JUDGMENT
Sengottuvelan, J.
1. This second appeal is filed by the defendant in O.S. No. 552 of 1976 on the file of the District Munsif, Erode, challenging the legality and correctness of the judgment and decree of the District Judge, Erode, passed in A.S. No. 106 of 1983.
2. The facts of the case are briefly as follows : The respondent herein filed the suit O.S. No. 552 of 1976, on the file of the District Munsif, Erode, against the appellant herein for possession of the suit property, payment of mesne profits and for costs. In the plaint the respondent herein alleged that her absolute title to the suit property has been declared by the Court in O.S. No. 883 of 1972, on the file of the District Munsif, Erode, in which the appellant herein was the defendant. The said suit was filed by the respondent for declaration of her title and for a permanent injunction restraining the appellant from interfering with her peaceful possession and the Court declared the rights of the respondent but negatived the claim of injunction since the appellant was found to be in possession of the property for the past two years before the judgment dated 26.2.1974. There was an appeal against the said judgment dated 26.2.1974. There, was an appeal against the said judgment in A.S. No. 70 of 1974 preferred by the appellant herein and the said appeal was dismissed. There was no second appeal against the same. It is alleged in the plaint in O.S. No. 552 of 1976 that the appellant had been in forcible possession of the suit property after dispossessing the respondent in or about 20.1.1972, The cause of action for the said suit, suit was said to have, arisen on 20.1.1972 when the respondent was dispossessed.
3. In the written statement the appellant-defendant refuted the allegation that the respondent was dispossessed on 20.1.1972. It is also contended that the appellant is the absolute owner of the suit property and that the respondent is not entitled to any right in respect of the suit property as per the sale deed, dated 3.8.1964. The appellant also contended that a second appeal had been filed against the judgment of the Subordinate Judge in A.S. No. 70 of 1974 and the same is pending. A contention also had been raised under Order 2, Rule 2, C.P.C., that the suit is not maintainable.
4. The trial Court relying upon the previous judgment in O.S. No. 883 of 1972 came to the conclusion that the respondent herein is entitled to possession and negatived the contention of the appellant herein regarding the maintainability of the suit. As against the said judgment the present appellant filed A.S. No. 106 of 1983 on the file of the District Judge, Erode, and the learned District Judge also after considering the facts of the case dismissed the same. As against the said judgment of the learned District Judge, this second appeal is filed.
5. Natarajan, J., as he then was, admitted the second appeal for consideration of the following question of law:
Whether the Courts below have commited an error in law in not applying the ratio contained in the decision reported in I.L.R. 34 Madras 97 and decreeing the suit?.
6. Before entering into a discussion on the question of law certain facts will have to be stated. The earlier suit for declaration and injunction was filed by the respondent, in O.S. No. 883 of 1972 on 25.4.1972. In the said suit a decree was passed declaring the respondent’s title to the suit property, but the suit for injunction was dismissed on the ground that when the respondent herein was in the witness box he had admitted that the appellant had trespassed into the suit property on the date of the suit and hence the respondent is not in possession of the suit property and on that basis the relief of injunction was negatived. The said decision had become final. The only question that is urged in this second appeal is whether both the Courts below are right in not upholding the contention of the appellant that the relief of possession is one that could have been asked by the respondent in the earlier suit and she having not asked for the same is precluded from claiming the same relief in the subsequent suit under the provision contained in Order 2, Rule 2, C.P.C., which reads as follows:
2. (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff “may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
2. Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.
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 relief so omitted.
Explanation : For the purposes of this rule an obligation and a collateral security for its performance of successive claims arising under the same obligation shall be deemed respectively, to constitute but one cause of action.
A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.
The contention of the appellant is that the respondent herein ought to have prayed for the relief of possession in the earlier suit and she having not done so the subsequent suit for the relief of possession is barred by the abovesaid provision. Reliance is placed upon the case reported in Narayana Kavirayan v. Kandasami Gomidan 8 M.L.J. 147 : (1899) I.L.R. 22 Madras 24,where the plaintiff who had instituted the suit for specific performance and obtained a decree came forward with a subsequent suit for possession. In that if has been held by a Division Bench of this Court that the right to possession having arisen at the same time of the right to the execution of a conveyance, the suit was not maintainable. That was a case where the plaintif ought to have asked for possession even when he prayed for the relief of specific performance and that the relief of possession formed part of the cause of action for the specific performance. Since the plaintiff in that case failed to ask for the relief which he ought to have asked the Court came to the conclusion that the subsequent suit is barred. But in this case the previous suit is for declaration and injunction on the basis that the respondent was in possession of the property. The subsequent suit is for possession on the ground that the respondent was dispossessed by the appellant. Hence, the cause of action in both the suits cannot be said to be identical so as to bar the subsequent suit by the respondent for the relief of injunction. Hence, the principle laid down in the above decisions is not applicable to the present case. On behalf of the respondent several decisions have been cited to show that in order to apply the bar under Order 2, Rule 2 it must be specifically shown that the cause of action in both the suits is the same. In the case reported in Sher Ali v. Torap Ali A.I.R. 1942 Cal. 407, It has been held as follows:
In order to apply the provisions of Order 2, Rule 2 to bar a suit In must be found out (1) what was the; cause of action in respect of which the claim was made in the previous, suit.
2. What is the claim made in the subsequent suit;
3. Whether the claim made in the subsequent suit could have been made either wholly or in part in respect of the cause of action of the previous suit. If so, the claim in the subsequent suit shall fail to the extent to which it could have best but was not made in the prior suit.
In order to arrive at, these findings, the two plaints must be compared. But this does not mean that in order to apply Order 1, Rule 2, all the allegations in the two plaints shall have to be taken and the bar imposed shall apply only when these are identical. The allegations are to be looked into only to find out to what extent they disclosed any cause of action. The cause M action for this purpose would mean all the essential facts constituting the right and its infringement. If the plaintiff obtained a judgment in his favour on a particular cause of action in the previous suit his claim in that suit must be taken to have been based on that cause of action, and that judgment ought to be conclusive as to the cause of action in respect of which that claim was made. In order to see what is the cause of action in respect of which the claim in the subsequent suit is made and what is the claim made in it the plaint in the subsequent suit must be looked into. If certain allegations in the plaint discloses the selfsame cause of action which could have supported the claim made in the plaint, then, simply because other additional allegations have also been made in it the plaintiff would not thereby escape the bar imposed by Order 2, Rule 2. If without the additional allegation in the second plaint, the cause of action for the claim made in it be complete, then in that case, the additional allegations will not constitute the cause of action at all, and the Court after finding that will have to dismiss the claim under Order 2, Rule 2. If the additional allegations go to constitute a fresh cause of action as alleged in the second plaint different from the cause of action of the first plaint, if the plaintiff fails to establish the additional allegations, he may fail for want of cause of action but his suit will not be hit by the provisions of Order 2, Rule 2.
In the case reported in Jagathamba v. Ramaswami A.I.R. 1915 Mad. 732, a Division Bench of this Court observed as follows:
Where the title of the plaintiff is the same and the, trespasser-defendant is the same defendant in both suits, the question whether the second suit is barred by the first, under Order 2, Rule 2, C.P.C. Civil P.C. depends upon the answer to the following question, namely : “Did the two trespasses take place in or about the same time and as part of the same transaction so that the two trespasses might be considered (taking a commonsense view of the facts) as a single transaction forming one and the same cause of action”.
If both trespasses had taken place before the first suit had been brought Order 2, Rule 2, Clause 3, might be a bar to the second suit but not otherwise.
Bearing the above decisions in mind if we examine the facts, of this case it is seen that the plaint in the previous suit had not been filed and as such what was the cause of action in the previous suit is not known to us. In fact from the judgment in the previous suit it is seen that the respondent contended in the plaint in the previous suit that she was in possession which is disbelieved by the Court. In any event the appellant has not filed the plaint in the previous suit to show what was the cause of action on which the previous suit was based. When that is not known it cannot be said that the subsequent suit was based on the identical cause of action and thereby barred under the provisions of Order 2, Rule 2, C.P.C. In the Case reported in Basanna v. Appa Rao A.I.R. 1959 Mys. 227, it has been held as follows:
The first suit of the plaintiff was for declaration of his title as the adopted son of B and in that suit he did not pray for possession of the properties as he alleged that he was already in possession of the same. In that suit he contended that the decree obtained by the defendant against the widow of B, that the defendant and not the plaintiff was the adopted son of B, was a collusive and a fraudulent one and therefore not binding on him….
In the subsequent suit on the other hand the plaintiff prayed for possession of the properties on the ground that the Court in the previous suit had held that he was not in possession of the suit properties though he was the adopted son of B.
The Division Bench of the Mysore High Court held that the, causes of action in the two suits were distinct. The first suit had proceeded on the ground that the plaintiff was in possession of the property, while the second suit was for possession of the suit properties. In such circumstances the plaintif’s suit was not barred or hit by the provisions of Order 2, Rule 2 of the Code of Civil Procedure. In the case reported in Siliman Sahib v. Sahib 25 M.L.J. 125 : A.I.R. 1915 Nad. 888 : I.L.R. 38 Mad. 247, it has been observed as follows:
The title alleged by the plaintiffs in both the suits is, undoubtedly, the same. The first suit for declaration was brought on the ground that it was necessary to remove some cloud on the plaintiffs title. The facts which it is necessary for a plaintiff to allege in a suit for declaration are not the same as those in a claim for possession. In the declaratory suit there was no interference with possession alleged, and it was not necessary to allege the same. In the suit before us, title and deprivation of possession are alleged. The causes of action in the two suits are different. To determine whether the suit is barred and the cause of action is the same, we have to look to the plaint for the facts relied upon to constitute the cause of action is the same that Order 2, Rule 2 and 3 bar the suit.
In the case reported in Bande Ali v. Gokul Misir (1912) I.L.R. 34 All. 172, It has been held as follows:
Dismissal of a suit for an injunction in respect of certain properties upon the ground that the plaintiff has not proved his possession of the property in respect of which the injunction is sought is no bar to subsequent suit for possession of the same property.
In the case reported in Abdul Rashid v. Sachidananda Raj A.I.R. 1939 Cal. 523, plaintiff brought a suit for an injunction restraining the defendants from taking possession of certain property; that suit was dismissed on the ground that the plaintiff had already been dispossessed. Plaintiff brought a second suit for was possession and for establishing his title to the properties. It was held that the cause of action that was put forward in the earlier suit was wrong. The provisions of Order 2, Rule 2, could not be invoked since the relief that was claimed in the second suit would not be claimed on the cause of action which was the basis of the earlier suit. In the case reported in Rali Setty Subbarayadu v. Balaramayya 1955 An. W.R. 285 : A.I.R. 1985 A.P. 194, it has been held as follows:
Bar of Order 2, Rule 2 is to be looked to from the point of view of the plaintiff’s claim and not from the point of view of the defence.
It has been further held as follows:
Order 2, Rule 2 is obviously aimed against multiplicity of suits in respect of the same cause of action. Cause of action means, every fact which it will be necessary for the plaintiff to prove if traversed in order to support his right to judgment. If the evidence to support the two claims is different then, the causes of action are also different. Cause of action in the two suits may be considered to be the same if in substance they are identical.
In the case reported in Dominic Ammal v. Anr. Muthusamy and Anr. 1986 T.L.N.J. 117, Nainar Sundaram, J., held that where in an earlier suit for declaration and injunction the finding was that the plaintiff was out of possession in respect of certain properties and the relief of declaration was only given and the relief of injunction was refused on the ground that he was not in possession, the subsequent suit for possession based on the declaration given in the previous suit is not barred under Order 2, Rule 2, C.P.C.
7. Considering the above decisions the tests to be applied in cases where the plea of bar of the suit under Order 2, Rule 2, C.P.C., is raised are as follows:
1. Whether the cause of action in the previous suit and the subsequent suit is identical?
2. Whether the relief claimed in the subsequent suit could have been given in the previous suit on the basis of the pleadings made in the plaint?
3. Whether the plaintiff omitted to sue for a particular relief on the cause of action which has been disclosed in the previous suit?
Applying the above tests to this case it is seen that in the previous suit the plaint proceeded on the footing that the respondent was in possession of the properties and on that basis a prayer for declaration and injunction was made. On the basis of the pleadings the relief of, possession could not have been asked for by the respondent in the previous suit. The cause of action in the subsequent suit is trespass made by the appellant which is entirely different from the cause of action in the previous suit. Hence, it cannot be said that the subsequent suit is barred under the provisions of Order 2, Rule 2, C.P.C.
8. Mr. Doraiswami, learned Counsel for the appellant, was at pains to point out that in this case in the previous suit the respondent was found to be out of possession and she had admitted in her evidence that she was not in possession even on the date of filing the suit and hence she ought to have asked for the relief of possession even in the previous suit and she having not asked for the same is precluded from asking for the relief of possession in the subsequent suit under Order 2, Rule 2, C.P.C. But in applying the provisions of Order 2, Rule 2, C.P.C., we are concerned mainly with the pleadings in the plaint. The test to be applied is whether the relief in respect of which the bar under Order 2, Rule 2, C.P.C., is raised could have been asked for in the previous suit. But in this case taking into consideration the pleadings in the previous suit that the respondent was in possession of the property she could not have, asked for the relief of possession in the previous suit. The only thing that remains to be considered is whether in view of the fact that she was really out of possession at the time of the previous suit and having falsely stated that that she was in possession in the previous suit and the Court found that she was not in possession, she can file a subsequent suit for possession. In the case reported in Dwaraka Bai v. Prayag Bai 37 Deccan L.R. 591, the Court seems to have taken the view that if the plaintiff who is manifestly out of possession intentionally keeps that fact concealed from the Court and avers that he has possession he should not afterwards be allowed to amend the plaint so as to include a prayer for possession. But a Full Bench of the Hyderabad High Court in the case reported in Maruthi v. Ranganatha I.L.R. (1954) Hyd. 575, overruled the said decision and discountenanced the extreme and rigid application of these rules laid down under Order 2, Rule 2, C.P.C. One further aspect to be considered in this case is that in support of the plea under Order 2, Rule 2 all the documents will have to be filed to see whether the cause of action in both the suits are the same. That necessitates the plaint in the previous suit to be filed to see whether the causes of action in both the suits are the same. In this case the plaint in the previous suit has not been filed. But the judgment in the previous suit is filed. It is essential for the Court to know what exactly was the cause of action which was alleged in the previous suit so that the Court might be in a position to appreciate whether the cause of action, alleged in the second suit is identical with the one that was the subject matter in the previous suit. The point raised by the appellant will have to be negatived since the cause of action in the present suit and the previous suit is not the same and also on the ground that the respondent could not have asked for the relief of possession in the previous suit on the basis of the allegations made in the plaint in the previous suit. The plea of the appellant also will have to be negatived on account of non-filing of necessary documents. The decision of both the Courts below are unassailable and there are no merits in the second appeal and the same is dismissed. There will be no order as to costs.