K.MANOHARAN S/O. CHATHU v. K.KANNAN S/O. POKKAN

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD DAY OF SEPTEMBER 2012/12TH BHADRA 1934 RSA.No. 360 of 2009 ( ) ----------------------AS.14/2005 of PRLINCIPAL SUB COURT,THALASSERY OS.176/2000 of MUNSIFF COURT, THALASSERY APPELLANT(S)//RESPONDENT/DEFENDANT: ------------------------------------------- K.MANOHARAN S/O. CHATHU, AGED 49 YEARS, BUSINESS, RESIDING AT KODIYERI AMSOM DESOM, THALASSERY TALUK, KANNUR DISTRICT. BY ADV. SRI.R.SURENDRAN RESPONDENT(S)/APPELLANT/PLAINTIFF: ---------------------------------- K.KANNAN S/O. POKKAN, AGED 64 YEARS, BUSINESS, RESIDING AT KARINGAL HOUSE, KODIYERI AMSOM DESOM, THALASSERY TALUK KANNUR DISTRICT. BY ADV. SRI.K.V.SOHAN BY ADV. SMT.SREEJA SOHAN.K. THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **THOMAS P. JOSEPH, J.** **-------------------------------------R.S.A. No.360 of 2009 -------------------------------------Dated this the 3[rd] day of September, 2012.** ## **JUDGMENT** Following are the substantial questions of law framed for a decision: i. After termination of license can the licensor maintain a suit for recovery of arrears of license fee for the period subsequent to such termination? ii. In a suit for mandatory injunction/eviction against a licensee after termination of license, can the plaintiff claim arrears of license fee or compensation for use and occupation till the date of vacating the premises/eviction and if so, can the plaintiff maintain a suit for recovery of any amount either for arrears of license fee or for compensation for use and occupation in a subsequent suit without obtaining leave of the court in the previous suit and is it not hit by constructive res judicata and the bar under Order II Rule 2 of the Code of Civil Procedure (for short, “the Code”)? iii. Can the court decree compensation for use and occupation when the claim is only for arrears of license fee? 2 RSA No.360/2009 2. Respondent as a lessee obtained possession of an oil mill, machineries and other equipments from one Sathyalatha from 09.07.1975 onwards,. He, on account of physical discomfort could not run the oil mill and hence entered into a license arrangement with the appellant. As per that arrangement, the appellant was to pay license fee of `1,000/- per month to the respondent for use and occupation of the oil mill, machineries and other equipments. The license came to an end on 28.02.1991. The respondent filed O.S.No.111 of 1991 on 11.04.1991 seeking a decree for mandatory injunction to direct the appellant vacate the premises, pay arrears of license fee for the period from 30.04.1990 to 28.02.1991 and claiming `1,000/- by way of damages for use and occupation. Rejecting the contentions raised by the appellant, that suit was decreed by Ext.A1, judgment dated 31.03.1991 as prayed for. The respondent got possession of the licensed premises on 26.11.1999. Thereafter, respondent filed O.S.No.176 of 2000 in the Munsiff's Court, Thalassery claiming “arrears of license fee” at the rate of `1,000/- per month from 28.02.1991 till 26.11.1999. The appellant resisted that suit contending that the suit is barred under Rule 2 of Order II of the Code as the claim ought to have been included in O.S.No.111 of 1991 and that after the period of license expired, he is not obliged to pay arrears of license fee. 3. The trial court accepted that plea and dismissed the suit. In appeal at the instance of the respondent (A.S.No.14 of 2005) the learned Principal Sub Judge reversed the finding of the trial court and granted a decree in favour of the respondent for realisation of damages at the rate of `1,000/- per 3 RSA No.360/2009 month for the period falling within three years immediately preceding the filing of the suit and allowing adjustment holding that the bar under Rule 2 of Order II of the Code does not apply. That judgment and decree of the first appellate court are under challenge in this Second Appeal on the above substantial questions of law. 4. The learned counsel for the appellant has contended that since even according to the respondent the period of license expired by 28.02.1991, question of the respondent claiming “arrears of license fee” after 28.02.1991 (as made in the plaint) does not arise. According to the learned counsel, even if the claim for arrears of license fee made in the plaint is understood as a claim for damages for unauthorised use and occupation, in so far as the claim made in the present suit could have been made in O.S.No.111 of 1991, the claim is barred under Rule 2 of Order II of the Code. Reliance is placed on the decision in **Haridas Mondal v. Anath Nath Mittra (AIR 1961 SC 1419)** . The further contention is that at any rate, there is no proper assessment of damages if any payable. The first appellate court has merely accepted the amount of license fee as the amount of damages payable by the appellant. It is also argued that the first appellate court was not correct in granting full cost to the respondent. 5. The learned counsel for the respondent would contend that in O.S.No.111 of 1991, though there is an averment in paragraph 3 of the plaint as to the entitlement of the respondent to claim damages for unauthorised use and occupation until actual eviction, the claim made is only for `1,000/- being 4 RSA No.360/2009 damages payable for the one month between the date of expiry of license (28.02.1991) and the filing of O.S.No.111 of 1991 (11.04.1991). It is argued that the right to claim damages for unauthorised use and occupation accrues to the respondent on the expiry of every month after the period of license expired, on account of the appellant continuing in unauthorised occupation of the licensed premises and hence, it cannot be said that the respondent was obliged to claim future damages also (until he got actual possession of the premises) in O.S.No.111 of 1991. The learned counsel has placed reliance on the decisions in **Neelakanta Iyer Subramonia Iyer v. Kurien Maria (1955 KLT 233)** and **Ram Swarup and another v. Jitmal (AIR 1966 Madhya Pradesh 186)** . It is argued that though the plaint states about “arrears of license fee”, what is meant is damages for unauthorised use and occupation as it is admitted and proved that the period of license expired by 28.02.1991. 6. True that in the plaint, the claim is for “arrears of license fee” for the period from 28.02.1991 till 26.11.1999. It is admitted that the period of license expired by 28.02.1991. Hence there could be no claim for “arrears of license fee” after 28.02.1991. Use and occupation of the premises by the appellant after the expiry of period of license is unauthorised. I am not inclined to think that because in the plaint the claim made is for “arrears of license fee” from 28.02.1991, respondent should be denied relief. For, it is clear that what the respondent could ask for is only 'damages' for use and occupation. Hence the relief prayed for in the plaint could understood as one for damages for use and occupation. 5 RSA No.360/2009 7. The more important question is whether the suit is barred under Rule 2 of Order II of the Code as contended by the appellant and found in favour by the trial court? Sub-rule (1) of Rule 2 of Order II of the Code states that 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. Sub-rule (2) of Rule 2 of Order II states that 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. A reading of Rule 2 of Order II of the Code makes it clear that the bar of subsequent suit arises only when a claim is made with respect to the cause of action which arose to the plaintiff and which was agitated in the former suit. In **Kewal Singh v. Smt. Lajwanti ((1980) 1 SCC 290)** and **State of Maharashtra v. M/s. National Construction Co. (AIR 1996 SC 2367)** it is held that for application of Rule 2 of Order II, the court has to consider, among other things whether the cause of action in the previous suit and the subsequent suit is identical. Thus, to attract the bar under Rule 2 of Order II, the cause of action in the present suit and in O.S.No.111 of 1991 should have been identical. 8. Ext.B1 is the copy of plaint in O.S.No.111 of 1991. There, it is averred that the period of license expired by 28.02.1991. In paragraph 3 of Ext.B1, it is stated that after the expiry of the license, appellant is liable to pay `1,000/- per month for use and occupation of the premises and the accessories till he vacates the premises and hands over the accessories. In paragraph 4, the 6 RSA No.360/2009 cause of action for that suit is stated to have arisen on 31.03.1990 when the agreement of license was executed between the appellant and the respondent, on 28.02.1991 when the period of license expired and on 02.03.1991 when the respondent sent notice to the appellant demanding arrears of license fee and vacant possession of the premises. In paragraph 5, referring to the valuation of the suit (O.S.No.111 of 1991) for the purpose of courts fee and jurisdiction, the arrears of license fee from 30.04.1990 to 28.02.1991 at the rate of `1,000/- per month after adjusting the advance of `10,000/- is referred to. The next is ## “damages for use and occupation - `1,000/-”. Court fee is paid under Sec.22 of the Kerala Courts Fees and Suits Valuation Act (obviously for recovery of damages for use and occupation - `1,000/- as well). It is pointed out by the leaned counsel for the appellant that in Ext.B1, plaint the right to file a suit with respect to damages for use and occupation (beyond `1,000/- claimed in that suit) is not reserved. 9. In **Neelakanta Iyer Subramonia Iyer v. Kurien Maria** (supra), it was ofcourse a claim for rent arrears. The decision in short is that the right to claim rent arrears accrued every year (in that case the tenancy was from year to year) and that a former suit for recovery of rent arrears not covering the subsequent period for which the subsequent suit is instituted would not operate as a bar under Rule 2 of Order II of the Code. In **Ram Swarup and another v. Jitmal** (supra), it is held that unlike in the case of past mesne profits, a claim as 7 RSA No.360/2009 regards future mesne profits could not be said to be barred under Rule 2 of Order II of the Code on account of its non-inclusion in the former suit. Obviously the reason is that the cause of action to seek future mesne profits accrues, depending on the nature of the period of unauthorised occupation of the premises. 10. The cause of action to sue for damages for unauthorised use and occupation accrued to the respondent when the appellant, notwithstanding the expiry of the license on 28.02.1991 continued in occupation and enjoyment of the premises and thereby deprived the respondent of the right and opportunity to be in possession and enjoyment of the said premises. That cause of action accrues to the respondent every time, every month the appellant continues in such unauthorised occupation For the unauthorised occupation of each month in future, the respondent gets a separate cause of action. Ext.B1, plaint is dated 11.04.1991 (the period of license expired by 28.02.1991). In paragraph 4 of Ext.B1, it is not specifically stated that the claim of `1,000/- (being damages for use and occupation) is for the period upto 11.04.1991. But on a reading of the averments in Ext.B1 it would appear to me that though in paragraph 3, it is averred that respondent is entitled to claim damages for use and occupation until the appellant vacates the premises, the claim actually made, `1,000/- (the claim of the respondent is `1,000/- per month) is for the one month intervening between 28.02.1991 and 11.04.1991 on which day Ext.B1, plaint was filed. There is no indication in Ext.B1 that the respondent gave up his claim for future damages till actual eviction and confined his claim to a lumpsum of `1,000/-. 8 RSA No.360/2009 So far as Ext.B1, plaint is concerned, I stated that the claim therein though there is a general statement in paragraph 3 of Ext.B1 as to the right of the respondent to claim damages for use and occupation until he got actual possession, the claim actually made is only for a period of one month (`1,000/- per month) and that was for the period intervening 28.02.1991 (expiry of the license) and 11.04.1991 (on the date Ext.B1, plaint was filed). In that view of the matter I am not inclined to think that the respondent was obliged to make a claim in Ext.B1 for damages for use and occupation until he got actual possession. It is clear that the cause of action in the present suit is distinct and separate from the cause of action agitated in O.S.No.111 of 1991. Hence the bar under Rule 2 of Order II of the Code is not attracted. 11. The learned counsel for the appellant has invited my attention to Sec.40 of the Specific Relief Act. That provision states that the plaintiff, in a suit for perpetual injunction under Sec.38 (of the said Act) or mandatory injunction under Sec.39 (of the said Act) may claim damages either in addition to or in substitution for such injunction and the court may, if it thinks fit award such damages. The decision in **Haridas Mondal v. Anath Nath Mittra** (supra) referred by the learned counsel states in paragraph 5 that the right to relief which could have been but has not been asked for in the previous suit must be regarded as res judicata. 9 RSA No.360/2009 12. The question of constructive res judicata would arise only when a plea 'might and ought' to have been raised by a party but was not done. In this case, referring to the decisions relied on by the learned counsel for the respondent, I have found that the cause of action to claim damages for future use and occupation would accrue every time the appellant continued in such unauthorised possession of the premises. Hence the plea of constructive res judicata is also not available to the appellant. 13. The next argument is concerning the quantum of damages awarded by the first appellate court. It is pointed out by the learned counsel that quantum of damages depends on various factors though, in deciding the quantum, the license fee paid by the appellant may also be relevant but, not only the criteria. It is pointed out by the learned counsel that there is no independent assessment of the damages by the first appellate court. 14. Assuming that there is absence of other evidence to fix the quantum of damages, the question is whether damages fixed by the first appellate court requires interference? The appellant has not pleaded any change of circumstances after the expiry of license on 28.02.1991 which may have a bearing on the quantum of damages payable by him. The learned counsel for the appellant submits that no such contention was raised by the appellant because the claim in the plaint was only for “arrears of license fee” from 28.02.1991. But, as aforesaid, that is only an inartistic plea made by the 10 RSA No.360/2009 respondent. The appellant should have been careful enough to understand that there was no obligation on him to pay arrears of license fee after 28.02.1991 onwards and that the claim is for damages for use and occupation. 15. In the absence of any plea or evidence as to any change of circumstance which could persuade the court to fix damages for use and occupation at a rate lower than the license fee of `1,000/- per month, I do not find reason to interfere with the quantum of damages fixed by the first appellate court. 16. It is seen that the first appellate court has awarded cost of the suit to the respondent. No doubt, it is within the power of the court to award full cost even when the decree is only for a part of the claim. But, to award the full cost the conduct of the appellant must be such that in equity, the respondent should be given cost for the entire claim. In this case, I do not find any such circumstance. Therefore, the first appellate court was not right in awarding cost of the suit to the respondent. The cost to which the respondent is entitled should be proportionate to the damages awarded to the respondent by the first appellate court. 17. The substantial questions of law framed are answered accordingly. Resultantly, the Second Appeal is allowed in part as under: 11 RSA No.360/2009 i. Judgment and decree of learned Principal Sub Judge, Thalassery in A.S.No.14 of 2005 are modified to the extent that the respondent will get only the proportionate cost of the amount awarded by the first appellate court in that appeal. ii. In other respects, the judgment and decree in A.S.No.14 of 2005 of the Principal Sub Court, Thalassery are confirmed. iii. Parties shall suffer their respective cost in the trial court and this Court. All pending interlocutory applications will stand dismissed. **THOMAS P.JOSEPH, Judge.** **cks**