A SUBRMANIAN Vs. MUTHUKRISHNA

JUDGEMENT

(1.) AN interesting question of law arises in this appeal as to whether the suit filed for mesne profits that accrued during the pendency of the earlier suit is maintainable. The respondent herein instituted an earlier suit against the appellant in O. S. No. 355 of 1989 on the file of the court of District Munsif, Maduranthagam on the ground that the appellant trespassed into the suit property and the appellant was in illegal possession of he suit property. The said suit was instituted for declaration and recovery of possession of the suit property. The said suit was decreed on 2-4-1992. Against the judgment and decree of the trial court, the appellant herein, who was the defendant in the suit, preferred an appeal in A. S. No. 47 of 1992 on the file of Subordinate judge's Court, Chengalpattu and the said appeal came to be dismissed on 30-10-1992. The appellant herein preferred a further appeal before this Court in S. A. No. 1801 of 1992 and the same was also dismissed on 15-4-1999. Thereafter, the respondent herein, who was the plaintiff in the earlier the decree and in the execution of the decree, he obtained possession of the suit property on 30-9-1999. It is relevant to mention here that in the earlier suit filed by the respondent herein, the respondent has prayed only for declaration and recovery of possession of the suit property and there was no relief sought either for past mesne profits or for mesne profits that accrued during the pendency of the suit.

(2.) THE respondent herein, after taking possession of the suit property instituted the present suit in O. S. No. 86 of 2000 on the file of Subordinate Judge's Court. Maduranthagam claiming mesne profits for the period from April, 1997 to Sept. 1999 when the possession was taken at the rate of Rs. 1,500/- per month totalling a sum of rs. 45,000/- with interest at the rate of 12% p. a. and probably the rest of the claim was barred by limitation. The appellant, who is the defendant in the suit, raised several defences and one such defence was that the suit instituted by the respondent for recovery of mesne profits for the period from April, 1997 to Sept. 1999 is not maintainable as the suit is hit by Order II, Rule 2, Code of civil Procedure. Learned Subordinate Judge, on the basis of pleadings, framed necessary issues for consideration and after considering the evidence let in on behalf of the parties , ultimately held that the suit is maintainable and the plaintiff/respondent herein would be entitled to a decree for sum of Rs. 21,000/- along with interest at the rate of 6% p. a. from the date of plaint till the date of realisation. The appellant herein preferred an appeal in A. S. No. 22 of 2001 on the file of District Court, Chengalpattu raising the plea that the suit instituted by the plaintiff is hit by Order II, Rule 2, C. P. C. as the claim of mesne profits is part of the cause of action of the relief of declaration and recovery of possession and hence, the suit is not maintainable. Learned Additional district Judge (Fast Track Court No. 1), chengalpattu, however, did not accept the contention raised on behalf of the appellant and dismissed the appeal. It is against the judgment and decree of the learned Additional district Judge, the present appeal has been preferred.

(3.) THE only point that has been urged before me by Mr. M. Kalyanasundaram, learned senior counsel for the appellant is that the present suit instituted for recovery of mesne profits for the period from April, 1997 to Sept. 1999 is not maintainable as the cause of action for the claim for mesne profits is part of the cause of action which led the plaintiff to file the earlier suit in O. S. No. 355 of 1989 for declaration and recovery of possession of the suit property on the ground that the appellant herein was in illegal possession of the suit property. Learned senior counsel submitted that the respondent herein has not obtained prior leave of the Court to file the present suit for mesne profits as required under Order II, rule 2, C. P. C. and since no leave of the Court was obtained, the present suit instituted by the respondent is squarely hit by Order II, rule 2, C. P. C. and the view of learned trial court as well as the appellate Judge is not correct.