Summary
The Supreme Court upheld refusal to reject a later suit for damages for use and occupation merely because an earlier possession suit had omitted mesne profits. Possession and occupation damages involved distinct causes of action, with mesne profits accruing continuously. The defendants remained free to contest limitation for particular portions of the claim.
Issues
- Whether Order II Rule 2 barred a later occupation-damages suit after an earlier suit claimed possession alone.
- Whether the entire plaint could be rejected as barred by law.
Provisions considered
- Order II Rules 2 and 4, Code of Civil Procedure, 1908The claim for possession and the continuing claim for occupation damages arose from distinct causes of action; omission of damages from the earlier suit did not bar the later suit. (¶ 10–18)
- Order VII Rule 11(d), Code of Civil Procedure, 1908The later damages suit was maintainable and its entire plaint could not be rejected; limitation concerning portions of the claim remained open. (¶¶ 2, 10, 16, 17)
Held
- A suit for possession and one for damages for use and occupation involve different causes of action and considerations for adjudication. Mesne profits accrue day by day. On these facts, Order II Rule 2 did not prevent the later claim merely because the first suit sought possession alone. (¶ 11–17)
- The defendants could raise limitation against any time-barred portion of the damages claim, but could not obtain rejection of the entire plaint on the stated ground. No damages amount was adjudicated in this appeal. (¶¶ 17, 19)
- Virgo Industries concerned a relief already available on the same cause of action when the earlier suit was filed. That setting differed from the separate and continuing occupation-damages claim here. (¶ 18)
Result
Appeal dismissed. Refusal to reject the plaint upheld, leaving limitation objections to individual portions of the claim available to the defendants. No costs.