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2008 DIGILAW 413 (JK)

Balwant Rai v. Mohan Lal

2008-11-03

J.P.SINGH

body2008
1. Petitioner has filed these revision petitions calling in question 2nd Additional District Judge, Jammus order September 24, 2007 deciding three preliminary issues framed in respondents 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:-- 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 2. Appearing in support of the Revision petitions, Mr. Jatinder Choudhary assails the findings of the trial Court on issue No. 2 saying that respondents suit 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 and 6/2006 (reported in AIR 2008 J. and K. 37) to support his submission. 3. Learned counsel had made a feeble attempt to question the findings of the trial Court on issue Nos. 1 and 3 saying that the plaints having not been drawn, in requisite form, the respondents suits, which were otherwise barred by the principle of constructive res judicata, were unsustainable. 4. 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 respondents subsequent suits. 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 respondents 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. 5. I have considered the submissions of learned counsel for the parties and gone through the records of the case. 6. Before dealing with the submissions raised at the Bar, few facts need to be noticed. 7. 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 14-1-1994 and 15-8-1995, the respondent-plaintiff had filed a suit against the petitioner-defendant 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 and to refrain from taking any advance for, or/and to execute Sale Deed of the house. It has been pleaded by the respondent-plaintiff in the suit that 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 2-6-1998 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. 8. With the aforementioned facts in view, I will proceed to examine the submissions made at the Bar. 9. 8. With the aforementioned facts in view, I will proceed to examine the submissions made at the Bar. 9. 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 :-- "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, immediately below the number of the suit in the title of the suit, namely :-- "(Under Order XXXVII of the Code of Civil Procedure, Svt. 1977)"." 10. 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. 11. Be that as it may, what I find from the reading of respondents 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." 12. 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 Honble Court. Hence this Honble Court has got the jurisdiction to entertain the summary suit under Order 37, Rule 2 of C.P.C. and grant the relief." "It is, therefore, respectfully prayed that a decree for recovery of Rs. Hence this Honble Court has got the jurisdiction to entertain the summary suit under Order 37, Rule 2 of 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." 13. Perusal of respondents 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. 14. 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. 15. I, therefore, do not find any error in trial Courts deciding issue No. 1 against the petitioner. 16. I will now proceed to examine petitioners counsels second submission that the respondents 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 and 3 against the petitioner. 17. 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 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. 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 alone, 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. 18. 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. 19. 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. 20. 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 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. 21. It was observed by the Privy Council in Payana v. 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. 22. 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. 22. 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 respondents earlier suit, based on Agreement to Sell dated 2-6-1998 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 respondent to file suits against the petitioner when he had refused to pay the demanded amount on 19-8-1998. 23. 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. 24. I, therefore, do not find any substance in petitioners contention that the respondents suits were hit by the bar enacted by the provisions of Order 2 Rule 2 of the Code. 25. Judgment delivered by this Court in CSA Nos. 5/2006 and 6/2006 (reported in AIR 2008 J & K 37) 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. 26. The next contention of petitioners 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 constructs res judicata would have absolutely no application to the maintainability of the present suits. 27. 27. 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. 28. There is thus no force in these revision petitions which are, accordingly, dismissed. Petition dismissed.