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In the High Court of Judicature, Andhra, at Guntur
UMAMAHESWARAM, J.
Gogineni Rama Krishnayya and another - Appellant
Versus
V. Viraraghavayya - Respondent
S.A. No. 552 of 1950
Decided on : 01-07-1954
A plaintiff is required to include in his suit the whole of the claim which he is entitled to make in respect of the cause of action, and if he fails to do so, his claim will be barred under Order 2, Rule 2, C.P.C.
Headnote:
TRANSFER OF PROPERTY ACT, 1882 - SECTION 55(4) - SPECIFIC RELIEF ACT, 1963 - SECTION 19 - CIVIL PROCEDURE CODE, 1908 - ORDER 2, RULE 2 - SUIT FOR RECOVERY OF MESNE PROFITS - MAINTAINABILITY - COMPENSATION FOR BREACH OF CONTRACT - CLAIM IN SUIT FOR SPECIFIC PERFORMANCE - APPLICABILITY OF ORDER 2, RULE 2, C.P.C.
Fact of the Case:
Plaintiff filed a suit for specific performance of an agreement of sale or, in the alternative, for recovery of damages. The suit was decreed. Plaintiff then instituted a suit for recovery of mesne profits from the suit land. The District Munsif decreed the suit, but on appeal, the Subordinate Judge held that the suit was not maintainable under Section 54(5) of the Transfer of Property Act and that it also failed under Order 2, Rule 2, C.P.C. However, he remanded the suit to the trial court, allowing the plaintiff to amend the plaint and base it as one for damages for breach of contract. On remand, the District Munsif dismissed the suit, but on appeal, the Subordinate Judge reversed the judgment and decreed the suit for damages.
Finding of the Court:
The court held that the plaintiff was not entitled to claim mesne profits as the seller was entitled to the rents and profits of the property until the ownership passed to the buyer under Section 55(4) of the Transfer of Property Act. The court also held that the plaintiff's claim for compensation for breach of contract was barred under Order 2, Rule 2, C.P.C., as he had not prayed for such relief in the suit for specific performance.
Issues: 1. Whether the plaintiff was entitled to claim mesne profits. 2. Whether the plaintiff's claim for compensation for breach of contract was barred under Order 2, Rule 2, C.P.C.
Ratio Decidendi: 1. Section 55(4) of the Transfer of Property Act provides that the seller is entitled to the rents and profits of the property until the ownership thereof passes to the buyer. Therefore, the plaintiff was not entitled to claim mesne profits as he had not yet acquired ownership of the property. 2. Order 2, Rule 2, C.P.C., requires a plaintiff to include in his suit the whole of the claim which he is entitled to make in respect of the cause of action. The plaintiff's claim for compensation for breach of contract arose from the same cause of action as his claim for specific performance, and therefore he should have sought both reliefs in the same suit. As he failed to do so, his claim for compensation was barred.
Final Decision: The court set aside the judgment and decree of the Subordinate Judge and restored the decree of the District Munsif, dismissing the plaintiff's suit with costs throughout.
JUDGMENT :
1. This Second Appeal is filed by the defendants as against the judgment and decree of the Subordinate Judge of Tenali in A.S. No. 41 of 1949 decreeing the plaintiff's suit for recovery of compensation from the defendants in respect of a contract for sale dated 26-1-1943. The plaintiff filed O.S. No. 40 of 1946 on the file of the District Munsif, Repalle for specific performance of the agreement of sale or in the alternative for recovery of damages. The suit was decreed. The present suit was instituted on 4-11-1947 for recovery of mesne profits from the suit land. An objection was raised that mesne profits were not payable. The District Munsif in the first instance decreed the suit. There was an appeal A.S. No. 80 of 1948 filed before the Sub-ordinate Judge of Tenali. The Subordinate Judge, Tenali held that having regard to the provisions of Section 54(5) of the Transfer of Property Act, the seller was entitled to the rents and profits of the property till the ownership passed to the buyer and that the suit for recovery of mesne profits was not maintainable. He also held that viewed as a suit for recovery of damages 0.2 R. 2 Would apply and the suit would also fail on that ground. But for no proper reason, he permitted the plaintiff to amend the plaint basing it as one for damages for breach of contract and remanded the suit to the trial court. On the findings recorded by him he ought to have allowed the appeal and given a quietus to the proceedings.
2. On remand, the District Munsif held that the suit was hit at by the provisions of O. 2 R. 2 Civil Procedure Code and dismissed the plaintiff's suit. On appeal the Subordinate Judge reversed the judgment and decree of the District Munsif and decreed the suit for Rs. 781-4-0. The defendants have consequently preferred the Second Appeal.
3. The short question for decision in the Second Appeal is whether the plaintiff is entitled to claim mesne profits. Section 55(4) of the Transfer of Property Act is quite clear that the seller is entitled to the rents and profits of the property till the ownership thereof passes to the buyer. So until the conveyance was executed in favour of the plaintiff he was not entitled to the rents and profits. So the District Munsif was quite right in holding that the suit for recovery of mesne profits was not maintainable. The decision in Subbarayar v. Kottayya, Goundan1 is a clear authority in support of that proposition. More over the plaintiff did not prefer an appeal as against the order of remand and it is not open to him to contend that he is entitled to recover mesne profits.
4. The next question that arises for consideration is whether the plaintiff, not Having prayed for recovery of damages in the suit for specific performance, is barred from claiming that relief under Order 2, Rule 2, C.P.C. Order 2 Rule 2 Sub-Clause (i) provides that:
“Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action”.
5. Clause 3 provides that:
“A person entitled to more than one relief in respect of the same cause of action may sue for all of any such reliefs”.
6. Section 19 of the Specific Relief Act enacts that:
“Any person suing for the specific performance of a contract may also ask for compensation for its breach either in addition to, or in substitution for, such performance.”
7. The plaintiff herein only prayed for compensation for the breach of the contract in substitution for such performance. He did not seek compensation in addition to specific performance. So no compensation was awarded in the prior suit.
8. The learned advocate for the respondent contends that the cause of action for recovery of compensation does not arise on the contract or agreement but only after specific performance was decreed in his favour. I do not agree. The compensation which the plaintiff is seeking in the present action is based only on the agreement of sale and on his not being put in possession of the pro
