Punjab-Haryana High Court
Rakesh Kumar vs Ajit Singh on 5 March, 1999
Author: V.S. Aggarwal
Bench: V.S. Aggarwal
JUDGMENT V.S. Aggarwal, J.
1. The present revision petition has been filed by Rakesh Kumar and Ganesh Kumar, hereinafter described as "the petitioners" directed against the order passed by the learned Additional Civil Judge (Senior Division), Faridabad, dated 3.4.1996. By virtue of the impugned order, the learned trial Court dismissed the application filed by the petitioners.
2. Some of the relevant facts in this regard can well be mentioned. The respondent had filed a civil suit titled Ajit Singh v. Brij Mohan Sahai on 23.2.1994. The respondent prayed for permanent injunction to restrain the predecessor-in-interest of the petitioners from alienating the suit property to any body. It had been pleaded that the respondent had entered into an agreement of sale with the predecessor-in-interest of the petitioners on 1.4.1993 to sell his plot situate in Anang-pur, Tehsil and District Faridabad. It was further asserted that the predecessor-in-interest of the petitioners did not get the safe deed registered on 16.2.1994 nor appeared before the Registrar. The petitioner's predecessor-in-interest declined to register the sale deed on 22.2.1994. The petitioners had submitted a reply and it was pointed out that Brij Mohan Sahai had expired on 13.10.1993. He could not refuse registration. On 6.4.1994 the learned trial Court had passed the following order :
"Learned counsel for the petitioner made the above statement for withdrawal of suit with a liberty to file fresh one. Heard. No ground for giving permission to file fresh. As such the present suit is dismissed as withdrawn simply. File be consigned to the record room."
3. After withdrawal of the suit for permanent injunction the respondent is alleged to have filed a suit for specific performance of the contract based on the agreement dated 1.4.1993. The petitioners contested the said suit and took up the objection that the subsequent suit was barred under Order 2 Rule 2 of the Code of Civil Procedure (for short "the Code") because this could be claimed as a relief in the earlier suit filed for permanent injunction.
4. The learned trial Court rejected this request holding that causes of action in both the suits were different because the first suit has to be filed when the predecessor-in-interest of the petitioners attempted to sell the property, while the second suit was for specific performance of the contract.
5. Aggrieved by the same, present revision petition has been filed.
6. As is apparent from what has been reproduced above, the main controversy is about the provisions of Order 2 Rule 2 of the Code. It reads as under :
"2. Suit to include the whole claim. - (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim. - Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs. - A person entilled 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."
7. It is obvious from the perusal of Order 2 Rule 2 referred to above that it bars splitting of causes of action. It is based on a well settled principle that the defendant should not be harassed twice for the same cause of action. If a plaintiff omits any portion of the claim which he is entitled to make or omits one of the reliefs which he could claim, then afterwards he is not entitled to sue for the said relief. Privy Council in the case of Mo-hammad Khalil Khan and others v. Mahbub Ali Mian and others, AIR 1949 Privy Council 78, considered the said controversy and held that the correct test in cases falling under Order 2 Rule 2 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. The cause of action means every fact which is necessary for the plaintiff to prove if traversed in order to support his right to the judgment. Supreme Court also considered the controversy in the case of Si-daramappa v. Rajashetty and others, AIR 1970 Supreme Court 1059. It held that the requirement of Order 2 Rule 2 of the Code is that every suil should include the whole of the claim. The exception is where 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 is sought in the subsequent suit. The precise findings in this regard had been recorded and it reads as under :
"7. The High Court and the trial Court proceeded on the erroneous basis that the former suit was a suit for a declaration of the plaintiff's title to the lands mentioned in Schedule I of the plaint. The requirement of Order 2, Rule 2, Code of Civil Procedure 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. Cause of action means the cause of action for which the suit was brought. It cannot be said that the cause of action on which the present suit was brought is the same as that in the previous suit. Cause of action is a cause of action which gives occasion for and forms the foundation of the suit. 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 recover the balance by independent proceedings (See Mohd. Hafiz v. Mohd. Zakaria, 49 Intl. App. 9 : AIR 1922 P.C. 23).
As seen earlier the cause of action on the basis of which the previous suit was brought does not form foundation of the present suit. The cause of action mentioned in the earlier suit, assuming the same afforded a basis for a valid claim, did not enable the plaintiff to ask for any relief other than those he prayed for in that suit, in the suit he could not have claimed the relief which he seeks in this suit. Hence the trial Court and the High Court were not right in holding that the plaintiffs suit is barred by Order 2, Rule 2, Code of Civil Procedure."
8. In this connection, certain precedents of the Supreme Court can further be taken note of. In the decision rendered in the case of Shri Inacio Martins, deceased through L.Rs. v. Narayan Hari Naik and others, AIR 1993 Supreme Court 1756 : 1994(1) RCR(Civil) 536 (SC), there was an earlier suit filed for declaration that the plaintiff was lessee and for injunction restraining the defendants from interfering with his possession of the suit property. The suit was dismissed on a technical ground that the plaintiff was no more in possession of the suit property. A subsequent suit was filed for declaration. It was held that Order 2 Rule 2 of the Code will not bar the subsequent suit because the causes of action were different. It is abundantly clear from the nature of the facts that the decision rendered in Inacio Martin's case (supra) is totally different and is confined to its peculiar facts. It has no application to the facts of the present case.
9. A few years later in the case of State of Ma-harashtra and another v. National Construction Company, Bombay and another, 1996(1) Supreme Court Cases 735 : 1996(2) RCR(Civil) 20 (SC), Central Bank of India executed a Performance Guarantee. It was guaranteed that the contractor would faithfully conform to the terms and conditions of the contract. Under the terms of the guarantee, the bank was jointly and severally liable with the contractor. A suit was filed for enforcement of the bank guarantee. A subsequent suit was filed for claiming damages for breach of the underlying contract. It was held that the subsequent suit was not barred under Order 2 Rule 2 of the Code. While saying so, the earlier proposition referred to above was reiterated by the Supreme Court and it was held as under :
"..... Both the principles of res judicata and Rule 2 of Order 2 are based on the rule of law that a man shall not be twice vexed for one and the same cause. In the case of Mohd. Khalil Khan v. Mahbub Ali Mian (supra), the Privy Council laid down the tests for determining whether Order 2 Rule 2 of the Code would apply in a particular situation. The first of these 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." If the answer is in the affirmative, the rule will not apply.....".
It was concluded that since causes of action were different, Order 2 Rule 2 of the Code will not hit the case of the plaintiff in the subsequent suit. But once again, as mentioned above, the facts are totally different because it was noted that the causes of action were totally unconnected.
10. In the case of Deva Ram and another v. Ishwar Chand and another, AIR 1996 SC 378 : 1995(3) RCR(Civil) 717(SC), there was a civil suit filed for recovery of a particular sum as the sale price of the land. It was dismissed with the finding that the document on which the suit was filed was not a sale deed but was a mere agreement for sale. The subsequent suit was filed for recovery of possession. It was held that the causes of action were different. In paragraph 18 of the judgment, trial Court held as under :
"The subsequent suit was brought by the respondent for recovery of possession on the ground that they were the owners of the land in suit and were consequently entitled to recover its possession. The cause of action in the subsequent suit was, therefore, entirely different. Since the previous suit was for recovery of sale price, the respondents could not possibly have claimed the relief of possession on the basis of title as title in that suit had been pleaded by them to have been transferred to the defendants (appellants). The essential requirement for the applicability of Order 2 Rule 2, namely, the identity of causes of action in the previous suit and the subsequent suit was not established. Consequently, the District Judge as also the High Court were correct in rejecting the plea raised by the appellants with regard to Order 2 Rule 2 of the Civil Procedure Code."
11. When the ratio decidendi of these decisions is tested on the facts of the present case, it is obvious that it will not come to the rescue of the respondent. When the earlier suit was filed for permanent injunction, the due date for execution of the agreement had expired. He could file a suit for specific performance. The right was available. He did not do so. Therefore, Order 2 Rule 2(3) of the Code would bar the second suit. This conclusion gets support from the decision of this Court in the case of Ishar Dass v. Kanwar Bhan and others, 1992 PLJ 191 : 1992(1) RCR(Civil) 152 (P&H). In the cited case, there was an agreement to sell. The suit was filed for permanent injunction. Later, another suit was filed for specific performance. It was held that Order 2 Rule 2 of the Code would bar the second suit.
12. Similarly, in the case of Tarsem Singh v. Sibu Ram, 1997(2) PLJ 268 : 1998(2) RCR(Civil) 222 (P&H) and also in the decision rendered in the case of Smt. Ralli and others v. Smt. Satinderjit Kaur, 1998(2) PLJ 305 : 1998(2) RCR(Civil) 114 (P&H), on similar facts, same view was expressed. There is no ground to take a different view. The cause of action, as referred to above, was available to the respondent. He did not choose to do so but omitted to take as a relief in the first suit. He could have done so. Therefore, Order 2 Rule 2 of the Code would bar the subsequent suit.
13. For these reasons, the revision petition is allowed and the impugned order is set aside. Instead, the civil suit filed by the respondent is dismissed.
14. Petition allowed.