B. K. SANGALAD, J. ( 1 ) THIS petition is directed against the Order dated 18-1-1993 passed on additional issue nos. 1 to 3 and issue nos. 14 and 16. The additional issue No. 1 is:the learned munsiff has come to the conclusion that it is hit by Section 11, explanation iv of Code of Civil Procedure. Consequently he has held that additional issue nos. 2 and 3, dated 6-3-1990 and the issue nos. 14 and 16 do not survive for consideration in view of his finding on additional issue No. 1, ( 2 ) THE petitioner is a sitar artist and was on the list of casual artists of the all India radio and in particular dharwad station of the all India radio since 1967 and has been giving performance 8 to 10 times a year and those performances were 'live broadcast' from the dharwad station of the all India radio. ( 3 ) THE petitioner has also alleged that the 4th respondent fabricated false cue-sheet of his recordings just to make it appear that he is a fresh artist with no experience. For no fault of his, he was removed from the list of casual artists. He was informed of this fact by communication dated 29-4-1978 and he then filed a suit, original suit No. 198 of 1979 for declaration that the ACT of the defendants-respondents 1 to 3 in removing his name from the list of casual artists is illegal and he shall be continued as casual artist. The suit was on the file of the additional munsiff, dharwad. It came to be decreed on 26-3-1983. Aggrieved by this judgment and decree, the respondents 1 to 3 filed an appeal in regular appeal No. 51 of 1983 on the file of the civil judge, dharwad which came to be dismissed in the month of 1986. After the appeal was dismissed the petitioner filed the present original suit No. 831 of 1989 claiming damages for Rs. 40,000/- for having deprived him of the broadcasting engagements from the all India radio since june, 1977. The learned munsiff dismissed the suit on the ground that it is hit by res judicata. Consequently he has dismissed the suit. ( 4 ) SRI s. v. tilgul, learned counsel for the petitioner submits that the learned munsiff has erroneously approached the case as such it has resulted in the miscarriage of justice. The learned munsiff dismissed the suit on the ground that it is hit by res judicata. Consequently he has dismissed the suit. ( 4 ) SRI s. v. tilgul, learned counsel for the petitioner submits that the learned munsiff has erroneously approached the case as such it has resulted in the miscarriage of justice. In original suit No. 198 of 1979 the petitioner could not have claimed the damages because of the petitioner's right was in fluid state. Unless the rights of the petitioner were restored, he could not have claimed damages. The cause of action arose only after the dismissal of the regular appeal No. 51 of 1983. On the other hand, Mr. Anand navalgimath, learned counsel for respondents 4 and 5 supported the Order of the lower court. Now it is to be seen whether there is any justification in dismissing the original suit No. 831 of 1989. ( 5 ) MR. S. v. tilgul has relied upon the decision in the case of Ramachandra Adaram Agarwale v Lodha Gouri Bhadbhunji , wherein it is stated as follows:he has also relied upon other decisions in case of tadepalli ramaiah U Madala thathaiah and another and Sadhu Singh and others v Pritam Singh and another. At the very outset, the decision of Bombay High Court and Madras High Court are considered by the full bench of Punjab and Haryana high court. ( 6 ) THE discussion of the learned munsiff shows that when the petitioner had filed original suit No. 198 of 1979, he could have claimed the damages also. According to him, not only the parties but also the relief claimed is the same. It is pertinent to note that the first suit was a suit for declaration. It was very difficult to assess the damages unless the rights of the plaintiff were restored. Mr. Tilgul submitted that the exact damages could not have been assessed at the time of filing original suit No. 198 of 1979. I think there is some force in this submission. Even after filing the suit, the rights of the parties were prejudiced as he was not given an opportunity to give his programme. Until the suit was disposed of he was in a State of uncertainty. I think there is some force in this submission. Even after filing the suit, the rights of the parties were prejudiced as he was not given an opportunity to give his programme. Until the suit was disposed of he was in a State of uncertainty. Only when the regular appeal No. 51 of 1993 came to be dismissed and no appeal was preferred against this decree of the civil judge, the decree passed in original suit No. 198 of 1979 became final. Hence there is some force in the submission that the cause of action arose for claiming the damages. In the above stated decisions, it is held that a suit for claiming the mesne profits is not hit by Order 2, rule 2, Civil Procedure Code. ( 7 ) NOW it is to be seen Section 11, explanation iv of Civil Procedure Code is as follows:here what attack the petitioner could have made against the respondents? Initially his attack was only against the respondents to restore his rights of giving his programme. At that time he could not have foreseen the exact amount of damages because of many ifs and buts. The cause of action accrued only after the dismissal of the regular appeal No. 51 of 1983. Hence in the original suit No. 198 of 1979 he could not have made an attempt to claim the damages. As he has now claimed after the dismissal of regular appeal No. 51 of 1983, explanation iv of Section 11 is not attracted. The learned munsiff although has taken pains to assign reasons has ultimately overlooked the spirit of explanation iv to Section 11. At the cost of repetition it has to be stated that in view of the above stated decisions, wherein the suits for mesne profits are not barred, the same principle can be extended to the facts of the present case. In the light of these observations, the following Order is passed. In the result, the petition is allowed. The impugned Order is set aside and the matter is remanded back for trial of the suit. --- *** --- .