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1958 Supreme(Cal) 150
HIGH COURT OF CALCUTTA
BANERJEE, J.
Santosh Kumar Ghosh - Appellant
Versus
Sachindra Nath Mukherjee – Respondent
Decided on : May 27, 1958
Amar Nath Banerjee, Amarendra Nath Gupta, Rameswar Saha,
A claim for mesne profits is not a claim under the same obligation compelling a trespasser to restore possession. A claim for mesne profits is also not based on the same cause of action as the claim for possession.
Headnote:
MESNE PROFITS - SUIT FOR - BAR OF SUBSEQUENT SUIT - ORDER II, RULE 2, C.P.C. - APPLICABILITY - CLAIM FOR MESNE PROFITS SUBSEQUENT TO FILING OF SUIT FOR POSSESSION - RES JUDICATA - APPLICABILITY - LIABILITY OF TENANT OF FIRST DEGREE TO PAY DAMAGES - CEASES WHEN SUB-TENANTS BECOME STATUTORILY ENTITLED TO BE COUNTED AS DIRECT TENANTS.
Fact of the Case:
The petitioners were tenants of the opposite party No. 1 in respect of premises No. 5 Nakuleswar Bhattacharya Lane, Calcutta. The opposite party No. 1 terminated the tenancy of the petitioners and opposite party No. 2 with the expiry of the month of February 1953. The opposite party No. 1 instituted a suit against the petitioners and opposite party No. 2 for recovery of possession of the premises, on the plea that they were defaulters. In the said suit claim was made by the opposite party No. 1 for arrears of rent but not for mesne profits. The suit was decreed exparte. The decree was put to execution and the opposite party No. 1 realised from the petitioners the amount decreed as air-rears of rent. The decree-holder, however, could not recover possession of the premises because two sub-tenants resisted. Thereafter, the opposite party No. 1 instituted a suit, out of which this revision case arises, claiming damages for use and occupation from the month of March 1953 to 20th January 1955 (when the opposite party had parted with his right, title and interest in the property in dispute) totaling Rs. 870-15-0.
Finding of the Court:
The court below came to a finding that it was not proved whether there were really sub-tenants in the premises in respect of which damages for use and occupation were claimed.
Issues: 1. Whether a suit for possession bars a subsequent suit for mesne profits? 2. Whether a claim for mesne profits subsequent to the filing of a suit for possession is barred by the principle of res judicata? 3. Whether the liability of the tenant of the first degree to pay damages ceases as soon as some sub-tenants become statutorily entitled to be counted as direct tenants of the landlord?
Ratio Decidendi: 1. A claim for mesne profits is not a claim under the same obligation compelling a trespasser to restore possession. A claim for mesne profits is also not based on the same cause of action as the claim for possession. 2. A claim for mesne profits subsequent to the filing of a suit for possession is not barred by the principle of res judicata. 3. The liability of the tenant of the first degree to pay damages ceases as soon as some sub-tenants become statutorily entitled to be counted as direct tenants of the landlord.
Final Decision: The Rule is discharged. In the circumstances of the case, no order as to costs is made.
1. This Rule is directed against a judgment of the Judge, Small Causes Court at Sealdah, decreeing the claim made by the plaintiff opposite party for mesne profits. The petitioners and opposite party No. 2 were tenants, under the opposite party No.1 in respect of premises No. 5 Nakuleswar Bhattacharya Lane, Calcutta, at a monthly rent of Rs. 62-6-6 p. By a notice to quit the opposite party No. 1 terminated the tenancy of the petitioners and the opposite party No. 2 with the expiry of the month of February 1953. On March 31. 1953, the opposite party No. 1, as plaintiff, instituted a suit against the petitioners and opposite party No. 2 (defendants Nos. 1 to 4) for recovery of possession of the premises, on the plea that they were defaulters. In the said suit claim was made by the opposite party No. 1 for arrears of rent but not for mesne profits.
2. In their written statements the defendants in the said suit (petitioners and opposite party No. 2 herein) alleged that the entire premises were in possession of two sub-tenants, viz., Lalmohan Choudhury and Jyotish Chandra Mitra. On November 17, 1953, the said suit was decreed exparte. The decree; was put to execution in T. Ex. Case No. 356 of 1953 and the opposite party No. 1 decree-holder realised from the petitioners the amount decreed as air-rears of rent. The decree-holder, however, could not recover possession of the premises because Lalmohan and Jyotish above-named resisted.
Thereafter Lalmohan and Jyotish each instituted a suit in the first court of the Munsif at Sealdah, for a declaration of their respective tenancy rights, in the premises in dispute, and obtained interim injunction restraining the opposite party No. 1 from taking possession. The learned Munsif however directed, while issuing the order of interim injunction, that both Lalmohan and Jyotish must deposit the monthly rent payable by them in Court.
3. The suit tiled by Lalmohan ultimately ended in a compromise by which Lalmohan gave up possession of the portion occupied by him and the opposite party No. 1 was allowed to withdraw all sums of money deposited by the said Lalmohan. It was agreed, that the said opposite party No. 1 will not make Lalmohan liable for any other sum of money. The aforesaid compromise was entered into on May 19, 1955. It is now admitted that the opposite party No. 1 sold his interest in premises No. 5 Nakuleswar Bhattacharya Lane to some body, whose name does not appear, on or about the 20th January 1955.
4. On March 16, 1955 the opposite party No. 1, as plaintiff instituted a suit, out of which this revision case arises, claiming damages for use and occupation from the month of March 1953 (that is to say, from immediately after the termination of the tenancy by a notice to quit) to 20th January 1955 (when the opposite party had parted with his right, title and interest in the property in dispute) totaling Rs. 870-15-0 calculated in the following manner: for the period from 1.3.53 to 19.1.55 at the rate of Rs. 62-6-6 per month Rs. 1,410 15 0 less realised by withdrawal of rent deposited by lalmohan and Jyotish 540 0 0 Rs. 870 15 0 the aforesaid suit was decreed by the Judge. Court of Small Causes, Sealdah.
Mr. Amarendra Nath Gupta appearing for the petitioners argued before me that the decree passed by the Small Cause Court Judge was erroneous on two-fold grounds: (a) The court below should have held that the second suit was barred under the provisions of Rule 2 of Order II of the Code of Civil Procedure. (b) Inasmuch as the sub-tenants had under the Rent Control Act, 1950 statutory right to be counted as direct tenants after the eviction of the tenant of the first degree the quondam tenant does not remain liable for damages for use and occupation after the termination of his tenancy even though the landlord fails to recover possession of the premises from the sub-tenants.
5. Elaborating his argument Mr. Gupta submitted that under Order 2, rule 4 of the Code of Civil Procedure a cl
