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mesne profits

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Civil Procedure-Suit filed for recovery of possession and mesne profits-In a previous suit a decree for mesne profits was passed in respect of the same land-Whether cause of action same in both suits-Subsequent suit whether barred under provisions of the Code-Code of Civil Procedure, 1908 (Act 5 of 1908), Order 2 rr. (2) and (3). =The plaintiff-respondent brought a suit against the appel- lant for recovery of possession of certain property and for mesne profits. The plaintiff claimed recovery of possession and mesne profits on the ground that he was the absolute owner of the property described in the plaint and the defendant was in, wrongful possession of the same. In the plaint the plaintiff made reference to a previous suit that had been filed by him and his mother (C.S. 28 of 1950) wherein a claim had been made against the defendant for the recovery of the mesne profits in regard to the same property for the period ending February 1.0, 1950. In the previous suit the mense profits had been decreed. In his written statement in the present suit the defendant appellant raised a technical plea under Order 2 rule 2 of the Civil Procedure Code to the maintainability of the suit. Before evidence was led by the parties the trial court de- cided this preliminary issue raised by the defendant. The trial court held that the suit was barred under 0. 2 r. 2 of the Code. On appeal, the Appellate Court held that the plea of a bar under Order 2 rule 2, Civil Procedum Code should not have teen entertained at all because the pleadings in the earlier suit C.S. 28 of 1950 had not been filed in the present case. Therefore, the Appellate Court set aside the order of the trial Court. Against this order the defendant preferred an appeal which was dismissed by the High Court. The appellant obtained special leave against the judgment of the High Court. Hence the appeal– Held:(i) A plea under Order 2 rule 2 of the Code based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced. It is for this reason that a plea of a bar under 0. 2 r. 2 of the Code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the court the identity of the cause of action in the two suits. In other words a plea under 0. 2 r. 2 of the Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. Without placing before the court the plaint in which those facts were alleged, the defendant cannot invite the court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. On the facts of this case it has to be held that the plea of a bar under 0, 2 r. 2 of the Code should not have been entertained at all by 832 the trial Court because the pleadings in civil suit No. 28 of 1950 were not filed by the appellant in support of this plea. (ii)in order that a plea of a bar under 0. 2 r. 2 (3) of the Code should succeed the defendant who raises the plea must make out (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (ii) that in respect of that cause of action the plaintiff was entitled to more that one relief (iii) that being thus entitled to more than one relief plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed.

PETITIONER: GURBUX SINGH Vs. RESPONDENT: BHOORALAL DATE OF JUDGMENT: 22/04/1964 BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N. HIDAYATULLAH, M. GUPTA, K.C. DAS CITATION: 1964 AIR 1810 1964 SCR (7) 831 ACT: Civil Procedure-Suit filed for recovery of possession and mesne profits-In a previous suit a decree for mesne profits … Continue reading

Equitable set-off–Suit by patnidar against zemindar for possession of land with mesne profits–Decree in favour of patnidar-Claim by zemindar to set off against mesne profits rent, revenue and cesses which accrued after deliv- ery of possession–Maintainability. = Where a patnidar has obtained a decree against his zemindar for possession of resumed chaukidari chakran lands with mesne profits from the date on which the zemindar wrongfully took 783 possession of them, the zemindar is not entitled to deduct by way of equitable set-off from the amount of mesne profits payable by him under the decree, the amounts due to him on account of rent, revenue and cesses for a period subsequent to the date of delivery of possession of the lands inasmuch as the two cross demands do not arise out of the same trans- action. The transaction which led to the plaintiff’s demand for mesne profits resulted from the defendant’s wrongful act as trespasser, while the transaction which gave rise to the zemindar’s demand arose out of the relationship of landlord and tenant and the obligations resulting therefrom.

PETITIONER: RAJA BHUPENDRA NARAIN SINGHA BAHADUR Vs. RESPONDENT: MAHARAJ BAHADUR SINGH AND OTHERS.(Civil Appeals Nos. 68 to 9 DATE OF JUDGMENT: 02/04/1952 BENCH: MAHAJAN, MEHR CHAND BENCH: MAHAJAN, MEHR CHAND AIYAR, N. CHANDRASEKHARA BOSE, VIVIAN CITATION: 1952 AIR 201 1952 SCR 782 ACT: Equitable set-off–Suit by patnidar against zemindar for possession of land with mesne … Continue reading

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