1. Lease expiry — Suit for recovery of possession — Subsequent suit for liquidated damages for use and occupation — Application for rejection of plaint under Order VII Rule 11(d), CPC. (Para 2 , 3 , 9 )
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2023 Supreme(SC) 1196
SUPREME COURT OF INDIA
VIKRAM NATH, RAJESH BINDAL, JJ.
M/s Bharat Petroleum Corporation Ltd. and Another – Appellants
Versus
ATM Constructions Pvt. Ltd. – Respondent
Civil Appeal No. 7890 of 2023, S.L.P. (C) No. 8292 of 2021
Decided On : 30-11-2023
Important Points
IMPORTANT POINT
Suit for possession and suit for claiming damages for use and occupation of property are two different causes of action.
Suit for possession and suit for claiming damages for use and occupation of property are two different causes of action.
Subject
Civil Law - Maintainability of Subsequent Suit
Act Referred
BURMAH SHELL ACQUISITION OF UNDERTAKINGS IN INDIA ACT: S.5, S.7
CIVIL PROCEDURE CODE: O.7 R.11(d), O.2 R.2(2)
TAMIL NADU CITY TENANTS PROTECTION ACT: S.9
CIVIL PROCEDURE CODE: O.7 R.11(d), O.2 R.2(2)
TAMIL NADU CITY TENANTS PROTECTION ACT: S.9
Headnote
Civil Procedure Code, 1908 – Order VII Rule 11(d) – Rejection of plaint – Suit claiming liquidated damages along with interest and future damages till date of handing over vacant possession of suit property – Respondent-plaintiff is absolute owner of property in dispute – Suit for possession and suit for claiming damages for use and occupation of property are two different causes of action – There being different consideration for adjudication, second suit filed by respondent claiming damages for use and occupation of premises was maintainable – Application filed by appellants for rejection of plaint was rightly dismissed by Courts below – However, appellants are well within their right to raise the issue, if any part of claim in suit is time-barred but entire claim cannot be said to be so. (Paras 9, 16 and 17)
Facts of the case:
Challenge in present appeal is to order dated 07.01.2021 passed by High Court, vide which application filed by appellants/defendants under Order VII Rule 11(d) C.P.C. in suit filed by respondent-plaintiff, was dismissed.
Primary issue which requires consideration by this Court to appreciate arguments regarding maintainability of subsequent suit is with reference to cause of action.
Findings of Court:
There is no merit in present appeal. Same is, accordingly, dismissed. There shall be no order as to costs.
Result : Appeal dismissed.
Legal Category Hierarchy
Advocates appeared:
For the Petitioner(s): Mr. V. Giri, Sr. Adv. Mr. Parijat Sinha, AOR Ms. Pallak Bhagat, Adv. Ms. Suveni Bhagat, Adv. Ms. Reshmi Rea Sinha, Adv. Mr. Devesh Mishra, Adv.
For the Respondent(s): Mr. S.Nagamuthu, Sr. Adv. Mr. M. A. Chinnasamy, AOR Mrs. C Rubavathi, Adv. Mr. M Veeraragavan,, Adv. Mr. C Raghavendren, Adv. Mr. Ch. Leela Sarveswar, Adv. Mr. Devendra Pratap Singh, Adv. Mr. Sarubh Gupta, Adv. Mr. Vinod Kumar Teng, Adv. Mr. V Senthil Kumar, Adv.
For the Petitioner(s): Mr. V. Giri, Sr. Adv. Mr. Parijat Sinha, AOR Ms. Pallak Bhagat, Adv. Ms. Suveni Bhagat, Adv. Ms. Reshmi Rea Sinha, Adv. Mr. Devesh Mishra, Adv.
For the Respondent(s): Mr. S.Nagamuthu, Sr. Adv. Mr. M. A. Chinnasamy, AOR Mrs. C Rubavathi, Adv. Mr. M Veeraragavan,, Adv. Mr. C Raghavendren, Adv. Mr. Ch. Leela Sarveswar, Adv. Mr. Devendra Pratap Singh, Adv. Mr. Sarubh Gupta, Adv. Mr. Vinod Kumar Teng, Adv. Mr. V Senthil Kumar, Adv.
Table of Contents
2. Whether a subsequent suit for damages for use and occupation is barred under Order II Rule 2, CPC, if damages were not claimed in the earlier possession suit. (Para 4 , 6 , 7 , 10 )
3. Recovery of possession and recovery of mesne profits involve distinct causes of action, as damages accrue on a day-to-day basis as a continuing cause of action. (Para 11 , 13 , 14 , 15 , 17 )
4. A suit for possession and a suit for damages for use and occupation of property are based on different causes of action and are independently maintainable. (Para 17 )
5. Appeal dismissed; the order rejecting the application for rejection of the plaint was upheld. (Para 19 )
6. Does Order II Rule 2, CPC bar a subsequent suit for mesne profits if they were not claimed in an earlier suit for possession?
No. A suit for possession and a suit for mesne profits or damages for use and occupation are based on different causes of action. Mesne profits accrue day-to-day, making the cause of action continuing and distinct from the cause of action for recovery of possession. (Para 13 , 14 , 15 , 17 )
7. How does the cause of action for mesne profits differ from the cause of action for recovery of possession?
The cause of action for recovery of possession typically arises from the date of dispossession. In contrast, the cause of action for mesne profits is continuing, arising from the day-to-day misappropriation of profits to which the plaintiff is entitled. (Para 13 , 15 )
8. Is a claim for damages for use and occupation maintainable if the plaintiff previously sought only possession of the property?
Yes, such a suit is maintainable because the two claims arise from different considerations for adjudication and distinct causes of action, meaning the failure to claim damages in the first suit does not bar a subsequent claim. (Para 17 )
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 [High Court of Judicature at Madras], vide which the application filed by the appellants/defendants under Order VII Rule 11(d) C.P.C. in the suit2 [Civil Suit (Commercial Division) No. 62 of 2020] filed by the respondent-plaintiff, was dismissed.
3. Briefly, 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 effect from 01.01.1958 for the purpose of erecting pump service and filling 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, first suit3 [Civil Suit No. 711 of 2006] was filed by the respondent-plaintiff in the year 2006. During the pendency of first suit, the suit in question was filed claiming liquidated damages for a period from 01.01.1998 till 31.12.2019 along with interest and future damages of Rs. 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 filed 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 first suit for possession was filed by the respondent-plaintiff in 2006. At the stage of filing of the aforesaid suit, though the relief for damages for use and occupation was available to the respondent-plaintiff, however, the same was not claimed. It has been specifically 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 final relief, only possession was sought after removal of the structure, which existed thereon. The first suit was decreed on 30.10.2010.
5. During the pendency of the aforesaid suit, the respondent-plaintiff filed the suit in question in January 2020 claiming liquidated damages of Rs. 1,28,90,000/- payable towards illegal occupation from 01.01.1998 till 31.12.2019 along with interest @ 12% per annum from 01.01.1998 till realization. Future damages @ Rs. 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 first suit filed 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 first suit filed 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
