Jammu & Kashmir High Court
Deepak Jain vs Jain Nagar Welfare Society on 31 August, 2007
Equivalent citations: 2008(1)JKJ305
Author: J.P. Singh
Bench: J.P. Singh
JUDGMENT J.P. Singh, J.
1. Deepak Jain, petitioner had filed suit No. 12/1998 for permanent prohibitory injunction against Jain Nagar Welfare Society-respondent, seeking reliefs which read thus:
1. That the defendant, its agents and servants and all members of the defendant's society be restrained from raising any construction at the site marked Red in the site plan and/or in front of the plot of land marked "A" in the site plan directly, indirectly or otherwise and/or to interfere with the right of the plaintiff to use road leading to his plot of land and/or to interfere with the plaintiff's right of ingress or outgress and be further restrained from creating any impediment/obstruction to the plaintiff right to use the said plot of land.
2. It was during the pendency of this suit that he filed yet another suit seeking the following reliefs:
1. It be declared that the road marked "C" in the site plan annexed to the plaint is a public road and the plaintiff along with his brothers has absolute right to use the said road in common with other residents of Jain Nagar.
2. It be declared that wall marked "D" in the site plan belongs to the plaintiff and he is the owner of the said wall and has every right to remove/demolish the said wall as he may deem fit.
3. By a permanent prohibitory injunction, the defendants, their agents and servants including office bearers be restrained from interfering in the use of the road marked "C" in the site plan and in the removal/demolition or construction of the wall marked "D" by the plaintiff.
3. The subsequent suit of Deepak Jain was based on the grounds which for facility of reference are reproduced hereunder:
1. That the plaintiff is the owner of a plot of land measuring 60' x 80' along with his brothers and adjacent to this plot, he and his brothers purchased 48 kanals of land under Survey Nos. 531 & 532.
2. That there is a public road towards the west of plot measuring 60' x 80' which has been constructed by Jammu Municipality and is maintained by it and defendant wanted to raise construction on this road so a suit had been filed before this Court.
3. That there is a brick wall in between plot measuring 60' x 80' and the chunk of 48 kanals of land which the plaintiff wanted to remove, but the defendant's society lodged a protest.
4. Objection taken by the respondent that the second suit of Deepak Jain was hit by Order 2 Rule 2 of the Code of Civil Procedure resulted in the framing of an issue as to whether the suit was barred under Order 2 Rule 2 CPC?
5. Learned 1st Additional District Judge, Jammu dismissed the second suit holding that the subject matter of litigation and cause of action was same as that of the earlier suit. It further held that relief of declaration sought in the subsequent suit, was available to the plaintiff when he had filed the earlier suit. Having omitted to sue for the relief of declaration in the earlier suit, the second suit would be barred, ruled the trial Court.
6. Mr. Deepak Jain, petitioner has assailed the order of the trial Court dated 05-02-2005 in this revision petition.
7. Mr. R.P. Sharma, learned Counsel for the petitioner/plaintiff while relying upon Kunjan Nair Sivaraman Nair v. Narayanan Nair reported as , Kewal singh v. Lajwanti, reported as & Raman lttiyathi v. Pappy Bhaskaran, reported as , submitted that the trial Court had failed to distinguish the separate and distinct cause of action on which the subsequent suit had been founded and had thus fallen in error in holding the subsequent suit not maintainable.
8. Mr. L.K. Sharma, learned Counsel for the respondent Society places reliance on Kamal Kishore Saboo v. N. Humayun Kamal Hassan Khan reported as , Gajanan R. Salvi v. Satish Shankar Gupte and Ors. reported as and Kewal Singh v. Lajwanti, reported as to support the order of the trial court.
9. I have considered the submissions of learned Counsel for the parties and gone through the two plaints which Deepak Jain, petitioner had filed against the respondent Society.
10. The first suit which had been filed by the plaintiff/petitioner before the trial Court was based on a cause of action which had arisen to him because of the threatened action of the respondent to raise illegal construction on a public road, 30' wide, right in front of the plaintiff's plot marked "A" in the site plan.
11. The plaintiff had not raised any dispute in this suit regarding his ownership over the wall marked "D" in the site plan and his right to remove/demolish it. No injunctive relief too had been sought for by the petitioner against the respondent Society in respect of this wall.
12. I, therefore, find, on facts that the learned trial Court had omitted to take notice of the case pleaded by the plaintiff in the subsequent suit regarding his absolute ownership over the wall shown at point "D" in the site plan and his right to demolish/remove it as and when he so wished.
13. The cause of action in both the suits was thus separate and different, for in the earlier suit, the plaintiff had claimed his right to use the path which was existing in front of his plot whereas in the subsequent suit, claiming ownership over a brick wall existing between his plot measuring 60' x 80' and big chunk of land measuring 48 kanals of land which had been shown at point "D" in the site plan, he had claimed his right to demolish/remove it as and when he so wished and that the respondent had no right to interfere with this right of the plaintiff.
14. Although in the subsequent suit, the plaintiff had included some of the reliefs which he had claimed in the earlier suit yet incorporation of such reliefs which had been claimed in the earlier suit, by way of additional relief, would not render whole of the suit unsustainable.
15. All that could be said in such circumstances was that part of the relief which the plaintiff had claimed in the earlier suit and which had been repeated in the second suit, would be barred under Order 2 Rule 2 of the Code of Civil Procedure and not the whole suit as such.
16. Law relating to the Bar enacted by the provisions of Order 2 Rule 2 of the Code of Civil Procedure needs to be noticed at this stage.
17. Order 2 Rule 2 of the Code of Civil Procedure does not require that when a transaction or right gives rise to several causes of action, they should all be combined in one suit. All what is prohibi ted by Order 2 Rule 2 of the Code of Civil Procedure is that a cause of action cannot be split up to sue for one part in one suit and another part in another suit. When a cause of action gives rise only to one relief, the entire claim must be included in the suit, and, if it is not so done, the subsequent suit for the omitted or relinquished portion would be barred for ever. There may be cases in which same cause of action may give rise to several reliefs. In such cases also, all these reliefs are required to be claimed in the same suit, for omission to do so would attract the Bar of Order 2 Rule 2 of the Code of Civil Procedure, applicable. In such cases, the plaintiff may, however, obtain leave of the Court and reserve one or more reliefs for a separate suit.
18. Order 2 Rule 2 of the Code of Civil Procedure would however have no application to cases where the plaintiff basis his suit on separate and distinct cause of action and chooses to relinquish one or the other of them. In such cases, it is always open to the plaintiff to file a fresh suit on the basis of a distinct cause of action which he may have so relinquished.
19. It would be fruitful to refer to what was held in Mohd. Khalil Khan v. Mahbub Ali Mian (1948) 75 Ind App 121 by the Privy Council, to appreciate as to what would be meant by cause of action in the context of Order 2 Rule 2 of the Code of Civil Procedure.
The principles laid down in the cases thus far discussed may be thus summarized; (1) the correct test in cases falling under Order 2 Rule 2 is "whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation for the former suit, (Moonshee Buzloor Ruheem v. Shumsoonnissa Begum (1867) 11 Moo Ind App 551 (605). (2) The cause of action means every fact which will be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment Read v. Brown (1889) 22 QBD 128, 131. (3) If the evidence to support the two claims is different then the causes of action are also different Brunsden v. Humphrey (1884) 14 QBD 141. (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. Brunsden v. Humphrey. (5) The cause of action has no relation whatsoever to the defence that may be set up by the defendant, nor does it depend on the character of the relief prayed for by the plaintiff. It refers " to the media upon which the plaintiff asks the court to arrive at a conclusion in his favour." (Muss. Chand Kour v. Partap singh (1887-88) 15 Ind App 156 (PC)). (5) This observation was made by Lord Watson in a case under Section 43 of the Act of 1882 (corresponding to Order 2 Rule 2) where plaintiff made various claims in the same suit.
20. In view of the above discussion and the law laid-down by the Privy Council in this respect, the order impugned in this revision petition cannot be upheld and needs to be set aside.
21. Judgments cited by Mr. L.K. Sharma are clearly distinguishable and do not apply to the facts of the case in hand. For all what has been said above, I am of the view that the reliefs mentioned in paragraph No. 15 (ii) & (iii, barring the injunctive relief pertaining to road marked "C" in the site plan) of the plaintiff in the subsequent suit, were not barred by Order 2 Rule 2 of the Code of Civil Procedure and. the suit could proceed for adjudicating plaintiff's suit on the aforesaid reliefs.
22. This revision petition is, accordingly, allowed and Order dated 05-02-2005 of 1st Additional District Judge, Jammu is set aside. Learned 1st Additional District Judge, Jammu is directed to deal with the suit in accordance with law. Parties through their counsel are directed to appear before the trial Court on 15th of September, 2007.