JUDGMENT Trivedi, J.
1. The following question on reference by a learned Single Judge of this Court has come for decision before this Full Bench.
"Is the plaintiff's suit (No. 16 of 1973) maintainable having regard to the provision of Order 2, Rule 2 of the Civil Procedure Code."
2. Atma Ram Srivastava is the landlord of a certain house let out by him to Sardar Balbir Singh on a monthly rent of Rs. 20/-. The defendant being in arrears of rent for April and May, 1968, his tenancy was terminated by a notice dated 22-5-1968 served on 4-7-1968 by which the defendant was asked to vacate the premises on the expiry of three months from service of notice and payment of two months arrears of rent was demanded, The tenant neither paid the rent nor vacated the premises. On 28-5-1969 Atma Ram Srivastava, opposite party in this revision, filed a suit against him in the Court of the Munsif South, Lucknow (Regular Suit No. 354 of 1969). In that suit he claimed a decree for arrears of rent and mesne profits without claiming ejectment of the defendant Sardar Balbir Singh. In Para. 5 of the plaint the plaintiff specifically reserved his right to file a suit for ejectment of the tenant and on 23-7-1969 he moved an application for leave of the court for filing a suit for ejectment subsequently. On 24-7-1969 the court granted this permission to file another suit subsequently for ejectment of the applicant-tenant.
3. While the earlier suit was pending the landlord-opposite party filed a second suit on 3-2-1970 against the applicant in the Court of Munsif South, Lucknow, (Suit No. 90 of 1970) praying for ejectment and mesne profits which arose subsequent to the filing of the first suit. The plaint of the suit was returned and was eventually filed in the court of the District Judge, Lucknow, as the Munsif lacked pecuniary jurisdiction end was registered there as Suit No. 16 of 1973. In the second suit the landlord claimed a decree for ejectment and mesne profits which accrued subsequent to the earlier puit. Suit No. 16 of 1973 is now pending in the court of the Additional District Judge, Lucknow. In the second suit the defendant raised an objection that the plaintiff not having included the relief of ejectment from the house in the first suit, the subsequent suit was barred by Order 2, Rule 2 of the Civil Procedure Code. The Additional District Judge decided this objection as a preliminary point and held that the cause of action for a suit for possession is different from the cause of action for a suit for arrears of rent and mesne profits on the basis of the terms of Order 2, Rule 4 of the Civil Procedure Code which permitted the plaintiff to combine a claim for mesne profits with a claim for ejectment. The Additional District Judge had further held that quite apart from this the second suit was maintainable and the bar of Order 2, Rule 2 did not operate as the plaintiff had in the first guit reserved his right to file a suit for ejectment later and as the court had passed an order granting him permission to do so. Against the judgment of the Additional District Judge the defendant filed a revision in this Court which coming before the learned single Judge the referring order was made.
4. Order 2, Rule 2 of the Civil Procedure Code is as follows:--
"(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards, sue in respect of the portion so omitted or relinquished.
(3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
5. Order 2, Rule 3 permits the joinder of several causes of action in the same suit by the plaintiff against the defendant or defendants. Order 2, Rule 4 says:
"(4) No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except--
(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof;
(b) claims for damages for breach of any contract under which the property or any part thereof is held; and
(c) claims in which the relief sought is based on the same cause of action;
Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property."
6. The contention for the opposite party-plaintiff is that the second suit was not barred by Order 2, Rule 2, as he had omitted to claim the relief of ejectment in the first suit with the leave of court and was permitted by the court to sue for ejectment afterwards. The main submission, therefore, is that having regard to Sub-rule (3) of Order 2, Rule 2, the second suit is not barred for omission of a relief for ejectment in the earlier suit Alternatively, it is submitted that the bar of Order 2, Rule 2, applies only where the relief claimed in the subsequent suit and the relief claimed in the earlier suit arise from the same cause of action but Order 2, Rule 4, shows that the cause of action ior a suit for recovery of immovable property or possession is not the same as the cause of action for mesne profits or arrears of rent in respect of the seme property. It was, therefore, argued that it was open to the opposite party-plaintiff to sue only for mesne profits in the first suit and to sue for ejectment in the second suit and the bar of Order 2, Rule 2, shall not hit the second suit. For this interpretation of Order 2, Rule 4, reliance was placed by the opposite party on a string of authorities, more particularly on a decision of the Bombay High Court in the case of Shankar Lal v. Ganga Bisen, (AIR 1972 Bom 326) (FB) where, amongst others the observation made was that Order 2, Rule 4 of the Code is an exception to the principle laid down in Order 2, Rules 1, 2 and 3 and that having regard to the language of Order 2, Rule 4, the claim for damages is a distinct and separate cause of action from the cause of action for the recovery of immovable property. As the view taken in this case by the Bombay High Court and in other cases cited for the opposite party appears to be opposed to the view taken by a Full Bench of this Court in Laljimal v Hulasi, (1881) ILR 3 All 660 (FB) followed in Mewa Kuar v. Banarsi Prasad, (1895) ILR 17 All 533 one of the questions which this Bench will be called upon to decide will be whether the view that Order 2, Rule 4, is an exception to Order 2, Rules 1, 2 and 3 and whether a claim for mesne profits and a claim for ejectment from immovable property on the basis of a contract or lease are always based on distinct causes of action and never arise from the same cause of action. Before coming to the alternative plea of the opposite party that the bar of Order 2, Rule 2, does not apply as the cause of action for mesne profits claimed in the first suit and the cause of action for ejectment claimed in the second suit did not arise from the same cause of action but were based on distinct causes of action, I would like to deal with the main submission that the second suit was not hit by Order 2, Rule 2 of the Civil Procedure Code because in the first suit the opposite party had expressly reserved his right to file a suit for ejectment subsequently and had also obtained leave of the court to do so. The Additional District Judge found that in the earlier suit the plaintiff had reserved his right to file a suit for possession later on and this was permitted by the court. The defendant-applicant did not dispute before us that the plaintiff had omitted in the earlier suit to sue for ejectment with the leave of the court. This being the proved and admitted position the second suit was not barred by Order 2, Rule 2, having regard to the provision contained in Order 2, Rule 2 (3) of the Civil Procedure Code for omission to sue for ejectment in the first suit, which was confined only to mesne profits and the question referred to this Court must, on that view of the matter, stand answered without any hesitation in the affirmative. The second and the alternative case argued for the opposite party, however, does not admit of such easy disposal as the terms of Order 2, Rule 4, do not, to my mind, embody an exception to what is laid down in Order 2, Rule 2, of the Civil Procedure Code and do not warrant a wide and sweeping generalisation that the claims for mesne profits and for possession or ejectment from immovable property on the basis of a contract of lease must always and invariably spring from a distinct and separate cause of action.
7. The plaintiff-opposite party relies on the following authorities:--
1. Ponnammal v. Ramamirda Ayyar, ILR 38 Mad 829 = (AIR 1915 Mad 912) (FB).
2. Shankerlal Laxminarayan Rathi v. Gangabisen Maniklal Sikchi, AIR 1972 Bom 326 (FB).
3. Kumara v. Srinivasa, (1888) ILR 11 Mad 213.
4. Madan Mohan Lal v. Lala Sheo Shanker Sahai, (1885) ILR 12 Cal 482 (PC).
5. B. Ram Karan Singh v. V. Nakchhad Ahir, AIR 1931 All 429 (SB).
6. Venugopal Pillai v. Trirugnanavalli Ammal, AIR 1940 Mad 934.
7. Lalessor Babui v. Janki Bibi, (1892) ILR 19 Cal 615.
8. Mewa Kuar v. Banarsi Prasad, (1895) ILR 17 All 533.
9. Ramchandra Adaram v. Lodha Gouri, AIR 1924 Bom 368.
10. Loknath Singh v. Dwarika Singh, AIR 1931 Pat 233.
11. Sris Chandra Nandy of Kasimbazar v. Joyramdanga Coal Concern Ltd., AIR 1942 Cal 40.
12. Radhey Shyam v. Nanak Ram, 1968 All WR (HC) 490.
13. Lalji Mal v. Hulasi, (1881) ILR 3 All 660 (FB).
8. In the case of Shanker Lal v. Gangabisen, AIR 1972 Bom 326 (FB) plaintiff Gangabisen was the owner of a theatre which was leased out by him to Shanker Lal for a period of ten years. The lease had terminated by efflux of time and the lease provided that on failure of the lessee to vacate the theatre on expiry of the period of lease he would be bound to pay damages at a certain rate. The lessee having failed to vacate the premises Gangabisen filed a first suit for damages but no relief was sought in that suit for ejectment of the lessee from the theatre, Subsequently he filed another suit for possesssion. One of the defences raised was that the suit for possession was barred by Order 2, Rule 2, of the Civil Procedure Code because in the earlier suit the plaintiff had failed to include the relief of ejectment or possession. While deciding this question the High Court observed that Order 2, Rule 4, was strongly relied upon on behalf of the plaintiff in order to show that the cause of action for a suit for the recovery of immovable property is different from the cause of action for either mesne profits or damages. With a view to repel the plea of Order 2, Rule 2 of the Civil Procedure Code the Court observed:
"It is clear upon a plain reading of Order 2, Rule 4, that it regards the cause of action or claim for mesne profits or for damages as different from the cause of action for the recovery of immovable property. If it was the same, then there was no need to state the exceptions in Clauses (a), (b) and (c) because Order 2, Rules 1 and 2, make ample provision for the same cause of action. It seems to us, trerefore, that there is the amplest indication in Order 2, Rule 4, that the cause of action for a suit for recovery of immovable property is not the same as the cause of action for damages for breach of any contract under which the property or any part thereof is held."
Having made these observations in para. 22 the Court made the following observations in para. 24 which are pertinent to the present discussion and may be extracted:
"We cannot read Order 2, Rule 4 as entirely divorced from Order 2. Rule 2. No doubt Order 2, Rule 4 is an exception to Order 2, Rule 3 but it does not, therefore, follow that it has nothing to do with Order 2. Rule 2 ............ Thus Order 2, Rule 2, deals with one and the same cause of action. Order 2, Rule 3; on the other hand, deals with several causes of action and makes the contrary provision. It permits the plaintiff to unite several causes of action in one suit under certain circumstances. Where Order 2, Rule 2, deals with the same cause of action and prohibits its splitting, Order 2, Rule 3, provides for the joinder of several causes of action. Therefore, inter alia they deal with two different aspects of the same subject viz., joinder of causes of action. Now, no doubt an exception to Order 2, Rules 2 and 3 is created by Order 2, Rule 4. Its opening part says that no cause of action shall be joined with a suit for the recovery of immovable property. To that extent this provision is an exception to Rule 2 (1) and Rule 2 (3) which respectively enjoin that a plaintiff must include his whole claim in respect of a cause of action and claim all the reliefs he is entitled to in respect of the same cause of action. It is also an exception to Order 2, Rule 3 (1) which permits several causes of action to be joined by the plaintiff against the Same defendant or the same defendants jointly. Clauses (a), (b) and (c) of Order 2, Rule 4 create further exceptions to the general principle laid down in the opening part of Order 2, Rule 4; Order 2, Rule 4, therefore, deals with a specific subject, namely, claims which could be joined in a suit for the recovery of immovable property, and to the extent that special provision is so made on a special topic, its provisions qualify the general provision of both Order 2, Rule 2 and Order 2. Rule 3. In fact, Order 2. Rule 3, is expressly made subject to Order 2, Rule 4 by the use of the words 'save as otherwise provided'. Thus, though Order 2, Rule 4, is in part an exception to the general principles laid down in Order 2, Rule 3, it is also an exception to Order 2, Rules 2 (1) and 2 (3). We cannot regard it as only an exception to Order 2, Rule 3, and completely divorced from Order 2, Rule 2."
In para. 25 the court proceeded to observe:
"Order 2, Rule 2 must, therefore, be read along with Order 2, Rule 4. We have already shown how in Order 2, Rule 4, claims for mesne profits and claims for damages are contrasted and contradistinguished from the cause of action for the recovery of immovable property, and in so far as they are contradistinguished, it is clear that the law regards the two as different claims or causes of action."
After making these preliminary observations the Court held in para. 27 that on a reading of Order 2, Rule 4 it is clear beyond any doubt that claims for damages and claims for mesne profits are regarded as distinct and separate causes of action from the cause of action for recovery of immovable property, and added that Order 2, Rule 4, says that they may be joined together, whereas otherwise they could not be joined together because of the general principle contained in the opening words of Order 2, Rule 4.
8-A. With profound respects I am unable to agree with the view that Order 2, Rule 4, should be read as an exception to Order 2, Rule 2. The learned Judge was quite clearly led to this conclusion, as appears from the reasoning in para. 24 of the report, by the opening words of Order 2, Rule 4, which enjoined that no cause of action shall be joined with a suit for the recovery of immovable property. If Order 2. Rule 4, said this and no more then undoubtedly it could be regarded as an exception to Order 2, Rules 2 (1) and 2 (3), but it provides further that the cause of action for the recovery of immovable property can be joined (a) with claims for mesne profits or arrears of rent; (b) with claims for damages for breach of contract and (c) with claims in which the relief sought is based on the same cause of action. In making the above observations and in its final conclusion that the cause of action for mesne profits and damages and the cause of action for recovery of immovable property are distinct and separate the Bombay High Court did not weigh the implication of Clause (c) of Order 2, Rule 4, which permitted joinder of claims in respect of relief based on the same cause of action with a cause of action for recovery of immovable property. Order 2, Rule 2 (1), enjoins the plaintiff to include the whole of his claim which he is entitled to make in respect of the cause of action which clearly implies that he should include in the claim all such claims he is entitled to make in respect of the cause of action which is the foundation of the suit. In other words, Order 2, Rule 2 (1), requires that all the claims arising out of the same cause of action should be included in the suit and this is permitted by Clause (c) of Order 2, Rule 4, as well. In the same way, Order 2, Rule 2 (3), enjoins that all the reliefs in respect of the same cause of action must be claimed in the same suit and this again has been permitted by Clause (c) of Order 2, Rule 4. It will thus appear that there is no discordance between the provisions contained in Order 2, Rule 2, and those contained in Order 2, Rule 4, of the Civil Procedure Code. If a cause of action or a relief is not based on the same cause of action within the meaning of Clause (c) of Order 2. Rule 4, then it cannot be joined in a suit for recovery of immovable property. But if they are based on the same cause of action then under the exceptions indicated by Order 2, Rule 4, such claims can be joined in a suit for recovery of immovable property. How can, therefore, Order 2, Rule 4, be regarded as out of step with or as an exception engrafted on Order 2, Rule 2 of the Civil Procedure Code is hard to see. Rules 2, 3 and 4 of Order 2 provide for and deal with different topics and were intended to serve different objectives. The objective served by Order 2, Rule 2, was prevention of multiplicity of suits by prohibiting the splitting of claims arising out of the same cause of action. Rule 3 of Order 2 laid down the causes of action which could be joined in the same suit against the same defendant or defendants and Rule 4 of Order 2 prohibited the joinder of causes of action with a suit for recovery of immovable property except as provided in Clauses (a), (b) and (c) of the Rule, Rules 3 and 4 of Order 2, no doubt, operate in the same field as both deal with the question of joinder of causes of action and Rule 3 is expressly made subject to Rule 4 by use of the words 'save as otherwise provided' in Rule 3 but Rule 4 of Order 2 and Rule 2 of Order 2 do not operate in the same field. Rule 4, therefore, cannot be regarded as a proviso or exception to the principle laid down In Order 2, Rule 2, of the Civil Procedure Code. On the other hand, Order 2, Rule 4, is an enabling provision or may be treated as an explanation to Order 2, Rule 2, in that it permits the joinder of certain causes of action enumerated in Clauses (a), (b) and (c) of that Rule with a suit for recovery of immovable property,
9. In the case of Sadhu Singh v. Pritam Singh, (AIR 1976 Punj and Har 38) (FB), a Full Bench of the Punjab and Haryana High Court, Gujral, J., in a separate judgment observed in para, 48 of the report:
"It (Order 2, Rule 4) does not necessarily carry an implication that a claim for mesne profits and a claim for possession of immovable property amount to separate and distinct causes of action, Having regard to the language of Clause (c) of Rule 4 of Order 2 it can be plausibly urged that Clauses (a) and (c) are not really exceptions but are merely explanations of the rule embodied in Rule 2 of Order 2."
With this view I find myself in respectful agreement.
10. There is nothing in the language of Order 2, Rule 4, to imply that a claim for recovery of immovable property and a claim for mesne profits or arrears of rent in respect of the same property shall be deemed to arise out of distinct causes of action. It only provides for the claims of cause of action which can be joined with a suit for recovery of immovable property and, as I said earlier having regard to Clause (c) of Order 2, Rule 4, which permits the joinder of 'claims in which the relief sought is based on the same cause of action' with a suit for recovery of immovable property it is scarcely possible to posit or deduce that the relief of possession or ejectment and the relief of mesne profits must necessarily relate to distinct causes of action; for a claim for mesne profits may fall both, under Clause (a) as well as Clause (c). Similarly, a claim for damages may fall both under Clause (b) and Clause (c) of Order 2, Rule 4 and when that is so the causes of action for both the claims for possession as well as mesne profits/damages will be the same and not distinct. However, the possibility that the claim for mesne profits may fall only under Clause (a) or for damages under Clause (b) and may relate to a distinct cause of action qua the claim for possession and ejectment cannot be overruled. Therefore, Order 2, Rule 4, may cover both kinds of suits: suits in which the claim for recovery of immovable property and claims for mesne profits/damages arising out of the same cause of action may have been combined as well as suits in which similar claims arising from distinct causes of action are combined. To say, therefore, that in enacting Order 2, Rule 4, the legislature gave expression to the intention that the causes of action for possession of immovable property and for mesne profits/ damages are always necessarily distinct is too sweeping and generalised a proposition to which I, with profound respect to the decision of the Bombay High Court in the case of Shankerlal v. Gangabisen, (AIR 1972 Bom 326) (FB) (supra), feel unable to subscribe. In my judgment it cannot be held as a matter of law that the cause of action for a suit for possession or ejectment is necessarily and always distinct from a cause of action for a claim for mesne profits or arrears of rent. The question must always depend on the facts of each case. If the claim for possession is based on title or ownership then, speaking generally, the cause of action may be distinct for such a claim but not so always when it is a suit for ejectment or possession based on a contract of lease.
11. Rule 2 is not prefaced by any such phrase as 'save as otherwise provided', the words which occur in Rule 3 of Order 2, This is also an indication that Order 2, Rule 2, was not intended to be subject to Order 2, Rule 4. That being so, the rule of harmonious construction must be applied to the interpretation of Order 2, Rule 4. Inevitably, this approach also leads to the conclusion that Order 2, Rule 4, permits the joinder of such claims with a claim for recovery of immovable property as arise from the same cause of action and such claims which arise from distinct causes of action can be joined with a suit for the recovery of immovable property only with the leave of Court.
12. Here it is relevant to set out the historical back-drop as it forms almost the sole basis for the Bombay High Court decision in Shankerlal v. Gangabisen (AIR 1972 Bom 326) (FB) (supra) and those of the Madras, Calcutta, Patna, Andhra Pradesh, Madhya Pradesh, Peshawar and Punjab High Courts that the claims for possession of the immovable property and for mesne profits or damages are based on distinct causes of action. It is well known that the earlier Indian Civil Procedure Codes were modelled on the language and pattern of the then existing English law. At Common Law claims for ejectment and mesne profits were always treated as separate causes of action so much so that an action for mesne profits did not even lie until judgment had been recovered in ejectment. This was the position until the Common Law Procedure Act, 1852 was passed when the two actions were enabled to be joined. Adopting the Common Law Rule then prevailing the Indian Code of Civil Procedure, 1850 expressly provided that a claim for recovery of land and a claim for mesne profits arising out of such land shall be deemed to be distinct causes of action, Section 10 of the Code of 1859 read as follows:--
"10. A claim for the recovery of land and a claim for the mesne profits of such land shall be deemed to be distinct causes of action within the meaning of the last two preceding sections."
13. Subsequently, the Judicature Act and the Rules of practice framed thereunder came into force in England and having regard to these changes the Indian Code of Civil Procedure of 1877 (Act No. 10 of 1877) was enacted. In the Code of 1877 Section 10 of the Code of 1859 wag dropped and it did not contain any provision equivalent to it. On the other hand, it contained Section 44 in the following terms:--' "Section 44 Rule a. -- No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of immovable property, or to obtain a declaration of title to immovable property except--
(a) claims in respect of mesne profits or arrears of rent in respect of the property claimed,
(b) damages for breach of any contract under which the property or any part thereof is held, and
(c) claims by a mortgagee to enforce any of his remedies under the mortgage.
Rule 10 ............."
14. Section 42 of this Code was analogous to Order 2, Rule 2 of the Civil Procedure Code of 1908 and Section 43 bore resemblance to Order 2, Rule 3.
15. In the Code of 1882 (Act No. 14 of 1882) Sections 43, 44 and 45 were retained as in the Code of 1877 with minor variation in Section 4s which is not material for the present discussion. When the Code of 1908 was enacted Order 2, Rule 2, was in pari materia with Section 43 of the Codes of 1877 and 1882. There was a minor change in Rule 3 but a highly significant change was brought about in Order 2, Rule 4, which dealt with the same topic as Section 44 of the Codes of 1877 and 1882. The changed form in which Order 2, Rule 4, was enacted can best be appreciated when placed in juxtaposition with Section 44 of the old Codes:
"Section 44, Rule a, -- No cause of action shall unless with the leave of the court, be joined with a suit for the recovery of immovable property, or to obtain a declaration of title to immovable property, except--
(a) claims in respect of mesne profits or arrears of rent in respect of the property claimed.
(b) damages for breach of any contract under which the property or any part thereof is held, and
(c) claims by a mortgagee to enforce any of his remedies under the mortgage.
Rule b. -- No claim by or against an executor, administrator or heir as such, shall be joined with claims by or against him personally, unless the last-mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator or heir."
"Order 2, Rule 4. -- No cause of action shall, unless with the leave of the court, be joined with a suit for the recovery of immovable property, except
(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof;
(b) claims for damages for breach of any contracts under which the property or any part thereof is held; and
(c) claims in which the relief sought is based on the same cause of action:
Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property."
16. It will be noticed at once that in the Code of 1908 Clause (c) of Section 44 of the old Codes was substituted by a new clause which permitted 'claims in which the relief sought is based on the same cause of action' to be joined in a suit for recovery of immovable property, The addition of this new clause in Order 2, Rule 4, completely explodes the theory that claims for recovery of immovable property and claims for mesne profits or arrears of rent were intended by Order 2, Rule 4, to be deemed to arise from different causes of action. Section 44, Rule (a) of the Code of 1882 came in for interpretation by the Privy Council in the case of Ganesh Dutt v. Jewach, (1904) ILR 31 Cal 262 (PC). In that case the cause of action was refusal of the defendants to recognise the right of the plaintiff, a widow, to succeed to her deceased husband's share in the family property on her husband's death. It was contended that Section 44, Rule (a) barred the claim to recover both movable and immovable property, the subject of partition in the same suit, Their Lordships said:
"The rule i.e., Section 44, Rule (a) is not very happily expressed, but there can be nothing irregular in seeking to recover in one suit immovable and movable property, if the cause of action is the same in respect of both."
17. By these observations the Privy Council expressed the view that the cause of action for recovery of movable and immovable property arising from the same partition could not be treated as based on distinct causes of action with reference to the language of Section 44, Rule (a). Their Lordships adverse criticism of Section 44, Rule (a) plainly meant that the provision as to mesne profits, rent or damages should not have been stated as an exception but it should be taken as a proviso or explanation. Being stated as an exception it tended to create the wrong impression that claims for possession and mesne profits were to be treated as based on distinct causes of action. But the intention which should have been expressed in Section 44 Rule (a) was that claims for mesne profits, rent or damages arising from the same cause of action were not within the rule. It is the aforesaid criticism of the Privy Council in Ganesh Dutt v. Jewach, (1904) ILR 31 Cal 262 (PC) (supra) that appears patently to have led to the new Clause (c) of Order 2, Rule 4 and this clause provides an unmistakable pointer to the legislative intent, if ever there was need for one, that claims for mesne profits, rent or damages and claims for recovery of immovable property, if they arise from the same cause of action, could be joined in the same suit, thereby removing permanently the doubt that such claims, by reason of Order 2, Rule 4, should be deemed to be based on different causes of action. The same legislative intention was expressed also by dropping of Section 10 from the Codes of 1877 and 1882 and the absence of an analogous provision in Order 2 of the Code of 1908.
18. Section 43 of the old Codes and Order 2, Rule 3 permitted the joinder of several causes of action in the same suit against the same defendant or defendants. It seems to have been realised that such a wide provision may in practice be found irksome and lead to inconvenience in trial when claims for possession of immovable property or declaration of title to such property are joined with other claims connected with such property; for claims for recovery of immoveable property invariably involve determination of title in contentious and cantankerous litigation and this may tend to make the proceedings complicated. The object and reason underlying Section 44 of the old Codes appeared to have been the avoidance of complexity in litigation relating to immovable property. It is worthy of note that Section 44 forbade joinder of causes of action, except with the leave of the Court, with a suit not only for recovery of immovable property but also with a suit to obtain declaration of title to immoveable property. It is, therefore, clear that the object of this provision was not to indicate that claims for recovery of immovable property and mesne profits should be treated as arising out of distinct causes of action but they regulated joinder of causes of action with a suit relating to immovable property from practical considerations and it is wrong to theorise otherwise.
19. To revert to the discussion of Shankerlal v. Gangabisen, (AIR 1972 Bom 326) (FB) in para 27 of the report are contained the twin reasons which induced the ratio of the case that claims for recovery of immoveable property or claims for mesne profits or damages are separate and distinct causes of action. The first reason which weighed with Kotwal, C. J. was; (1) Order 2, Rule 4, mentions 'a suit for recovery of immovable property' contrapuntally with 'claims for mesne profits' or 'claim for damages' and from this inference was drawn that it necessarily implied that they are separate and distinct causes of action. With profound respects, the placing of various clauses in Order 2. Rule 2, referred to by the learned Judge was a very superficial and not an unerring test. Secondly, the learned Judge assumed that what was made explicit in Section 10 of the Code of 1859 was implicit in the language of Order 2, Rule 4. The learned Judge observed:
"Thus, what was enacted in the Code of 1859 is in the present Code assumed by the law itself. It was not considered necessary to say so explicitly. The whole basis of assumption of Order 2, Rule 4, is that they are two separate and distinct causes of action. If it were necessary to go as far as that, we would say that the law has read that fiction of Section 10 of the Code of 1859 into Order 2, Rule 4,"
This, to my mind, is the basic error in approach in the case of Shankerlal v. Gangabisen (supra). There was no warrant in the language of Order 2, Rule 4, or in any other provision of Order 2 to justify the assumption that a suit for recovery of immovable property and a claim for mesne profits or damages are separate and distinct causes of action. In fact there was a clear indication when Section 10 of the Code of 1859 was dropped from the Codes of 1877 and 1882 that the Legislature did not intend any more to continue the legal fiction which was incorporated in Section 10 and by which claims for recovery of immovable property and claims for mesne profits and damages were deemed to be distinct causes of action. The intention of the Legislature must be deduced from the plain language of the Statute and it is not permissible to do so from any postulates or assumptions. Such a deduction is permissible only from an unequivocal provision in the Statute. That, however, is not the case here since after dropping of Section 10, Order 2, Rule 2, does not lay down in terms that the two causes of action relating to aforesaid claims will be deemed to be distinct I am unable to discover any sound basis for the ratio in Shankerlal v. Gangabisen and am respectfully of opinion that it was not correctly decided and was against the weight of authority. Thirdly, the case of Shankerlal is clearly distinguishable because the first suit was filed for damages and the second suit for recovery of possession of immovable property based on title and not on the contract of lease. The second suit was resisted on the plea that the relief of possession was barred by Order 2, Rule 2, as that claim was not included in the earlier suit. This is clear from the observations contained in para. 29 of the report which may be extracted below:
"Now, it is patent upon these pleadings contained in the two plaints that the causes of action in the two suits were radically distinct and separate. In the first suit, the plaintiff alleged that the term of the lease having determined, Clause 7 came into operation. ...... Whatever was the claim, whether for damages or for rent, it was a claim under the contract between the parties dated 20-1-1945. ...... But the claim for possession in the subsequent suit was not a claim under the terms of the contract at all. It was a claim made by the plaintiff on the basis of his own title as the owner of the property. The plaintiff could claim possession under two titles, (1) as a lessor under the contract of lease and (2) as the owner of the property claiming title to it as such. ...... But the plaintiff in the subsequent suit did not sue upon the contract but he sued upon his general title as the owner of the property."
It is in the background of these facts that the Bombay High Court held that the claim for damages and the claim for possession were distinct and separate causes of action. But this is not so in the instant case. Here, Atma Ram Srivastava had filed a suit for arrears of rent and mesne profits on the basis of contract of lease and in the second suit also he had claimed ejectment of the tenant on the basis of contract of lease and he had not sued for possession on the basis of title. Therefore, in any event, the decision in Shankerlal v. Gangabisen (supra) cannot serve as an authority for a case like the present. In Shankerlal's case the Court was not concerned with the question as to whether the claim for arrears of rent or mesne profits and a claim for ejectment arising from the contract of lease were based on the same or distinct causes of action.
20. Before proceeding to examine the other authorities relied upon by the opposite party I would first like to refer to the cases which have taken the view that the claim for mesne profits or arrears of rent and the claim for ejectment based on a contract of lease arise out of the same cause of action and it is these cases which are directly in point.
21. In the case of Lalji Mal v. Hulasi, (1881) ILR 3 All 660 (FB) under the terms of a mortgage the mortgagee was entitled to enter into possession of the mortgaged property. The mortgagor refused to deliver possession; whereupon the mortgagee sued him for possession on the basis of contract. After the decree he filed another suit against the mortgagor to recover the mesne profits of the estate which had accrued in the period prior to institution of the first suit. The second suit was defended on the ground that it was barred by Section 43 of the Code of 1877, which was analogous to Order 2, Rule 2. The argument on behalf of the mortgagee was that the causes of action for possession and mesne profits were not the same but were distinct having regard to Section 44, Rule (a) of the Code. This argument was rejected and it was held that the claim for mesne profits which accrued upto the date of institution of the suit i.e., the claim for possession and mesne profits and the claim for recovery of immovable property based on the same contract arose from the same cause of action and the claim for possession and mesne profits having been omitted from the first suit the bar of Section 43 operated. Spankie, J., observed in this connection;--
"Certainly the claim for mesne profits up to the date of suit could have been joined with the claim to recover the immoveable property. ............ Section 43, Rule (a), seems clearly to govern the question, for if the original plaintiff was at all entitled to possession as claimed in the suit of the 24th August, 1878, he was entitled to all the mesne profits up to the date of suit. They form really a part of the claim which he was entitled to make in respect of the cause of action arising out of the breach of contract to put him in possession of the land. Under the terms of the first paragraph of Section 43 of the Code every suit shall include the whole of the claim, ...... If the claim for mesne profits prior to suit was not made in the original suit in 1878, it cannot now be made in regard to that period."
It was further held by Spankie, J., that a separate suit is permissible for mesne profits accruing between the institution of the first suit and the execution of the decree therein. In other words, it was held that the subsequent suit for future mesne profits is not barred. Straight, J., also held that the claims to possession and mesne profits were in respect of one and the same cause of action, namely, the breach of the contract to give possession. The same learned Judge further made the observation:
"It may well be that in some cases a claim to mesne profits would, as contemplated by Section 44 of X of 1877, amount to a cause of action distinct from that on which a suit for the recovery of immovable property or for declaration of right to immovable property might be founded. But in the present instance the possession and mesne profits were so mixed up and involved with one and the sama common cause, namely, the non-delivery of possession, that they must be taken as constituting 'the whole claim the plaintiffs were entitled to make in respect of the cause of action' on which the suit was instituted in August, 1878."
22. In a nutshell the decision in the case of Lalji Mal wag that claims for ejectment or possession and for mesne profits arising out of breach of contract are based on the same cause of action and not distinct causes of action. The possibility that there may be some cases in which a claim for mesne profits may amount to a cause of action distinct from that on which a suit for recovery of immovable property as contemplated by Section 44 is based was not overruled. But there was unequivocal decision that this was not so when the cause of action for mesne profits and ejectment or possession arose out of breach of contract as in the instant case.
23. In Mewa Kuar v. Banarsi Prasad, (1895) ILR 17 All 533 the plaintiff sued for ejectment upon forfeiture and also for rent in respect of the same property up to the date of alleged forfeiture, Having obtained a decree he subsequently brought a separate suit for mesne profits including the period from the date of forfeiture to the date of institution of the former suit. It was held, relying on the cases of Lalji Mal v. Hulasi, (1881) ILR 3 All 660 (FB) (supra) and Venkoba v. Subbanna, (1888) ILR 11 Mad 151, that the claim for past mesne profits in the second suit was barred by Section 43 of the Civil Procedure Code as the claim for ejectment in the first suit and the claim for mesne profits, which had accrued due upto the filing of the first suit, arose out of the same cause of action.
24. In Venkoba v. Subbanna, (1888) ILR 11 Mad 151 the plaintiff brought a suit for possession of certain land and obtained a decree for possession. Subsequently he brought another suit to recover mesne profits for the same land which had admittedly accrued due by the time of institution of the first suit. It was held that the claim for possession in the first suit and the claim for mesne profits in the second suit arose out of the same cause of action and the subsequent suit was barred by Section 43,
25. In Sheo Sunkur Sahoy v. Hridoy Narain, (1883) ILR 9 Cal 143 the defendant executed a lease in favour of the plaintiff in the year 1282 F. speculating that the plaintiff shall remain in possession of the property leased from 1283 to 1293 F. at a fixed rent. The possession of the leasehold property not having been delivered to the plaintiff a suit was brought to recover possession and a decree was passed in his favour in 1879. In 1880, corresponding to 1289 F. The plaintiff brought another suit against the defendant to recover damages for profits accrued for the years 1284,1285 and 1286 F. It was held that the plaintiff should have included in the first suit claim for damages for the years 1284 and 1285 F. and the second suit for recovery of damages for those years was barred by Section 43 but it was not barred for future damages for the 1286 F. The decision implied that the claim for ejectment or for possession of immovable property and claim for past mesne profits arise out of the same cause of action but claim for ejectment or possession and claim for future mesne profits have separate and distinct causes of action.
26. Similar view was expressed by the Privy Council in the case of Madan Mohan Lal v. Lala Shed Shanker Sahai, (1885) ILR 12 Cal 482 (PC). In that case the defendant executed a lease of certain land in favour of the plaintiff for a term of 11 years beginning from 1283 F. to the close of 1293 F. at a fixed rent. The plaintiff then brought a suit for possession of the land on the basis of the lease and obtained a decree for possession in August, 1876. In 1879 he brought a second suit against the defendant for damages according to the terms of the lease for the year 1283 F. for which he obtained a decree. Again in 1880 he brought another suit for damages sustained owing to his being kept out of possession for the years 1284, 1285 and 1286 F. The claim in the suit was resisted on the ground that it was barred by Section 43 of Act 10 of 1877. The High Court held that the claim for mesne profits for 1284 and 1285 F. was barred by Section 43 as the same arose out of the same cause of action but the claim for future mesne profits i.e., for 1286 F. was not barred. This judgment of the High Court was upheld by the Privy Council.
27. In the case of Ganeshi Lal v. Bansi Dhar, (AIR 1933 All 84) the plaintiff took a mortgage of certain house from the defendant. In order to secure payment of interest due under the mortgage he leased back the house to the mortgagor with the stipulation that if there was a default in the payment of interest for three years consecutively, the mortgagee was entitled to evict the mortgagor. The rent not having been paid he sued the mortgagor for arrears of rent but did not ask for possession though entitled under the lease to do so. He subsequently sued for possession of the house. It was held that the subsequent suit for possession was barred as the cause of action for possession of the house by eviction of the mortgagor had accrued in his favour When he brought the prior suit for rent and that the claims in the two suits arose from the same cause of action. It will be noticed that the claim for possession as well as for rent were based on a contract of lease as in the instant case and the claim for possession was not based on title.
28. In the case of Saghir Hussain v. Tayab Hasan, (AIR 1940 All 524) the defendant executed a mortgage by conditional sale in favour of the plaintiff but possession of the mortgaged property was not delivered to the plaintiff whereupon he brought a suit for recovery of possession which was decreed along with mesne profits for three years. Subsequently he filed another suit for mesne profits which was dismissed as barred by Order 2, Rule 2. It was held in that case that if a person is wrongfully kept out of possession of immovable property he is entitled to sue for possession and for mesne profits and under the provisions of Order 2, Rule 2 (3) he is bound to include both claims in one suit. If he sues only for mesne profits he cannot in a subsequent suit sue separately for possession. Similar view was taken by the Peshawar High Court in the case of Mohd. Yunus v. Mt. Jahan Sultan, (AIR 1942 Pesh 9) in which it was held that where a plaintiff sues for mesne profits when a claim for possession is also open to him the subsequent suit for possession is barred.
29. In the case of Jai Narain v. Syed Ali Murtaza, (AIR 1951 Pat 190) the defendant was a sub-tenant of the plaintiff. The latter gave him a notice to quit and on non-compliance of the notice brought a suit for recovery of arrears of rent only till the date of suit. The suit was decreed. Then he brought a second suit for possession. It was held that the second suit was barred by Order 2, Rule 2 as the plaintiff had failed to claim a relief for ejectment of the defendant on the ground of termination of tenancy in his previous suit for rent. The two causes of action were held to be the same and the plaintiff could, not by his own choice be permitted to defeat the provisions of Order 2, Rule 2 of the Civil Procedure Code.
30. This long line of decisions commencing from the Full Bench decision in Lalji Mal v. Hulasi, (1881) ILR 3 All 660 (FB) (supra) and Mewa Kaur v. Banarsi Prasad, (1895) ILR 17 All 533 (supra) has consistently taken the view that the cause of action for a claim for possession of immovable property by eviction of the defendant on the basis of contract of lease and a claim for past arrears of rent or mesne profits arise out of the same cause of action and not distinct causes of action. In my judgment the majority decision of the Full Bench of the Bombay High Court in the case of Shankerlal v. Gangabisen, (AIR 1972 Bom 326) (FB) (supra) in so far as it laid down a general proposition that claims for mesne profits and for possession of immovable property having regard to the language of Order 2, Rule 4 of the Civil Procedure Code arise from separate and distinct causes of action does not contain a correct statement of law and is no authority for a case in which the plaintiff brought a suit for arrears of rent and for ejectment or possession of immovable property by defendant's eviction on a contract of lease. Such a suit must be decided with reference to the ratio of this court in Lalji Mal v. Hulasi and Mewa Kuar v. Banarsi Prasad (supra). The majority decision in Shankerlal v. Gangabisen (Supra) should be regarded as applicable to those cases only where the claims for mesne profits and for possession of immovable property are based on title as distinct from breach of a contract of lease. It is in this way that the decision in Mewa Kaur v. Banarsi Prasad and in the case of Shankerlal by the Bombay High Court ought to be reconciled and they do not, as indicated above, pose any conflict. I have already expressed my dissent from the majority view in the case of Shankerlal that Order 2, Rule 4 is not an exception to Order 2, Rule 2 of the Civil Procedure Code and that the latter provision should be read only as an explanation or as an enabling provision.
31. I turn now to consideration of the other authorities besides Shankerlal's case on which the opposite party relied in support of the proposition that on the terms of Order 2, Rule 4 of the Civil Procedure Code claims for mesne profits and for recovery of immovable property arise out of different causes of action.
32. In the case of Lalessor Babui v. Janki Bibi, (1892) ILR 19 Cal 615 the plaintiffs instituted a suit for recovery of possession of certain immovable property but did not join with it a claim for mesne profits and obtained a decree for possession in 1888. Subsequently they brought a suit for mesne profits for the years 1292 to 1295 Fasli. The District Judge dismissed the claim for mesne profit for the period anterior to the date of institution of the suit for possession relying on Venkoba v. Subbanna, (1888) ILR 11 Mad 151 and Laiji Mal v. Hulasi, (1881) ILR 3 All 660 (FB). The court held relying on Mon Mohun Sirkar v. Secretary of State for India in Council, (1890) ILR 17 Cal 968 and the decision of the Privy Council in the case of Madan Mohan Lal v. Lala Sheosanker Sahai, (1885) ILR 12 Cal 482 (PC) that claims to recover possession of immovable property and for mesne profits are distinct in themselves.
33. It is not clear from the report which contains very brief statement of facts whether the claim for possession was based on title or contract of lease. This decision was based on a Full Bench ruling of the Calcutta High Court in Kishori Lal Roy v. Sharut Chunder Mazumdar, (1882) ILR 8 Cal 593. That case was based on the practice then prevailing in the Calcutta High Court and the terms of Section 10 of the Code of 1859 which expressly provided that claims for mesne profits and for recovery of possession of immovable property shall be deemed to be distinct causes of action. The Full Bench in the case of Kishori Lal Roy referred to the rule of the old Sadar Court dated 15-6-1849 which expressly permitted a claim for recovery of immovable property to be made in a subsequent suit after claim for mesne profits had been decreed in an earlier suit. By this rule of 15-6-1849 the old Sadar Court of Calcutta cancelled an earlier rule contained in para. 6 of Circular Order No. 29 of 11-6-1839 which enjoined that in action for real property mesne profits shall be included in the amount at which the suit is laid. In the case of Lalessor Babui (1892) ILR 19 Cal 615 (supra) the court erroneously took the view that there had been no alteration of the law in this respect between Section 10 of Act No. 8 of 1859 and the Code of 1882. In this remark and in following the case of Kishori Lal Roy v. Sharut Chunder Mazumdar (supra) the learned Judges slurred over the fact that Section 10 had been dropped in the subsequent Codes of 1877 and 1882 and, therefore, the decision in Kishori Lal Roy's case, which was based on the practice of the court and the law prevailing under Act No. 8 of 1859, no longer holds the field. In deciding the case in Lalessor Babui the Court gave no reasons at all for dissenting from Lalji Mal v. Hulasi, (1881) ILR 3 All 660 (FB) (supra) and, lastly, their decision was not in accordance with the Privy Council judgment in Madan Mohan Lal v. Lala Sheosanker Sahai. (1885) ILR 12 Cal 482 (PC) already adverted to. The decision in Lalessor Babul's case, therefore, is no authority for the interpretation of the provisions contained in Order 2, Rule 2 of the Code of 1908.
34. In Ponnammal v. Ramamirda Aiyar, ILK 38 Mad 829 = (AIR 1915 Mad 912) (FB) it was held that a claim for possession and a claim for mesne profits are separate causes of action and have always been so treated in the Code of Civil Procedure. In the first place, this case is distinguishable as there the claim for possession was based on title and not on a contract of tenancy, as here. Besides, the decision was influenced by chronology particularly the fact that Section 10 of the Code of 1859 expressly provided that a claim for recovery of possession and a claim for mesne profits arising out of such land should be deemed to be distinct causes of action and the Common Law rule whereunder claims for ejectment and mesne profits were treated as separate causes of action before the Common Law Procedure Act of 1882. While the Court took note of the fact that Section 10 was dropped out and replaced by Section 44 of the Code of 1877 it took the view that the effect was the same with which with profound respects, I differ for reasons already stated earlier in detail. The learned Judges did not take note of the fact that in the Code of 1877 and the subsequent Codes there was no provision reflecting the intention underlying Section 10 or providing that the two claims in question shall be deemed to arise out of different causes of action. It is this decision of the Madras High Court which seems to have influenced a number of decisions in various High Courts in this country in holding that a claim for possession and a claim for mesne profits are separate causes of action. But the main reason for the ratio of this case was the unwarranted postulate that in spite of dropping out of Section 10 of the Code of 1859 from the subsequent codes there was no departure from the Legislative intent and that these two claims must always continue to be treated as separate under the subsequent codes including the Code of 1908. This is an interpretation, to my mind, wholly unacceptable for reasons already detailed. Besides reliance in the case of Ponnamal was placed on an earlier Madras case Tirupati v Narasimha, (1888) ILR 11 Mad 210. No reasoning was given in the judgment of that case for the view that the causes of action for claims for mesne profits and possession are distinct and separate and the only basis appears to be the decision of the Calcutta High Court in the case of Monohur Lall v. Gouri Sunkur, (1883) ILR S Cal 283. That case was decided with reference to Act No. 8 of 1859 which contained Section 10 and yet their Lordships deciding Tirupati's case did not take note of the fact that in the Code of 1877 Section 10 had been dropped and remarked:
"We do not consider that the difference in the language of Section 43 of the present Act and Sections 7, 9 and 10 of Act VIII of 1859 warrants the appellant's contention."
What is more surprising is that in (1888) ILR 11 Mad 210 no reference was made to the earlier decision of the same Court in Venkoba v. Subbanna, (1888) ILR 11 Mad 151. As already pointed out in a different context, it was held in Venkoba's case that the plaintiff having omitted to claim mesne profits in the earlier suit for possession the same relief was barred by Section 43 in the subsequent suit on the ground that the two claims were founded on the same cause of action. The foundation for the ratio of the Full Bench of the Madras High Court in the case of Ponnamal (AIR 1915 Mad 912) (FB) (supra) would, therefore, appear to be highly fragile.
35. Reference was then made to the case of Venugopal Pillai v. Thirugananyalli Animal, (AIR 1940 Mad 934). It was held in that case that a subsequent suit for mesne profits was not barred by Order 2, Rule 2, even if the earlier suit was confined to the relief of possession. This decision was based on the case of Ponnamal v. Ramamirda Aiyar, ILR 38 Mad 829 = (AIR 1915 Mad 912) (FB) and was contrary to the view of the Allahabad High Court expressed in Mewa Kuar v. Banarsi Prasad, (1895) ILR 17 All 533. 36. In the case of Loknath Singh v. Dwarika Singh, (AIR 1931 Pat 233) it was held that the cause of action for ejectment is distinct from the cause of action for mesne profits. In that case the plaintiff brought a suit for mesne profits only and did not sue for recovery of possession. The suit was resisted on the ground that claim for mesne profits was not maintainable without a prayer for recovery of possession. It was in this context that it was held that the causes of action for mesne profits and ejectment are distinct and the question whether the subsequent suit would be barred by Order 2, Rule 2, Civil Procedure Code for ejectment neither arose nor was considered and at page 234 it was observed:
"If the contention of the defendants is correct, the plaintiff would only be not entitled t'o bring a suit for ejectment under Rule 2, Clause (2), Order 2 but that to my mind does not debar him from bringing a suit for ejectment in future." Indeed the court did not pronounce itself definitely on the question as to whether claims for mesne profits and possession arise out of the same cause of action or separate causes of action and left the question open as will appear from column 2 of page 233:
36-A. In the case of Sris Chandra v. Joyramdanga Coal Concern, (AIR 1042 Cal 40) the Calcutta High Court held that claims for possession, mesne profits and arrears of royalty are separate and distinct causes of action. This decision was based on the case of Lalessor Babui v. Janki Bibi (1892) ILR 19 Cal 615 (supra), which for reasons already set out cannot be said to have been correctly decided.
37. Reliance was next placed on a Full Bench case; Sadhu Singh v. Pritam Singh, (AIR 1976 Punj and Har 38). The majority judgment delivered by Sandha-walia, J., took the view that the causes of action for possession of immovable property and mesne profits were distinct and a subsequent suit for mesne profits was not barred by Order 2, Rule 2. Gujral, J., who wrote a separate dissenting judgment, expressed the view that Order 2, Rule 4, was not intended to provide an exception to Order 2, Rule 2, but was to be taken as an explanation only and that a suit for recovery of mesne profits would be barred if in the earlier suit for recovery of possession of immovable property that relief is not claimed and that the cause of action for recovery of immovable property and for recovery of mesne profits arising therefrom is the same. With profound respect's the view expressed by Gujral, J., in the minority judgment provides a correct statement of law and not the majority judgment. Apart from this the ratio of the decision was distinguishable as appears from the narration of facts. The majority judgment was based on considerations of stare decisig and apprehensions of hardship being caused from a technical approach. Besides, it was influenced by the historical background that under the English Common Law claims for ejectment and for mesne profits were always treated as based on separate causes of action so much so that action for mesne profits did not even lie until judgment had been received in the ejectment suit and by the provision contained in Section 10 of the Code of 1859 but the basic error in the approach of the majority judgment appears to be this that it took the substituted provision of Section 44 contained in the Code of 1877 to be in Pari Materia with Order 2, Rule 4, Relevant observations find place in para. 4 at page 40 of the majority judgment and may be extracted:
"As a result, therefore, Section 10 of the earlier Code quoted above was substituted by Section 44 of the Code of Civil Procedure, 1877 (which is in pari materia with Order 2, Rule 4 of the present Code of Civil Procedure, 1908)."
In observing that Section 44 of the Code of 1877 was in pari materia with Order 2, Rule 4 of the Code of 1908 Clause (c) of Order 2, Rule 4, which permits joinder of a claim "when the relief sought is based on the same cause of action", was completely overlooked. In view of Clause (c) it could not be said that Section 44 and Order 2, Rule 4, were in pari materia. In fact they were not so at all and if attention of the Court had been drawn to Clause (c) perhaps the majority judgment would have been different. Apart from this, the decision of the Full Bench of the Punjab and Haryana High Court in the aforesaid case is an authority for the facts it dealt with and is clearly distinguishable; for the first suit in that case was filed by Pritam Singh for possession of immovable property on the basis of title on the ground of wrongful and unauthorised occupation thereof by the appellant and the second suit was filed only for recovery of mesne profits or damage for illegal use and occupation from the original date of unauthorised occupation. As the first suit was not based on a contract of lease but on title the case cannot be applied for deciding the instant case in which the suit for ejectment was based not on title but on the contract of tenancy and this Court in the cases of Lalji Mal and Mewa Kuar (supra) had decided that claims for ejectment on the basis of contract of lease and for mesne profits arise out of the same cause of action. The same view has been taken by the Calcutta High Court in the case of Sheo Shunkur Sahoya v. Hirdoy Narain, (1883) ILR 9 Cal 143, by the Privy Council in the case Madan Mohan Lal v. Lala Sheosanker Sahai, (1885) ILR 12 Cal 482 (PC) and by the Patna High Court in the case of Jai Narain v. Syed Ali Murtaza, (AIR 1951 Pat 190).
38. Learned counsel for the opposite party also referred to Rangamma v. Venupurnachandra Rao, (AIR 1966 Andh Pra 325). It was held in that case that a cause of action for recovery of immovable property and a cause of action for mesne profits of the property are distinct and separate. This case is also distinguishable as the suit for possession in that case was based on title and not on the contract of lease. Besides, it was based on the case of Ponnamal, AIR 1915 Mad 812 (FB) (supra) and Ram Karan v. Nakchhad, (AIR 1931 All 429). I have already stated reasons why I consider that the decision in the Madras Full Bench case of Ponnammal is not correct but I shall shortly advert Lo the decision of this Court in the case of Ram Karan. I would like to add that the case of Rangamma (supra) was distinguishable for in that case the suit for possession was based on title and not on a contract of tenancy as in the instant case. Therefore, it is not an authority for a case such as the present one.
39. Lastly, coming to the case of B. Ram Karan v. Nakchhad, (AIR 1931 All 429) in that case the plaintiffs instituted a suit lor possession of immovable property in 1925 treating the defendants as trespassers. In the plaint they claimed mesne profits only upto the date of institution of the suit. The suit was decreed and possession was obtained in April, 1927, Thereafter they brought another suit for recovery of mesne profits from 24th August, 1925, the date of institution of the first suit till 1st April, 1927, the date on which they had obtained possession. It was pleaded in defence that the claim was barred by Order 2, Rule 2, Civil Procedure Code. The Court held that the second suit was not barred by Order 2, Rule 2. There is a preponderance of authority in favour of the view that the causes of action for recovery of possession of immovable property and for future mesne profits i.e., mesne profits accruing due after institution of the first suit for possession, are distinct and separate and having held so it was not necessary for the court of decide whether the causes of action for recovery of possession of immovable property and for mesne profits are always distinct having regard to the terms of Order 2, Rule 4. But still Sulaiman, Ag. C. J., who decided the case, made certain observations in passing which are, to my mind, in the nature of obiter and in any case they apply to such suits for recovery of possession of immovable property only as are based on title and have no bearing on suits for possession based on contract of tenancy or lease. This is clear from observations contained in column 1 at page 432:
"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. ............ Mesne profits accrue from day to day and the cause of action is a continuing one, and arises out of the continued misappropriation of the profits to which the plaintiff is entitled."
Besides, the decision was based on the Full Bench case of the Madras High Court in Ponnammal (AIR 1915 Mad 912) (FB) (supra) on which I have already recorded my comments. Further, the learned Judge did not lay down that the cause of action for recovery of possession and the cause of action for recovery of mesne profits must invariably and unnecessarily be distinct as appears from the following remarks contained in the game column.
"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 profits."
Just as it cannot be laid down that the cause of action for recovery of possession oi' immovable property and the cause of action for recovery of mesne profits are not necessarily distinct in the same way it cannot be declared that the cause of action for recovery of possession and the cause of action for recovery of mesne profits are necessarily and always the same and identical and it seems to me that on the terms of Order 2, Rule 4, it cannot be laid down as a matter of law that the cause of action for recovery of immovable property and the cause of action for recovery of mesne profits and damages of arrears of rent are always separate and distinct. If must always be a question of fact depending on the peculiar facts of each case as to whether the cause of action for recovery of possession of immovable property and the cause of action for recovery of mesne profits or damages are the same or distinct, the question being determined in each case with reference to the accepted meaning of the term 'cause of action' and the tests laid down by authorities. These tests were laid down by the Privy Council in the case of Mohammad Khalil Khan v. Mahbub Ali Mian, (AIR 1949 PC 78) which defined 'cause of action' broadly as meaning every fact which would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment and declared that the correct test in cases falling under Order 2, Rule 2 will be whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit and if the evidence to support the two claims is different then the causes of action are also different. The proposition that claims for ejectment or recovery of possession of immovable property and for mesne profits are always based on distinct causes of action is a wrong proposition of law. I have already referred to a series of authorities commencing from the cases of Lalji Mal and, Mewa Kuar (1881) ILR 3 All 660 (FB) and ((1895) ILR 17 All 533) (supra) which consistently took the view that a claim for recovery of possession of immovable property based on a contract of lease and a claim for past mesne profits i.e., those which accrued due upto the filing of the suit, are based on the same cause of action. It is also well-settled by precedents that a claim for recovery of immovable property whether based on a contract of lease or title and a claim for recovery of future mesne profits i.e., mesne profits accruing due after institution of the suit for recovery of possession, are not based on the same cause of action but arise from distinct causes of action (see Ram Karan v. Nakchhad, AIR 1931 All 429, Madan Mohan Lal v Lala Sheosnker Sahai, (1885) ILR 12 Cal 482 (PC), Sheo Shanker Sahoy v. Hridoy Narain, (1883) ILR 9 Cal 143 and Radhey Shyam v. Nanak Ram, 1968 All WR (HC) 490). It is clear, therefore, that the proposition that a claim for recovery of immovable property and a claim for recovery of mesne profits or damages are always based on distinct causes of action is a proposition too sweeping and untenable in law. On the alternative submission for opposite party that the second suit is not barred by Order 2, Rule 4, as on its terms the claim for mesne profits made in the first suit and the claim for ejectment made in the second suit were not based on the same cause of action, on the authority of Lalji Mal and Mewa Kuar (supra) I hold that the claims in the two suits by the opposite party were based on the same cause of action and the second suit for ejectment would have been barred by Order 2, Rule 2, Civil Procedure Code due to the omission to claim that relief in the earlier suit but for the fact the the opposite party-plaintiff had obtained leave of the Court to file another suit subsequently for ejectment or recovery of possession.
40. To summarise my conclusion I would hold that there is no conflict between the decision of the Bombay High Court in Shankerlal v. Gangabisen, (AIR 1972 Bom 326) (FB) and the decisions of this Court in the case of Lalji Mal v. Hulasi, (1881) ILR 3 All 660 (FB) and the case of Mewa Kuar v. Banarsi Prasad, ((1895) ILR 17 All 533) as the case of Shankerlal was distinguishable because there the suit for possession was based on title and not on contract of tenancy whereas the latter cases of this Court dealt with suits in which ejectment from immovable property was claimed on the basis of contract. The provision in Order 2. Rule 4, is not an exception to the provision in Order 2, Rule 2, Civil Procedure Code and the former provision should be read as an explanation to Order 2, Rule 2 for as an enabling provision. There is nothing in the language oi Order 2, Rule 4, to imply that a claim for recovery of immovable property and a claim for mesne profits or damages in respec