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1 - 10 of 26 (1.19 seconds)Section 10 in The Code of Civil Procedure, 1908 [Entire Act]
Section 43 in The Code of Civil Procedure, 1908 [Entire Act]
The Code of Civil Procedure, 1908
B. Ram Karan, Singh (Dead) And Ors. vs Nakchhad Ahir And Ors. on 6 May, 1931
39. Lastly, coming to the case of B. Ram Karan v. Nakchhad, (AIR 1931 All 429) in that case the plaintiffs instituted a suit lor possession of immovable property in 1925 treating the defendants as trespassers. In the plaint they claimed mesne profits only upto the date of institution of the suit. The suit was decreed and possession was obtained in April, 1927, Thereafter they brought another suit for recovery of mesne profits from 24th August, 1925, the date of institution of the first suit till 1st April, 1927, the date on which they had obtained possession. It was pleaded in defence that the claim was barred by Order 2, Rule 2, Civil Procedure Code. The Court held that the second suit was not barred by Order 2, Rule 2. There is a preponderance of authority in favour of the view that the causes of action for recovery of possession of immovable property and for future mesne profits i.e., mesne profits accruing due after institution of the first suit for possession, are distinct and separate and having held so it was not necessary for the court of decide whether the causes of action for recovery of possession of immovable property and for mesne profits are always distinct having regard to the terms of Order 2, Rule 4. But still Sulaiman, Ag. C. J., who decided the case, made certain observations in passing which are, to my mind, in the nature of obiter and in any case they apply to such suits for recovery of possession of immovable property only as are based on title and have no bearing on suits for possession based on contract of tenancy or lease. This is clear from observations contained in column 1 at page 432:
Lalessor Babui And Ors. vs Janki Bibi on 18 November, 1891
This decision was based on the case of Lalessor Babui v. Janki Bibi (1892) ILR 19 Cal 615 (supra), which for reasons already set out cannot be said to have been correctly decided.
Ganesh Dutt Thakoor vs Jewach Thakoorain on 12 November, 1903
17. By these observations the Privy Council expressed the view that the cause of action for recovery of movable and immovable property arising from the same partition could not be treated as based on distinct causes of action with reference to the language of Section 44, Rule (a). Their Lordships adverse criticism of Section 44, Rule (a) plainly meant that the provision as to mesne profits, rent or damages should not have been stated as an exception but it should be taken as a proviso or explanation. Being stated as an exception it tended to create the wrong impression that claims for possession and mesne profits were to be treated as based on distinct causes of action. But the intention which should have been expressed in Section 44 Rule (a) was that claims for mesne profits, rent or damages arising from the same cause of action were not within the rule. It is the aforesaid criticism of the Privy Council in Ganesh Dutt v. Jewach, (1904) ILR 31 Cal 262 (PC) (supra) that appears patently to have led to the new Clause (c) of Order 2, Rule 4 and this clause provides an unmistakable pointer to the legislative intent, if ever there was need for one, that claims for mesne profits, rent or damages and claims for recovery of immovable property, if they arise from the same cause of action, could be joined in the same suit, thereby removing permanently the doubt that such claims, by reason of Order 2, Rule 4, should be deemed to be based on different causes of action. The same legislative intention was expressed also by dropping of Section 10 from the Codes of 1877 and 1882 and the absence of an analogous provision in Order 2 of the Code of 1908.
Section 116 in The Transfer Of Property Act, 1882 [Entire Act]
Kishori Lal Roy vs Sharut Chunder Mozumdar on 11 March, 1882
In this remark and in following the case of Kishori Lal Roy v. Sharut Chunder Mazumdar (supra) the learned Judges slurred over the fact that Section 10 had been dropped in the subsequent Codes of 1877 and 1882 and, therefore, the decision in Kishori Lal Roy's case, which was based on the practice of the court and the law prevailing under Act No. 8 of 1859, no longer holds the field.
Sadhu Singh And Ors. vs Pritam Singh S/O Narain Singh And Anr. on 8 May, 1975
37. Reliance was next placed on a Full Bench case; Sadhu Singh v. Pritam Singh, (AIR 1976 Punj and Har 38). The majority judgment delivered by Sandha-walia, J., took the view that the causes of action for possession of immovable property and mesne profits were distinct and a subsequent suit for mesne profits was not barred by Order 2, Rule 2. Gujral, J., who wrote a separate dissenting judgment, expressed the view that Order 2, Rule 4, was not intended to provide an exception to Order 2, Rule 2, but was to be taken as an explanation only and that a suit for recovery of mesne profits would be barred if in the earlier suit for recovery of possession of immovable property that relief is not claimed and that the cause of action for recovery of immovable property and for recovery of mesne profits arising therefrom is the same. With profound respect's the view expressed by Gujral, J., in the minority judgment provides a correct statement of law and not the majority judgment. Apart from this the ratio of the decision was distinguishable as appears from the narration of facts. The majority judgment was based on considerations of stare decisig and apprehensions of hardship being caused from a technical approach. Besides, it was influenced by the historical background that under the English Common Law claims for ejectment and for mesne profits were always treated as based on separate causes of action so much so that action for mesne profits did not even lie until judgment had been received in the ejectment suit and by the provision contained in Section 10 of the Code of 1859 but the basic error in the approach of the majority judgment appears to be this that it took the substituted provision of Section 44 contained in the Code of 1877 to be in Pari Materia with Order 2, Rule 4, Relevant observations find place in para. 4 at page 40 of the majority judgment and may be extracted: