Kerala High Court
P.V.Francis vs P.V.Varghese on 11 August, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
MONDAY, THE 19TH DAY OF DECEMBER 2016/28TH AGRAHAYANA, 1938
RSA.No. 481 of 2005 (G)
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AGAINST THE JUDGMENT & DECREE IN AS 227/1997 OF ADDL.DISTRICT &
SESSIONS COURT (ADHOC)-II, KOTTAYAM DATED 11-08-2004
AGAINST THE JUDGMENT & DECREE IN OS 60/1996 OF MUNSIFF COURT,
CHANGANACHERRY DATED 30-09-1997
APPELLANT/1ST RESPONDENT/1ST DEFENDANT:
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P.V.FRANCIS, S/O.VARGHESE,
AGED 53, PANDICHERRY VEETTIL,
CHETHIPUZHA VILLAGE, CHANGANACHERRY TALUK.
BY ADVS.SRI.VARGHESE C.KURIAKOSE
SRI.PRAVEEN K. JOY
RESPONDENTS/APPELLANTS 2ND RESPONDENT/2ND DEFENDANT:
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1. P.V.VARGHESE, S/O.VARGHESE,
AGED 62, PANDICHERRY HOUSE,, VEROOR MURI, CHETHIPUZHA
VILLAGE,, CHANGANACHERRY, (REP. BY POWER OF ATTORNEY,,
P.V.THOMAS, AGED 65, PANDICHERRY HOUSE, VEROOR MURI,
CHETHIPUZHA VILLAGE) DELETED.
* THE PORTION " REP. BY POWER OF ATTORNEY, P.V.THOMAS, AGED 65,
PANDICHERRY HOUSE, VEROOR MURI, CHETHIPUZHA VILLAGE, CHANGANACHERRY"
IS DELETED FROM THE CAUSE TITLE OF THE 1ST RESPONDENT AS PER ORDER
DATED 14-6-2011 IN I.A.NO.1290/2011
2. MARYSON, PARAKKADAVU,(DELETED)
AGED ABOUT 50, PARAKKADAVIL,, THRIKKODITHANAM.(DELETED)
*THE NAME OF THE 2ND RESPONDENTIS DELETED FROM THE PARTY ARRAY AT THE
RISK OF THE APPELLANT AS PER ORDER DATED 28.7.2005 IN I.A.NO.1731/05
BY ADV. SRI.P.R.RAJA
BY ADV. SRI.L.RAJESH NARAYAN
BY ADV. SRI.P.R.VENKETESH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
19-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.ABRAHAM MATHEW, J.
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R.S.A No.481 of 2005
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Dated this the 19th day of December, 2016
JUDGMENT
The suit from which this appeal arises was in respect of two items of immovable properties. On the plaint schedule first item land there is a building; on the second item land there is no building. The first respondent has been residing in the United States of America since 1973. He purchased the plaint schedule properties by sale deed No.2897/1979. As he was residing and working abroad the property was being managed by his father till his death in 1983 and thereafter, by one of his brothers, who is his power of attorney. On 12.1.1985 the appellant, who is another brother, broke into the building, reduced it into his possession and started doing some business in it. He unauthorisedly extended the building making some constructions and leased out that portion to the second respondent. On 11.6.1993 the appellant attempted to reduce the second item land also into his possession. On these allegations the first respondent instituted O.S.No.300 of 1993 in Munsiff Court, Changanacherry for a mandatory injunction directing the appellant and the second respondent to vacate the building on the first item land and to pay mesne profits, and also directing the appellant to demolish and remove the extended portion of the building and for a perpetual injunction prohibiting him from making new construction in the plaint schedule first item property and trespassing into the plaint R.S.A No.481 of 2005 2 schedule second item land. The suit was partly allowed. The prayer for perpetual injunction prohibiting the appellant from making construction in the first item property was granted. The prayers for mandatory injunction and mesne profits in respect of the first item were disallowed on the ground that the first respondent should have prayed for recovery of possession of the plaint schedule item No.1. The prayer for prohibitory injunction in respect of the second item land also was rejected on the basis of the finding that the appellant had already reduced it into his possession. Thereafter, the first respondent filed the present suit. His title to, and dispossession by the appellant is the foundation for claiming the relief in respect of item No.1 property. With regard to item No.2 land the allegation is that the appellant trespassed into item No.2 after the institution of O.S.No.300 of 1993 as the respondent failed to get a temporary injunction restraining trespass. The prayer in the present suit is to allow the first respondent to recover possession of the first item property from the appellant and the second respondent and to issue a mandatory injunction directing the appellant to restore the first item building to its original condition and to recover possession of the second item property from the appellant. There is also a prayer for recovery of Rs.3000/- from the appellant as mesne profits for the three years prior to the institution of the suit. The appellant inter alia contended that the suit was barred by the R.S.A No.481 of 2005 3 provisions in section 11 and Order II Rule 2 CPC. For the purpose of this appeal the other contentions are not relevant.
2. The trial court took the view that the suit is barred by the provisions in Order II Rule 2 CPC, but not by section 11. Accordingly, it dismissed the suit. In the appeal filed by the first respondent/plaintiff the learned district judge held that so far as the first item property is concerned though the cause of action for the two suits is identical, the present suit is not barred by the principle of res judicata embodied in Section 11 C.P.C, the reason for which is stated in paragraph 14:
"In the former suit, the Munsiff's Court has not entered a finding that the plaintiff is not entitled to get recovery of possession of plaint item No.1. What has been held in Ext.A5 is that the remedy open to the plaintiff is to file a suit for recovery of possession of plaint item No.1 from the first defendant. Therefore, it cannot be said that the present suit instituted for recovery of possession of plaint item No.1 is barred by res judicata in view of Ext.A5 judgment."
He also took the view that the facts of the case do not attract Order II Rule 2 C.P.C. He has given his reasons as follows:
"But considering the reliefs claimed in the former suit, it cannot be said that the plaintiff had omitted or intentionally relinquished the relief of recovery of possession of plaint item No.1 in the former suit, for the reason that the plaintiff had sought for a mandatory injunction directing the defendants to vacate plaint item No.1 and if the defendant failed to do so, the plaintiff further sought for a decree allowing him to evict the R.S.A No.481 of 2005 4 defendants and to recover the possession of plaint item No.1 from the defendants. Considering the nature of the said relief sought for in the former suit, it cannot be said that the plaintiff had omitted or intentionally relinquished the relief of recovery of possession of plaint item No.1. So the bar under O.II R.2 of C.P.C cannot be put forward against the plaintiff in the subsequent suit."
With regard to the second item land he took the view that the first respondent became entitled to get back its possession only when the court found in the earlier suit that he was not in its possession. He held that the first respondent is entitled to a decree for recovery of possession of both items of property. He further held that there is no evidence to prove that the appellant made unauthorised construction in the first item property and also to prove the mesne profits. The claim for a decree for mandatory injunction and mesne profits was rejected. The learned district judge set aside the decree and allowed the first respondent to recover possession of both items of property.
3. The questions of law formulated by this court relate to the bar pleaded by the appellant on the basis of the provisions in Section 11 and Order II Rule 2 C.P.C.
4. Sri.Varghese Kuriakose learned counsel for the appellant brought to my notice the following decisions of the Privy Council, the Supreme Court and various High Courts which have discussed the scope R.S.A No.481 of 2005 5 of Order II Rule 2 C.P.C. Mohammad Khali Khan and others vs Mahbub Ali Mian and others (AIR 1949 P.C. 78), Gurubux Singh vs Bhooralal (AIR 1964 SC 1810), Deva Ram and Another vs Ishwar Chand and Another (AIR 1996 SC 378), Kamal Kishore Saboo vs Nawabzada Humayun Kamal Hasan Khan (AIR 2001 Delhi 220), Kunjan Nair Sivaraman Nair vs Narayanan Nair (AIR 2004 SC 1761), Dalip Singh vs Mehar Singh Rathee and Others (2004) 7 SCC 650), Swamy Atmananda and Others vs Sri.Ramakrishna Tapovanam and Others (AIR 2005 SC 2392), Dadu Dayalu Mahasabha, Jaipur (Trust) vs Mahant Ram Niwas and Another (AIR 2008 SC 2187), Municipal Corporation, Hyderabad vs Sunder Singh (AIR 2008 SC 2579), Alka Gupta vs Narendar Kumar Gupta (2011 SC 9), Virgo Industries (Eng.) Pvt. Ltd. Vs Venturetech Solutions Pvt. Ltd. (2013) 1 SCC 625), State Bank of India vs Gracure Pharmaceuticals Ltd (AIR 2014 SC 731), Coffee Board vs Ramesh Exports Pvt. Ltd. (M/s.) (AIR 2014 SC 2301), Rathnavathi and Another vs Kavita Ganashamdas ( 2015(5) SCC 223), Inbasegaran and Another vs S.Natarajan (Dead) thr. Lrs. ( 2015 (11) SCC 12), On the death of Arabinda Sarma, his legal heirs and Others vs On the death of Landaru Roy, his legal heirs and Others (AIR 2015 Gau. 45), Sayyed Noor vs Sayyed Minya and Others (2015 KHC 2879), R.S.A No.481 of 2005 6 Narasimman (Deceased) and Others vs Santhakumari (2015 KHC 5094), and Shaheed vs Sayeed and Others (2016 KHC 2169). Sri.P.R.Venkatesh, learned counsel for the first respondent placed reliance on some of the above decisions and the decisions in Narashalli Kempanna and others vs Narasappa and others (AIR 1989 Karnataka
50). Each of the above decisions will be referred to in the course my discussion at its appropriate place.
5. The requirements of Section 11 C.P.C have been discussed in Dadu Dayalu Mahasabha, Jaipur (Trust) vs Mahant Ram Niwas and Another (AIR 2008 S.C 2187). The distinction between the provisions in Section 11 and Order II Rule 2 C.P.C has been pointed out by the Supreme Court in the following words in Shri Inacco Martins vs Narayan Hari Naik (AIR 1993 SC 1756):
"It may not be out of place to clarify that the doctrine of res judicata differs from the rule embodied in Order 2 Rule2, in that, the former places emphasis on the plaintiff's duty to exhaust all available grounds in support of his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action."
This has been reiterated in Kunjan Nair Sivaraman Nair vs Narayanan Nair (AIR 2004 SC 1761)
6. Res judicata-the maxim being res judicata pro veritate accipitur - is a fact to be pleaded and proved. The appellant in his written R.S.A No.481 of 2005 7 statement has specifically pleaded it. The only evidence adduced by him to prove it is Ext B1 photocopy of the plaint in the previous suit. But Ext A5 copy of the judgment in the previous suit produced by the first respondent is available. In Kali Krishna Tagore vs Secretary of State for India in Council (ILR 16 Calcutta 173) the Privy Council pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issues in the previous suit and what was heard and decided. A constitution bench of the Supreme Court in Gurubux Singh vs Booralal (AIR 1964 SC 1810) has had occasion to examine the question. It held that the plea of res judicata cannot be established in the absence of the record of the judgment and decree which is pleaded as estoppel. The following observation of the constitution bench is very relevant: "Without placing before the court" the relevant records "the defendant cannot invite the court to speculate or to infer by process or deduction what those facts might be with reference to the reliefs which were then claimed". In Syed Mohd Salie Labbai (dead) by L.Rs and others vs Mohd. Hanifa (dead) by L.Rs and others (1976) 4 SCC 780) the Supreme Court held:
"The best method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits, and then to find out as to what had been decided by the judgments which operate as res judicata. Unfortunately however in this case the pleadings of the suits instituted by the R.S.A No.481 of 2005 8 parties have not at all been filed and we have to rely upon the facts as mentioned in the judgments themselves. It is well settled that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment."
Later, in V.Rajeshwari vs T.C.Saravanabava (2004) 1 SCC 551) the question again came up for consideration before the Supreme Court. It held that it is risky to speculate about pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The necessity to prove the pleadings and the issues in the former suit has been pointed out by the Supreme Court in Dalip Singh vs Mehar Singh Rathee and Others (2004) 7 SCC 650), Swamy Atmananda and Others vs Sri.Ramakrishna Tapovanam and Others (AIR 2005 SC 2392) and Alka Gupta vs Narendar Kumar Gupta (AIR 2011 SC 9) also.
7. Thus, Ext A5 copy of judgment produced by the first respondent will not help the appellant prove that the present suit of the former is hit by section 11 C.P.C. The plea of res judicata raised by the appellant cannot even be taken notice of since he has not produced copy of the written statement filed by him and the decree passed by the trial court in the previous suit.
8. Order II Rule 2 CPC reads as follows:
(1) Every suit shall include the whole of the R.S.A No.481 of 2005 9 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) 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) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation - For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.
9. Sub rule 1 of Rule 2 in Order II CPC contains the mandate that the suit shall contain the whole claim which the plaintiff is entitled to make in respect of the cause of action alleged in the plaint and sub rule 2 contains the prohibition that the plaintiff shall not later sue for any portion of the claim which was so omitted or relinquished. Sub rule 3 bars the plaintiff from suing for a relief which was not prayed for in a previous suit though he was entitled to sue for that relief also, the cause of action R.S.A No.481 of 2005 10 alleged in both suits being the same. The principle behind Order II Rule 2 CPC is that the defendant should not be twice vexed for one and the same cause (Naba Kumar Hazra and another vs Radhashyam Mahish and another AIR 1931 P.C. 229). The object is to avoid multiplicity of proceedings and not to vex the parties over and again in a litigative process (State Bank of India vs Gracure Pharmaceuticals Ltd. (AIR 2014 SC 731). The rule is directed against the evils of splitting of claims and splitting of remedies (Mohammed Khali Khan and others vs. Mahbub Ali Mian and others AIR 1949 P.C.78 and Shri Inacio Martins vs Narayan Hari Naik AIR 1993 S.C. 1756)
10. The requirements that the parties are same and the cause of action is same in the previous suit and the subsequent suit are common to these provisions. But the provisions apply to different situations.
11. The interpretation of the above provisions turns on the meaning of the words 'claim' and 'relief'.
In Black's Law Dictionary the meaning of 'claim' is given as follows:
i) The aggregate of operative facts giving rise to a right enforceable by a court.
ii) The assertion of an existing right.
iii) A demand for money, property or a legal remedy to which one asserts a right.R.S.A No.481 of 2005 11
And the meaning of 'relief' is given as follows:
i) Aid or assistance given to those in need
ii) The redress or benefit that a party asks of a court.
It may appear that the words 'claim' and 'relief' mean the same thing. But obviously, it is not so because if they are taken to mean the same thing, the provisions contained in sub rules 1 and 2 on the one hand, and sub rule 3 on the other become insensible.
12. In Mohammedunny Azeez vs M/s. Gopal Company (1987(1) KLT 703) while interpreting section 64 C.P.C this court examined the meaning of the word claim. 'Claim' means demand for something supposed due or to demand as a right is the definition accepted by the division bench.
13. Sub rule 3 is attracted only when several reliefs flow from a single cause of action. Inclusion in Sub rule 3 of cases in which several reliefs arise from a single cause of action is exclusion of such cases from Sub rules 1 and 2. Sub rules 1 and 2 can have application only when one relief arises from a single cause of action. To put it differently, sub rules 1 and 2 are attracted only when the plaintiff is entitled to one relief on the basis of one cause of action. In cases in which sub rule 3 has application the court may in the first suit grant leave to the plaintiff to file another suit for any other relief the plaintiff could have prayed for in the first suit on the R.S.A No.481 of 2005 12 basis of the same cause of action. But in cases to which sub rules 1 and 2 apply though the plaintiff in such cases can relinquish a portion of his claim, no leave can be granted to file another suit for the relinquished portion of the claim. These are the differences between the two provisions.
14. A plaintiff may be entitled to one right or several rights in relation to a single relief. Out of the bundle of rights which form the cause of action for the relief prayed for, a part may give rise to one right and another to another right. When a debtor fails to pay the money he borrowed, the only cause of action for the creditor to sue for the money is breach of promise. This breach gives him a right to sue for return of the money lent as well as the interest on it. These two rights together form the relief of recovery of money. Thus, though there is only one relief, he has two rights in relation to it. In such cases if he intentionally relinquishes or omits to pray for any of the rights, he will not be entitled to sue for it in a subsequent suit. In cases where the plaintiff has only one right in relation to a relief he should pray for the entire right. Thus, if a plaintiff is entitled to recover Rs.1,00,000/- from the defendant in respect of a single cause of action, he should pray for the entire amount in the same suit. Where a plaintiff who is entitled to several reliefs, sues for all of them, but intentionally relinquishes or omits to sue for a portion of any of the rights in relation to each of the reliefs, he will not be entitled to claim for the R.S.A No.481 of 2005 13 relinquished or omitted portion in a subsequent suit.
15. The definitions of 'claim' and 'relief' given in the Black's Law Dictionary also fortifies the view that 'claim' indicates rights while 'relief' indicates assistance of the court. For the purposes of Order II Rule 2 'claim' means the aggregate of all the rights the plaintiff is entitled to in relation to the relief prayed for on the basis of the action alleged in his pleadings. If he fails to sue for any of those rights or any portion of any of those rights, he cannot subsequently sue for the right or the portion of the right so omitted or relinquished.
16. To prove that the present suit is barred by the provisions of Order II Rule 2 CPC the appellant produced Ext B1 photocopy of the plaint in the previous suit. This is sufficient because the plaint reveals the cause of action alleged, the relief prayed for and the claim made by the plaintiff.
17. In Mohammad Khalil Khan and others vs Mahbub Ali Mian and others (AIR 1949 P.C 78) the Privy Council has summarised the principles governing Order II Rule 2 thus:
"(1) The correct test in cases falling under O.2, R.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 vs Shumsunnissa Begum (1867-11 MIA 551: 2 Sar 259 P.C.)(supra) (2) The cause of action means every fact which will be necessary for the plaintiff to prove if R.S.A No.481 of 2005 14 traversed in order to support his right to the judgment. Read vs Brown (1889-22 QBD 128:58 LJQB 120)(supra) (3) If the evidence to support the two claims is different, then the causes of action are also different. Brundsden v.Humphrey (1884-14 QBD 141:53 LJQB 476)(supra) (4) The causes of action in the two suits may be considered to be the same if in substance they are identical. Brundsden v.Humphrey (1884-14 QBD 141:53 LJQB 476)(supra) (5) The causes 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)(supra). This observation was made by Lord Watson in a case under S.43 of the Act of 1882 (corresponding to O.II, R.2), where plaintiff made various claims in the same suit.")"
The constitution bench of the Supreme Court in Gurubux Singh's case (supra) relied on the above Privy Council decision and explained the scope of the provision in Order II Rule 2 CPC. One of the latest decisions of the apex court is Rathnavathi and another vs Kavita Ganashamdas (2015) 5 SCC 223), in which the court has observed:
"Since the plea of Order II Rule 2 CPC, if upheld, results in depriving the plaintiff to file the second suit, it is necessary for the court to carefully examine the entire factual matrix of both the suits, the cause of action on which the suits are founded, the reliefs claimed in both the suits and lastly, the R.S.A No.481 of 2005 15 legal provisions applicable for grant of reliefs in both the suits."
18. In the light of the principles laid down by the Privy Council and the Supreme Court it may be examined whether the present suit of the first respondent is barred by the provisions in Order II Rule 2 C.P.C.
19. The three reliefs prayed for in the previous suit in respect of the first item property were
i) mandatory injunction directing the appellant to vacate the property
ii) mandatory injunction directing the appellant to demolish the illegal construction allegedly made by the appellant and to restore the property (building) to its original condition
iii) recovery from the appellant mesne profits for the period of three years prior to the institution of the suit
20. The cause of action for the above reliefs may be examined. For the mandatory injunction directing the appellant to vacate the property the cause of action was the first respondent's title to it and his dispossession by the appellant. The cause of action for the relief of mandatory injunction directing the appellant to demolish the construction made by him and to restore the building to its original condition was the appellant's trespass into the property and his making unauthorised construction. The cause of R.S.A No.481 of 2005 16 action for the relief of past mesne profits was the wrongful possession of the appellant and the second respondent. Thus, the causes of action for the three reliefs prayed for in the previous suit were different.
21. Is recovery of possession sought in the present suit barred by Sub rule 3 of Rule 2 in Order II C.P.C. To attract Sub rule 3 the first respondent should have been entitled to several reliefs. The dispossession of the first respondent entitled the first respondent to the relief of recovery of possession alone and no other relief. So Sub rule 3 of Rule 2 in Order II C.P.C is not attracted so far as the first or the second item is concerned.
22. Now, the applicability of Sub rule 2 with regard to the first item property has to be considered. As noted above, this provision would apply only if the first respondent prayed for a part of the claim he could have made in the previous suit. Did he become entitled to recovery of possession and mandatory inunction on his dispossession. Mandatory injunction was not a right he could claim, which is why the court in his previous suit denied him that relief. He could not have simultaneously prayed for recovery of possession, and mandatory injunction to vacate the property.
23. In the previous suit the first respondent failed to pray for the only right i.e. the right of recovery of possession he was entitled to. There was no prayer for the claim he was entitled to make. Where the plaintiff R.S.A No.481 of 2005 17 prays for no part of the claim he is entitled to, it cannot be said that he omitted to sue for a part of it. This is the view taken by the Lahore High Court in Sardari Mal vs Hirde Nath and others (AIR 1925 Lahore 459 (2). In that case the plaintiff who had entered into an agreement for sale of an immovable property belonging to the defendant sued him for a perpetual injunction. The trial court dismissed the suit holding that the plaintiff should have filed a suit for specific performance and the suit for perpetual injunction was not maintainable. Later, the plaintiff filed a suit for specific performance. It was contended that the suit was hit by Order II Rule 2 C.P.C. The Lahore High Court held that the plaintiff "was not entitled to two reliefs in respect of the breach of contract, one by way of injunction and the other by specific performance. He was entitled only to the one relief, namely, a suit for specific performance, in which he could have added a claim for compensation. Order II Rule 2, therefore, is no bar to the present suit". It further held that a plaintiff who sues for a relief which the court cannot grant him, is not debarred from subsequently bringing a suit in respect of a relief which the court can grant him and there is nothing in Order II Rule 2 to the contrary. The first respondent's claim for the relief of recovery of possession of the first item property is not barred by the provisions in Sub rule 2 of Rule 2 in Order II C.P.C.
24. As the first respondent does not challenge the correctness of R.S.A No.481 of 2005 18 the refusal of the lower appellate court to grant him the relief of mandatory injunction to demolish and remove the uauthorised construction the appellant allegedly made, and the relief of recovery of past mesne profits, it need not be examined whether those reliefs are barred under any provision of C.P.C.
25. Coming to the second item property, it is seen from Ext B4 plaint in the former suit that the only prayer was for a perpetual injunction. The allegation was that the first respondent was in possession of the property and he apprehended trespass by the appellant. On the other hand, the present suit is for recovery of possession of the said item. The principal allegation is that the first respondent has title to the property and the appellant trespassed into it and reduced it into his possession during the pendency of the former suit.
26. In the former suit, a copy of the judgment of which was marked Ext A5, the court held that the trespass was complete and the remedy of the first respondent was to sue for recovery of possession and so he was not entitled to decree for perpetual injunction. The learned counsel for the appellant places reliance on the decision of the Supreme Court in Virgo Industries (Eng.) Private Limited vs Venturetech Solutions Private Limited (2013) 1 SCC 625) in support of his argument that the failure of the first respondent to sue for recovery of possession in the former suit R.S.A No.481 of 2005 19 disentitles him from filing the present suit in view of the provisions in Order II Rule 2 C.P.C. This decision was followed by Gauhati High Court in On the death of Arabinda Sarma, his legal heirs and others vs On the death of Landaru Roy, his legal heirs and others (2015 KHC 1618=AIR 2015 Gau. 45) and by Madras High Court in Narasimman(Deceased) and others vs Santhakumari (2015 KHC 5094= AIR 2015 NOC 1251) and was referred to in Rathnavathi and another vs Kavita Ganashamdas (2015) 5 SCC 223).
27. In Virgo Industries's case the plaintiff and the defendant entered into two agreements for sale of two items of property. Before the expiry of the period stipulated for the performance the buyer instituted two suits for perpetual injunction prohibiting the seller from alienating the property to strangers. Later, the former filed two suits for specific performance of the agreements for sale. The Supreme Court held that the suits for specific performance were barred under the provisions of Order II Rule 2 C.P.C. In Inbasegaran and Another vs S.Natarajan (Dead) thr. Lrs. (2015 (11) SCC 12) the buyer filed a suit for perpetual injunction prohibiting the seller from taking forcible possession of the property which he allegedly was in his (buyer's) possession. Subsequently, he filed a suit for specific performance of the agreement for sale. The seller relied on the decision of the Supreme Court in Virgo Industries's case in support of his argument R.S.A No.481 of 2005 20 that the subsequent suit for specific performance was barred by the provisions in Order II Rule 2 C.P.C. The Supreme Court held that in the Virgo Industries' case the court held that subsequent suits were barred because the buyer admitted in his plaints in the former suits that the seller had attempted to frustrate the agreement by alienating the property to strangers. The court in Inbasegaran's case held that the subsequent suit for specific performance was not barred as the causes of action in the two suits were different.
28. In Mohammed Khalil Khan and others Vs Mahbub Ali Mian (AIR 1949 P.C 78) the Privy Council observed that the cause of action for a suit is the right of the plaintiff and its infringement by the defendant. To attract the provisions in Order II Rule 2 CPC identity of cause of action is necessary; if the causes of action in both suits are distinct, the second suit is not barred. This has been reiterated by the apex court in Gurubux Singh vs Bhooralal (AIR 1964 SC 1810), Deva Ram and Another vs Ishwar Chand and Another (AIR 1996 SC 378), Municipal Corporation, Hyderabad vs Sunder Singh (AIR 2008 SC 2579), Alka Gupta vs Narendar Kumar Gupta (AIR 2011 SC 9), State Bank of India vs Gracure Pharmaceuticals Ltd (AIR 2014 SC 731), Coffee Board vs Ramesh Exports Pvt. Ltd. (M/s.) (AIR 2014 SC 2301) and Bombay High Court in Sayyed Noor vs Sayyad Minya and others (2015 KHC 2879 R.S.A No.481 of 2005 21 and Uttarakhand High Court in Shaheed vs Sayeed and others (2016 KHC 2169). If the evidence to support the claims in the suits are different, the causes of action are also different (Brunsden vs Humphrey (1884) 14 QBD14) and Haryana Co-operative Sugar Mills vs G.D Supply Co. (AIR 1976 P & H 117).
29. In Narashalli Kempanna and others vs Narasappa and others (AIR 1989 Karnataka 50) which is a decision relied on by Sri P.R.Venkatesh, learned counsel for the first respondent, the plaintiff filed a suit for declaration of his title to the plaint schedule property and for a perpetual injunction on the allegation that the defendant attempted to interfere with his possession. The suit was dismissed holding that the plaintiff failed to prove his possession. He filed another suit for declaration of his title to the very same property and for recovery of its possession. The court held that the plaintiff was entitled only to a fractional right in the property and his remedy was a suit for partition and it dismissed the suit. Thereafter, he filed a third suit for partition of the property and separation of his share. Karnataka High Court held that the third suit is not barred by the provisions in Order II Rule 2 C.P.C because the plaintiff got a new cause of action when his second suit was dismissed on the ground that he did not have exclusive title to the property. It observed that there should be complete identity of the causes of action in both suits to attract the bar. R.S.A No.481 of 2005 22
30. In the former suit the first respondent's claim of title to the second item property was contested. Issue No.3 related to that claim. But that issue was not considered as the appellant withdrew his contention as to the first respondent's title. Thus, the first respondent's title was not in issue in that suit. Issue No.6 related to the first respondent's entitlement to perpetual injunction. It is seen from paragraph 11 of the judgment of the trial court (Ext A5) that the only fact considered by the court was the first respondent's possession. There cannot be any controversy that in the former suit the first respondent's title was irrelevant so far as the second item property is concerned.
31. It is well settled that in a suit for perpetual injunction based on possession title is irrelevant. The cause of action for the previous suit was possession of the first respondent and the attempt of the appellant to trespass into it. In the present suit filed by the first respondent for recovery of possession the right claimed by him is his title to the property and the infringement alleged is his dispossession. There cannot be any doubt that the cause of action for a suit for perpetual injunction based on possession is different from the cause of action for a suit for recovery of possession based on title. The cause of action alleged in the previous suit of the first respondent was different form the one alleged in his present suit. (See Shri Inacio Martins vs Narayan Hari Naik AIR 1993 SC 1756) R.S.A No.481 of 2005 23
32. It is true that in the previous suit the court did not accept the first respondent's case that he was in possession of the property and it held that he should have filed a suit for recovery of possession instead of a suit for perpetual injunction. But the question is whether on the allegations raised by him in the previous suit he could have asked for the relief prayed for in the subsequent suit. And the question is not whether he could have or should have filed the former suit on the basis of the cause of action alleged in the subsequent suit. The observation made by the apex court in Rathnavathi's case (supra) is relevant:
"We cannot accept the submission of learned senior counsel for the appellants when she contended that since both the suits were based on identical pleadings and when cause of action to sue for relief of specific performance of agreement was available to the plaintiff prior to filing of the first suit, the second suit was hit by bar contained in Order II Rule 2 of C.P.C."
The court further observed that similarity to some extent in the facts pleaded by the plaintiff in the two suits is no ground to hold that the bar under Order II Rule 2 is applicable. Only if all the allegations made in the plaint in the former suit were sufficient to pray for the relief sought for in the subsequent suit, the subsequent suit is barred by the provisions in Order II Rule 2 CPC. There is no law that the plaintiff should file a single suit on all the causes of action available to him in respect of the very same property. R.S.A No.481 of 2005 24 The following observation of the Supreme Court in Deva Ram and another vs Ishwar Chand and Another (AIR 1996 SC 378) is relevant:
"What the rule, therefore, requires is the unity of all claims based on the same cause of action in one suit. It does not contemplate unity of distinct and separate causes of action". This dictum was laid down by the Privy Council as early as in 1914. In Payana vs Pana Lana (Indian Appeals Law Reports Vol XL1 1913-1914 page 142) the Privy Council observed that the rule is directed to securing the exhaustion of the reliefs in respect of a cause of action and not to the inclusion in one and the same action or different causes of action even though they arise from the same transaction.
33. The learned District Judge relied on the decision of this court in Raman Ittiyathi and others vs Pappy Bhaskaran and others (AIR 1990 Ker. 112) in which it was held: "If the relief claimed in the subsequent suit was not available on the facts alleged in the previous suit to support the right to relief, namely the cause of action, there is no bar under Order II Rule 2 C.P.C. Where the bar under Order II Rule 2 is pleaded, the question is whether the relief in respect of which the bar is pleaded was available on the cause of action pleaded in the earlier suit". The cause of action alleged in the first respondent's previous suit was his possession and his apprehension of dispossession, and the relief he prayed for and R.S.A No.481 of 2005 25 could have prayed for was perpetual injunction. On the contrary, the cause of action alleged in the present suit is his title to the property and his dispossession of the property, and the relief prayed for is recovery of possession. It is irrelevant and immaterial that the facts pleaded in the previous suit were found to be false. Even if the first respondent had proved all the allegations in his plaint in the former suit, he could not have been granted a decree for recovery of possession of the second item property. Thus, so far as the plaint schedule second item also is concerned the present suit is not barred under Sub rule 2 of Rule 2 in Order II C.P.C.
In the result, this appeal fails and accordingly, it is dismissed with the costs of the first respondent.
K.ABRAHAM MATHEW JUDGE pm