ORDER
Devinder Gupta, J.
1. This appeal has been preferred under Section 96 of the Code of Civil Procedure is against the judgment and decree passed on 24.9.1997 by Shri Satnam Singh, Sub Judge 1st Class, Delhi decreeing the suit of the plaintiff/respondent for possession of garage No. 61, Gulabi Bagh, Subzi Mandi, Delhi and for recovery of Rs. 2700/- towards use and occupation charges against the defendants/appellants with costs of with suit.
Facts giving rise to the appeal are that on 27.2.1974 Gurbux Singh, respondent filed a suit against Shri Bir Singh, predecessor in interest of the appellants, claiming a decree for possession of the aforementioned property and for recovery of Rs. 2700/- towards damages for use and occupation with effect from 7.11.1971 to 6.2.1974. It was inter alia alleged that the property was purchased by the plaintiff from Shri Prem Chand through sale deed executed and registered on 7.1.1970. Bir Singh, defendant had been in wrongful and unauthorised occupation of the property without consent either of Prem Chand, the previous owner or of the plaintiff. Ever since the property was purchased. The unauthorised possession of Bir Singh was not recognised by the plaintiff and was asked to vacate the property and also to pay damages for use and occupation. A suit for the recovery of damages from the date when the plaintiff purchased the property (suit No. 286/70) was field against Bir Singh at the rate of Rs. 400/- per month reserving his right to take separate proceedings for recovery of possession. In the said suit Bir Singh took a plea that he was a tenant in the property. This plea of Bir Singh was negatived and the suit of the plaintiff was decreed with costs on 11.9.1972. The defendant Bir Singh preferred an appeal against the judgment and decree of the trial court. A compromise was arrived at during the pendency of the trial appeal on 14.2.1974, as regards quantum of damages, which as per the compromise were allowed at the rate of Rs. 100/- per month. Decree of the trial court accordingly was modified to that extent. In this back ground the plaintiff claimed that the defendant being an unauthorised occupation was liable to deliver possession to the plaintiff and pay damages for the period from 7.11.1971 till vacation. Accordingly, he sought the decree aforementioned.
Before the written statement could be field by Bir Singh, he expired on 2.9.1974. An application was moved by the plaintiff for bringing on record legal representative of the defendant. Notice of this application seeking substitution was contested by the present appellants, who raised a plea that in addition to the appellants there were other legal heirs of the deceased Bir Singh. Following issues were framed on the application to bring on record legal representatives of Bir Singh:-
1. Whether the proposed L.Rs. are the only L.Rs. of the deceased defendant and they can be legally substituted in this case?
2. Whether the application is barred by time?
3. Whether the suit is liable to be dismissed as having abated?
4. Application was allowed. The appellants were allowed to be substituted in place of the deceased after the trial court held that the appellants alone were the legal representatives of the deceased and there was no question of the suit having abated. Consequently, the suit proceeded on merits in which the appellants field written statement. They pleaded that they were not aware of any sale. They denied the legality and validity of the sale of the property in favor of the plaintiff and also took up a plea that Bir Singh was a tenant under the custodian and denied that his possession was unlawful. On the pleadings of the parties, following issues were framed:-
1. Whether the suit is properly valued for the purposes of court fee and jurisdiction?
2. Whether the plaintiff is the owner of the property in dispute?
3. Whether the suit is bad for non-joinder of necessary parties?
4. Whether the plaintiff is entitled to the damages prayed for?
5. Relief.
5. The additional issue was framed on 2.2.1978:-
“Whether the defendants are debarred from raising the plea that late Shri Bir Singh was tenant as the same is res judicata between the parties?”
6. The trial court by the impugned judgment and decree held that in view of the finding of fact recorded in the previously instituted suit, (as per copy of the judgment Ex.P.1) that Bir Singh was not a tenant in the premises, the plea raised by the defendants/appellants that Bir Singh was a tenant was barred by resjudicata between the parties. It was held that the suit was not bad for non-joinder of necessary parties since all the legal heirs of deceased, who represented the estate of deceased wee rightly brought on record after the death of Bir Singh. Accordingly, learned trial court proceeded to decree the suit. This judgment and decree is under challenge by the appellants.
7. Learned Counsel for the appellant vehemently urged that the suit of the plaintiff/respondent was barred under Order 2 Rule 2 of the Code of Civil Procedure (for short “the Code”) since admittedly the plaintiff had field suit No. 286/70 against Bir Singh deceased fro the recovery of Rs. 1600/- as mesne profits for use and occupation of the suit premises for the period from 7.1.1970 to 6.5.1970 at the rate of Rs. 400/- per month. On the day when suit for recovery of mesne profits was filed cause of action had arisen to the plaintiff to file suit for possession. No leave of the court was sought at this stage by the plaintiff. Therefore, suit for possession field subsequently was barred in view of he express bar contained in sub-clause (3) of Rule 2 of Order 2 of the Code.
8. Needless to add that this plea that the suit for possession was barred under Rule 2 of Order 2 of the Code was not taken by the defendant/appellants in the written statement or at any stage before the trial court. No issue was claimed on this plea and even during course of arguments before the trial court this plea was not raised. For the first time this plea is sought to be raised in this appeal and that also without the defendant/appellants having even bothered to place on record copy of the plaint of the previously instituted suit. When the attention of learned counsel for the appellants was drawn to this aspect, he urged that it was not necessary for the defendant/appellants to have produced copy of the previously instituted suit and it is also not impermissible for them to raise this plea for the first time in this appeal on the basis of the admitted facts. He submitted that the plaintiff/respondent in his plaint had specifically alleged that a suit for mesne profits was filed by him against Bir Singh, which had been decreed on 11.9.1972. This admission of having field a suit for mesne profits pre-supposes that on the date of institution of previously instituted suit cause of action had arisen to the plaintiff for filing suit for possession. In any case, the plaintiff/respondent had in the plaint of the subsequent suit specifically alleged that the cause of action for recovery of possession had arisen to him on 7.1.1970 when sale deed was executed in his favor, on the date of refusal of notice dated 15.5.1970 by Bir Singh and for damages towards use and occupation charges: cause of action arose on 7.5.1970 by Bir Singh and for damages towards use and occupation charges: cause of action arose on 7.5.1970 and on 7th of each subsequent month and lastly on 7.2.1974. Mr. Rawal contended that in the light of these pleadings, it was all the more necessary for the plaintiff to have prayed for decree for possession in the previously instituted suit along with decree for recovery of mesne profits. Since no leave was obtained, the present suit out of which this appeal has been filed is barred.
9. There is no force in either of the submissions made by learned counsel for the appellants that the appellants are entitled to raise this plea for the first time in appeal without raising this plea before the trial court and even in the absence of production of copy of the plaint of the previously instituted suit. Plea of bar contained in Order 2 Rule 2 of the Code is technical plea. Rule 2 of Order 2 of the Code reads:-
“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 use for one of serval reliefs- A person entitle to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but 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.”
10. In order that the plea of a bar under clause (3) of Order 2 Rule 2 of the Code should succeed the defendant should raise the plea and make out (a) that the second suit was in respect of the same cause of action on which the previous suit was based: (b) that in respect of that cause of action, the plaintiff was entitled to more than one relief; and (c) being thus entitled to more than one relies, the plaintiff without leave obtained from the Court omitted to sue for the relief for which second suit had been filed.
11. There has been conflict of judicial opinion on the question whether a suit for possession of immovable property and a suit for recovery of mesne profits for the same property or both are based on the same cause of action or not.
12. Full Bench of Madras High Court in Ponnamal v. Ramamirda Aivar and others A.I.R. 1915 Madras 912 considered the following question:- "If a plaintiff sues for possession only when he might have joined in the same action claims for profits and damages, is it open to him to sue subsequently for the profits which became payable before the institution of the suit and which might have been included in such suit." 13. The answer was given in affirmative holding that claims for recovery of possession of land and claims for mesne profits are separate causes of action. If the plaintiff sues for possession only when he might have joined in the same action claims for profits and damages, it is open to him to sue subsequently for he profits, which became payable before the institution of the suit and which might have been included in such suit. 14. Full Bench of bombay High Court in Shankarlal Laxminarayan Rathi and others v. Gangabisen Maniklal Sikchi and another also answered a similar question holding that claims for damages and claim for mesne profits are regarded as distinct and separate causes of actin from the cause of action for recovery of immovable property. 15. Similar view was expressed by Full Bench of Punjab Haryana High Court in Sadhu Singh and others v. Pritam Singh Son of Narain Singh and another saying that Order 2 Rule 2 of Civil Procedure Code does not bar a suit for mesne profits field subsequently to a suit for possession of the property because the claim for accrued mesne profits had not been earlier included therein.
16. A Single Judge of this Court in Prem Nath Kapur v. Gurdit Singh and others RSA No. 35/67 decided on 28.10.1971 reported as 1971 R.L.R. (Note) 126 held that a suit for recovery of possession of property is based on a distinct cause of action from a claim for recovery of mesne profits, although a large field of controversy is common to both and overlaps. he held that in a suit for recovery of possession cause of action is complete the moment trespass has been committed and the plaintiff is required to establish his title to the property and the obligation of the defendant to surrender its possession to him. Limitation for such a suit is 12 years. On the other hand in a suit for recovery of mesne profits, the plaintiff has to allege continuous deprivation of the property fr which mesne profits are claimed. In such a suit the plaintiff may also incidentally be required to prove his title and right to obtain the profits and the liability of the defendant to pay the same but the cause of action for mesne profits continues from day to day and for that reason different articles for limitation have been prescribed for each, suit for mesne profits may also be field in small Cause Court while suit for possession cannot be so filed.
17. Controversy as regards different causes of action was noticed by Supreme Court in Gurbux Singh v. Bhooralal wherein it was also noticed that as the plea of bar under Order 2 Rule 2 CPC is a technical bar, it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning and can be established only if defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the causes of action in the two suits. The Court held:-
“In order that a plea of a bar under Order 2 R. 2 (3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief, (3) that being thus entitled to more than on relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been field. Form this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was field, for unless there is identify between the cause of action on which the earlier suit was filed and that on which the claim in the later suit Is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 rule 2 Civil Procedure Code can be established only if the defendant files in evidence pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits.”
18. Similar arguments, as were raised before us by Mr. Rawal raised before the Supreme Court that in the absence of copy of pleadings in the previously instituted suit inference could be drawn from other material available on the suit record was negatived by the Constitution Bench of the Supreme Court heldings:-
“Just as in the case of a plea of res judicata which cannot be established in the absence of the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order 2 Rule 2 Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defense which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before Court the plaint in which those facts were allege, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were claimed without the necessary averments to justify their grant. From the mere use of the words ‘mesne profits’ therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression ‘mesne profits’ has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterisation of the particular sum demand but what in substance is the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought. It is because of these reasons that we consider that a plea based on the existence of former pleading cannot be entertained when the pleading on which it rests has not been produced.”
19. In view of the above, as in the instance case copy of the plaint of the previously instituted suit was not filed and also f the fact that no such plea was taken by the defendant/appellant before the trial court, the plea now raised for the first time in the first appeal, cannot be sustained. Otherwise also, we are in full agreement with the view expressed in the three Full Bench decisions aforementioned and by learned Single Judge of this Court in Prem Nath Kapur’s case (supra) and we hold that the suit filed by the plaintiff/respondent for possession was not barred under Order 2 Rule 2 of the Code.
20. Learned counsel for the appellant further contended that Smt. Harbans Kaur widow of Bir Singh one of the legal representative of the deceased. She died during pendency of the suit of 8.3.1979. She had been appointed as guardian-ad-litem of the minor defendants, two of whom attained majority during the pendency of the suit and the other two were still minor when the suit was decided. The were also minor when the appeal was filed in this Court. They have since attained majority. He contended that as Harbans Kaur died on 8.3.1979 it was incumbent on the trial court, in view of Rule 10 of Order 32 of the Code, to stay the proceedings of the suit. Trial court ought not to have proceeded further. He could have proceeded only after fresh appointment of guardian-ad-litem. Instead of doing the same, the Court proceeded with the suit and examined one of the witnesses of the defendant due to which impugned judgment and decree is vitiated.
21. We fid no substance in the aforementioned submission for number of reasons. There is no doubt that Smt. Harbans Kaur widow of deceased Bir Singh was brought on record as one of the legal representatives along with Santokh Singh son of the deceased, two minor daughters and two minor sons of the deceased. She being the natural guardian obviously was also appointed as guardian ad litem of the four minors. She expired on 8.3.1979. The defendant/appellants had already examined three witnesses. Smt. Harbans Kaur was also examined on commission as her own witness. Proceedings of the trial, court do suggest that a formal application was made by the plaintiff on 24.9.1979 praying that on the death of Smt. Harbans Kaur, the eldest son of the deceased Bir Singh, namely, Santokh Singh, who was the eldest in the family and was looking after the interest of the minors and had no adverse interest to that of the minors being fit person be appointed as guardian ad litem. As Shri Santokh Singh on the same day expressed his reluctance to act as guardian ad litem of the minors, a Court official was appointed as guardian ad litem. In between the death of Smt. Harbans Kaur and the date of resh appointment of guardian ad litem statement of only one witness viz. DW.4 Niranjan Singh was recorded on behalf of the defendant/appellants. He was an official witness from the Ministry of Rehabilitation. It is also interesting to note that two of the minors had attained majority during the pendency of the suit. Vakalatnama on record is signed by all the legal representatives including minors in favor of their counsel. They did not engage any other counsel during the pendency of the suit. Santokh Singh continued to appear in Court and watched the interest of the other defendants. When this appeal was filed two legal representatives were still minors. It was Santokh Singh who acting on behalf of the minors field the appeal. Till date it has not been shown what prejudice was cased to the minor defendants when guardian ad litem was not appointed during the intervening period when statement of DW.4 was recorded. Moreover, the submission that Court ought to have stayed the proceedings by virtue of the provisions contained in Rule 10 of Order 32 of the Code is erroneous in law as much as Rule 10 of Order 32 of the Code would apply on the death of next friend of a minor plaintiff. No such obligation is cast on the Court to stay proceedings in the suit on the retirement, removal or death of a guardian appointed for the defendant in the suit, for which Rule 11 of Order 32 of the Code would apply. As we have noticed above that guardian ad litem was appointed by the court before deciding the suit and that no prejudice is shown to have occasioned to the defendant/appellants, there is no force in this plea also.
22. Another submission was made by learned counsel for the appellant that on the date of death of Bir Singh, his mother was alive. She was not brought on record as one of the legal representative, therefore, the suit was bad for non-joinder of necessary parties. Needless to add that when application for substitution was made an objection was raised on behalf of the defendant/appellants to the effect that there were other legal representatives also who had not been imp leaded. Issue was framed on the plea of defendant/appellant. No evidence was led on behalf of the defendant/appellants. The plaintiff appeared as his own witness. It was not suggested to him at that stage that there was any other legal representative other than the widow and five children of the deceased. Issue was decided against the defendant/appellants. Smt. Harbans Kaur in her deposition when she appeared as her witness on merits of the case conceded that the estate of the deceased Bir Singh was duly represented by the widow and five children and there was no other person to contest the suit. No material was brought to our notice that on the death of the deceased, the mother of Bir Singh was residing with him in the premises in question. Bir Singh was the sole defendant. In view of the above, his estate will be deemed to be fully represented by those heirs only who had been residing with him in the suit premises. They were duly brought on record. Thus there is no infirmity in the trial court’s judgment that the suit was not bad for non-joinder of necessary parties. Moreover, the mother of Bir Singh is stated to have died during the pendency of suit and it was not even urged that she was residing with Bir Singh. No other point was urged.
23. Consequently, we find no force in the appeal, which is hereby dismissed with costs.