IMPORTANT POINT
Suit for possession and suit for claiming damages for use and occupation of property are two different causes of action.

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