U.B. Saha, J.
1. Challenge in this appeal under Clause (u) of Rule 1 of Order XLI of the Code of Civil Procedure (for short, the 'Code') is to the order passed by the learned Addl. District Judge, Kailashahar, North Tripura in Money Appeal No. 01 of 2006 whereby and whereunder the learned Addl. District Judge, Kailashahar by the Judgment dated 27-6-2006 allowed the appeal of the respondent setting aside the judgment dated 23-12-2005 passed by the learned Court of Civil Judge (Sr. Division) in MS 08 of 1988 by which the aforesaid suit was dismissed as not maintainable and was remitted to the learned trial Judge, the learned Court of Civil Judge (Sr. Division) for disposal of the same in accordance with law.
2. Facts required to be discussed for disposal of the instant appeal in a nut-shell are as follows:
The respondents as plaintiffs filed a suit bearing No. MS 08/1988 in the Court of the learned Civil Judge (Sr. Division), Kailashahar, North Tripura for mesne profit. The case of the respondents before the learned Civil Judge (Sr. Division) was that they initially filed a case against the appellant-defendants for cancellation of one Nadabi executed by one Nani Gopal Ghosh in favour of the appellant No. 1 and others. In the said suit, the respondents also prayed for declaration of a title and recovery of the possession in respect of the land described in Schedules A and B of the plaint. The aforesaid suit was filed initially before the learned Subordinate Judge, West Tripura, Agartala, as T.S. No. 30 of 1973 and thereafter the same was transferred to the Court of Subordinate Judge, North Tripura, Kailashahar which was re-numbered as T.S. No. 12 of 1976. Subsequently, the said case No. T.S. 12 of 1976 was again transferred to the Court of learned District Judge. North Tripura, which was again re-numbered as T.S. No. 01 of 1988. On contusion of the trial, the learned District Judge, North Tripura, Kailashahar vide his judgment dated 31-8-1988 decreed the suit in favour of the respondent-plaintiffs. The defendant appellants filed an appeal against the aforesaid judgment of the learned District Judge, North Tripura, Kailashahar before this Court and this Court vide its judgment dated 1-8-1997 in First Appeal No. 17 of 1988 upheld the judgment of the learned District Judge, North Tripura, Kailashahar as in the aforesaid T.S. No. 01 of 1988 the title of the respondent-plaintiffs was declared and the possession of the defendant-appellants on the suit land found to be wrongful. The plaintiffs brought the suit In question for claiming mesne profit.
3. Learned Civil Judge, Senior Division (trial Court) vide its order dated 14-9-1999 framed two issues for decision of the case which are as follows:
(i) whether the plaintiffs are entitled to get the mesne profit as prayed for;
(ii) Are the parties entitled to get any other relief/costs.
4. By orders dated 4-8-2004 and 2-2-2005 the learned trial Court decided to hear the parties on the issue of maintainability of the suit. Accordingly, the learned Trial Court heard the rival contentions of the parties and vide his judgment dated 23-12-2005 held that the suit filed by the respondent-plaintiffs was not maintainable in view of the provisions of Order II, Rule 2(3) of the Code. The aforesaid judgment of the learned Civil Judge was challenged by the respondent-appellants by an appeal before the learned District Judge, North Tripura, Kailashahar which was subsequently transferred to the learned Addl. District Judge, North Tripura, Kailashahar. Learned Addl. District Judge, North Tripura, Kailashahar upon hearing the learned Counsel for the parties set aside the judgment of the learned Civil Judge, dated 23-12-2005 in M.S. No. 08 of 1988 and remitted the same to the learned Trial Court for disposal of the same in accordance with law. In the instant appeal the said judgment of the learned Addl. Judge is impugned.
5. Heard Mr. S. Deb, learned senior counsel assisted by Mr. S. Choudhury, learned Counsel for the appellants as well as Mr. D.K. Biswas, learned Counsel appearing along with Mr. S. Lodh, learned Counsel for the respondents.
6. The moot question that arises for decision in the instant case is whether a subsequent suit for mesne profit and damages is maintainable in view of the provisions of Order II, Rule 2 of the Code.
7. Mr. Deb, learned senior counsel appearing on behalf of the appellants would contend that the decision of the learned Addl. District Judge in the impugned judgment is totally contrary to the provisions of Order II, Rule 2 of the Code, which bars a second suit. According to him, Order II, Rule 4 of the Code has no application in the instant case. He placing reliance on para 18 of the judgment of the learned trial Court contended that the learned First Appellate Court failed to appreciate the judgment of the learned trial Court. He ought to have held that the second suit for mesne profit filed by the respondent-plaintiffs was barred by law in view of the provisions of Order II, Rule 2 of the Code as the claim for mesne profit was refused in the earlier suit and the decree in that case has become final. He also contended that the respondent-plaintiffs should have filed a suit for mesne profit along with the claims in the parent suit or the plaintiff-respondents should have obtained leave from the parent Court for filing the suit for mesne profit subsequently. As that was not done, the suit in question is not maintainable in view of the aforesaid provisions of Order II, Rule 2 of the Code. According to him, while in the parent suit the prayer was for recovery of possession 'B' Schedule land, it was incumbent upon the respondent-plaintiffs to include the prayer for mesne profit also and since the leave was not obtained for filing the instant suit, the same is barred under Order II, Rule 4 of the Code.
8. He further contended that the parent suit was for declaration of title, nadabi and declaration of possession and interest, which includes mesne profit and according to him, the cause of action in both earlier and the present suits are same and only when the causes of action are different, then the subsequent suit is maintainable. In support of his aforesaid contention, he relied upon the case of Gurbux Singh v. Bhooralal reported in : AIR 1964 SC 1810 and the ease of Bengal Water Proof Ltd. v. Bombay Water Proof Manufacturing reported in : AIR 1997 SC 1398.
9. He also contended that the learned Addl. District Judge (appellate Court) failed to appreciate the ratio in the case of Gurbux Singh (supra) and according to him, the decision of the Assam High Court in the case of Tara Kishore Das v. Beharu Barman reported in AIR 1958 Assam 67 has no application in the instant case and the learned Additional District Judge wrongly applied the same. According to him, the decision in the case of Sadhu Singh v. Pritam Singh reported in : AIR 1976 P & H 38 as relied on by learned Additional District Judge did not cull down the correct law regarding Order II, Rule 2. The correct law was laid down by Allahabad High Court in Saghir Hassin v. Tayab Hasan reported in : AIR 1940 All 524 where the High Court of Allahabad observed, inter alia, 'in our judgment if a person is wrongfully kept out of possession of immovable property he is entitled to sue for possession and for mesne profit and under the provisions of Order II, Rule 2(3) he is bound to Include both claims in one suit. If he sues only for mesne profit he cannot in a subsequent suit sue separately for possession. In other words, he is no longer entitled to possession; and if he is not entitled to possession he is not entitled to mesne profit'.
10. He finally relied upon the case of Shiv Kumar Sharma v. Santosh Kumari reported in : (2007) 8 SCC 600 : AIR 2008 SC 171 particularly paragraphs 20 and 21 and the case of Payana Reena Saminathan v. Pana Lana Palaniappa reported in Indian Appeals XLI page 142.
11. Per contra, Mr. Biswas while supporting the impugned judgment of the learned Additional District Judge contended that the learned Addl. District Judge rightly held that a second suit for mesne profit is maintainable as the cause of action of the parent suit and the suit in question are totally different and distinct. Hence, Order II, Rule 2 of the Code has no application at all. He also contended that in earlier suit there was no claim for mesne profit rather the said suit was filed for a decree for declaration of right, title and interest over the land shown in Schedule A of that plaint and also a decree for Khas possession over the land described in Schedule B of the said plaint along with other reliefs. But the suit in question is filed long after the parent suit with a claim for mesne profit due after filing of the parent suit. Therefore, the cause of action of the parent suit and the suit in question are totally different and distinct. According to Order II Rule 2 would be applicable only in a case when the suit is filed for declaration of right, title, interest and recovery of possession of immovable property with mesne profit or damages and if the Court refuses the claim of the mesne profit and/or damages, then and then also the subsequent suit for mesne profit and damages in respect of that period will be a bar under Order II, Rule 2. But if there was no claim in the earlier suit for mesne profit or damage and also if the claim for mesne profit becomes due after filing of the parent suit then it is open to the party who filed the earlier suit to come with a separate suit either for mesne profit or damages. In support of his aforesaid contention, he relied upon the decision of the Calcutta High Court in the case of Makhan Lal Modak v. Girish Chandra Jana reported in (1962) 66 CWN 692 and decision of the Assam High Court in Tarakishore (supra). He also referred to the case of Damodaran Namboori Vasudevan Namboori v. Thariath Ouseph reported in AIR 1954 TC 377. His further contention was that though the claim for mesne profit accrued prior to the filing of the parent suit that can also be claimed by filing a subsequent suit as per the settled law in view of the decision of the Full Bench of the Punjab and Haryana High Court in the case of Sandhu Singh : AIR 1976 P & H 38 (supra), but in the instant case the respondent-plaintiffs filed subsequent suit only for the mesne profit accrued due subsequent to the filing of the parent suit for declaration of right, title, interest and recovery of possession which is in no way barred by Order II, Rule 2. He also contended that unless the party who raised the question of maintainability of the second suit established that the cause of action in both the suits are same, the subsequent suit cannot be a bar even in view of the judgment of the Apex Court in the case of Gurbux Singh : AIR 1964 SC 1810 (supra) and in the instant case it is the admitted position that the defendant-appellants failed to do so.
12. He finally placed reliance on the decision of the Calcutta High Court in the case of Nrisingha Maitra v. Shyam Sundar Chattopadhyay reported in : AIR 1981 Cal 65 wherein the Calcutta High Court noted that Order 11, Rule 4 of the Code enabled the plaintiff in such a case to include a claim for mesne profit in a suit for eviction. When there is no prayer for mesne profit there is no doubt that a separate suit for mesne profit will lie. But in a suit for eviction where mesne profit is prayed for there is no reason why the plaintiff should be allowed to sue afresh for mesne profit. He contended that even when in a case mesne profit was included in the prayer but the Court did not decide the question of mesne profit then also the subsequent suit is permissible.
13. Before examining the case laws cited by the learned Counsel of the respective parties, it would be proper to first consider the provisions of Order II, Rules 2, 3 and 4 of the Code which read as under:
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 relinquished, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(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.
3. Joinder of causes of action.- (1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters at the date of instituting the suit.
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 arrears of rent in respect of the property claimed or any part thereof;
(b) claims for damages for breach of any contract under which the property or any part thereof is held; and (c) claims in which the relief sought is based on the same cause of action:Provided that nothing in this Rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.
14. Order II, Rule 2 speaks about all the reliefs, which could be claimed in the suit, should be prayed at a time and Order II, Rule 3 provides for joinder of causes of action. On the other hand, Order II, Rule 4 is an exception thereto. For joining the causes of action in respect of matters covered by clauses a, b & c of Order II, Rule 4 speaks no leave of the Court is required to be taken and even without taking leave of the Court, a prayer in that behalf can be made and the same depends on nature of the causes of action. Therefore, it is also necessary to examine what is cause of action.
15. In para 14 of Sandeep Polymers (P) Ltd. v. Bajaj Auto Ltd. reported in : (2007) 7 SCC 148 : AIR 2007 SC 2656 the Apex Court discussed about the meaning of cause of action which is reproduced herein under (para 13):
14. In Om Prakash Srivastava v. Union of India AIR 2007 SC (Supp) 1834 it was held as follows:
9. By 'cause of action' it is meant every fact, which, if traversed, it would be necessary for the plaintiff to prove in order to succeed in the suit.
10. In a generic and wide sense (as in Section 20 of the Civil Procedure Code, 1908) 'cause of action' means every fact, which it is necessary to establish to support a right to obtain a judgment.
11. It is settled law that 'cause of action' consists of a bundle of facts, which give cause to enforce the legal injury for redress in a Court of law. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise.
12. The expression 'cause of action' has acquired a judicially settled meaning. In the restricted sense 'cause of action' means the circumstances forming the infraction of the right or the immediate occasion for the reaction. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but also the infraction coupled with the right itself. Compendiously, as noted above, the expression means every fact, which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact, which is necessary to be proved, as distinguished from every piece of evidence, which is necessary to prove each fact, comprises in 'cause of action'.
13. The 'cause of action' has sometimes been employed to convey the restricted idea of facts or circumstances which constitute either the infringement or the basis of a right and no more. In a wider and more comprehensive sense, it has been used to denote the whole bundle of material facts, which a plaintiff must prove in order to succeed. These are all those essential facts without the proof of which the plaintiff must fail in his suit.
14. The expression 'cause of action' is generally understood to mean a situation or state of facts that entitle a party to maintain an action in a Court or a tribunal; a group of operative facts giving rise to one or more bases of suing; a factual situation that entitles one person to obtain a remedy in Court from another person. In Stroud's Judicial Dictionary a 'cause of action' is stated to be the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In Words and Phrases (4th Edn.) the meaning attributed to the phrase 'cause of action' in common legal parlance is existence of those facts, which give a party a right to judicial interference on his behalf,.
15. In Halsbury's Laws of England (Fourth Edn.) it has been stated as follows:
Cause of action' has been defined as meaning simply a factual situation, the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from the earliest time to include every fact which is material to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right to traverse. 'Cause of action' has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of action.16. As observed by the Privy Council in Payana Reena Saminathan v. Pana Lana Palaniappa the rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action or different causes of action, even though they arise from the same transaction. One great criterion when the question arises as to whether the cause of action in the subsequent suit is identical with that in the first suit, is whether the same evidence will maintain both actions.
17. It would be appropriate to quote para 61 of the said judgment, which reads as follows:
61. (1) The correct test in cases falling under Order II, Rule 2, is 'whether the claim in the new sit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit'.
(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment.
(3) If the evidence to support the two' claims is different, then the causes of action are also different.
(4) The causes of action in the two suits may be considered to be the same if in substance they are identical.
(5) The causes of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers ....to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. This observation was made by Lord Watson in a case under Section 43 of the Act of 1882 (corresponding to Order II, Rule 2) where plaintiff made various claims in the same suit.
16. In Gurbux Singh : AIR 1964 SC 1810 (supra) the Constitution Bench of the Apex Court stated that to establish the plea that the subsequent suit was in respect of the same cause of action on which the previous suit was based is to be proved before the Court by way of placing the material for the purpose of finding a plea of Order II, Rule 2 of the Code. Not only that, the Apex Court while analyzing the provision of Order II, Rule 2(3) of the Code stated, inter alia, 'It would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order II, Rule 2, Civil Procedure Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits'.
17. The Apex Court also noted 'just as in the case of a plea of res judicata, which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order II, Rule 2, Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were claimed without the necessary averments to justify their grant. From the mere use of the words, 'mesne profits' therefore, one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression 'mesne profits' has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterization of the particular sum demanded but what in substance is the allegation on which the claim to the sum was based as regards the legal relationship on the basis of which that relief was sought, it is because of these reasons that we consider that a plea based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced. We, therefore, consider that the order of remand passed by the learned Additional District Judge, which was confirmed by the learned Judge in the High Court, was right.
(Emphasis supplied)
18. It appears from the judgment of the learned trial Court that the learned trial Court has failed to properly appreciate the ratio of the decision of the Apex Court in Gurbux Singh : AIR 1964 SC 1810 (supra). In its judgment the learned trial Court nowhere considered the fact that the defendants are liable to prove the plaint of the parent suit in the subsequent one by way of placing the plaint in evidence in the second suit. Not only that in the said judgment there is no discussion regarding the case of Bengal Water Proof Ltd. : AIR 1997 SC 1398 (supra) except the statement that the above position was illuminatingly highlighted by the Apex Court in Bengal Water Proof Ltd. v. Bombay Waterproof . (supra) was decided by the Apex Court relying on the ratio of the decision in the case of Gurbux Singh (supra), the detailed discussion of the said case is avoided as both the cases of Gurbux Singh and Bengal Water Proof (supra) laid down the same principle regarding Order II, Rule 2 of the Code.
19. In Shiv Kumar Sharma : AIR 2008 SC 171 (supra) the Apex Court held that for a suit for possession there may be one cause of action and for claiming a decree for mesne profit there may be another cause of action and in terms of Order II, Rule 2 of the Code plaintiff can claim all the reliefs in a single suit but if he does not do so for any of the reasons having his full knowledge about his right. Having omitted to make the said claims the plaintiff cannot be permitted to get the said claim either for damages or mesne profit indirectly. 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. At the same time the Apex Court also noted, '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. Damages cannot be granted without payment of court-fee. In a case where damages are required to be calculated, a fixed court-fee is to be paid but on the quantum determined by the Court and the balance court-fee is to be paid when a final decree is to be prepared.'
20. From the aforesaid observation of the Apex Court, it can be said that object of Order II, Rule 2 of the Code is for preventing splitting up of the same cause of action and if there are different causes of action for suit for recovery of possession and mesne profit then even without leave of the Court also a separate or subsequent suit for grant of damages by way of mesne profit can be claimed subject to the claim is made within the prescribed period of limitation. The thing which has to be looked into while considering the Order II, Rules 2, 3 and 4 is the nature of cause of action and period of limitation. If the causes are different and distinct and covered by Clauses (a), (b) and (c) of Order II, Rule 4 then no leave of the Court is required to be taken. And also the claim for mesne profit in a suit cannot be ousted on the ground of non-joinder of cause of action in the parent suit. Therefore, it cannot be said that right to file a subsequent suit for mesne profit is totally barred in view of Order II, Rule 2 if the parent suit was filed for declaration of right, title, interest and recovery of possession. Whether a subsequent suit would be a bar in view of the Order II, Rule 2 depends on the facts and circumstances of each case.
21. In the case of Tara Kishore Das AIR 1958 Assam 67 (supra) the Assam High Court of which this Court is a successor, while considering the decision of the Full Bench of Allahabad High Court in the case of B. Ram Karan Singh (dead) v. Nakchhad Ahir : ILR 53 Allahabad 951 : AIR 1931 Allahabad 429 held:
The object of Order 2, Rule 2 is undoubtedly to prevent a splitting up of the same cause of action; but its object is not to compel the plaintiff to seek in one and the same suit all the remedies to which he may be entitled against the same defendants on account of several causes of action. It is therefore, clear from this decision that a claim for pendente lite mesne profits would not be hit by Order 2, Rule 2 of the Civil Procedure Code.
22. In Tara Kishore Das (supra) the Assam High Court also took note of another decision of the Madras High Court in the case of Tadepalli Ramiah v. Madale Thathiah AIR 1937 Mad 849 wherein the learned single Judge of the Madras High Court, considering the judgment of the Privy Council in Naba Kumar Hazara v. Radhashyam Mahish : AIR 1931 PC 229 on which great reliance was placed in support of the contrary view and the learned single Judge of Madras High Court after careful consideration of the various decision bearing on the point, one of them being the Allahabad Full Bench decision held thus:
The Privy Council decision was no authority for the proposition that a claim for pendente lite mesne profits would be necessarily barred under Order 2, Rule 2 of the Civil Procedure Code. The learned Judge held that the claim for mesne profits accruing subsequent to the institution of the suit for recovery of possession, constituted a separate cause of action and did not arise out of the same cause of action on which the claim for possession was founded. He drew the distinction that in a claim for possession it was the specific restitution of the property that was sought, but in an action for mesne profits the claim was for all loss suffered during the period of dispossession.
23. In the instant case, the appellate Court also took note of the case of Tara Kishore Das AIR 1958 Assam 67 (supra) while passing the impugned judgment, it also took note of the case of Sadhu Singh AIR 1976 P & H 38 (supra) which according to Mr. Deb did not cut down the correct law relating to Order II, Rule 2. Therefore, it is also necessary to discuss the relevant portion of Sadhu Singh (supra).
24. In Sadhu Singh (supra) the question arose for decision was 'whether Order II, Rule 2 of the Code of Civil Procedure, 1908 bars a suit for mesne profits filed subsequently to a suit for possession of the property because the claim for those accrued mesne profits had not been earlier included therein ?' The, appellant Sadhu Singh was the defendant in the original suit before the trial Court and resisted the second suit on two preliminary objections those arose before the Trial Court regarding which the Trial Court struck the following two issues:
(i) Whether the trial of the suit cannot be proceeded in view of the Section 10, Civil Procedure Code ?
(ii) Whether the suit is barred under Order II, Rule 2 of the Civil Procedure Code as alleged in the para (2) of the preliminary objection in the written statement ?
On hearing the parties, the learned Court dismissed the suit deciding both the issues against the plaintiffs and on appeal the learned Additional District Judge, Ambala upheld the findings of the trial Court on issue No. 1 and reversed the issue No. 2 by holding that the suit was maintainable and not barred by the provisions of Order II, Rule 2 of the Code of Civil Procedure and against such decision of the Addl. District Judge, defendant presented the second appeal challenging the decision of the first appellate Court on issue No. 2 as stated supra before the Punjab and Haryana High Court and ultimately it came up before a Full Bench of that High Court. The Full Bench considering the sources of law and their history as well as the law reports cited before it noted that the provisions of Rule 2 of the Order II has to be construed to be complimentary to each other, as the very opening words of Rule 4 are a clear pointer to the fact that this provision treats the claim for recovery of removable property and claim for mesne profits thereof as two distinct and separate cause of action as Rule 4 specifically provides for doing a claim for mesne profits with a claim for immovable property and noted if the two claims had a single indivisible cause of action then, no necessity for a provision like Sub-clause (a) of Rule 4 could arise and such a construction would render this provision wholly redundant and otiose. On the other hand, for provisions of Rule 4(a) which provides an express exception the general prohibition of joining any other cause of action with a suit for recovery of immovable property would come into operation even in cases where the two claims were to be made and it is also noted that Order II is merely an enabling provision which allows the joinder of these two causes of action and conjoint reading of Rules 2 and 4 would conclude that Order II treats the cause of action for recovery of immovable property as distinct from a cause of action for the mesne profit thereof.
25. Their Lordships of the Punjab and Haryana High Court also took note of the decision of the Full Bench of Madras High Court in Ponnammal v. Ramamirda Aiyar reported in AIR 1915 Mad 912 wherein a plaintiff sued for possession for land only he might have joined in the same action claims for mesne profits and damages and it was still open to him to bring a subsequent suit against the same defendant for the profits which became payable before the institution of the former suit and which might have been included in that suit. Aforesaid ratio of the Ponnammal (supra) was also reiterated in the case of Venugopal Pillai v. Thirugnanavalli Ammal AIR 1940 Mad 934 as well in the case of Tadepalli Ramiah (supra). Not only that, their Lordships also considered the decision of a Full Bench of Calcutta High Court in Kishori Lal Roy v. Sharut Chander Mozumdar reported in ILR (1862) Cal 593 and some other decision of the Calcutta High Court it would help this Court for deciding the question involved in the instant appeal. Hence the same is reproduced herein under:
23. Within the Calcutta High Court an identical view has prevailed for more than a century by now. In Pratap Chunder Burooah v. Ranee Surno Moyee (1869) 12 Suth WR 5 it was held relying even on an earlier Full Bench decision of the Court that a regular suit for mesne profits would lie even after a suit for possession. If in that suit no question of mesne profits was raised or decided. An authoritative decision, however, later is that of the Full Bench in Kishori Lal Roy v. Sharut Chunder Mozumdar ILR (1882) Cal 593 in which Garith, C. J. speaking for a Bench of five Judges observed that the accepted law within the Court was to allow a plaintiff to enforce a claim for possession of land and for mesne profits either in one suit or two as he may think proper. This judgment was expressly following in Lalessor Babui v. Janki Bibi ILR (1892) Cal 615. A relatively recent judgment showing the consistent trend is that of Sris Chandra Nandy v. Joyramdanga Coal Concern Ltd. : AIR 1942 Cal 40.
Relying on the aforesaid decision along with some other decisions, their Lordships answered to the question in the negative.
26. In Damodaran Namboori Vasudevan Namboori AIR 1954 TC 377 (supra) the question that arose for consideration before this Lordship Justice Vithayathil, the then, was whether the plaintiff is debarred from claiming the mischavaram from 1116 to 1121 under the kanam deed of 1095, Ex. A. by reason of the fact that the kanam deed was superseded by the renewal deed of 1121. Ex. 1. And the other question was whether the suit is barred' under Order II, Rule 2(ii). Civil Procedure Code on account of the fact that the plaintiff omitted to claim in the prior suit mischavaram from the date of that till the execution of the renewal deed, like the question involved in the instant case regarding mesne profit accrued subsequent to the filing of the parent suit. His Lordships taking into note of earlier decisions of various High Courts including the decision of Madras High Court in Doraiswami v. Subramania reported in AIR 1918 Mad 484 in paragraph 8 of the report that omission to claim such mischavaram cannot be said to be an omission or relinquishment coming within the scope of Order II, Rule 2 Sub-rule (ii). It would be helpful for this Court to consider the decision in Damodaran Namboori Vasudevan Namboori (supra) if the said paragraph No. 8 is quoted herein under. Accordingly, the same is quoted herein under:
8. There is no express provision in the Tenancy Act which requires a landlord to claim in a suit for renewal of a kanom deed mischavaram that may accrue due between the institution of the suit and the execution of the renewal deed. Strictly speaking the cause of action in respect of mischavaram that accrued due after the institution of the suit cannot be said to have arisen on the date of the institution of the suit. Omission to claim such mischavaram cannot therefore be said to be an omission or relinquishment coming within the scope of Order 2, Rule 2 Sub-rule (ii).
It has been held by a Full Bench of the Madras High Court in - 'Doraiswami v. Subramania' AIR 1918 Mad 484 that when in a suit for possession of property and for past and future mesne profits the Court gives a decree for mesne profits up to the date of suit and says nothing about subsequent mesne profits a fresh suit to recover mesne profits from the date of the first suit to the date of recovery of possession of the property was not barred.
The same view was taken by the Allahabad High Court in -- 'Muhammad Ishaq Khan v. Muhammed Rustom All Khan' : AIR 1918 All 412, by the Bombay High Court in - 'Laxmibai v. Jagannath Rayji : AIR 1932 Bom 222 and in 'Gandhar Gopalrao v. Sripad Annarao' : AIR 1938 Bom 231 (FB) and by the Calcutta High Court in - 'Bipulbihari v. Nikhilchandra' : AIR 1929 Cal 566 and in -- 'Kalidas Rakshit v. Keshablal' : AIR 1931 Cal 788. In - 'Ram Karan Singh v. Nakchhed 'Ahir' : AIR 1931 All 429, a Full Bench of the Allahabad High Court held that when in a suit for possession no claim was made for 'future mesne profits a subsequent suit for mesne profits from the date of the first suit till the date of delivery of possession was not barred under Order 2, Rule 2(ii).
This decision was followed in - 'Ganga Ram v. Mt. Mutesra' : AIR 1932 All 510. To the same effect is the decision of the Bombay High Court in - 'Rama Kallappa v. Saidappa Sidrama' : AIR 1935 Bom 306 and of the Oudh Chief Court in - 'Wajid Khan v. Wahid Husain' : AIR 1931 Oudh 131. The principle laid down in those cases must apply to this case also. I am, therefore, of opinion that the suit is not barred under Order 2, Rule 2(ii). I hold that the suit for arrears of mischavaram claimed in the plaint is maintainable. As already stated, the appellant does not press his claim as regards the renewal fee.
27. In the case of Makhan Lal Modak (supra) the appellant as defendant challenged the suit of the respondent-plaintiff on the preliminary grounds that it was not maintainable in view of Order XX, Rule 12 of the Code of Civil Procedure and that further it was barred by res judicata and the trial Court dismissed the suit accepting the plea of res judicata on the decision of non allowance of the plaintiffs claim for damages and mesne profits in an earlier suit, which was instituted by them against the defendants, in respect of self-same lands, for partition, damages and mesne profits. The views taken up by the learned subordinate Judge was that a second suit of the description for damages and mesne profits in the context of the previous suit for partition, damages and mesne profits would not be maintainable. The said decision of the learned subordinate Judge, while was questioned before the learned Addl. District Judge by an appeal, learned Addl. District Judge disagreed with the views of the subordinate Judge, and remitted the suit for decision in accordance with law after taking additional evidence against which the second appeal was preferred before the High Court wherein it was contended that the learned Addl. District Judge 2 was in error in holding that the suit would not be barred under the provisions of Order XX, Rule 12 of the Civil Procedure Code while their lordships discussed about Order XX, Rule 12 of the Code, expressed that no such bar can apply as the aforesaid provision is an enabling provision permitting the Court in a suit for recovery of possession, to pass also on ,the plaintiff's prayer, if he so chooses, a decree for past and future mesne profits. Their lordships also stated that it is well established that a claim for mesne profits can be separately maintained from a suit for possession and the plaintiff is not obliged to join or unite the two claims. Under the ordinary law, the plaintiff has a right of suit in respect of his claim for damages and mesne profit and, there being no obligation on him to unite it with a suit for possession, Order XX, Rule 12 of the Code would not stand in the way of a separate suit for such claim of damages and mesne profits. It is further noted that in subsequent claim for mesne profits and/or damages would not, strictly fall within the purview of such constructive res judicata and as the claim in the suit was a subsequent claim and the decree was silent as to the said claim the plea of res judicata cannot apply.
28. In Haridas Das v. Smt. Usha Rani Banik 1997 (1) GLT 509. His Lordship JN Sharma, the then, had an opportunity to discuss regarding principles contained in the provisions of Order II, Rule 2, in paragraph 7 and 8 of the law report which are reproduced herein under:
7. Before the principles contained in these provision under Order II, Rule 2 can be applied three conditions must be satisfied:
(i) The earlier suit and the second suit must arise in the same cause of action.
(ii) Two suits must be between the same party.
(iii) Earlier suit must have been decided on merits.
(See AIR 1977 P&H; 1 Abnashi Singh v. Smt. Lalwant Kaur).
8. I respectfully agree with the view expressed by the Punjab and Haryana High Court. Further, Privy Council as far back as on 1922 observed that if the pleadings to support claim is different, the plaintiffs cause of action must also be deemed to be different (See Moor's Indian Appeals page 551 (M. B. Rahim v. Begum). When the cause of action in the previous suit and the subsequent suit are different, the provision of Order II, Rule 2 shall not apply.
29. In the case of Nrisingha Maitra : AIR 1981 Cal 65 (supra) a learned single Judge of the Calcutta High Court considering the case of Makhan Lal Modak (supra) discussed regarding Order II, Rule 2 and Rule 4 in para 9 of the said report which are as follows:
9. But left to myself I would have taken a different view. Order 2, Rule 2 of the Code of Civil Procedure requires that every suit shall include the whole of the claim which the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of the Court. It however, provides that where a plaintiff omits to sue in respect of, or intentionally relinquished, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. This Rule therefore does not require that a plaintiff in suit for eviction is under an obligation to include the prayer for mesne profits. But Order II, Rule 4 of the Code of Civil Procedure enables the plaintiff in such a case to include a claim for mesne profits. In a suit for eviction when there is no prayer for mesne profits there can be no doubt that a separate suit for mesne profits will lie. But in a suit for eviction where mesne profit is prayed for and the same is refused there is no reason why the plaintiff should be allowed to sue afresh for mesne profits. In cases where even though the prayer for mesne profits was included but the Court concerned did not decide that question and remained silent so far as the mesne profits are concerned there can be no bar to the filing of a fresh suit, for, the provisions of Order 20, Rule 12 gave the Court a discretion to pass a decree for mesne profits in a suit for recovery of possession of immovable property and for rent or mesne profits. In such a suit it was not obligatory on the part of the Court to pass a decree for mesne profits. The Court may leave that question without taking decisions thereon.
30. This Court has carefully gone through the case of Panana Reena Saminathan (supra) and the case of Mohammed Khalil Khan v. Mahbub Ali Mian reported in Indian Appeals LXXV page 121: : AIR 1949 PC 78 as referred to by Mr. Deb, Md. Khalil Khan (supra) has already been discussed by the Apex Court in the case of Sandeep Polymers (P) Ltd. : AIR 2007 SC 2656 (supra) and as such it is not necessary to discuss the same again. More so, when both the aforementioned cases are distinguishable on facts. The ratio laid down in both Md. Khalil Khan (supra) and Payana Reena Saminathan (supra) has no application to the facts of the present case.
31. Having heard the learned Counsel for the parties and after going through the impugned judgment and the law reports as stated supra no option is left to this Court except to hold that the declaration of right, title, interest and recovery of possession of immovable property is one cause of action and claim for a decree for mesne profit and/ or damages is another cause of action, meaning thereby both are different and distinct cause of action and the choice is with the plaintiff whether he would claim the decree for both the causes of action inclusive in a single suit or a different suit being the Order II, Rule 1 of the Code requires that the plaintiff is duty bound to claim the entire relief and the Rule 2 does not cast any obligation of the plaintiff either for joining or uniting the two claims in a particular suit as the said provision is an enabling provision which permits the Court in a suit for declaration of title, interest and recovery of possession, also to pass on the plaintiff's prayer, if he so wishes, a decree for past and future mesne profits, as in instant case it is the admitted position that the plaintiff in the parent suit did not claim any mesne profit and the subsequent suit is with a claim for mesne profit due after the filing of the parent suit. Therefore, Order II, Rule 2 has no application in the instant case. Rather it is a settled law by this time that the provisions of a statute are to be read harmoniously for proper interpretation of the statute. Applying the aforesaid statutory principle, this Court is of considered opinion that for proper interpretation of Order II, Rule 2 and Rule 4, we have to read together both the provisions to get the real intention of the legislature. If we read Rule 2 and Rule 4 together then we will find that both the provisions are complimentary to each other and Rule 4 speaks of claim for the recovery of immovable property and a claim for mesne profit thereof as two different and distinct causes of action. Aforesaid views of this Court also receive support from Sadhu Singh : AIR 1976 P & H 38 (supra) where their Lordships of the Punjab and Haryana High Court noted that 'It inevitably seems to flow from the reading of Rule 2 and Rule 4 together is that Order 2 treats a cause of action for recovery of immovable property as distinct from a cause of action for the mesne profits thereof.' The aforesaid case of Sadhu Singh (supra) was also relied upon by this Court in Haridas Das (supra). Therefore, according to this Court, the submissions of Mr. Deb, inter alia, that Sadhu Singh (supra) did not cull down the proper law relating to Order II, Rule 2 finds no place, rather the submissions of Mr. Biswas has some force, inter alia, that the cause of action of the parent still filed by the plaintiff and the cause of action of the subsequent suit are totally different and distinct and thereby Order II, Rule 2 has no application and the case in hand is guided by Order II, Rule 4. Hence the impugned judgment passed by the learned Addl. District. Judge does not call for any interference as he held that the appellant-plaintiffs in the parent suit prayed for cancellation of 'Nadabi' declaration of title as well as recovery of possession, cause of action of which arose on 12-5-1973 whereas from the pleadings of the present suit it appears that the cause of action of the suit in question arose on 7-10-1985 and thus it is crystal clear that the cause of action of the present and the cause of action of the parent suit are not same. As to whether the cause of action of the present and the earlier suits are same or not is a matter of fact, which can only be approved during the course of trial. Learned Addl. District Judge rightly remitted the suit for trial setting aside the judgment of the learned Civil Judge, Sr. Div. Kailashahar, North Tripura, providing the respondents opportunity to satisfy the Court by adducing cogent evidence that the cause of action in the parent suit and the suit in question are identical. More so, in the suit in question the plaint of the parent suit, i.e., TS No. 1/1988 was not approved by way of evidence to show that the suit in question is barred by provisions of Order II, Rule 2 as res judicata for non-inclusion of the whole claim which the respondent plaintiff is entitled to make in respect of the cause of action in the parent suit.
32. For the foregoing reasons the appeal is dismissed being devoid of merit.
No order as to costs.