Jammu & Kashmir High Court
Ramesh Chander vs Rakesh Kumar And Anr. on 16 October, 2007
Equivalent citations: AIR2008J&K37, AIR 2008 JAMMU AND KASHMIR 37, 2008 AIHC (NOC) 622 (J. & K.) = AIR 2008 JAMMU & KASHMIR 37
JUDGMENT Y.P. Nargotra, J.
1. The substantial question of law involved in these civil second appeals is whether in terms of Order 2 Rule 2 CPC, subsequent suits would be barred despite the averments made by the plaintiffs in their previous suits to the effect that "the plaintiff however reserves his right to file a suit for permanent prohibitory injunction/possession or specific performance as the case may be for the possession of the shop in reference simultaneously or even subsequently."
2. Order 2 Rule 2 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 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 year 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.
3. From the bare reading of the above rule, it is manifest that where a person is entitled to more than one relief in respect of the same cause of action, as a general rule he has to sue for all reliefs available, and if he omits to sue for any of such relief he cannot be permitted to sue afterwards for such omitted reliefs. This general rule is, however, subject to the exception that he may sue for the omitted reliefs afterwards, if he has been granted leave by the Court therefor.
4. The facts which are not in dispute are that the appellant was the landlord and the respondents in the two appeals are tenants in respect of the shops constructed in the land situated on the western side of the road adjacent to the bridge Ban Ganga crossing on way down from Mata Vaishno Devi Shrine. In the year 1992, Shrine Board decided to widen the road passing along with the side to which the shops in issue stood located. In the widening process the shops of the respondents-tenants were needed to be demolished. The respondent-tenants filed a writ petition in this Court for seeking a direction against the Shrine Board for not demolishing the shops. The writ petition was disposed of by order dated 30th July 1992, by virtue of which it was directed that the Shrine Board shall not demolish the shops of the respondents without adopting the due course of law. Thereafter, negotiation in regard to the demolition of the shops came to be held between the appellant-landlord, respondents tenants and Mata Vaishno Devi Shrine Board. An agreement was executed between them to the effect that the Shrine Board shall provide a Pacca Platform on the opposite side of Ban Ganga and appellant landlord will construct shops thereon, the cost of which shall be borne equally by the appellant and the respondents tenants and, thereafter, the same shall be leased out to the respondents-tenants by the appellant-landlord at a yearly rent of Rs. 10,000/-.
5. It is the case of the appellant landlord that as per the agreement the Shrine Board did not provided a pacca platform for construction of the shops after demolishing the shops under the tenancy of the respondents tenants. However, the appellant landlord constructed other shops on his adjoining land, which were let out to some other tenants, but not to the respondents tenants. On the basis of the above said agreement dated 8th August 1992, the respondent tenants filed the suits for permanent prohibitory injunction against the appellant landlord for claiming their right to possess the shops and sought decree for restraining the appellant from letting out the shops, out of the shops constructed by him, to third persons. In the suits filed, the learned trial Court granted an interim injunction restraining the appellant-landlord from letting out the shops or putting the same to any use. In the plaint the respondents-plaintiffs fully well knowing that they were entitled to claim the relief of specific performance of the agreement omitted the said relief, however, incorporated the following averments in their plaints.
The plaintiff however reserve his right to file a suit for permanent prohibitory injunction/possession or specific performance as the case may be for the possession of the shop in reference simultaneously or even subsequently.
6. The learned Sub-Judge Reasi by his judgment and decree dated 29-5-1995 dismissed the suits of the plaintiffs respondents on the ground that they ought to have filed the suits for specific performance of the contract and not for permanent prohibitory injunction.
For questioning the legality of the judgments and decrees of the learned trial Court, the respondents-tenants filed appeals before the Court of Additional District Judge Reasi. Learned Addl. District Judge Reasi vide his order dated 18-3-1996 allowed the appeals and remanded the cases back to the trial Court for trial.
7. The appellant landlord being aggrieved of the said order of learned Additional District Judge, Reasi, filed civil second appeals No. 32 of 1996 and 33 of 1996. In the said appeals the question arising for determination was that; as to whether the suits for I permanent prohibitory injunction were maintainable when the agreement on which the cause of action was founded, was subsisting. After noticing the averments in the plaints that "the plaintiff however reserve his right to file a "suit for permanent prohibitory injunction/possession or specific performance as the case may be for the pos^ sessions of the shop in reference simultaneously or even subsequently", this Court observed:
However, second suit may not be permissible under Order 2 Rule 2 CPC. Since the cause of action is founded on the agreement dated 8-8-1992 executed between the parties, plaintiffs right to possession of shop flows from the agreement. Any transfer or alienation of the shop will be in breach of the agreement. Such an approach can be prevented only if a suit for specific performance is filed which is the main relief. The plaintiff however, did not seek specific performance of the contract in the absence of which an injunction could not be granted.
8. On the aforesaid reasoning, by order Slated 30th June 1999, the appeals were allowed and orders of Addl. District Judge were set aside and order of the trial Court dismissing the suits was upheld.
9. After the judgment of this Court dated 30-6-1999, the respondents-tenants filed the fresh suits for seeking specific performance of the agreement. The appellant landlord resisted the suits before the trial Court inter alia on the ground that the suits were not maintainable in view of the bar contained under Order 2 Rule 2 CPC. The learned trial Court framed the preliminary issue regarding the maintainability of the suits. Learned Munsiff, Katra after hearing learned Counsel for the parties on the said preliminary issue dismissed the suits of the plaintiffs tenants being of the view that the suits were barred in terms of Order 2 Rule 2 CPC. Against the judgment and decree of the learned trial Court dated 31st May 2004, the respondents tenants filed appeals before the Addl. District Judge, Reasi. Learned Addl. District Judge Reasi by his judgment dated 28th February 2006 allowed the appeals and set aside the judgment and decree of the learned trial Court, being of the view that the bar of Order 2 Rule 2 CPC was not attracted as the previous suits had not been decided on merits but on a technical ground.
10. Thus, in the present appeals the appellant landlord has questioned the orders of Learned Addl. District Judge, Reasi.
I have heard learned Counsel for the parties and perused the record.
Learned Counsel for the parties have also filed their written arguments.
11. The contention of learned Counsel for the appellant landlord is that in view of the bar contained under Order 2, Rule 2 CPC, fresh suits for specific performance could not be legally maintained by the respondents tenants for the reason that while filing the suits for permanent prohibitory injunction they had omitted to seek the relief of specific performance on the available cause of action and had not obtained leave from the Court for filing the suits subsequently.
12. The contention of learned Counsel for respondents tenants is that the provisions under Order 2, Rule 2 CPC would not be attracted, because the previous suits filed by the respondents tenants were not maintainable in view of the bar contained under Section 56(1) of Specific Relief Act, and therefore, the same were non est in the eyes of law. It has also been contended that the question whether the provisions of Order 2, Rule 2 CPC were attracted or not, in the circumstances of the case was a mixed question of law and facts, therefore, the same could not be decided preliminarily. It is also contended by the learned Counsel that as the respondents in their previous suits had averred for seeking leave of the Court for filing the subsequent suit for specific performance, therefore, in the absence of the order declining the said relief, it is to be presumed that by implication the Court had granted the leave. In support of his contention, he relies upon the cases reported as Mohammad Khalil Khan v. Mahbub Ali Mian , Jai Narain v. Syed Ali Murtaza AIR 1951 Patna 190, Krishnaji Ramchandra v. Raghunath Shankar .
13. In Mohammad Khalil Khan v. Mahbub All Mian and Ors. AIR (36) 1949 Privy Council 7 it was held:
Shortly stated Order 2, Rule 2, Civil P.C. enacts that if a plaintiff fails to sue for the whole of the claim which he is entitled to make in respect of a cause of action in the first suit, then he is precluded from suing in a second suit in respect of the portion so omitted, To apply the rule to the facts of the case their Lordships will have to consider what was the cause of action in suit No. 8, on which the plaintiffs founded their claim, and whether they included all the claims which they were entitled to make in respect of that cause of action in that suit. For, if they failed to include all the claims, then by force of Order 2, Rule 2, they are precluded from including the claim omitted in the present suit No. 2. As pointed out in Moonshee Buzloor Ruheem v. Shumsunnissa Begum (1987) 11 M.A.A. 551 : 2 Sar. 259 P. at P. 605:
The correct test in all cases of this kind is, whether the claim in the new suit is, in fact, founded on a cause of action distinct from that which was the foundation of the former suit....
The object of the rule is clearly to avoid splitting up of claims and to prevent multiplicity of suits.
14. In Jai Narain v. Syed Ali Murtaza AIR 1951 Patna 190, it was observed:
In so far as the first ground is concerned, both the Courts below have come to the conclusion that the relief as to forfeiture claimed in the present suit should have been included in the plaint of the previous suit, and this not having been done, the relief as to forfeiture is barred under Order 2, Rule 2, Civil P.C. The lower appellate Court in dealing with the point (though I must say that he has mixed up the consideration of the two aspects of forfeiture) says thus:
Plaintiffs suit for rent for the period following the first disclaimer in April 1946 amounted to waiver of forfeiture. Plaintiff had a cause of action for ejectment or injunction on the date the S.C.C. suit was filed. He chose not to include a relief by way of ejectment of injunction in that suit. His relief as regards the arrears due and the relief by way of ejectment or injunction arose out of defendant's refusal to pay the premium on the ground of plaintiffs want of title. In other words he was entitled to two reliefs out of on and the same cause of action, Having relinquished one of the two reliefs it was not open to the plaintiff to ask for that relief In another suit. If the present suit were based on the cause of action, plaintiffs claim would manifestly have been barred under Order 2, Rule. 2 of the Civil Procedure Code and to that extent I entirely agree with the contention put forward on behalf of the respondent.
The decision of the two Courts below on the point appears to me to be correct. The cause of action consists of the whole bundle of facts which entitles the plaintiff to certain reliefs. It may be that a particular set of facts may be co-related to a certain kind of relief but that will not mean that those sets of facts constitute different cause of action. They all form the occasion or foundation of a suit, and with a view to avoid multiplicity of litigations the Code provides under Order 2, Rule 2 that:
a person entitled to more than one relief in respect of the same cause of action may sue for all or any 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.
It is not, therefore, open to the plaintiff to call out the different sets of facts all relating to the same cause of action but connected with a particular kind of relief in order to make the different sets the foundation for different suits. He must sue for all these reliefs together and his omission to do so disentitles him to seek the relief in a subsequent suit. The plaintiff in this case, as observed above, was entitled to sue for ejectment of the defendant on the ground of forfeiture by the time he instituted the Small Cause Court suit. He did not, however, choose to do so. Therefore his claim now on this ground evidently comes under Order 2, Rule 2(3), Civil P.C. It was held in Sagir Hassan v. Tayab Hassan that if a person is wrongfully kept out of possession of immoveable property he is entitle to sue for possession and for mesne profits and under the provisions of Order 2, Rule 2(3) he is bound to include both claims in one suit. If he sues only for mesne profits he cannot in a subsequent suit sue separately for possession. In the present case, the plaintiff sued only for the premium due when he instituted the Small Cause Court suit but not for possession. Therefore, he cannot now on that account claim recovery of possession.
15. In Krishnaji Ramchandra v. Raghunath Shankar and Anr. , it was observed:
...If that is so, then it is clear that when the plaintiff file suit No. 633 of 1942, he did not include in that suit the whole of his claim in respect of the cause of action and, therefore, the plaintiff must be taken to have invited the operation of Order 2, Rule 2(2), because the plaintiff must be taken to have either omitted to sue or intentionally relinquished portion of his claim. Whether it is the result of an omission or the result of relinquishment, it makes no difference--not any difference even when the plaintiff subsequently files a suit and that is the bar imposed by Order 2, Rule 2(2).
16. None of the above authorities can support the contention of learned Counsel for respondents-tenants. The provisions contained in Order 2, Rule 2, apply to subsequent suits filed without obtaining the leave, for claiming a relief which was though available on the same cause of action, yet was not claimed in the previous suit. Whether the previous suit was maintainable or was not maintainable in the absence of the omitted relief is not relevant for the applicability of the bar envisaged by Order 2, Rule 2, C.P.C. In terms of the provision made in Order 2, Rule 2, it is necessary for the person filing a suit to claim all the available reliefs on the accrued cause of action and if he omits to sue for any available relief, he is debarred from suing for the same subsequently, unless he has obtained the leave of the Court in his previous suit.
In the instant case, the respondents tenants have not obtained the leave of the Court in their previous suits for bare injunction for bringing subsequent suits for specific performance against the appellant landlord despite the fact that they had made already quoted averments in their plaints for reserving their right to file the subsequent suits. However, it is a fact that the trial Court while dismissing the previous suits of the plaintiffs tenants for bare injunction as not maintainable in absence of relief of specific performance of contract did not grant or decline the leave. Can in the said situation leave for filing the subsequent suit shall not be deemed to have been granted. The contention of Mr. Choudhary, learned Counsel for respondent tenants is that in view of the fact that the respondents in the suits had claimed leave for filing the subsequent suits, therefore, in the absence of a specific order declining the prayer, it should be deemed that the Court has granted the same, especially for the reason that the previous suits have not been dismissed on merit, but dismissed as not maintainable, because the relief of injunction could not be granted in the absence of the relief for specific performance of the contract.
In support he relies upon the case reported as Narashalli Kempanna and Ors. v. Narasappa and Ors. AIR 1989 Karnataka 50, in which it was held:
It was thereafter the present suit for partition was filed. From the finding recorded in R.A. No. 269/1956 and the cause of action disclosed in the plaint file in Order Section No. 299/55, it is clear that the present suit is not barred by reason of the bar contained under Order II, Rule 2, C.P.C. It is very pertinent to notice that in R.A. No. 269/56, it was held that the plaintiff was to seek possession of the suit properties in an appropriate suit for partition. On that ground, the suit for possession was dismissed. The lower appellate Court has held in para 30 of its judgment that this cannot be construed as giving rise to a separate and fresh cause of action. It is not right in holding so. It has also to be remembered that the plea of bar of suit based on Order II, Rule 2 is a highly technical plea. It tends to defeat justice and deprive the party of his or her legitimate right. Therefore, care must be taken to see that complete identity of cause of action is established. If in a case where the previous suit is dismissed on the ground that the proper remedy is to file a suit for partition and separate possession, the relief as to partition and possession of the suit properties must be held to have been kept open and leave of the Court for such relief must be held to have been granted as otherwise in such a case in the very suit itself a decree for partition and separate possession could be passed. Instead of that, if the Court dismisses the suit stating that the relief has to be sought in a suit for partition, such a decree amounts to permitting the plaintiff to file separate suit for partition and possession. In such a situation the bar contained in Order II, Rule 2 C.P.C. is not attracted because the dismissal of the suit on the ground not only gives rise to a fresh cause of action but also, as already pointed out, amounts to granting leave for filing another suit for such relief. That being so, the cause of action for both the suits cannot be held to be identical.
The above authority can have no application in the instant case, because the previous suits have not been dismissed on the ground that the relief of injunction claimed in the suits was not the proper remedy. The previous suits were dismissed because in addition to the relief of injunction, the respondents tenants had not claimed the relief of specific performance of the agreement, a relief which undisputedly was available to them at the time they filed the previous suits. It is only where the remedy sought in the previous suit is found to be not the proper remedy the bar of Order 2, Rule 2 would not apply to the subsequent suit filed for obtaining the proper remedy, as remedy which is not proper cannot be termed as available relief. But when the relief sought in a previous suit is one of the reliefs available on the same cause of action, the subsequent suit for the reliefs though available but not claimed would be hit by the bar of Order 2 Rule 2 CPC.
Learned Counsel for respondents tenants has also relied upon the cases reported as Gajanan R. Salvl v. Satish Shankar Gupta , Kamal Kishore Saboo v. Nawabzada Humayun Karmal Hassan Khan , Ashok Aggarwal v. Bhagwan Dass Arora . These authorities too do not advance the case of the respondents tenants.
The relief claimed in the suits In issue being one of the reliefs available to the respondents tenants at the time of filing of their previous suits, which they omitted to claim, makes their suits barred in terms of Order 2, Rule 2 C.P.C. Therefore, the orders of learned Addl. District Judge, Reasi, Impugned in the appeal, cannot sustain.
17. Therefore, these Civil 2nd appeals are allowed and the orders dated 28-2-2006 of the learned Addl. District Judge, Reasi are set aside and the orders of learned trial Court dismissing the suits are upheld.