with law. No costs.