M/S RAPTAKOS, BRETT & CO. LTD. versus M/S GANESH PROPERTY

Citation: [2017] 8 S.C.R. 982 · Decided: 05-09-2017 · Supreme Court of India · Bench: R.K. AGRAWAL · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
[2017] 8 S.C.R. 982 
MIS RAPTAKOS, BRETT & CO. LTD. 
v. 
MIS GANESH PROPERTY 
(Civil Appeal No. 1464 of 2008) 
SEPTEMBER 05, 2017 
(R.K. AGRAWAL AND R. BANUMATHI, JJ.J 
Code of Civil Procedure, 1908- Or.II, r.2- Bar under - When 
applicable -Suit by respondent-plaintiff in 1986 against appe//ant-
C 
Company for recovery of possession and mesne profits - Trial Court 
decreed suit in favour of the respondent while declining the claim 
of mesne profits as the said claim was not pressed by respondent -
Fresh suit by respondent in 1998 claiming mesne profits -
Maintainability of- Held: In the instant case, the respondent claimed 
mesne profits in an earlier suit filed for ejectment of the tenant but 
D relinquished its rights vis-a-vis mesne profits - Thus, the respondent 
having relinquished the plea of mesne profits, the prohibition u/Or. 
II, r.2 would squarely apply and the second suit cannot be considered 
as one for mesne profits or damages for the same period for which 
a claim was raised in the earlier suit and deliberately withdrawn or 
E given up - Thus, the issue of mesne profits attained finality - The 
second suit was hit by provisions of Or.II, r.2 and was not 
maintainable - Further, in the circumstances, the respondent was 
estopped from claiming any amount as mesne profits in the 
subsequent suit - Estoppel. 
F 
Allowing the appeal, the Court 
HELD: 1.1 The continuance in possession of the premises 
by the appellant-Company on or after the passing of the decree 
in the 1986 suit was on the basis of the interim order passed by 
the High Court of Calcutta in the first appeal and order passed 
by this Court. The appellant-Company was paying the amount as 
G directed by the Courts, as a condition for continuing in possession 
of the leased premises. Further, it is also evident on record that 
in the 1986 suit, the issue of mesne profit was not pressed by the 
respondent and the same was also not pressed before the High 
Court in appeal nor was it raised before this Court. [Para 7( 
H 
[988-B-CI 
982 
MIS RAPTAKOS, BRETT & CO. LTD. v. MIS GANESH 
983 
PROPERTY 
1.2 In the light of the above indisputable facts, the plaint A 
now filed cannot be considered as one disclosing a cause of action 
for maintaining a suit for mesne profits or damages for the same 
period. (Para 8) (988-D) 
1.3 In the interim orders passed by the High Court in appeal 
and this Court in SLP, the respondent had not raised any objection B 
and has allowed the said orders to become final and binding. Both 
parties have acted upon the said orders as fully valid and binding 
on them. If the respondent was not satisfied with the amount 
fixed as occupation charges, then it should have raised an objection 
praying for varying the amount specified as a condition precedent C 
for continuing in possession of the said premises. This is 
particularly relevant as the respondent had without any objection 
accepted the interim orders allowing the appellant-Company to 
continue in possession. Thus, the subsequent suit claiming mesne 
profits for the very same period during which a fixed amount was 
paid by the appellant-Company and accepted by the respondent D 
. without objection was clearly not maintainable. [Paras 9 and 19] 
[988-E-G; 995-DJ 
1.4 Under Order II, Rule 2 read with Rule 4 of Code of 
Civil Procedure, 1908 the plaintiff can also claim mesne profits or 
arrears of rent in a suit filed for ejectment of the tenant. The 
E 
plaintiff can further file a fresh suit for claiming mesne profits or 
arrears of rent for the period subsequent to the decree passed in 
the earlier suit having become final. But in a case where the 
plaintiff has claimed mesne profits or arrears of rent in a suit filed 
for ejectment of the tenant and has relinquished his rights vis-a-vis 
mesne profits or arrears of rent in the suit proceedings itself, the 
F 
provisions of Order II, Rule 2 will come into play and in 
comparison to the second suit for mesne profits or arrears of rent 
till the decree, the earlier suit will attain finality. Further, the 
respondent was also estopped from claiming any mesne profits in 
the subsequent suit of 1998. [Paras 10 and 17] [989-B; 994-F-G] 
G 
Bhanu Kumar Jain v. Archana Kumar and Another 
(2005) 1 SCC 787 : [2004) 6 Suppl. SCR 1104 State 
Bank of India v. Gracure Pharmaceuticals (2014) 3 
SCC 595 : [2013) 12 SCR 617 - relied on. 
H 
984 
SUPREME COURT REPORTS 
[2017] 8 S.C.R. 
A 
Ram Karan Singh and Others vs. Nakchhad Ah

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