Virender Kumar Garg vs Manju Garg

Indermeet Kaur, J.

1 The impugned order is dated 24.02.2012 whereby the application filed by the defendant under Order 2 Rule 2 read with Section 10 of the CPC (hereinafter referred to as the ''Code'') had been dismissed. The plaintiff had filed a suit for possession; this was in October, 2007; this was qua the second floor of property bearing No. F-83, Narayana Vihar, New Delhi. Thereafter one year later in October, 2008 a second suit was filed by the plaintiff claiming mesne profits and damages.

In the course of these proceedings, the aforenoted application was filed. The contention of the petitioner/defendant is that there is a bar of Order 2 Rule 2 read with Section 10 of the Code; contention being that at the time when the first suit i.e. suit for possession had been filed, the claim for mesne profits had also matured and the plaintiff not having joined the claim of mesne profits in the first suit for possession, the second suit was barred. Parameters of Section 10 of the Code are also attracted.

This submission of the petitioner is bereft of force and the impugned order declining this prayer suffers from no infirmity.

Provisions of Order 2 Rule 2 read with Order 2 Rule 4 of the Code have to be read co-jointly. Order 2 Rule 4 of the Code specifically provides that in a suit for immoveable property, a claim for mesne profits can also be joined. The cause of action in relation to a suit for possession and a cause of action in relation to a claim for mesne profits are two distinct causes of action and this can be deciphered from the legislative enactment in incorporating Order 2 Rule 4 of the Code. A cause of action for the recovery of mesne profit is distinct from the cause of action for recovery of possession of immoveable properties and had it been a part of the same cause of action leading to the filing of the suit for recovery of possession, the legislature would not have introduced Order 2 Rule 4 of the Code. Although this provision is couched in the negative language; it gives a clue that without obtaining the leave of the Court, it is open to the party to join in a suit for recovery of immoveable properties a claim for mesne profits or arrears of rent as well; had the cause of action of both the two suits being one and same, the legislature would not have incorporated the specific provisions of Order 2 Rule 4 of the Code. Mesne profits has defined in Section 2 (12) is nothing but the profits the person in wrongful possession as actually received from the property.

The impugned order dismissing the prayer made by the petitioner under Order 2 Rule 2 of the Code suffers from no infirmity. Provisions of Section 10 of the Code are also wholly inapplicable. The matter in issue in the first suit which is a suit for possession and the matter in issue which is a suit for recovery of mesne profits and damages are two distinct causes of action based upon two different subject matters. The said provision is also inapplicable. Petition is without any merit. Dismissed.