Full Judgment Text
REPORTABLE
2023 INSC 1042
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO……….. OF 2023
(ARISING OUT OF S.L.P. (C) NO. 8292 OF 2021)
M/s BHARAT PETROLEUM
CORPORATION LTD. AND ANOTHER … Appellant(s)
VERSUS
ATM CONSTRUCTIONS PVT. LTD. … Respondent(s)
J U D G M E N T
RAJESH BINDAL, J.
1. Leave granted.
2. Challenge in the present appeal is to the order dated
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07.01.2021 passed by the High Court , vide which the application filed
by the appellants/defendants under Order VII Rule 11(d) C.P.C. in the
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suit filed by the respondent-plaintiff, was dismissed.
Signature Not Verified
Digitally signed by
SONIA BHASIN
Date: 2023.12.01
18:31:28 IST
Reason:
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High Court of Judicature at Madras
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Civil Suit (Commercial Division) No. 62 of 2020
1
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
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surrender of possession. The same having not been done, first suit 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
3
Civil Suit NO. 711 of 2006
2
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, 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 till 31.12.2019 along with interest @ 12% per annum from
01.01.1998 till realization. Future damages @ ₹ 30,50,000/- per month
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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
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pleadings of the appellants-defendants are to be considered. He
further referred to the provisions of Order II, Rules 2(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. In support
of his arguments, reliance was placed upon the judgment of this Court
in Virgo Industries (Eng.) Private Limited v. Venturetech Solutions
4
Private Limited .
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
4
(2013) 1 SCC 625
5
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
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and two others . Subsequently, the matter was considered by the Full
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ILR (1915) XXXVIII 829
6
Bench of Punjab and Haryana High Court in Sadhu Singh etc. v. Pritam
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Singh, Etc. Same view was endorsed. Even this Court in Gurbux
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Singh v. Bhooralal 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
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6 ILR (1976) 1 P&H 120
7
AIR 1964 SC 1810
7
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 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
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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
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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.
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
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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
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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
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when the said Mrs. Bharwani has caused a notice
demanding vacant possession; 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
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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
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High Court in Ram Karan Singh v. Nakchhad Ahir . 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:
8
AIR 1931 All 429
14
“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)
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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
9
Corporation Ltd. v. Sudera Realty Pvt. Ltd. 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
9
2022 SCC OnLine SC 1161: 2022:INSC: 926
16
mesne profits involves a liability, which accrues on a
day- to-day basis. 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
17
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
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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
10
Order IV Rule 2 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
10
Apparently, there is an error. It should be Order II Rule 4
19
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
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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.
Virgo Industries (Eng.) Private
18. The judgment in
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 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.
…..……………….J
(VIKRAM NATH)
…………………..J
(RAJESH BINDAL)
New Delhi
November 30, 2023.
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