Virender Kumar Garg vs Manju Garg
2012 Latest Caselaw 3049 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                Date of Judgment:08.05.2012

+     CM(M) 409/2012 & CM Nos.6343-44/2012


      VIRENDER KUMAR GARG     ..... Petitioner
                  Through Mr. S.C. Singhal, Adv.

                      versus


      MANJU GARG                                  ..... Respondent
                               Through    None.


      CORAM:
      HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J. (Oral)

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

Code of Civil Procedure (hereinafter referred to as the 'Code') had been

dismissed.

2 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.

3 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.

4 This submission of the petitioner is bereft of force and the

impugned order declining this prayer suffers from no infirmity.

5 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.

6 The impugned order dismissing the prayer made by the petitioner

under Order 2 Rule 2 of the Code suffers from no infirmity.

7 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.

                                          INDERMEET KAUR, J
MAY       08, 2012
A