M/S BHARAT PETROLEUM CORPORATION LTD. AND ANOTHER versus ATM CONSTRUCTIONS PVT. LTD.
[2023] 16 S.C.R. 859, Supreme Court of India, 2023
Outcome: Dismissed (Dismissed)
Segment: Issues
[2023] 16 S.C.R. 859 : 2023 INSC 1042
859
CASE DETAILS
M/S BHARAT PETROLEUM CORPORATION LTD. AND 
ANOTHER
v.
ATM CONSTRUCTIONS PVT. LTD.
(Civil Appeal No. 7890 of 2023)
NOVEMBER 30, 2023
[VIKRAM NATH AND RAJESH BINDAL, JJ.]
HEADNOTES
Issue for consideration: Whether the High Court was justiﬁ ed in 
dismissing the application ﬁ led by the appellant u/Or.VII r.11(d) CPC for 
rejection of the subsequent suit ﬁ led by the respondent-owner for damages 
for use and occupation of the property after expiry of the lease period.
Code of Civil Procedure, 1908 – Or. VII r. 11(d) – Application 
under – First suit ﬁ led by the respondent for possession without claiming 
any damages for use and occupation – Subsequent suit ﬁ led only for 
claiming damages for use and occupation of the property after expiry of 
the lease period – Application u/Or. VII r. 11(d) ﬁ led by the appellants-
defendants for rejection of the said plaint – Maintainability:
Held: Suit for possession and suit for claiming damages for use 
and occupation of the property are two diﬀ erent causes of action – There 
being diﬀ erent consideration for adjudication, the second suit ﬁ led by the 
respondent claiming damages for use and occupation of the premises was 
maintainable – Respondent is the absolute owner of the property in dispute 
– Lease of the property in favour of the appellants by the predecessors-in-
interest of the respondents expired in 1997 – After a prolonged litigation, 
the possession was handed over to
the respondent after 25 years – First suit 
was ﬁ led seeking possession of the property – No claim was made regarding 
mesne proﬁ ts – Subsequent suit was ﬁ led claiming damages for use and 
occupation of the property from 1998 onwards – Thus, the application ﬁ led 
by the appellants for rejection of the plaint was rightly dismissed by the 
courts below – Cause of action. [Paras 16, 17]
860 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
LIST OF CITATIONS AND OTHER REFERENCES
Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private 
Limited (2013) 1 SCC 625: [2012] 7 SCR 933 – distinguished.
Ponnammal v. Ramamirda Aiyar and two others, ILR (1915) XXXVIII 
829; Sadhu Singh etc. v. Pritam Singh, Etc. ILR (1976) 1 P&H 120; Gurbux 
Singh v. Bhooralal, AIR 1964 SC 1810:[1964] SCR 831; Ram Karan Singh 
v. Nakchhad Ahir AIR 1931 All 429, Indian Oil Corporation Ltd. v. Sudera 
Realty Pvt. Ltd. 2022 SCC OnLine SC 1161: 2022 INSC 926, Ram Karan 
Singh and others v. Nakchhad Ahir and others, AIR 1931 Allahabad 429; 
Raptakos Brett and Company Limited v. Ganesh Property (2017) 10 SC 
643 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No.7890 of 2023.
From the Judgment and Order dated 07.01.2021 of the High Court of 
Judicature at Madras in ANO No.1633 of 2020.
Appearances:
V. Giri, Sr. Adv., Parijat Sinha, Ms. Pallak Bhagat, Ms. Reshmi Rea 
Sinha, Ms. Suveni Bhagat, Advs. for the Appellant.
S. Nagamuthu, Sr. Adv., M. A. Chinnasamy, Mrs. C. Rubavathi, M. 
Veeraragavan, C. Raghavendren, V. Senthil Kumar, Ch. Leela Sarveswar, 
Devendra Pratap Singh, Advs. for the Respondent.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
RAJESH BINDAL, J.
1. Leave granted.
2. Challenge in the present appeal is to the order dated 07.01.2021 
passed by the High Court1, vide which the application ﬁ led by the
appellants/
1 
High Court of Judicature at Madras
861
defendants under Order VII Rule 11(d) C.P.C. in the suit2 ﬁ led by the 
respondent-plaintiﬀ , was dismissed.
3. Brieﬂ y, the facts as available on record are that the respondent-
plaintiﬀ  is presently the absolute owner of the property in dispute. It was 
originally owned by T. Padmanabhan, T. Sethuraman and T. Gopinath. At 
that time, M/s Burma Shell Oil Storage and Distribution Company of India 
Ltd. had taken the property on lease with eﬀ ect from 01.01.1958 for the 
purpose of erecting pump service and ﬁ lling station for storage of petrol, 
diesel and carrying on business in such products for a period of twenty 
years by entering a lease deed dated 08.01.1958. The said Company was the 
predecessor-in-interest of the appellants-defendants. The property was put 
to public auction owing to default in repayment of the loan availed by the 
owners. The same was purchased by Mrs. S. Bharwani in the auction. Sale 
deed was registered in her favour on 24.06.1978. The respondent-plaintiﬀ  
had purchased the property from Mrs. S. Bharwani. Finally, the lease in 
favour of the appellants expired on 31.12.1997. Thereafter, as pleaded, the 
respondent-plaintiﬀ  issued notice to the appellants demanding surrender 
of possession. The same having not been done, ﬁ rst suit3 was ﬁ led by the 
respondent-plaintiﬀ  in the year 2006. During the pendency of ﬁ rst suit,the 
suit in question was ﬁ led claiming liquidated damages for a period from 
01.01.1998 till 31.12.2019 along with
interest and future damages of 
₹30,50,000/- per month from 01.01.2020 onwards till the date of handing 
over the vacant possession of the suit property. It is in the aforesaid suit 
that the appellants-defendants ﬁ led application under Order VII Rule 11(d) 
C.P.C. The same having been dismissed by the High Court, the matter is 
before this Court.
4. Mr. V. Giri, learned senior counsel for the appellants submitted that 
it is not a matter of dispute that the lease in favour of the appellants expired 
on 31.12.1997. The ﬁ rst suit for possession was ﬁ led by the respondent-
plaintiﬀ  in 2006. At the stage of ﬁ ling of the aforesaid suit, though the relief 
for damages for use and occupation was available to the respondent-plaintiﬀ , 
2 
Civil Suit (Commercial Division) No. 62 of 2020
3 
Civil Suit NO. 711 of 2006
M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v. 
ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]
862 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
however, the same was not claimed. It has been speciﬁ cally pleaded in 
Paragraph No. XXI in the plaint that the respondent-plaintiﬀ  is entitled 
to damages for wrongful occupation of the premises by the appellants-
defendants, but still while claiming the ﬁ nal relief, only possession was 
sought after removal of the structure,which existed thereon. The ﬁ rst suit 
was decreed on 30.10.2010.
5. During the pendency of the aforesaid suit, the respondent-plaintiﬀ  
ﬁ led the suit in question in January 2020 claiming liquidated damages 
of ₹1,28,90,000/- payable towards illegal occupation from 01.01.1998 
till31.12.2019along with interest @ 12% per annum from 01.01.1998 till 
realization. Future damages @ ₹30,50,000/- per month from 01.01.2020 till 
the date of handing over vacant possession of the property in dispute were 
also claimed. It is the case of the parties that possession was handed over 
by the appellants to the respondent-plaintiﬀ  in June 2022.
6. The argument raised by learned senior counsel for the appellants is 
that from the pleadings in the ﬁ rst suit ﬁ led by the respondent-plaintiﬀ  it 
is evident that it had touched the issue of damages for use and occupation 
of the property in dispute, which could be claimed at that time, the lease 
having expired on 31.12.1997. However, still in the ﬁ rst suit ﬁ led in January 
2006 only possession was sought. The relief, which was available and not 
claimed, is deemed to be
omitted for which no fresh suit lies. The plaint in 
the suit in question ﬁ led by the respondent-plaintiﬀ  in the year 2020 was 
liable to be rejected under Order VII Rule 11(d) C.P.C., as the same was 
not maintainable. In the suit ﬁ led subsequently, the claim of the respondent-
plaintiﬀ  is also barred by law for the reason that in the second suit ﬁ led 
in the year 2020, the claim is made for damages for use and occupation 
from the year 1998 onwards. To appreciate the contentions raised by the 
appellants-defendants, copy of the earlier suit and the judgment therein 
have been placed on record by the respondent-plaintiﬀ  along with the 
subsequent suit. It is not that any pleadings of the appellants-defendants 
are to be considered. He further referred to the provisions of Order II, 
Rules2(2), (3) and especially(4) C.P.C. in terms of which without even 
seeking permission of the court, relief for damages for use and occupation 
of the premises can be joined in a suit for recovery of immoveable property.
863
In support of his arguments, reliance was placed upon the judgment of 
this Court in Virgo Industries (Eng.) Private Limited v. Venturetech 
Solutions Private Limited4.
7. On the other hand, Mr. S. Nagamuthu, leaned senior counsel for the 
respondent-plaintiﬀ  submitted that the application ﬁ led by the appellants-
defendants was totally mis-conceived. It is the undisputed fact on record 
that the lease granted to the appellants expired on 31.12.1997. Despite that, 
they did not hand over vacant physical possession of the property in dispute 
to the lesser- respondent, who had purchased the same on 03.01.1997. 
The respondent-plaintiﬀ  did not have any choice but to ﬁ le the ﬁ rst suit in 
2006. In that also, all kinds of frivolous pleas were raised by the appellants 
making the respondent to contest the litigation for over a decade. The suit 
was initially decreed on 30.10.2010. After the lease expired on 31.12.1997, 
from January 1998 onwards the appellants were in occupation of the property 
in dispute without paying any damages for use and occupation thereof. The 
respondent-plaintiﬀ  ﬁ led a suit in January 2020 seeking a direction to the 
appellants-defendants to pay liquidated damages of ₹1,28,90,000/- along 
with interest @ 12% per annum from 01.01.1998 till realization. Future 
damages @ ₹30,50,000/- per month from 01.01.2020 till the date of handing 
over vacant possession of the property in dispute were also claimed. The 
calculation was on a very conservative
estimate, the details whereof have 
been furnished in the suit. As there was huge delay on the part of the 
appellants to pay the damages for use and occupation of the property in 
dispute, interest was also claimed. As had been the attitude of the appellants 
in delaying the process of law, instead of defending the suit which otherwise 
was not defendable, an application was ﬁ led under Order VII Rule 11(d) 
C.P.C. for rejection of the plaint. The same was totally mis-conceived. 
There is no bar in ﬁ ling a separate suit for claiming damages for use and 
occupation of the property in dispute, in case in the ﬁ rst suit pertaining to 
the same premises, only possession was claimed. The law thereon is well 
settled. Even the High Court has also referred to the judgments starting 
from a Full Bench of Madras High Court in Ponnammal v. Ramamirda 
Aiyar and two others5. Subsequently, the matter was considered by the 
4 
(2013) 1 SCC 625
5 
ILR (1915) XXXVIII 829
M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v. 
ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]
864 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
Full Bench of Punjab and Haryana High Court in Sadhu Singh etc. v. 
Pritam Singh, Etc.6 Same view was endorsed. Even this Court in Gurbux 
Singh v. Bhooralal7 had settled the issue that even if damages for use and 
occupation had not been claimed in a suit ﬁ led earlier seeking possession 
of the property, a fresh suit being a distinct cause of action is maintainable. 
In view of the aforesaid settled position of law, the subsequent suit ﬁ led by 
the respondent-plaintiﬀ  cannot be said to be barred under any law. It was 
further submitted that the issue with regard to maintainability of the suit 
in terms of Order II Rule 2 C.P.C. has already been framed and the matter 
will be examined by the Trial Court after the parties lead evidence. Even if 
the appellants-defendants had any objection with regard to any part of the 
claim made in the suit being beyond limitation or otherwise, the issue can 
always be raised and tried.
8. Heard learned counsel for the parties and perused the paper book.
9. The respondent-plaintiﬀ  is the absolute owner of the property in 
dispute. It was originally owned by T. Padmanabhan, T. Sethuraman and 
T. Gopinath. At that time, M/s Burma Shell Oil Storage and Distribution 
Company of India Ltd. had taken the property on lease with eﬀ ect from 
01.01.1958 for a period of twenty years by executing a lease deed dated 
08.01.1958. The said Company was the predecessor-in-interest of the
appellants-defendants. The property was put to auction for recovery of 
loan availed by the owners. The same was purchased by Mrs. S. Bharwani 
in the auction. Sale deed was registered in her favour on 24.6.1978. The 
respondent-plaintiﬀ  had purchased the property from Mrs. S. Bharwani. 
Finally, the lease in favour of the appellants expired on 31.12.1997. 
Thereafter, as pleaded, the respondent-plaintiﬀ  issued notice to the appellants 
seeking possession. The same having not been done, the ﬁ rst suit ﬁ led by the 
respondent-plaintiﬀ  was decreed 30.10.2010. During the pendency of the ﬁ rst 
suit, the appellants-defendants sought to invoke Section 9 of the Tamil Nadu 
City Tenants Protection Act, 1921 claiming right to purchase the property, 
but failed in that process as well. In the ﬁ rst suit ﬁ led by the respondent-
plaintiﬀ , the prayer was only for seeking possession of the property. In the 
6 
6 ILR (1976) 1 P&H 120
7 
AIR 1964 SC 1810
865
suit in question ﬁ led in the year 2010, the prayer was made for claiming 
damages for use and occupation of the property from 01.01.1998 onwards, 
as admittedly the lease in favour of the appellants expired on 31.12.1997. 
Copy of the plaint and the judgment in the ﬁ rst suit have been placed on 
record by the respondent-plaintiﬀ  along with the second suit. 
10. Application under Order VII Rule 11(d) C.P.C. was ﬁ led by the 
appellants-defendants for rejection of the plaint. It was on the ground that 
a subsequent suit only for claiming damages for use and occupation of the 
property in dispute, for which a suit for possession was ﬁ led earlier without 
claiming any damages for use and occupation, will not be maintainable in 
terms of Order II Rule 2 C.P.C.
11. The primary issue which requires consideration by this Court to 
appreciate the arguments regarding maintainability of the subsequent suit is 
with reference to cause of action. The ﬁ rst suit was ﬁ led by the respondent 
for possession, whereas the second suit was ﬁ led for damages for use and 
occupation of the property after expiry of the lease period.
12. Paragraphs in the two suits mentioning the cause of action are 
extracted below:
“Suit for possession
“XXI. The plaintiﬀ  submits that after the statutory intervention, the 
ﬁ rst renewal period by virtue of Section 5 & 7 of the Burma-Shell 
Acquisition of Undertakings in India Act, the defendants got the lease 
deed executed for a period of 20 years from
01.01.1978. The said ﬁ rst 
renewal period expired on 31.12.1997. The plaintiﬀ  submits that the 
Apex Court as well as the Madras High Court have clearly held that 
the statutory right of the defendant Corporation to renew the lease 
can be exercised only one time and no more. Hence, the possession 
of the defendants in the plaint schedule property after the expiry of 
the ﬁ rst renewal period i.e. 31.12.1997 is that of a trespasser. The 
plaintiﬀ  submits that till date they have not received any rental from 
the defendants. The plaintiﬀ  is entitled to damages for the wrongful 
occupation of the premises by the defendants. Hence the possession of 
the defendants is wrongful, and the suit is therefore laid for recovery 
of possession of the actual demised premises.
M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v. 
ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]
866 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
XXI. The cause of action for the suit arose at Madras on 08.01.1958, 
when the defendants as it then stood as Burma-Shell Oil & Storage 
Company Limited entered into a contract of lease with plaintiﬀ ’s 
predecessor in title and was let into possession of the plaint schedule 
property, on 31.07.1997, when the plaintiﬀ  purchased the said property 
from the predecessor in title of the plaint schedule property; on 
23.07.2005 when the plaintiﬀ  through its lawyers sent a registered 
notice calling upon the defendants to surrender possession of the 
plaint schedule property and on 01.08.2005 when the ﬁ rst defendant 
by its letter dated 02.08.2005 addressed to the lawyers of the plaintiﬀ  
declined to surrender possession of the plaint schedule and on 
subsequent dates.”
Suit for damages for use and occupation of property
“13. The cause of action for the suit arose within the jurisdiction of this 
Hon’ble Court on 01.01.1958 when the lease under the predecessors-
in-title and the erstwhile Burma Shell Oil Storage and Distribution 
Company had commence; on 08.01.1958 when the said lease deed 
was executed by the parties; on 20.01.1976 when the Government 
of India acquired the equity shares of the Burma Shell Oil Storage 
and Distribution Company and incorporated the Bharat Petroleum 
Corporation Ltd., on the dates between 1976 and 1978 when the 
predecessor-in-title of the suit property availed loan from the Egmore 
Beneﬁ t Society,
brought the property to public auction and Mrs. S. 
Bharwani purchased the suit property in public auction; on 01.01.1978 
when the renewed period of lease has commenced; on 06.07.19078 
when the defendant had requested Mrs. S. Bharwani, the then title 
holder to grant extension of lease from 01.01.1978; on 27.07.1978 and 
on 18.10.1978 when the said Mrs. S. Bhawani caused further notices 
to the defendants to vacate the suit property; on 17.11.1978 when the 
defendants informed the said Mrs. S. Bharwani that they have the 
statutory right under the Burma Shell Acquisition of Undertaking in 
India Act; on 14.11.1996 when the plaintiﬀ  entered into the agreement 
for sale of the suit property; on 03.01.1997 when the Deed of Sale in 
favour of the plaintiﬀ  was registered; on 02.12.1997 when the said 
Mrs. Bharwani has caused a notice demanding vacant possession;
867
on 01.091.1998 when the extended period of lease in respect of the 
suit property had expired; on 09.01.1998 when the said has issued 
demand notice to vacate the suit property, on 10.1.2000 when the said 
Mrs. Bharwani issued another notice for vacant possession of lease 
for another 30 years was rejected; in the year 2006, when the suit for 
eviction in O.S. No. 711 of 2006 was ﬁ led in the City Civil Court; on 
27.11.2009 when the Defendants ﬁ led the Petition in I. A. No. 6009 of 
2009 under Section 9 of the City Tenants Protection Act, in the year 
2010 when the CMA 20 of 2010 was ﬁ led before the III Additional 
Judge, City Civil Court, Chennai; on 15.2.2010 when the CMA was 
dismissed; on 30.10.2010 when the suit in O.S. No. 711 of 2006 was 
decreed; in the year 2010, when the Defendants preferred the A.S. No. 
361 of 2010; in the year 2011, when the Defendants preferred a SLP in 
the Hon’ble Supreme Court of India against the orders passed in CRP 
above; in the year 2011, when the Defendants ﬁ led CRP No. 610 of 
2011 before the Hon’ble Court, Madras against the Orders passed in 
CMA; on 09.01.2012, when the CRP was dismissed by the Hon’ble 
High Court; and each and every day thereafter.”
13. Similar issue was considered by a Full Bench of Allahabad High 
Court in Ram Karan Singh v. Nakchhad Ahir8. In the aforesaid case, a 
suit for recovery of possession and mesne proﬁ ts was ﬁ led on 24.08.1925. 
In the suit, the plaintiﬀ  claimed mesne proﬁ ts upto the date of
ﬁ ling of the 
suit. The suit was decreed in favour of the plaintiﬀ . Future and pendente lite 
mesne proﬁ ts were neither claimed nor refused in that suit. Possession of 
the land was delivered on 01.04.1927. The plaintiﬀ  then instituted a second 
suit for recovery of mesne proﬁ ts from the date of institution of the ﬁ rst 
suit i.e., 24.08.1925 till the date of delivery of possession, i.e., 01.04.1927. 
The Full Bench opined that a subsequent suit for claiming mesne proﬁ ts 
where an earlier suit claiming possession and mesne proﬁ ts upto the date of 
ﬁ ling of the suit was already decided, was maintainable. Relevant paragraph 
thereof is extracted below:
“It seems to us that the cause of action for recovery of possession is 
not necessarily identical with the cause of action for recovery of mesne 
8 
AIR 1931 All 429
M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v. 
ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]
868 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
proﬁ ts. The provisions of Order 2 Rule 4, indicate that the legislature 
thought it necessary to provide specially for joining a claim for mesne 
proﬁ ts with one for recovery of possession of immovable property, 
and that but for such an express provision, such a combination might 
well have been disallowed. A suit for possession can be brought within 
twelve years of the date when the original dispossession took place 
and the cause of action for recovery of possession accrued. The claim 
for mesne proﬁ ts can only be brought in respect of proﬁ ts within three 
years of the institution of the suit and the date of the cause of action for 
mesne proﬁ ts would in many cases be not identical with the original 
date of the cause of action for the recovery of possession. Mesne proﬁ ts 
accrue from day to day and the cause of action is a continuing one, 
and arises out of the continued misappropriation of the proﬁ ts to which 
the plaintiﬀ  is entitled. …”
(Emphasis supplied)
14. Subsequently, a Full Bench of Punjab & Haryana High Court in 
Sadhu Singh’s case (supra) considered the following question:
“Whether Order 2, rule 2 of the Code of Civil Procedure, 1908, bars 
a suit for mesne proﬁ ts ﬁ led subsequently to a suit for possession of 
the property because the claim for those accrued mesne proﬁ ts had 
not been earlier included therein.”
14.1 The same was answered in negative by majority.
15. The Full Bench judgment of Allahabad
High Court in Ram Karan 
Singh’s case (supra) was quoted with approval in Indian Oil Corporation 
Ltd. v. Sudera Realty Pvt. Ltd.9 opining therein that the cause of action 
claiming mesne proﬁ ts accrue from day to day and the cause of action is a 
continuing one. Relevant paragraphs 64 and 65 thereof are extracted below:
“64. The case of the respondent is that the plea of limitation was not 
pressed before the learned Single Judge and was also not taken up 
before the Division Bench. It is further contended that a claim for 
mesne proﬁ ts involves a liability, which accrues on a day- to-day basis. 
9 
2022 SCC OnLine SC 1161: 2022:INSC: 926
869
In this regard, attention is drawn to Ram Karan Singh and others v. 
Nakchhed Ahir and others, AIR 1931 Allahabad 429, which has been 
referred to by this Court in the Judgment reported in Raptakos Brett 
and Company Limited v. Ganesh Property, (2017) 10 SC 643 and 
we may notice only paragraph-21 of Raptakos Brett and Company 
Limited (supra):
“21. Bench of the Allahabad High Court while examining the issue of 
maintainability of second suit for pendente lite and future mesne proﬁ ts 
where earlier suit for possession and past mesne proﬁ ts has already 
been decided has held as follows : (SCC Online All) 
“It seems to us that the cause of action for recovery of possession 
is not necessarily identical with the cause of action for recovery 
of mesne proﬁ ts. The provisions of Order 2 Rule 4, indicate that 
the legislature thought it necessary to provide specially for joining 
a claim for mesne proﬁ ts with one for recovery of possession of 
immovable property, and that but for such an express provision, 
such a combination might well have been disallowed. A suit for 
possession can be brought within twelve years of the date when 
the original dispossession took place and the cause of action 
for recovery of possession accrued. The claim for mesne proﬁ ts 
can only be brought in respect of proﬁ ts within three years of 
the institution of the suit and the date of the cause of action for 
mesne proﬁ ts would in many cases be not identical with the 
original date of the
cause of action for the recovery of possession. 
Mesne proﬁ ts accrue from day to day and the cause of action is a 
continuing one, and arises out of the continued misappropriation 
of the proﬁ ts to which the plaintiﬀ  is entitled. …”
(Emphasis supplied)
65. In the said passage, what has been considered, was the issue 
relating to the maintainability of the second Suit for pendente lite and 
future mesne proﬁ ts, in a situation, where an earlier suit for recovery 
of possession and for past mesne proﬁ ts had been decided. We notice 
that what the Court has essentially held is that but for Order IV Rule 
M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v. 
ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]
870 
SUPREME COURT REPORTS 
[2023] 16 S.C.R.
210 of the CPC, as it stood speciﬁ cally providing for joining a claim 
for mesne proﬁ ts with one for recovery of possession of an immovable 
property, such a joining together of claims in one suit, may have been 
not allowed. It is thereafter stated that a claim for mesne proﬁ ts can 
only be brought in respect of proﬁ ts within three years of the institution 
of the suit. Still further, it is found that the date of cause of action for 
action for mesne proﬁ ts may not coincide with the date of cause of 
action for recovery of possession. It is thereafter that the statement 
which is relied upon by the respondent has been made. The Court held 
that mesne proﬁ ts accrue from day-to-day, and the cause of action is a 
continuing one. It arises out of the continued misappropriation of the 
proﬁ ts, which a plaintiﬀ  is entitled to.”
16. If considered in the light of the facts of the case in hand, it is 
undisputed that the respondent-plaintiﬀ  is the absolute owner of the property 
in dispute at present. The lease of the property in favour of the appellants by 
the predecessors-in-interest of the respondents expired on 31.12.1997. After 
a prolonged litigation, the possession was handed over to the respondent only 
in June 2022. The ﬁ rst suit was ﬁ led seeking possession of the property. No 
claim was made regarding mesne proﬁ ts. Subsequent suit was ﬁ led claiming 
damages for use and occupation of the property from 1998 onwards.
17. In view of the enunciation of law, as referred to above, suit 
for possession and suit for claiming damages for use and occupation 
of the property are two diﬀ erent causes of action. There being diﬀ erent 
consideration for adjudication, in our opinion, second suit ﬁ led by the 
respondent claiming damages for use and occupation of the premises was 
maintainable. The application ﬁ led by the appellants for rejection of the 
plaint was rightly dismissed by the Courts below. However, the appellants 
are well within their right to raise the issue, if any part of the claim in the 
suit is time-barred but the entire claim cannot be said to be so. 
18. The judgment in Virgo Industries (Eng.) Private Limited’s case 
(supra), relied upon by learned counsel for the appellants is distinguishable 
as in that case, on the date the suit for injunction was ﬁ led, even as per 
the averments in the plaint, the cause of action to ﬁ le suit for speciﬁ c 
10 Apparently, there is an error. It should be Order II Rule 4

871
performance had arisen but was not claimed. Under those circumstances, 
this Court held that the subsequent suit would be barred under Order II 
Rule 2 C.P.C.
19. In view of our aforesaid discussions, we do not ﬁ nd any merit in 
the present appeal. The same is, accordingly, dismissed. There shall be no 
order as to costs.
Headnotes prepared by: 
Appeal dismissed.
Nidhi Jain
M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v. 
ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]