A suit filed under Section 6 of the Specific Relief Act cannot include claims for mesne profits and damages, as the right to possession of immovable property and the right to enjoy profits are distinct causes of action.

JAYANT NATH, J.

CM No. 38067/2016 (exemption)

Allowed subject to all just exceptions.

CM (M) No. 1039/2016 and CM No. 38066/2016 (stay)

1. By the present petition filed under Article 227 of the Constitution of India, the petitioner seeks to challenge the order dated 27.07.2016 by which his application under Order 6 Rule 17 CPC was dismissed.

2. The brief facts are that the petitioner claims that his father was a tenant in the suit premises since 1950. The plaintiff has filed the suit under Section 6 of the Specific Relief Act. The need arose to file the present application under Order 6 Rule 17 CPC as it is the contention of the petitioner that he has during the pendency of the suit come to know that defendant No. 1/respondent No. 1 has demolished the tenanted premises and hence, the need to amend his plaint as well as the prayer to add the relief of compensation.

3. The trial court noted that the petitioner in his cross-examination on 07.10.2010 has deposed that he knew that the entire building has been demolished and re-constructed and he came to know about this when the case was started. The trial court also noted that he is seeking amendment by way of the present application which is filed on 17.02.2016 when the matter is at the stage of the defendant’s evidence and PE was closed on 17.09.2014. The impugned order further notes that there is no reasonable justification furnished by the petitioners as to why he did not claim compensation or damages in the original suit when he already knew the fact about the demolition and re-construction at the time of filing of the suit itself.

4. I have heard the learned counsel for the parties.

5. Learned counsel for the petitioner has argued that he has received knowledge of demolition and re-construction after the suit was filed and the facts pertaining to the changed scenario need to be brought on record and the relief of damages has also to be brought on record. He submits that otherwise the suit will become infructuous.

6. Learned counsel appearing for the respondent has at the outset denied that the demolition and reconstruction has been carried out after filing of the suit. She submits that the admitted case of the petitioner is that the demolition and reconstruction was carried out prior to filing of the suit. She also relied upon the judgment of this court in the case of Dharam Dir & Ors. vs. Ancha Devi, (1994) 53 DLT 191 and Foujmal Manaji vs. Bikhibai & Another, AIR 1937 Sind 161 to contend that in a suit for possession under Section 6 of the Specific Relief Act, no relief for mense profits or damages can also be sought. Hence, she submits that the application filed by the petitioner for amendment in any case is misconceived.

7. I may first see the judgment of this court in the case of Dharam Dir & Ors. vs. Ancha Devi (supra). This court held as follows:

“6.…….. However, with respect, I do feel that since the right to possession of immovable property and the right to enjoy profits thereby are distinct causes of actions, a person who stands dispossessed of immovable property is entitled to sue for its possession under Section 6 and has to leave the question of damages/manse profits for another suit since that would depend on title, a matter which is beyond the pale of a suit under Section 6 of the Act. We can ill afford to ignore the object of Section 6 which clearly is to discourage forcible and unlawful possession and in order to grant relief the Court is required only to see whether the person seeking relief was dispossessed within six months of the date of the institution of the suit. It is not required to go into any other question. This being the position, I do feel that a Court cannot pass a decree for damages/manse profits under Section 6 of the Act Along with a decree for possession. The question, however, is that if that be so is the impugned decree liable to be set aside altogether?

(7) The two judgments referred to and relief upon by Mr. Lal have already been taken no