M/S BHARAT PETROLEUM CORPORATION LTD. AND ANOTHERversusATM CONSTRUCTIONS PVT. LTD.

                [2023] 16 S.C.R. 859 : 2023 INSC 1042



                            CASE DETAILS

     M/S BHARAT PETROLEUM CORPORATION LTD. AND
                      ANOTHER
                                     v.
                 ATM CONSTRUCTIONS PVT. LTD.
                     (Civil Appeal No. 7890 of 2023)
                         NOVEMBER 30, 2023
          [VIKRAM NATH AND RAJESH BINDAL, JJ.]
                             HEADNOTES
      Issue for consideration: Whether the High Court was justified in
dismissing the application filed by the appellant u/Or.VII r.11(d) CPC for
rejection of the subsequent suit filed by the respondent-owner for damages
for use and occupation of the property after expiry of the lease period.
      Code of Civil Procedure, 1908 – Or. VII r. 11(d) – Application
under – First suit filed by the respondent for possession without claiming
any damages for use and occupation – Subsequent suit filed only for
claiming damages for use and occupation of the property after expiry of
the lease period – Application u/Or. VII r. 11(d) filed by the appellants-
defendants for rejection of the said plaint – Maintainability:
      Held: Suit for possession and suit for claiming damages for use
and occupation of the property are two different causes of action – There
being different consideration for adjudication, the second suit filed by the
respondent claiming damages for use and occupation of the premises was
maintainable – Respondent is the absolute owner of the property in dispute
– Lease of the property in favour of the appellants by the predecessors-in-
interest of the respondents expired in 1997 – After a prolonged litigation,
the possession was handed over to the respondent after 25 years – First suit
was filed seeking possession of the property – No claim was made regarding
mesne profits – Subsequent suit was filed claiming damages for use and
occupation of the property from 1998 onwards – Thus, the application filed
by the appellants for rejection of the plaint was rightly dismissed by the
courts below – Cause of action. [Paras 16, 17]

                                    859
860             SUPREME COURT REPORTS                     [2023] 16 S.C.R.



         LIST OF CITATIONS AND OTHER REFERENCES
     Virgo Industries (Eng.) Private Limited v. Venturetech Solutions Private
Limited (2013) 1 SCC 625: [2012] 7 SCR 933 – distinguished.
     Ponnammal v. Ramamirda Aiyar and two others, ILR (1915) XXXVIII
829; Sadhu Singh etc. v. Pritam Singh, Etc. ILR (1976) 1 P&H 120; Gurbux
Singh v. Bhooralal, AIR 1964 SC 1810:[1964] SCR 831; Ram Karan Singh
v. Nakchhad Ahir AIR 1931 All 429, Indian Oil Corporation Ltd. v. Sudera
Realty Pvt. Ltd. 2022 SCC OnLine SC 1161: 2022 INSC 926, Ram Karan
Singh and others v. Nakchhad Ahir and others, AIR 1931 Allahabad 429;
Raptakos Brett and Company Limited v. Ganesh Property (2017) 10 SC
643 – referred to.
         OTHER CASE DETAILS INCLUDING IMPUGNED
                ORDER AND APPEARANCES
       CIVIL APPELLATE JURISDICTION: Civil Appeal No.7890 of 2023.
     From the Judgment and Order dated 07.01.2021 of the High Court of
Judicature at Madras in ANO No.1633 of 2020.
       Appearances:
     V. Giri, Sr. Adv., Parijat Sinha, Ms. Pallak Bhagat, Ms. Reshmi Rea
Sinha, Ms. Suveni Bhagat, Advs. for the Appellant.
     S. Nagamuthu, Sr. Adv., M. A. Chinnasamy, Mrs. C. Rubavathi, M.
Veeraragavan, C. Raghavendren, V. Senthil Kumar, Ch. Leela Sarveswar,
Devendra Pratap Singh, Advs. for the Respondent.
         JUDGMENT / ORDER OF THE SUPREME COURT

                                    JUDGMENT

       RAJESH BINDAL, J.
       1. Leave granted.
     2. Challenge in the present appeal is to the order dated 07.01.2021
passed by the High Court1, vide which the application filed by the appellants/


1     High Court of Judicature at Madras
    M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v.                      861
       ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]


defendants under Order VII Rule 11(d) C.P.C. in the suit2 filed by the
respondent-plaintiff, was dismissed.
       3. Briefly, the facts as available on record are that the respondent-
plaintiff is presently the absolute owner of the property in dispute. It was
originally owned by T. Padmanabhan, T. Sethuraman and T. Gopinath. At
that time, M/s Burma Shell Oil Storage and Distribution Company of India
Ltd. had taken the property on lease with effect from 01.01.1958 for the
purpose of erecting pump service and filling station for storage of petrol,
diesel and carrying on business in such products for a period of twenty
years by entering a lease deed dated 08.01.1958. The said Company was the
predecessor-in-interest of the appellants-defendants. The property was put
to public auction owing to default in repayment of the loan availed by the
owners. The same was purchased by Mrs. S. Bharwani in the auction. Sale
deed was registered in her favour on 24.06.1978. The respondent-plaintiff
had purchased the property from Mrs. S. Bharwani. Finally, the lease in
favour of the appellants expired on 31.12.1997. Thereafter, as pleaded, the
respondent-plaintiff issued notice to the appellants demanding surrender
of possession. The same having not been done, first suit3 was filed by the
respondent-plaintiff in the year 2006. During the pendency of first suit,the
suit in question was filed claiming liquidated damages for a period from
01.01.1998 till 31.12.2019 along with interest and future damages of
₹30,50,000/- per month from 01.01.2020 onwards till the date of handing
over the vacant possession of the suit property. It is in the aforesaid suit
that the appellants-defendants filed application under Order VII Rule 11(d)
C.P.C. The same having been dismissed by the High Court, the matter is
before this Court.
       4. Mr. V. Giri, learned senior counsel for the appellants submitted that
it is not a matter of dispute that the lease in favour of the appellants expired
on 31.12.1997. The first suit for possession was filed by the respondent-
plaintiff in 2006. At the stage of filing of the aforesaid suit, though the relief
for damages for use and occupation was available to the respondent-plaintiff,


2    Civil Suit (Commercial Division) No. 62 of 2020
3    Civil Suit NO. 711 of 2006
862          SUPREME COURT REPORTS                        [2023] 16 S.C.R.


however, the same was not claimed. It has been specifically pleaded in
Paragraph No. XXI in the plaint that the respondent-plaintiff is entitled
to damages for wrongful occupation of the premises by the appellants-
defendants, but still while claiming the final relief, only possession was
sought after removal of the structure,which existed thereon. The first suit
was decreed on 30.10.2010.
      5. During the pendency of the aforesaid suit, the respondent-plaintiff
filed the suit in question in January 2020 claiming liquidated damages
of ₹1,28,90,000/- payable towards illegal occupation from 01.01.1998
till31.12.2019along with interest @ 12% per annum from 01.01.1998 till
realization. Future damages @ ₹30,50,000/- per month from 01.01.2020 till
the date of handing over vacant possession of the property in dispute were
also claimed. It is the case of the parties that possession was handed over
by the appellants to the respondent-plaintiff in June 2022.
      6. The argument raised by learned senior counsel for the appellants is
that from the pleadings in the first suit filed by the respondent-plaintiff it
is evident that it had touched the issue of damages for use and occupation
of the property in dispute, which could be claimed at that time, the lease
having expired on 31.12.1997. However, still in the first suit filed in January
2006 only possession was sought. The relief, which was available and not
claimed, is deemed to be omitted for which no fresh suit lies. The plaint in
the suit in question filed by the respondent-plaintiff in the year 2020 was
liable to be rejected under Order VII Rule 11(d) C.P.C., as the same was
not maintainable. In the suit filed subsequently, the claim of the respondent-
plaintiff is also barred by law for the reason that in the second suit filed
in the year 2020, the claim is made for damages for use and occupation
from the year 1998 onwards. To appreciate the contentions raised by the
appellants-defendants, copy of the earlier suit and the judgment therein
have been placed on record by the respondent-plaintiff along with the
subsequent suit. It is not that any pleadings of the appellants-defendants
are to be considered. He further referred to the provisions of Order II,
Rules2(2), (3) and especially(4) C.P.C. in terms of which without even
seeking permission of the court, relief for damages for use and occupation
of the premises can be joined in a suit for recovery of immoveable property.
    M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v.                     863
       ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]


In support of his arguments, reliance was placed upon the judgment of
this Court in Virgo Industries (Eng.) Private Limited v. Venturetech
Solutions Private Limited4.
      7. On the other hand, Mr. S. Nagamuthu, leaned senior counsel for the
respondent-plaintiff submitted that the application filed by the appellants-
defendants was totally mis-conceived. It is the undisputed fact on record
that the lease granted to the appellants expired on 31.12.1997. Despite that,
they did not hand over vacant physical possession of the property in dispute
to the lesser- respondent, who had purchased the same on 03.01.1997.
The respondent-plaintiff did not have any choice but to file the first suit in
2006. In that also, all kinds of frivolous pleas were raised by the appellants
making the respondent to contest the litigation for over a decade. The suit
was initially decreed on 30.10.2010. After the lease expired on 31.12.1997,
from January 1998 onwards the appellants were in occupation of the property
in dispute without paying any damages for use and occupation thereof. The
respondent-plaintiff filed a suit in January 2020 seeking a direction to the
appellants-defendants to pay liquidated damages of ₹1,28,90,000/- along
with interest @ 12% per annum from 01.01.1998 till realization. Future
damages @ ₹30,50,000/- per month from 01.01.2020 till the date of handing
over vacant possession of the property in dispute were also claimed. The
calculation was on a very conservative estimate, the details whereof have
been furnished in the suit. As there was huge delay on the part of the
appellants to pay the damages for use and occupation of the property in
dispute, interest was also claimed. As had been the attitude of the appellants
in delaying the process of law, instead of defending the suit which otherwise
was not defendable, an application was filed under Order VII Rule 11(d)
C.P.C. for rejection of the plaint. The same was totally mis-conceived.
There is no bar in filing a separate suit for claiming damages for use and
occupation of the property in dispute, in case in the first suit pertaining to
the same premises, only possession was claimed. The law thereon is well
settled. Even the High Court has also referred to the judgments starting
from a Full Bench of Madras High Court in Ponnammal v. Ramamirda
Aiyar and two others5. Subsequently, the matter was considered by the


4    (2013) 1 SCC 625
5    ILR (1915) XXXVIII 829
864            SUPREME COURT REPORTS                        [2023] 16 S.C.R.


Full Bench of Punjab and Haryana High Court in Sadhu Singh etc. v.
Pritam Singh, Etc.6 Same view was endorsed. Even this Court in Gurbux
Singh v. Bhooralal7 had settled the issue that even if damages for use and
occupation had not been claimed in a suit filed earlier seeking possession
of the property, a fresh suit being a distinct cause of action is maintainable.
In view of the aforesaid settled position of law, the subsequent suit filed by
the respondent-plaintiff cannot be said to be barred under any law. It was
further submitted that the issue with regard to maintainability of the suit
in terms of Order II Rule 2 C.P.C. has already been framed and the matter
will be examined by the Trial Court after the parties lead evidence. Even if
the appellants-defendants had any objection with regard to any part of the
claim made in the suit being beyond limitation or otherwise, the issue can
always be raised and tried.
       8. Heard learned counsel for the parties and perused the paper book.
       9. The respondent-plaintiff is the absolute owner of the property in
dispute. It was originally owned by T. Padmanabhan, T. Sethuraman and
T. Gopinath. At that time, M/s Burma Shell Oil Storage and Distribution
Company of India Ltd. had taken the property on lease with effect from
01.01.1958 for a period of twenty years by executing a lease deed dated
08.01.1958. The said Company was the predecessor-in-interest of the
appellants-defendants. The property was put to auction for recovery of
loan availed by the owners. The same was purchased by Mrs. S. Bharwani
in the auction. Sale deed was registered in her favour on 24.6.1978. The
respondent-plaintiff had purchased the property from Mrs. S. Bharwani.
Finally, the lease in favour of the appellants expired on 31.12.1997.
Thereafter, as pleaded, the respondent-plaintiff issued notice to the appellants
seeking possession. The same having not been done, the first suit filed by the
respondent-plaintiff was decreed 30.10.2010. During the pendency of the first
suit, the appellants-defendants sought to invoke Section 9 of the Tamil Nadu
City Tenants Protection Act, 1921 claiming right to purchase the property,
but failed in that process as well. In the first suit filed by the respondent-
plaintiff, the prayer was only for seeking possession of the property. In the



6     6 ILR (1976) 1 P&H 120
7     AIR 1964 SC 1810
 M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v.                       865
    ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]


suit in question filed in the year 2010, the prayer was made for claiming
damages for use and occupation of the property from 01.01.1998 onwards,
as admittedly the lease in favour of the appellants expired on 31.12.1997.
Copy of the plaint and the judgment in the first suit have been placed on
record by the respondent-plaintiff along with the second suit.
     10. Application under Order VII Rule 11(d) C.P.C. was filed by the
appellants-defendants for rejection of the plaint. It was on the ground that
a subsequent suit only for claiming damages for use and occupation of the
property in dispute, for which a suit for possession was filed earlier without
claiming any damages for use and occupation, will not be maintainable in
terms of Order II Rule 2 C.P.C.
      11. The primary issue which requires consideration by this Court to
appreciate the arguments regarding maintainability of the subsequent suit is
with reference to cause of action. The first suit was filed by the respondent
for possession, whereas the second suit was filed for damages for use and
occupation of the property after expiry of the lease period.
     12. Paragraphs in the two suits mentioning the cause of action are
extracted below:
     “Suit for possession
     “XXI. The plaintiff submits that after the statutory intervention, the
     first renewal period by virtue of Section 5 & 7 of the Burma-Shell
     Acquisition of Undertakings in India Act, the defendants got the lease
     deed executed for a period of 20 years from 01.01.1978. The said first
     renewal period expired on 31.12.1997. The plaintiff submits that the
     Apex Court as well as the Madras High Court have clearly held that
     the statutory right of the defendant Corporation to renew the lease
     can be exercised only one time and no more. Hence, the possession
     of the defendants in the plaint schedule property after the expiry of
     the first renewal period i.e. 31.12.1997 is that of a trespasser. The
     plaintiff submits that till date they have not received any rental from
     the defendants. The plaintiff is entitled to damages for the wrongful
     occupation of the premises by the defendants. Hence the possession of
     the defendants is wrongful, and the suit is therefore laid for recovery
     of possession of the actual demised premises.
866           SUPREME COURT REPORTS                          [2023] 16 S.C.R.


      XXI. The cause of action for the suit arose at Madras on 08.01.1958,
      when the defendants as it then stood as Burma-Shell Oil & Storage
      Company Limited entered into a contract of lease with plaintiff’s
      predecessor in title and was let into possession of the plaint schedule
      property, on 31.07.1997, when the plaintiff purchased the said property
      from the predecessor in title of the plaint schedule property; on
      23.07.2005 when the plaintiff through its lawyers sent a registered
      notice calling upon the defendants to surrender possession of the
      plaint schedule property and on 01.08.2005 when the first defendant
      by its letter dated 02.08.2005 addressed to the lawyers of the plaintiff
      declined to surrender possession of the plaint schedule and on
      subsequent dates.”
      Suit for damages for use and occupation of property
      “13. The cause of action for the suit arose within the jurisdiction of this
      Hon’ble Court on 01.01.1958 when the lease under the predecessors-
      in-title and the erstwhile Burma Shell Oil Storage and Distribution
      Company had commence; on 08.01.1958 when the said lease deed
      was executed by the parties; on 20.01.1976 when the Government
      of India acquired the equity shares of the Burma Shell Oil Storage
      and Distribution Company and incorporated the Bharat Petroleum
      Corporation Ltd., on the dates between 1976 and 1978 when the
      predecessor-in-title of the suit property availed loan from the Egmore
      Benefit Society, brought the property to public auction and Mrs. S.
      Bharwani purchased the suit property in public auction; on 01.01.1978
      when the renewed period of lease has commenced; on 06.07.19078
      when the defendant had requested Mrs. S. Bharwani, the then title
      holder to grant extension of lease from 01.01.1978; on 27.07.1978 and
      on 18.10.1978 when the said Mrs. S. Bhawani caused further notices
      to the defendants to vacate the suit property; on 17.11.1978 when the
      defendants informed the said Mrs. S. Bharwani that they have the
      statutory right under the Burma Shell Acquisition of Undertaking in
      India Act; on 14.11.1996 when the plaintiff entered into the agreement
      for sale of the suit property; on 03.01.1997 when the Deed of Sale in
      favour of the plaintiff was registered; on 02.12.1997 when the said
      Mrs. Bharwani has caused a notice demanding vacant possession;
    M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v.                      867
       ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]


      on 01.091.1998 when the extended period of lease in respect of the
      suit property had expired; on 09.01.1998 when the said has issued
      demand notice to vacate the suit property, on 10.1.2000 when the said
      Mrs. Bharwani issued another notice for vacant possession of lease
      for another 30 years was rejected; in the year 2006, when the suit for
      eviction in O.S. No. 711 of 2006 was filed in the City Civil Court; on
      27.11.2009 when the Defendants filed the Petition in I. A. No. 6009 of
      2009 under Section 9 of the City Tenants Protection Act, in the year
      2010 when the CMA 20 of 2010 was filed before the III Additional
      Judge, City Civil Court, Chennai; on 15.2.2010 when the CMA was
      dismissed; on 30.10.2010 when the suit in O.S. No. 711 of 2006 was
      decreed; in the year 2010, when the Defendants preferred the A.S. No.
      361 of 2010; in the year 2011, when the Defendants preferred a SLP in
      the Hon’ble Supreme Court of India against the orders passed in CRP
      above; in the year 2011, when the Defendants filed CRP No. 610 of
      2011 before the Hon’ble Court, Madras against the Orders passed in
      CMA; on 09.01.2012, when the CRP was dismissed by the Hon’ble
      High Court; and each and every day thereafter.”
       13. Similar issue was considered by a Full Bench of Allahabad High
Court in Ram Karan Singh v. Nakchhad Ahir8. In the aforesaid case, a
suit for recovery of possession and mesne profits was filed on 24.08.1925.
In the suit, the plaintiff claimed mesne profits upto the date of filing of the
suit. The suit was decreed in favour of the plaintiff. Future and pendente lite
mesne profits were neither claimed nor refused in that suit. Possession of
the land was delivered on 01.04.1927. The plaintiff then instituted a second
suit for recovery of mesne profits from the date of institution of the first
suit i.e., 24.08.1925 till the date of delivery of possession, i.e., 01.04.1927.
The Full Bench opined that a subsequent suit for claiming mesne profits
where an earlier suit claiming possession and mesne profits upto the date of
filing of the suit was already decided, was maintainable. Relevant paragraph
thereof is extracted below:
      “It seems to us that the cause of action for recovery of possession is
      not necessarily identical with the cause of action for recovery of mesne


8    AIR 1931 All 429
868            SUPREME COURT REPORTS                           [2023] 16 S.C.R.


       profits. The provisions of Order 2 Rule 4, indicate that the legislature
       thought it necessary to provide specially for joining a claim for mesne
       profits with one for recovery of possession of immovable property,
       and that but for such an express provision, such a combination might
       well have been disallowed. A suit for possession can be brought within
       twelve years of the date when the original dispossession took place
       and the cause of action for recovery of possession accrued. The claim
       for mesne profits can only be brought in respect of profits within three
       years of the institution of the suit and the date of the cause of action for
       mesne profits would in many cases be not identical with the original
       date of the cause of action for the recovery of possession. Mesne profits
       accrue from day to day and the cause of action is a continuing one,
       and arises out of the continued misappropriation of the profits to which
       the plaintiff is entitled. …”
                                                            (Emphasis supplied)
    14. Subsequently, a Full Bench of Punjab & Haryana High Court in
Sadhu Singh’s case (supra) considered the following question:
       “Whether Order 2, rule 2 of the Code of Civil Procedure, 1908, bars
       a suit for mesne profits filed subsequently to a suit for possession of
       the property because the claim for those accrued mesne profits had
       not been earlier included therein.”
       14.1 The same was answered in negative by majority.
     15. The Full Bench judgment of Allahabad High Court in Ram Karan
Singh’s case (supra) was quoted with approval in Indian Oil Corporation
Ltd. v. Sudera Realty Pvt. Ltd.9 opining therein that the cause of action
claiming mesne profits accrue from day to day and the cause of action is a
continuing one. Relevant paragraphs 64 and 65 thereof are extracted below:
       “64. The case of the respondent is that the plea of limitation was not
       pressed before the learned Single Judge and was also not taken up
       before the Division Bench. It is further contended that a claim for
       mesne profits involves a liability, which accrues on a day- to-day basis.



9     2022 SCC OnLine SC 1161: 2022:INSC: 926
M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v.                      869
   ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]


  In this regard, attention is drawn to Ram Karan Singh and others v.
  Nakchhed Ahir and others, AIR 1931 Allahabad 429, which has been
  referred to by this Court in the Judgment reported in Raptakos Brett
  and Company Limited v. Ganesh Property, (2017) 10 SC 643 and
  we may notice only paragraph-21 of Raptakos Brett and Company
  Limited (supra):
  “21. Bench of the Allahabad High Court while examining the issue of
  maintainability of second suit for pendente lite and future mesne profits
  where earlier suit for possession and past mesne profits has already
  been decided has held as follows : (SCC Online All)
       “It seems to us that the cause of action for recovery of possession
       is not necessarily identical with the cause of action for recovery
       of mesne profits. The provisions of Order 2 Rule 4, indicate that
       the legislature thought it necessary to provide specially for joining
       a claim for mesne profits with one for recovery of possession of
       immovable property, and that but for such an express provision,
       such a combination might well have been disallowed. A suit for
       possession can be brought within twelve years of the date when
       the original dispossession took place and the cause of action
       for recovery of possession accrued. The claim for mesne profits
       can only be brought in respect of profits within three years of
       the institution of the suit and the date of the cause of action for
       mesne profits would in many cases be not identical with the
       original date of the cause of action for the recovery of possession.
       Mesne profits accrue from day to day and the cause of action is a
       continuing one, and arises out of the continued misappropriation
       of the profits to which the plaintiff is entitled. …”
                                                     (Emphasis supplied)
  65. In the said passage, what has been considered, was the issue
  relating to the maintainability of the second Suit for pendente lite and
  future mesne profits, in a situation, where an earlier suit for recovery
  of possession and for past mesne profits had been decided. We notice
  that what the Court has essentially held is that but for Order IV Rule
870            SUPREME COURT REPORTS                             [2023] 16 S.C.R.


      210 of the CPC, as it stood specifically providing for joining a claim
      for mesne profits with one for recovery of possession of an immovable
      property, such a joining together of claims in one suit, may have been
      not allowed. It is thereafter stated that a claim for mesne profits can
      only be brought in respect of profits within three years of the institution
      of the suit. Still further, it is found that the date of cause of action for
      action for mesne profits may not coincide with the date of cause of
      action for recovery of possession. It is thereafter that the statement
      which is relied upon by the respondent has been made. The Court held
      that mesne profits accrue from day-to-day, and the cause of action is a
      continuing one. It arises out of the continued misappropriation of the
      profits, which a plaintiff is entitled to.”
      16. If considered in the light of the facts of the case in hand, it is
undisputed that the respondent-plaintiff is the absolute owner of the property
in dispute at present. The lease of the property in favour of the appellants by
the predecessors-in-interest of the respondents expired on 31.12.1997. After
a prolonged litigation, the possession was handed over to the respondent only
in June 2022. The first suit was filed seeking possession of the property. No
claim was made regarding mesne profits. Subsequent suit was filed claiming
damages for use and occupation of the property from 1998 onwards.
       17. In view of the enunciation of law, as referred to above, suit
for possession and suit for claiming damages for use and occupation
of the property are two different causes of action. There being different
consideration for adjudication, in our opinion, second suit filed by the
respondent claiming damages for use and occupation of the premises was
maintainable. The application filed by the appellants for rejection of the
plaint was rightly dismissed by the Courts below. However, the appellants
are well within their right to raise the issue, if any part of the claim in the
suit is time-barred but the entire claim cannot be said to be so.
      18. The judgment in Virgo Industries (Eng.) Private Limited’s case
(supra), relied upon by learned counsel for the appellants is distinguishable
as in that case, on the date the suit for injunction was filed, even as per
the averments in the plaint, the cause of action to file suit for specific


10 Apparently, there is an error. It should be Order II Rule 4
 M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v.                      871
    ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]


performance had arisen but was not claimed. Under those circumstances,
this Court held that the subsequent suit would be barred under Order II
Rule 2 C.P.C.
      19. In view of our aforesaid discussions, we do not find any merit in
the present appeal. The same is, accordingly, dismissed. There shall be no
order as to costs.


Headnotes prepared by:                                      Appeal dismissed.
Nidhi Jain