Second Suit Seeking Damages For Illegal Occupation Maintainable After Filing Suit For Possession : Supreme Court

The Supreme Court has held that a suit for possession and suit for claiming damages for use and occupation of the property are two different causes of action. Hence, second suit filed claiming damages for use and occupation of the premises was maintainable after a suit for possession.

A bench comprising Justices Vikram Nath and Rajesh Bindal was considering an appeal challenging the refusal of the trial court (and affirmed by the High Court) to reject the suit under Order VII Rule 11 of the Code of Civil Procedure.

In this case, 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. The first suit for possession was filed by the respondent-plaintiff in 2006, which was decreed in 2010.  The respondent-plaintiff filed the second suit in January 2020 claiming liquidated damages for illegal occupation.

The appellant (Bharat Petroleum Corporation Ltd) contended that the second suit was barred as the claim for damages was not sought in the first suit itself. While reject the appellant's contention, the Supreme Court referred to a judgment delivered by a Full Bench of the Allahabad High Court in Ram Karan Singh v. Nakchhad Ahir (1931)  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.

Reference was also made to a judgment of the Full Bench of Punjab & Haryana High Court in Sadhu Singh v. Pritam Singh ILR (1976) 1 P&H 120 that a suit for mesne profits filed subsequently to a suit for possession of the property is not barred.

The Full Bench judgment of Allahabad High Court in Ram Karan Singh's case (supra) was quoted with approval by the Supreme Court in Indian Oil Corporation Ltd. v. Sudera Realty Pvt. Ltd.2022 LiveLaw (SC) 744 opining that the cause of action claiming mesne profits accrue from day to day and the cause of action is a continuing one.

Following these precedents, the Court held that the second suit was maintainable and dismissed the plea to reject the plaint.

"...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 Court observed.

Senior Advocate V Giri appeared for the appellant.  Senior Advocate S Nagamuthu appeared for the respondent.

Case Title : M/s Bharat Petroleum Corporation Ltd v. ATM Constructions Pvt Ltd.

Citation : 2023 LiveLaw (SC) 1031

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