The main legal point established in the judgment is that a claim for mesne profits constitutes a separate cause of action from a suit for possession of immovable property, and therefore, the bar of Order 2 Rule 2 of the Code of Civil Procedure is not attracted.

Pradeep Nandrajog, J.

1. Heard learned Counsel for the parties.

2. Though various grounds have been urged in the Memorandum of Appeal, learned Counsel for the appellant restricts submissions to only one point. Learned Counsel urges that the bar of Order 2 Rule 2 of the Code of Civil Procedure was squarely attracted in the facts and circumstances of the instant case and hence urges that in view of the ratio of law laid down by the Honble Supreme Court in the decision reported AIR 2008 SC 171 Shiv Kumar Sharma v. Santosh Kumari, the suit filed by the respondent ought to have been rejected as being barred under Order 2 Rule 2 of the Code of Civil Procedure, 1908.

3. The relevant facts on which the bar of Order 2 Rule 2 of the Code of Civil Procedure has been predicated is that the respondent, who is the landlord, had filed a suit on 31.01.1996, seeking ejectment of the appellant from the tenanted premises stating that the lease having come to an end by efflux of time and even otherwise terminated by a notice, the landlord was entitled to recovery possession of the tenanted premises.

4. The second suit, being the suit in question, was filed by the landlord claiming damages for unauthorized use and occupation for the period when tenancy was stated to have been determined and till the date of the suit which was filed on 7.1.1999.

5. The claim for mesne profits has been decreed for the period 07.01.1996 onwards.

6. Since appeal has been urged on the plea of bar of Order 2 Rule 2, we need not note any fact other than the one relevant to consider the bar of Order 2 Rule 2.

.7. Order 2 Rule 2 of the Code of Civil Procedure reads as under:

.2. Suit to include the whole claim.-

.(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of this claim in order to bring the suit within the jurisdiction of any Court.

.(2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

.(3) Omission to sue for one of several reliefs.-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

8. To appreciate the bar of Order 2 Rule 2, with respect to a claim for mesne profits or damages, Order 2 Rule 3 and 4 also need to be noted. They read as under:

3. Joinder of causes of action.-

.(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having causes of action in which they are jointly interested against the same defendant or the same defendants jointly may unite such causes of action in the same suit.

.(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matter at the date of instituting the suit.

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4. Only certain claims to be joined for recovery of immovable property.- No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except-

.(a) claims for mense profits or arrears of rent in respect of the property claimed or any part thereof;

.(b) claims for damages for breach of any contract under which the property or any part thereof is held; and

.(c) claims in which the relief sought is based on the same cause of action:

Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property.

9. Discussing the ambit of Order 2 Rule 2, a Division Bench of this Court, in the decision dated