IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 1131 of 2006()
1. VIJAYALAKSHMI,
... Petitioner
Vs
1. NARAYANAN, AGED BAOUT 68,
... Respondent
2. NALINI, AGED ABOUT 48,
3. MOHANDAS, AGED ABOUT 43,
4. KUMARI, AGED ABOUT 43,
5. LEENA, AGED ABOUT 33,
6. RAJAMMA, AGED ABOUT 48,
7. BABY, AGED ABOUT 36, D/O.PAVITHRAN,
8. SATHEESAN, AGED ABOUT 38 YEARA,
9. SHEELA, AGED 32 YEARS,
10. UNNI, AGED ABOUT 25 S/O.PAVITHRAN,
11. THAMPI, AGED ABOUT 27,
12. GEETHA, AGED ABOUT 38,
13. PREETHA, AGED ABOUT 34, D/O.DHARMAN,
14. SUDHEESH KUMAR, S/O.DHARMAN,
15. SUBHASHINI, W/O.DHARAMAN,
16. VASANTHI, W/O.LATE RAJAPPAN,
17. AJITH KUMAR, S/O.RAJAPPAN,
18. ANITHA MOL, D/O.LATE RAJAPPAN,
19. SANTHI, D/O.KOTTILAPPILLY MADHAVI,
20. RAMANI, D/O.KOTTILAPPILLY MADHAVI,
21. VIJAYAN, S/O.KOTTILAPPILLY MADHAVI,
22. USHAKUMARI, D/O.MADHAVI,
For Petitioner :SRI.T.K.VENUGOPALAN
For Respondent :SRI.AJU MATHEW
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :11/07/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No. 1131 OF 2006
............................................
DATED THIS THE 11th DAY OF JULY, 2007
JUDGMENT
Appellant is the third defendant in O.S.500 of 2000 on the
file of Munsiff Court, Aluva. First respondent originally
instituted RCP 28 of 1998 before Rent Control Court, Aluva to
evict the legal heirs of deceased Narayanan, contending that
Narayanan was the tenant of the building now occupied by the
appellant and on the death of Narayanan his rights devolved on
his wife and children. Defendants in the suit disputed the title of
first respondent. Rent Control Court, under Ext.A11 order
found that there is a bonafide dispute of title and directed first
respondent to approach the civil court. First respondent
thereafter instituted O.S.167 of 2000 on 15.4.2000 seeking a
decree for permanent prohibitory injunction restraining
appellant and others from carrying out any resconstruction in
the building. No decree for recovery of possession was sought
for and it was only a suit for injunction. Subsequently O.S.500 of
2000 was filed on 13.11.2000 seeking a decree for recovery of
possession on the strength of title. The suit was resisted by
defendants disputing the title as well as the right to recover
RSA 1131/2006 2
possession. It was also contended that suit is barred under
Order II Rule 2 of Code of Civil Procedure in view of the
omission to claim a decree for recovery of possession in O.S.167
of 2000.
2. Learned Munsiff on the evidence of PW1 and Exts.A1 to
A18 and Ext.C1 and C1(a) dismissed the suit holding that suit is
barred under Order II Rule 2 of the Code and without
terminating tenancy by sending a notice under Section 106 of
the Transfer of Property Act, first respondent is not entitled to
recover possession of the building. First respondent challenged
the decree and judgment before Additional District Court, North
Paravur in A.S.2 of 2005. Learned Additional District Judge, on
reappreciation of evidence, set aside the findings of learned
Munsiff and held that suit is not barred under Order II Rule 2 of
the Code as the original suit was only one for injunction and the
latter suit was for recovery of possession and not on the same
cause of action. Learned District Judge also found that as
defendants are not claiming that they are tenants, no notice
under Section 106 of the Transfer of Property Act is warranted,
as the suit was instituted consequent to Ext.A11 order as the
tenancy was disputed and findings of learned Munsiff is
RSA 1131/2006 3
unsustainable. Upholding the title under Ext.A1 to A3 as well as
the bonafide need as provided under Section 11(3), learned
District Judge granted a decree for recovery of possession on the
ground 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 learned
counsel appearing for respondent who appeared consequent to
the aplication filed under Section 5 of Limitation Act to condone
the delay in filing appeal, were heard.
4. Learned counsel appearing for appellant challenged that
the decree granted by first appellate court on the ground that
the claim for recovery of possession was available to first
respondent when O.S.167 of 2000 was filed on 15.4.2000 and as
first respondent omitted to claim a decree for recovery of
possession, under Sub rule 2 of Rule 2 of Order II, the suit is
barred and the finding of learned District Judge is unsustainable.
Reliance was placed on the decision of Apex Court in
Sidramappa V. Rajashetty and others ( AIR 1970 SC 1059).
5. Learned counsel appearing for first respondent
submitted that the plea under Order II Rule 2 is not sustainable
without producing the pleadings in the earlier suit as well as the
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judgment and as the plaint and written statement of O.S.167 of
2000 were not produced, appellant cannot be heard to contend
that suit is barred under Order II Rule 2. Reliance was placed
on the decision of Apex Court in Bengal Waterproof Limited
V. M/s. Bombay Waterproof Manufacturing Company and
another (AIR 1997 SC 1398) and a Division Bench decision of
this court in K.S.E.B V. Abraham (2006(4) KLT 770). Relying
on the decision of Apex Court in Inacio Martins V. Narayan
Hari Naik and others (AIR 1993 SC 1756) and Kunjan Nair
Sivaraman Nair V. Narayanan Nair (AIR 2004 SC 1761)
learned counsel argued that as the cause of action in the first
suit, which was only a suit for injunction, was different from the
cause of action for the latter suit, which was for recovery of
possession, the second suit is not barred under Order II Rule 2
of the Code. Relying on the decision of the High Court of Punjab
in Prakash Aggarwal V. Haryana Financial Corporation,
Chandigar( AIR 1999 Punjab and Haryana 225) learned
counsel argued that as O.S.167 of 2000 was withdrawn with
liberty to file a fresh suit as evidenced by Ext.A16 judgment and
so in any event the subsequent suit is not barred under Order II
Rule 2.
RSA 1131/2006 5
6. Though learned counsel appearing for appellant
vehemently argued that the failure to seek a decree for recovery
of possession in O.S.167 of 2000 would attract the bar provided
under sub rule 2 of Rule 2 of Order II, I cannot agree with that
submission. Rule 1 of Order II mandates that every suit as far as
practicable be so framed, so as to afford ground for final decision
upon the subjects in dispute and to prevent further litigation
concerning them. Rule 2 provides what all claims are to be
included in the plaint. Sub rule 1 of Rule 2 provides that 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. In view of sub rule 1, a
plaintiff has to include the whole of the claim which he is
entitled to make in respect of the cause of action. At the same
time in order to bring the suit within the jurisdiction of that
court where he is instituting the suit, he is entitled to relinquish
any portion of his claim. Sub rule 2 provides the consequence of
relinquishment or omission of a portionof the claim. Under Sub
rule 2, whether a plaintiff omits to sue in respect of any portion
of his claim or intentionally relinquishes any portion of the claim,
RSA 1131/2006 6
he shall not afterwards sue in respect of the portion so omitted
or relinquished. Sub rule 2 deals with the effect of an omission
or relinquishment of a portion of the claim in a suit as under rule
1 the plaintiff has to prevent further litigation and sub rule
mandates that he is to include the whole of the claim in respect
of the cause of action. If the plaintiff omits to sue or
intentionally relinquishes any portion of the claim which he
should have included in the plaint he shall not afterwards sue in
respect of the portion so omitted or relinquished. Therefore the
omission or relinquishment which bars the institution of a
subsequent suit could only be an omission or relinquishment of a
portion of the claim in respect of the same cause of action. It has
no application if the subsequent suit is in respect of a different
cause of action. Sub rule 3 of Rule 2 provides that if a person
who is entitled to more than one relief in respect of the same
cause of action omits to do so except with the leave of the court,
he shall not afterwards sue for any relief so omitted. Therefore if
the omission to raise a claim in the former suit in respect of the
cause of action, if he is entitled to more than one relief was
without the leave of the court, sub rule 3 operate as a bar from
suing for that relief. But if that omission was with the leave of
RSA 1131/2006 7
the 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 of
action. Apex Court in Sidramappa’s case (supra) considering the
cause of action contemplated under Rule 2 of Order II held ” The
requirement of Order II Rule 2 of Code of Civil Procedure is that
every suit should include the whole of the claim which the
plaintiff is entitled to make in respect of a cause of action. Cause
of action means cause of action for which the suit was brought. It
cannot be said that the cause of action on which the present suit
was brought is the same as that in the previous suit. Cause of
action is a cause of action which gives occasion for and forms
the foundation of the suit. If that cause of action enables a
person to ask for a larger and wider relief than that to which he
limits his claim, he cannot afterwards seek to recover the
balance by independent proceedings”.
7. Failure of first respondent to raise a claim for recovery of
possession in O.S.167 of 2000 is not a bar to institute another
suit for recovery of possession, as the cause of action was
different. The cause of action in a suit for injunction and a suit
for recovery of possession are different. The cause of action in
respect of the suit for injunction is the apprehended attempt on
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the part of the legal heirs of the original tenant to resconstruct
the building. The cause of action for the present suit is
continuation of the illegal possession of the building by legal
heirs of the original tenant, after denying the title of first
respondent. In such circumstances the first appellate court
rightly held that the second suit is not barred by the provisions
of Order II Rule 2.
8. Apex Court in Inacio Martins’s case (supra)
considered the question whether a subseqeunt suit for recovery
of possession is barred under Rule 3 of Order II of the Code. It
was held
” It is well known that Order 2, Rule 2,
C.P.C is based on the salutary principle
that a defendant or defendants should
not be twice vexed for the same cause
by splitting the claim and the reliefs.
To preclude the plaintiff from so doing
it is provided that if he omits any part
of the claim or fails to claim a remedy
available to him in respect of that
cause of action he will thereafter be
RSA 1131/2006 9
precluded from so doing in any
subsequent litigation that he may
commence if he has not obtained the
prior permission of the court. But the
Rule does not preclude a second suit
based on a distinct cause of action. It
may be out of place to clarify that the
doctrine of res judicata differs from the
rule embodied in Order 2, Rule 2, in
that, the former places emphasis on
the plaintiff’s duty to exhaust all
available grounds in support of his
claim while the latter requires the
plaintiff to claim all reliefs emanating
from the same cause of action. The
High Court is, therefore, clearly wrong
in its view that the relief claimed is
neither relevant nor material”.
Dealing with the difference in cause of action it was held
” Therefore the cause of action for the
former suit was based on an
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apprehension that the defendants were
likely to forcibly dispossess the
plaintiff. The cause of action for that
suit was not on the premise that he
had in fact been illegally and forcibly
dispossessed and needed the court’s
assistance to be restored to
possession. Therefore, the subsequent
suit was based on a distinct cause of
action not found in the former suit and
hence we do not think that the High
Court was right in concluding that the
suit was barred by Order 2, Rule 2(3)
of the Code of Civil Procedure. It may
be that the subject matter of the suit
was the very same property but the
cause of action was distinct and so also
the relief claimed in the subsequent
suit was not identical to the relief
claimed in the previous suit. The High
Court was, therefore, wrong in
RSA 1131/2006 11
thinking that the difference in the
reliefs claimed in the two suits was
immaterial and irrelevant. In the
previous suit the relief for possession
was not claimed whereas in the second
suit the relief was for restoration of
possession. That makes all the
difference”.
The same principle has been followed in Kunjan Nair
Sivaraman Nair’s case (supra).
9. There is force in the submission of learned counsel
appearing for respondent that a plea on the bar under Rule 2 of
Order II is not available without producing the pleadings in the
former suit. A Constitution Bench of the Apex Court in Gurbux
Singh V. Bhooral (AIR 1964 SC 1810)considered this aspect
and held :
” In order that a plea of a bar under
O.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
RSA 1131/2006 12
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
RSA 1131/2006 13
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
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 O.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
O.2, R.2, Civil Procedure Code. The
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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 O.2, R.2, Civil
Procedure Code was not
maintainable”.
Apex Court in Bengal Waterproof Limited’s case (supra)
followed this position. A Division Bench of this court in
K.S.E.B V. Abraham (supra)also held that without producing
the pleading and judgment in the former suit, party is
precluded from raising the plea.
10. Finally when the former suit itself was withdrawn the
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plea of bar under rule 2 of Order II will not lie. I am supported
by the decision of a Single Judge of High Court of Punjab in
Harbhagwan and others V. Punni Devi and others (AIR
1999 Pubjab and Haryana 223). His lordship held :
“Assuming, the cause of action in
both the suits was based upon
title in the suit land and was akin
in all the cases, yet, as referred to
above, inasmuch the earlier two
suits were dismissed as
withdrawn with permission to file
fresh on the same cause of action,
third suit will not be barred by
any principle of law”.
As no substantial question of law is involved the appeal is
dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-