Madras High Court
M.S. Velappan, Propritor, Ponni ... vs K.S. Gopalakrishnan, Karpagam Studios on 2 February, 1993
Equivalent citations: (1994)2MLJ225
JUDGMENT Mishra, J.
1. This appeal is directed against a judgment of a learned single Judge of this Court under which he has decreed the suit in part for declaration and rendition of accounts only with proportionate costs.
2. The plaintiff/respondent herein instituted a suit in the City Civil Court being O.S. No. 10529 of 1976 for a declaration that the plaintiff alone is entitled to the negative rights of a Tamil talkie film "Kai Kodutha Deivam" in all its versions in respect to the entire world excluding certain specified territories. He, however, filed another suit viz., C.S. No. 124ofl980on the Original side of this Court for the relief of declaration common to the suit in the City Civil Court and for rendition of accounts and payment of special damages tot he tune of Rs. 5,000 by defendants 1, 2 and 4 to 9. The first defendant in C.S. No. 124 of 1980 filed a suit in the City Civil Court being O.S. No. 291 of 1979, which was transferred to this Court for being tried along with C.S. No. 124 of 1980 (re-numbered as C.S. No. 48 of 1985). This suit was also for rendition of accounts in respect of the sale and production of a movie picture in Telugu and Malayalam versions and for permanent injunction to restrain the defendants from exercising any rights in regard to the distribution of the said picture in Telugu and Malayalam. After the issue of Judge's summons in the suit C.S. No. 124 of 1980, the plaintiff/respondent herein withdrew the suit in the City Civil Court O.S. No. 10529 of 1976 on 25.4.1980.
3. The plaintiffs case in C.S. No. 124 of 1980 has been summarised in the tiral court's Judgment in these words:
The first defendant was producing a picture titled as 'production No. 1' and later as 'Kai Kodutha Daivam' in Tamil. The dialogue and screen-play were written by the plaintiff and he was directing the picture. The first defendant originally entered into a financial agreement with Dwaraka Pictures and they could not finance as agreed. Hence the first defendant entered into an agreement dated 31.7.1963 with the third defendant for financial assistance for further production and completion of the picture. The said agreement was executed by the plaintiff, the first defendant and the third defendant. As per the terms of the agreement, the third defendant, in addition to ft the sum of Rs. 1,28,999 already advanced by them, shall advance a further sum totalling Rs. 4,50,000 towards outright sale of the negative rights of the above picture for distribution, exhibition and exploitation of the picture including the dubbing version and all dimensions of the picture for the areas of far east territories, Singapore, Malaya, Borneo, Sarawak, Indonesia, Siam, Indo-China and Islands of Fiji, the areas of North Arcot, South Arcot, Chittoor, Chingleput District including Pondicherry, Madurai and Ramanathapuram Districts, for the above said consideration. Under the abovesaid agreement, the plaintiff was given the negative rights for the rest of the areas by the third defendant relinquishing their negative rights to the knowledge of the first defendant. The plaintiff was also given the power to complete the said picture and the parties agreed to give all co-operation to the plaintiff in this regard. In pursuance of the said agreement, the plaintiff completed the film by spending Rs. 3,00,000 and the film was first censored on 10.7.1964 and released at several centres. The plaintiffs right as negative-holder has been ratified by the first defendant in several subsequent transactions in pursuance of the agreement dated 31.7.1963. As per the amendment of the Censor Rules in 1975, the plaintiff was obliged to apply to the censor authorities for re-censoring of the said film 'Kai Kodutha Daivam' on 10.12.1976 since ten years' period had already elapsed. The first defendant claiming to be the producer objected to the said application by the plaintiff and he sought for re-censor of the film in his favour by application dated 8.10.1976 and the re-censor certificate was issued on 16.3.1978 in his favour. Later, in spite of the objections raised by the plaintiff as well as the third defendant, the first defendant parted with the negative rights of the plaintiff in respect of the said film in favour of the second defendant who in turn appears to have sold the rights in the areas for specific period to defendants 4 to 9.
4. Upon this thus, according to the plaintiff, the first defendant in the suit having sold the negative rights to him as well as to the third defendant under the agreement dated 31.7.1963 was not legally entitled to have any right, title or interest in the film. His subsequent conduct in dealing with the same with third parties was a flagrant violation of the terms of the contract. In respect of O.S. No. 10529of 1976, the plaintiff in the said suit, however, stated that since the suit in the City Civil Court was for declaration only, he was advised to file a comprehensive suit not only for a mere declaration of his right, title or interest, but also for accounting and for special damages and since the same would be beyond the pecuniary jurisdiction of the City Civil Court, the said suit was withdrawn but before the same was withdrawn, the instant suit was filed in this Court.
5. In C.S. No. 48 of 1985 the first defendant in C.S. No. 124 of 1980 advanced a case as summarized in the impugned judgment in these words:
The plaintiff herein is the owner of the picture known as 'Kai Kodutha Daivam' and after the film was produced in 1964 he obtained censor certificate in his name. The said picture was based on the story written by one Mahadeva Iyer. For financial aid, the plaintiff originally entered into an agreement with one Dwaraka picture and later with the Bhavani Pictures. It is further stated that the Bhavani Pictures also failed to keep up it promise and the first defendant seeing the theme of the picture and the potential value, voluntarily came forward to provide finance for the production of the picture. The terms of the agreement were embodied in the agreement dated 17.8.1963. As per the terms of the above agreement, it was agreed that the first defendant shall have the right to dub the picture in all languages and he was given the right to make or deal with the story right of the picture in any North Indian version, particularly Hindi version. The right to produce the picture in Malayalam, Telugu and Kanarese was reserved with the plaintiff. It is further stated that contrary to the terms of the said agreement, the first defendant transferred the right to produce the picture in Telugu version for a fabulous consideration to the second defendant and in pursuance of the said agreement, the second defendant produced the film in Telugu. Both the defendants have rendered themselves liable to account to the plaintiff in respect of the production of the picture in Telugu Language. The second defendant knew fully well the import and scope of the terms of the agreement between the plaintiff and the first defendant.
The third defendant is only a name lender of the picture in Malayalam, as everything was done only by the first defendant. Since the picture was released in the name of the third defendant, she is also along with the first defendant an accounting party. The first defendant in law is a trustee of the plaintiff and he is bound to safeguard the interest of President of India and only in or about the end of 1975, he came to know of the production of the picture both in Telugu the plaintiff. According to the plaintiff, the picture received the award from Telugu and Malayalam languages, and that the name of the picture in Telugu is 'Maruppu Ranikatha' and the name of the picture in Malayalam is 'Palingu Pathram'. His attempts to get particulars about those two films from the Central Board of Films Censor proved of no use. Thereupon the plaintiff issued a notice dated 23.7.1976 through his counsel to the defendants calling upon them to render accounts. Both the defendants sent separate replies claiming rights in the said picture. The third defendant did not send any reply. Thereupon the plaintiff filed the suit O.S. No. 2559 of 1977 on the file of the IX Assistant Judge, City Civil Court for permanent injunction and for rendition of accounts in respect of the distribution rights of the said picture in Tamil version as well as Telugu and Malayalam. After the written statements were filed, the plaintiff was advised to withdraw the suit with liberty to file fresh suit on the same cause of action. Hence he obtained permission On 30.6.1978 in the petition filed under Order 23, Rule 1, Code of Civil Procedure and filed this suit.
6. The first defendant alone resisted the claim in the plaint in C.S. No. 124 of 1980. He denied the entire allegations in the plaint and put forward as follows:
The picture 'Kai Kodutha Daivam' was produced by the first defendant and even the first censor certificate was given in his name. He received the award from the President of India and it was only the first defendant who has been receiving all royalties from the radio and also for songs. According to him, the plaintiff was only a financier with the leave and licence of the first defendant, the plaintiff has exploited the picture for ten years from 1964 to 1974 and made more than about Rs. 20,00,000. He is now trying to make unjust enrichment by filing the suit.
He also alleged that the first defendant that is to say the plaintiff in C.S. No. 124 of 1980 commenced production of the picture in 1959 and invested Rs. 1,50,000 in the beginning. Later, however, he took the assistance of the plaintiff (first defendant in C.S. No. 124 of 1980), who spent nearly Rs. 2,00,000. In 1962, another financier Dwaraga Picutres advanced some monies towards finance of the production and since further finance was required, an agreement was entered in 1963 with Bhavani Films Corporation, the third defendant in C.S. No. 124of 1980 and the picture was completed, for which the censor certificate was issued in 1964 in the name of the plaintiff (first defendant in C.S. No. 124 of 1980). The first defendant has specifically denied the allegations that the plaintiff had spent Rs. 3,00,000 in completing the picture and alleged that he was always the absolute owner of the picture including the negative rights.
7. In his defence in C.S. No. 48 of 1985, the plaintiff in C.S. No. 124 of 1980 and the second defendant in C.S. No. 48 of 1985 filed separate written statements. Their contentions have been summarised by the learned single Judge in these words.
In the written statement filed by the first defendant, the following contentions were raised. Since the first defendant is holding the rights as...owner, he is not liable to render any account. It is specifically denied that there was any such agreement that the plaintiff and the first defendant should dub the picture in all the languages, since the first defendant was having his right of his own. According to the first defendant, the suit is hopelessly barred by limitation and that proper court-fee has not been paid. It is only this defendant who has filed the suit C.S. No. 124 of 1980 in which the negative rights of the picture is the subject matter of the issue between the plaintiff and the defendant and the present suit has been filed with a mala fide intention of causing annoyance and black mailing the defendant. Hence, he prayed for dismissal of the suit.
The second defendant contended that she is also not liable to account to the plaintiff. Messrs. Rajshri Pictures are the producers of the said picture in telugu version and they should have been made as parties to this proceeding even if the plaintiff has got any grievance in respect of the Telugu version. This defendant as the managing partner of the Vijayalakshmi Pictures has nothing to do with the dealings with the first defendant. This defendant is not a party to the alleged agreement dated 17.8.1963 between the plaintiff and the first defendant. The first defendant as exclusive holder of the right of producing by dubbing has granted and transferred the said rights to Messrs. Rajashri Pictures for producing the said picture in Telugu version and the said concern became the exclusive owner of the Telugu title of the picture. It is also contended that the claim is barred by limitation and there is no cause of action for the suit.
8. One of the defendants died during the pendency of the suit, her legal heir and legal representative was impleaded as fourth defendant, who adopted the written statement of the first defendant.
9. There were several issues framed by the trial court with respect to non-joinder of necessary parties, whether there was any unjust enrichment by the claim in the suit C.S. No. 124 of 1980, etc., but the main contentions were two that is to say:
(1) whether the result is barred by limitation, and (2) whether the plaintiff is entitled to declaration, injunction, accounting and special damages as prayed for. The trial court has answered both the questions on facts against the defendants in C.S. No. 124 of 1980 and dismissed the suit C.S. No. 48 of 1985.
10. The appellant herein that is the first defendant in C.S. No. f24 of 1980 has made an attempt to question almost all the findings of the learned single Judge. But the learned Counsel appearing for the appellant has confined his arguments to two main questions viz., (1) whether there is an obvious error in not holding that the suit is barred by limitation, and (2) in any event, when the plaintiff/respondent had moved in O.S. No. 10529 of 1976 for a declaration on the same cause of act ion in the City Civil Court, after the withdrawal of the said suit, the suit in C.S. No. 124 of 1980 ought to have been dismissed as barred under Order 2, Rule 2 of the Code of Civil Procedure read with Explanation IV to Section 11 of the Code of Civil Procedure.
11. On the first contention, we do not think that there can be any reason to agree with the contention of the learned Counsel for the appellant, for as the learned single Judge has also noticed, the execution and genuineness of the agreement are not in dispute. It is admitted that the first defendant entered into a financial agreement with one Dwaraga Pictures and that they could not finance him adequately. The first defendant/appellant then approached the3rd defendant for further production and completion of the picture. The plaintiff/Respondent wrote the dialogue and screen play and he also directed the picture. Originally there was an agreement under Ex. P-2 between the first defendant, the plaintiff the third defendant and Dwaraka pictures and by virtue of the same the third defendant advanced a sum of Rs. 1,28,999 and subsequently there was another agreement dated 31.7.1963 between the plaintiff/respondent, the first defendant/appellant and the 3rd defendant/respondent under which the latter agreed to advance a sum of Rs. 4,50,000 in addition to the sum already advanced for which the 3rd defendant/respondent was given the negative rights of the picture for distribution, exhibition and exploitation of the picture including the dubbing for the areas of the Far East territories and other specified territories and by which the plaintiff/respondent was given negative rights for the rest of the areas. The execution of the agreement with Bhavani Film Corporation after the financial agreement with Dwaraga picture is also admitted. The learned single Judge has also stated in this behalf as follows:
To a question by the learned Counsel for the 3rd defendant at page 29 of his deposition, he has categorically admitted that under the agreement dated 14.9.1962 between him, the third defendant, the plaintiff and Dwaraka pictures, the negative rights of the picture were given to Bhavani films and subsequently on 31.7.1963 a further agreement Ex. P-1 was entered into. Under this agreement Ex. P-1, the 3rd defendant was given the negative right for the areas mentioned already. He would only contend that it was only the censor period. But, his attention was drawn that at the time of Exs.P-1 and P-2 there was no re-censorship required as per the rules prevailing then. The learned Counsel for the first defendant also did not dispute the truth and validity of the agreement Ex. P-1 and its binding nature on the first defendant. Hence this issue is answered in favour of the plaintiff.
12. The learned single Judge at another place has stated as follows:
Issue 6 : This issue relates to the question of limitation raised by the defendants. It is stated that in para. 9of the written statement that the suit is barred by limitation in respect of the relief of declaration and also the relief of accounting. According to the learned Counsel for the first defendant, to obtain the relief of declaration under Article 58 of the Limitation Act, the period prescribed is three years, when the right to sue first accrues and the instant case, as it is seen from the cause of action para, the right to sue first accrued on 1.8.1976 when the first defendant to the best of the knowledge of the plaintiff had parted with his right to the second defendant and he cannot take advantage of the earlier suit filed by him in O.S. No. 10529 of 1976, since that suit, which was subsequently withdrawn, would not save limitation. On the other hand, the learned Counsel for the plaintiff submitted that in the instant case the re-censorship certificate was admittedly issued in favour of the first defendant only on 16.3.1978, that the agreement was entered into with the second defendant only after the dismissal of the suit O.S. No. 10529 of 1976 namely on 24.11.1977 and that the suit filed on 20.2.1980 is clearly in time. Further, the present suit is filed for the comprehensive relief of declaration, rendition of accounts, damages and other reliefs not only against the first defendant but also against other defendants who entered into agreements with the first defendant in respect of subsequent agreement and as such, this suit is not in any way barred either under Article 58 of the Limitation Act under any other provision. It is to be noted that the claim of the plaintiff is only as negative right holder in respect of certain areas. The fact that the first defendant is the producer of the film, that by virtue of the agreement he has given negative rights for distribution to the plaintiff and the third defendant and the mere fact that the first defendant got recensorship certificate on the basis of the original censorship certificate issued in his favour cannot be a cause of action for filing the suit. The real cause of action arose only when he entered into another agreement with the second defendant in respect of the negative right and the second defendant in turn entered into an agreement with defendants 4 to 9. In the instant case admittedly, even according to the first defendant, the second agreement is after 24.11.1977 and the suit was filed within three years for the relief of declaration of his negative rights as well as consequential reliefs. It cannot be said that, merely because the plaintiff has stated in the cause of action para that on 1.8.1976 when the first defendant to the best of the knowledge of the plaintiff has parted with his right to the second defendant, the suit is barred by limitation while in fact such parting of the agreement came into existence only in November, 1977 and as such, I do not find any merit in the said contention. Further, no details have been given in the written statement as to how the suit claim is barred by limitation so as to enable the plaintiff to meet out such contention. Hence, I see no merit in the contention of the defendants that the suit is barred by limitation. Learned Counsel for the first defendant relied on the decisions reported in Ram Manohar v. Baboo Singh A.I.R. 1937 All. 124 and Achut v. Parsharam I.L.R. 1938 Bom. 327. A.I.R. 1938 Bom. 281 : 175 I.C. 528 and submitted that in view of Order 23, Rule 2, Code of Civil Procedure, even in the fresh suit filed on permission granted under Order 23, Rule 1, Code of Civil Procedure, the plaintiff is bound by the law of limitation in the same manner as if the first suit was instituted and as such the plaintiff cannot rely on the pendency of the previous suit already referred to. It was also submitted that where the suit is withdrawn under Order 23, Rule 1, Code of Civil Procedure and a subsequent suit is brought on the same course of action, benefit of the Section 14 of the Limitation Act, cannot betaken. In the instant case, as already stated, the suit was filed within the three years from the date of cause of action i.e. the right to sue accrued. The question of invoking Section 14 of the Limitation Act does not arise. Hence, this issue is answered against the defendants.
13. Learned Counsel for the appellant has, however, contended that the suit ought to have been filed within three years of the suit ought to have been filed within three years of the date of the agreement when the right to sue accrued for declaration under Article 58 of the Limitation Act, 1963 and not on a subsequent date when the third defendant was given the negative rights for the areas mentioned already. The fallacy in he argument is obvious. Ex. B-1, the agreement dated 31.7.1963 upon which, according to the plaintiff/respondent as well as the finding of the learned single Judge, which finding has not been assailed before us, the first defendant depended for the negative rights of the third defendant and the plaintiff respectively, was executed when the third defendant advanced a sum of Rs. 1,28,999 and further agreed to advance a sum of Rs. 4,50,000 in addition to the sum already advanced. There is no merit therefore, in our opinion, in the contention of the learned single Judge has erred in holding that the suit is not barred by limitation.
14. It was on the second question, however, that the learned Counsel for the appellant as advanced some tenacious arguments. He has emphasised that the suit filed on the Original Side of this Court by the plaintiff/respondent must be held to be barred under Order 2, Rule 2 of the Code of Civil Procedure for the relief of rendition of accounts and under Explanation IV to Section 11 of the Code of Civil Procedure for the reason of the disposal of the suit in the City Civil Court by way of an order permitting the plaintiff to withdraw the suit with liberty to sue afresh. Learned Counsel for the appellant has contended that the suit filed before the City Civil Court which was later withdrawn, had barred any suit on the cause of action for declaration in any court including the Original Side of this Court. Thus, according to the learned Counsel, the suit filed in this Court became incompetent for the reason of the withdrawal of the suit in the City Civil Court by the plaintiff/respondent.
15. Section 11 of the Code of Civil Procedure is a rule of substance in the sense that it says, No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
The words "has been hard and finally decided by such court" leave no manner of doubt that the rule of res judicata cannot be invoked in a subsequent suit in which even if the issues are directly and substantially the issues of the former suit unless the former suit has been heard and finally decided by the court. Explanation IV to Section 11 of the Code upon which learned Counsel for the appellant has relied thus will be available only when there has been a hearing and final disposal of the issues of facts between the parties and if they omitted to raise any ground of defence or attack in such former suit, they would attract the rule of res judicata in the latter suit. The view that we take can be more clearly understood with reference to Section 10 of the Code of Civil Procedure. It says, No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed, or in any court beyond the limits of India established or continued by the Central Government and having like jurisdiction or before the Supreme Court.
While Section 10 of the Code is a rule appealed pre adjudication, Section 11 is attracted only when ten adjudication in the former suit is concluded.
16. Order 2, Rule 2 of the Code of Civil Procedure says that 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. This rule indicates that while framing the suit, it is open to a plaintiff to relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court that is to say before he goes to the court, for Section 6 of the Code of Civil Procedure says, Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any court jurisdiction over suits the amount or value of the subject matter of which exceeds the pacuniary limits if any of its ordinary jurisdiction.
The effect of relinquishment of a part of claim is stated in Sub-rule (2) of Rule 2 of Order 2 of the Code in these words:
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.
17. It is open to a litigate also to abandon any part of the claim or withdraw the suit as a whole as in Rule 1 of Order 23 of the Code of Civil Procedure. It says that at any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim; provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of Order 32 extend, neither the suit nor any part of the claim shall be abandoned without the leave of the court.
18. The consequence of the abandonment is stated in Sub-rule (4) of Rule of Order 23 in these words:
Where the plaintiff-
(a) abandons any suit or part of claim under Sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in Sub-rule (3), he shall be liable for such costs as the courts may award and shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
Sub-rule (3) says, Where the court is satisfied-
(a) that a suit must fail by reason of some formal defect, or.
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim, it may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
It is thus clear that Order 2, Rule 2 of the Code of Civil Procedure operates in the case of relinquishment of part of a claim or omission to sue in respect of such claim before the institution of the suit, and after institution of the suit it is open to withdraw the suit or abandon a part of the claim subject to the consequences in the former case that the plaintiff shall not be permitted to sue in respect of the portions omitted or relinquished and in the case of the latter, he can institute a fresh suit only when he has the permission of the court to sue a fresh while withdrawing the suit or abandoning any part of the claim. He is otherwise precluded from instituting any fresh suit in respect of such subject matter or such part of the claim under Order 23, Rule 1 of the Code.
19. In the context of thee rules of procedure, it is relevant also to refer to Sub-rule (3) of Rule 2 of Order 2 of the Code, which says, 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.
20. Dealing with Order 2, Rule 2(2) and (3) and Section 11 of the Code of Civil Procedure in Gurbux Singh v. Bhoobalal , a Constitution Bench of the Supreme Court has said, 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 2, 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 those facts were alleged, the defendant cannot invite the court to speculate or infer by a process of deduction that those facts might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were, claimed without the necessary averments to justify their grant. From the mere use of the words 'mesne profits' therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It is also possible that the expression 'mesne profits' has been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterisation of the particular sum demanded but what in substance is the allegations on which the claim to the sum was based and as regards the legal relationship on the basis of which that reliefs was sought. It is because of these reasons that we consider that a plea based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced.
21. It is said at another place in the said judgment, In order that a plea of a bar under Order 2, Rule 3(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise caused of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plant could ordinarily be traceable to a particular cause of action but this might, by no means, be the universal rule, as the plea is technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2, Rule 2, Civil Procedure Code can be established only if the defendant files in evidence the pleaings in the previous suit and thereby proves to the court the identity of the cause of action in the two suits.
22. In a later decision in Sidramappa v. Rajashetty , a Bench of the Supreme Court has stated, ...The requirement of Order 2, Rule 2, Code of Civil Procedure is that every suit should include the whole of the claim which the plain tiff 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 thesameas that in the previous suit. Cause of action is a cause 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....
As seen earlier the cause of action on the basis of which the previous suit was brought does not form the 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 that 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 plain tiffs suit is barred by Order 2, Rule 2, Code of Civil Procedure....
We are unable to accept the contention of the learned Counsel for the appellant that we should allow to the appellant mesne profits at least from the date of the suit. No claim for mesne profits was made in the plaint. Therefore we cannot go into that question in this appeal for the mesne profits, if any, due to the plaintiff, he must take separate steps according to law.
Sidramappa's case , was one in which the purported cause of action for the suit was the dismissal of the plaintiffs application for impleading him in an execution proceeding.
23. The above two citations give to us a clear understanding as to when and how Order 2, Rule 2 of the Code of Civil Procedure can be applied. We have also seen that Order 2, Rule 2, Civil Procedure Code is attracted to a case where while framing the suit certain relief or claim is omitted or internationally relinquished and when that suit is decided and is confined while so deciding to the claims and reliefs excluding the claims and reliefs intentionally relinquished or omitted, then only after such adjudication a plaintiff shall not be allowed to institute a fresh action in a suit for the reliefs or claims relinquished or omitted. Explanation IV to Section 11 of the Code is attracted only in the event of adjudication with respect to issues directly and substantially in issue to by a deeming fiction, include in such adjudications any matter which might and ought to have been made a ground of defence or attack in the suit. (Sic.) Such ground of defence or attack is not permissible in a subsequent suit. At a stage when a suit is pending, however, and another suit is filed and it is shown to the court in the subsequent suit that the matter in issue was directly and substantially in issue in a previously instituted suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, which suit is pending in the same or any other court, Section 10 of the Code of Civil Procedure is attracted and the subsequent suit is stayed.
24. In the instant case, when the suit was filed in this Court, the suit in the City Civil Court was pending. Obviously when the suit was filed, no ground either under Section 11 and under Explanation thereof or under Order 2, Rule 2 of the Code of Civil Procedure was available to the first defendant/appellant. He cannot also have any plea under Order 23, Rule 4 of the Code of Civil Procedure because the suit pending in the City Civil Court was withdrawn only after the suit in this Court was admitted and the defendants appeared. The bar to a fresh suit under Order 23, Rule 4 of the Code of Civil Procedure cannot be made retroactive to destroy a suit which had already been admitted and was in the process of hearing. We have no hesitation thus in affirming the finding of the learned single Judge in this behalf that the suit is not barred under Order 2, Rule 2 of the Code of Civil Procedure or under Explanation IV to Section 11 thereof.
25. For the reasons aforementioned, we find no merit in the appeal and it is accordingly dismissed with costs. Hearing fee Rs. 1,500.