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2018 DIGILAW 793 (HP)

Lalita Khanna v. Vinod Kumar Malik

2018-05-02

TARLOK SINGH CHAUHAN

body2018
JUDGMENT Tarlok Singh Chauhan, J —The plaintiffs are appellants, who aggrieved by the judgment and decree passed by the learned trial Court, whereby the suit for grant of declaration and consequential relief for possession, prohibitory injunction, mandatory injunction, recovery of damages/mesne profits etc. has been dismissed, have filed the instant appeal under Section 96 of the Code of Civil Procedure, 1908 read with Section 20 of the Himachal Pradesh Courts Act, 1976. 2. The parties to the lis are hereinafter referred in the same manner, in which they were referred to by the learned Court below. 3. It is not in dispute that the pleadings of the parties have been correctly enumerated in the impugned judgment and are, therefore, reproduced as such. 4. It was averred in the plaint that plaintiffs are coowners of the property known as Strawberry Hill, which is over the land entered at Khewat No. 13, Khatauni No. 14, Khasra Nos. 112/66/10, measuring 4 bighas 13 biswas, situate at Chotta Shimla, Tehsil and District, Shimla, H.P. (hereinafter referred to as the suit property) . The above suit property has been in exclusive use and occupation of the plaintiffs. In fact, plaintiffs previously owned 16 bighas 2 biswas of land, but, lateron sold the remaining area to the various persons including H.P. Housing Board, Shimla. The ancestors of the plaintiffs in order to access to the main house, Strawberry Hill from the main Shimla, Kasumpti Road, had a private approach road and to secure the privacy and avoid unnecessary intrusion, had provided a gate embedded into two cemented pillars within their own property at the bifurcation of the main P.W.D., Chotta Shimla, Kasumpati Road, which is shown by points ''A'' and ''B'' in the site plan annexed with the plaint. The aforementioned private approach road has been in exclusive use of the plaintiffs and their predecessor-in-interest for the last 70 years, and the main gate has always been kept by the plaintiffs and their predecessor-in-interest under the lock and key and control. The approach road is shown in the site plan as points, C, D, E & F. The predecessor-in-interest of the plaintiffs have also affixed iron mesh railing/fencing on the either side of the road. The approach road is shown in the site plan as points, C, D, E & F. The predecessor-in-interest of the plaintiffs have also affixed iron mesh railing/fencing on the either side of the road. Since, the plaintiffs were desirous of developing their property by carving out therefrom certain plots of land for which purpose an application was made by the plaintiff No. 1 to H.P. Town & Country Planning Organisation for seeking sub-division of the plots. Lateron the Director Town & Country Planning on 31.07.1982 accorded sanction to the plaintiffs for sub-division of a part of their property. Even the private approach road, as well as main road depicted in the said plan. 5. That out of the plots of the land approved by the Town & Country Planning, Plot No. 2 was sold to Dr. Nath and another plot shown as Plot No. 3 was sold to Ashok Kapoor of Delhi. Both these plots have not yet been built upon or constructed upon by them and there is no access or right of way from the private road of the plaintiffs. 6. Lateron defendant Nos. 1 & 2 approached the plaintiffs for purchase of the plot lying in between the plot No. 1 and 3 and in the revenue record, this plot was shown to be 0-4 biswas being part of Khasra No. 112/66/10/12. This plot was transferred in favour of defendant Nos. 1 & 2 by way of sale deed dated 22.02.1984. This plot in fact is located alongside of Municipal Corporation and P.W.D. road leading from Chhota Shimla to Kasumpti and this plot is about 30 feet below the level of the private approach road of the plaintiffs leading to main house Strawberry Hill. Thus, no right of access was given to defendant Nos. 1 & 2 from the private approach road belonging to the plaintiffs. Lateron plaintiff No. 1 on 20th October, 1984 sent an information to the Executive Engineer, Municipal Corporation, Shimla clarifying that plaintiff No. 1 had not allowed any permission to the defendants to use her private road leading to the main house and defendant No. 1 had only to use the Municipal road passing in front of the plot. Lateron plaintiff No. 1 on 20th October, 1984 sent an information to the Executive Engineer, Municipal Corporation, Shimla clarifying that plaintiff No. 1 had not allowed any permission to the defendants to use her private road leading to the main house and defendant No. 1 had only to use the Municipal road passing in front of the plot. A request was also made to the Executive Engineer, M.C. Shimla to ensure that while approving any building plan of defendant No. 1, no access through the private road of the plaintiffs should be shown to the defendant No. 1. The defendant Nos. 1 and 2 continued with their construction till 1984 and defendants used adjacent plot of Dr. Nath for parking their vehicle and used the P.W.D./Municipal Road in front of the plot to approach their house. The construction raised by defendant No. 1 is facing the P.W.D./Municipal Corporation Road and opposite side is towards the approach road leading to the main house of plaintiffs. 7. It was further averred in the plaint that the plaintiffs generally remain out of Shimla and during the winter months and usually come to stay Shimla during summer, and in August, 1986, the plaintiffs found to her dismay and shock that defendant Nos. 1 & 2 had broken the fencing that existed within the boundaries of the land owned and possessed by the plaintiffs and further the defendants had not only encroached upon the property of the plaintiffs and had built a gate, cemented, flower-beds, water tanks, etc. but also made encroachment on the adjacent plot of land. The plaintiff No. 1 informed defendant No. 1 & 2 and called upon them to restore the fencing to its original condition, but, of no use. The defendant Nos. 1 & 2 for the first time wrongfully asserted and claimed a right regarding the use of their private road. The defendants have also caused damage by caving-in under the approach road during the year 1984, but the defendants made incorrect assertions about its cause and their having repaired and filled up the same at enormous cost. 8. The plaintiffs lateron served the defendants a notice dated 20.10.1986 through their counsel for removal of encroachment and restore fencing which had been provided by the plaintiffs and which had been broken by the said defendants. Copy of the notice was also served upon the defendant Nos. 8. The plaintiffs lateron served the defendants a notice dated 20.10.1986 through their counsel for removal of encroachment and restore fencing which had been provided by the plaintiffs and which had been broken by the said defendants. Copy of the notice was also served upon the defendant Nos. 3, 4 and 5 calling upon them to fulfill their statutory duty and to take appropriate remedial actions. The defendant Nos. 1 & 2 sent the reply to the notice by making wrong and baseless denials. When plaintiff alongwith her husband on 15.11.1986 came to Shimla from Delhi, it was found that the plaintiffs'' locks on the main gate at the entrance of the private approach road belonging to plaintiffs of which keys had always remained under the control and possession of the plaintiffs and their predecessor-in-interest for the last more than 40 years had been broken open. The matter was also brought to the notice of the police. The defendant No. 1 at that time gave the assurance to plaintiff No. 2 nothing further would happen. Despite this the defendant Nos. 1 & 2 continued to do illegal acts, the plaintiff No. 2 had no option but to get filed a civil suit in the court of learned Senior Sub Judge, Shimla for grant of a decree for permanent prohibitory injunction restraining defendant No. 1 from breaking open the lock on the gate and keeping the gate open. Lateron, the suit was withdrawn. 9. The plaintiff had sold a plot of land to defendants No. 1 & 2, dimensions of which were mentioned in the plan approved by the State Town Planner of H.P., 6 metres x 13 metres x 9.25 metres x13 metres. But lateron the dimensions were changed and they were shown as 6 karam x 10 karam x 9 karam x 10 karam. 10. Before the sale of the plot to defendant Nos. 1 & 2, the plaintiff No. 1 had intended to club plot Nos. 2 and 3 i.e. the plot of land purchased by defendant Nos. 1 & 2 and the plot of land purchased by Shri Ashok Kapoor and defendant No. 1 were having cordial relations also obtained authority from the plaintiff No. 1, which the defendant No. 1 had lateron mis-used whereby the defendant No. 1 got approved the plots stated above. 2 and 3 i.e. the plot of land purchased by defendant Nos. 1 & 2 and the plot of land purchased by Shri Ashok Kapoor and defendant No. 1 were having cordial relations also obtained authority from the plaintiff No. 1, which the defendant No. 1 had lateron mis-used whereby the defendant No. 1 got approved the plots stated above. On the strength of letter of authority, the defendant No. 1 submitted building plan, as mentioned above in the office of Town & Country Planning Department. Although the plaintiff No. 1 has not given any such authority to defendant No. 1 for submission of any plan. Lateron, the office of Town and Country Planning accorded sanction. Thereafter, the defendant No. 1 in connivance with Director of Town & Country Planning Organisation of H.P. manipulated in obtaining a letter dated 19.10.1984, wherein access to the plot of defendant Nos. 1 & 2 is shown through the private approach road of the plaintiffs. Lateron on 20th October, 1984 plaintiff No. 1 addressed a letter to Executive Engineer, Municipal Corporation, Shimla with a copy of said Sh. S.D. Sharma, Chief Executive Officer, Shimla Development Authority/Town & Country Planner about the access to the plot of land purchased by defendant Nos. 1 and 2 through the private approach road of the plaintiffs. Lateron the defendant No. 1 had submitted a revised plan to the Municipal Corporation, Shimla by giving incorrect dimension of the plot, wherein the total built up area as 8.84 metres x 14.02 metres x 12.80 metres. The entry has been wrongly shown through the private road of the plaintiffs. 11. During the process of construction the defendant Nos. 1 & 2 caused damage to the property of the plaintiffs by destroying the restraining wall and have also included within their property 22 sq. yards area, which area has been shown by Khasra No. 120/10/1, measuring 10 biswa in the Aks Tatima Shajra prepared by the Kanoongo In-charge, Shimla on 01.09.1986, which also shows with red within points GHIJ. The defendants have also raised platform for keeping water tank and flower-bed. Two cemented gates have also been erected in this area. 12. Thus, the defendants have committed various acts of encroachment fully mentioned above. The defendant Nos. The defendants have also raised platform for keeping water tank and flower-bed. Two cemented gates have also been erected in this area. 12. Thus, the defendants have committed various acts of encroachment fully mentioned above. The defendant Nos. 3 to 5 were served with notices from time to time and their attention was drawn to the wrongful and illegal acts and to their statutory obligations to ensure strict adherence to and due compliance of the various provisions of the Act, Rules, regulations and bye-laws. The defendant Nos. 4 and 5 have accorded their sanction to the building plans of defendant Nos. 1 and 2 on 03.03.1984 and 20.05.1985 improperly, irregularly and illegally, contrary and against by-laws. The defendant Nos. 1 and 2 during the winter season of the year 1991-92 took undue advantage of the absence of the plaintiffs from Shimla and have carried out further unauthorised and illegal construction within the set-back area. The defendant Nos. 1 and 2 have created a new opening towards the private approach road of the plaintiffs. The defendant Nos. 1 and 2 have constructed illegally and unauthorisedly the structures to be used as a guard house within the property of the plaintiffs by covering the set-back area by putting a slab. Thus, the defendant Nos. 1 and 2 are liable to restore the property of the plaintiffs in the same condition, as it was before the institution of the suit. The plaintiffs further submitted that they are entitled to claim and recover from the defendants all such losses and damages and mesne profits, on account of encroachment, trespass and illegal acts in the sum of Rs. 10, 000/-. The cause of action accrued to the plaintiffs against the defendant Nos. 1 and 2 in the month of January, 1984, thereafter in the month of March, 1984, in the month of September, 1984 and during the months of September to December, 1986 when defendants encroached upon and made criminal trespass upon the property of the plaintiffs. 13. The lis was resisted and contested by the defendants. The defendant Nos. 1 and 2 filed combined written statement and defendant Nos. 3 and 4 also filed a separate written statement. Defendant Nos. 1 and 2 in their written statement took preliminary objections inter alia that the suit is barred by the provisions of order 2 Rule 2 CPC as well as Order 9 Rule 9 CPC. The defendant Nos. 1 and 2 filed combined written statement and defendant Nos. 3 and 4 also filed a separate written statement. Defendant Nos. 1 and 2 in their written statement took preliminary objections inter alia that the suit is barred by the provisions of order 2 Rule 2 CPC as well as Order 9 Rule 9 CPC. It was averred that previously the civil suit was filed in the Court of Sr. Sub Judge, Shimla, which was dismissed on 24.09.1987, hence the present suit is not maintainable. The defendants also took preliminary objections regarding valuation of the suit, as well as, estoppel, delay and laches, cause of action etc. 14. On merits, it was alleged by defendant Nos. 1 and 2 that in the plan submitted by the plaintiffs to the Town & Country Planning Orgnisation for the purpose of sub division of plots, the approach to the various plots including the plot sold to the defendants have been shown through the disputed path. Even in the site plan, which was sanctioned by the office of Town & Country Planner, as well as, Municipal Corporation, Shimla, the private road is the passage shown to the plot of the defendants. It is totally false that any area of Strawberry Hill Estate had any approach from the PWD/Municipal Road leading from Kasumpti to Chhota Shimla. The land purchased by defendants was described as compound of Kothi in the revenue record. As a matter of fact, the proper plan for the joining of the adjoining plots with the plot in question was submitted by plaintiffs to the Town & Country Planning, Shimla and the front of the plot was clearly shown towards private road in dispute. In August, 1983 an authority letter was given by plaintiff No. 1 to defendant No. 1 authorising him to submit the plans for the house construction etc. Thereafter as per instructions of the plaintiff, a plan was got prepared by defendant No. 1. The said plan was submitted to the office of Town & Country Planning and Municipal Corporation, Shimla and sanction was accorded finally on 03.04.1984. The answering defendants have purchased 180 sq. yards of land from the plaintiffs and they have built their property on the said land which was sold to them by the plaintiffs vide registered sale deed dated 22.02.1984. The answering defendants have purchased 180 sq. yards of land from the plaintiffs and they have built their property on the said land which was sold to them by the plaintiffs vide registered sale deed dated 22.02.1984. Thereafter, the demarcation of the land was also got done by the answering defendants. 15. It is also wrong that there was a retaining wall in existence towards the West of the plot of the land purchased by the answering defendants. When the defendants started construction of their house, at that time due to heavy rains the major portion of the private road collapsed and the entire construction work of the defendants was materially hindered. In these circumstances the answering defendants were left with no alternative except to construct a retaining wall towards the private road side by spending more than 40, 000/- rupees on the same. The collapsed part of the road was also constructed by the answering defendants. Even the plaintiffs have agreed to share 50% of the cost of the construction of the retaining wall and road, which they did not pay. The defendants have made no excavation or encroachment over the land of the plaintiffs. The use of the private road is the right of the answering defendants. 16. The plaintiffs have been making false allegations against the answering defendants and the defendants have replied the letter of plaintiff No. 1 dated 09.09.1986. It was not in 1986 that defendants forcibly used the said road. The allegations regarding breaking of the lock etc. is totally false and baseless. The plaintiffs have sent a legal notice dated 20.10.1986 through his counsel and the said notice was duly replied by the defendants. The defendants have purchased a plot of 180 sq. yards of land from the plaintiff and their entire construction is on their own property. The actual measurements of the plot of the defendants are 29'' to the North 42'' on the South and 47'' on the East and 46'' on the West. Since, the plans were submitted by the defendants for approval with the consent of plaintiffs, hence, the plaintiffs have no right now to challenge the same. It is totally false that defendant No. 1 practised fraud upon the plaintiffs by mis-using of his authority. The plaintiffs have no right to challenge the orders passed by defendant Nos. 4 and 5 at this stage. It is totally false that defendant No. 1 practised fraud upon the plaintiffs by mis-using of his authority. The plaintiffs have no right to challenge the orders passed by defendant Nos. 4 and 5 at this stage. The suit is barred by limitation, as the order can be challenged within one year. Hence, the plaintiffs are not entitled to any relief of permanent injunction, mandatory injunction or possession. 17. The defendant Nos. 3 to 5 filed separate written statement. In the written statement defendants alleged that on 22.07.1982 an application was submitted by plaintiffs for subdivision of part of their land and the permission was granted on 31.07.1982 for carving out four plots and there was approach road leading to the main house of Strawberry Hill Estate. All the plot are abutting with each other. The plot sold to Dr. Nath and Mr. Ashok Kapoor were not approved by defendant No.1, which plots were shown to be already sold by the plaintiffs at the time of filing of application for permission for sub division of the plots. The defendants No. 1 and 2 purchased plot bearing Khasra No. 112/66/10/12 from the plaintiff Nos. 1 to 4 as per registered sale deed on 22.02.1984. This plot is between the plot of Ashok Kapoor and Dr. Nath. For the unauthorised construction a notice was served upon the defendant Nos. 1 and 2 by the office of H.P. Town & Country Planning. The site of the plot in dispute works out to be 180 sq. yards with dimensions as per the sub division of land approved on 31.07.1982. It is submitted that plaintiff No. 1 herself had initially applied on 07.10.1983 for grant of planning permission for regularisation of two plots bearing Khasra No. 112/66/10/12 and 112/66/10/5. Simultaneously defendant No. 1 applied on 11.10.1984 for grant of planing permission for construction of house. The construction was carried out by the defendants in 1984. The passage to the plot of defendant Nos. 1 and 2 has been provided through the approach road leading to main house of the Strawberry Hill Estate. The defendants have also granted permission for revised plan on 28.01.1985 in favour of defendant No. 1. 18. Replication to the written statement filed by defendant Nos. 1 and 2 was filed wherein all the allegations mentioned in the plaint were re-affirmed and those of written statement were denied. 19. The defendants have also granted permission for revised plan on 28.01.1985 in favour of defendant No. 1. 18. Replication to the written statement filed by defendant Nos. 1 and 2 was filed wherein all the allegations mentioned in the plaint were re-affirmed and those of written statement were denied. 19. On 12.12.1990, when the suit was pending adjudication before this Court, the following issues came to be framed: 1. Whether the suit is barred by the provisions of Order 2 Rule 2 CPC as alleged?OPD. 2. Whether the suit is property valued for purposes of court fee and jurisidction?OPD 1 & 2. 3. Whether the suit is not maintainable in view of the provisions of Order 9 Rule 9 CPC or that of the plan sanctioned by the Town and Country Planning authorities, Municipal authorities, as alleged?OPD 1& 2. 4. Whether the suit is not maintainable in view of the relinquishment of the remedies available to the plaintiff under the provisions of Himachal Pradesh Municipal corporation Act, 1968 after sanction of the plan by the Town and Country Planning authorities?OPD 1 & 2. 5. Whether the plaintiffs are estopped from filing the suit as alleged in paras 4 and 5 of the preliminary objections?OPD 1 &2. 6. Whether the relief of prohibitory injunction cannot be granted to plaintiffs as alleged?OPD 7. Whether there is an implied grant of the approach road to the residential building of defendants 1 and 2 as alleged? If so, to what effect?OPD 1&2. 8. In case issue No. 7 is decided in the negative whether defendants No. 1 and 2 are entitled to claim the user of approach road in question as an easement of necessity as alleged?OPD 1& 2. 9. Whether the plaintiffs are the exclusive owners of the property in dispute?OPP. 10. Whether the defendants have encroached any part of the property in dispute or caused any damage to the retaining wall as alleged?OPP. 11. Whether any passage was provided to the plot of the defendant by the Town and Country Planning/Municipal Corporation authorities from the road claimed by the plaintiffs? OPP. 12. Whether the defendants practised any fraud on the plaintiffs as alleged by them?OPP. 13. Whether in view of the sale deed dated 22.02.1984 and the plan which was got sanctioned by the plaintiffs on 06.02.1984 showing the existence of the passage, the plaintiffs are entitled to any relief?OPP. 14. OPP. 12. Whether the defendants practised any fraud on the plaintiffs as alleged by them?OPP. 13. Whether in view of the sale deed dated 22.02.1984 and the plan which was got sanctioned by the plaintiffs on 06.02.1984 showing the existence of the passage, the plaintiffs are entitled to any relief?OPP. 14. Whether the defendants caused damage to the retaining wall and other properties of the plaintiffs? If so, to what amount of damages/compensation the plaintiffs are entitled? OPP. 15. Relief. 20. On pecuniary jurisdiction having been enhanced, the suit was transferred to the Court of learned District Judge, Shimla, who after recording evidence and evaluating the same, dismissed the same. 21. After recording evidence and evaluating the same, the learned trial Court not only dismissed the suit as being not maintainable while answering Issue Nos. 1 and 3 but dismissed the same even on merits. 22. Aggrieved by the judgment and decree passed by the learned Court below, the plaintiffs/appellants have filed the instant appeal. 23. Shri Vinay Kuthiala, learned Senior Counsel for the defendants/respondents, duly assisted by Ms. Vandana Kuthiala, Advocate, has raised preliminary objection regarding the very maintainability of the appeal. He would argue that this Court will not un-necessary bother itself and waste its time in adjudicating the appeal as the same is not maintainable in view of the provisions as contained in Order 2 Rule 2 CPC and Order 9 and Rule 9 CPC coupled with the findings recorded by the learned trial Court holding the suit to be barred under the said provisions. 24. Shri Ajay Kumar, learned Senior Counsel for the plaintiffs/appellants duly assisted by Shri Dheeraj Vashisht, Advocate has, in fact, not disputed the legal position that if only the appeal is held legally maintainable, would this Court go into the relative merits of this case. However, he would contend that the provisions of Order 2 Rule 2 would apply only in case the earlier suit has been decided on merits and not otherwise. I have heard learned counsel for the parties and have gone through the records of the case. 25. At the outset, it would be relevant to make a note of the background on the basis of which the aforesaid plea is being raised by learned Senior Counsel for the defendants/respondents. I have heard learned counsel for the parties and have gone through the records of the case. 25. At the outset, it would be relevant to make a note of the background on the basis of which the aforesaid plea is being raised by learned Senior Counsel for the defendants/respondents. Admittedly, one civil suit had earlier been filed by one of the plaintiffs Lalita Khanna against defendant No. 1 V. K. Malik with similar allegations like in the instant case that the defendant had committed illegal acts of trespass and mischief on the suit land belonging to the plaintiff. However, the same came to be dismissed in default on 24.09.1987 and admittedly it was never got restored. Therefore, the present suit on the same cause of action with similar plea was not maintainable. 26. On 05.04.2018, this Court had heard arguments on the maintainability of the appeal as it was conceded by the learned Senior Counsel for the appellants that the merits of the case can be gone into only if this Court comes to the conclusion that the appeal is maintainable and not barred under the provisions of Order 2 Rule 2 and Order 9 Rule 9 CPC. Strong reliance at that time had been placed upon the judgment of learned Single Judge of this Court in Smt. Nirmala vs. Hari Singh , (2001) AIR(HP) 1, wherein it was held that in order to attract the applicability of provisions of Order 2 Rule 2, apart from other things, the earlier suit must have been decided on merit. 27. However, while dictating judgment I came across a decision rendered by the Hon''ble Supreme Court in Virgo Industries (Eng.) Private Limited vs. Venturetech Solutions Private Limited , (2013) 1 SCC 625 , which clearly lays down that in order to make the provisions of Order 2 Rule 2 applicable, it was not necessary that the first suit should have been disposed of at the time when the second suit had been filed. In view of this the case was again fixed for further arguments. 28. At this stage, it would be apposite to refer to the relevant observations made by the learned Single Judge in Smt. Nirmala''s case , wherein while construing the provisions of Order 2 Rule 2 CPC learned Single Judge held as under:- "18. In view of this the case was again fixed for further arguments. 28. At this stage, it would be apposite to refer to the relevant observations made by the learned Single Judge in Smt. Nirmala''s case , wherein while construing the provisions of Order 2 Rule 2 CPC learned Single Judge held as under:- "18. 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." 29. Here, it would be apt to refer to a decision of the Hon''ble Bombay High Court in Krishnaji Ramchandra vs. Raghunath Shankar and another , (1954) AIR(Bombay) 125, wherein it was held that for the purpose of determining the applicability of Order 2 Rule 2 CPC, the point of time is date of filing of the suit and not any other subsequent date much less the date of passing of decree, if any. 30. I have deliberately made a reference to the decision of the Hon''ble Bombay High Court in Krishnaji Ramchandra''s case , as it was the ratio laid down therein that was approved by the Hon''ble Supreme Court in Virgo Industries'' case as would be clear from the further discussion. 31. Order 2 Rule 2 CPC, reads thus: "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. (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." 32. Order 9 Rule 9, reads as under:- "9.Decree against plaintiff by default bars fresh suit - (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party." 33. Now, adverting to Virgo Industries , the Hon''ble Supreme Court while interpreting the provisions of Order 2 Rule 2 CPC, held that the subsequent suit is not permissible when cause of action for later (subsequent) suit is the same as in the first suit, unless leave of court is obtained in first suit as to filing of subsequent suit for omitted relief. It was further held that it was not the requirement of the Order 2 Rule 2 CPC that the first suit should have been disposed of when the subsequent suit is filed and would apply even when subsequent suit is filed during the pendency of the first suit. While affirming the judgment in Krishnaji Ramachandra''s case , it was observed as under:- "17. While affirming the judgment in Krishnaji Ramachandra''s case , it was observed as under:- "17. The learned Single Judge of the High Court had considered, and very rightly, to be bound to follow an earlier Division Bench order in R. Vimalchand v. Ramalingam , (2002) 3 M.L.J 177 holding that the provisions of Order 2 Rule 2 CPC would be applicable only when the first suit is disposed of. As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order 2 Rule 2(3) will not be attracted. Judicial discipline required the learned Single Judge of the High Court to come to the aforesaid conclusion. However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order 2 Rule 2 CPC as already discussed by us, namely, that Order 2 Rule 2 CPC seeks to avoid multiplicity of litigations on the same cause of action. If that is the true object of the law, on which we do not entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order 2 Rule 2 CPC will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order 2 Rule 2 CPC will apply to both the aforesaid situations. Though direct judicial pronouncements on the issue are somewhat scarce, we find that a similar view had been taken in a decision of the High Court at Allahabad in Murti v. Bhola Ram, 1894 16 ILR(All) 165 and by the Bombay High Court in Krishnaji Ramchandra v. Ramchandra v. Raghunath Shankar , (1954) AIR(Bombay) 125." 34. Bearing in mind the aforesaid exposition of law, it would be noticed that admitted case of the parties is that one of the appellants herein Lalita Khanna had earlier issued legal notice dated 20.10.1986 Ext.PQ wherein the majority of reliefs as claimed in the suit, out of which the instant appeal arises, had been raised. However, thereafter when the suit actually came to be filed on 29.11.1986 being Civil Suit No. 649/1 of 86 only the relief of injunction was sought therein. However, thereafter when the suit actually came to be filed on 29.11.1986 being Civil Suit No. 649/1 of 86 only the relief of injunction was sought therein. 35. The subsequent suit out of which the present appeal arises was filed on 01.09.1987 when the earlier suit was already pending adjudication and came to be dismissed in default only on 24.09.1987. 36. Once this being the admitted position, obviously, the cause of action in both the suits is absolutely same and, in fact, the second suit is based entirely on the legal notice Ex.PQ that was got issued by all the plaintiffs herein. After service whereof, Smt. Lalita Khanna, one of the plaintiffs herein, filed the suit that too only for injunction and the same was otherwise dismissed in default. 37. That the suit is not only barred by the provisions of Order 2 Rule 2 CPC but also barred by the provisions of Order 2 Rule 9 CPC, as these provisions clearly preclude the second suit in respect of the same cause of action, where the first suit is dismissed in default. 38. In this contest, I only refer to the judgment of the Constitutional Bench of Hon''ble Supreme Court in Suraj Rattan Thirani and others vs. Azamabad Tea Co. Ltd and others , (1965) AIR(Supreme Court) 295, wherein while interpreting the words ''same cause of action'' it was held that the terms ''same cause of action'' should be construed with reference to the substance rather than the form of action. 39. Even otherwise the provisions of Order 2 Rule 2 is based on the salutary principles that defendant/defendants should not be twice vexed for the same cause by splitting the claim and the reliefs and likewise Order 9 Rule 9 CPC preclude the second suit in respect of the same cause of action where the first suit is dismissed in default for appearance of the plaintiff. 40. In considering whether the cause of action in the subsequent suit is the same or not as the cause of action in the previous suit, the test to be applied is the causes of action in the two suits in substance not technically identical. Thus, the terms "cause of action" is to be construed with reference to the substance than to the form of action. 41. Thus, the terms "cause of action" is to be construed with reference to the substance than to the form of action. 41. In the present case, as rightly held by the learned trial Court, a broad analysis of the pleadings of both the cases would show that not only the pleadings are similar but the cause of action in both the suit is practically the same. Plaintiff No. 2, who is also a party in the present suit has specifically averred that the defendant V. K. Malik was trying to interfere over the suit land by trespassing over the same. 42. Likewise, there is specific allegations that the defendants have illegally committed mischief on the suit land and the further allegations regarding the breaking open of the gate as well as of the lock in both the suits. It was averred in the earlier suit that the plaintiff had alternate access to the plot through the government land. 43. In view of the aforesaid discussion, no fault can be found with the reasoning accorded by the learned trial Court whereby holding the suit to be barred under the provisions of both Order 2 Rule 2 and Order 9 Rule 9 CPC and the same is accordingly affirmed. Once the suit as filed by the plaintiffs is itself held to be not maintainable, this Court need not go into relevant merits of the case. Consequently, there is no merit in the appeal and the same is accordingly dismissed.