IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU CRev No. 200 of 2007 AND CRev No. 201 of 2007 Balwant Rai petitioner Mohan Lal respondent !Mr. Jatinder Choudhary, Advocate ^Mr. M.L.Bhjardwaj, Advocate MR. JUSTICE J. P. SINGH, JUDGE Date : 03/11/2008 : J U D G M E N T :
Petitioner has filed these Revision petitions calling in question
2nd Additional District Judge, Jammu’s order of September 24, 2007
deciding three preliminary issues framed in respondent’s Suit nos.
38/Civil and 39/Civil against him. The three common issues, which
were decided by the 2nd Additional District Judge, Jammu, are as
under:-
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1. Whether the suit is not maintainable, as it does
not satisfy the requirement of Order 37 CPC?
OPD
2. Whether the suit is hit by Order 2 Rule 2 of CPC. If so,
what is its effect? OPD
3. Whether the suit is hit by principle of constructive res
judicata? OPD
Appearing in support of the Revision petitions, Mr. Jatinder
Choudhary assails the findings of the trial Court on issue No.2 saying
that respondent’s suits were not maintainable in view of the bar
enacted under Order 2 Rule 2 of the Code of Civil Procedure,
hereinafter referred to as the “Code”, in that, the plaintiff-respondent
had omitted to seek the relief of recovery of the suit amount when he
had filed his earlier suit seeking a Decree for permanent prohibitory
injunction restraining the petitioner-defendant from selling 14 shops
and a house consisting of three rooms, kitchen, bathroom, latrine,
verandah and compound constructed on Plot No. 38 situated at Old
Janipur, Jammu, to any person other than the plaintiff-respondent and
to refrain from taking any advance for, or/and to execute Sale Deed
of, the house. He has placed reliance on judgment dated 16.10.2007
delivered by this Court in CSA Nos. 5/2006 & 6/2006 to support his
submission.
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Learned counsel had made a feeble attempt to question the
findings of the trial Court on issue Nos. 1 & 3 saying that the plaints
having not been drawn, in requisite form, the respondent’s suits,
which were otherwise barred by the principle of constructive
res judicata, were unsustainable.
Supporting the findings of the trial Court on all the issues,
Mr. M.L.Bhardwaj, learned Advocate for the respondent, says that
based on a different cause of action than the one pleaded in the earlier
suit, the provisions of Order 2 Rule 2 of the Code or the principle of
constructive res judicata were not applicable to respondent’s
subsequent suits. He submitted that the respondent had drawn the
plaint in accordance with the provisions of Order 37 of the Code and
the order passed by the trial Court holding the plaint to have been
validly drawn did not suffer from any error of law or jurisdiction.
I have considered the submissions of learned counsel for the
parties and gone through the records of the case.
Before dealing with the submissions raised at the Bar, few facts
need to be noticed.
Before the filing of two suits by the respondent seeking
recovery of an amount of Rs. 1 lac in each suit from the petitioner, on
the basis of Promissory Notes executed on 14.01.1994 and
15.08.1995, the respondent-plaintiff had filed a suit against the
petitioner-defendant seeking a Decree for permanent prohibitory
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injunction restraining the petitioner-defendant from selling 14 shops
and a house consisting of three rooms, kitchen, bathroom, latrine,
verandah and compound constructed on Plot No. 38 situated at Old
Janipur, Jammu to any person other than the plaintiff and to refrain
from taking any advance for, or/and to execute Sale Deed of, the
house. It had been pleaded by the respondent-plaintiff in the suit that
the he had advanced an amount of Rs.4,50,000/- on loan to the
petitioner who had mortgaged all the documents of his house and the
shops with him. The petitioner had thereafter executed an Agreement
to Sell on 02.06.1998 saying therein that in case he would fail to pay
Rs.4,50,000/- with interest to the respondent, he would execute Sale
Deed of the shops and house in favour of the respondent. Petitioner is
stated to have later refused to execute Sale Deed of the shops and
house in favour of the respondent and had declared that he would sell
the property to someone else, compelled whereby, the respondent had
filed the suit of permanent prohibitory injunction as mentioned
hereinabove.
With the aforementioned facts in view, I will proceed to
examine the submissions made at the Bar.
Before dealing with the findings of the trial Court on issue
No.1, regard needs to be had to the provisions of Order 37 Rule 2 of
the Code, which for facility of reference are reproduced hereunder:-
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“2. Institution of summary suits
(1) A suit in which this Order applies, may if the
plaintiff desires to proceed hereunder, be instituted
by presenting a plaint which shall contain,-
(a) a specific averment to the effect that the suit is filed
under this Order;
(b) that no relief, which does not fall within the ambit of
this rule, has been claimed in the plaint; and
(c) the following inscription, imme-diately below the
number of the suit in the title of the suit, namely:-
“(Under Order XXXVII of the Code of Civil
Procedure, Svt. 1977)”.”
Although the provisions of Order 37 Rule 2 of the Code require
a plaintiff, desirous of proceeding under Order 37 of the Code, to aver
the three requisites indicated in Rule 2, yet there is no corresponding
provision in Order 37 which may indicate the consequences flowing
from the omission to incorporate the three requisites in the plaint,
which, in other words, would demonstrate that incorporation of the
three requisites in the plaint may not be mandatory to maintain a suit
under Order 37.
Be that as it may, what I find from the reading of respondent’s
plaints is that he has specifically mentioned in the title of the two
plaints that these were “summary suits under Order 37 Rule 2 of the
Code of Civil Procedure for recovery of Rs. 1 lac with interest from
the defendant, on the basis of hundi and receipt.”
In paragraph (11) and the prayer clause of the two plaints, the
respondent-plaintiff records as follows:-
“11. That parties to the suit are residents of Old Janipur
Jammu and hundi was also executed at Old Janipur
Jammu within the territorial jurisdiction of this Hon’ble
Court. Hence this Hon’ble court has got the jurisdiction
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to entertain the summary suit under Order 37 Rule 2
C.P.C and grant the relief.”
“It is, therefore, respectfully prayed that a decree for
recovery of Rs. One Lac with 24% P.A. interest from
the defendant on the basis of hundi and receipt dated
15.8.1995 respectively under the provision of Summary
suit under Order 37 Rule 2 C.P.C may kindly be passed
and the amount be recovered with interest mentioned in
the hundi till the whole amount is finally paid to the
plaintiff with costs of the suit.”
Perusal of respondent’s plaints indicates that he has not claimed
any such relief in the suits which may not fall within the ambit of
Order 37 of the Code.
In this view of the matter, I am of the view that the trial Court
was perfectly right in deciding issue No.1 against the petitioner, in
that, the respondent had substantially complied with the requirements
of Order 37 Rule 2 of the Code in drawing his plaints.
I, therefore, do not find any error in trial Court’s deciding issue
No.1 against the petitioner.
I will now proceed to examine petitioner’s counsel’s second
submission that the respondent’s suit was hit by the principle of
constructive res judicata and the provisions of Order 2 Rule 2 of the
Code, and the trial Court had erred in deciding issue Nos. 2 & 3
against the petitioner.
Order 2 Rule 2 of the Code does not require that when a
transaction or right gives rise to several causes of action, they should
all be combined in one suit. All that is prohibited by Order 2 Rule 2
(3) of the Code is that a cause of action cannot be permitted to be split
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up to sue for one part in one and the other in another suit. When a
cause of action gives rise to only one relief, the entire claim is
required to be included in the suit, and, if it is not so done, the
subsequent suit for the omitted or relinquished portion would be
barred forever. There may be cases in which same cause of action
may give rise to several reliefs. In such cases also, all these reliefs are
required to be claimed in the same suit, for omission to do so, would
attract the Bar of Order 2 Rule 2 of the Code.
Order 2 Rule 2 of the Code, would have, however, no
application to cases where the plaintiff bases his suit on separate and
distinct cause(s) of action and chooses to relinquish one or the other.
In such cases, it shall remain open to the plaintiff to file a fresh suit on
the basis of a distinct cause of action which he may have so
relinquished.
In order to deal with the issue in question, the expression
“cause of action” appearing in Order 2 Rule 2 of the Code needs to be
properly understood.
Cause of action has acquired a judicially settled meaning i.e.
simply a factual situation, the existence of which entitles one person
to obtain from the Court a remedy against another person. It includes
every fact which is material to be proved to entitle the suitor to
succeed, and every fact which a defendant would have a right to
traverse. “Cause of action” has also been taken to mean that particular
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act on the part of the defendant which gives the plaintiff his cause of
action/complaint, or the subject matter of grievance founding the
action and not merely the technical cause of action.
It was observed by the Privy Council in Payana versus Pana
Lana (1914) 41 IA 142 that “the rule is directed to securing the
exhaustion of the relief in respect of a cause of action and not to the
inclusion in one and the same action, different causes of action, even
though they arise from the same transaction. One great criterion is,
when the question arises as to whether the cause of action in the
subsequent suit is identical with that in the first suit, whether the same
evidence will maintain both actions.
In view of the above legal position as to the meaning of the
expression “cause of action” appearing in Order 2 Rule 2 of the Code
it is clear that respondent’s earlier suit, based on Agreement to Sell
dated 02.06.1998 had been filed against the petitioner on the basis of a
cause of action which had accrued to him because of the threat of the
petitioner to sell the shops and house to someone else, was thus
entirely different from the one which has been pleaded by the
respondent in the present suits to have accrued to him after the filing
of his earlier suit, when despite presentation of the hundies to the
petitioner by Mr. V.K.Khajuria, Notary, the defendant had not
honoured the demand thereby giving a cause of action to the
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respondent to file suits against the petitioner when he had refused to
pay the demanded amount on 19.08.1998.
In view of the above discussion, I find that learned 2nd
Additional District Judge, Jammu was justified in deciding issue No.2
against the petitioner by holding that the present suits were on the
basis of hundies and the earlier suit had been filed on the basis of an
Agreement to Sell.
I, therefore, do not find any substance in petitioner’s contention
that the respondent’s suits were hit by the bar enacted by the
provisions of Order 2 Rule 2 of the Code.
Judgment delivered by this Court in CSA Nos. 5/2006 &
6/2006 is not applicable to the facts of the present case as it does not
deal with the issue which has arisen in the present Revision petitions.
The next contention of petitioner’s counsel is also devoid of
any merit, in that, nothing had been decided by the Court on merits in
the earlier suit on the issues which arise in the subsequent two suits
and in that view of the matter principle of constructive res judicata
would have absolutely no application to the maintainability of the
present suits.
All the preliminary objections reflected in the three similar
issues raised in the two suits are thus untenable which have been
rightly repelled by the trial Court by deciding the issues against the
petitioner.
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There is thus no force in these Revision petitions which are,
accordingly, dismissed.
(J. P. Singh)
Judge
Jammu
03.11.2008
Pawan chopra