# CASE DETAILS M/S BHARAT PETROLEUM CORPORATION LTD. AND ANOTHER v. ATM CONSTRUCTIONS PVT. LTD

- **Citation:** 2023 INSC 1042
- **Court:** Supreme Court of India
- **Decided:** 2023-11-30
- **Case number:** Civil Appeal No. 7890 of 2023
- **Bench:** Vikram Nath, Rajesh Bindal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/case-details-m-s-bharat-petroleum-corporation-ltd-and-another-v-atm-36959
- **Pages:** 13

## Headnote

Issue for consideration: Whether the High Court was justifi ed in
dismissing the application fi led by the appellant u/Or.VII r.11(d) CPC for
rejection of the subsequent suit fi led 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 fi led by the respondent for possession without claiming
any damages for use and occupation - Subsequent suit fi led only for
claiming damages for use and occupation of the property after expiry of
the lease period - Application u/Or. VII r. 11(d) fi led by the appellantsdefendants 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 diff erent causes of action - There
being diff erent consideration for adjudication, the second suit fi led 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-ininterest of the respondents expired in 1997 - After a prolonged litigation,
the possession was handed over to the respondent after 25 years - First suit
was fi led seeking possession of the property - No claim was made regarding
mesne profi ts - Subsequent suit was fi led claiming damages for use and
occupation of the property from 1998 onwards - Thus, the application fi led
by the appellants for rejection of the plaint was rightly dismissed by the
courts below - Cause of action. [Paras 16, 17]
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

## Text

[2023] 16 S.C.R. 859 : 2023 INSC 1042
859
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 justifi ed in
dismissing the application fi led by the appellant u/Or.VII r.11(d) CPC for
rejection of the subsequent suit fi led 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 fi led by the respondent for possession without claiming
any damages for use and occupation - Subsequent suit fi led only for
claiming damages for use and occupation of the property after expiry of
the lease period - Application u/Or. VII r. 11(d) fi led by the appellantsdefendants 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 diff erent causes of action - There
being diff erent consideration for adjudication, the second suit fi led 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-ininterest of the respondents expired in 1997 - After a prolonged litigation,
the possession was handed over to the respondent after 25 years - First suit
was fi led seeking possession of the property - No claim was made regarding
mesne profi ts - Subsequent suit was fi led claiming damages for use and
occupation of the property from 1998 onwards - Thus, the application fi led
by the appellants for rejection of the plaint was rightly dismissed by the
courts below - Cause of action. [Paras 16, 17]
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 fi led by the appellants/
1
High Court of Judicature at Madras
861
defendants under Order VII Rule 11(d) C.P.C. in the suit2 fi led by the
respondent-plaintiff , was dismissed.
3. Briefl y, the facts as available on record are that the respondentplaintiff 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 eff ect from 01.01.1958 for the
purpose of erecting pump service and fi lling 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, fi rst suit3 was fi led by the
respondent-plaintiff in the year 2006. During the pendency of fi rst suit,the
suit in question was fi led 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 fi led 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 fi rst suit for possession was fi led by the respondentplaintiff in 2006. At the stage of fi ling 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
M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v.
ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]
862
SUPREME COURT REPORTS
[2023] 16 S.C.R.
however, the same was not claimed. It has been specifi cally pleaded in
Paragraph No. XXI in the plaint that the respondent-plaintiff is entitled
to damages for wrongful occupation of the premises by the appellantsdefendants, but still while claiming the fi nal relief, only possession was
sought after removal of the structure,which existed thereon. The fi rst suit
was decreed on 30.10.2010.
5. During the pendency of the aforesaid suit, the respondent-plaintiff
fi led 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 fi rst suit fi led 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 fi rst suit fi led 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 fi led 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 fi led subsequently, the claim of the respondentplaintiff is also barred by law for the reason that in the second suit fi led
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.
863
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 fi led by the appellantsdefendants 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 fi le the fi rst 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 fi led 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 fi led 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 fi ling a separate suit for claiming damages for use and
occupation of the property in dispute, in case in the fi rst 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
M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v.
ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]
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 fi led 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 fi led 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 eff ect 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 fi rst suit fi led by the
respondent-plaintiff was decreed 30.10.2010. During the pendency of the fi rst
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 fi rst suit fi led by the respondentplaintiff , 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
865
suit in question fi led 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 fi rst 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 fi led 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 fi led 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 fi rst suit was fi led by the respondent
for possession, whereas the second suit was fi led 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
fi rst 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 fi rst
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 fi rst 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.
M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v.
ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]
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 fi rst 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 predecessorsin-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
Benefi t 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;
867
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 fi led in the City Civil Court; on
27.11.2009 when the Defendants fi led 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 fi led 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 fi led 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 profi ts was fi led on 24.08.1925.
In the suit, the plaintiff claimed mesne profi ts upto the date of fi ling of the
suit. The suit was decreed in favour of the plaintiff . Future and pendente lite
mesne profi ts 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 profi ts from the date of institution of the fi rst
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 profi ts
where an earlier suit claiming possession and mesne profi ts upto the date of
fi ling 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
M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v.
ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]
868
SUPREME COURT REPORTS
[2023] 16 S.C.R.
profi ts. The provisions of Order 2 Rule 4, indicate that the legislature
thought it necessary to provide specially for joining a claim for mesne
profi ts 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 profi ts can only be brought in respect of profi ts within three
years of the institution of the suit and the date of the cause of action for
mesne profi ts would in many cases be not identical with the original
date of the cause of action for the recovery of possession. Mesne profi ts
accrue from day to day and the cause of action is a continuing one,
and arises out of the continued misappropriation of the profi ts 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 profi ts fi led subsequently to a suit for possession of
the property because the claim for those accrued mesne profi ts 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 profi ts 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 profi ts involves a liability, which accrues on a day- to-day basis.
9
2022 SCC OnLine SC 1161: 2022:INSC: 926
869
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 profi ts
where earlier suit for possession and past mesne profi ts 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 profi ts. The provisions of Order 2 Rule 4, indicate that
the legislature thought it necessary to provide specially for joining
a claim for mesne profi ts 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 profi ts
can only be brought in respect of profi ts within three years of
the institution of the suit and the date of the cause of action for
mesne profi ts would in many cases be not identical with the
original date of the cause of action for the recovery of possession.
Mesne profi ts accrue from day to day and the cause of action is a
continuing one, and arises out of the continued misappropriation
of the profi ts 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 profi ts, in a situation, where an earlier suit for recovery
of possession and for past mesne profi ts had been decided. We notice
that what the Court has essentially held is that but for Order IV Rule
M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v.
ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]
870
SUPREME COURT REPORTS
[2023] 16 S.C.R.
210 of the CPC, as it stood specifi cally providing for joining a claim
for mesne profi ts 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 profi ts can
only be brought in respect of profi ts 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 profi ts 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 profi ts accrue from day-to-day, and the cause of action is a
continuing one. It arises out of the continued misappropriation of the
profi ts, 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 fi rst suit was fi led seeking possession of the property. No
claim was made regarding mesne profi ts. Subsequent suit was fi led 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 diff erent causes of action. There being diff erent
consideration for adjudication, in our opinion, second suit fi led by the
respondent claiming damages for use and occupation of the premises was
maintainable. The application fi led 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 fi led, even as per
the averments in the plaint, the cause of action to fi le suit for specifi c
10 Apparently, there is an error. It should be Order II Rule 4
871
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 fi nd 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
M/S BHARAT PETROLEUM CORPORATION LTD. AND ANR. v.
ATM CONSTRUCTIONS PVT. LTD. [RAJESH BINDAL, J.]