{"id":111338,"date":"2007-07-11T00:00:00","date_gmt":"2007-07-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/vijayalakshmi-vs-narayanan-on-11-july-2007"},"modified":"2018-03-07T18:31:53","modified_gmt":"2018-03-07T13:01:53","slug":"vijayalakshmi-vs-narayanan-on-11-july-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/vijayalakshmi-vs-narayanan-on-11-july-2007","title":{"rendered":"Vijayalakshmi vs Narayanan on 11 July, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Vijayalakshmi vs Narayanan on 11 July, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nRSA No. 1131 of 2006()\n\n\n1. VIJAYALAKSHMI,\n                      ...  Petitioner\n\n                        Vs\n\n\n\n1. NARAYANAN, AGED BAOUT 68,\n                       ...       Respondent\n\n2. NALINI, AGED ABOUT 48,\n\n3. MOHANDAS, AGED ABOUT 43,\n\n4. KUMARI, AGED ABOUT 43,\n\n5. LEENA, AGED ABOUT 33,\n\n6. RAJAMMA, AGED ABOUT 48,\n\n7. BABY, AGED ABOUT 36, D\/O.PAVITHRAN,\n\n8. SATHEESAN, AGED ABOUT 38 YEARA,\n\n9. SHEELA, AGED 32 YEARS,\n\n10. UNNI, AGED ABOUT 25 S\/O.PAVITHRAN,\n\n11. THAMPI, AGED ABOUT 27,\n\n12. GEETHA, AGED ABOUT 38,\n\n13. PREETHA, AGED ABOUT 34, D\/O.DHARMAN,\n\n14. SUDHEESH KUMAR, S\/O.DHARMAN,\n\n15. SUBHASHINI, W\/O.DHARAMAN,\n\n16. VASANTHI, W\/O.LATE RAJAPPAN,\n\n17. AJITH KUMAR, S\/O.RAJAPPAN,\n\n18. ANITHA MOL, D\/O.LATE RAJAPPAN,\n\n19. SANTHI, D\/O.KOTTILAPPILLY MADHAVI,\n\n20. RAMANI, D\/O.KOTTILAPPILLY MADHAVI,\n\n21. VIJAYAN, S\/O.KOTTILAPPILLY MADHAVI,\n\n22. USHAKUMARI, D\/O.MADHAVI,\n\n                For Petitioner  :SRI.T.K.VENUGOPALAN\n\n                For Respondent  :SRI.AJU MATHEW\n\nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR\n\n Dated :11\/07\/2007\n\n O R D E R\n                  M.SASIDHARAN NAMBIAR, J.\n                    ...........................................\n                   R.S.A.No. 1131               OF 2006\n                    ............................................\n          DATED THIS THE 11th DAY OF JULY, 2007\n\n                               JUDGMENT\n<\/pre>\n
      Appellant is the third defendant in O.S.500 of 2000 on the<\/p>\n
file of Munsiff Court, Aluva.                  First respondent originally<\/p>\n
instituted RCP 28 of 1998 before Rent Control Court, Aluva to<\/p>\n
evict the legal heirs of deceased Narayanan, contending that<\/p>\n
Narayanan was the tenant of the building now occupied by the<\/p>\n
appellant and on the death of Narayanan his rights devolved on<\/p>\n
his wife and children. Defendants in the suit disputed the title of<\/p>\n
first respondent.      Rent Control Court, under Ext.A11 order<\/p>\n
found that there is a bonafide dispute of title and directed first<\/p>\n
respondent to approach the civil court.                         First respondent<\/p>\n
thereafter instituted O.S.167 of 2000 on 15.4.2000 seeking a<\/p>\n
decree    for permanent           prohibitory           injunction    restraining<\/p>\n
appellant and others from carrying out any resconstruction in<\/p>\n
the building. No decree for recovery of possession was sought<\/p>\n
for and it was only a suit for injunction. Subsequently O.S.500 of<\/p>\n
2000 was filed on 13.11.2000 seeking a decree for recovery of<\/p>\n
possession on the strength of title. The suit was resisted by<\/p>\n
defendants disputing the title as well as the right to recover<\/p>\n
RSA 1131\/2006                   2<\/span><\/p>\n
possession. It was also contended that suit is barred under<\/p>\n
Order II Rule 2 of Code of Civil Procedure        in view of the<\/p>\n
omission to claim a decree for recovery of possession in O.S.167<\/p>\n
of 2000.\n<\/p>\n
       2. Learned Munsiff on the evidence of PW1 and Exts.A1 to<\/p>\n
A18 and Ext.C1 and C1(a) dismissed the suit holding that suit is<\/p>\n
barred under Order II Rule 2 of the Code and without<\/p>\n
terminating tenancy by sending a notice under Section 106 of<\/p>\n
the Transfer of Property Act, first respondent is not entitled to<\/p>\n
recover possession of the building. First respondent challenged<\/p>\n
the decree and judgment before Additional District Court, North<\/p>\n
Paravur in A.S.2 of 2005. Learned Additional District Judge, on<\/p>\n
reappreciation of evidence, set aside the findings of learned<\/p>\n
Munsiff and held that suit is not barred under Order II Rule 2 of<\/p>\n
the Code as the original suit was only one for injunction and the<\/p>\n
latter suit was for recovery of possession and not on the same<\/p>\n
cause of action.     Learned District Judge also found that as<\/p>\n
defendants are not claiming that they are tenants, no notice<\/p>\n
under Section 106 of the Transfer of Property Act is warranted,<\/p>\n
as the suit was instituted consequent to Ext.A11 order as the<\/p>\n
tenancy was disputed and findings of learned Munsiff is<\/p>\n
RSA 1131\/2006                    3<\/span><\/p>\n
unsustainable. Upholding the title under Ext.A1 to A3 as well as<\/p>\n
the bonafide need as provided under Section 11(3), learned<\/p>\n
District Judge granted a decree for recovery of possession on the<\/p>\n
ground provided under Section 11(3) of Kerala Act 2 of 1965.<\/p>\n
The decree and judgment are challenged in the second appeal.<\/p>\n
     3. Learned counsel appearing for appellant and learned<\/p>\n
counsel appearing for respondent who appeared consequent to<\/p>\n
the aplication filed under Section 5 of Limitation Act to condone<\/p>\n
the delay in filing appeal, were heard.\n<\/p>\n
     4. Learned counsel appearing for appellant challenged that<\/p>\n
the decree granted by first appellate court on the ground that<\/p>\n
the claim for recovery of possession was available to first<\/p>\n
respondent when O.S.167 of 2000 was filed on 15.4.2000 and as<\/p>\n
first respondent omitted to claim a decree for recovery of<\/p>\n
possession, under Sub rule 2 of Rule 2 of Order II, the suit is<\/p>\n
barred and the finding of learned District Judge is unsustainable.<\/p>\n
Reliance was placed on the decision of Apex Court in<\/p>\n
Sidramappa V. Rajashetty and others<\/a> ( AIR 1970 SC 1059).<\/p>\n
     5.      Learned counsel appearing for first respondent<\/p>\n
submitted that the plea under Order II Rule 2 is not sustainable<\/p>\n
without producing the pleadings in the earlier suit as well as the<\/p>\n
RSA 1131\/2006                      4<\/span><\/p>\n
judgment and as the plaint and written statement of O.S.167 of<\/p>\n
2000 were not produced, appellant cannot be heard to contend<\/p>\n
that suit is barred under Order II Rule 2. Reliance was placed<\/p>\n
on the decision of Apex Court in Bengal Waterproof Limited<\/p>\n
V. M\/s. Bombay Waterproof Manufacturing Company and<\/a><\/p>\n
another (AIR 1997 SC 1398) and a Division Bench decision of<\/p>\n
this court in K.S.E.B V. Abraham<\/a> (2006(4) KLT 770). Relying<\/p>\n
on the decision of Apex Court in Inacio Martins V. Narayan<\/p>\n
Hari Naik and others (AIR<\/a> 1993 SC 1756) and Kunjan Nair<\/p>\n
Sivaraman Nair V. Narayanan Nair (AIR<\/a> 2004 SC 1761)<\/p>\n
learned counsel argued that as the cause of action in the first<\/p>\n
suit, which was only a suit for injunction, was different from the<\/p>\n
cause of action for the latter suit, which was for recovery of<\/p>\n
possession, the second suit is not barred under Order II Rule 2<\/p>\n
of the Code. Relying on the decision of the High Court of Punjab<\/p>\n
in   Prakash Aggarwal V. Haryana Financial Corporation,<\/p>\n
Chandigar( AIR 1999 Punjab and Haryana 225) learned<\/p>\n
counsel argued that as O.S.167 of 2000 was withdrawn with<\/p>\n
liberty to file a fresh suit as evidenced by Ext.A16 judgment and<\/p>\n
so in any event the subsequent suit is not barred under Order II<\/p>\n
Rule 2.\n<\/p>\n
RSA 1131\/2006                     5<\/span><\/p>\n
      6. Though learned counsel appearing for appellant<\/p>\n
vehemently argued that the failure to seek a decree for recovery<\/p>\n
of possession in O.S.167 of 2000 would attract the bar provided<\/p>\n
under sub rule 2 of Rule 2 of Order II, I cannot agree with that<\/p>\n
submission. Rule 1 of Order II mandates that every suit as far as<\/p>\n
practicable be so framed, so as to afford ground for final decision<\/p>\n
upon the subjects in dispute and to prevent further litigation<\/p>\n
concerning them. Rule 2 provides what all claims are to be<\/p>\n
included in the plaint.  Sub rule 1 of Rule 2 provides that every<\/p>\n
suit shall include the whole of the claim which the plaintiff is<\/p>\n
entitled to make in respect of the cause of action but a plaintiff<\/p>\n
may relinquish any portion of his claim in order to bring the suit<\/p>\n
within the jurisdiction of any court. In view of sub rule 1, a<\/p>\n
plaintiff has   to include the whole of the claim which he is<\/p>\n
entitled to make in respect of the cause of action. At the same<\/p>\n
time in order to bring the suit within the jurisdiction of that<\/p>\n
court where he is instituting the suit, he is entitled to relinquish<\/p>\n
any portion of his claim. Sub rule 2 provides the consequence of<\/p>\n
relinquishment or omission of a portionof the claim. Under Sub<\/p>\n
rule 2, whether a plaintiff omits to sue in respect of any portion<\/p>\n
of his claim or intentionally relinquishes any portion of the claim,<\/p>\n
RSA 1131\/2006                    6<\/span><\/p>\n
he shall not afterwards sue in respect of the portion so omitted<\/p>\n
or relinquished. Sub rule 2 deals with the effect of an omission<\/p>\n
or relinquishment of a portion of the claim in a suit as under rule<\/p>\n
1 the plaintiff has to prevent further litigation and sub rule<\/p>\n
mandates that he is to include the whole of the claim in respect<\/p>\n
of the cause of action.        If the plaintiff omits to sue or<\/p>\n
intentionally relinquishes any portion of the claim which he<\/p>\n
should have included in the plaint he shall not afterwards sue in<\/p>\n
respect of the portion so omitted or relinquished. Therefore the<\/p>\n
omission or relinquishment which bars the institution of a<\/p>\n
subsequent suit could only be an omission or relinquishment of a<\/p>\n
portion of the claim in respect of the same cause of action. It has<\/p>\n
no application if the subsequent suit is in respect of a different<\/p>\n
cause of action. Sub rule 3 of Rule 2 provides that if a person<\/p>\n
who is entitled to more than one relief in respect of the same<\/p>\n
cause of action omits to do so except with the leave of the court,<\/p>\n
he shall not afterwards sue for any relief so omitted. Therefore if<\/p>\n
the omission to raise a claim in the former suit in respect of the<\/p>\n
cause of action, if he is entitled to more than one relief was<\/p>\n
without the leave of the court, sub rule 3 operate as a bar from<\/p>\n
suing for that relief. But if that omission was with the leave of<\/p>\n
RSA 1131\/2006                      7<\/span><\/p>\n
the court, there is no bar to sue in respect of the omitted relief.<\/p>\n
The bar under sub rule 3 is in respect of the same cause of<\/p>\n
action. Apex Court in Sidramappa’s case (supra) considering the<\/p>\n
cause of action contemplated under Rule 2 of Order II held ” The<\/p>\n
requirement of Order II Rule 2 of Code of Civil Procedure is that<\/p>\n
every suit should include the whole of the claim which the<\/p>\n
plaintiff is entitled to make in respect of a cause of action. Cause<\/p>\n
of action means cause of action for which the suit was brought. It<\/p>\n
cannot be said that the cause of action on which the present suit<\/p>\n
was brought is the same as that in the previous suit. Cause of<\/p>\n
action is a cause of action which gives occasion for and forms<\/p>\n
the foundation of the suit. If that cause of action enables a<\/p>\n
person to ask for a larger and wider relief than that to which he<\/p>\n
limits his claim, he cannot afterwards seek to recover the<\/p>\n
balance by independent proceedings”.\n<\/p>\n
     7. Failure of first respondent to raise a claim for recovery of<\/p>\n
possession in O.S.167 of 2000 is not a bar to institute another<\/p>\n
suit for recovery of possession, as the cause of action was<\/p>\n
different. The cause of action in a suit for injunction and a suit<\/p>\n
for recovery of possession are different. The cause of action in<\/p>\n
respect of the suit for injunction is the apprehended attempt on<\/p>\n
RSA 1131\/2006                     8<\/span><\/p>\n
the part of the legal heirs of the original tenant to resconstruct<\/p>\n
the building.     The cause of action for the present suit is<\/p>\n
continuation of the illegal possession of the building by legal<\/p>\n
heirs of the original tenant, after denying the title of first<\/p>\n
respondent.     In such circumstances the first appellate court<\/p>\n
rightly held that the second suit is not barred by the provisions<\/p>\n
of Order II Rule 2.\n<\/p>\n
         8.   Apex Court in      Inacio Martins’s case (supra)<\/p>\n
considered the question whether a subseqeunt suit for recovery<\/p>\n
of possession is barred under Rule 3 of Order II of the Code. It<\/p>\n
was held<\/p>\n
             ” It is well known that Order 2, Rule 2,<\/p>\n
             C.P.C is based on the salutary principle<\/p>\n
             that a defendant or defendants should<\/p>\n
             not be twice vexed for the same cause<\/p>\n
             by splitting the claim and the reliefs.\n<\/p>\n
             To preclude the plaintiff from so doing<\/p>\n
             it is provided that if he omits any part<\/p>\n
             of the claim or fails to claim a remedy<\/p>\n
             available to him in respect of that<\/p>\n
             cause of action he will thereafter be<\/p>\n
RSA 1131\/2006                     9<\/span><\/p>\n
             precluded from so doing in any<\/p>\n
             subsequent litigation that he may<\/p>\n
             commence if he has not obtained the<\/p>\n
             prior permission of the court. But the<\/p>\n
             Rule does not preclude a second suit<\/p>\n
             based on a distinct cause of action. It<\/p>\n
             may be out of place to clarify that the<\/p>\n
             doctrine of res judicata differs from the<\/p>\n
             rule embodied in Order 2, Rule 2, in<\/p>\n
             that, the former places emphasis on<\/p>\n
             the plaintiff’s duty to exhaust all<\/p>\n
             available grounds in support of his<\/p>\n
             claim while the latter requires the<\/p>\n
             plaintiff to claim all reliefs emanating<\/p>\n
             from the same cause of action. The<\/p>\n
             High Court is, therefore, clearly wrong<\/p>\n
             in its view that the relief claimed is<\/p>\n
             neither relevant nor material”.\n<\/p>\n
Dealing with the difference in cause of action it was held<\/p>\n
             ” Therefore the cause of action for the<\/p>\n
             former     suit  was    based     on   an<\/p>\n
RSA 1131\/2006                    10<\/span><\/p>\n
             apprehension that the defendants were<\/p>\n
             likely   to  forcibly  dispossess   the<\/p>\n
             plaintiff. The cause of action for that<\/p>\n
             suit was not on the premise that he<\/p>\n
             had in fact been illegally and forcibly<\/p>\n
             dispossessed and needed the court’s<\/p>\n
             assistance    to    be   restored     to<\/p>\n
             possession. Therefore, the subsequent<\/p>\n
             suit was based on a distinct cause of<\/p>\n
             action not found in the former suit and<\/p>\n
             hence we do not think that the High<\/p>\n
             Court was right in concluding that the<\/p>\n
             suit was barred by Order 2, Rule 2(3)<\/p>\n
             of the Code of Civil Procedure. It may<\/p>\n
             be that the subject matter of the suit<\/p>\n
             was the very same property but the<\/p>\n
             cause of action was distinct and so also<\/p>\n
             the relief claimed in the subsequent<\/p>\n
             suit was not identical to the relief<\/p>\n
             claimed in the previous suit. The High<\/p>\n
             Court    was,   therefore,   wrong    in<\/p>\n
RSA 1131\/2006                   11<\/span><\/p>\n
             thinking that the difference in the<\/p>\n
             reliefs claimed in the two suits was<\/p>\n
             immaterial and irrelevant.      In the<\/p>\n
             previous suit the relief for possession<\/p>\n
             was not claimed whereas in the second<\/p>\n
             suit the relief was for restoration of<\/p>\n
             possession.   That    makes    all  the<\/p>\n
             difference”.\n<\/p>\n
     The same principle has been followed in       Kunjan Nair<\/p>\n
Sivaraman Nair’s case (supra).\n<\/p>\n
     9.   There is force in the submission of learned counsel<\/p>\n
appearing for respondent that a plea on the bar under Rule 2 of<\/p>\n
Order II is not available without producing the pleadings in the<\/p>\n
former suit.   A Constitution Bench of the Apex Court in Gurbux<\/p>\n
Singh V. Bhooral (AIR 1964 SC 1810)considered this aspect<\/p>\n
and held :\n<\/p>\n
           ” In order that a plea of a bar under<\/p>\n
           O.2 R.2(3), Civil Procedure Code<\/p>\n
           should succeed the defendant who<\/p>\n
           raises the plea must make out(1)<\/p>\n
           that the second suit was in respect of<\/p>\n
RSA 1131\/2006                    12<\/span><\/p>\n
           the same cause of action as that on<\/p>\n
           which the previous suit was based:<\/p>\n
           (2) that in respect of that cause of<\/p>\n
           action the plaintiff was entitled to<\/p>\n
           more than one relief;(3) that being<\/p>\n
           thus entitled to more than one relief<\/p>\n
           the plaintiff, without leave obtained<\/p>\n
           from the Court,omitted to sue for the<\/p>\n
           relief for which the second suit had<\/p>\n
           been filed.    From this analysis it<\/p>\n
           would be seen that the defendant<\/p>\n
           would have to establish primarily<\/p>\n
           and to start with, the precise cause<\/p>\n
           of action upon which the previous<\/p>\n
           suit was filed, for unless there is<\/p>\n
           identity between the cause of action<\/p>\n
           on which the earlier suit was filed<\/p>\n
           and that on which the claim in the<\/p>\n
           later suit is based there would be no<\/p>\n
           scope for the application of the bar.<\/p>\n
           No doubt, a relief which is sought in<\/p>\n
RSA 1131\/2006                    13<\/span><\/p>\n
           a plaint could ordinarily be traceable<\/p>\n
           to a particular cause of action but<\/p>\n
           this might, by no means, be the<\/p>\n
           universal rule.     As the plea is<\/p>\n
           technical bar it has to be established<\/p>\n
           satisfactorily   and     cannot     be<\/p>\n
           presumed     merely    on    basis  of<\/p>\n
           inferential reasoning. It is for this<\/p>\n
           reason that we consider that a plea<\/p>\n
           of a bar under O.2, R.2, Civil<\/p>\n
           Procedure Code can be established<\/p>\n
           only   if  the   defendant    files in<\/p>\n
           evidence    the   pleadings    in  the<\/p>\n
           previous suit and thereby proves to<\/p>\n
           the Court the identity of the cause of<\/p>\n
           action in the two suits. It is common<\/p>\n
           ground that the pleadings in C.S.28<\/p>\n
           of 1950 were not filed by the<\/p>\n
           appellant in the present suit as<\/p>\n
           evidence in support of his plea under<\/p>\n
           O.2, R.2, Civil Procedure Code. The<\/p>\n
RSA 1131\/2006                    14<\/span><\/p>\n
           learned    trial   Judge,    however,<\/p>\n
           without these pleadings being on the<\/p>\n
           record inferred what the cause of<\/p>\n
           action should have been from the<\/p>\n
           reference    to  the   previous    suit<\/p>\n
           contained in the plaint as a matter of<\/p>\n
           deduction.    At the stage of the<\/p>\n
           appeal the learned District Judge<\/p>\n
           noticed this lacuna in the appellant’s<\/p>\n
           case and pointed out, in our opinion<\/p>\n
           rightly, that without the plaint in the<\/p>\n
           previous suit being on the record, a<\/p>\n
           plea of a bar under O.2, R.2, Civil<\/p>\n
           Procedure       Code      was       not<\/p>\n
           maintainable”.\n<\/p><\/blockquote>\n
Apex Court in Bengal Waterproof Limited’s case (supra)<\/p>\n
followed this position.     A Division Bench of this court in<\/p>\n
K.S.E.B V. Abraham<\/a> (supra)also held that without producing<\/p>\n
the pleading and judgment in the former suit, party         is<\/p>\n
precluded from raising the plea.\n<\/p>\n
     10. Finally when the former suit itself was withdrawn the<\/p>\n
RSA 1131\/2006                    15<\/span><\/p>\n
plea of bar under rule 2 of Order II will not lie. I am supported<\/p>\n
by the decision of a Single Judge of High Court of Punjab in<\/p>\n
Harbhagwan and others V. Punni Devi and others (AIR<\/p>\n
1999 Pubjab and Haryana 223). His lordship held :<\/p>\n
             “Assuming, the cause of action in<\/p>\n
             both the suits was based upon<\/p>\n
             title in the suit land and was akin<\/p>\n
             in all the cases, yet, as referred to<\/p>\n
             above, inasmuch the earlier two<\/p>\n
             suits     were      dismissed     as<\/p>\n
             withdrawn with permission to file<\/p>\n
             fresh on the same cause of action,<\/p>\n
             third suit will not be barred by<\/p>\n
             any principle of law”.<\/p><\/blockquote>\n
     As no substantial question of law is involved the appeal is<\/p>\n
dismissed in limine.\n<\/p>\n<\/p>\n
                           M.SASIDHARAN NAMBIAR, JUDGE<\/p>\n
lgk\/-<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Vijayalakshmi vs Narayanan on 11 July, 2007 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-111338","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nVijayalakshmi vs Narayanan on 11 July, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/vijayalakshmi-vs-narayanan-on-11-july-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Vijayalakshmi vs Narayanan on 11 July, 2007 - 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