SHIV KUMAR SHARMA versus SANTOSH KUMARI

Citation: [2007] 10 S.C.R. 17 · Decided: 18-09-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Disposed off

Cited by 3 judgment(s) · cites 1 · see the full citation network in Lexace

Judgment (excerpt)

A 
SHIV KUMAR SHARMA 
V. 
SANTOSH KUMAR! 
SEPTEMBER 18, 2007 
B 
[S.B. SINHA AND H.S. BEDI, JJ.] 
Code of Civil Procedure, I 908-0 2 r. 2-Suit to include the whole 
claim-Parties in possession of shop belonging to each other-Transfer c 
of possession of shop-Non-performance of contract by appellant-
Decree in favour of respondent for possession of shop owned by him 
against appellant-Challenge to-High Court holding inf avour of 
respondent and directing appellant to pay compensation to respondent 
and giving him liberty to claim damages/mesne profit in a separate D 
suit-Propriety of-Held: High Court not correct in framing additional 
issues of its own which did not arise for consideration-Respondent 
having omitted to claim damages by way of mesne profit cannot be 
permitted to get the same indirectly-High Court did not have the , 
requisite jurisdiction in equity to pass such directions-Thus, that part E 
of the order of High Court not sustainable-However, appellant 
directed to pay Rs 50, 0001- as costs to respondent besides costs awarded 
by courts below~onstitution of India, I 950-Article 142-Equity. 
y 
Appellant and respondent entered into an agreement to sell 
their respective properties - shop-A and shop-B to each other for a F 
certain price. Parties gave vacant possession of the property in their 
possession to each other. However, registered sale deed could not 
be executed. Respondent filed suit for possession of shop-B and for 
permanent injunction against the appellant Trial Court held in favour 
of the respondent and against the appellant. Aggrieved, appellant 'G 
filed appeal. During pendency of the appeal, respondent got back 
possession of the premises. High Court held that the appellant was 
to pay sum of Rs. 1,50,000/- to the respondent in respect of 
17 
H 
18 
SUPREME COURT REPORTS 
[2007] 10 S.C.R. 
A transferring the title and possession of shop-A and as such directed 
----<' 
appellant to pay 6% interest per annum from the date the agreement 
was executed till the date of actual payment and gave liberty to the 
respondent to claim relief by way of damages/ mesn~ profits in a 
separate suit filed before the competent court. Hence the present 
B appeal. 
Disposing of the appeal, the Court 
HELD: 1.1. A suit is ordinarily tried on the issues raised by 
the parties. The plaintiff-respondent did not ask for payment of 
C damages by way of mesne profit or otherwise. If the plaintiff was to 
ask for a decree, he was required to pay requisite court fees on the 
amount claimed. In such a situation, having regard to Order XX, Rule 
12 CPC, a preliminary decree was required to be passed. A 
proceeding for determination of the actual damages was required 
D to be gone into. [Para 14] [24-D-F] 
1.2. In terms of Order II, Rule 2 of the Code, all the reliefs which 
could be claimed in the suit should be prayed for. Order II, Rule 3 
provides for joinder of causes of action. Order II, Rule 4 is an 
exception thereto. For joining causes of action in respect of matters 
E covered by Clauses (a), (b) and (c) of Order II, Rule 4, no leave of 
the court is required to be taken. Even without taking leave of the 
court, a prayer in that behalf can be made. A suit for recovery of 
possession on declaration of one's title and/or injunction and a suit 
for mesne profit or damages may involve different cause of action. 
F For a suit for possession, there may be one cause of action; and for 
claiming a d£cree for mesne profit, there may be another. In terms 
of Order II, Rule 4 of the Code, however, such causes of action can 
be joined and therefor no leave of the court is required to be taken. 
If no leave has been taken, a separate suit may or may not be 
G maintainable but even a suit wherefor a prayer for grant of damages 
by way of mesne prof1t or otherwise is claim'ed, must be instituted 
within the prescribed period oflimitation. µamages c~nnot be granted 
without payment of court fee. In a case where damages are required 
to be calculated, a fixed court fee is to be paid but on the quantum 
H determined by the court and the balance court fee is to be paid when 
' 
SHIV KUMAR SHARMA v. SANTOSH KUMAR! 
19 
a final decree is to be prepared. [Para 16] [26-B-E] 
A 
1.3. If the respondent intended to claim damages and/ or mesne 
profit, in view of Order II, Rule 2 of the Code itself, he could have 
done so, but he chose not to do so. For one reason or the other, he, 
therefore, had full knowledge about his right. Hav

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