M/S RAPTAKOS, BRETT & CO. LTD.versusM/S GANESH PROPERTY

                            [2017] 8 S.C.R. 982


A                 MIS RAPTAKOS, BRETT & CO. LTD.
                                     v.
                        MIS GANESH PROPERTY
                      (Civil Appeal No. 1464 of 2008)
B                         SEPTEMBER 05, 2017
              (R.K. AGRAWAL AND R. BANUMATHI, JJ.J
          Code of Civil Procedure, 1908- Or.II, r.2- Bar under - When
  applicable -Suit by respondent-plaintiff in 1986 against appe//ant-
C Company for recovery of possession and mesne profits - Trial Court
  decreed suit in favour of the respondent while declining the claim
  of mesne profits as the said claim was not pressed by respondent -
  Fresh suit by respondent in 1998 claiming mesne profits -
  Maintainability of- Held: In the instant case, the respondent claimed
  mesne profits in an earlier suit filed for ejectment of the tenant but
D relinquished its rights vis-a-vis mesne profits - Thus, the respondent
  having relinquished the plea of mesne profits, the prohibition u/Or.
  II, r.2 would squarely apply and the second suit cannot be considered
  as one for mesne profits or damages for the same period for which
  a claim was raised in the earlier suit and deliberately withdrawn or
E given up - Thus, the issue of mesne profits attained finality - The
  second suit was hit by provisions of Or.II, r.2 and was not
  maintainable - Further, in the circumstances, the respondent was
  estopped from claiming any amount as mesne profits in the
  subsequent suit - Estoppel.
          Allowing the appeal, the Court
F
        HELD: 1.1 The continuance in possession of the premises
  by the appellant-Company on or after the passing of the decree
  in the 1986 suit was on the basis of the interim order passed by
  the High Court of Calcutta in the first appeal and order passed
  by this Court. The appellant-Company was paying the amount as
G directed by the Courts, as a condition for continuing in possession
  of the leased premises. Further, it is also evident on record that
  in the 1986 suit, the issue of mesne profit was not pressed by the
  respondent and the same was also not pressed before the High
  Court in appeal nor was it raised before this Court. [Para 7(
H [988-B-CI
                                  982
      MIS RAPTAKOS, BRETT & CO. LTD. v. MIS GANESH                   983
                      PROPERTY

       1.2 In the light of the above indisputable facts, the plaint A
 now filed cannot be considered as one disclosing a cause of action
 for maintaining a suit for mesne profits or damages for the same
 period. (Para 8) (988-D)
         1.3 In the interim orders passed by the High Court in appeal
  and this Court in SLP, the respondent had not raised any objection B
  and has allowed the said orders to become final and binding. Both
  parties have acted upon the said orders as fully valid and binding
  on them. If the respondent was not satisfied with the amount
  fixed as occupation charges, then it should have raised an objection
  praying for varying the amount specified as a condition precedent C
  for continuing in possession of the said premises. This is
  particularly relevant as the respondent had without any objection
  accepted the interim orders allowing the appellant-Company to
  continue in possession. Thus, the subsequent suit claiming mesne
  profits for the very same period during which a fixed amount was
  paid by the appellant-Company and accepted by the respondent D
. without objection was clearly not maintainable. [Paras 9 and 19]
  [988-E-G; 995-DJ
        1.4 Under Order II, Rule 2 read with Rule 4 of Code of
 Civil Procedure, 1908 the plaintiff can also claim mesne profits or
 arrears of rent in a suit filed for ejectment of the tenant. The E
 plaintiff can further file a fresh suit for claiming mesne profits or
 arrears of rent for the period subsequent to the decree passed in
 the earlier suit having become final. But in a case where the
 plaintiff has claimed mesne profits or arrears of rent in a suit filed
 for ejectment of the tenant and has relinquished his rights vis-a-vis
 mesne profits or arrears of rent in the suit proceedings itself, the F
 provisions of Order II, Rule 2 will come into play and in
 comparison to the second suit for mesne profits or arrears of rent
 till the decree, the earlier suit will attain finality. Further, the
 respondent was also estopped from claiming any mesne profits in
 the subsequent suit of 1998. [Paras 10 and 17] [989-B; 994-F-G] G
       Bhanu Kumar Jain v. Archana Kumar and Another
       (2005) 1 SCC 787 : [2004) 6 Suppl. SCR 1104 State
       Bank of India v. Gracure Pharmaceuticals (2014) 3
       SCC 595 : [2013) 12 SCR 617 - relied on.
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984            SUPREME COURT REPORTS                         [2017] 8 S.C.R.


A          Ram Karan Singh and Others vs. Nakchhad Ahir &
           Others AIR 1931 All. 429 - approved.
                              Case Law Reference
            AIR 1931 All. 429                approved           Para 14
.B          (2004) 6 Suppl. SCR 1104         relied on          Para 15
            (2013) 12 SCR 617                relied on          Para 16
           CIVIL APPELLATE JURISDICTION: Civil Appeal No.1464
      of2008.
 C            From the Judgment and final Order dated 22.08.2006 passed by
      the High Court at Calcutta (Original Side) in APO No.350 of 2004 in
      GA. No.3808 of2004 in APOT No.556 of2004.
         Shyam Dewan, Sr. Adv, E.R. Kumar, Kshatrashal Ray, Ms. Swati
   Bhardwaj, Ms.Sreepama Basak (for Mis Parekh & Co.), Advs. for the
 D Appellant.
            Pranab Kumar Mullick, Ms.Soma Mullick, Sebat Kumar Deuria,
      Advs. for the Respondent.
            The Judgment of the Court was delivered by
             R.K.AGRAWAL, J. 1. The above appeal has been filed against
·E    the judgment and order dated 22.08.2006 passed by the High Court at
      Calcutta inA.P.O. No. 350 of2004, GA. No. 3808 of2004 andA.P.O.T.
      No. 556 of 2004 in Civil Suit No. 457 of 1998 whereby the Division
      Bench of the High Court partly allowed the appeal filed by the appellant-
      Company.
 F          2. Brief facts:
            (a) The respondent herein leased out the premises bearing No. 6,
      Marquis Street, Calcutta to the appellant-Company for a term of 21
      years commencing from 16.03.1964 to 15.03.1985 under a registered
      Lease Deed dated 16.03.1964 at a monthly rent of Rs. 2,045/-.
 G
             (b) Before the expiry of the lease period, the respondent filed a
      suit for recovery of possession being Suit No. 1023 of 1982 before the
      City Civil Court, Calcutta, Third Bench for bona fide use. Vide order
      dated 06.08.1986, Suit No. 1023 of 1982 for recovery of possession was
      dismissed by the City Civil Court with costs.
 H
     MIS RAPTAKOS, BRETT & CO. LTD. v. MIS GANESH                          985
             PROPERTY [R.K. AGRAWAL, J.]

       (c) On 11.08.1986, the respondent filed a Title Suit being No. A
1481 of 1986 before the 8th Bench, City Civil Court, Calcutta for recovery
of possession and mesne profit. Vide order dated 18.04.1991, learned
single Judge of the City Civil Court decreed the suit in favour of the
respondent while declining the claim of mesne profit as the said claim
was not pressed.
                                                                           B
       (d) Being aggrieved by the order dated 18.04.1991, the appellant-
Company preferred an appeal being F.A.T. No. 1786 of 1991, re-,.
numbered as First Appeal No. 253 of 1992. Vide order dated 09 .07 .1991,
the Division Bench of the High Court, restrained the respondent from
executing the decree on the condition that the appellant-Company will C
continue to pay rent at the rate of Rs. 2,500/- per month. Further, on
11.08.1997, First Appeal No. 253of1992 was dismissed, however, the
appellant-Company was granted 6 (six) months' time to vacate the suit
premises.
        (e) Feeling aggrieved by the order dated 11.08.1997, the appellant-
 Company filed a petition for special leave to appeal being No. 19695 of D
 1997 before this Court which was converted into Civil Appeal No. 1657
 of 1998. This Court, vide order dated 09.09.1998, had dismissed the
 appeal with certain directions. However, on an application filed by the
 appeilant-Company seeking modification in the said order, this Court,
.vide order dated 25.09.1998 had passed the following order on the said E
 application:-
        "On mentioning the IA is taken on Board.
        Having heard learned counsel for the parties further directions
        are issued as under:-
        If the appellants hand over peaceful vacant possession of the F
        premises in question on or before 08'h October, 1998 then they
        will have to pay for the use and occupation charges only
        Rs. 2,500/- only, for the month of October. If they fail to deliver
        possession by that time they will have to pay use and occupation
        charges for the month of October at the rate of Rs. 50,000/- only,
        as fixed by us earlier. Rest of the order remains as it is.          G
        IA is disposed of accordingly."
        (f) After a long drawn litigation between the parties at all levels,
 the appellant-Company handed oyer the possession of the suit premises
 to the respondent on 08.10.1998.
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986           SUPREME COURT REPORTS                       [2017] 8 S.C.R.


A        (g) The respondent filed a fresh suit being Civil Suit No. 457 of
  1998 before the High Court against the appellant-Company for loss and
  damages caused to the respondent due to wrongful possession to the
  tune of Rs. 3,23,56,695/-. The appellant-Company preferred GA. No.
  3380 of2003 in Civil Suit No. 457of1998 under Order VII Rule 11 (a) of
B the Code of Civil Procedure, 1908 (in short 'the Code') for dismissing
  the suit. Learned single Judge of the High Court, vide order dated
  28.07 .2004, dismissed the application filed by the appellant-Company
         (h) Aggrieved by the order dated 28.07.2004, the appellant-
  Company preferred APOT No. 556 of 2004 in Civil Suit No. 457 of
   1998 before the High Court. The Division Bench of the High Court, vi de
C judgment and order dated 22.08.2006, partly allowed the appeal holding
  that the suit is maintainable while leaving the question of mesne profit
  open for the decision by the trial court.
         (i) Aggrieved by the order dated 22.08.2006, the appellant-
  Company has preferred this appeal by way of special leave before this
D Court.
             3. Heard Mr. Shyam Dewan, learned senior counsel for the
      appellant-Company and Mr. Pranab Kumar Mullick, learned counsel for
      the respondent and perused the records.
 E          Point(s) for consideration:-
            4. Whether in the facts and circumstances of the present case,
      the subsequent suit filed by the respondent for mesne profits is
      maintainable?
            Rival submissions:-
 F
          5. Learned senior counsel for the appellant-Company strenuously
   contended that the appellant-Company vacated the property on
   08.10.1998 pursuant to the order passed by this Court on 25.09.1998 in
   Civil Appeal No. 1657of1998. In Suit No. 1481 of 1986, the respondent
   had not pressed the issue of mesne profit and accordingly the court had
 G held that "the Respondent-plaintiff was not entitled to mesne profits for
   occupation of the premises. In appeal also, the issue of mesne profit
   was not pressed. Thus, the issue of mesne profit being not pressed nor
   challenged has attained finality and the respondent is estopped from
   raising the same by way of fresh suit. Further, this Court, vide order
   dated 25.09.1998, had directed that ifthe appellant-Company hands over
 H
     MIS RAPTAKOS, BRETT & CO. LTD. v. MIS GANESH                             987
             PROPERTY [R.K. AGRAWAL, J.]

 peaceful vacant possession of the premises in question on or before A
 8th October, 1998, then they will have to pay Rs. 2,500/- for the use and
 occupation charges for the month of October, 1998, otherwise,
 Rs. 50,000/- for the same which order has been complied with by the
 appellant-Company and, indisputably, the possession has been handed
 over on 08. l 0.1998. In any case, the respondent, after getting possession B
 of the suit premises, has filed a subsequent action being Suit No. 457 of
 1998 for mesne profit. Learned senior counsel contended that the suit is
 not maintainable at all and is barred by res-judicata and the claim of
·mesne profit had already attained finality. There is bar on the respondent
 to raise the point of mesne profit in a subsequent suit when the same had.
 not been pressed before the courts below. Learned senior counsel finally C
 submitted that the suit is not maintainable and is contrary to law and
 facts and expressly hit by Order II Rule 2 of the Code and also barred
 by the principles of estoppel and res-judicata. In support of his
 submissions, learned senior counsel has relied upon a decision in the
 case of Bhanu Kumar Jain vs. Archana Kumar and Another (2005) D
  1 SCC787.                                                         .J

       6. Learned counsel for the respondent submitted that the present
appeal is misconceived and is an abuse of the process oflaw. The issue
sought to be raised by the appellant-Company, including the grounds of
res judicata, limitation etc. were never raised in the written statement
nor in the applications challenging maintainability of the suit. He further   E
submitted that the issue raised relates to mesne profits after the decree
for eviction has been passed on the ground of wrongful occupation after
expiry of!ease. The cause of action is entirely different.It was further
submitted that the respondent had waived its claim of mesne profits
before the City Civil Court at Calcutta only up to the date of disposal of     F
suit being Title Suit No. 1481 of 1986 and was not debarred from claiming
mesne profits after the date of decree, i.e. 18.04.1991. It is well settled
by a catena of judgments thara landlord can maintain a second suit for
mesne profits. Hence, claim for mesne profits for the period after the
decree constitutes a distinct and separate cause of action. Learned
 counsel finally submitted that the appeal is not maintainable and the         G
 respondent is entitled to mesne profits. In support of his submissions,
 learned counsel has relied upon the decisions in the case of Ram Karan
Singh and Others vs. Nakchhad Ahir & Others AIR 1931 Allahabad
 429 and State Bank of India vs. Gracure Pharmaceuticals (2014) 3
 sec 595.                                                                      H
988             SUPREME COURT REPORTS                          [2017] 8 S.C.R.


A           Discussion:-
         7. The continuance in possession of the premises by the appellant-
  Company on or after the passing of the decree in Suit No. 1481of1986
  was on the basis of the order passed by the High Court of Calcutta in
  F.A. No. 253of1992 dated 09.07.1991 and orders dated 03.11.1997 in
B SLP(C)No. 19695 of1997 and25.09.1998 in CivilAppeal No.1657 of
  1998 passed by this Court. Thus, the appellant-Company was paying
  the amount as directed by the Courts, as a condition for continuing in
  possession of the leased premises. The appellant-Company was thus in
  occupation of the premises from 18.04.1991 till possession was
  surrendered on 08.10.1998, pursuant to the court's orders. Further, it is
C also evident on record that in Suit No. 1481 of 1986, the issue of mesne
  profit was not pressed by the respondent and the same was also not
  pressed before the High Court in appeal nor was it raised before this
  Court.
         8. In the light of the above indisputable facts, the plaint now filed
D cannot be considered as one disclosing a cause of action for maintaining
  a suit for mesne profits or damages for the same period for which a
  claim was raised in the earlier suit and deliberately withdrawn or given
  up by the respondent before the Court.
         9. In the interim orders dated 09.07 .1991 passed by the High Court
E in appeal and this Court in SLP(C) No. 19695 of1997 dated03.l l.1997,
  the respondent has not raised any objection and has allowed the said
  orders to become final and binding. Both parties have acted upon the
  said orders as fully valid and binding on them. The amount fixed as a
  condition for allowing the appellant-Company to occupy the premises
F was fixed at Rs. 2,500/-which was fixed by the court taking note of the
  fact that the appellant-Company is being allowed to continue even after
  the expiry of the lease period. If the respondent was not satisfied with
  the amount fixed as occupation charges, then it should have raised an
  objection praying for varying the an.-1._;t specified as a condition precedent
  for continuing in possession of the said premises. This is particularly
G relevant as the respondent has without any objection accepted the interim
  orders allowing the appellant-Company to continue in possession.
             10. In this connection, it is relevant to note that the respondent
      herein, in Suit No. 457of1998, has allowed the decree passed by the
      Court in T.S. No. 1481 of 1986 to become final, thus accepting the finding
H
           ·~   -- - -   ~-~·--·   ~   .. .-.. ·--·------




      MIS RAPTAKOS, BRETT & CO. LTD. v. MIS GANESH                         989
                    PROPERTY [R.K. AGRAWAL, J.]

 of the trial court that the landlord is not entitled to claim mesne profits A
 forthe occupation on or after 15.03.1985, i.e., the date of termination of
 the lease deed. It is pertinent to nQte that such a decree was passed
 mainly on the ground that the respondent in that suit had consciously
 given up the claim for mesne profits from the expiry of the lease period
 till recovery of possession. Therefore, the respondent is estopped from B
 claiming any mesne profits for the period afterl 5.03.1985, i.e. the period
 for which mesne profits .were claimed in Suit No. 457 of 1998.
          11. Further, the appellant-Company, while complying with the order
. dated25.09.1998 passed by this Court in Civil Appeal No.1657 ofl998,
  handed over the vacant possession of the premises to the respondent on
  08.10.1998 as is evident by the receipt issued by the respondent. From C
 ·the above, it can be said that the Respondent, by his own conduct,
  accepted the orders passed by this Court in allowing the appellant to
  occupy the premises conditionally on payment of Rs. 2,500/- from the
  disposal of the appeal by the High Court till the disposal of the SLP in·
  this Court. It would suggest that the averments in the plaint in Suit No. D
  457 of 1998 would not disclose any cause of action and, therefore, the
  suit is not maintainable.
          12. Further, on and after 18.04.1991, the date of decree in T.S.
 No. 1481 of 1986, the continuation ofpossession by the appellant-
  Company was fully on the basis of the orders passed by the City Civil E
  Court in F.A.T. No. 1786of1991, later re-numbered as F.A. No. 253 of
  1992. It was a conditional order allowing the appellant-Company tO
  continue in possession on condition of paying an amount of Rs. 2,500/-.
  The amount so fixed by the Court after considering the •claim of the
  Respondent for enhancement of the amount of compensation for
  continuation of possession after the expiry of the lease period. Though F
 ·this order has not been challenged by the respondent, it was allowed to
  starid for about six years until the appeal was finally heard and dismissed
  on 11.08.1997. It was on the basis of the above conditional ordertharthe
  appellant-Company had acted upon and enjoyed the benefits conferred
  by the order on both parties. In the circumstances, the respondent is G
  estopped from claiming any amount as mesne profits during the period-
  from 18.04.1991to1 l.08.1997, i.e., the date on which F.A. No. 253 of
   1992 was finally disposed off.
        13. In view of the above, we are of the opinion that. the High .
  Court erred in not appreciating that the respondent having given up its H
990          SUPREME COURT REPORTS                           (2017) 8 S.C.R.


A claim for mesne profits in Suit No. 1481 of 1986, the subsequent suit
  being Suit No. 457of1998 is clearly hit by Order II Rule 2 of the Code.
  For ease ofreference, Order II Rule 2 is extracted hereunder:
          "2.Suit to include the whole of the claim:
          (1) xxxxx
B
          (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.
c         (3) xxxxx"
         14. InRam Karan Singh (supra), a Full 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
D follows:-
          "lt 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 II 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
E
          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
F         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
G
          of the profits to which the plaintiff is entitled. In many cases, the
          plaintiff may not be in a position to anticipate the exact amount of
          mesne profits to which he may become entitled after the institution
          of the suit. The object of Order II, Rule 2 is the prevention of the
          splitting up of one cause of action and not to compel the plaintiff
H
    MIS RAPTAKOS, BRETT & CO. LTD. v. M/S GANESH                               991
                 PROPERTY [R.K. AGRAWAL, J.]

     to seek ·an the remedies which he can claim against the same              A
     defendants on account of several causes of action in one and the
     same suit. In one case, the multiciplicity of suits is to be avoided
     and, in the other, multifariousness of the causes of action. It is
     also clear that the bundle of facts which would constitute the
     cause of action in favour of the plaintiff would not necessarily be       B
     identical in a suit for recovery of possession and in a suit for
     mesne profits. In a suit for possession, the plaintiff need only
     prove his possession within twelve years and the defendant's
     occupation of the property without right. In a suit for mesne
     profits he has, in addition, to prove the duration of the whole period
     during which the dispossession continued, including the date on           C
     which it terminated, as well as the amount to which he is entitled
     by way of damages. Evidence to prove these latter facts would
     undoubtedly be different from that which would be required to
     prove the first set of facts. Again, if there are a number of
     defendants who are in possession of different portions of the             D
     property, there may be considerable difficulty in ascertaining the
     amount which, each is liable to pay and the plaintiff may think it
     convenient to postpone an inquiry of such a complicated nature to
     a suit after his right to possession has been fully established."
       15. In Blia11u Kumar Jai11 (supra), this Court has considered
the distinction between "issue estoppels" and "res judicata" and has           E
held as follows:-
      "29. There is a distinction between "issue estoppel" and "res
      judicata". (See Thoday v. Thoday.)
      30. Res judicata debars a court from exercising its jurisdiction to      F
      determine the !is if it has attained finality between the parties
      whereas the doctrine issue estoppel is invoked against the party.
      If such an issue is decided against him, he would be estopped
      from raising the same in the latter proceeding. The doctrine of res
      judicata creates a different kind of estoppel viz. estoppel by accord.
                                                                               G
      31. In a case of this nature, however, the doctrine of"issue estoppel"
      as also "cause of action estoppel" may arise. In Thoday Lord
      Diplock held:
      " ... 'cause of action estoppel', is that which prevents a party to
      an action from asserting or denying, as against the other party, the     H
992          SUPREME COURT REPORTS                             (2017] 8 S.C.R.


A         existence of a particular cause of action, the non-existence or
          existence of which has been determined by a court of competent
          jurisdiction in previous litigation between the same parties. If the
          cause of action was determined to exist i.e. judgment was given
          on it, it is said to be merged in the judgment. ... If it was determined
          not to exist, the unsuccessful plaintiff can no longer assert that it
B
          does; he is estopped per rem judicatam.
          32. The said dicta was followed in Barber v. Staffordshire County
          Council. A cause of action estoppel arises where in two different
          proceedings identical issues are raised, in which event, the latter
          proceedings between the same parties shall be dealt with similarly
 c        as was done in the previous proceedings. In such an event the bar
          is absolute in relation to all points decided save and except
          allegation of fraud and collusion. [See C. (A Minor) v. Hackney
          London Borough Council.]"
         16. In the case of State Bank of India (supra), fhis Court has
D examined the provisions of Order II, Rule 2 of the Code and has held as
  under:-
          "7. We may, before examining the rival contentions, extract the
          relevant provisions of Order 2 Rule 2 CPC for easy reference
          which reads as under:
 E
          "2. Suit to include the whole claim.-( l) 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.
 F
          (2) Relinquishment ofpart 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 sue/or one ofseveral relieft.-A person entitled
 G
          to more than one relief in respect of the same cause of action
          may sue for all or any of such reliefs; but ifhe omits, except with
          the leave of the court, to sue for all such reliefs, he shall not
          afterwards sue for any relief so omitted."

 H
MIS RAPTAKOS, BRETT & CO. LTD. v. MIS GANESH                         993
        PROPERTY [R.K. AGRAWAL, J.]

  8. The scope of the abovementioned provisions came up for A
  consideration before this Court in several cases. The earliest one
. dealt by the Privy Council was reported in Naba Kumar Hazra
  v. Radhashyam Mahish wherein the Privy Council held that the
  plaintiff cannot be permitted to draw the defendant to court twice
  for the same cause by splitting up the claim and suing, in the first B
  instance, in respect of a part of claim only. In Sidramappa v.
  Rajashetty this Court held that if the cause of action on the basis
  of which the previous suit was brought, does not form the
  foundation of subsequent suit and in the earlier suit the plaintiff
  could not have claimed the relief which he sought in the subsequent
  suit, the latter, namely, the subsequent suit, will not be barred by C
  the rule contained in Order 2 Rule 2 CPC.
 9. In Gurbux Singh v. Bhooralal the scope of the
 abovementioned provision was further explained as under: (SCC
 p. 1812, para 6)
    "6. In order that a plea of a bar under Order 2 Rule 2(3) of the D
    Civil Procedure Code should succeed the defendant who raises
    the plea must make out; (J) 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; (J) that being thus entitled E
    to more than one relief the plaintiff, without leave obtained from
    the court omitted to sue for the relief for which the second suit
    had been filed. From 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
    filed, for unless there is identity between the cause of action on F
    which the earlier suit was filed and that on which the claim in
    the later suit is based the_re would be no scope for the application
    of the bar."
  10. In Sandeep Polymers (P) Ltd. case the abovementioned
  principles were reiterated and this Court held as under: (SCC p. G
  158, para 13)
    "13. '22. Under Order 2 Rule I of the Code which contains
    provisions of mandatory nature, the requirement is that the

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994            SUPREME COURT REPORTS                             [2017] 8 S.C.R.


A             plaintiffs are duty-bound to claim the entire relief. The suit has
              to be so framed as to afford ground for final decision upon the
              subjects in dispute and to prevent further litigation concerning
              them. Rule 2 further enjoins on the plaintiff to include the whole
              of the claim which the plaintiff is entitled to make in respect of
              the cause of action. If the plaintiff omits to sue or intentionally
B
              relinquishes any portion of his claim, it is not permissible for
              him to sue in respect of the portion so omitted or relinquished
              afterwards.'~"
            11. The abovementioned decisions categorically lay down the law
            that if a plaintiff is entitled to seek reliefs against the defendant in
c           respect of the same cause of action, the plaintiff cannot split up
            the claim so as to omit one part to the claim and sue for the other.
            If the cause of action is same, the plaintiff has to place all his
            claims before the court in one suit, as Order 2 Rule 2 CPC is
            based on the cardinal principle that the defendant should not be
D           vexed twice for the same cause.
            12. Order 2 Rule 2 CPC, therefore, requires the unity of all claims
            based on the same cause of action in one suit, it does not
            contemplate unity of distinct and separate causes of action. On
            the abovementioned legal principle, let us examine whether the
E           High Court has correctly applied the legal principle in the instant
            case."
           17. From a reading of the provisions of Order II, Rule 2 and Rule
   4 of the Code and also the principles laid down in the aforementioned
   cases, it is clear that under Order II, Rule 2 read with Rule 4, the plaintiff
 F can also claim mesne profits or arrears of rent in a suit filed for ejectment
   of the tenant. The plaintiff can further file a fresh suit for claiming
   mesne profits or arrears of rent for the period subsequent to the decree
   passed in the earlier suit having become final. But in a case where the
   plaintiff has claimed mesne profits or arrears of rent in a suit filed for
   ejectment of the tenant and has relinquished his rights vis-a-vis mesne
 G profits or arrears of rent in the suit proceedings itself, the provisions of
   Order II, Rule 2 will come into play and in comparison to the second suit
   for mesne profits or arrears of rent till the decree, the earlier suit will
   attain finality.
        18. Applying the above principles to the facts of the present case,
H we find that the decree in the earlier Suit No. 1481 of 1986 filed for
      MIS RAPTAKOS, BRETT & CO. LTD. v. M/S GANESH                          995
              PROPERTY [R.K. AGRAWAL, J.]

  ejectment of the appellant-Company and mesne profits attained finality A
  on 09 .09.1998 and 25.09 .1998 when this Court had dismissed Civil Appeal
  No. 1657 of 1998 and the application respectively filed by the appellant
  herein. However, vide order dated 25.09.1998, this Court had directed
  that if the appellant hands over the peaceful vacant possession of the
  premises in question on or before 08.10.1998 then they will have to pay B
  Rs. 2,500/- for the use and occupation charges for the month of October
  1998 otherwise Rs. 50,000/- as fixed earlier. It is not in dispute that in
· the present case, the appellant had handed over peaceful vacant
  possession to the respondent on 08.10.1998 and also that the respondent
  had relinquished the plea of mesne profits during the suit proceedings
  itself. Thus the prohibition contained in Order II Rule 2 would squarely C
  apply.
         19. Having regard to the earlier proceedings, as mentioned above,
 in Civil Suit No. 1481 of 1986, wherein a decree for possession was
 passed but the claim for mesne profits was relinquished by the respondent-
 landlord and in view of the subsequent orders of the Division Bench and D
 this Court, the question of further paynients on account of mesne profits
 which had been fixed and paid in the earlier suit did not arise. The
 subsequent suit claiming mesne profits for the very same period during
 which a fixed amount was paid by the appellant-Company and accepted
·by the respondent without objection is clearly not maintainable. The plaint
 does not disclose any cause of action or any clear right to sue and was E
 liable to be rejected.    The above facts would clearly show that the
 averments in the plaint read along with the orders and pleadings relied
 upon by the respondent in support of the reliefs prayed for in Civil Suit
 No. 457 of 1998 do not disclose any cause of action for the prayer for
 mesne profits made therein.                                                 F
       Conclusion:-
        20. In view of the above, we are of the considered opinion that
 the possession of the appellant-Company for the period under
 consideration, pursuant to orders passed by the High Court and this Court, .
 cannot in any view be considered as illegal or unauthorized or that of a G
 trespasser. For that reason, the plaint in Civil Suit No.457 ofl 998 does
 not disclose any cause of action for filing a suit for mesne profits till the~
 surrender of possession. Therefore, the issue ofmesne profit attained
.finality and the respondent is not entitled to raise the same issue now by
 way of filing a fresh suit. In order words, by not pressing the claim of H
996             SUPREME COURT REPORTS                           [2017] 8 S.C.R.


A     mesne profits raised in a suit before the Court, unconditionally and without
      any reservation, the respondent cannot thereafter tum around and claim
      the same relief by filing a fresh suit.
             21. In view of the foregoing discussion, we allow the appeal filed
      by the appellant-Company.
B


      Divya Pandey                                                 Appeal allowed.