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2009 DIGILAW 460 (CAL)

Kalabati Debt v. Pratapi Devi

2009-06-30

INDIRA BANERJEE

body2009
Judgment :- Indira Banerjee, J. (1) This second appeal is against a judgment and decree dated 21st April, 2005 of the learned 1st Additional District Judge at Alipore, District South 24 Parganas in Title Appeal No. 265 of 1992 affirming the judgment and decree dated 15th June, 1992 passed by the 8th Additional District Judge at Alipore, District South 24 Parganas in Title Suit No. 92 of 1977. (2) By an order dated 28th November, 2005, a Division Bench of this Court admitted the appeal on the following questions of law: (a) whether the learned Courts below committed substantial error of law in passing a decree for eviction by totally overlooking the fact that a previous suit filed by the plaintiff in the year 1974 being Title Suit No. 110 of 1974 was not pressed, without taking leave to file fresh suit; (b) whether the appellate Court below committed a substantial error of law in overlooking the fact that the cause of action of the present suit was substantially the same as in the earlier Suit No. 110 of 1974 if the plaints were read as a whole. (3) The appellants claim to be tenants of the suit premises, which had been purchased by the respondents husband, on or about 27th April, 1958. According to the appellants, the respondents husband inducted the predecessor in interest of the appellants as tenant of the suit premises in 1967. The respondent, however contends that the appellants illegally occupied the suit property in 1973 and started the business of Shiv Shankarlal and Co. (4) On or about 27th February, 1974, the respondent filed the first suit being Title Suit No. 110 of 1974 on the allegation that the appellants had taken forcible possession of the suit premises. (5) On 1st August, 1977 the respondent filed a second suit being Title Suit No.92 of 1977 against the appellants inter alia claiming possession of the suit premises in addition to other reliefs similar to those claimed in the first suit. (6) At no stage, during the pendency of the first suit, was any leave obtained to institute a suit in future claiming further reliefs. On 29th March, 1979 the first suit being Title Suit No. 110 of 1974 was withdrawn by the respondent, without leave to file a fresh suit. (6) At no stage, during the pendency of the first suit, was any leave obtained to institute a suit in future claiming further reliefs. On 29th March, 1979 the first suit being Title Suit No. 110 of 1974 was withdrawn by the respondent, without leave to file a fresh suit. (7) The second suit being Title Suit No.92 of 1977 was decreed by the Trial Court on 15th June, 1992. The appellants filed an appeal being Title Appeal No.265 of 1992, which was dismissed by the First Appellate Court by a judgment and order dated 21st April, 2005, impugned in this second appeal. (8) Mr. Swapan Mallick appearing with Mr. Ramesh Sharma on behalf of the appellants, submitted that the entire cause of action for the subsequent suit had arisen prior to the filing of Title Suit No.1 10 of 1974, which had been withdrawn, without leave to file a fresh suit. (9) Analyzing the concurrent factual findings of the Trial Court and the First Appellate Court, Mr. Mallick pointed out that the Trial Court had recorded the statement of the plaintiff that the defendant had dispossessed the plaintiff on 1st February, 1974 at midnight and thereafter on 2nd February, 1974. The Trial Court found that the cause of action for the second suit, which had arisen before 27th February, 1974, had been continuing from day to day. The contention in paragraph 28 of the, plaint in the second suit that the cause of action for the said suit had again arisen during the pendency of the first suit, on the failure of the defendant to vacate the suit premises on 7th March, 1977 was not accepted by the Trial Court. The Trial Court held that there was no evidence of any request to the defendent to vacate on 7th March, 1977. The aforesaid factual finding was affirmed in appeal. (10) Mr. Mallick rightly submitted that there was no cross-appeal by the respondent against the finding that there was no evidence of any cause of action having arisen in 1977. On the admission of the respondent, the appellants and/or their predecessor in interest took forcible possession on 1st February, 1974 and again on 2nd February, 1974 and have since then been in forcible possession of the suit premises. On the admission of the respondent, the appellants and/or their predecessor in interest took forcible possession on 1st February, 1974 and again on 2nd February, 1974 and have since then been in forcible possession of the suit premises. Assuming that the appellants took forcible possession of the suit premises as alleged, such possession was taken long prior to filing of the first suit on 27th February, 1974. (11) Thus on the date of filing of the first suit, the cause of action for seeking the relief of recovery of possession had already arisen. The respondent, however, omitted to seek the relief of recovery of possession in the first suit. (12) The Trial Court, however, allowed the second suit on the purported ground that the respondent could not have sought amendment of the plaint in the first suit to include the relief of possession, as the Court would lack jurisdiction to grant the aforesaid relief. The judgment of the Trial Court has been upheld in appeal. (13) In support of his submission that the second suit was barred by law, Mr. Mallick relied on the following judgments: 1. N.V. Srtnivasa Murthy and Ors. v. Mariyamma reported in AIR 2005 SC 2897 . 2. Kamal Kishore Saboo v. N. Humayun Kamal Hasan Kiran reported in AIR 2001 Del. 220 (Div. Bench). 3. Benoy Bhusan Dasguptav. Sm. Sabitri Banerjee reported in AIR, 1977 Cal. 199. 4. Dwarkadas v. Vimal reported in AIR 1964 Bom. 42 . 5. Sherali Mridhav. Torapali reported in 46 CWN 513 and 6. Md. Hafiz and Anr. v. Mirza Muhammad Zakariya and Ors. reported in 26 CWN 297 (P.C.). (14) Order II Rule 2 of the Code of Civil Procedure, 1908 provides as follows: "O.II R.2. Suit to include the whole claim. (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. Relinquishment of part of claim. (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. Omission to sue for one of several reliefs. Relinquishment of part of claim. (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. Omission to sue for one of several reliefs. (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any or 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 purpose of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action." (15) The provision of Order II Rule 2 is founded on the principle that a person shall not be vexed twice for the same cause. The provision is directed both against the splitting up of claims and the splitting up of remedies. (16) Order II Rule 2(1) requires inclusion of the whole claim arising out of one cause of action in one suit. For application of Order II Rule 2, the Court has to look into the cause of action for the claim in the earlier suit and the later suit and ascertain whether the claim made in the subsequent suit could have been made in the previous suit. (17) The Court would thus have to be satisfied that the first and the second suit arose out of the same cause of action, or else, the cause of action on which the subsequent claim was based, had already arisen when the plaintiff sought enforcement of the first claim. (18) Where a plaintiff- relinquishes part of his claim under Order I Rule 2(1) in order to bring the suit within the jurisdiction of any Court, he does so at the peril of forgoing his right to sue in respect of that portion of his claim which he has relinquished. There can be no question of splitting of claims. The bar of Order II Rule 2(2) would be attracted. There can be no question of splitting of claims. The bar of Order II Rule 2(2) would be attracted. (19) Under Order II Rule 2(3), a plaintiff entitled to sue for more than one relief, may sue for all or any of such reliefs, but if the plaintiff omits to claim any relief, which could have been claimed, without leave of the Court to sue for such reliefs, the plaintiff would be debarred from filing any suit in future, for those reliefs. The reasons for omitting reliefs are irrelevant. Even though any reliefs might have been omitted in order to bring the suit within the jurisdiction of a Court, future suit for the reliefs omitted would still be barred, in the absence of leave of Court under Order II Rule 2(3). (20) Both the suits were between the same parties. Since the plaintiff omitted to claim the relief of possession, which he could have claimed, when the first suit was filed, the plaintiff was not entitled to institute a fresh suit, claiming the relief of possession. This view finds support from the judgment of the Supreme Court in Murthy v. Mariyamma reported in AIR 2005 SC 2997. (21) The Trial Court and the Lower Appellate Court have both arrived at the finding that dispossession took place by 2nd February, 1974. The suit having been filed on 22nd February, 1974, the relief of possession could have been claimed at that time. If the respondent chose not to sue for the relief of possession, or alternatively omitted to sue for the aforesaid relief without leave to institute a fresh suit, the bar of Order II Rule 2(3) of the Civil Procedure Code is attracted. (22) It is, therefore, not material whether the plaint could have been amended or not. At the inception the plaintiff should have invoked the jurisdiction of the appropriate Court claiming all the reliefs he could have claimed at the time of filing the suit, or alternatively obtained leave of Court under Order II Rule 2(3) to institute a fresh suit claiming further reliefs. In the absence of leave under Order II Rule 2 (3) to sue for further reliefs, the second suit was barred, and thus liable to be dismissed, as argued by Mr. Mallick. (23) Mr. Mallick further argued that the first suit having been voluntarily withdrawn. In the absence of leave under Order II Rule 2 (3) to sue for further reliefs, the second suit was barred, and thus liable to be dismissed, as argued by Mr. Mallick. (23) Mr. Mallick further argued that the first suit having been voluntarily withdrawn. Order 23 Rule 1(4) was attracted and the second suit was also barred under the said provision. Order 23 Rule 1 inter alia proves as follows: R. 1. Withdrawal of suit or abandonment of part of claim.-(l) At any time after the institution of a suit, the plaintiff may, as against all or any of the defendants, abandon his suit or abandon a part of his claim: (2)........................ (3) Where the Court s satisfied, - (a) that a suit must fail by reason of some formal defect, or (b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of such suit or such part of the claim. (4) Where the plaintiff -(a) abandons any suit or part of claim under sub-rule (1), or (b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5).............. (24) Mr. Shyamal Mukherjee appearing on behalf of the respondent, however, argued that the bar of Order 23 Rule 1 would not apply since the second suit had already been instituted, when the earlier suit was withdrawn. (25) In N.V. Srinivasa Murthy and Ors v. Mariyamma (supra), cited by Mr. Mallick the Supreme Court found that a subsequent suit, instituted while an earlier suit was pending, was barred by the provisions of Order II Rule 2 since the reliefs claimed in the subsequent suit could have been in the earlier suit. (26) In Central Group v. Unit Construction Co. Ltd. reported in (2007) 1 CHN 574 cited by Mr. Mukheajee, this Court held as follows: "Order 2 Rule 2 deals with framing of a suit which requires inclusion of whole claim arising in respect of one cause of action in one suit, and is directed against two evils viz. splitting up of claims and splitting up of remedies, the object being to prevent multiplicity of suits. Mukheajee, this Court held as follows: "Order 2 Rule 2 deals with framing of a suit which requires inclusion of whole claim arising in respect of one cause of action in one suit, and is directed against two evils viz. splitting up of claims and splitting up of remedies, the object being to prevent multiplicity of suits. It is founded on the principle that a person shall not be vexed twice for one and the same cause. For invoking Rule 2 it should 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 present suit and (3) whether the claim made in the present suit could have been made either wholly or in part in respect of the cause of action in the previous suit. "Cause of action" means the bundle of fact, which it should be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court, as was observed in the case of N. N. Mqjithia v. State of Maharashtra, reported in AIR 2000 SC 2966 . In the restricted sense it means the circumstances forming the infraction of the right or the immediate occasion for the action, whereas in the wider sense it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right but the infraction coupled with the right itself, as was held in the case of Rajasthan High Court Advocates Association v. Union of India, reported in AIR 2001 SC 436 ." (27) In the aforesaid case, however, the Court found that the cause of action in the two suits was different. The findings of the Court in this regard are as follows: "In the case on hand, the cause of action in both the suits are different, since in T.S. No.1/99 it arose on 01.12.97 when the relationship between the landlord and tenant ceased on account of non-compliance with the notice of ejectment whereas the cause of action in the subsequent suit being T.S. No.364/99 arose on 17.12.99 when the plaintiff came to learn that the defendant was going to transfer the disputed premises to third parties. In the first suit as the defendant sub-let a part or portion of the disputed premises to third parties without the consent in writing of the plaintiff sub-letting was made one of the grounds for ejectment, whereas in the subsequent suit when the defendant was going to transfer other part of the premises, the suit was instituted to restrain the defendant from doing so, and there was not scope on the part of the plaintiff to claim injunction in the first suit in respect of the said cause of action which arose later. Therefore, the question of the subsequent suit being barred under the provisions Order II Rule 2 of the Code is out of the way". (28) There can be no dispute with the proposition that a subsequent suit would be barred under Order II Rule 2. if the cause of action in the two suits was different and the relief claimed in the subsequent suit could not have been claimed in the earlier suit. The judgment in Central Group (supra) is distinguishable on facts. (29) In Inacio Martins v. Narayan Hari Nayek reported in AIR 1993 SC 1756 , cited by Mr. Mukherjee, the Supreme Court held that where an earlier suit for injunction was dimissed on the technical ground that the plaintiff was no more in possession of the suit property, a subsequent suit for declaration of title and recovery of possession was not barred by res judicata since the causes of action in the two suits were distinct. The Supreme Court found that in the earlier suit, the cause of action was based on apprehension that defendants were likely to be forcibly dispossessed plaintiff, while in the subsequent suit, the cause of action was that the plaintiff had illegally and forcibly been dispossessed. The causes of action for the two suits was thus different. (30) In Dev Ram v. Iswar Chand reported in AIR 1996 SC 378 cited by Mr. Mukherjee, the previous suit had been filed for recovery of a sum of Rs.6,300/- as sale price of the land in suit, which was dismissed with the finding that the, document on which the suit was filed, was not a sale deed, but a mere agreement for sale and, therefore, the amount in question could not be recovered as sale price. The subsequent suit was brought by the plaintiffs for recovery of possession on the ground that they were the owners of the land in suit and were consequently entitled to recover its possession. The cause of action in the subsequent suit was found to be entirely different. (31) The Supreme Court found that the previous suit was for recovery of sale price. The respondents could not possibly claim the relief of possession, on the basis of title, in that suit since the plaintiff had pleaded that title had been transferred to the defendants. (32) The Supreme Court thus held that the essential requirement of the applicability of Order II Rule 2, that is, identity of cause of action in the previous suit and the subsequent suit was not established. (33) In Nirmala v. Hari Singh reported in AIR 2001 H.P.I cited by Mr. Mukherjee the learned single Bench rightly found that a suit on a different cause of action was not barred under Order 23 Rule 1 (3) and (4) and Order II Rule 2. (34) However, in that case, the defendant-appellant had not been able to place any materials before the Court to show that the cause of action claimed in the earlier suit was identical. The Court, therefore, held that in the absence of any materials on record, the plea of the defendant that the suit was barred, could not be accepted. (35) The Court held as follows: The rule, it is apparent, does not preclude second suit based on distinct and separate cause of action. To make this rule applicable, the defendant must satisfy three conditions: (a) The previous and second suit must arise out of the same cause of action; (b) Both the suits must be between the same parties and (c) The earlier suit must have been decided on merits. In the present case as discussed earlier, there is no evidence to show that cause of action for the previous suit was the same. This apart, the previous suit admittedly was not decided on merits as the same was withdrawn by the plaintiff-respondent. Therefore, the argument of Shri Bhupender Gupta learned counsel for the appellant that the present suit is not maintainable has no merit. This apart, the previous suit admittedly was not decided on merits as the same was withdrawn by the plaintiff-respondent. Therefore, the argument of Shri Bhupender Gupta learned counsel for the appellant that the present suit is not maintainable has no merit. The questions are answered accordingly." (36) Once a suit is instituted, omitting any relief which the plaintiff could have claimed, in respect of the cause of action made out in that suit, a subsequent suit to enforce that relief becomes barred, irrespective of the outcome of the suit and irrespective of whether the suit is dismissed on technical grounds, on merits or is simply withdrawn. (37) A judgment is a precedent for what the Court decides. As held by the Supreme Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas reported in AIR 2008 SC 2187 , cited by Mr. Mallick, a judgment should not be interpreted as a statute but in the backdrop of the facts of each case. It is the ratio decidendi that operates as precedent and not the observations. The observation in Nirmala v. Hart Singh (supra) that the earlier suit must have been decided on merits, which in any case, is not binding on this Court, is to be construed in the factual background of that case, where it was not possible for the Court to ascertain whether there was identity of causes of action in the two suits. (38) In any case, the provisions of Order II Rule 2 read with Order 23 Rule 1(4) clearly show that the bar of fresh suit would apply to withdrawal of all or any of the claims in a suit. This Court is thus unable to accept Mr. Mukherjees submission that to attract Order II Rule 2, the earlier suit must have been decided on merits. (39) In Kamal Kishore Saboo v. N. Humayun Kamal Hasan Khan (supra) a Division Bench of Delhi High Court held that where the appellant had only claimed relief of injunction, restraining the defendants from alienating the suit properties, being the subject-matter of a sale agreement, but omitted to claim relief of specific performance, a subsequent suit for specific performance was not maintainable in view of Order II Rule 2. (40) In Benoy Bhusan Dasgupta v. Sm. (40) In Benoy Bhusan Dasgupta v. Sm. Sabitri Banerjee (supra) this Court held that the test to find out whether a subsequent suit would be barred by Order II Rule 2 because of an earlier one, was whether the claim in the subsequent suit was, in fact, founded on a cause of action which was the foundation of the earlier suit. (41) In Dwarkadas v. Vimal (supra) a single Judge of the Bombay High Court held as follows: The principles which are applicable in the decision of the question as to the identity of the causes of action are summarized in a judgment of the Privy Council in Mohammrnad Khalil Khan v. Mahbub Ali Mian, 75 Ind. App. 1-21 at p. 143: (AIR 1949 PC 78 at p.86). Those principles are: (1) that the correct test in cases falling under 0.2, R.2 is whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation of the former suit. (2) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment, (3) If the evidence to support the two claims is different, then the causes of action are also different, (4) The causes of action in the two suits may be considered to be the same if in substance they are identical and (5) The cause of action has no relation whatever to the defence that may be set up by the defendant, nor does It depend on the character of the relief prayed for by the plaintiff." (42) In Md. Hafiz and Anr. v. Mirza Muhammad Zakariya and Ors. (supra) the Privy Council discussed the provisions of Order II Rule 2 and held that relief in a subsequent suit in respect of cause of action that had arisen before initiation of the earlier suit was barred by Order II Rule 2. (43) The Privy Council held that the cause of action referred to in Order II Rule 2 is the cause of action which gives occasion for and forms foundation of the suit, and if that cause enables a man to seek a larger and wider relief than that to which he limited his claim, he cannot after wards seek to recover the balance by independent proceedings. (44) There can be no dispute with the judicially settled meaning of the expression cause of action as enunciated in Rajasthan High Court Advocates Association v. Union of India reported in AIR 2001 SC 417 and in Navin N. Majithia v. State of Maharashtra reported in AIR 2000 SC 2966 , cited by Mr. Mukherjee. Cause of action is the bundle of facts which, if denied would have to be proved in order to obtain relief. Mr. Mukherjees submission that the cause of action in the subsequent suit was different from the cause of action an the earlier suit, is difficult to sustain. (45) In view of the concurrent factual findings of the Trial Court and the First Appellate Court, this Court is to proceed on the basis, that dispossession of the plaintiff from the suit premises, which constituted the cause of action for the second suit, took place before the first suit was filed and constituted a cause of action for the first suit. (46) The plaintiff could very well have claimed relief of restoration of possession at the time when the first suit was filed. Since the plaintiff chose to restrict his claim in the first suit, only to the relief of injunction, without leave of Court under Order II Rule 2(3) to sue for further reliefs, the plaintiff was precluded, by the provisions of Order II Rule 2 from initiating a fresh suit to claim the relief of possession. (47) The subsequent suit was thus patently barred under section 12 of the Code of Civil Procedure arid the same was liable to be dismissed. The Trial Court and the Lower Appellate Court erred in law in decreeing the suit. (48) For reasons discussed above, the appeal is allowed. The judgment and decree dated 21st April, 2005 of the 1st Additional District Judge at Alipore, District South 24 Parganas in Title Appeal No.265 of 1992 affirming the judgment and decree dated 15th June, 1992 of the 8th Assistant District Judge at Alipore, District South 24 Parganas in Title Suit No.92 of 1977 and the judgment and decree dated 15th June, 1992 of the Assistant District Judge at Alipore, South 24 Parganas in Title Suit No.92 of 1977 are set aside and the said suit being Title Suit No.92 of 1977 is dismissed. Appeal allowed.