Case: M/S Raptakos, Brett Vs. M/S Ganesh Property

a) The respondent herein leased out the premises bearing No. 6, Marquis Street, Calcutta to thefor a term of 21 years commencing from 16.03.1964 to 15.03.1985 under a registered Lease Deed dated 16.03.1964 at a monthly rent of Rs.Before the expiry of the lease period, the respondent filed a suit for recovery of possession being Suit No. 1023 of 1982 before the City Civil Court, Calcutta, Third Bench for bona fide use. Vide order dated 06.08.1986, Suit No. 1023 of 1982 for recovery of possession was dismissed by the City Civil Court with costs.(c) On 11.08.1986, the respondent filed a Title Suit being No. 1481 of 1986 before the 8th Bench, City Civil Court, Calcutta for recovery of possession and mesne profit. Vide order dated 18.04.1991, learned single Judge of the City Civil Court decreed the suit in favour of the respondent while declining the claim of mesne profit as the said claim was not pressed.(d) Being aggrieved by the order dated 18.04.1991, thepreferred an appeal being F.A.T. No. 1786 of 1991,as First Appeal No. 253 of 1992. Vide order dated 09.07.1991, the Division Bench of the High Court, restrained the respondent from executing the decree on the condition that thewill continue to pay rent at the rate of Rs. 2,500/per month. Further, on 11.08.1997, First Appeal No. 253 of 1992 was dismissed, however, thewas granted 6 (six) months time to vacate the suit premises.(e) Feeling aggrieved by the order dated 11.08.1997, thefiled a petition for special leave to appeal being No. 19695 of 1997 before this Court which was converted into Civil Appeal No. 1657 of 1998. This Court, vide order dated 09.09.1998, had dismissed the appeal with certain directions. However, on an application filed by theseeking modification in the said order, this Court, vide order dated 25.09.1998 had passed the following order on the saidmentioning the IA is taken on Board.Having heard learned counsel for the parties further directions are issued asthe appellants hand over peaceful vacant possession of the premises in question on or before 08th October, 1998 then they will have to pay for the use and occupation charges only Rs. 2,500/only, for the month of October. If they fail to deliver possession by that time they will have to pay use and occupation charges for the month of October at the rate of Rs. 50,000/only, as fixed by us earlier. Rest of the order remains as it is.IA is disposed of accordingly."(f) After a long drawn litigation between the parties at all levels, thehanded over the possession of the suit premises to the respondent on 08.10.1998.(g) The respondent filed a fresh suit being Civil Suit No. 457 of 1998 before the High Court against thefor loss and damages caused to the respondent due to wrongful possession to the tune of Rs.ny preferred G.A. No. 3380 of 2003 in Civil Suit No. 457 of 1998 under Order VII Rule 11(a) of the Code of Civil Procedure, 1908 (in short `the Code) for dismissing the suit. Learned single Judge of the High Court, vide order dated 28.07.2004, dismissed the application filed by theAggrieved by the order dated 28.07.2004, thepreferred APOT No. 556 of 2004 in Civil Suit No. 457 of 1998 before the High Court. The Division Bench of the High Court, vide judgment and order dated 22.08.2006, partly allowed the appeal holding that the suit is maintainable while leaving the question of mesne profit open for the decision by the trial court.(i) Aggrieved by the order dated 22.08.2006, thehas preferred this appeal by way of special leave before this Court.

Reasoning:
8. In the light of the above indisputable facts, the plaint now filed cannot be considered as one disclosing a cause of action for maintaining a suit for mesne profits or damages for the same period for which a claim was raised in the earlier suit and deliberately withdrawn or given up by the respondent before theit is also evident on record that in Suit No. 1481 of 1986, the issue of mesne profit was not pressed by the respondent and the same was also not pressed before the High Court in appeal nor was it raised before thisthe above, it can be said that the Respondent, by his own conduct, accepted the orders passed by this Court in allowing the appellant to occupy the premises conditionally on payment of Rs. 2,500/from the disposal of the appeal by the High Court till the disposal of the SLP in this Court. It would suggest that the averments in the plaint in Suit No. 457 of 1998 would not disclose any cause of action and, therefore, the suit is not maintainable.In view of the above, we are of the opinion that the High Court erred in not appreciating that the respondent having given up its claim for mesne profits in Suit No. 1481 of 1986, the subsequent suit being Suit No. 457 of 1998 is clearly hit by Order II Rule 2 of the Code.From a reading of the provisions of Order II, Rule 2 and Rule 4 of the Code and also the principles laid down in the aforementioned cases, it is clear that under Order II, Rule 2 read with Rule 4, the plaintiff can also claim mesne profits or arrears of rent in a suit filed for ejectment of the tenant. The plaintiff can further file a fresh suit for claiming mesne profits or arrears of rent for the period subsequent to the decree passed in the earlier suit having become final. But in a case where the plaintiff has claimed mesne profits or arrears of rent in a suit filed for ejectment of the tenant and has relinquished his rightsmesne profits or arrears of rent in the suit proceedings itself, the provisions of Order II, Rule 2 will come into play and in comparison to the second suit for mesne profits or arrears of rent till the decree, the earlier suit will attain finality.18. Applying the above principles to the facts of the present case, we find that the decree in the earlier Suit No. 1481 of 1986 filed for ejectment of theand mesne profits attained finality on 09.09.1998 and 25.09.1998 when this Court had dismissed Civil Appeal No. 1657 of 1998 and the application respectively filed by the appellant herein. However, vide order dated 25.09.1998, this Court had directed that if the appellant hands over the peaceful vacant possession of the premises in question on or before 08.10.1998 then they will have to pay Rs. 2,500/for the use and occupation charges for the month of October 1998 otherwise Rs. 50,000/as fixed earlier. It is not in dispute that in the present case, the appellant had handed over peaceful vacant possession to the respondent on 08.10.1998 and also that the respondent had relinquished the plea of mesne profits during the suit proceedings itself. Thus the prohibition contained in Order II Rule 2 would squarely apply.19. Having regard to the earlier proceedings, as mentioned above, in Civil Suit No. 1481 of 1986, wherein a decree for possession was passed but the claim for mesne profits was relinquished by theand in view of the subsequent orders of the Division Bench and this Court, the question of further payments on account of mesne profits which had been fixed and paid in the earlier suit did not arise. The subsequent suit claiming mesne profits for the very same period during which a fixed amount was paid by theand accepted by the respondent without objection is clearly not maintainable. The plaint does not disclose any cause of action or any clear right to sue and was liable to be rejected. The above facts would clearly show that the averments in the plaint read along with the orders and pleadings relied upon by the respondent in support of the reliefs prayed for in Civil Suit No. 457 of 1998 do not disclose any cause of action for the prayer for mesne profits made therein.In view of the above, we are of the considered opinion that the possession of thefor the period under consideration, pursuant to orders passed by the High Court and this Court, cannot in any view be considered as illegal or unauthorized or that of a trespasser. For that reason, the plaint in Civil Suit No. 457 of 1998 does not disclose any cause of action for filing a suit for mesne profits till surrender of possession. Therefore, the issue of mesne profit attained finality and the respondent is not entitled to raise the same issue now by way of filing a fresh suit. In other words, by not pressing the claim of mesne profits raised in a suit before the Court, unconditionally and without any reservation, the respondent cannot thereafter turn around and claim the same relief by filing a fresh suit.