Jayantilal Chimanlal Patel vs Vadilal Purshottamas ... on 1 April, 2014

[Cites 11, Cited by 2]

Gujarat High Court

Jayantilal Chimanlal Patel vs Vadilal Purshottamas ... on 1 April, 2014

C/CRA/172/2006 JUDGMENT Both the Revision Applications filed under Section 29(2) of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, are cognate and arise out of two Civil Appeals No.79 of 1999 and No.61 of 2004. Both the said Civil Appeals came to be decided by the Appellate Bench of the Small Causes Court by his common judgment and order dated 24.03.2006.

1.1 The first mentioned Civil Appeal arose out of judgment and order dated 12.03.1999 of the Small Causes Court No.13, Ahmedabad in HRP Suit No.686 of 1992 instituted by the applicant-landlord. In the other Civil Appeal No.61 of 2004 judgment and order dated 22.03.2004 of Small Causes Court No.8, Ahmedabad in HRP Suit No.1804 of 1998 was brought under challenge. The said HRP Suit was also by the applicant-landlord.

1.2 Civil Revision Application No.172 of 2006 corresponds to the common judgment and decree of the Appellate Bench in so far as it related to decision in Civil Appeal No.79 of 1999, whereas Civil Revision Application No.173 of 2006 is directed against the common judgment and order of the Appellate Bench concerning Civil Appeal No.61 of 2004.

2. Both the HRP Suits and the resultant Appeals were in respect of same premises described in the plaint with its bounds, bearing Census No.789/1/A/4, situated in the Nava Vadaj Ward, Chandlodia, Vadaj, Ahmedabad. It was given on rent to the defendant since last 15 years on a monthly rent of Rs.100/-.

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C/CRA/172/2006 JUDGMENT Civil Revision Application No.172 of 2006

3. In HRP Suit No.686 of 1992, the prayer of the plaintiff-landlord was for permanently injuncting the tenant from putting up permanent construction in the premises and from sub-letting it. It was pleaded that the tenant was illegally constructing in the premises and was also contemplating to sub-let, transfer or assign the premises. It was plaintiff's case in the plaint that the premises which was rented was an open land admeasuring 73.58 Sq. Meters on the monthly rent as above and under the conditions of the tenancy, the tenant was not to transfer or assign or part with the premises permitting use thereof by anybody else, was not to put up any permanent construction. According to the plaintiff it was further stipulated that the tenant would do the business of Charkol and fire woods and no other business. A cause of action was pleaded that the tenant was making construction of permanent nature and was likely to transfer the premises illegally against the provisions of the Rent Act.

3.1 The defendant filed written statement at Exhibit 18 and contested the suit contending inter alia that it was not true that the land was given only for the business of Coal Depot; but it was rented with a permission to put up necessary construction thereon. It was stated that the suit land was given on rent in the year 1974 to Mahalaxmi Coal Depot and at that time the rent charged was Rs.70/- per month. Subsequently it was got increased by the plaintiff to Rs.100/-. It Page 3 of 22 C/CRA/172/2006 JUDGMENT was stated that the Shed Godown for the purpose of storing Charkol and fire woods existed since years and since the time when it was rented to the defendant and there was no question of only open land given on rent. It was contended that there was no condition agreed between the landlord and tenant about using the open land only and the superstructure standing on the open land was also part of the premises. It was the case of the defendant that the Shed Godown was rendered in dilapidated condition, therefore, in order to keep the Charkol and the fire wood safe from the monsoon showers, the same was required to be repaired and renovated as the goods would get damaged if kept in open area and open-to-sky during the monsoon.

3.2 The Trial Court framed issues at Exhibit 40. The issue whether the plaintiff proved that defendant had unlawfully constructed was answered in the negative. So also was the issue answered that the defendant was about to unlawfully transfer or sub-let the premise. The Small Causes Court held that in so far as the injunction against transferring and sub- letting of the premises was concerned, since such act by the tenant was prohibited in the Rent Act, the same deserved to be granted. Accordingly the suit was partly allowed and the defendant was permanently injuncted from sub-letting or assigning the suit premises. Civil Appeal No.79 of 1999 came to be dismissed as the Appellate Bench concurred with the findings and conclusions of the Small Causes Court.

4. Heard learned advocate for Mr. Chirag Patel Page 4 of 22 C/CRA/172/2006 JUDGMENT for the applicant and learned advocate Mr. Vibhuti Nanavati, for respondent.

5. Having gone through the judgments of both the Courts below and having considered submissions made by both the sides, it emerged that the plaintiff had failed to show that there was any agreement or covenant between him and the tenant imposing any restriction on the tenant in respect of constructing in the rented premises. No rent was executed between the landlord and tenant and no conditions were agreed. It was observed by the Small Causes Court that on the contrary, from the oral evidence of the parties and having regard to the attendant aspects of the matter, the theory of construction being done in breach of terms of tenancy put-forth by the plaintiff-landlord was not tenable. It was noted that from the evidence and in particular the documents of Municipal Property Tax Bills (at Exhibit 52 and 53) produced by the defendant it was shown that construction of superstructure of shed existed right from 1977.

5.1 The lower appellate court further considered the said aspect in detail and concluded that the appellant had let-out land admeasuring 73.50 Sq. Meters to the defendant, and there was construction of two premises on the open land prior to 1978. It was further reasoned and observed that since the premises was given to the defendant for the business of firewood and coal and that those goods could not be stored in the open land but required a constructed premises; the shed and godown came to be constructed Page 5 of 22 C/CRA/172/2006 JUDGMENT prior to 1978. It was further highlighted by the lower appellate court that in reply to the notice by the Municipal Corporation, the plaintiff-landlord had categorically stated that the construction was not illegal construction and that the same was in existence since many years. Thus the Court could be said to have appreciated the evidence in proper manner, to conclude that plaintiff never objected upto 1992.

5.3 As regards the allegation that the defendant-tenant was carrying out further construction of permanent nature, the facts were revealed, as noted by the Courts below, from the two reports of the Court Commissioner carried out on 31.03.1992 and 30.03.1993 (Exh.66 and 67 respectively). Exhibit 66 showed that two rooms were in existence with some portion open to sky and in one room, new walls were constructed, there was a gap in the wall and broken piece of wall was found. The goods of the defendant were found lying thereat. The appellate bench noted (on internal page 15 of judgment) in detail the construction disclosed by the court commissioner's report. Comparing the contents of both the reports of the Court Commissioner at Exhibit 66 and 67, the Trial Court as well as the appellate Bench noticed and found that the reports showed that the defendant was doing the business of coal and firewood keeping the said goods in the premises; they further showed that the construction activity was being undertaken by the tenant at his own cost and the same continued even after and during the pendency of the suit. The case of the defendant was Page 6 of 22 C/CRA/172/2006 JUDGMENT that it was a construction in the nature of repair and renovation which was required for the reason that unless the coal and firewood were kept under a roof, they would be exposed to damage by rain during the monsoon.

5.4 Thus in a suit for permanent injunction of the landlord, both the Courts below concurrently held that though there was a construction activity by the tenant, no case was established on evidence by the plaintiff for granting relief in asmuch as it was not shown that there was any prohibition on constructing and looking to the nature of business of firewood and coal for which the premises was let-out, the said goods could not be stored in open and that there were constructed portion in the open land in existence even earlier from the beginning of tenancy. The Court Commissioner's reports revealed further construction activity by the tenant. The said suit for permanent injunction which was not decreed and both the courts below recorded concurrent findings.

6. The findings recorded by both the Courts below about the existence of construction on the let- out plan right from 1977-78 and that there was no covenant shown to be operating between the parties with regard to putting up construction were the findings of fact based on appreciation of evidence. The suit of the plaintiff contained a prayer of permanent injunction only which was dismissed in view of the above findings and conclusion. In reaching those findings, no error of appreciation was noticed.

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        C/CRA/172/2006                                   JUDGMENT



It could not be said, nor was                demonstrated that the

findings were based on misreading of evidence or were in any way perverse. Those findings arrived at upon consideration and appreciation of evidence could have been interfered with by this Court only if the Court were to be unmindful of the scope of jurisdiction under Section 29(2) of the Bombay Rent Act.

6.1 The scope and ambit of revisional powers of the High Court exercised under Section 29(2), was delineated by the Supreme Court in Helper Girdharbhai Vs. Saiyed Mohmad Mirasaheb [(1987) 3 SCC 538] in the following words:

"We must take note of a decision in the case of Kasturbhai Ramchand Panchal & Brothers v. Firm of Mohanlal Nathubhai [AIR 1969 Guj 110] upon which the High Court had placed great reliance in the judgment under appeal. There the learned judge relying on Section 29(2) of the said Act held that the revisional power with which the High Court was vested under Section 29(2) was not merely in the nature of jurisdictional control. It extended to corrections of all errors which would make the decision contrary to law. The legislature, the learned Judge felt, further empowered High Court in its revisional jurisdiction to pass such order with respect thereto as it thought fit. The power according to the learned Judge was of the widest amplitude to pass such orders as the court thought fit in order to do complete justice. He dealt with the human problem under Section 13(2) of Bombay Rent Act considering the relative hardships of the landlord and the tenant and to arrive at a just solution he was of the opinion that the court should have such wide field. The jurisdiction of the High Court is to correct all errors of law going to the root of the Page 8 of 22 C/CRA/172/2006 JUDGMENT decision which would, in such cases, include even perverse findings of facts, perverse in the sense that no reasonable person, acting judicially and properly instructed in the relevant law could arrive at such a finding on the evidence on the record. In this view in our opinion the ambit of the power was expressed in rather wide amplitude. As we read the power, the High Court must ensure that the principles of law have been correctly borne in mind. Secondly, the facts have been properly appreciated and a decision arrived at taking all material and relevant facts in mind. It must (sic not) be such a decision which no reasonable man could have arrived at. Lastly, such a decision does not lead to a miscarriage of justice. We must, however, guard ourselves against permitting in the guise of revision substitution of one view where two views are possible and the Court of Small Causes has taken a particular view. If a possible view has been taken, the High Court would be exceeding its jurisdiction to substitute its own view with that of the courts below because it considers it to be a better view. The fact that the High Court would have taken a different view is wholly irrelevant. Judged by that standard, we are of the opinion that the High Court in this case had exceeded its jurisdiction."

(Para 16) 6.2 In Patel Valmikbhai Himmatlal and others Vs Patel Mohanlal Muljibhai [(1998) 7 SCC 383], observed as under:

"The powers under Section 29(2) of the Bombay Rent Act are revisional powers with which the High Court is clothed. It empowers the High Court to correct errors which may make the decision contrary to law and which errors go to the root of the decision but it does not vest the High Court with the power to rehear the matter and reappreciate the Page 9 of 22 C/CRA/172/2006 JUDGMENT evidence. The mere fact that a different view is possible on reappreciation of the evidence cannot be a ground for exercise of the revisional jurisdiction. The High Court cannot substitute its own findings on a question of fact for the findings recorded by the courts below on reappraisal of evidence."

(Paras 6 and 5) 6.3 In Irene Vs Venkatraman, [(2010) 15 SCC 711] reiterated the principle.

6.4 In view of the above reasons and discussion, no case is made out for interfering in the common judgment and order dated 24.03.2006 of the Appellate Bench of the Small Causes Court in so far as it dismissed Civil Appeal No.79 of 1999.

Civil Revision Application No.173 of 2006

7. As noted above, this Revision Application was against the aforesaid very common judgment and order of the Appellate Bench dismissing the Civil Appeal No.61 of 2004. The said Civil Appeal arose from H.R.P. Suit No.1804 of 1998. The said Suit was instituted by the applicant-landlord for recovery of possession on the ground that the defendant had erected permanent structure and had changed the identity of the suit premises by making unlawful construction. Therefore decree for possession under Section 13(1)(b) of the Bombay Rent Act was prayed for.


7.1           In HRP Suit No.1804 of 1998 which was in
respect       of          the    very         premises             bearing        Census



                                       Page 10 of 22
          C/CRA/172/2006                                            JUDGMENT



No.789/1/A/4              situated     in       the    Nava        Vadaj        Area,
Chandlodia,          Ahmedabad,         it      was    the        case     of    the

plaintiff that when the premises was rented to the defendant, it was agreed that the same would not be sub-let or assigned to anybody and that the defendant would not put up any kind of construction thereon. It was stated that tenant was not acting in accordance with the conditions agreed and without permission of the plaintiff-landlord, he started construction of permanent nature on the open land. It was stated that by putting up the construction, the identity of the property was changed. The plaintiff further pleaded that during the said time period when the defendant started construction, plaintiff had instituted HRP Suit No.686 of 1992 to prevent the tenant from carrying out illegal construction. It was further contended that defendant continued the construction activity despite there was injunction. A notice dated 28th September, 1998 came to be issued by the plaintiff before instituting the Suit No.1804 of 1998. In that notice also, it was inter alia mentioned that as the defendant had commenced illegal construction, suit No.686 of 1992 was required to be instituted. The notice stated that since tenant had started construction and had committed breach of tenancy, his tenancy was being terminated. Thereafter the suit was instituted seeking decree of eviction. Thus, on the ground of carrying out permanent construction in the rented premises, the plaintiff prayed for decree of eviction before the Small Causes Court.


7.2           The defendant-tenant resisted the said suit


                                     Page 11 of 22
       C/CRA/172/2006                                        JUDGMENT

by filing written statement at Exhibit 11. It was contended by the defendant that suit was barred by delay, latches and acquiescence. It was contended that no terms and conditions was agreed upon between the parties and the construction already existed and that it was to be repaired as they were required to store the firewood and charkol. It was contended that the same was within the knowledge of the landlord.

7.3 The Trial Court framed issues at Exhibit 22 and ultimately dismissed the suit holding against the plaintiff in respect of each of the issues framed. Amongst the issues framed, issue No.3A was whether the suit was legally maintainable in the context of bar under Order II Rule 2 of the CPC. As it was contended that the bar under the said provision would attract in view of filing of previous HRP Suit No.686 of 1992, Small Causes Court as well as the Appellate Bench of the Small Causes Court, concluded that Order II Rule 2 would apply and in view of the bar arising therefrom, subsequent suit being HRP Suit No.1804 of 1998 was not maintainable. Regular Civil Appeal No.61 of 2004 accordingly came to be dismissed as per the aforesaid common judgment and order dated 24th March, 2006 of the Appellate Bench of the Small Causes Court.

8. Learned advocate for the applicant-landlord submitted that the act on the part of the defendant- tenant in putting up construction was not in dispute. He submitted that the construction was of permanent nature was proved, therefore, according to him, Courts below ought to have passed the decree for eviction on Page 12 of 22 C/CRA/172/2006 JUDGMENT the said ground. Learned advocate further submitted that the two reports of the Court Commissioners at Exhibit 66 and 67 on record in the proceedings of previous Civil Suit No.686 of 1992 between the parties amply demonstrated that the construction was in the nature of permanent alteration which was impermissible in law. On the aspect of bar under Order II Rule 2, CPC, he submitted that bar would not apply in the facts of the case. In support of his contentions, learned advocate for the applicant relied on decisions in (i) Ismailbhai Haji Ibrahimbhai Males Vs Gordhanbhai Hathibhai Patel [2002 (2) GCD 918]; (ii) Mukhi Tapoobhai Keshavji, a Firm, Gondal Vs Gondal Municipality [AIR 1983 Gujarat 47] and (iii) H.K. Dhruva Vs Union of India [(2001) 3 G.L.H. 242].

8.1 On the other hand, learned advocate Mr.Vibhuti Nanavati for the respondent-tenant took the Court through the pleadings in both HRP Suits instituted by the landlord. He submitted that both the suits were based on same bundle of facts as far as the case of the plaintiff regarding permanent construction was concerned. He, therefore, submitted that the relief in the second suit was barred and the suit itself was not competent having regard to the provisions of Order II Rule 2, CPC. He supported the findings recorded by both the Courts below on the said aspect.

9. Having considered the controversy and the contentions of the parties, it is relevant to note that the first HRP Suit No.686 of 1992 which was for Page 13 of 22 C/CRA/172/2006 JUDGMENT permanent injunction came to be instituted on 31st March, 1992. Therein the plaintiff-landlord sought to restrain the tenant from putting up construction in the rented premises alleging that it was being illegally put up and it was of permanent nature. The said suit came to be decided on 12th March, 1999. Subsequent HRP Suit No.1804 of 1998 was instituted on 14th December, 1998. It was thus instituted when the previous HRP Suit aforementioned was pending. Subsequent suit so instituted was for decree of eviction against the tenant on the ground of erection of permanent structure/construction in the suit premises. The said subsequent suit came to be decided on 22nd March, 2004 and was dismissed.

9.1 Now, proceeding to consider whether bar under Order II Rule 2, CPC applies in the facts of the present case, the said provision may be looked into. Order II Rule 2, CPC reads as under:

Order II Rule 2 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.

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C/CRA/172/2006 JUDGMENT (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."

9.2 The above provision has an object of preventing two consecutive suits based on same cause of action. The subsequent suit based on the cause of action constituting the very bundle of facts on which the previous suit was instituted would be barred in law. This object was summarized in a Privy Counsel decision in Mohd. Khalil Vs Mahbub Ali [AIR 1949 PC 78] by summarizing the following principles:

(1) The correct test in cases falling under Order 2, Rule 2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit".

(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.

(3) If the evidence to support the two claims is different, then the causes of action are also different.

(4) The cause of action in the two suits may be considered to be the same if in substance they are identical.

(5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff."

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        C/CRA/172/2006                                    JUDGMENT



9.3         In     Gurubax   Singh       Vs     Bhuralal   [AIR     1964

Supreme Court 1810], the Supreme Court stated, "In order that a plea of a bar under Order 2 Rule 2(3) of the 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."

(para 6) 9.4 In Alka Gupta Vs Narender Kumar Gupta [(2010) 10 SCC 141] explaining the object of Order II Rule 2, the Supreme Court stated it is two folds, firstly to ensure that no dependent is sued and vexed twice with regard to the same cause of action. The second part of the object is to prevent the plaintiff from splitting up cause of action. If the plaintiff could have claimed certain reliefs on the basis of the cause of action which was available to him at the time when the first suit was filed but where he omitted seeking those reliefs, he is debarred from claiming the reliefs on the very cause of action by instituting second subsequent suit.

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         C/CRA/172/2006                                             JUDGMENT




10.          The     cause       of     action         pleaded     in    both     the

suits may now be adverted to. This Court carefully went through the averments and pleadings in the plaints of HRP Suit No.686 of 1992 and the subsequent Suit No.1804 of 1998 as well as cause of action pleaded in the both. Describing the cause of action, paragraph 9 of the first instituted suit stated that in the premises owned by the plaintiff, defendant- tenant had put up permanent construction and they were still carrying on permanent construction or alteration in the suit premises. In the body of the plaint, it was pleaded that when the plaintiff requested them on or about 22nd March, 1992 not to put up such illegal construction, defendant got angry and had been continuing with the construction. As far as subsequent HRP Suit No.1804 of 1998 was concerned, in paragraph 6 of the plaint thereof, it was pleaded that cause of action had arisen ever since the defendant-tenant had put up construction of permanent nature in the premises in breach of the tenancy and it was further mentioned that cause of action arose every since the plaintiff gave notice, the tenant continued with the construction.

10.1 Not only that, paragraph 9 and 6 of the two suits contained same cause of action, namely, putting up of permanent construction. The construction mentioned was referable to the same bundle of facts which existed at the time of institution of first HRP Suit No.686 of 1992. In the subsequent suit, the plaintiff pleaded to mention that he was required to Page 17 of 22 C/CRA/172/2006 JUDGMENT institute HRP Suit No.686 of 1992 for stopping the tenant from carrying out the permanent construction. It is pertinent to note that in the subsequent suit, the Court Commissioner's Report produced in the previous suit (Exh.66) was relied on and certified copy thereof together with map was produced. In the subsequent suit, the said report (Exh.66 in the previous suit) was produced at Exhibit 32. Second report of the Commissioner (Exh.67) in the previous suit was also relied on. The Appellate Bench recorded in its order that construction of two rooms was fresh and the roof of the rooms were of galvanized old and new sheets. In report at Exhibit 66, it was stated that Western wall of both the rooms were old, however there was new construction of wall of 4 ft. below the roof by using bricks and cement. The said wall was constructed upto ceiling. It was further mentioned that Northern wall of the suit premises was 10 ft. high from the ground floor and on the said wall, new wall of 4 ft. was constructed by bricks and cement, but the plaster was not done. On the Southern side also, recorded the Appellate Bench on the basis of Commissioner's report, that the defendant had constructed new wall.

10.2 The above details are highlighted herein for the reason that they indisputably show that these facts and factum of construction alleged were in existence at the time when first HRP Suit No.686 of 1992 was instituted. The averments and allegations by the plaintiff in the said first suit that the construction was of permanent nature constituted the Page 18 of 22 C/CRA/172/2006 JUDGMENT cause of action in the first suit as well as the subsequent suit. The prayer for eviction on the said ground could have been made in the first suit itself, but were not made. As noted above, subsequent HRP Suit No.1804 of 1998 was instituted with same cause of action.

10.3 All the above facts invariably suggested that the subsequent suit was based on identical cause of action. The prayer for eviction from the suit premises made in subsequent suit was available to the plaintiff-landlord to be made in the previous suit. However, he omitted to make said prayer at the time of institution of the first suit eventhough the cause of action for the said prayer existed at that time. It was only in the subsequently instituted suit, decree of eviction came to be prayed. In the first suit what was prayed was only permanent injunction seeking to restrain tenant from putting up construction. Since the plaintiff could have prayed for decree of eviction at the time of first suit itself, but he omitted to seek those reliefs and on the same cause of action, instituted HRP Suit No.1804 of 1998, the said subsequent suit was evidently barred by the provisions of Order II Rule 2 of the CPC.

11. In Sandip Polymers Private Limited Vs Bajaj Auto Limited [(2007) 7 SCC 148], the Supreme Court held as under:

"22. Under Order 2 Rule 1 of the Code which contains provisions of mandatory nature, the requirement is that the plaintiffs are duty- bound to claim the entire relief. The suit Page 19 of 22 C/CRA/172/2006 JUDGMENT has to be so framed as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them. Rule 2 further enjoins on 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 his claim, it is not permissible for him to sue in respect of the portion so omitted or relinquished afterwards." (Para 13) 11.1 In a recent decision in S.B.I. Vs Gracure Pharmaceutical Limited [(2014) 3 SCC 595], the Apex Court reiterated the principles with respect to bar of subsequent Suit arising under Order II Rule

2. The Supreme Court held, "....the facts on the basis of which the subsequent suit was filed, existed on the date on which the earlier suit was filed. The earlier suit filed on 15.03.2003 and subsequent suit was filed on 21.05.2003. No fresh cause of action arose in between the first suit and the second suit. The closure of account, as already indicated, was intimated on 20.03.2002 due to the alleged fault of the respondent in not regularizing their accounts i.e. after non-receipt of the payment of the LC, the account became irregular. When the first suit for recovery of dues was filed i.e. on 15.03.2001 for alleged relief, damages sought for in the subsequent suit could have also been sought for. Order 2 Rule 2 provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action. The respondent is not entitled to split the cause of action into parts by filing separate suits. We find, as such, that the respondent had omitted certain reliefs which were available to it at the time of filing of the first Page 20 of 22 C/CRA/172/2006 JUDGMENT suit and after having relinquished the same, it cannot file a separate suit in view of the provisions of sub-rule 2 of Order 2 Rule 2 CPC. The object of Order 2 Rule 2 is to avoid multiplicity of proceedings and not to vex the parties over and again in a litigative process. The object enunciated in Order 2 Rule 2 CPC is laudable and it has a larger public purpose to achieve by not burdening the court with repeated suits."

(Para 17) 11.1.1 The Court reiterated the principles, "The above-mentioned decisions categorically lay down the law that if a plaintiff is entitled to seek reliefs against the defendant in respect of the same cause of action, the plaintiff cannot split up the claim so as to omit one part to the claim and sue for the other. If the cause of action is same, the plaintiff has to place all his claims before the court in one suit, as Order 2 Rule 2 CPC is based on the cardinal principle that the defendant should not be vexed twice for the same cause."

(Para 11) "Order 2 Rule 2 CPC, therefore, requires the unity of all claims based on the same cause of action in one suit, it does not contemplate unity of distinct and separate causes of action. On the abovementioned legal principle, let us examine whether the High Court has correctly applied the legal principle in the instant case." (Para 12)

12. In view of foregoing reasons and discussion and the position of law obtaining informed by the facts of the case, the finding of the Small Causes Court as well as of the Appellate Bench of the Small Causes Court that the subsequent suit was barred by virtue of Order II Rule 2, CPC was eminently legal and proper.

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C/CRA/172/2006 JUDGMENT

13. Accordingly the common impugned judgment and order of the Appellate Bench of the Small Causes Court in so far as it relate to Regular Civil Appeal No.61 of 2004 warrants no interference.

14. Accordingly both the Civil Revision Application Nos.172 of 2006 and 173 of 2006 are hereby dismissed. Rule is discharged.

Record and proceedings shall be sent back.

(N.V.ANJARIA, J.) Anup Page 22 of 22

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