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2017 Supreme(Del) 597
IN THE HIGH COURT OF DELHI AT NEW DELHI
R.K. GAUBA, J.
JAGMOHAN BEHL – Plaintiff
Versus
STATE BANK OF INDIA – Defendant
CS (OS) 2408 of 2014 and IA No.13994, 24427 of 2015
Decided On : 17-02-2017
For the Plaintiff :Mr. D.K. Rustagi, Ms. Medha Arya and Mr. Mayank Rustagi, Advocates
For the Defendant :Mr. S.N. Relan and Mr. Abhinav Thareja, Advocate
Important Point – Every suit should include whole of claim which plaintiff is entitled to make in respect of a cause of action.
Headnote:Civil Procedure Code, 1908 – Order 7 Rule 11 read with Order 2 Rule 2 – Rejection of plaint – Every suit should include whole of claim which plaintiff is entitled to make in respect of a cause of action – Cause of action for a relief of recovery of mesne profits is separate and distinct from cause of action for relief of possession – However, suit for mesne profits can be filed clubbing it with prayer for recovery of possession – Even if a suit is first filed only for recovery of possession of immovable property with no claim made for relief of mesne profits, a second suit for recovery of mesne profits for period subsequent to filing of suit for recovery of possession may be instituted – But, such suit for recovery of mesne profits would have to be restricted to what is within period of limitation – Plaint rejected.
1. This civil suit for recovery on account of mesne profits is one more in a series of cases that came to be instituted by or between the parties, against the backdrop of lease that had been granted in 1986, by the plaintiff, respecting commercial premises described as a portion comprising of 1575 sq. ft. out of which 771 sq. ft. on the ground floor and the remaining 804 sq. ft. on mezzanine floor in the larger property bearing Municipal No.M-46, Connaught Circus, New Delhi, initially in favour of State Bank of Indore, which merged with the defendant in 2010.
2. It be noted at the outset that in the wake of decree of possession granted in favour of the plaintiff by judgment dated 01.05.2002 by the court of Additional District Judge in civil suit no.340/2001, inter alia, on the averments of the lease having come to an end due to efflux of time, also by service of a notice of termination, the said decree having been challenged by the defendant in RFA 361/2002 and becoming final and binding upon it being not pressed on merits and instead the defendant being allowed, as prayed, one year’s time to vacate conditional upon payment of mesne profits tentatively assessed, by order dated 25.08.2011, the vacant possession of the subject premises was actually handed over by the defendant and received by the plaintiff on 25.02.2013. During the pendency of the said appeal against the decree of possession, the plaintiff had instituted certain other proceedings including another civil suit, it being CS (OS) 2008/2010, also praying for a decree for recovery of mesne profits in respect of the same very premises, the period covered by the said earlier suit being 01.09.2007 to 30.08.2010 and further with effect from 01.09.2010 till the date of decree in that suit, alongwith interest.
3. By the suit at hand, instituted on 26.07.2014, the plaintiff prays for recovery of mesne profits for the period 01.05.1997 until August 2007, that is to say for the period anterior to the period for which similar relief was claimed by CS (OS) 2008/2010.
4. The defendant, upon being served, has moved an application (IA 13994/2015) praying for rejection of the plaint under Rule 11(d) of Order VII of the Code of Civil Procedure, 1908 (CPC) primarily on the contentions that it is barred by the law of limitation and also by the provisions contained in Rules 1, 2 and 4 of Order 2 CPC, the right to sue for the earlier period not having been reserved nor permission prayed for or granted by the court in the course of earlier litigation.
5. Arguments were heard at length and, with the assistance of the learned counsel on both sides, record has been perused.
6. In the plaint, reference is made to certain arrangement of initial advances extended to the plaintiff by the defendant bank in the wake of terms negotiated simultaneous to the creation of lease in the subject property in 1986. The plaint refers to three accounts of loans leading to three cases instituted by the defendant bank for recovery of money there against, they including suit nos.3383/1992, 110/1993 and 263/1990, the first having been transferred to Debt Recovery Tribunal (DRT), each having been decreed. It appears from the pleadings that the plaintiff had grievances about non rendition of accounts by the defendant bank. He had filed a copy of the judgment dated 27.01.2010 whereby his suit no.82/2009 for rendition of accounts was dismissed by the court of Additional District Judge. Be that as it may, by his own showing the lease contract was to operate independently on its own terms and the period of lease granted having lapsed by efflux of time, the plaintiff, after serving a legal notice formally terminating the tenancy, had instituted the suit for recovery by possession and against the defendant bank on 27.10.2001, the said suit no.380/2001 having been decreed on 01.05.2002 and having since merged in the order dated 25.08.2011 in RFA 361/2002.
7. It is clear from the averments of the plaintiff himself that th
