The cause of action for ejectment of a tenant and for damages and mesne profits are different, and therefore, the present suit is not barred by law.

JAYANT NATH, J.

IA No. 13608/2013 (under Order 7 Rule 11 CPC)

1. The present application is filed under Order 7 Rule 11 CPC for rejection of the plaint.

2. The plaintiff has filed the present suit for recovery of mesne profits. The plaintiff is the owner of premises C-17, Ground Floor, Anand Niketan, New Delhi admeasuring 1800 square feet. The defendant entered into a lease for the said property in 2004. The lease deed was executed between the plaintiff and the defendant on 11.03.2005. The date of commencement of the lease was 01.06.2004 and it was for a period for five years i.e. up to 31.05.2009. On or before expiry of the lease the plaintiff sought possession. As the defendant did not vacate the premises, a civil suit was filed for possession in this court being Suit No. 1179/2009 on 27.11.2009 along with the said suit an application under Order 2 Rule 2 CPC was filed. The suit was decreed on 31.10.2012. The defendant sought time up to 31.05.2013 to vacate the premises which time was granted by the court. The defendant agreed to pay use and occupation charges from 01.11.2012 to 31.05.2013 @ Rs.400 per sq.ft. The plaintiff has now filed the present suit seeking mesne profits for the period 01.02.2010 to 31.10.2012 @ Rs.400 per sq.ft.

3. The defendant has filed the present application for rejection of the plaint. It is averred that during pendency of the earlier suit the plaintiff never claimed mesne profits. In fact in the earlier suit the plaintiff had filed an application under Order 2 Rule 2 CPC seeking permission to press for mesne profits at a later date. The application was not pressed in that suit. It is averred that this court passed no orders on the application. Hence it is further averred that the present suit is barred under Order 2 Rule 2 CPC and the plaint is liable to be rejected.

4. Learned counsel appearing for the defendant relies on Shiv Kumar Sharma vs. Santosh Kumari, (2007) 8 SCC 600 and State Bank of India vs. Gracure Pharmaceuticals Ltd. (2014) 3 SCC 595 to contend that the present suit is barred by Order 2 Rule 2 CPC.

5. Order II Rule 2 CPC reads as follows:

“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 his 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.

Explanation-For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.”

6. In the case of State Bank of India vs. Gracure Pharmaceuticals Ltd. (supra) the Supreme Court held as follows:

“12. Order 2 Rule 2, Code of Civil Procedure, therefore, requires the unity of all claims based on the same cause of action in one suit, it does not contemplate unity of distinct and separate cause of action. On the above-mentioned legal principle, let us examine whether the High Court has correctly applied the legal principle in the instant case.”

7. Reference may be had to the judgment of the Supreme Court in the case of Shiv Kumar Sharma vs. Santosh Kumari (supra). The facts of the case were that the parties entered into an agreement to sell for their respective properties situated at Paharganj. It appears from the facts that the parties had implemented the agreement in part and had exchanged the possession of the res