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Madras High Court
S.M.A. Khuddus vs Sowdagar Mahammad Hussain on 22 March, 1926
Equivalent citations: 97 Ind Cas 389, (1926) 51 MLJ 252
Author: Krishnan


Krishnan, J.

1. This is a revision petition which raises a some what curious point of law. The plaintiff had brought a suit originally for rent or mesne profits for two months and odd, and for that he got a decree. Subsequently, he brought a suit for the recovery of possession of the property and asked in that suit for future mesne profits and that suit also was decreed in his favour. In the present suit he claims mesne profits from the end of the period for which he had claimed mesne profits in the first suit up to the date of the second suit. A question is raised whether this present suit is not barred by reason of the second suit under Order 2, Rule 2. There is no direct authority on the point. We have therefore to decide it on general principles.

2. In Ponnammal v. Ramamirda Aiyar (1914) I.L.R. 38 M 829 : 28 M L J 127(F B) a Full Bench of this Court decided that where a person had brought a suit for possession of property, he could bring a second suit for past mesne profits in respect of the same property, the two causes of action being distinct. There is also a ruling in Doraiswami v. Subramania (1917) I.L.R. 41 M 188 : 33 M L J 699, that after a suit is brought lor possession and future mesne profits, if the Court refuses future mesne profits, a second suit will lie for such future mesne profits, the reasons given being that the refusal of the Court in the first suit to give the mesne profits will not make the matter res judicata. No other authorities have been brought to my notice. On the authority of Ponnammal y. Ramamirda Aiyar (I) it would follow that the fact that the second suit here was brought for recovery of possession of the property would not make the third suit barred under Order 2, Rule 2, for they expressly held that in such a case a suit for past profits Would lie. The only question is, whether the fact that in the second suit here the plaintiff had asked for future profits would have the effect of barring the present suit. I am inclined to think that it would not have, for Order 2, Rule 2(1) only says that the plaintiff is bound to include in the same suit only such claims as he is entitled to make in respect of the cause of action. If there is difference in the causes of action between the first suit and the second suit, Order 2, Rule 2 will not apply. The claim for future mesne profits was not a claim based upon any cause of action accrued to the plaintiff but upon the permission given under the Code to join a claim for future profits in suits for possession. It is entirely in the discretion of the Courts to grant or not to grant future profits. In the present suit we have a claim for past profits already accrued for which a cause of action had arisen. For the claim for future profits in the second suit there was no cause of action. It cannot be said therefore that there was a common cause of action for this suit and for the claim for future profits in the last suit. In this view Order 2, Rule 2 cannot apply and the District Munsif’s view is therefore right.

3. The revision petition fails and is dismissed with costs.

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