Whether subsequent suit for mesne profits will be barred by O 2 R 2 of CPC?

"Taking into consideration the changes introduced by the present Civil Procedure Code to the old law, there is nothing to indicate that the changes have taken away the force of the old decisions hereinbefore referred to. A claim for mesne profits is not a claim under the same obligation compelling a trespasser to restore possession. A claim for mesne profits is also not based on the same cause of action as the claim for possession. A person may be in wrongful possession but even then may not be obliged to pay mesne profits if he has not received or might not have received with ordinary diligence profits from the property in wrongful possession. The liability to pay mesne profits arises from the profits a person has or might reasonably have made by his wrongful possession. Thus the obligation to pay mesne profits arises from a cause of action completely different from the obligation to restore possession of the immovable property to the rightful owner."

Although the said decision was concerned with whether the second suit was barred under Order II Rule 2 of the CPC, the court did not accept the contention that causes of action for recovery of possession and for mesne profits are the same. The court rejected the contention that where a claim for mesne profits was not included in a previous suit for possession of the property, a second suit for such mesne profits was barred under Order II Rule 2 of the CPC. The view taken by a learned Judge of this Court on 27th May, 1958 remains good law even after sixty years, despite numerous amendments to the CPC.

IN THE HIGH COURT OF CALCUTTA

G.A. No. 102 of 2018 and C.S. No. 152 of 2017

Decided On: 30.01.2019

 Bahubali Promoters Private Limited  Vs.  Shyam Sel & Power Limited

Hon'ble Judges/Coram:

Moushumi Bhattacharya, J.

Citation: 2019(1) RCR(Rent) 386

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