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2012 DIGILAW 331 (HP)

Mehar Chand v. Bidhi Chand

2012-06-11

SURINDER SINGH

body2012
JUDGMENT : Surinder Singh, J. This Regular Second Appeal filed by the plaintiff u/s 100 of the CPC was admitted on 9.3.2004, on the following substantial questions of law:- (i) Whether an earlier suit simplicitor for recovery of money which was withdrawn as compromised on the basis of statement of parties would operate as a bar under Order 2 Rule 2 C.P.C. in a subsequent suit for a mandatory injunction? (ii) Whether the First Appellate Court below has ignored and discarded the material oral and documentary evidence and particularly Ex.P1, P5, P6 and P7 as also Ex.PW4/A and further grossly misread and other evidence resulting into palpably perverse and illegal findings in the appeal? Heard and gone through the record. 2. The facts in brief giving rise to the present appeal can be stated thus. The appellant herein had rented out shuttering to the respondent for putting lintel of his house. The dispute arose with respect to its rent, as such on 9.1.1992, the appellant filed Civil Suit No.14 of 1992 for the recovery of Rs. 6008/-. The matter was taken up for conciliation before the Bench of Lok Adalat and vide statement Ext.P6 of the appellant and Ext.P7 of the respondent, the suit filed by the plaintiff/ appellant was dismissed as withdrawn. Thereafter the plaintiff served a legal notice on the respondent for the delivery of 2000 square feet shuttering and payment of Rs. 72,000/-to him on account of damages suffered by him w.e.f. 9.1.1991 to February, 1993, but neither the money was paid by the respondent nor shuttering was returned, as such, he filed Civil Suit No.143 of 1993 on 1.6.1993, praying for a decree of mandatory injunction, directing the respondent to hand over the shuttering with supports etc. as it was required for his own use. 3. The suit was resisted and contested by the respondent. He took up the plea of maintainability of the suit, disputed the cause of action, vis-a-vis took the point of estoppel and a bar u/s 10 of the CPC by way of preliminary objections. He admitted that though the appellant provided shuttering to him, but it was only 1600 square feet and not 2000 square feet. According to him, the matter already stood compromised and decided finally in earlier Civil Suit No.14 of 1992, as such, present suit was barred. He admitted that though the appellant provided shuttering to him, but it was only 1600 square feet and not 2000 square feet. According to him, the matter already stood compromised and decided finally in earlier Civil Suit No.14 of 1992, as such, present suit was barred. It is specifically mentioned by him that the appellant had later on removed the shuttering himself, after serving notice upon him and no such shuttering was lying with him, which belonged to the appellant. 4. In replication, the appellant denied the preliminary objections and re-affirmed the even paras on merits. 5. On the pleadings of the parties, learned trial Court framed the following issues:- 1. Whether the plaintiff is entitled to the relief of mandatory injunction directing the defendant to hand over the possession of shuttering in question to him? OPP. 2. Whether the suit is not maintainable in the present form? OPD. 3. Whether the plaintiff has no cause of action? OPD. 4. Whether the plaintiff is estopped by his act and conduct from filing this suit? OPD. 5. Whether the suit is barred u/s 10 CPC? OPD. 6. Relief. 6. During the trial, PW4 Shri B.S. Parmar, Advocate was appointed as the Local Commissioner vide order dated 14.9.95 to know whether shuttering existed in the house of the respondent, if so, the number of planks lying on the spot. His report is Ext.PW4/A. The Parties had examined its witnesses. 7. After the complete trial, issue No.1 was decided in affirmative and all other issues in negative. Thus, learned trial Court decreed the suit as prayed for. 8. The respondent felt aggrieved by the impugned judgment and decree, as such filed an appeal before the learned District Judge. During the pendency of the appeal, learned Additional District Judge noticed that in the judgment of the learned trial Court, there was no detail of the number of supports/ scants of the shuttering and its identification, as such, vide order dated 6.10.1999, required the learned trial Court to indicate the identity marks of shuttering in decree sheet, lest the decree would not be executable. To remove this obscurity, the record was returned. The matter was taken up in the presence of parties. To remove this obscurity, the record was returned. The matter was taken up in the presence of parties. On the perusal of report of Local Commissioner Ext.PW4/A, the learned trial Court found that he had made a reference in the report that "marka" on the same was not readable and the submission of Shri Mast Ram, Advocate for the plaintiff that the scants having "T" & "D" marks lying in the custody of the respondent / (defendant) was not correct, therefore, cannot be reflected in the decree-sheet. 9. The Local Commissioner in his report aforesaid has referred to some wooden planks, pieces of fuel wood, curries and tin sheets, which were found in the house of the respondent in village Keharwin, but it did not contain any mark over it nor he was required to specify. 10. On the basis of evidence on record and the report of the Local Commissioner, the First Appellate Court after careful consideration of the evidence on record came to the conclusion that the entire evidence of the appellant was silent about this aspect of the case. It was also observed that unless the proper identification of the supports as well as of shuttering, their measurement and number is proved specifically, no decree for mandatory injunction is executable. Further he also came to the conclusion that in the previous suit, no relief for mandatory injunction was asked for, as such, prayer in the subsequent suit is barred under Order 2 Rule 2 of the Code of Civil Procedure, thus, the defendant's appeal was allowed and impugned judgment and decree passed by the learned trial Court was set-aside. 11. Admittedly, the previous suit was for the recovery of amount of rent of shuttering, which was withdrawn as compromise, without reserving any right by the appellant for the recovery of the shuttering. Further he had made no prayer therein for mandatory injunction qua return thereof. 12. As a matter of fact, a suit must include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, though he can relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. But, 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. But, 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. Further if a person is entitled to more than one relief in respect of the same cause of action may sue for all or any of such relief's, but if he omits, except with the leave of the Court, to sue for all such relief's, he shall not afterwards sue for any relief so omitted. In the previous suit, the appellant was entitled for more than one relief including the present one but he omitted to seek, rather, he only filed the suit for recovery of the suit amount as aforesaid. Even later, it was compromised, thus dismissed as withdrawn. Thereafter a legal notice was issued for the recovery of Rs. 72,000/-, and also to hand over the shuttering. The case of the defendant respondent is that after the notice was served upon him, the appellant had taken 1600 square feet of shuttering from him. Further otherwise also the shuttering pieces found in the possession of the defendant are not identified to be that of the plaintiff and the decree passed by the learned trial Court was rightly held to be unreasonable and un-executable for want of identification. 13. Thus, in my opinion, the First Appellate Court has not misread and misconstrued the evidence, especially the documentary evidence Exts.P1, P5, P6 and P7 and also the report of the Local Commissioner Ext.PW4/A, therefore, the substantial questions of law stand accordingly answered. The appeal sans merit and is accordingly dismissed. No other points urged or pressed. Parties to bear their own costs.