Gurbux Singh Vs. Bhooralal  INSC
133 (22 April 1964)
22/04/1964 AYYANGAR, N. RAJAGOPALA AYYANGAR,
N. RAJAGOPALA GAJENDRAGADKAR, P.B. (CJ) WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION: 1964 AIR 1810 1964 SCR (7) 831
Civil Procedure-Suit filed for recovery of
possession and mesne profits-In a previous suit a decree for mesne profits was
passed in respect of the same land-Whether cause of action same in both
suits-Subsequent suit whether barred under provisions of the Code-Code of Civil
Procedure, 1908 (Act 5 of 1908), Order 2 rr. (2) and (3).
The plaintiff-respondent brought a suit
against the appellant for recovery of possession of certain property and for
mesne profits. The plaintiff claimed recovery of possession and mesne profits
on the ground that he was the absolute owner of the property described in the
plaint and the defendant was in, wrongful possession of the same. In the plaint
the plaintiff made reference to a previous suit that had been filed by him and
his mother (C.S. 28 of 1950) wherein a claim had been made against the
defendant for the recovery of the mesne profits in regard to the same property
for the period ending February 1.0, 1950. In the previous suit the mense
profits had been decreed. In his written statement in the present suit the
defendant appellant raised a technical plea under Order 2 rule 2 of the Civil
Procedure Code to the maintainability of the suit.
Before evidence was led by the parties the
trial court decided this preliminary issue raised by the defendant. The trial
court held that the suit was barred under 0. 2 r. 2 of the Code. On appeal, the
Appellate Court held that the plea of a bar under Order 2 rule 2, Civil
Procedum Code should not have teen entertained at all because the pleadings in
the earlier suit C.S. 28 of 1950 had not been filed in the present case.
Therefore, the Appellate Court set aside the
order of the trial Court. Against this order the defendant preferred an appeal
which was dismissed by the High Court. The appellant obtained special leave
against the judgment of the High Court.
Hence the appeal-Held:(i) A plea under Order
2 rule 2 of the Code based on the existence of a former pleading cannot be
entertained when the pleading on which it rests has not been produced.
It is for this reason that a plea of a bar
under 0. 2 r. 2 of the Code can be established only if the defendant files in
evidence the pleadings in the previous suit and thereby proves to the court the
identity of the cause of action in the two suits. In other words a plea under
0. 2 r. 2 of the Code cannot be made out except on proof of the plaint in the
previous suit the filing of which is said to create the bar.
Without placing before the court the plaint
in which those facts were alleged, the defendant cannot invite the court to
speculate or infer by a process of deduction what those facts might be with
reference to the reliefs which were then claimed. On the facts of this case it
has to be held that the plea of a bar under 0, 2 r. 2 of the Code should not
have been entertained at all by 832 the trial Court because the pleadings in
civil suit No. 28 of 1950 were not filed by the appellant in support of this
(ii)in order that a plea of a bar under 0. 2
r. 2 (3) of the Code should succeed the defendant who raises the plea must make
out (i) that the second suit was in respect of the same cause of action as that
on which the previous suit was based; (ii) that in respect of that cause of
action the plaintiff was entitled to more that one relief (iii) that being thus
entitled to more than one relief plaintiff, without leave obtained from the
Court omitted to sue for the relief for which the second suit had been filed.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 583 of 1961.
Appeal by special leave from the Judgment and
decree dated August 12, 1959, of the Rajasthan High Court in Civil Misc.
First Appeal No. 50 of 1956.
Gopal Singh, for the appellant.
B. P. Maheshwari, for the respondent.
April 22, 1964. The Judgment of the Court was
delivered by AYYANGAR, J.--The facts giving rise to this appeal, by special
leave, are briefly as folows: The respondentBhooralal-brought a suit-Civil Suit
20 1954-in the Court of the Subordinate Judge, First Class, Kekri against the
appellant claiming possession of certain property which was described in the
plaint and for mesne profits. The allegation in the plaint was that the
plaintiff was the absolute owner of the said property of which the defendant
was in wrongful possession and that in spite of demands he had failed to vacate
the same and was therefore liable to pay the mesne profits claimed. In the
plaint he made reference to a previous suit that had been filed by him and his
mother (C.S. 28 of 1950) wherein a claim had been made against the defendant for
the recovery of the mesne profits in regard to the same property for the period
ending with February 10, 1950. It was also stated that mesne profits had been
decreed in the said suit. In the Written Statement that was filed by the
present appellant, besides disputing the claim of the plaintiff to the reliefs
prayed for on the merits, a technical plea to the maintainability of the suit
was also raised in these terms:
"That 0. 2. r. 2, Civil Procedure Code
is a bar to the suit. When the suit referred to in paragraph 2 of the plaint
was filed the plaintiff had a cause of action for the reliefs also. He having
omitted to sue for possession in that suit, is now barred from claiming relief
of possession. No second suit for recovery of mesne profits is maintainable in
833 Since the plaintiff had lost his remedy
for the relief of possession he cannot seek recovery of mesne profits
also." On these pleadings the learned Subordinate Judge framed 5 issues
and of these the 4th issue ran:
"Whether 0. 2. r. 2, Civil Procedure
Code is a bar?".
Before evidence was led by the parties issue
no. 4 was argued before the learned trial Judge as a preliminary issue and the
Court recorded a finding that the suit was barred by the provision named and
directed the dismissal of the suit.
The plaintiff preferred an appeal from this
decree to the additional District Judge and the appellate Court considered this
plea as regards the bar under 0. 2. r. 2, Civil Procedure Code on two
alternative bases. In the first place, the learned District Judge pointed out
that the pleadings in the earlier suit-C.S. 28 of 1950-had not been field in
the case and made part of the record, so that it was not known what the precise
allegations of the plaintiff in his previous suit were. For this reason the
learned District Judge held that the plea of a bar under 0. 2. r. 2, Civil
Procedure Code should not have been entertained at all. He also considered the
question as to whether, if the plea was available, it could have succeeded. On
this he referred to the conflict of Judicial opinion on this point and held
that if the point did arise for decision he would have decided in favour of the
plaintiff and treated the cause of action for a suit for mesne profits as
different from the cause of action for the relief of possession of property
from a trespasser. In view, however, of his finding on the first point as to
there being no material on the record to justify the plea of a bar under 0. 2.
r. 2, Civil Procedure Code the learned District Judge did not rest his decision
on his view of the law as regards the construction of 0. 2. r. 2(3). In the
circumstances he set aside the dismissal of the suit and remanded it to the
trial Court for being decided on the merits in accordance with the law.
The defendant-the appellant before
us-preferred a second appeal to the High Court of Rajasthan and the learned
Single Judge dismissed this appeal. It is from this judgment that the
appellants have preferred this appeal after obtaining special leave.
As already indicated, there is a conflict of
judicial opinion on the question whether a suit for possession of immoveable
property and a suit for the recovery of mesne profits from the same property
are both based on the same cause of action, for it is only if these two reliefs
are based on "the same cause of action" that the plea of 0. 2.
r. 2., Civil Procedure Code 1, P(D)ISCI-27
834 that was raised by the appellant could succeed. Clause (3)of O. 2. r. 2,
Civil Procedure Code that is relevant in this context reads:
(3) A person entitled to more than one relief
in respect of the same cause of action may sue for all or any of such reliefs,
but if he omits, except with the leave of the Court, to sue for all such
reliefs, he shall not afterwards sue for any reliefs so omitted." Some of
the High Courts, notably Madras, have in this connection, referred to the terms
of 0. 2. r. 4 which runs:
"R. 4. No cause of action shall, unless
with the leave of the Court, be joined with a suit for the recovery of
immoveable property, except(a) claims for mesne profits or arrears of rent in
respect of the property claimed or any part thereof;
(b) claims for damages for breach of any
contract under which the property or any part thereof is held; and (c) claims
in which the relief sought is based on the same cause of action:
Provided that nothing in this rule shall be
deemed to prevent any party in a suit for foreclosure or redemption from asking
to be put into possession of the mortgaged property".
as an aid to the construction of the term 'cause
of action' and the expression 'relief based on the same cause of action' in 0.
2. r. 2(3). Reading these two provisions together it has been held that the
cause of action for suits for possession of immoveable property and the cause
of action for a suit in respect of mesne profits from the same property are
distinct and different. On the other hand, it has been held, particularly by
the High Court of Allahabad that the basis of a claim for mesne profits is
wrongful possession of property and so is a claim for possession and thus the
cause of action for claiming either relief is the same viz., wrongful
possession of property to which the plaintiff is entitled. On this reasoning it
has been held that a plaintiff who brings in the first instance a suit for possession
alone or for mesne profits alone is afterwards debarred from suing for the
other relief under 0. 2. r.
2(3). The learned trial Judge had, after
referring to the ,conflict of authority, expressed his preference for the
Allahabad view and had, therefore, upheld the defence. At the stage of the
appeal the learned District Judge had, as already pointed out, expressed his
preference for the other view. The 835 learned Single Judge expressed his
concurrence with the learned District Judge in preferring the Madras view as
against the decisions of the Allahabad High Court.
Learned counsel for the appellant sought to
argue that the Allahabad view was more in accordance with principle and with
the proper construction of 0. 2. r. 2(3), Civil Procedure Code. We do not
consider it necessary to examine this conflict of judicial opinion in this case
as, in our opinion, the learned District Judge was right in holding that the
appellant had not placed before the Court material for the purpose of founding
a plea of 0. 2. r. 2, Civil Procedure Code.
In order that a plea of a bar under 0. 2. r.
2(3), Civil Procedure Code should succeed the defendant who raises the plea
must make out (1) that the second suit was in respect of the same cause of
action as that on which the previous suit was based, (2) that in respect of
that cause of action the plaintiff was entitled to more than one relief, (3)
that being thus entitled to more than one relief the plaintiff, without leave
obtained from the Court, omitted to sue for the relief for which the second
suit had been filed. From this analysis it would be seen that the defendant
would have to establish primarily and to start with, the precise cause of
action upon which the previous suit was filed, for unless there is identity between
the cause of action on which the earlier suit was filed and that on which the
claim in the later suit is based there would be no scope for the application of
the bar. No doubt, a relief which is sought in a plaint could ordinarily be
traceable to a particular cause of action but this might, by no means, be the
universal rule. As the plea is a technical bar it has to be established
satisfactorily and cannot be presumed merely on basis of inferential reasoning.
It is for this reason that we consider that a plea of a bar under 0. 2. r. 2,
Civil Procedure Code can be established only if the defendant files in evidence
the pleadings in the previous suit and thereby proves to the Court the identity
of the cause of action in the two suits. It is common ground that the pleadings
in C.S. 28 of 1950 were not filed by the appellant in the present suit as
evidence in support of his plea under
0. 2. r. 2, Civil Procedure Code. The learned
trial Judge, however, without these pleadings being on the record inferred what
the cause of action should have been from the reference to the previous suit
contained in the plaint as a matter of deduction. At the stage of the appeal
the learned District Judge noticed this lacuna in the appellant's case and
pointed out, in our opinion rightly, that without the plaint in the previous
suit being on the record, a plea of a bar under 0. 2. r. 2, Civil Procedure
Code was not maintainable. Learned counsel for the appellant, however, drew our
attention to a passage in the judgment of the learned Judge in the High Court
LP(D)ISCl-27(a) 836 "The plaint, written
statement or the judgment of the earlier court has not been filed by any of the
parties to the suit. The only document filed was the judgment in appeal in the
earlier suit. The two courts have, however, freely cited from the record of the
earlier suit. The counsel for the parties have likewise done so. That file is
also before this Court." It was his submission that from this passage we
should infer that the parties had, by agreement, consented to make the
pleadings in the earlier suit part of the record in the present suit. We are
unable to agree with this interpretation of these ,observations. The statement
of the learned Judge "the two courts have, however, freely cited from the
record of the ,earlier suit" is obviously inaccurate as the learned
District Judge specifically pointed out that the pleadings in the earlier suit
were not part of the record and on that very ground had rejected the plea of
the bar under 0. 2. r. 2, Civil Procedure Code. Nor can we find any basis for
the suggestion that the learned Judge had admitted these documents at the
second appeal stage under 0. 41. r. 27, Civil Procedure Code by consent of
parties. There is nothing on the record to suggest such an agreement or such an
order, assuming that additional evidence could legitimately be admitted in a
second appeal under 0. 41. r. 27, Civil Procedure Code. We can therefore
proceed only on the basis that the pleadings in the earlier suit were not part
of the record in the present suit.
Learned counsel for the appellant, however,
urged that in his plaint in the present suit the respondent had specifically
referred to the previous suit having been for mesne profits and that as mesne
profits could not be claimed except from a trespasser there should also have
been an allegation in the previous suit that the defendant was a trespasser in
wrongful possession of the property and that alone could have been the basis
for claiming mesne profits.
We are unable to accept this argument. In the
first place, it is admitted that the plaint in the present suit was in Hindi
and that the word `mesne profits' is an English translation of some expression
used in the original. The original of the plaint is not before us and so it is
not possible to verify whether the expression `mesne profits' is an accurate
translation of the expression in the original plaint. This apart, we consider
that learned counsel's argument must be rejected for a more basic reason. Just
as in the case of a plea of res judicata which cannot be established in the
absence on the record of the judgment and decree which is pleaded as estoppel,
we consider that a plea under 0. 2. r. 2, Civil Procedure Code cannot be made
out except on proof of the plaint in the previous suit the filing of which is
said to create the bar. As the plea is basically founded 837 on the identity of
the cause of action in the two suits the ,defence which raises the bar has
necessarily to establish the ,cause of action in the previous suit. The cause
of action would be the facts which the plaintiff had then alleged to support
the right to the relief that he claimed.
Without placing before the Court the plaint
in which those facts were alleged, the defendant cannot invite the Court to
speculate or infer by a process of deduction what those facts might be with
reference to the reliefs which were then claimed. It is not impossible that
reliefs were claimed without the necessary averments to justify their grant.
From the mere use of the words `mesne
profits' therefore one need not necessarily infer that the possession of the
defendant was alleged to be wrongful. It is also possible that the expression
'mesne profits' has been used in the present plaint without a proper
appreciation of its significance in law. What matters is not the
characterisation of the particular sum demanded but what in substance is the
,allegation on which the claim to the sum was based and as regards the legal
relationship on the basis of which that relief was sought. If is because of
these reasons that we consider that a plea based on the existence of a former
pleading cannot be entertained when the pleading on which it rests has not been
produced. We therefore consider that the order of remand passed by the learned
Additional District Judge which was confirmed by the learned Judge in the High
Court was right. The merits of the suit have yet to be tried and this has been
directed by the order of remand which we are affirming.
The appeal fails and is dismissed. In the
circumstances of the case there will be no order as to costs.