Krishna Ceramics And Refractories vs Dr. V.S. Krishna Ceramics And Potteries on 3 August, 2000

[Cites 38, Cited by 2]

Andhra HC (Pre-Telangana)

Krishna Ceramics And Refractories vs Dr. V.S. Krishna Ceramics And Potteries on 3 August, 2000

Equivalent citations: 2000(5)ALD1, 2000(4)ALT631

1. The defendants are the appellants in this Letters Patent Appeal filed under Clause (15) of Letters Patent. The appeal is directed against the judgment and decree dated 26-4-2000 passed in ASNo.167 of 1998 by a learned single Judge of this Court affirming the judgment and decree dated 30-12-1997 passed in OS No.123 of 1988 on the file of the Court of the Principal Subordinate Judge, Rajahmundry.

2. The sole respondent herein is the plaintiff. The plaintiff filed the suit for possession of plaint schedule property after ejecting the defendants therefrom and for recovery of Rs.4,37,500/- towards damages for use and occupation from 15-7-1985 to 15-6-1988 and also for recovery of damages of Rs.26,000/- for use and occupation from 16-6-1988 to 11-7-1988 and for future damages from the date of suit till recovery of possession at the rate of Rs. 1,000/- per day.

3. The case of the plaintiff insofar as it is relevant in this appeal and in brief is that he is the sole proprietor of the suit property consisting of a ceramic factory existing on a total extent of Ac. 11.23 cents alongwith several structures like buildings, chimneys etc., and it was let out to the defendants under an agreement of lease marked as Ex.A1 dated 31-05-1978 and the lease, for a period of five years, commenced on 16-6-1978 ending with 15-6-1983. However, as the defendants did not execute the lease deed the plaintiff filed the suit OS No.146 of 1980 seeking specific performance for execution of the deed which was decreed on 7-3-1983 and later on confirmed by this Court in AS No.639 of 1983 on 8-12-1986. There have been several suits filed inter se the parties after the lease period expired. The plaintiff issued notices to the defendants on 1-6-1988, 10-6-1988, 15-6-1998 and 17-6-1988 for vacating the premises and the same were received by the defendants and they gave a reply on 30-6-1988 with false allegations. Therefore, the suit for possession and also for damages. The suit was instituted on 11-7-1988.

4, The defendants contested the suit inter alia on various grounds stating that the suit is not maintainable. The lease as contemplated under the agreement dated 31-5-1978 did not come to an end on 15-6-1983 but is still subsisting and they did not commit any breach of the conditions. As regards the other suits, the plaintiff is to be blamed and responsible. Further, it was contended that the lease deed was executed on 28-1-1989 in pursuance of the decree in OS No.146 of 1980 whereas the present suit which was filed on 11-7-1988, on which day there being no such lease deed, the suit is premature. And the plaintiff having filed certain suits earlier on a certain cause of action and the relief in this suit was available on the same cause of action but not availed of, and therefore, the present suit is barred under the provisions of Order II, Rule 2 of the Code of Civil Procedure. It was claimed that the defendants had exercised their right for seeking renewal of the lease, which is subsisting. Even otherwise, it was stated that admittedly the defendants are using a major portion of the land for agricultural purpose and thus the tenancy being that of agriculture, the Civil Court has no jurisdiction to entertain the suit in view of the provisions of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956.

5. The institution of the present suit, OS No.123 of 1988 was preceded by certain events and certain suits between the parties. The events leading to the disputes between the parties may briefly be noted. Subsequent to the execution of the lease agreement on 31-5-1978 and the commencement of the lease with effect from 16-6-1978, it appears, the relations between the parties became strained. The lessor on 11-1-1980 issued legal notice to the lessee calling upon the lessee to execute and register the lease deed. Another notice was issued to the lessee on 24-1-1980 regarding the claim for certain articles alleged to have been misappropriated by the lessee. The lessor had filed OS No.8 of 1980 on 22-1-1980 for recovery of rents pertaining to the months of November and December, 1979 and other sum pertaining to credit invoice amount. This was followed by other suits by the lessor in OS No.65 of 1980 filed on 16-4-1980 for recovery of rent for the month of March, 1980; OS No.78 of 1980 Filed on 3-6-1980 for recovery of the rent for the months April and May, 1980; OS No.112 of 1980 filed on 10-7-1980 for recovery of rent for the month of June, 1980; OS No.138 of 1980 filed on 11-7-1980 for recovery of certain articles on the ground of misappropriation; OS No.148 of 1980 filed on 8-8-1980 for recovery of rent for the months of July and August, 1980. Then the lessor filed OS No.146 of 1980 on 23-8-1980 for specific performance of the agreement of lease dated 31-5-1978 and that suit was decreed on 7-3-1983 and subsequently the said decree was confirmed by this Court in AS No.639 of 1983 on 8-12-1986. In the meanwhile, EP No.21 of 1983 was filed by the lessor to execute the decree passed in OS No.146 of 1980 ultimately culminating in the execution and registration of the document Ex.B1 by both the parties through the process of the Court on 28-1-1989. Another suit in OS No.132 of 1980 was filed on 8-3-1983 by the lessor for recovery of the amounts paid by him towards royalty. It is at this juncture, the lessee gave a letter Ex.A4 dated 6-5-1983 exercising his option of renewal of lease for a further period of five years to which the lessor replied in Ex.A5 dated 18-5-1983 declining such an offer. In the same year, the lessee filed appeal AS No.639 of 1983 in this Court against the decree for specific performance passed in OS No.146 of 1980. When the matter stood thus, the five years period contemplated under the original lease agreement stood expired on 15-6-1983. This was again followed by certain other suits, viz., OS No.131 of 1983 by the lessor for dismantling certain pipes etc.; OS No.194 of 1983 by the lessor for raising Virginia tobacco; OS No.5 of 1986 by the lessor filed on 20-1-1986 for damages to the kilns and chimneys; OS No.8 of 1986 by the lessor filed on 20-1-1986 for recovery of certain entrusted articles; OS No.46 of 1986 by the lessor filed on 1-7-1986 for recovery of royalty for subsequent period. The lessee also filed OS No.49 of 1986 for the damages to the kilns and chimneys and OS No.93 of 1988 for pre-emption claim which was dismissed for default on 31-08-1988.

6. On the above noted and other pleas as set out in the pleadings of the parties; the learned trial Judge framed and settled the following issues for trial:

(1) Whether D2 and D3 are not necessary parties, as alleged by the defendants, vide para of the written statement?

(2) Whether this Court does not have inherent jurisdiction to try this suit in view of A.P. (A.A) Tenancy Act, as alleged by the defendants, vide Para 28 of the written statement ?

(3) Whether this suit is not maintainable for want of quit notice, as alleged by the defendants, vide para 36 of the written statement?

(4) Whether the defendants committed breaches of contract as alleged in Paras 5 to 6 of the plaint ?

(5) Whether the defendants lease stood determined with effect from 16-6-1983 and whether Dl and D2 are only tenants-at-difference, as alleged by the plaintiff?

(6) Whether me plaintiff is entitled to the eviction of defendants and for possession, as prayed for?

(7) Whether the plaintiff is entitled to damages for user and occupation for the three periods, as claimed by the plaintiff? And (8) To what relief?

7. During the trial, the plaintiff examined himself as PW1 and marked ExsA1 to A38 and on behalf of defendants, the 2nd defendant, viz., Barlapudi Ravindra Kumar himself examined as DW1 and marked Exs.B1 to B33. On consideration of the evidence on record, oral and documentary, the trial Court decreed the suit for eviction, possession and for damages.

8. The defendants, being aggrieved by the judgment and decree passed by the learned trial Judge on 30-12-1997, preferred AS No.167 of 1998 to this Court. In the AS, the appellants defendants urged three principal grounds while attacking the judgment and decree of the trial Court. They are: (1) that the present suit having been filed on 11-7-1988 is totally premature as there existed no lease deed on which the plaintiff could rely on, as the lease deed was executed on 20-1-1989 in pursuance of the decree for specific performance passed in OS No.146 of 1980; (2) that the plaintiff having himself filed three other suits in OS No.8 of 1986, OS No.5 of 1986 and OS No.131 of 1983 on the same cause of action and the relief sought in the present suit could have been sought in the earliest suit itself and having omitted to seek such relief, the present suit is barred under Order II, Rule 2, CPC; and (3) that admittedly a major portion of the lease hold being under agricultural operations, the provisions of Andhra Pradesh (Andhra Area) Tenancy Act, 1956, apply and therefore the civil Court's jurisdiction to entertain the suit is ousted.

9. On the other hand, on behalf of the plaintiff, it was contended that the present suit is perfectly valid and maintainable as the deed executed on 28-1-1989 is only in pursuance of the agreement of lease dated 31-5-1978 for the period contemplated therein and thus it relates back to the said period only and is not fresh deed nor creates any fresh lease; the cause of action mentioned in the three suits in OS No.8 of 1986, OS No.5 of 1986 and OS No.131 of 1983 are totally different and the relief claimed in the present suit is based upon a totally different cause of action and, therefore, the present suit is not hit by the provisions of Order II, Rule 2, CPC. It was further contended that the purpose of the lease is only for industrial purpose, i.e., for the manufacture of ceramics and therefore lease cannot be termed as an agricultural lease and the provisions of the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 would not govern the case and the Civil Court has jurisdiction to entertain the suit and grant the relief.

10. The learned single Judge who has heard and disposed of the appeal has stated in the judgment that both the Counsel did not press the other claims made against each other. On the basis of the contentions raised before him on behalf of the parties, the learned single Judge, having framed relevant points for consideration, answered all the points in favour of the respondent-plaintiff and against the defendants, and ultimately dismissed the appeal by his judgment and decree dated 26-4-2000 affirming the judgment and decree of the trial Court. Hence, this Letters Patent Appeal.

11. Before us also, Sri V.L.N.G.K. Murthy, learned Counsel appearing for the appellants urged the same three grounds. In addition, the learned Counsel putforth one more ground raised in CMP No.10448 of 2000 filed in this Letters Patent Appeal. The additional ground is that in view of the judgment of the learned single Judge in AS No.1775 of 1986, that Clause (15) of Ex.A1 is void; the said Ex.A1 and Ex.B1 are void in their entirety. Elaborating this additional ground, learned Counsel would submit that the rights created in favour of the lessee under Clause (15) of Ex.A1 and Ex.B1 are supported by the same consideration, namely, the payment of rent of Rs.12,500/- per month. In other words, the single consideration of payment of Rs.12,500/- per month is for more than one object, namely, to create the lease hold rights in favour of lessor and also to create the rights under Clause (15). It is therefore submitted that the agreement is void by force of the provisions of Section 23 read with Section 24 of the Indian Contract Act. The agreement being void in its entirety, no rights flow in favour of the lessor or lessee under Ex.A1 or Ex.B1. The relationship between the parties is, therefore, that of a landlord and a tenant under an unwritten lease for an unspecified period and therefore the lease should be treated as the one from year to year and if it is so treated, the suit is liable to be dismissed.

12. Sri C.V, Mohan Reddy, learned Counsel for the respondent-plaintiff, on the other hand, would reiterate the same contentions urged before the learned single Judge and supplement them by contending that having due regard to the changed circumstances brought about after the institution of the present suit, the trial Court is well justified in decreeing the suit and the Courts are entitled to take into account the changed circumstances in decision-making and granting the relief. The learned Counsel would further contend that the additional ground taken for the first time in the LPA by filing CMP No.10448 of 2000 is not tenable inasmuch as the said plea is clearly hit by principle of constructive resjudicata.

13. In the premise of the rival contentions of the parties, the following points arise for our consideration and decision.

(I) Whether the suit filed on 11-7-1988 on the basis of the agreement dated 31-5-1978 contemplating lease for a period of 5 years with effect from 16-6-1978 and the deed in pursuance of such agreement having got enforced through a decree for specific performance and ultimately the document being executed on 28th January, 1989, ie, much subsequent to the date of filing of the present suit, is premature and maintainable.

(II) Whether in view of the suits filed by the respondent-plaintiff in OS Nos.8 of 1986, 5 of 1986 and 131 of 1983 earlier, the present suit is barred under Order II, Rule 2 of the Code of Civil Procedure.

(III) Whether the lease between the parties is an agricultural lease and if so, whether the Civil Court has jurisdiction to entertain the suit in view of the provisions of the A.P. (Andhra Area) Tenancy Act, 1956.

(IV) Whether the present suit, OS No.123 of 1988 filed on 11-7-1988 is liable to be dismissed in view of the finding recorded by the learned single Judge in his judgment dated 26-4-2000 passed in AS No.1775 of 1986 that Clause (15) of Ex.A1 is void.

Point No. 1:

The contention of Sri V.LN.G.K. Murthy, learned Counsel for the appellants is that by the date of filing of the suit, OS No.123 of 1988, the respondent/plaintiff was fully conscious that there was no registered sale deed, and the lease deed was to be obtained subsequently through the process of law in execution of the decree for specific performance passed in OS No.146 of 1980. The suit was filed in anticipation of the execution of the lease deed in execution of the decree for specific performance. It is the settled law that the rights of the parties have to be decided with reference to the date of initiation of the lis, and any departure from that rule enabling the Court to take into account subsequent events or developments is only under exceptional circumstances, the circumstances being the subsequent events over which the party concerned has no control. In the instant case, the plaintiff cannot seek to take the aid of that rule where the jural relationship is to be created subsequently. In the instant case, learned Counsel would contend, the subsequent event that the plaintiff was seeking to rely upon was brought about by the plaintiff himself and that event was very much in contemplation of the plaintiff by the date of filing of the suit. In that view of the matter, learned Counsel would maintain, the proper course for the plaintiff should have been to wait till the execution of the lease deed through the process of law instead of filing the suit in anticipation of the execution of lease deed through the process of law. The learned Counsel for the appellants would maintain that the present case is a case where the changed circumstance was brought about by the plaintiff himself by his own conduct and, therefore, the subsequent event of executing and registering the lease deed, Ex.B1 on 28-1-1989 cannot be said to be an event over which the plaintiff had no control. Summing up, the learned Counsel would conclude that the suit instituted on 11-7-1988 on the basis of the agreement of lease dated 31-5-1978 and in contemplation of execution of the lease deed through the process of Court is not maintainable.

14. The contention of the learned Counsel for the appellants that in the instant case, the changed circumstance, i.e., execution of the lease deed, Ex.B1 on 28-1-1989 is an event which was brought about by the plaintiff himself by his own conduct over which the plaintiff had full control is not acceptable to us. This contention of the learned Counsel for the appellants is not supported by any direct authority, theoretically or precedent-wise. However, in support of this contention, the learned Counsel would press into service the judgment of the Supreme Court in Rameshwar and others v. Jot Ram and others, . Before considering the above judgment of the Apex Court, should it be noted that when the plaintiff instituted the suit on 11-7-1988, he could not have contemplated that the decree for specific performance would be executed by the Court as a certainty and within a particular time-frame, and when the decree would attain finality having due regard to several tiers of legal remedies provided under the law, and when the execution and registration of the lease deed would become complete and a reality. In that view of the matter, the execution of the lease deed, Ex.B1 subsequent to the filing of the suit cannot be termed as an event which was singularly and exclusively brought about by the plaintiff himself by his own conduct and according to his will and wish without intervention of anyone else. The passing of the decree for specific performance of the agreement and its execution culminating in Ex.B1 are the events over which, it cannot be said, the plaintiff alone had full control as regards the time consumed to secure Ex.B1. Secondly, it is relevant to note that passing of the decree and its execution by the Court are the events over which the Court alone has the jurisdiction, therefore the control. A decree of the Court is the culmination of the exercise of the judicial power wielded by the Court rather than the fruition of the desire of a suitor. There is no need to dilate this aspect further because we are of the considered opinion that the provisions of Section 47 of the Indian Registration Act fully answer the first point in favour of the respondent/ plaintiff and against the appellants/defendants for the reasons to follow hereinbelow presently after a while.

15. The judgment of the Apex Court in Rameshwar's case (supra), does not support the contention of the learned Counsel for the appellants. The learned Counsel specifically drew our attention to the following observation of the Supreme Court in support of the contention that if the Court has to take a changed circumstance into account for decision making, then, such changed circumstance should not be an event brought about by the party himself by his own conduct and over which he had control:

"One may as well add that while taking cautious judicial cognizance of 'postnatal' events, even for the limited and exceptional purposes explained earlier, no Court will countenance a party altering, by his own manipulation, a change in situation and plead for relief on the altered basis."

16. The above observation of the Supreme Court has to be understood, appreciated and applied to the facts of this case keeping in mind the context in which that observation was made. In that case, the precise and the only point that fell for determination was whether the subsequent event of the landowner's death at the appellate stage unsettled the ownership right acquired by the tenants by virtue of the provision of sub-section (4) of Section 18 of the Punjab Security of Land Tenures Act, 1953 or whether the Tribunal must have upheld the rights of the tenants which have crystallised as on the date the applications were made irrespective of the death of the landowner pending disposal of the appeals. In that case, one Teja, the landlord, was admittedly a large landowner under whom there were three tenants. Each of them applied for purchase of ownership under Section 18(1) ofthe Act. The Assistant Collector, who is the primary authority under the Act, found them eligible, fixed the price and the instalments of payment, and they duly deposited the first instalment. The statutory consequence of such deposit was that title to the property vested in the tenants on that date. All these events took place in the early 60s. When the appeals filed by Teja were pending, Teja died. The appellants before the Supreme Court who are the heirs of Teja contended that, although Teja was a large landowner, on his death, his heirs became entitled to shares and, in this process of fragmentation, they became 'small landowners' within the meaning of Section 2(2) of the Act. This event occurred after the tenants had been found entitled to purchase from the landowner the lands held by them and after they had deposited the first instalment as prescribed in Section 18(4) of the Act. The contention of the appellants was that an appeal is a continuation of the original proceeding and, therefore, if there is a change of circumstances in the landlord's ownership during the pendency of the appeal, resulting in his legal representatives becoming 'small landowners', the tenants will be disentitled to purchase the land. This plea was putforth because, under the Act, a tenant of a 'small landowner' has no right to purchase the land. While rejecting that plea of the appellants; the Supreme Court was pleased to observe in Para (11) of the judgment as under :

"Moreover, the right of the respondents is fixed under Section 18(1) and (4) and that cannot be uprooted by supervening circumstances. We are not called upon to mould the relief but to reject the right. We are not asked to avoid multiplicity of suits but to non-suit and thus stultify the agrarian law. We are not required to permit the appellate authority to re-assess the facts as they stood when the action was brought that is part of appellate power) but to project the landholder's subsequent death backwards to refuse a right already acquired. A flash-back camera in this context, frustrates forensic objectives. Individual misfortune may be real but larger social changes will claim martyrs in law and in fact. How can we miss the sublime impact of the Passion of Christ for the Redemption of Mankind? The great fact is that, if uniformly, relentlessly and swiftly enforced, neither landlord nor tenant can keep more than the 'permissible area'. That is the equity and equality, of this agrarian law."

The Supreme Court stated the principles governing the impact of subsequent, happenings or events on the decision-making in the following words in Para (9), of the same judgment:

"9. The impact of subsequent happenings may now be spelt out. First, its bearing on the right of action, second, on the nature of the relief and third, on its impotence to create or destroy substantive rights. Where the nature of the relief, as originally sought, has become obsolete or unserviceable or a new form of relief will be more efficacious on account of developments subsequent to the suit or even during the appellate stage, it is but fair that the relief is moulded, varied or reshaped in the light of updated facts. Patterson v. State of Alabama, (1934) 294 US 600, 607, illustrates this position. It is important that the party claiming the relief or change of relief must have the same right from which either the first or the modified remedy may flow. Subsequent events in the course of the case cannot be constitutive of substantive rights enforceable in that very litigation except in a narrow category (later spelt out) but may influence the equitable jurisdiction to mould reliefs. Conversely, where rights have already vested in a party, they cannot be nullified or negated by subsequent events save where there is a change in the law and it is made applicable at any stage. Lachmeshwar Prasad v. Keshwar Lal, 1940 FCR 84 = AIR 1941 FC 5 falls in this category. Courts of justice may, when the compelling equities of a case oblige them, shape reliefs - cannot deny rights - to make them justly relevant in the updated circumstances. Where the relief is discretionary, Courts may exercise this jurisdiction to avoid injustice. Likewise, where the right to the remedy depends, under the statute itself, on the presence or absence of certain basic facts at the time the relief is to be ultimately granted, the Court, even in appeal; can take note of such supervening facts with fundamental impact. Venkateswarlu, , read in its statutory setting, falls in this category. Where a cause of action is deficient but later events have made up the deficiency, the Court may, in order to avoid multiplicity of litigation, permit amendment and continue the proceeding, provided no prejudice is caused to the other side. All these are done only in exceptional situations and just cannot be done if the statute, on which the legal proceeding is based, inhibits, by its scheme or otherwise, such change in cause of action or relief. The primary concern of the Court is to implement the justice of the Legislation. Rights vested by virtue of a statute cannot be divested by this equitable doctrine (See Chokalingam Chetty, 54 Mad LJ 88 = AIR 1927 PC 252. The law stated in Ramji La! v. Stale of Punjab, ILR (1966) 2 Punj 125 = ATR 1966 Punj. 374 (FB) is sound:

"Courts do very often take notice of events that happen subsequent to the filing of suits and at times even those that have occurred during the appellate stage and permit pleadings to be amended for including a prayer for relief on the basis of such events but this is ordinarily done to avoid multiplicity of proceedings or when the original relief claimed has by reason of change in the circumstances, become inappropriate and not when the plaintiffs suit would be wholly displaced by the proposed amendment (see Steward v. The North Metropolitan Tramways Company, (1885) 16 QBD 178) and a fresh suit by him would be so barred by limitation."

17. According to our considered opinion, the general principles stated by the Supreme Court in Para (9) of the judgment governing the impact of subsequent happenings or events on decision-making and/or for moulding the relief, aid the case of the respondent-plaintiff. It is relevant to note that in the instant case, when the suit was instituted, the cause of action for the suit may be deficient. But, as pointed out supra, later events with the passing of the decree for specific performance and execution of the lease deed Ex.B1 in pursuance of the decree have made up the deficiency, and if that is the factual position, as indicated by the Supreme Court in Para (9) of the judgment, the Court may take into account the subsequent supervening events in the decision-making and/or for moulding the relief.

18. It is well established principle that the Courts can take notice of the subsequent events and mould the relief accordingly, but this can be done only in certain exceptional circumstances indicated by the Supreme Court in Para (9) of the judgment. However, this equitable principle which permits the Court to take into account subsequent events in moulding the relief cannot be pressed into service by the Courts to divest the rights already vested by a Statute. That is not the position in this case.

19. A Division Bench of this Court in Syed Jaleel Zone v. Venkata Murlidhar and others, , was pleased to observe thus:

"... The inherent power of the Court to take notice of the subsequent circumstances to do complete justice between the parties and to mould the relief accordingly, is undoubted. Where such a course tends to avoid multiplicity of proceedings, it is all-the-more desirable that, the Court exercises its jurisdiction and inherent power in this direction."

20. Dealing with the first point, the learned single Judge has placed reliance on the provisions of Section 47 of the Indian Registration Act to reject the contention of the appellants. In order to appreciate whether the view taken by the learned single Judge is tenable and justified, it is relevant to note at the threshold that the clauses in Ex.A1 and the clauses in Ex.B1 are identical except in description of the two documents. The original lease agreement in Ex.A1 dated 31-5-1978 contemplates the period of lease as five years beginning from 16-6-1978 and ending with 15-6-1983. Thus, it is evident that the lease did not commence with the date of agreement in Ex.A1. Ex.A2 is the decree passed in OS No.146 of 1980. In that suit, specific performance of the agreement dated 31-5-1978 was sought directing the defendants to execute a lease deed at their cost and in favour of the plaintiff in terms of the agreement. The decree passed by the Court in OS No.146 of 1980 directs that both the plaintiff and the defendants should execute a lease deed incorporating in it the terms contained in Ex.A1 and register the same and the defendants to meet the expenses. Accordingly, Ex.B1 came to be executed under the due signatures of both the parties incorporating the very terms as contained in Ex.A1 including that of period of lease in the following manner.

"That in consideration of the rent hereinafter mentioned and the lessee's agreement hereinafter contained, the lessor hereby grants to lessee a lease of all those properties listed in the schedules hereto attached to hold the same to the lessee, for the term of five years beginning from 16th day of June, 1978 and ending by 15th day of June, 1983 at the yearly rent of Rs.1,50,000/- (Rupees one lakh and fifty thousand) payable at the rate of Rs.12,500/- (Rupees twelve thousand and five hundred only) per month, on the last day of each and every month, subject to the following conditions."

The original clauses as contained in Ex.A1 read as under:

"That in consideration of the rent hereinafter mentioned and the lessee's agreement hereinafter contained, the lessor hereby grants to the lessee a lease of all those properties listed in the schedules hereto attached to hold the same to the lessee, for the term of five years beginning from 16th day of June, 1978 and ending by 15th day of June, 1983 at the yearly rent of Rs.1,50,000/- that is to say, at the rate of Rs. 12,500/- (Rupees twelve thousand and five hundred) per month, payable on the last day of each and every month, subject to the following conditions."

21. A reading of Exs.A1 and B1 makes it clear that the lease as contemplated in both the documents is only for a period of 5 years commencing from 16-6-1978 and ending with 15-6-1983. The lease deed in Ex.B1 is not an independent deed creating fresh lease de hors the Ex.A1 document. In that view of the matter, it can be said that Ex.B1 is a completed and concluded deed in pursuance of or in consequence of Ex.A1 through the process of the Court. Ex.B1 cannot be treated as an independent and new transaction for the simple reason that the period of lease contemplated under Ex.A1 and Ex.B1 is the same. Admittedly, Ex.B1 was executed and registered on 28-1-1989 and quite long before that date, the period of lease envisaged both in Ex.A1 and Ex.B1 had expired. Ex.B1 does not and cannot allow the appellants/lessees to be the lessees of the subject property for a period of 5 years from the date of execution and registration of the lease deed dated 28-1-1989. Thus, Ex.B1 itself would not amount, to an independent and new transaction, and the period of lease contemplated under Ex.A1 gets reiterated and reinforced in Ex.B1. It is not that Ex.B1 created new or fresh rights or obligations apart from the rights and obligations created under Ex.A1. However, learned Counsel for the appellants placing reliance on the provisions of Sections 47, 59, 60 and 61 of the Registration Act would contend that the lease in question has come into existence only on the completion of registration of Ex.B1, that is to say, subsequent to the filing of the suit and therefore, on the date of institution of the suit, i.e., on 11-7-1978, such lease deed not being in existence, the plaintiff cannot rety on a post facto deed. In support of this contention, the learned Counsel would place reliance on the judgment of the Supreme Court in Ram Saran Lall and others v. Mst. Domini Kuer and others, .

22. Section 47 of the Registration Act reads as follows:

A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration.

Under this section, a registered document operates from the time it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration. Section 49 provides that no document required by Section 17 to be registered shall affect any immoveable property comprised therein, or confer any power to adopt, or be received as evidence of any transaction affecting such property or conferring such power unless it has been registered. The effect of these provisions is that a document, which is compulsorily registrable, does not affect any immovable property comprised therein till it has been registered, but soon after it has been registered, it takes effect not from the date of registration but retrospectively from the date of its execution. If there is nothing in the deed itself to indicate that it has come into operation since some previous date, or that it will come into operation from some future date, then, it becomes effective from the date of its execution as distinguished from the date of registration. On the other hand, where the deed itself provides that it will come into operation, or that it comes into operation on a partculate date, it becomes operative from such date.

23. The title of a person under a registered document may be said to relate back to the time from which it would have operated if no registration thereof had been required or made. Ordinarily, the time from which a document not required to be registered would operate would be the date of execution thereof. Thus, although a document, so long as it remains unregistered may not be valid, yet as soon as it has been registered, it takes effect from the date of its execution. The transaction is thereby given a retrospective effect. In U.On Maung v. Maung Shwe Hpaung, AIR 1937 Rang. 446, Roberts, CJ., observed as follows:

"The requirement of registration of a document, is, in my opinion, an evidentiary requirement; an unregistered transfer is inchoate and is ineffective until registered. But it nevertheless exists and when registered operates from the date of its execution."

24. A bare reading of the provision of Section 47 will show that the registered document will operate from the time from which it would have commenced to operate if no registration thereof was required by law and not from the time of its registration. The moment it was registered, the title in the property would pass to the transferees from the date of its execution. Under the provisions of Section 47 of the Registration Act, a document would operate on the date when it was executed, but that would happen only if it was subsequently registered. If it was not registered, no title in the property would pass to the vendees under it. However, the moment it was registered the title in the property would pass to the transferees from the date of its execution. Though the transfer cannot be effected except by a registered instrument, as soon as the instrument of transfer is registered and the registration is complete, it operates from the time from which it would have commenced to operate if no registration was necessary and the transfer takes effect not from the date of registration of the instrument of transfer but from the date on which the instrument was executed.

25. The judgment of the Supreme Court in Ramsaran 's case (supra), is of no help to the appellants. The question debated in that case was whether the preliminary demand issued by a person exercising the right of pre-emption before registration of the sale could help him in the exercise of his right of pre-emption. It is in that context that their Lordships of the Supreme Court had to consider as to when the sale was completed. Their Lordships of the Supreme Court held that the instrument became a sale only after it was registered and that until then there was no sale, after which alone a notice of preliminary demand was to issue to the vendor. Under the Mohammedan Law of Pre-emption, the right of pre-emption arises only out of a valid, complete and bona fide sale. Since the demand was made before registration of the document, it was held that that demand did not give rise to a right of pre-emption. Their Lordships in the course of judgment, referred to Section 47 and said that the statutory provisions did not have the effect of passing title to the property before the registration of the document and that Section 47 applied to a document only after it was registered and had nothing to do with the completion of the registration or the completion of the sale when the instrument was one of sale. Their Lordships also observed that Section 47 of the Registration Act did not say when a sale would be deemed to be complete, that it only permitted a document when registered, to operate from a certain date which may be earlier than the date when it was registered. Section 47 does not deal with completion of registration. Section 47 does not say when a sale would be deemed to be complete. It is trite to state that under the Registration Act, registration of a document is not complete till the document to be registered is copied out in records of registration office as prescribed under Section 61 of the Registration Act. In the case of Ramsaran's case (supra), certain Pandeys executed a deed of sale in favour of the respondent-purchaser on 31-1-1946 in respect of their residential house contiguous to the house of the appellants. On 2-2-1946, the appellants on coming to hear of the execution of the sale deed submitted their first demand called talab-i-mowasibat which is required to be made only after the completion of the sale in order that the right may be enforced. On 9-2-1946, the documents were copied in the Registrar's books and thereupon the registration became complete as envisaged under Section 61(2) of the Registration Act. In such facts-situation, what fell for consideration before the Supreme Court was whether the registration of the sale deed was complete before 2-2-1946 and the Court held that the registration was not complete before 2-2-1946, and, therefore, the demand called talab-i-mowasibat made by the appellants is not enforceable.

26. Sub-section (1) of Section 60 of the Registration Act provides that after complying with the provisions of Sections 34, 35, 58 and 59, wherever they are applicable to any document, the Registering Officer shall endorse thereon a Certificate containing the word "registered", together with the number and page of the book in which the document has been copied. Sub-section (2) of Section 60 further provides that such Certificate shall be signed, sealed and dated by the registering officer. Sub-section (1) of Section 61 provides that the endorsements and certificate referred to in Sections 59 and 60 shall thereupon be copied into the margin of the register book. Sub-section (2) of Section 61 declares that the registration of the document shall thereupon be deemed complete. In other words, unless the various procedural steps envisaged under Sections 59 and 60 as well as subsection (1) of Section 61 are complied with and completed, registration of a document would not be complete by force of the provision contained in sub-section (2) of Section 61 of the Registration Act. It is trite to state that unless registration of a document is complete or deemed to be complete within the meaning of that expression under sub-section (2) of Section 61 of the Act, the document would not be effective. It is true that the Supreme Court in Hiralal Agarwal etc. v. Rampadarath Singh and others, opined that registration is complete only when the certificate under Section 60 of the Registration Act is given and the endorsement and copying out the said Certificate under Section 61 of the Registration Act are made. Section 61 and the above opinion of the Supreme Court are authorities to state that a registration of a document would be complete only after the Certificate under Section 60 is given and the endorsement and copying out the said Certificate under Section 61 of the Registration Act are made, but they are not the authorities to state that on registration of a document, such document would not operate from the time from which it would have commenced to operate if no registration thereof had been required or made. It is necessary to note that Section 47 on the one hand and Sections 59, 60 and 61 on the other hand deal with two distinct aspects. Section 47 does not speak about when a registration of a document is complete or deemed to be complete. Section 47 simply declares that a registered document operates from the time it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration. On the other hand, Sections 59, 60 and 61 prescribe the modalities for registration of a document and subsection (2) of Section 61 ultimately declares that the registration of a document would be deemed to be complete provided the several steps envisaged under Sections 59, 60 and 61 have undergone or are complied with. If the provisions of Sections 47, 59, 60 and 61 are read conjointly, it is clear that unless the registration of a document is complete within the contemplation of subsection (2) of Section 61, the registration of the document would not be effective, thereby meaning that the title to the property would not pass to the vendees and that once the registration of the document is complete, as stated above, Section 47 steps in and the title of a person under a completed registered document relates back to the time from which it would have operated if no registration thereof had been required or made.

27. Before parting with the Point No.1, we are inclined to say few words as regards the technical plea taken by the appellants. The first plea taken by the appellants in this appeal and before the learned single Judge is purely technical plea. It is true that Indian Law is not yet completely divorced from technicalities, but if technicalities turn out to be tortures, they cannot and should not be permitted to defeat justice. It has been now well settled that to do complete justice to the parties is one of the primary functions, nay, an inherent duty of every Court. Their Lordships of the Supreme Court in S.B. Noronah v. Prem Kumari Khanna, , speaking through Krishna Iyer, J., were pleased to observe thus:

"Parties should win or loose on substantial questions, not technical tortures and Courts cannot be abettors ......

To maintain the integrity of law, the Court must suit the action to the word, the word to the action."

In this case, admittedly under the agreement of lease, Ex.A1 dated 31-5-1978, the plaint schedule property was leased to the appellants for a period of 5 years only commencing from 16-6-1978 and ending with 15-6-1983. The appellants-lessees have had no legal right to continue as lessees of the plaint schedule property after 15-6-1983. Even after 17 long years, after the expiry of the lease period, the dispute between the parties is still kept alive by resourceful appellants-litigants. Technicalities cannot be permitted to overtake justice. For all these reasons, we answer the Point No.1 in favour of the respondent-plaintiff and against the appellants-defendants.

Point No.II Sri V.LN.G.K. Murthy, learned Counsel for the appellants would contend that the relief sought in OS No.131 of 1983, OS No.5 of 1986 and OS No.8 of 1986 and the present suit is grounded on the same cause of action, viz., the determination of the lease by efflux of time. The learned Counsel would maintain that on the determination of lease by efflux of time, the right to obtain possession under Section 108(q) of the Transfer of Property Act, the right to have the property restored in as good a condition as it was by the date of the commencement of the lease deed as provided under Section 108(m), and the right to recover damages for use and occupation for the period during which the lessee continues to be in possession after the determination of the lease accrued to the landlord. The learned Counsel would contend that the four suits are instituted for enforcement of the above noted rights and as such have a direct nexus with the determination of the lease by efflux of time and therefore it could be a common cause far all the suits. The learned Counsel finally would contend and conclude that the present suit is hit by the provision of Order II, Rule 2, CPC.

28. In support of the plea that the present suit is hit by Order II, Rule 2 of the Code of Civil Procedure, reliance was placed on what is pleaded in paras (8) and (9) of the plaint in OS No.8 of 1986; paras (6), (7) and (8) of the plaint in OS No.5 of 1986, and paras (7) to (12) of the plaint in OS No.131 of 1983. The suit OS No.8 of 1986 was for recovery of a sum of Rs.2,96,000/-alongwith interest towards the value of 18 missing articles belonging to the plaintiff respondent, the details of which are given in the suit notice. The dates mentioned in the aforementioned paras on which dates the cause of action arose are 31-5-1978, 16-6-1978, 12-1-1980, 15-6-1983; 15-12-1985, 24-12-1985, 10-1-1986, 15-1-1986 and certain other dates. The suit OS No.5 of 1986 was for recovery of a sum of Rs.5,20,000/- towards damages caused to kiln, chimney and barbed wire fencing and in that suit it was pleaded that the cause of action arose on 31-5-1978, 16-6-1978, 12-1-1980, 15-6-1983, 15-12-1985, 31-12-1985, 10-1-1986 and certain other dates. The suit OS No.131 of 1983 was for permanent injunction restraining the defendants from for removing stone wire pipe-line, other machineries and for mandatory injunction to dismantle the pipes and for replacing certain mild steel iron girder etc. This suit was rested on the cause of action that arose on 31-5-1978, 7-3-1983, 24-5-1983, 12-7-1983. The present suit OS No.123 of 1988 for possession and damages of the entire lease hold is based on the cause of action arose on 31-5-1978, 15-6-1983, 24-5-1983, 12-7-1983, 6-5-1983, 18-5-1983, 1-6-1988, 10-6-1988, 15-6-1988, 17-6-1988, 9-6-1988 and 20-6-1988.

29. On the basis of the above noted dates on which according to the plaintiff respondent causes of action to file the suits arose, the appellants-defendants would contend that it was legally permissible for the plaintiff to claim the relief sought in the present suit, in the earlier suits and the plaint having consciously omitted to claim the relief of recovery of possession and the damages in the earlier suits, the present suit is hit by Order II, Rule 2, CPC. In support of the contention, the appellants' Counsel places reliance on the decision of the Privy Council in Md. Khalil Khan v. Mahbub Ali Mian, AIR 1949 PC 78, and the decision of the Supreme Court in Haridas Mondal v. Anath Nath Mittra, .

30. Order II, Rule 2, CPC reads as follows:

"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."

Order II, Rule 2 CPC is based on the principle that the defendants should not be twice vexed for one and the same cause. A Division Bench of this Court in M Thimma Raju v. Dronamraju, (DB), opined that the rule contained in Order II, Rule 2 is directed against two evils, i.e., (i) the splitting of claims and (ii) splitting of remedies. The expression "cause of action" in Order II, Rule 2 CPC means that cause of action for which the suit is laid, that is to say, the cause of action which gives occasion for and forms the foundation of the suit. "Cause of action" means the cause for which the suit was brought. If that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterwards seek to sue for the balance relief by independent proceedings. The cause of action in a suit has no reference to the defence taken in the suit nor is it related to the evidence by which the cause of action is established. But though the cause of action has no relation to and must be distinguished from the evidence by which the cause of action is proved, still the nature of the cause of action may be indicated by the nature of the evidence by which, it is supported. In Orienterion Publicity v. Golden Plastics, (1979) 2 Mad. LW 78, it is pointed out that the nature of the suit or even the form of action is one thing; the cause of action is another. The nature of the suit may be ascertained or determined by looking at the kind of reliefs asked for in the suit. The cause of action is made up of a number of facts which are necessary to be pleaded and which, if established, would enable the plaintiff to obtain from the Court a remedy against the defendant. In Balbir Singh v. Atma Ram, , a Full Bench of the Allahabad High Court pointed out the distinction between the cause of action and the right of action. According to the Full Bench, a right of action is a right to presently enforce a cause of action - a remedial right affording redress for the infringement of a legal right belonging to some definite person, whereas a cause of action is the operative fact which gives rise to such right of action. The right to action does not arise until the performance of all conditions precedent to the action is complete. If the relief claimed in the subsequent suit was not available to a plaintiff, at the time of filing of the first suit, then, Order II, Rule 2 CPC will not apply as the subsequent suit is based on a separate and distinct cause of action. The requirement of Order II, Rule 2 is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. The tests to be applied to see whether the bar of Order II, Rule 2 is attracted or not are: (i) whether the cause of action in the previous suit and the subsequent suit is identical; (ii) whether the relief claimed in the subsequent suit could have been given in the previous suit on the basis of the pleadings made in the plaint; and (iii) whether the plaintiff omitted to sue for a particular relief on the cause of action which has been disclosed in the previous suit. If the cause of action on the basis of which the previous suit was brought does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the plaintiffs subsequent suit is not hit by Order II, Rule 2, CPC. In order that a plea of a bar under Order II, Rule 2(3) should succeed, the defendant who raises the plea must make out (i) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (ii) that in respect of that cause of action the plaintiff was entitled to more than one relief; (iii) 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.

31. The Privy Council in Mohammad Khalil Khan and others v. Mahbub Ali Mian, AIR (36) 1949 PC 78, on consideration of the authorities on the applicability of Order II, Rule 2, CPC summarised the principles in Para 61 of the judgment as under:

"61. The principles laid down in the cases thus far discussed may be thus summarised:

(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." Moonshee Buzloor Ruheem v. Shumsunnissa Begum, (1867-11 MIA 551 = 2 Sr. 259 PC).

(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 = 58 LJ QB 120).

(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 = 53 LJ QB 476).

(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, (1884-14 BD 141 = 53 LJ QB 476).

(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. It refers ..... to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. Muss. Chandkour v. Partab Singh, (15 IA 156 = 16 Cal. 98 PC). 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."

Further, the Privy Council in Paras 64 and 67 of the same judgment opined that where the facts which would entitle the plaintiffs, in their new suit to recover property Y, to establish their title are substantially the same as those alleged in their former suit to recover property X, the causes of action in the two suits are identical and the plaintiffs are barred by reason of Order II, Rule 2 from maintaining the new suit.

32. In Haridas Mondal v. Ananth Nath Mittra, , where in a suit to enforce a mortgage, the mortgagee obtained a decree for Rs.5,000/- and interest and cost. The decree was made absolute and by sale in execution, the mortgagee recovered Rs.4,160/-. For the balance of the decretal debt, the mortgagee obtained a personal decree under Order 34, Rule 6 of Civil Procedure Code for Rs.2,338/- and applied for execution. Availing himself of the Bengal Money-Lenders Act, the mortgagor filed a suit under Section 36 of the Act for reopening of the personal decree. The suit was decreed and a new decree for Rs.1,432/- payable in three annual instalments was passed. The mortgagor did not pay any instalment and when the decree-holder mortgagee applied for execution, he filed another suit under Section 36 for reopening the preliminary decree and the final decree passed in the mortgage suit. It appeared that the claim to reopen these decrees was deliberately given up by the mortgagor in the former suit.

33. The Supreme Court by majority, 2:1, opined that Section 36 contemplated filing of one suit and not successive suits for reopening transactions including decrees and obtaining relief under the Bengal Money-Lenders Act. If in a suit filed for that purpose, a borrower does not obtain relief which he has asked for or abandons his right to relief, it will not thereafter be open to him to institute a second suit for relief which could have been but was not claimed in the earlier suit. The majority of their Lordship held that the rule contained in Order II, Rule 2, CPC applied to the case and the right to claim relief which could have been but has not been asked for in the previous suit must be regarded as res judicata under Section 11 CPC.

34. A Constitution Bench of the Supreme Court in Gurbux Singh v. Bhooralal, , in Paras (5) and (7) of the judgment has stated the principles governing the applicability of Order II, Rule 2, CPC as follows :

"6.......... 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 application of the bar. No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order IT, Rule 2, CPC can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits...."

"7. ...... Just as in the case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order II, Rule 2, Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which these facts were alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed, ft is not impossible that reliefs were claimed without the necessary averments to justify their grant......"

35. In the premise of the above noted principles governing the applicability of the bar contained in Order II, Rule 2, -CPC, let us now examine whether the present suit OS No.123 of 1988 filed by the plaintiff-respondent is hit by Order II, Rule 2, CPC.

36. The suit OS No.8 of 1986 was for recovery of Rs.2,96,000/- towards the value of 18 articles mentioned in the suit notice and belonging to the plaintiff-respondent. According to the plaintiff, those articles were entrusted to the defendants 1 and 2 under the agreement of lease and those articles are listed in the schedule to the lease agreement. The allegation was that during the local inspection, the articles were found to be missing from the factory premise. The suit OS No.5 of 1986 was for the recovery of Rs.5,20,000/- towards the value of kiln, chimney and the barbed wire fencing. It is alleged in the plaint that during the local inspection on 15-12-1985, the plaintiff and his sons noticed that one of the 22 feet diameter kilns had completely collapsed and one 65 feet high chimney has crumbled down to a height of about 20 feet from the top downwards. It is claimed that all the kilns and chimneys, barbed wire fencing were handed over to the defendants 1 and 2 on 16-6-1978 in excellent condition. The defendants 1 and 2 deliberately did not carry out repairs at all and in order to wreak vengeance on the plaintiff damaged the kiln, chimney and barbed wire fencing. The suit, OS No.131 of 1983 was filed for grant of permanent injunction restraining the defendants from erecting a stoneware pipe plant or any other type of machinery de hors the agreement of lease dated 31-5-1978 in tire leased factory and for a mandatory injunction directing the defendants to dismantle and takeaway the said stoneware pipe plant, its motor starter etc. In the said suit, it was alleged, the defendants without any authority and illegally erected stoneware pipe press and the action of the defendants breached the terms of the lease.

37. The burden to prove that the present suit OS No.123 of 1988 is hit by Order II, Rule 2, CPC is on the defendants-appellants. As the plea is a technical bar, it has to be established satisfactorily and it cannot be presumed merely on the basis of inferential reasoning. In the case of Gurbux Singh (supra), the Supreme Court held that a plea of a bar under Order II, Rule 2, CPC can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of causes of action in the two suits. In the instant case, it appears to us, the pleadings in all the three previous suits were not produced and marked by the defendants. We have perused the list of documents marked for the defendants. The defendants have produced copies of the plaints in OS No.5 of 1986 and OS No.8 of 1986. The list does not include copy of the plaint in OS No.131 of 1983. Further, the defendants have not produced copies of the written statements filed in the three earlier suits. It is trite to state that pleadings of the parties include the plaints as well as written statements. Therefore, solely on the ground that the defendants have not filed in evidence the pleadings in the previous three suits and applying the law declared by the Constitution Bench of the Supreme Court in the case of Gurbux Singh (supra), the second point is required to be answered against the appellants-defendants. Be that as it may, we also find that the cause of action for filing the previous three suits and the cause of action for filing the present suit are not identical. The material averments made in the plaints in the previous three suits to which reference is already made supra, would disclose that the causes of action that arose for filing the previous three suits are distinctly separate. The present suit OS No.123 of 1988, is for possession of the plaint schedule property after ejecting the defendants therefrom and for recovery of Rs.4,37,500/- towards damages for use and occupation, past and future. The present suit is essentially based on the decree for specific performance of the agreement of lease dated 31-5-1978 passed in OS No.146 of 1980 dated 7-3-1983 and affirmed by this Court in AS No.639 of 1983 dated 8-12-1985 and determination of the lease by efflux of time. It is trite to state that on the basis of the material averments made in the plaints in the previous three suits, the plaintiff would not be entitled to a decree for the reliefs sought by him in the present suit OS No.123 of 1988. The test to be applied is whether the plaintiff would have got the reliefs sought in the subsequent suit in the previous suit itself on the basis of the cause of action disclosed in the previous suit and on the basis of the material averments made in the plaint of the previous suit if the plaintiff were to pray for such reliefs in the previous suit itself. If this test is applied to the facts of the present case, it should be held that on the basis of the causes of action disclosed by the plaintiff in any of the three previous suits, viz., OS No.8 of 1986, OS No.5 of 1986 and OS No.131 of 1983, he would not be entitled to seek the decree for the reliefs sought in the present suit OS No.123 of 1988. Further the reliefs sought in the earlier suits are not in any way consequent upon the agreement or the expiry of the lease period nor based on the decree for specific performance of the agreement of lease dated 31-5-1978 granted by the Court in OS No.146 of 1980. The reliefs as sought for in those three suits are for damages to the properties and for permanent and mandatory injunction in view, of certain specific alleged acts of malfeasance and misfeasance as against the defendants. Therefore, those alleged acts on the part of the defendants do not constitute a cause for the relief of possession. The present suit is instituted exclusively on the basis of the expiry of the lease period and the decree for specific performance granted by the civil Court.

38. In the result, and for the foregoing reasons, we hold that the causes of action are not same in the previous suits and in the present suit on the basis of which the plaintiff could have sought the relief sought in the present suit and consequently the institution of the present suit is not hit by the bar contained in Order II, Rule 2, CPC. Therefore, we answer the second point in favour of the respondent-plaintiff and against the appellants-defendants.

Point No.III:

Sri V.LN.G.K. Murthy, learned Counsel for the appellants would contend that the evidence on record would disclose that part of the leased property was, being used as an agricultural land by the lessor himself even by the date of the lease and, therefore, it cannot be said that, the entire leased property admeasuring Ac. 11.23 cts. was leased for non-agricultural purpose, that is to say, for the purpose of running the factory.

39. We do not find any merit in this contention of the learned Counsel for the appellants. In ascertaining the nature of lease, it is necessary to find out what is its primary or dominant purpose. Where a lease of land is granted as an ancillary to the carrying out a non-agricultural operation, such as running a factory, such a lease cannot be said to be a lease of land for agricultural purpose as ordinarily understood but it is principally and essentially a lease for non-agricultural purpose. In Shanti Devi v. A.K. Banerjee, AIR 1981 SC 1550, it was held that parties could not by their pleadings alter the intrinsic change of the rights and obligations flowing from the terms of the lease. Further, the Supreme Court in Provash Chandra Dalue and another v. Biswanath Banerjee and another, , held that the Court would only look into the terms of the lease irrespective of the averments in the pleadings in order to ascertain the purpose of lease. In Kishan Chand v. Sayeeda Khatoon, , this Court held:

"It is now well settled that in order to gather as to for what purpose the lease was brought about in respect of certain premises, reference must be made to the time on which the lease is brought into being. In this case, it is evident that initially when the premises was leased out, it was for residential purpose. If that be so, it is the, original intention that has to be taken into reckoning for the purpose of determining the nature of lease and not how the said premises is subjected to treatment later."

In the instant case, a reading of the Ex.A1 dated 31-5-1978 and Ex.B1 dated 28-1-1989 would indisputably disclose that the lease is for non-agricultural purpose. Admittedly, the lease was meant for the manufacture of ceramics. Both in Ex.A1 and Ex.B1, there is no mention for use of the land for agriculture. Clause (5) of Ex.A1 and Ex.B1 refers to the obligation of the lessee to pay rates and taxes in respect of the factory; Clause (8) deals with the lessee's obligation to keep each and every machine, motor, starter, transformer, capacitors, trolleys, wheel-barrows, furniture, buildings, kilns, chimneys and every item of the scheduled properties in good working condition and to return the same to the lessor on determination of the lease; Clause (9) deals with the lessee's liability for damages for fire and Clause (11) grants the lessee the right to run the factory for a period of five years. These clauses in Exs.A1 and B1 and the remaining clauses conjointly clearly establish that the lease was not for agricultural purpose, but for non-agricultural purpose, viz., for running the factory. It is true that it has come in the evidence that even prior to the lease in favour of the defendants, the lessor was using the open land appurtenant to the factory premises for agriculture and the same was continued by the defendants. But, that fact itself cannot be a ground to hold that the dominant and primary purpose of the lease is for agricultural purpose. If the Court has to keep in mind the dictum of the Supreme Court in the case, of Shanti Devi (supra) and Provash Chandra Dalue (supra) and the covenants in Exs.A1 and B1, it should be held that the primary and dominant purpose of the lease is for non-agricultural purpose. Accordingly we declare and hold that the Andhra Pradesh (Andhra Area) Tenancy Act, 1956 does not apply and the civil Court has jurisdiction to entertain the suit. Accordingly we hold Point No.III in favour of the respondent-plaintiff and against the appellants-defendants.

Point No.IV:

The contention of the learned Counsel for the appellants is that since the learned single Judge of this Court in AS No.1775 of 1986 has held that Clause (15) of Ex.A1 permitting the appellants herein to operate the mines is void and unenforceable, as it is opposed to public policy and is forbidden, by law under Section 23 read with Section 24 of the Indian Contract Act, Ex.A1 as a whole should be held to be the one opposed to public policy and therefore, a nullify in the eye of law. The Counsel for the appellants would contend that if Ex.A1 and Ex.B1 are ignored being opposed to public policy, the very foundation for the present suit would be missing and consequently the appeal is entitled to be allowed and the judgment and decree passed by the trial Court and by the learned single Judge of this Court have to be set at nought. We cannot entertain this plea taken for the first time in the Letters Patent Appeal for more than one reason.

40. AS No.1775 of 1986 arose out of the decree passed by the civil Court in OS No.132of 1983, dated 25-4-1986. The plaintiff in the present suit is the plaintiff in OS No.132 of 1983 also and he filed the suit for declaration that the 1st defendant (1st defendant in the present suit also) and not the plaintiff is liable to pay a sum of Rs.36,074.48 ps., under a demand raised by the authorities of the Department of Mines and Geology towards outstanding dues and for granting permanent injunction restraining the 1st defendant from operating Bommur and Konda Guntur fire clay mines of the plaintiff. That suit was decreed. In the appeal, learned single Judge of this Court was of the opinion that clause (15) of Ex.A1-lease agreement permitting the 1st defendant to operate the mines in the teeth of prohibition imposed by the Mining regulations is opposed to public policy and therefore nullity in the eye of law by force of the provision contained in Section 23 read with Section 24 of the Indian Contract Act. So opining, the learned single Judge allowed the appeal and set aside the judgment and decree of the trial Court by his judgment dated 26-4-2000.

41. At the threshold, we are afraid that the contention of the learned Counsel for the appellants that since the learned single Judge has held that Clause (15) of Ex.A1 is a nullity being opposed to public policy, Ex.A1 and Ex.B1 as a whole should be held to be nullity in the eye of law, is not well founded. We have already referred to the salient covenants incorporated in Ex.A1 and Ex.B1. The primary and dominant purpose of the lease was for running the factory and not for mining purpose or for agriculture purpose. However, in clause (15) of Ex.A1, the lessee is granted the right to operate the mines of the plaintiff in Bommur and Konda Guntur villages at his own cost. Simply because now the learned single Judge of this Court has held that clause (15) is opposed to public policy, it cannot be said that Ex.A1 and its culmination Ex.B1, as a whole, should be held to be nullity. It is also not certain that the judgment and decree passed by the learned single Judge would become final. The respondent-plaintiff may pursue further legal remedies if it so desires. Be that as it may, we do not find any necessity to dilate this aspect further, because, in our considered opinion, this additional plea taken by the appellants for the first time in the Letters Patent Appeal by filing CMP No.10448 of 2000 is hit by constructive res judicata. When the respondent-plaintiff filed the suit OS No.146 of 1980 for specific performance of Ex.A1, agreement to lease dated 31-5-1978, the same plea which is sought to be urged now was available to the appellants-defendants if they so chose and for the reasons best known to them, they did not take this plea as a defence to oppose the claim of the respondent-plaintiff.

42. Explanation IV to Section 11 CPC provides that any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in a subsequent suit. An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-matter of the litigation and every matter coming within the legitimate purview of the original action both in respect of the matter of claim or defence. The Supreme Court in Forward Construction Co. v. Prabhat Mandal, , held that the principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter that should be taken to be the same thing as if the matter had been actually controverted and decided. It is true that where a matter has been constructively in issue it cannot be said to have been actually heard and decided. It could only be deemed to have been heard, and decided. This Court in Mudunuri Subbaraju v. State of Andhra Pradesh, , held that the principle of "might and ought to have been raised (made)" occurring in Explanation IV to Section 11 CPC is to be reckoned when the lis is instituted, not when it comes up for final hearing. Having due regard to the above noted well settled position in law, the additional plea taken by the appellants for the first time in the Letters Patent Appeal has to be rejected in limine. We accordingly do so and hold that the additional plea taken by the appellants is hit by constructive resjudicata.

43. In the result and for the foregoing reasons, we dismiss the Letters Patent Appeal with costs throughout.

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Andhra HC (Pre-Telangana)