JUDGMENT
1. A lease for a term of 21 years commencing from 16th March, 1964 and ending on 15th March, 1985 was granted by the plaintiff to the defendant in respect of ground floor of the main building at premises No. 6, Marquis Street, Calcutta at a monthly rental of Rs. 2,045/- payable according to English Calendar. The lease expired by efflux of time on 15th March, 1985. The defendant failed to make over vacant possession to the plaintiff. The plaintiff accordingly on or about 8th August, 1986 filed a suit claiming recovery of khas possession and mesne profits at the rate of Rs. 200/- per day from 16th March, 1985 till recovery of possession. It would appear from a combined reading of paragraphs 2 and 3 of the plaint filed in Title Suit No. 1481 of 1986 that the claim for mesne profit was made on the basis that after expiry of lease by efflux of time on 15th March, 1985 the defendant became a trespasser and, therefore, mesne profit was claimed. At the hearing of the suit, however, the claim for mesne profit was given up which has been recorded by the learned Trial Judge in his judgment as follows:
Since the plaintiff has not pressed this issue I hold that the plaintiff is not entitled to any mesne profit for occupation of the defendant on expiry of 15th March, 1985.
2. It would be appropriate to notice issue No. 4 framed by the Court as regards mesne profits which reads as follows:
Is the plaintiff entitled to mesne profit? If so, at what time?
3. The suit, it appears, was decreed on 18th April, 1991 with the following direction:
That the suit is decreed on contest against the defendant. Plaintiff is to get a decree of khas possession of the suit premises on eviction of the defendant in view of the peculiar facts and circumstances of the case. I do not order as to costs of the suit. The judgment is pronounced in the open Court immediately after the argument is closed.
4. The defendant preferred an appeal which was registered as Appeal No. 253 of 1992. The plaintiff was restrained from executing the decree and the defendant was directed to make payment at the rate of Rs. 2,500/- per month on account of occupation charges. The appeal was finally dismissed by a judgment and order dated 11th August, 1997. The defendant preferred a special leave petition which was granted admitting the appeal. The appeal was dismissed by the Apex Court by a judgment and order dated 9th September, 1993. At the request of the defendant time to vacate the premises was granted till 30th of June, 1999. It was, however, stipulated that in the event the suit premises were not vacated within the stipulated time, the judgment-debtor/appellant would be liable to pay Rs. 50,000/- per month by way of occupation charges from 1st October, 1998. A further order dated 25th September, 1998 was passed to the effect as follows:
If the appellants hand over peaceful vacant possession of the premises in question on or before 8th October, 1998 then they will have to pay for the use and occupation charges only Rs. 2,500,00/- (Rupees two thousand five hundred) only, for the month of October. If they fail to deliver possession by that time they will have to pay use and occupation charges for the month of October at the rate of Rs. 50,000.00/- (Rupees fifty thousand) only, as fixed by us earlier. Rest of the order remains as it is.
5. It is not in dispute that possession was thereafter made over by the defendant to the plaintiff/decree holder on 8th October, 1998.
6. The plaintiff has thereafter filed Civil Suit No. 457 of 1998 in this Court on or about 10th November, 1998 claiming mesne profits from 11th August, 1986 until 7th October, 1998. In this suit an application under Order 7 Rule 1 was filed by the defendant claiming and contending that the claim with regard to mesne profits was specifically made in the earlier Title Suit No. 1481 of 1986 which was categorically given up and, therefore, the claim with regard to mesne profits made in C.S. No. 457 of 1998 was res judicata and, therefore, the suit was barred. The Trial Court dismissed the application. The defendant came up in appeal. The Appellate Court by its judgment and order dated 19th December, 2003 opined that the application was really intended to be made under Order 7 Rule 11, Clauses (a) and (d) because allegations to that effect were there in the application and the same was intended to be made under Order 7 Rule 11 and not under Order 7 Rule 1 and directed the Trial Court to try the issue as regards the bar under Order 7 Rule 11 as a preliminary issue.
7. Pursuant to the aforesaid order passed by the Division Bench the learned Trial Court has tried the issue and has held that the plaint discloses a cause of action and the same is not barred by any law. Aggrieved by that order the present appeal was filed by the defendant. Mr. Bachawat, learned Counsel appearing for the defendant/appellant submitted that the claim for mesne profits in the earlier suit having had consciously been given up any further claim for mesne profits would clearly came within the four-corners of Section 11 and therefore, the bar of res judicata applied and, therefore, the suit is not maintainable and the learned Trial Court erred in holding otherwise.
8. Mr. Chatterjee, learned Senior Advocate appearing for the plaintiff/respondent submitted that the prayer for mesne profits has to be divided into three parts – (a) pre-suit (b) post-suit and (c) post-decree.
9. He submitted that the cause of action for a claim for mesne profits was based on the cause of action presented by the plaint and could not have been for any period subsequent to the date of the presentation of the suit. Therefore, what was given up was the claim for pre-suit mesne profits. He submitted that the Court has to try a suit on the basis of the cause of action as presented by the plaint and not on the basis of an enabling provision contained in Order 20 Rule 12 of the Code. The Court is authorised to pass a decree for mesne profits for the second and the third stages but that is because of the special authorisation to be found in Order 20 Rule 12 of the Code and therefore such relief is discretionary and not mandatory. He submitted that a decision rendered by the Court on the basis of a cause of action presented through the plaint can be res judicata but not what the Court could have done in its discretion on the basis of the authorisation by the Code of Civil Procedure under Order 20 Rule 12.
10. In support of his submission he relied on a Division Bench judgment in the case of Makhan Lal Modak v. Girish Chandra Jana and Ors. reported in 66 CWN 692 for the proposition that a subsequent suit for mesne profits for the second and the third stages was maintainable. He also relied on a judgment of this Court in the case of Bhourilal Agarwalla v. Ashutosh Roy , wherein claim for mesne profits in the earlier suit had been given up. A subsequent suit for future mesne profits was held maintainable. Lastly, he relied on a judgment of the Apex Court in the case of Gopalakrishna Pitllai v. Meenakshi Aval wherein it was held that with regard to the past mesne profits there is an existing cause of action which is not true as regards a claim for future mesne profits which can only be granted under Order 20 Rule 12 of the Code even without a prayer.
11. Mr. Bachawat, learned Counsel appearing for the defendant/appellant relying on a judgment of this Court in the case of Nrisingha Maitra v. Shyam Sundar Chattopadhyay , submitted that the two judgments of this Court relied upon by Mr. Chatterjee do not really apply because in both the aforesaid two cases the decree was silent as regards grant of mesne profit whereas in the present case it is clearly and specifically mentioned that the claim was given up. He submitted that Explanation 5 to Section 11 of CPC would, therefore, be squarely attracted. The judgment in the case of Nrisingha Maitra has followed the Division Bench judgment in the case of Makhan Lal Modak.
12. We have considered the submissions made by the learned Advocates. In our view a cause of action for mesne profits as presented in the plaint in Title Suit No. 1481 of 1986 was on the basis that after expiry of the lease on 15″‘ March, 1985, the possession of the defendant was wrongful and he was, therefore, a trespasser and it is on this basis that a claim for mesne profits was made. In the case of R.V. Bhupalprasad v. State of Andhra Pradesh , it has been held that after expiry of lease, possession of the defendant is neither legal nor lawful and he is taken to a trespasser but there can be no doubt that the defendant shall become a real trespasser after a decree for possession is passed, and, therefore the right of the plaintiff to maintain a suit for mesne profits, after a decree for recovery of possession was passed, against the defendant who continued to remain in possession notwithstanding the decree can never be questioned. Had that not been the position in law the question of any order being passed by the Appellate Court for payment of something on account of occupation charges would not arise. The cause of action for recovery of mesne profits which accrued to the plaintiff after the decree for recovery of possession was passed on 18th April, 1991 was a different cause of action and the same could not have been the subject-matter of Title Suit No. 1481 of 1986.
13. Once it is realised that a fresh cause of action arose to the plaintiff after he obtained the decree on 18th April, 1991, the question of the same being barred by res judicata would not arise. These are two different causes of action. The one pleaded in the plaint filed in the earlier suit was a cause of action commencing from 16th March, 1985 after expiry of the lease and the subsequent cause of action arose on 8th April, 1991 when the decree for recovery of possession was passed.
14. The difficulty, however, arises from the fact that the plaintiff in its earlier plaint had also claimed future mesne profits until delivery of possession. Mr. Chatterjee submitted that what was given up by his client was the cause of action which was presented by the plaint and that was the claim for mesne profits up to the date of the filing of the suit. We are, however, unable to accept this submission. When the suit was taken up for hearing, the plaintiff gave up its claim for mesne profit. Therefore, there is no escape from the conclusion that the cause of action which had accrued to the plaintiff upon expiry of the lease was given up. The plaintiff can now make a claim for mesne profits upon accrual of the cause of action afresh when the decree in his favour was passed and to that extent only the suit is triable.
15. The contention of the defendant/appellant is that in the earlier suit there was a prayer for mesne profits until delivery of possession and this the Court had jurisdiction to grant under Order 20 Rule 12 of the Code. Therefore, the entire claim according to the defendant is barred. This submission is obviously not tenable because even under Order 20 Rule 12 Court cannot grant mesne profits for a period more than three years from the date of the decree. Reference can usefully be made to Order 20 Rule 12 which reads as follows:
Decree for possession and mesne profits.–(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree:
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;
(ba) for the mesne profits or directing an inquiry as to such mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until–
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first occurs.
(2) Where an inquiry is directed under Clause (b) or Clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.
16. In any event the maintainability of the suit with effect from three years after the decree is beyond any pale of doubt. At this stage we are only called upon to answer the question as to whether the suit is barred by res judicata our answer to that question is in the negative.
17. Mr. Bachawat, however, submitted that even this part of the claim cannot be tried because the defendant/appellant had been making payment pursuant to the orders passed by the Division Bench of this Court and the Apex Court and the plaintiff never objected thereto. Therefore, this part of the claim is also barred. We are unable to accept this submission of Mr. Bachawat for the simple reason that when an appeal is presented to the Appellate Court, the Appellate Court has jurisdiction under Order 41 Rules 5 and 6 to stay the operation of the decree on such terms as the Appellate Court thinks proper. But that is not to say that the terms on which the Appellate Court chooses to stay the operation of the decree would preclude the decree-holder from claiming mesne profits in accordance with law if and when the decree for eviction is upheld. The appellant cannot but be deemed to have represented to the Appellate Court at, the time of praying for stay of operation of the decree that he has good grounds to assail the decree for eviction and in case he fails to make good his claim he shall be answerable for all the loss to which the respondent may be subjected by the order of stay.
18. Lastly, it was submitted by Mr. Bachawat that the claim in the suit or a large part thereof is barred by limitation for mesne profits for a period longer than three years cannot be claimed. It is not necessary for us to give any opinion on this question after we have held that the suit is not barred by res judicata. We, however, may like to point out that this question has to be considered in the light of Section 15 of the Limitation Act or any other applicable provision of the Limitation Act.
19. We, therefore, are of the view that the suit is maintainable. Whether recovery of mesne profits subsequent to 18th April, 1991 until the possession was made over should be granted or whether mesne profits should be granted from expiry of three years after 18th April, 1991 are the questions left open for a decision by the Trial Court. We have not answered these questions because it is not necessary for us to do so for the purpose of disposal of this appeal. We, however, should not be deemed to have expressed any opinion on the question Of limitation which will remain open to be decided in accordance with law when the suit shall be taken up for hearing.
