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2015 DIGILAW 451 (UTT)

SHAHEED v. SAYEED

2015-09-15

U.C.DHYANI

body2015
JUDGMENT : U.C. Dhyani, J. (Oral) By means of present Second Appeal, the plaintiff/appellant seeks to set aside the judgment and order dated 07.04.2015, passed by learned Additional District Judge, Roorkee, District Dehradun, in Civil Appeal No. 21 of 2014 (Shaheed vs. Sayeed and others), as well as the order dated 07.04.2010, passed by Civil Judge (J.D.), Roorkee, District Haridwar, whereby the Trial Court has dismissed the Suit and the Civil Appeal filed against the same has also been dismissed. 2. Plaintiff/appellant filed a civil suit, being O.S. No. 64 of 2005, titled as Shaheed vs. Sayeed and others, in the Court of Civil Judge (J.D.), Roorkee, for cancellation of the sale-deed dated 29.09.1999 and for seeking permanent injunction in respect of the suit property. The suit was contested by the defendants no. 1 & 2. They filed the written statement. On the basis of the pleadings of the parties, following issues were framed: (i) Whether the plaintiff was in possession of the suit property? (ii) Whether the sale-deed dated 22.09.2009 is liable to be cancelled on the basis of reasons assigned in the plaint? (iii) Whether the suit is barred by Order 2 Rule 2 C.P.C.? (iv) To what relief, if any, is the plaintiff entitled? 3. Issue no. 3 was taken up as a preliminary issue. The Trial Court, vide order dated 07.04.2010, held that the suit was barred by Order 2 Rule 2 (3) C.P.C. and hence, dismissed the suit. Aggrieved against the same, Civil Appeal No. 52 of 2010 was filed, which appeal was also dismissed by learned 2nd Additional District Judge, Haridwar vide judgment and order dated 07.04.2015. Aggrieved against the same, present Second Appeal has been preferred by the plaintiff/appellant. 4. Defendants No. 1 & 2 filed a document (paper no. 28A) along with the written statement to show that Original Suit No. 62 of 2005, titled as Shaheed vs. Naseem, was also in respect of the same property, which is the subject matter of dispute in Original Suit No. 64 of 2005. In other words, Original Suit No. 62 of 2005 was filed in respect of the same property for a relief of permanent prohibitory injunction. In respect of the same subject matter, Original Suit No. 64 of 2005 was filed by the same plaintiff against the same defendants for a relief of cancellation of the sale-deed. 5. In other words, Original Suit No. 62 of 2005 was filed in respect of the same property for a relief of permanent prohibitory injunction. In respect of the same subject matter, Original Suit No. 64 of 2005 was filed by the same plaintiff against the same defendants for a relief of cancellation of the sale-deed. 5. Learned Trial Court, on the basis of the provisions contained in Order 2 Rule 2 (3) C.P.C., held that Original Suit No. 64 of 2005 was barred by Order 2 Rule 2 (3) C.P.C., and was, therefore, not maintainable. Learned Trial Court also considered certain decisions of Hon’ble High Courts of Andhra Pradesh, Bomay, Kerala, Madhya Pradesh and also certain decisions rendered by Hon’ble Supreme Court while coming to such a conclusion. Learned Lower Appellate Court concurred with the findings of learned Trial Court and gave elaborate reasons in support thereof. Learned Lower Appellate Court was fortified by the decision of Kunjan Nair Sivaraman Nair vs. Narayanan Nair, reported in 2004 (1) CCC 233 (SC), in arising at a conclusion that the suit was barred by Order 2 Rule (2) (3) C.P.C. Order 2 Rule 2 (3) C.P.C. reads as under: “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. (2) Relinquishment of part of claim—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. (3) Omission to sue for one of several reliefs—A person entitled to more than one relief 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 all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation: For the purposes 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. Illustration.- A lets a house to B at a yearly rent of Rs. 1,200. Explanation: For the purposes 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. Illustration.- A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent due for 1905 or 1907.” 6. It was held in Sidramappa vs. Rajashetty, reported in AIR 1970 SC 1059 , that the requirement of Order II, Rule 2 is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action is a cause which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings. 7. In Birla Cement Works vs. State of Rajasthan, reported in AIR 2000 Raj 251 (DB), it was held that the principle underlying the provisions of Order II, Rule 2 is that the plaintiff is not allowed to split relief arising out of the same cause of action by filing separate suits. No one should be vexed twice by splitting the claims and splitting the remedies. However, it is not envisaged that a suit should include also the reliefs in the first instance in respect of cause of action which arises subsequent to the filing of the suit, giving foundation for new proceedings. If subsequent cause of action gives rise to new reliefs or for additional reliefs, which he can claim, the filing of subsequent proceedings in respect of subsequent cause of action claiming similar reliefs, along with additional reliefs or on additional grounds is not barred. 8. The provision of Order II, Rule 2 is based on the principle that no person should be vexed twice for the same cause of action. The rule provides that every suit shall include the whole of the claim and the reliefs, which the plaintiff is entitled to make in respect of the cause of action. 8. The provision of Order II, Rule 2 is based on the principle that no person should be vexed twice for the same cause of action. The rule provides that every suit shall include the whole of the claim and the reliefs, which the plaintiff is entitled to make in respect of the cause of action. If he fails to do so, afterwards, he will not be entitled to sue for the portion of the claim or the relief so omitted. However, if there are different causes of actions arising even out of the same transaction, the plaintiff is not obliged to bring suit with regard to all of them. Similarly, when the cause of action on the basis of which the earlier suit was brought, does not form foundation of the subsequent suit and in the earlier suit the said relief would not have been claimed which have been claimed in the subsequent suit, the subsequent suit is not barred under the said provisions. 9. When two suits are based on different causes of action, the bar under Order II, Rule 2 CPC would not apply. 10. Order II, Rule 2 CPC enjoins upon the plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of this claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. 11. No substantial question of law, therefore, arises so as to entertain or admit the instant Second Appeal. In other words, the Second Appeal cannot be entertained in view of the impregnable concurrent and well reasoned findings of two Courts below. 12. Second Appeal is, therefore, dismissed at the admission stage itself.