S.S.SANDHAWALJA, J. - (1.) THE issue of law arising from virtually undisputed facts in this reference mav well be formulated in the following terms:-" Whether Order 2, Rule 2 of the Code of Civil Procedure. 1908 bars a suit for mesne profits filed subseauentlv to a suit for possession of fee property because the claim for those accrued mesne profits had not been earlier included therein ?" It suffices to advert to the relevant facts briefly. The subject-matter of the dispute is the urban property situated at Circular Road. Ambala City. In January, 1966. Pritam Singh respondent alone brought a suit for possession of the above-said property alleging inter alia that the defendants were in wrongful and unauthorised occupation thereof from the 14th of June, 1965. In this suit he did not include anv claim for mesne profits which had accrued till the date of the filing of the same. That suit is still pending decision. Later in 1968 Pritam Singh respondent alone with his sister Smt. Sur-jit Kaur respondent together brought the present suit (from which this regular second appeal arises) for the recovery of Rs. 3. 200.00 as mesne profits or in the alternative as damages for illegal use and occupation of the property above-mentioned from the original date of its unauthorised occupation.
(2.) APART from the other grounds the defendants resisted the second suit on two preliminary obiections regarding which the trial Court struck the following two issues:- 1. Whether the trial of the suit cannot be proceeded with in view of the provisions of Section 10. Civil Procedure Code ? 2. Whether the suit is barred under Order 2. Rule 2 of the Code of Civil Procedure as alleged in para. 2 of the preliminary obiections in the written statement? Both the above-said issues were decided against the plaintiffs resulting in the dismissal of the suit. On appeal the learned Additional District Judge, Ambala, upheld the finding of the trial Court on issue- No. 1 but on issue No. 2 he reversed the finding of the trial Court by holding that the suit was maintainable and not barred bv the provisions of Order 2, Rule 2 of the Code of Civil Procedure. The defendant-appellants in the present second appeal challenge the decision of the learned Judge on issue No- 2 ouoted above. As is manifest the point at issue is one of pure law and to be candid it is indeed not free from difficulty. My learned brother Gujral. J. in his lucid order of reference to the larger Bench has noticed the head on clash of some of the authorities and in the course of argument many more were cited before us at the bar. I, therefore, deem it apt to examine the matter in its historical background and then on principle before adverting to the plethora of precedents on this point 4. As to the sources of the law and their history it is indeed possible to go back for more than a century in this eon-text. There is no manner of doubt that the earliest Indian Civil Procedure Code were modelled on the language and oat-terned to follow the principles and procedures of the then existing English law. At common law claims for ejectment and for 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. It was only after the enactment of the Common Law Procedure Act, 1852 that the two actions were even enabled to be joined. Adopting the above-said rule the Indian Code of Civil Procedure. 1859 expressly provided that a claim for recovery of land and a claim for niesne profits arising out of such land should be deemed to be distinct causes of action. Indeed the relevant Section 10 thereof may usefully be quoted verbatim-" 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 two last preceding sections. " Subsequently in England the Judicature Act and the Rules of practice framed thereunder came into force- Therefore when the Indian Code of Civil Procedure was remodelled and enacted in 1877, the languane of the Judicature Act and the rules thereunder which were then the existing law was in many instances incorporated and substituted for the earlier language of the Indian Code of Civil Procedure of 1859. As a result, therefore. Section 10 of the earlier Code auoted above was substituted bv 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 ). A reference to the corresponding provision would Show that the language of Section 44 was taken from Order 17. Rule 2 of the English Rules framed under the Judicature Act-
(3.) THEREFORE , despite the change of terminology it is more than oatenl that no change in the law was at all intended either in England or in Indis from the settled rule ("earlier at English Common Law and later in terms adopted bv the statutes) that claims for mesne profits and claims for the possession of the property were distinct and separate causes of action. To reiterate, it is apparent that the rule explicitly laid in Section 10 of the 1859 Code was intended to be continued and the mere change of language owing to the reasons above-noticed was not calculated to depart from the earlier settled law on this point. It then deserves mention that Rules 1, 2 and 4 of Order 2 of the present Code of Civil Procedure, 1908 are in pari materia with Sections 42. 43 and 44 of the Code of Civil Procedure, 1877. and therefore patently intended to continue the existing law. As a matter of chronology, therefore, it is evident that for more than a centurv the English Common Law and the subsequent statutes and the Indian Procedural Code patterned thereon had considered the claim of mesne profits and the claim of possession of the propertv as two distinct and separate causes of action.;