Kerala High Court · 2007

19. SANTHI, D/O.KOTTILAPPILLY MADHAVI, WARRIATH VEEDU, KIZHAKKE DESOM, ALUVA. 20. RAMANI, D/O.KOTTILAPPILLY MADHAVI, WARRIATH VEEDU, NOW RESIDING AT MACHATTIL VEEDU, KIZHAKKE DESOM, ALUVA. 21. VIJAYAN, S/O.KOTTILAPPILLY MADHAVI, KANIYANKUNNU KARA, KADUNGALLOOR VILLAGE. 22. USHAKUMARI, D/O.MADHAVI, GREEN GATE, MEPURATHU COMPLEX, N.H.BYE PASS, ALUVA. BY ADV. SRI.AJU MATHEW SRI.S.B.PREMACHANDRA PRABHU THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 11/07/2007, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J............................................R.S.A.No. 1131 OF 2006............................................DATED THIS THE 11th DAY OF JULY, 2007JUDGMENTAppellant is the third defendant in O.S.500 of 2000 on thefile of Munsiff Court, Aluva. First respondent originallyinstituted RCP 28 of 1998 before Rent Control Court, Aluva toevict the legal heirs of deceased Narayanan, contending thatNarayanan was the tenant of the building now occupied by theappellant and on the death of Narayanan his rights devolved onhis wife and children. Defendants in the suit disputed the title offirst respondent. Rent Control Court, under Ext.A11 orderfound that there is a bonafide dispute of title and directed firstrespondent to approach the civil court. First respondentthereafter instituted O.S.167 of 2000 on 15.4.2000 seeking adecree for permanent prohibitory injunction restrainingappellant and others from carrying out any resconstruction inthe building. No decree for recovery of possession was soughtfor and it was only a suit for injunction. Subsequently O.S.500 of2000 was filed on 13.11.2000 seeking a decree for recovery ofpossession on the strength of title. The suit was resisted bydefendants disputing the title as well as the right to recover RSA 1131/20062possession. It was also contended that suit is barred underOrder II Rule 2 of Code of Civil Procedure in view of theomission to claim a decree for recovery of possession in O.S.167of 2000. 2. Learned Munsiff on the evidence of PW1 and Exts.A1 toA18 and Ext.C1 and C1(a) dismissed the suit holding that suit isbarred under Order II Rule 2 of the Code and withoutterminating tenancy by sending a notice under Section 106 ofthe Transfer of Property Act, first respondent is not entitled torecover possession of the building. First respondent challengedthe decree and judgment before Additional District Court, NorthParavur in A.S.2 of 2005. Learned Additional District Judge, onreappreciation of evidence, set aside the findings of learnedMunsiff and held that suit is not barred under Order II Rule 2 ofthe Code as the original suit was only one for injunction and thelatter suit was for recovery of possession and not on the samecause of action. Learned District Judge also found that asdefendants are not claiming that they are tenants, no noticeunder Section 106 of the Transfer of Property Act is warranted,as the suit was instituted consequent to Ext.A11 order as thetenancy was disputed and findings of learned Munsiff is RSA 1131/20063unsustainable. Upholding the title under Ext.A1 to A3 as well asthe bonafide need as provided under Section 11(3), learnedDistrict Judge granted a decree for recovery of possession on theground provided under Section 11(3) of Kerala Act 2 of 1965.The decree and judgment are challenged in the second appeal. 3. Learned counsel appearing for appellant and learnedcounsel appearing for respondent who appeared consequent tothe aplication filed under Section 5 of Limitation Act to condonethe delay in filing appeal, were heard. 4. Learned counsel appearing for appellant challenged thatthe decree granted by first appellate court on the ground thatthe claim for recovery of possession was available to firstrespondent when O.S.167 of 2000 was filed on 15.4.2000 and asfirst respondent omitted to claim a decree for recovery ofpossession, under Sub rule 2 of Rule 2 of Order II, the suit isbarred and the finding of learned District Judge is unsustainable.Reliance was placed on the decision of Apex Court inSidramappa V. Rajashetty and others ( AIR 1970 SC 1059).5. Learned counsel appearing for first respondentsubmitted that the plea under Order II Rule 2 is not sustainablewithout producing the pleadings in the earlier suit as well as the RSA 1131/20064judgment and as the plaint and written statement of O.S.167 of2000 were not produced, appellant cannot be heard to contendthat suit is barred under Order II Rule 2. Reliance was placedon the decision of Apex Court in Bengal Waterproof LimitedV. M/s. Bombay Waterproof Manufacturing Company andanother (AIR 1997 SC 1398) and a Division Bench decision ofthis court in K.S.E.B V. Abraham (2006(4) KLT 770). Relyingon the decision of Apex Court in Inacio Martins V. NarayanHari Naik and others (AIR 1993 SC 1756) and Kunjan NairSivaraman Nair V. Narayanan Nair (AIR 2004 SC 1761)learned counsel argued that as the cause of action in the firstsuit, which was only a suit for injunction, was different from thecause of action for the latter suit, which was for recovery ofpossession, the second suit is not barred under Order II Rule 2of the Code. Relying on the decision of the High Court of Punjabin Prakash Aggarwal V. Haryana Financial Corporation,Chandigar( AIR 1999 Punjab and Haryana 225) learnedcounsel argued that as O.S.167 of 2000 was withdrawn withliberty to file a fresh suit as evidenced by Ext.A16 judgment andso in any event the subsequent suit is not barred under Order IIRule 2. RSA 1131/200656. Though learned counsel appearing for appellantvehemently argued that the failure to seek a decree for recoveryof possession in O.S.167 of 2000 would attract the bar providedunder sub rule 2 of Rule 2 of Order II, I cannot agree with thatsubmission. Rule 1 of Order II mandates that every suit as far aspracticable be so framed, so as to afford ground for final decisionupon the subjects in dispute and to prevent further litigationconcerning them. Rule 2 provides what all claims are to beincluded in the plaint. Sub rule 1 of Rule 2 provides that everysuit shall include the whole of the claim which the plaintiff isentitled to make in respect of the cause of action but a plaintiffmay relinquish any portion of his claim in order to bring the suitwithin the jurisdiction of any court. In view of sub rule 1, aplaintiff has to include the whole of the claim which he isentitled to make in respect of the cause of action. At the sametime in order to bring the suit within the jurisdiction of thatcourt where he is instituting the suit, he is entitled to relinquishany portion of his claim. Sub rule 2 provides the consequence ofrelinquishment or omission of a portionof the claim. Under Subrule 2, whether a plaintiff omits to sue in respect of any portionof his claim or intentionally relinquishes any portion of the claim, RSA 1131/20066he shall not afterwards sue in respect of the portion so omittedor relinquished. Sub rule 2 deals with the effect of an omissionor relinquishment of a portion of the claim in a suit as under rule1 the plaintiff has to prevent further litigation and sub rulemandates that he is to include the whole of the claim in respectof the cause of action. If the plaintiff omits to sue orintentionally relinquishes any portion of the claim which heshould have included in the plaint he shall not afterwards sue inrespect of the portion so omitted or relinquished. Therefore theomission or relinquishment which bars the institution of asubsequent suit could only be an omission or relinquishment of aportion of the claim in respect of the same cause of action. It hasno application if the subsequent suit is in respect of a differentcause of action. Sub rule 3 of Rule 2 provides that if a personwho is entitled to more than one relief in respect of the samecause of action omits to do so except with the leave of the court,he shall not afterwards sue for any relief so omitted. Therefore ifthe omission to raise a claim in the former suit in respect of thecause of action, if he is entitled to more than one relief waswithout the leave of the court, sub rule 3 operate as a bar fromsuing for that relief. But if that omission was with the leave of RSA 1131/20067the court, there is no bar to sue in respect of the omitted relief.The bar under sub rule 3 is in respect of the same cause ofaction. Apex Court in Sidramappa's case (supra) considering thecause of action contemplated under Rule 2 of Order II held “ Therequirement of Order II Rule 2 of Code of Civil Procedure is thatevery suit should include the whole of the claim which theplaintiff is entitled to make in respect of a cause of action. Causeof action means cause of action for which the suit was brought. Itcannot be said that the cause of action on which the present suitwas brought is the same as that in the previous suit. Cause ofaction is a cause of action which gives occasion for and formsthe foundation of the suit. If that cause of action enables aperson to ask for a larger and wider relief than that to which helimits his claim, he cannot afterwards seek to recover thebalance by independent proceedings”.7. Failure of first respondent to raise a claim for recovery ofpossession in O.S.167 of 2000 is not a bar to institute anothersuit for recovery of possession, as the cause of action wasdifferent. The cause of action in a suit for injunction and a suitfor recovery of possession are different. The cause of action inrespect of the suit for injunction is the apprehended attempt on RSA 1131/20068the part of the legal heirs of the original tenant to resconstructthe building. The cause of action for the present suit iscontinuation of the illegal possession of the building by legalheirs of the original tenant, after denying the title of firstrespondent. In such circumstances the first appellate courtrightly held that the second suit is not barred by the provisionsof Order II Rule 2. 8. Apex Court in Inacio Martins's case (supra)considered the question whether a subseqeunt suit for recoveryof possession is barred under Rule 3 of Order II of the Code. Itwas held “ It is well known that Order 2, Rule 2,C.P.C is based on the salutary principlethat a defendant or defendants shouldnot be twice vexed for the same causeby splitting the claim and the reliefs.To preclude the plaintiff from so doingit is provided that if he omits any partof the claim or fails to claim a remedyavailable to him in respect of thatcause of action he will thereafter be RSA 1131/20069precluded from so doing in anysubsequent litigation that he maycommence if he has not obtained theprior permission of the court. But theRule does not preclude a second suitbased on a distinct cause of action. Itmay be out of place to clarify that thedoctrine of res judicata differs from therule embodied in Order 2, Rule 2, inthat, the former places emphasis onthe plaintiff's duty to exhaust allavailable grounds in support of hisclaim while the latter requires theplaintiff to claim all reliefs emanatingfrom the same cause of action. TheHigh Court is, therefore, clearly wrongin its view that the relief claimed isneither relevant nor material”.Dealing with the difference in cause of action it was held “ Therefore the cause of action for theformer suit was based on an RSA 1131/200610apprehension that the defendants werelikely to forcibly dispossess theplaintiff. The cause of action for thatsuit was not on the premise that hehad in fact been illegally and forciblydispossessed and needed the court'sassistance to be restored topossession. Therefore, the subsequentsuit was based on a distinct cause ofaction not found in the former suit andhence we do not think that the HighCourt was right in concluding that thesuit was barred by Order 2, Rule 2(3)of the Code of Civil Procedure. It maybe that the subject matter of the suitwas the very same property but thecause of action was distinct and so alsothe relief claimed in the subsequentsuit was not identical to the reliefclaimed in the previous suit. The HighCourt was, therefore, wrong in RSA 1131/200611thinking that the difference in thereliefs claimed in the two suits wasimmaterial and irrelevant. In theprevious suit the relief for possessionwas not claimed whereas in the secondsuit the relief was for restoration ofpossession. That makes all thedifference”.The same principle has been followed in Kunjan NairSivaraman Nair's case (supra). 9. There is force in the submission of learned counselappearing for respondent that a plea on the bar under Rule 2 ofOrder II is not available without producing the pleadings in theformer suit. A Constitution Bench of the Apex Court in GurbuxSingh V. Bhooral (AIR 1964 SC 1810)considered this aspectand held :“ In order that a plea of a bar underO.2 R.2(3), Civil Procedure Codeshould succeed the defendant whoraises the plea must make out(1)that the second suit was in respect of RSA 1131/200612the same cause of action as that onwhich the previous suit was based:(2) that in respect of that cause ofaction the plaintiff was entitled tomore than one relief;(3) that beingthus entitled to more than one reliefthe plaintiff, without leave obtainedfrom the Court,omitted to sue for therelief for which the second suit hadbeen filed. From this analysis itwould be seen that the defendantwould have to establish primarilyand to start with, the precise causeof action upon which the previoussuit was filed, for unless there isidentity between the cause of actionon which the earlier suit was filedand that on which the claim in thelater suit is based there would be noscope for the application of the bar.No doubt, a relief which is sought in RSA 1131/200613a plaint could ordinarily be traceableto a particular cause of action butthis might, by no means, be theuniversal rule. As the plea istechnical bar it has to be establishedsatisfactorily and cannot bepresumed merely on basis ofinferential reasoning. It is for thisreason that we consider that a pleaof a bar under O.2, R.2, CivilProcedure Code can be establishedonly if the defendant files inevidence the pleadings in theprevious suit and thereby proves tothe Court the identity of the cause ofaction in the two suits. It is commonground that the pleadings in C.S.28of 1950 were not filed by theappellant in the present suit asevidence in support of his plea underO.2, R.2, Civil Procedure Code. The RSA 1131/200614learned trial Judge, however,without these pleadings being on therecord inferred what the cause ofaction should have been from thereference to the previous suitcontained in the plaint as a matter ofdeduction. At the stage of theappeal the learned District Judgenoticed this lacuna in the appellant'scase and pointed out, in our opinionrightly, that without the plaint in theprevious suit being on the record, aplea of a bar under O.2, R.2, CivilProcedure Code was notmaintainable”.Apex Court in Bengal Waterproof Limited's case (supra)followed this position. A Division Bench of this court inK.S.E.B V. Abraham (supra)also held that without producingthe pleading and judgment in the former suit, party isprecluded from raising the plea. 10. Finally when the former suit itself was withdrawn the RSA 1131/200615plea of bar under rule 2 of Order II will not lie. I am supportedby the decision of a Single Judge of High Court of Punjab inHarbhagwan and others V. Punni Devi and others (AIR1999 Pubjab and Haryana 223). His lordship held :“Assuming, the cause of action inboth the suits was based upontitle in the suit land and was akinin all the cases, yet, as referred toabove, inasmuch the earlier twosuits were dismissed aswithdrawn with permission to filefresh on the same cause of action,third suit will not be barred byany principle of law”.As no substantial question of law is involved the appeal isdismissed in limine. M.SASIDHARAN NAMBIAR, JUDGElgk/-