BANARSI PRASAD Vs. AWADH BIHARI DASS

JUDGEMENT

(1.) The question to be determined in this case is whether the suit brought by the plaintiffs claiming damages for use and occupation of a house from the defendant is barred by the principle of 'res judicata'.

(2.) The plaintiffs claimed that they had purchased plot No. 509, khata No. 152, by virtue of a registered kebala and thereafter the defendant obtained lease of the house on a monthly rental of Rs. 10. As the defendant did not pay any rent the plaintiffs instituted a suit in 1945 in which they claimed arrears of rent and also asked that the defendant should be ejected. There was also a claim for future mesne profits. The Munsif who heard the suit decreed it in part holding that the plaintiffs had title and they should get a decree for ejecting the defendant from the house. He however disallowed the claim for arrears of rent. There was a direction that the defendant should vacate the house within three months from the decree failing which the plaintiffs should recover possession through Court. There was no mention in the judgment or decree about the claim for future mesne profits which the plaintiffs had made. In spite of the decree the defendant did not vacate the house but on 1st May, 1949, (1948?) the plaintiffs obtained dakhal dehani. The plaintiffs have now filed a suit against the defendant claiming a sum of Rs. 190 as damages for use and occupation for the period from 16th July, 1947, to 30th April, 1948. The defendant contested the claim mainly on the ground that it was barred by 'res judicata'. The learned Munsif disallowed the objection and granted the plaintiffs compensation at the rate of Rs. 10 per month for the period in question.

(3.) In support of this rule learned counsel for the petitioner addressed the argument that the Munsif has committed an error of law in allowing the claim of the plaintiffs and that on a correct interpretation of Explanation V of Section 11 of the Code of Civil Procedure the learned Munsif ought to have held that the claim was barred on principle of 'res judicata'. Learned counsel also referred to Order 20, Rule 12 of the Code of Civil Procedure which provides that 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 rent or mesne profits which have accrued on the property during a period prior to the institution of the suit; (c) directing an inquiry as to rent or mesne profits from the institution of the suit until the delivery of possession to the decree-holder.....It was contended on behalf of the petitioner that the word "may" in Order 20, Rule 12, should be construed in an imperative sense and there was no discretion in the Court at all and if the party made out a case and established it on merits the Court was bound to award a decree for mesne profits from the date of the institution of the suit up to the date when possession of the property was delivered to the decree-holder. The argument of the learned counsel is in substance the argument which commended itself to Das, J. in -- 'Harnandan Rai v. Baliram Prasad', 12 Pat LT 127. But the two other learned Judges, Fazl Ali J. and Wort J. disagreed with the opinion of Das, J. holding that where a decree for possession is silent as regards the mesne profits which had accrued between the date of the institution of the suit and the date of delivery of possession, and which had been claimed in the suit, a second suit would lie for recovering such mesne profits and would not be barred by the provisions of Section 11 of the Civil Procedure Code. It was pointed out by Fazl Ali, J. in his judgment that the whole question as to whether a second suit for mesne profits is barred or not would have to be decided with reference to Explanation V of Section 11 of the Code. The judgment of Fazl Ali, J. was based on the decision of the Full Bench in -- 'Doraisami Aiyar v. Subramania Aiyar', 41 Mad 188 (FB) in which Wallis, C.J. adopted the following interpretation of the words "relief claimed" as used in Explanation V.S. 11: "The word 'relief' in the explanation means relief arising out of a cause of action which had accrued at the date of suit and on which the suit was brought, and did not include relief such as mesne profits accruing after the date of suit as to which no cause of action had then arisen, but which the Court was nevertheless expressly empowered to grant. The explanation having been reproduced in exactly the same words, the presumption is that it was intended to have precisely the same effect. I do not find any sufficient indication to rebut this presumption in the fact that Sections 211 and 212 of the old Code were amalgamated to form Order XX, Rule 12. The change introduced by the new rule is that the award of mesne profits in all cases is to be by preliminary decree, and that when ascertained they are to be embodied in a final decree, whereas under Sections 211 and 212 they were to be ascertained in execution. This change does not appear to me to affect the construction of Explanation V to Section 11, nor do I think it is affected by the omission in Section 47 of the new Code of the proviso to the corresponding Section 244 of the old Code." Fazl Ali J. adopted the interpretation of the words "relief claimed" made in the Madras case and accordingly held that a suit for mesne profits will not be ,barred even if such mesne profits may have been claimed but not expressly granted in the first suit. Wort, J. expressed himself in agreement with the judgment of Fazl Ali, J. and held that the plaintiffs in that case were entitled to recover mesne profits from the date of the institution of the suit up to the date when possession was delivered. In accordance with this view of the law we are bound to hold in this case that the claim of the plaintiffs for damages for use and occupation for the period from 16th July, 1947, to 30th April, 1948, is not barred.