Judgment In these two appeals, the appellant is common. He figured as seventh defendant in OS No. 11064 of 1996 and the first defendant in OS No. 15580 of 2001, on the file of City Civil Judge at Bangalore. The common respondent No.1 in these appeals namely, M/s. Abhaya Land and Finance Private Limited, registered office at No. 113, Embassy Centre, No.11, Crescent Road, Bangalore – 560 078 and address changed to ‘Vishnu’, 16th Road, Banashankari II Stage, Bangalore – 560 070, was the common plaintiff in the two suits. 2. The first suit OS No. 11064 of 1996 was for the relief of declaration of title and for the relief of permanent injunction in respect of six flats in a multistoried residential complex by name ‘Ramya Residency’ comprised of seventy apartments [flats bearing Nos. 011, 012, 014, 301, 401 and 414 [old Nos. 111, 112, 114, 401, 501 and 514 respectively] constructed on Survey Nos. 139 and 149 (combined) and the piece and parcel of land bearing No. 648-O and 648-N, Binnamangala 1st Stage, Indiranagar, Bangalore. This suit came to be decreed in part, where under the plaintiff was declared as absolute owner of the six flats. However as the plaintiff was found not in possession of flat No.011 (Old No.111) and since defendant No.7 was in possession of said flat, the relief of permanent injunction was granted only against defendants 1 to 6 & 8 in respect of flats 012, 014, 301, 401 & 414, but it was refused against defendant No.7 in relation to flat No.011. 3. Thereafter the plaintiff filed the second suit for recovery of possession of flat No.011, by impleading the seventh defendant in the first suit as first defendant, the tenants in occupation of said flat as defendants 2, 3 and 4 and Ramya Residency Owners’ Society, represented by its President or Other Principal Office Bearer as fifth defendant. 3. Thereafter the plaintiff filed the second suit for recovery of possession of flat No.011, by impleading the seventh defendant in the first suit as first defendant, the tenants in occupation of said flat as defendants 2, 3 and 4 and Ramya Residency Owners’ Society, represented by its President or Other Principal Office Bearer as fifth defendant. In the second suit the plaintiff also sought for the damages of Rs.1,80,000/- at the rate of Rs.5,000/- per month for a period of three years prior to the date of filing of suit and further for an enquiry under Order XX Rule 12 of the Code of Civil Procedure [for short ‘the CPC’] to ascertain the actual rent/compensation collected by the first defendant and to decree such amount as mesne profits in favour of the plaintiff for the period subsequent to filing of the suit. The second suit came to be decreed both for recovery of possession and for past damages while an enquiry has been ordered under Order XX Rule 12 of the Code of Civil Procedure with regard to claim towards current and future mesne profits. 4. As earlier indicated the common appellant is before this court to get over the Judgment and the declaratory decree in the earlier suit, insofar as the declaration is concerned and in the later suit for yielding possession and for payment of past damages, present and future mesne profits, to get over the judgment and decree for possession etc. 5. While the earlier appeal is sought to be allowed by urging the legal ground that the decree for declaration alone in respect of flat No. 011 as against the seventh defendant was not tenable in the light of the embargo to be found in the proviso to section 34 of the Specific Relief Act, 1963 [for short ‘the Act’], the later appeal is sought to be allowed by urging that the suit was hit by the embargo placed on such a suit under the provisions of Order II Rule 2 of the CPC. Such main legal contentions are canvassed on behalf of the appellant by Sri Prasanna Kumar, learned counsel for the appellant in both the appeals along with few other supplemental submissions. 6. Such main legal contentions are canvassed on behalf of the appellant by Sri Prasanna Kumar, learned counsel for the appellant in both the appeals along with few other supplemental submissions. 6. Submissions urged on behalf of the appellant in the two appeals, is countered by Sri A G Sirsi, learned counsel for common plaintiff in the two suits and arrayed as first respondent in both the appeals to which we shall advert in detail hereinafter. 7. We have heard Sri Prasanna Kumar and Sri A G Sirsi at length. We have also perused the pleadings of the parties, the evidence on record, read the Judgments under appeal, looked into the record and have considered the submissions at the Bar. 8. In view of the fact that the contesting parties in these two appeals being one and the same namely property in flat No.011, and the conclusion that may be arrived at in one appeal will have a bearing on the other, both these appeals were heard together and are being disposed off by this common judgment. 9. Case of plaintiff in the first suit, in brief, was that the plaintiff is a company incorporated under the Companies Act, 1956 and had entered into a joint venture agreement with M/s. Ramya Housing Limited for development of two adjacent plots bearing site/sub division Nos. 9. Case of plaintiff in the first suit, in brief, was that the plaintiff is a company incorporated under the Companies Act, 1956 and had entered into a joint venture agreement with M/s. Ramya Housing Limited for development of two adjacent plots bearing site/sub division Nos. 648/N and 647/O, situated at Binnamangala 1st Stage, Old Madras Road, Bangalore, into a multi-storied complex comprising of seventy apartments and after completion of the construction as per the agreement the ownership in seven apartments had been transferred to the plaintiff – company under a partition deed dated 25.7.1994 registered on 2.8.1994 as document No.1371/1994-95; that the plaintiff had been in possession and enjoyment of all the seven flats; that the plaintiff – company had been incorporated in the year 1988, inter alia, for such purpose comprising of six shareholders, amongst who five shareholders held about 80% of the authorized share capital and subscribed to the extent of Rs.25 lakhs and the balance was being held by the first defendant and his wife; that the first defendant was the Managing Director since its incorporation who was looking after the day to day affairs of the plaintiff company; that the first defendant residing at Bangalore while looked after the day to day affairs of the company, the other shareholders holding 80% of the share capital resided at Mumbai and they had depended on the first defendant for running the company; that the plaintiff – company had entered into an agreement with M/s. Ramya Housing Limited for the development of housing complex as referred to above; that the plaintiff had been put in possession of six apartments together with undivided interest in the land to the extent of 9.05% proportionate to the super built up area of 5.758 sq. feet and in absolute and exclusive control of the apartment. 10. feet and in absolute and exclusive control of the apartment. 10. It is also pleaded that since inception of the company and upto 18.7.1994, there were three Directors in the Board of Management of the plaintiff – company, but the first defendant resigned from his Directorship as well as the Managing Director post on 18.7.1994 and this development had been notified to the Registrar of Companies as per the statutory provision; that the first defendant was however readmitted as ordinary Director on or about 27.7.1994, but did not have any managerial power over the affairs of the company and had ceased to be Additional Director with effect from 23.9.1994 by virtue of section 260 of the Companies Act, 1956. 11. It was also pleaded that the first defendant had by fraud and misrepresentation held out to the public at large that he had power and authority to deal with the properties of the company and had, it appears entered into agreements and transactions with third parties impersonating himself to be the representative of the plaintiff – company; that he had power and authority in his capacity to do so, whereas he was only an ordinary Director even when he has not so and in furtherance of such incompetent agreements and transactions was trying to induct third parties including the defendants into the residential flats owned by the plaintiff – company and to prevent such an eventuality, the plaintiff filed suit seeking declaration that the plaintiff is the absolute owner of six apartments and for all consequential rights flowing thereunder; that the actions of the first defendant does not bind the plaintiff – company; that the transactions if any between the defendants 1, 2 and 8 are void, illegal and does not bind the plaintiff – company; that the purported agreement for sale of flat No.011 in favour of the seventh defendant is also null and void and not binding on the plaintiff and for an order of permanent injunction to restrain defendants 1 to 8 from interfering or in any way dealing with possession and enjoyment of the six apartments either by the plaintiff by itself or through its agents etc… 12. This suit was contested by filing of the statement only by defendants 3 and 5 and the defence essentially comprising of denials and asserting their right, title and interest either under the first defendant or directly under M/s. Ramya Housing Limited and nothing beyond, but conceding that in the first instance the plaintiff was the absolute owner of the flats in question and if the defendants were asserting their right, it was only under the plaintiff and it is of some significance to note that none of the defendants positively asserted their actual physical possession of any of the flats. 13. The seventh defendant, now in appeal before us, though had entered appearance through counsel, did not contest the suit and it appears had not taken part in the further proceedings in the suit and as such no statement had been filed on behalf of this defendant. 14. In the wake of such pleadings and such circumstances, the learned Judge of the trial court had framed the following issues: “1. Whether the plaintiff proves that a deed of partition was executed by the parties on 25.7.1994 viz., between the plaintiff, M/s. Ramya Housing Pvt. Ltd., and Sri Ganapathy U Hegde? 2. Whether the plaintiff proves that it was put in possession of 6 apartments together with undivided interest in the land? 3. Whether the plaintiff proves that it is the absolute owner in possession of the suit property? 4. Whether the plaintiff proves that on 18.7.1994, the first defendant, resigned from the Managing Director and Director of Plaintiff company? 5. Whether the plaintiff proves that the first defendant is only an ordinary Director, and that he cannot exercise any power unless he is conferred the power unless he is conferred the power by the Board or general body of share holders? 6. Whether the plaintiff proves that the 1st defendant has no right to enter in to any agreement of sale, without property authority, for sale of the suit property? 7. Whether the plaintiff proves that all the agreements executed by the first defendant, purporting to act for on behalf of the company are ultravires the powers vested in the first defendant? 8. Whether the defendant No.3 proves that the suit is not property valued, and that the Court fee paid is not correct? 9. 7. Whether the plaintiff proves that all the agreements executed by the first defendant, purporting to act for on behalf of the company are ultravires the powers vested in the first defendant? 8. Whether the defendant No.3 proves that the suit is not property valued, and that the Court fee paid is not correct? 9. Whether defendant No.5 proves that the suit is bad for mis-joinder of causes of action and for misjoinder of parties? 10. Whether defendant No. 5 proves that the plaintiff as a collateral security, executed an agreement of sale in respect of apartment No. 414 in Ramya Residency, as averred in para No.9 of W.S.? 11. Whether defendant No. 5 proves that it never had any notice or information about want of authority of the first defendant as averred in para No. 8 of W.S.? 12. Whether defendant No. 5 proves that the plaintiff is bound to sell apartment No. 414, as per agreement of sale? 13. Whether the plaintiff is entitled to reliefs as prayed for? 14. What order or decree?” 15. Parties went to trial on these issues. On behalf of the plaintiff, two witnesses, one the care taker and the other the then Managing Director of the plaintiff – company were examined as PWs 1 & 2 respectively and got marked documents, Exhibits.P1 to P10, Exhibit.P1 being resignation of the first defendant, Exhibit.P3 being partition deed under which the plaintiff got title to the suit properties and the remaining exhibits being supportive documents to evidence the manner of enjoyment of ownership rights over the suit properties. 16. On behalf of the defendants, one N R Aditya – Manager of the third defendant deposed as DW.1 and the documents produced being Exhibit D1 – authorization for him to depose on behalf of the company, an agreement for purchase of flat No.014 for Rs.13,95,000/- marked as Exhibit D2 and executed by the frist defendant in favour of third defendant being the significant documents and other documents such as account extract and Memorandum of Understanding were marked as Exhibit D3 and Exhibit D4. 17. 17. The learned Judge of the trial court having examined such evidence answered all the issues in favour of the plaintiff and against the defendants and while proceeded to pass Judgment to decree the suit, insofar as the relevant issue with which we are concerned namely issue No.3, is concerned answered it in the affirmative except in respect of flat No.011 and this issue was answered only to the extent of declaration in favour of the plaintiff, but not for the relief of injunction due to the finding the plaintiff being not in possession, based on the very evidence of PW.1 who had deposed to the effect that seventh defendant is in occupation of flat No.011 having occupied the same illegally by force. The exact statement on oath by this witness is, “…………………….flat No-011 is occupied by deft. No.7 he has occupied said flat illegally by force” and on this premise, the learned Judge of the trial court refused the consequential relief of injunction as against this defendant in respect of flat No.011 though the plaintiff was declared to be the owner of this flat also along with other flats. 18. Itis against this Judgment and decree of the trial court, the earlier appeal in RFA No.596 of 2001. 19. The plaintiff as a sequel to this Judgment and decree in the first suit, came up with second suit in OS No. 15580 of 2001 mainly for recovery of possession of flat No.011, from defendants 1 to 4 and based on the title that the plaintiff got in respect of the subject property as per the decree in the earlier suit, the plaintiff also claimed damages for past use and occupation and for future mesne profits. 20. 20. This suit was contested by the first defendant pleading, inter alia, that the suit was not tenable in law; that this defendant’s name has not been properly described or spelt; that he is not known as ‘A L Handa’ as indicated in the cause title but is ‘Rajinder Handa’, otherwise known as ‘R. Handa’; that the suit is barred by limitation; that the suit is also hit by principles of Order II Rule 2 of the CPC; that the plaintiff having not sought for recovery of possession in earlier suit in OS No. 11064 of 1996, cannot seek the said relief in this subsequent suit; that the first defendant was not aware of the developments in the first suit as immediately after engaging a counsel, he was away in connection with his duty in the Defence Services; that this defendant had taken steps to prefer an appeal as against the earlier Judgment and decree against him by filing RFA No. 596 of 2001; that the proceedings in the present suit was required to be stayed till the disposal of the appeal; that the defendant was a bona fide purchaser and has therefore become the owner of the property; that the prayer sought for in the suit was not proper or tenable in law; that the valuation was not proper; that there was no cause of action for the suit and sought for dismissal of the suit by denying all the plaint averments. 21. In the wake of such pleadings, the trial court in this suit, frame the following issues: “1. Whether the plaintiff proves that they entered into joint venture with M/s. Ramya Housing Ltd., and executed a partition deed with them on 25.7.1994? 2. Whether plaintiff proves that he was in possession of 6 flats got to his share as profit and return of investment? 3. Whether the plaintiff proves that the plaintiffs are the absolute owners of the suit property? 4. Whether the plaintiff proves that defendant No.1 entered into agreement with Swaminathan P.S. and forcibly took possession of flat No.011? 5. Whether defendant No.1 proves that the suit is not property valued and court fee paid is not correct? 6. Whether the plaintiff proves that defendant No.1 is in illegal occupation and as such liable for damages? 7. Whether the plaintiff is entitled to possession and mesne profits? 8. What decree or order?” 22. 5. Whether defendant No.1 proves that the suit is not property valued and court fee paid is not correct? 6. Whether the plaintiff proves that defendant No.1 is in illegal occupation and as such liable for damages? 7. Whether the plaintiff is entitled to possession and mesne profits? 8. What decree or order?” 22. In this suit, on behalf of the plaintiff, one Ramesh Jain was examined as PW.1 and Exhibit.P1 to Exhibit.P5 were got marked as documentary evidence, Exhibit.P1 being copy of the partition deed under which the plaintiff claimed title to the suit property, Exhibit.P2 being certified copy of the Judgment in OS No.11064 of 1996, Exhibit.P3 being certified copy of the annual returns of the plaintiff filed before the Registrar of Companies, Exhibit.P4 being public notice dated 16.10.1996 issued by M/s. Karnataka Bank Limited and Exhibit.P5 being copy of the letter issued by the Official Liquidator addressed to fifth defendant. 23. On behalf of the defendants, first defendant deposed as DW.1 and produced Exhibit.D1 being agreement of sale dated 15.4.1996 executed by plaintiff in favour of first defendant, Exhibit.D2 being letter dated 16.4.1996 issued by Ramya Housing Limited addressed to first defendant, Exhibit.D3 being Resolution of Ramya Housing Limited. 24. The learned Judge of the trial court examined such evidence on record and on hearing Advocates appearing for the parties answered all the issues in favour of the plaintiff and accordingly decreed the suit as prayed for with costs. The first defendant was directed to deliver vacant possession of the suit property within four months from the date of the Judgment. The plaintiff was also held entitled for damages as claimed for three years prior to the date of filing of the suit and separate enquiry to be held in respect of mesne profits as per the provisions of Order XX Rule 12 of the CPC. 25. The later appeal is directed against this Judgment and decree passed in OS No.15580 of 2001. 26. Submission of Sri Prasanna Kumar, learned counsel for the common appellant in the two appeals, insofar as the earlier appeal is concerned, is that the suit is clearly not maintainable in the wake of the statutory bar as contained in the proviso to section 34 of the Act. 27. Section 34 of the Specific Relief Act, 1963 reads as under: “34. Discretion of Court as to declaration of status or right. 27. Section 34 of the Specific Relief Act, 1963 reads as under: “34. Discretion of Court as to declaration of status or right. - Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation. – A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.” 28. Explanation. – A trustee of property is a “person interested to deny” a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.” 28. By placing strong reliance on the deposition of PW.1, submission of Sri Prasanna Kumar, learned counsel for the appellant is that, in the pleadings there being no positive assertion that the plaintiff was in possession of the suit property on the date of filing of the suit, particularly, vis-à-vis, flat No.011 and with the plaintiff having conceded through PW.1 that the subject flat was actually in possession of the seventh defendant albeit by getting into such possession illegally, the fact remains that the plaintiff was not in possession and the seventh defendant was in possession of this flat even as on the date of filing of the suit, therefore the suit prayed for, namely, for the relief of declaration and consequential relief of injunction was on the face of it not tenable vis-à-vis seventh defendant in respect of flat No.011 and since the plaintiff did not care to seek commensurate consequential relief of possession of the flat No.011, it amounts to an act of omission on the part of the plaintiff to seek a further relief which will otherwise flow from the declaration, namely, the consequential relief of recovery of possession not having been sought but on the other hand by seeking for a consequential relief of injunction, resulted in a positive omission to seek the consequential relief of recovery of possession from the seventh defendant and therefore the relief of declaration could not have been granted by the trial court in the wake of the statutory bar under the proviso to section 34 of the Act and has very strongly urged that the suit as filed by the plaintiff should have been dismissed by the trial court; that merely granting a declaratory decree is nothing short of committing an illegality in violation of the statutory provision and therefore this appeal is required to be allowed, the Judgment and decree passed by the trial court vis-à-vis seventh defendant in respect of flat No.011 is to be set aside and the suit be dismissed to this extent. 29. 29. In support of such submission, Sri Prasanna Kumar, learned counsel for the appellant has drawn our attention to the pleadings, particularly, written statement filed on behalf of the third defendant at paragraphs 4 and 17, as also deposition of PW.1 and written statement filed on behalf of the fifth defendant at paragraph-1 in last two lines and paragraph-10 about proper framing of the suit and valuation etc., and submits that the first three issues, particularly, issue No.3 should have been answered totally against the plaintiff and therefore the suit should have been dismissed vis-à-vis seventh defendant. 30. It is also submitted that with the witness for the plaintiff having not made it clear that the illegal entry by the seventh defendant into the subject flat No.011 was subsequent to filing of the suit and being silent about the exact date of such illegal entry, it has to be necessarily inferred that it was the factual position even on the date of filing of the suit and if so the only possible consequential relief that could have been sought for by the plaintiff was for recovery of possession of the subject flat, assuming for argument sake that the plaintiff was entitled to a declaration of ownership of the said flat and that having not been sought for as a further relief, amounts to an omission to seek such relief and is therefore clearly hit by the proviso to section 34 of the Act and the suit could not have been decreed even for the purpose of declaring title of the plaintiff in respect of this flat. 31. In support of such submission, Sri Prasanna Kumar, learned counsel for the appellant has placed strong reliance on the report decisions of the Supreme Court in the case of ‘Mehar Chand Das vs. Lal Babu Siddique’ reported in AIR 2007 SC 1499 , wherein the Supreme Court had an occasion to examine the scope of section 34 and proviso to section 34 of the Act and would urge that by applying the ratio of this Judgment the appeal should be allowed. 32. 32. Reliance is also placed on a single Bench decision of this court in the case of ‘Sri Aralappa vs. Sri Jagannath and Others’ reported to ILR 2007 KAR 339, also on the very aspect of maintainability of the suit in the wake of declaratory relief being sought for without seeking the further relief in the very suit. 33. Sri Prasanna Kumar, learned counsel for the appellant would also submit that irrespective of the outcome of the earlier appeal i.e., appeal against the declaratory decree against the seventh defendant, the first defendant in the later suit i.e., the appellant in subsequent appeal in RFA No.596 of 2001 is entitled to succeed in this appeal merely on the ground of the suit being hit by the statutory provisions of Order II Rule 2 of the Code of Civil Procedure and submits that this is a clear case of the plaintiff coming up with a second suit in respect of the relief which ought to have been sought for in the prior suit and having not done so, this suit is in teeth of the bar imposed under Order II Rule 2 of the Code. 34. It is submitted that it was open to the plaintiff to have sued for recovery of possession from the seventh defendant in the earlier suit; that even after the plaintiff in the earlier suit having conceded that possession was not with the plaintiff assuming to be a development even during the pendency of the suit, consequential relief of possession could have been sought for in the earlier suit, by suitably reframing the prayer, but the plaintiff having expressly failed to do so, it is nothing short of the plaintiff omitting to sue its claim towards possession in the earlier suit and is therefore not entitled to file a separate suit for mere recovery of possession assuming that such recovery of possession is based on the title granted in the earlier suit. Submission is that even if the appellant should fail in the earlier appeal, the present appeal should necessarily succeed in the wake of the provisions of Order II Rule 2 of the CPC. 35. Submission is that even if the appellant should fail in the earlier appeal, the present appeal should necessarily succeed in the wake of the provisions of Order II Rule 2 of the CPC. 35. It is also the submission of Sri Prasanna Kumar, learned counsel for the appellant that for the purpose of ascertaining as to whether a clear or categorical finding could have been recorded in the earlier suit on the material that was available before the court the matter should necessarily be remanded to the trial court at least for the limited extent of calling for a finding as to the factum of the plaintiff being in possession or otherwise on the date of filing of the earlier suit and it is further submitted that either the finding in the subsequent suit or any material that has come on record in the subsequent suit cannot be looked into for the purpose of finding as to whether the plaintiff was in actual possession of the subject suit property, namely, flat No.011 on the date of filing of the earlier suit. 36. Sri Prasanna Kumar, learned counsel for the appellant would strongly urge that while a positive finding in favour of the defendants, namely, that the plaintiff was not in possession on the date of filing of the earlier suit would automatically disentitles any relief to the plaintiff was in possession on the date of filing of the earlier suit by itself will not save the day for the plaintiff in the second suit in the wake of the provisions of Order II Rule 2 of the CPC. In Any view of the matter, Sri Prasanna Kumar, learned counsel for the appellant would strongly urge for a remand to the trial court or call for a finding on the aspect of possession on the date of filing of the prior suit where upon both appeals could be disposed of etc… 37. In Any view of the matter, Sri Prasanna Kumar, learned counsel for the appellant would strongly urge for a remand to the trial court or call for a finding on the aspect of possession on the date of filing of the prior suit where upon both appeals could be disposed of etc… 37. On the other hand, Sri Sirsi, learned counsel for the common contesting respondent in the appeals and the common plaintiff in the two suits would very strongly urge that the plaintiff has all along asserted not only its title to the said property derived under the partition deed marked as Exhibit.P1 in both the suits, there being not much dispute about the title in respect of property even by the present appellant who figured as seventh defendant and first defendant respectively in the two suits, the plaintiff had also asserted positive possession of all the suit properties even in the plant of the first suit and has drawn our attention to the relevant pleadings and also the prayer in the suit. 38. It is pointed out that the seventh defendant in the first suit had not contested the suit, had not filed any written statement, had neither asserted his possession nor had denied the possession of the plaintiff in respect of the subject property and if so the seventh defendant having not laid the proper foundation to contest the suit on the grounds now urged and arguments as submitted as submitted is not entitled to put forth the plea of the earlier suit being hit by the proviso to section 34 of the Act in the absence of a commensurate plea in the suit. 39. In this regard, learned counsel for the respondent has placed reliance on the Judgment of the Supreme Court in the case of ‘Rukhmabai vs. Laxminarayan’ reported in AIR 1960 SC 335 which is a decision rendered interpreting the provisions of section 42 of the Specific Relief Act, 1877 the corresponding provision to section 34 of the Specific Relief Act, 1963. 40. 40. Sri Sirsi, learned counsel for the first respondent has also drawn our attention to Exhibit.D1 in the later suit the so called agreement which only bristles with inconsistencies and contradictions and even as per this document, there was no possibility of the defendant having taken possession of the property as there was no construction on the date of this agreement and the first defendant was neither in possession nor had taken possession of the flat as asserted; that the very Exhibit.D1 belied such contention and submits that the first defendant did not derive any right, title and interest under Exhibit.D1 which was neither a sale deed nor one recognizable in the eye of law. 41. It is also submitted that even for the purpose of pleading the bar under Order II Rule 2 of the Code, it is essential to plead such a bar, by asserting the factual position in the written statement filed in the second suit, but the written statement did not spell out the details as to how the statutory provision operated as a bar to the second suit; that in the absence of a proper and full plea spelling out the manner in which a defence open to the defendant in a suit, as is available under the provisions of Order II Rule 2 of the CPC is having not been spelt out, it is not open to the defendant to take advantage of this statutory provision by merely quoting the provision. 42. In this regard, Sri Sirsi, learned counsel for the first respondent would seek sustenance from the ratio of the Judgment of the Supreme Court in the case of ‘Gurbux Singh vs. Bhooralal’ reported in AIR 1964 SC 1810 by drawing our attention to the facts of this case and submits that unless the requirements are fully met, it is not open to the defendant to take advantage of the statutory provision and has drawn our specific attention to paragraphs 6 and 7 of this Judgment reading as under: “6. In order that a plea of a bar under 0.2 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 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 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 a 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 0.2 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 0.2 R. 2, Civil Procedure Code. The 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 0. 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 0. 2 R. 2, Civil Procedure Code was not maintainable. Learned Counsel for the appellant, however, drew our attention to a passage in the judgment of the learned Judge in the High Court which read: “The plaint, written statement or the judgment of the earlier court has not been filed by any of the parties to the suit. The only document filed was the judgment in appeal in the earlier suit. The two courts have, however, freely cited from the record of the earlier suit. The counsel for the parties have likewise done so. That file is also before this Court.” It was his submission that from this passage we should infer that the parties had, by agreement, consented to make the pleadings in the earlier suit part of the record in the present suit. We are unable to agree with this interpretation of these observations. The statement of the learned Judge “The two courts have, however, freely cited from the record of the earlier suit” is obviously inaccurate as the learned District Judge specifically pointed out that the pleadings in the earlier suit were not part of the record and on that very ground had rejected the plea of the bar under 0. 2 R. 2, Civil Procedure Code. Nor can we find any basis for the suggestion that the learned Judge had admitted these documents at the second appeal stage under 0. 41 R. 27, Civil Procedure Code by consent of parties. There is nothing on the record to suggest such an agreement or such an order, assuming that additional evidence could legitimately be admitted in a second appeal under 0. 41 R. 27, Civil Procedure Code. We can therefore proceed only on the basis that the pleadings in the earlier suit were not part of the record in the present suit. 7. 41 R. 27, Civil Procedure Code. We can therefore proceed only on the basis that the pleadings in the earlier suit were not part of the record in the present suit. 7. Learned counsel for the appellant, however, urged that in his plaint in the present suit the respondent had specifically referred to the previous suit having been for mesne profits and that as mesne profits could not be claimed except from a trespasser there should also have been an allegation in the previous suit that the defendant was a trespasser in wrongful possession of the property and that alone could have been the basis for claiming mesne profits. We are unable to accept this argument. In the first place, it is admitted that the plaint in the present suit was in Hindi and that the word ‘mesne profits’ is an English translation of some expression used in the original. The original of the plaint is not before us and so it is not possible to verify whether the expression ‘mesne profits’ is an accurate translation of the expression in the original plaint. This apart, we consider that learned Counsel’s argument must be rejected for a more basic reason. Just as in the case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under 0, 2 R. 2, Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were claimed without the necessary averments to justify their grant. Without placing before the Court the plaint in which those facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were claimed without the necessary averments to justify their grant. From the mere use of the words ‘mesne profits’ therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression ‘mesne profits’ has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterization of the particular sum demanded but what in substance is the allegation on which the claim to the sum was based and as regards the legal relationship on the basis of which that relief was sought. If is because of these reasons that we consider that a plea based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced. We therefore consider that the order of remand passed by the learned Additional District Judge which was confirmed by the learned Judge in the High Court was right. The merits of the suit have yet to be tried and this has been directed by the order of remand which we are affirming.” 43. We have given our anxious consideration to the submissions made at the Bar by learned counsel appearing for the parties. The points that arise for our consideration are: 1. Whether in the first suit the trial court was not justified in law in granting the decree for declaration in view of the bar under proviso to Section 34 of Specific Relief Act, 1963? 2. Whether, the second suit was barred by principles of constructive res judicata under Order II Rule 2 of CPC? 3. Whether the Judgment and decree questioned in these appeals warrant interference by this court? 44. 2. Whether, the second suit was barred by principles of constructive res judicata under Order II Rule 2 of CPC? 3. Whether the Judgment and decree questioned in these appeals warrant interference by this court? 44. The pleadings in the first suit while very clearly assert that the plaintiff was the owner in possession of all six flats including flat No.011, the supporting evidence of PW.1 while did reiterate this assertion by the statement on oath, it is only with regard to flat No.011 the witness has spoken that the plaintiff has lost possession of this flat due to the illegal occupation by the 7th defendant who had taken law into his own hands by breaking open the lock which had been put on the door of this flat after the plaintiff had taken possession of this flat under the partition deed at Exhibit.P3 and if such evidence is read in the light of the pleadings, it has to be necessarily inferred that the factum of the seventh defendant getting into possession of the subject flat is a development subsequent to filing of the suit and the earlier factual position as asserted in the plaint and as not spoken to the contrary in the deposition of PW.1 cannot lead to an inference that the plaintiff was not in possession of the subject flat on the date of filing of the suit. If such is the factual position, the suit when filed was one which was tenable even in terms of the proviso to section 34 of the Act as the relief of permanent injunction sought for by the plaintiff as against the defendants was a relief that followed declaration of title of the plaintiff to the suit properties and in the wake of the apprehension expressed by the plaintiff that the first defendant is likely to induct all and sundry into the flats in question under the illegal agreements that he had entered into with others etc… This view for recording such a factual finding is further reinforced by a look at the pleadings, particularly, the written statement filed by the defendants in the second suit and even the deposition of the very first defendant. The examination in chief is nothing but denial of the pleadings which we can understand as in the wake of the amended provisions of Order XVIII Rule 4 of the CPC enabling evidence in chief given on an affidavit also and with the witness not being in the court Hall and in the witness box, the purpose of examination in chief has become a farce and is more a deposition as put into the mouth of a witness by their lawyer and nothing short of a repetition of the pleading! 45. The legislature in its eagerness to cut short the length of the litigation, particularly, the lifetime of a suit has stumbled and very badly at it in bringing about this amendment relieving the witness from the requirement to depose on oath in the hallowed court Hall atmosphere and in the presence of the Judge, while in the witness box. The very court atmosphere would instill a sense of trepidation to depose falsehood and to state incorrectly before the trial Judge. Howsoever feeble or inconsequential it could be the effect of court atmosphere, it could still make a difference to the deposition being made on oath, and had its relevance and importance and giving go by to such requirement as found in the provisions of the Code as was available earlier, in our considered view is not a proper or prudent move on the part of the legislature and it is high time that the legislature has a second look about this aspect and brings about suitable amendment to restore the earlier provision that any witness deposing on oath should necessarily appear before the court in person and depose and not by filing a mere affidavit. When the witness is necessarily required to attend if not while deposing in examination in chief, but definitely for cross examination without which the deposition in the chief examination is of no avail, then there is no purpose served in relieving a witness from the requirement of appearing before a court only during the chief examination and the law could at the best ensure that examination in chief and cross examination of the witness both should take place one after the other and not in installments or at intervals, if delay is to be avoided as also to avoid the inconvenience to the witness due to the requirement of repeated appearance before the court. 46. A legislative provision on these lines will be more productive than the existing provision of Order XVIII Rule 4 of the CPC which has enabled the evidence of the witness in examination in chief being placed before the court through written sworn statements as an affidavit. 47. The possession of flat No.011 by the appellant, if at all is only under Exhibit.D1 which is no document in the eye of law and by merely denying that he had not taken possession by breaking open the lock, there is nothing on record to indicate that this defendant had entered possession either in a proper manner or claiming under a proper title. In the wake of such pleadings and in the absence of a proper assertion even in the second suit and there being no positive assertion on the part of this defendant in either suit that the plaintiff was not in possession of flat No.011 at the time of filing of the earlier suit, there is nothing on record to indicate that the plaintiff was not positively in possession that can be inferred nor anything on record to indicate the positive possession of the defendant in the subject flat on the date of filing of the earlier suit. 48. In the wake of this clear factual position, we are also of the definite view that there is absolutely no need for any remand of either case is strongly urged by Sri Prasanna Kumar, learned counsel for the appellant. 49. Reliance placed by Sri Prasanna Kumar, learned counsel for the appellant on the decision of the Supreme Court in the case of Mehar Chand Das [supra] is of no avail as the present situation is not the one to which the said ratio applies, since the earlier suit when filed by the plaintiff was not one which was hit by the proviso to section 34 of the Act as the plaintiff had sought for the appropriate further relief consequent to the declaratory relief and therefore the suit was very much tenable. We are therefore of the view that the appellant in these two appeals is not entitled to succeed on the legal contentions of the earlier suit being not tenable and hit by the proviso to section 34 of the Act. 50. We are therefore of the view that the appellant in these two appeals is not entitled to succeed on the legal contentions of the earlier suit being not tenable and hit by the proviso to section 34 of the Act. 50. Even in respect of the subsequent suit, the bar as canvassed by Sri Prasanna Kumar, learned counsel for the appellant in the wake of the provisions of Order II Rule 2 of the CPC is of no avail to the defendant – appellant for the simple reason that such a defence was not pleaded with sufficient particulars as to the applicability of the statutory provision and also for want of proper foundation being laid in the written statement. There is nothing on record to further support this stand in the form of any supporting material or evidence placed by the defendant. 51. While the Judgment relied upon by Sri Sirsi, learned counsel for the plaintiff in the two suits does considerably advances the arguments put forth to contend that in the facts and circumstances of the case, the provisions of Order II Rule 2 of the CPC are not attracted to hold that the second suit is not maintainable, we find that the legal position is clearly and emphatically elucidated by the Supreme Court in the case of ‘Kunjan Nair Sivaraman Nair vs. Narayanan Nair and Others’ reported in AIR 2004 SC 1761 . The essential requirement for calling in aid the provisions of Order II Rule 2 of the CPC is that the cause of action in the two suits should be one and the same. This is elicited in paragraphs 15 to 21 of this Judgment reading as under: “15. The doctrine of res judicata differs from the principle underlying Order II 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. Order II concerns framing of a suit and requires that the plaintiffs shall include whole of his claim in the framing of the suit. Sub-rule (1), inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the very same cause of action. Order II concerns framing of a suit and requires that the plaintiffs shall include whole of his claim in the framing of the suit. Sub-rule (1), inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the very same cause of action. If he relinquishes any claim to bring the suit within the jurisdiction of any Court, he will not be entitled to that relief in any subsequent suit. Further sub-rule (3) provides that the person entitled to more than one reliefs 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 such relief he shall not be afterwards be permitted to sue for relief so omitted. 16. The expression “cause of action” has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right of the immediate occasion for the action. 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. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in “cause of action”. 17. In Halsbury’s Law of England (Fourth Edition) it has been stated as follows: “Cause of action” has been defined as meaning simply a factual situation the existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which is material to be proved to entitle the plaintiff 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 complaint, or the subject matter of grievance founding the action, not merely the technical cause of action.” 18. ‘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 complaint, or the subject matter of grievance founding the action, not merely the technical cause of action.” 18. As observed by the Privy Council in Payana v. Pana Lana (1914) 41 IA 142, 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 or 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. (See Mohammad Khalil Khan v. Mahbub Ali Mian (AIR 1949 PC 78). 19. InInacio Martins (deceased through LRs.) v. Narayan Hari Naik and others ( 1993 (3) SCC 123 ), an almost identical question arose. In that case, the plaintiff had prayed for protection of his possession by a prohibitory injunction. That prayer was refused. Subsequent suit was for recovery of possession. This Court held that in the former suit the only relief that the Court could have granted was in regard to the declaration sought for which the Court could not have granted in view of the provisions of Specific Relief Act. The cause of action for the first suit was based on the apprehension about likely forcible dispossession. The cause of action of the suit was not on the premise that he had, in fact, been illegally and forcefully dispossessed and needed the Courts’ assistance for restoration of possession. In that background this Court held that subsequent suit was based on a district cause of action not found in or formed the subject matter of the former suit. The ratio of the decision has full application to the facts of the present case. 20. In that background this Court held that subsequent suit was based on a district cause of action not found in or formed the subject matter of the former suit. The ratio of the decision has full application to the facts of the present case. 20. In Deva Ram’s case (supra) it was held that where the previous suit was for recovery for loan which was dismissed on the ground that the document on the basis of which the suit was filed was not a sale deed but agreement for sale, subsequent suit for recovery of possession on the basis of title was not hit by Order II, Rule 2 as the cause of action in the two suits were not identical or one and the same. 21. The Courts below were, therefore, justified in holding that Order II, Rule 2 of the Code had no application to the facts of the case. Consequently, the decree passed in favour of the plaintiffs for recovery of possession shall stand affirmed and the appeal to that extent shall stand dismissed.” 52. In the wake of the factual position and the legal position as indicated above, we are of the definite view that the second suit was not hit by the provisions of Order II Rule 2 of the Code and contentions on behalf of the appellant to this effect as urged by Sri Prasanna Kumar, learned counsel cannot be accepted but fails. 53. In coming to this conclusion by a comprehensive evaluation of the pleadings and evidence in the two suits, we are of the view that with the parties to the two suits, particularly, the plaintiff being the same company and the contesting defendant in the two suits being the same person and being the common appellant in these two appeals, we do not find anything untoward or improper in looking into the pleadings and evidence on record in a comprehensive manner though the cause of action for the two suits was not necessarily one and the same. The second suit having become necessary in the wake of the developments in the earlier suit, we are of the view that the provisions of Order II Rule 2 of the CPC are not attracted. 54. The second suit having become necessary in the wake of the developments in the earlier suit, we are of the view that the provisions of Order II Rule 2 of the CPC are not attracted. 54. Further submission of Sri Prasanna Kumar, learned counsel for the appellant, that independent of the outcome of the operation of the provisions of Section 34 of the Act, the provisions of Order II Rule 2 CPC can operate and therefore the maintainability of the second suit should be examined independent of the outcome of the first suit, while theoretically is a possibility, in the sense, a situation contemplated when the provisions of Section 34 of the Act operate is a situation which operates only in respect of declaratory decrees or a suit for declaration, whereas the provisions of Order II Rule 2 CPC operate in generate in all situations, irrespective of the suit being one for the relief of declaration or something else, whenever the same plaintiff, who files a subsequent suit, had omitted to seek the entire relief as was open to such a person to seek for in the former suit the provisions of Order II Rule 2 CPC operate as a bar to a person who wants to seek reliefs in installments or in piecemeal, the object of which provision is obviously to avoid multiplicity of litigation, in the present situation, on facts, even the proviso to Section 34 of the Act being not attracted, further question of the provisions of Order II Rule 2 CPC being attracted does not arise. We can immediately notice that the situation contemplated in the proviso to Section 34 of the Act is a specie of genus of such a suit, wherein the plaintiff had omitted to seek the entire possible relief in the first suit. Even in a situation where the proviso to Section 34 is attracted, it is not as though the provisions of Order II Rule 2 CPC are automatically attracted. On the other hand, the examination in the subsequent suit will be as indicated by the Supreme Court in the case of Kunjan Nair Sivaraman Nair [supra], as to whether the plaintiff who had filed a subsequent suit has pleaded all necessary ingredients to attract the provisions and as to whether he has made good such plea by cogent supporting evidence. Even on applying this test also, the argument of Sri prasannakumar that the provisions of Order II Rule 2 CPC are attracted, fails. 55. In the result, both appeals fail and are dismissed with costs.