MUKUNDA PRADHAN Vs. KRUPASINDHU PANDA

JUDGEMENT

(1.) This second appeal raises an interesting point which has led to some divergence of opinion. The plaintiff-respondent purchased two plots No. 1227 and No. 1712, and brought a suit O. S. No. 298 of 1943 in the Court of the 2nd Munsif, Cuttack, for recovery of possession of the same from the defendants who had trespassed upon the suit lauds. In that suit he had prayed for subsequent mesne profits till recovery of possession. The suit was decreed ex parte and the decree directed that the plaintiff should be put in possession of the disputed properties, but contained no directions with regard to the claim for future mesne profits. In execution of the decree the plaintiff took delivery of possession of the disputed plots through Court, on 7-8-1946 and on 31-1-1947. Thereafter, he filed another suit for mesne profits, from the date of institution of the suit till the date of delivery of possession. The defendants contended that the second suit was barred under Order 2, Rule 2 as well as under Explanation 5 to Section 11, Civil P. C. Both the courts below have overruled the contention, and the point for decision is whether the plea taken by the defendants should be upheld.

(2.) The plaint in the earlier suit has not been exhibited, but it appears from Ext. 4, the certified copy of the decree in that suit (O. S. 298 of 1943) that no direction had been given with regard to the ascertainment of the mesne profits. The decree is silent about it. But it is clear that if the plaintiff was bound to include this claim for subsequent mesne profits in his earlier suit, the second suit out of which the present second appeal arises must be held to be barred by the provisions of Order 2, Rule 2 of Civil P. C. That rule lays down that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action and is intended to deal with the vice of splitting the cause of action. It provides that the suit must include the whole of any claim which the plaintiff is entitled to make in respect of any cause of action on which he sues, and that if he omits (except with the leave of the Court) to sue for any relief to which his cause of action would entitle him, he cannot claim it in a subsequent suit. The object of this salutary rule is doubtless to prevent multiplicity of suite. See -- 'Naba Kumar v. Radheshyam', AIR 1931 PC 229 (A). The question, therefore, is whether the plaintiff was entitled to the claim which he now makes when he filed the first suit, and whether that claim arose out of the cause of action upon which the earlier suit was founded.

(3.) There can be no doubt that the claim for mesne profits which accrued from the date of the sale deed in favour of the plaintiff to the date of institution of the suit arose out of the same cause of action. But it can hardly be said that the claim for mesne profits subsequent to the institution of the suit also arose before the suit was instituted. Order 20, Rule 12 of the Civil Procedure Code provides the rule as to what the Court may do in a suit for possession and mesne profits. That rule is as follows: