ORDER
S.K. Dubey, J.
1. Petitioner is a contractor, who has filed this revision under section 19 of the Madhya Pradesh Madhyastham Adhikaran Adhiniyam, 1983 (for brevity the Act’) against the award dated 30-11-1992 passed in Reference Case No. 73 of 1990 by the M. P. Arbitration Tribunal Bhopal (for short the ‘Tribunal’).
2. Facts giving rise to this revision are these :
The petitioner was awarded a ‘works contract’ by the respondent on 26-10-1993 for construction of masonry structure on the right Bank of the Main Canal of Kolar project in Km. 6 to 11 including the gap filling in masonry structure. The work also included construction of five road bridges. The period of completion of contract was stipulated as 12 months by 26-10-1984 from the date of issue of the work order, i.e. 27-10-1983. The petitioner could not complete the work even in the extended period, therefore, the contract was terminated on 20-3-1986. The respondent served a notice Ex. D/7 dated 1-4-1986 to hand over the cement, steel etc. which left unconsumed to the department failing which after preparation of seizure memo (Panchanama) the said left over cement etc. shall be taken in possession. The petitioner received the notice on 11-4-1986 vide acknowledgment – Annexure-R/7-A. After notice neither the petitioner handed over the material nor replied the notice. The respondent after preparing Panchanama on 30-1-1987 Ex. C/1 had taken in its possession of the following materials belonging to the contractor viz.
Steel Plates (Shuttering materials)
(33 in No.) 4′ x 3′ size – weighing 55 kg.
(58 in No.) 4′ x 2l/2′ size – weighing 55 kg.
Total plates – 91
Water Tank – 8′ x 4′ x 3′
out of above items seized the petitioner was returned Water Tank on 23-2-1990 and 90 plates on 7-3-1990 (the dispute is about one plate).
3. After termination of the contract the petitioner raised a dispute by a reference petition under section 7 of the Act before the Tribunal and claimed Rs. 6,50,000/- on various counts due to alleged illegal termination of the contract, but, in that did not include the claim of damages of Rs. 92,172/-towards illegal seizure of the material of the petitioner. The reference was registered at Reference No. 61/87 wherein the Tribunal passed an award on 1-6-1988. Aggrieved of the said award the petitioner filed a revision under section 19 of the Act before this Court which was decided on 22-7-1992 allowing the plan of the petitioner to the extent of Rs. 48,000/-, the decision is reported in P. C. Rajput v. State of M. P. and others, 1994 MPLJ 387.
4. During the pendency of the said revision, the petitioner raised another dispute by a reference petition under section 7 of the Act filed on 22-6-1990 claiming the amount of Rs. 92,172/- as damages for the aforesaid material illegally seized. It was averred that claim for damages arises out of the illegal seizure, which is an independent and distinct cause than the claims arising out from the termination of the contract. The respondent objected and submitted that under section 7-A of the Act the claim of the petitioner was barred as the petitioner did not include whole of the claim which the petitioner was entitled to make in respect of works contract till filing of the first reference petition, in view of sub-section (2) of section 7-A of the Act. The Tribunal after hearing and appraisal of the evidence adduced by the parties held that the claim of the petitioner was barred in view of the provisions of Order 2, Rule 2, Civil Procedure Code and section 7-A of the Act. On merits of the claim, the Tribunal recorded a finding of fact that the petitioner has failed to establish the claim of damages by way of rent on the evidence adduced and discussed in paras 8.8 and 8.9 of the award.
5. Shri R. K. Gupta, learned counsel for the petitioner, placing reliance on the decisions of the Supreme Court in case of Sidramenon v. Rajashetty and Ors., AIR 1970 SC 1059 and in case of State of Madhya Pradesh v. The State of Maharashtra and Ors., AIR 1977 SC 1466, submitted that the claim for damages arising out of illegal seizure was not available at the time of filing of the petition under section 7 of the Act and that fresh cause arose when out of seized material water tank and 90 plates were returned on 23-2-1990 and 7-3-1990 respectively. The Tribunal with an erroneous approach illegally dismissed the claim as barred by the provisions of section 7-A of the Act.
6. After hearing Shri A. K. Khaskalam, Dy. Advocate General and on going through the record, we are of the opinion that the Tribunal rightly dismissed the claim of the petitioner on the principle of relinquishment of the claim under section 7-A of the Act which are in pan materia to Order 2, Rule 2 of the Code of Civil Procedure. The provisions of Order 2, Rule 2, Civil Procedure Code and section 7-A of the Act in juxtaposition are reproduced thus :
Section 7-A of the Act Order 2, Rule 2, C.P.C.
7-A. Reference Petition. - (1) Every Rule 2. Suit to include the
reference petition shall include whole whole claim. -- (1) Every suit
of the claim which the party is entitled shall include the whole of the
to make in respect of the works claim which the plaintiff is
contract till the filing of the reference entitled to make in respect of
petition but no claims arising out of the cause of action; but a
any other works contract shall be plaintiff may relinquish any
joined in such a reference petition. portion of his claim
in order to bring the suit within
the jurisdiction of any Court.
(2) Where a party omits to refer or Relinquishment of part of claim.
intentionally relinquishes any claim or - (2) Where a plaintiff omits to
any portion of his claim, he shall not sue in respect of, or intentionally
afterwards be entitled to refer in relinquishes, any portion of his
respect of such claim or portion of claim, he shall not afterwards sue
claim so omitted or relinquished. in respect of the portion so
omitted or relinquished.
(3) Notwithstanding anything Omission to sue for one of several
contained in sub-section (1) or reliefs. - (3) A person entitled to
sub-section (2) disputes relating to more than one relief in respect of
works-contract which may arise after the same cause of action may sue
filing of the reference petition may be for all or any of such reliefs; but
entertained as and when they arise, if he omits, except with the leave
subject to such conditions as may be of the Court, to sue for all such
prescribed. reliefs, he shall not afterwards
sue for any relief so omitted.
7. The expression ’cause of action’ for the suit means the whole of the material facts or bundle of facts which a plaintiff must prove, if traversed, to entitle him to a judgment in his favour by the Court. The cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as the cause of action, or in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. See – Oil and Natural Gas Commission v. Utpal Kumar Basu and Ors., (1994) 4 SCC 711, Bloom Dekor Limited v. Subhash Himatlal Desai and Ors., (1994) 6 SCC 322 and A. K. Gupta and Sons Ltd. v. Damodar Valley Corporation, AIR 1967 SC 96.
8. The Supreme Court in a recent decision in case of Devaram and Anr. v. Ishwar Chand and Anr., (1995) 6 SCC 733, after referring to its earlier decisions considered the ambit and scope of Order 2, Rule 2, Civil Procedure Code and observed that a bare perusal of the provisions of Order 2, Rule 2, Civil Procedure Code would indicate that if a plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the plaintiff has to place all his claims
before the Court in one suit as Order 2, Rule 2 is based on the cardinal principle that the defendant should not be vexed twice for the same cause. Order 2, Rule 2, Civil Procedure Code requires the unity of all claims based on the same cause of action in one suit. If the identity of causes of action is established, the rule would immediately become applicable and it will have to be held that since the relief claimed in the subsequent suit was omitted to be claimed in the earlier suit, without the leave of the Court in which the previous suit was originally filed, the subsequent suit is liable to be dismissed.
9. In Sidramappa’s case (supra), relied by the petitioner the Supreme Court has observed that if the cause of action on the basis of which the previous suit was brought does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiff’s subsequent suit is not barred by Order 2, Rule 2, Civil Procedure Code.
10. In order to succeed on a plea of a bar under Order 2, Rule 2(3), Civil Procedure Code a defendant who raises the plea must take 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. See Gurubax Singh v. Bhooralal, AIR 1964 SC 1810.
11. In arbitration proceedings which are meant for speedy disposal of disputes on the same cause of action, the bar of Order 2, Rule 2, Civil Procedure Code applies with greater force, as if successive disputes are raised that would defeat the very object of the arbitration proceedings, therefore, reliance by learned Dy. Advocate General on the decision of Gujarat High Court in case of M/s Kolhari and Associates, Baroda v. State of Gujarat and Anr., AIR 1985 Guj. 42 is quite appropriate as section 7-A of the Act incorporates the principle behind Order 2, Rule 2, Civil Procedure Code. The party omitting to refer or intentionally relinquishing any claim or any portion of his claim is precluded to refer in a subsequent reference petition the claim or portion of the claim so omitted or relinquished, which is clear from the word ‘afterwards’ used in sub-section (2) of section 7-A of the Act. However, such bar docs not operate in the same reference petition which may be allowed under sub-section (3) of section 7-A by amendment on sufficient grounds.
12. In the case in hand, in the background of the facts stated above, admittedly the seizure was made before filing of the previous reference
petition under section 7 of the Act. True, the cause of action to earlier petition was illegal termination, but, the seizure was also result of the termination of the contract, therefore, for the claim of damages for Rs. 92,172/- because of seizure, the relief flowed from the termination of the works contract, which gave rise to previous reference petition under section 7 of the Act. The petitioner did not seek any leave to claim damages separately, nor claimed the portion of the claim of damages suffered because of illegal seizure by amending the petition, therefore, the petitioner having not included the whole of the claim arising out of the same cause of action which was not distinct or independent, the subsequent petition, in our opinion, was rightly dismissed by the Tribunal as barred in view of the provisions of section 7-A of the Act.
13. In view of our finding that the claim of the petitioner was barred under section 7-A of the Act, it is not necessary for us to deal with the finding recorded by the Tribunal on merits holding that the petitioner has failed to substantiate the claim for damages by way of rent for so called illegal seizure of the materials.
14. In the result the revision has no merit and is dismissed with no order as to costs.