Delhi District Court
Santosh vs Lamber Road & Infrustructure & Ors. on 15 January, 2015
1
IN THE COURT OF SH. SHAILENDER MALIK,
LD. SCJ/RC/NW/ROHINI COURTS/DELHI
Suit No.436/13
Santosh vs Lamber Road & Infrustructure & Ors.
Order
This order of mine will dispose off application of defendant no.2 moved under Order 7
rule 11 CPC with the prayer for rejection of the plaint in the present suit. It is stated that
defendant no.2/applicant is the aged lady whereas plaintiff who is daughter of defendant no.2
has filed the present suit and has under valued the suit and appropriate court fees has not
been furnished. Moreover, this court does not have the jurisdiction to entertain the present
suit as admittedly the sale consideration of sale deed, which is sought to be declared null and
void in the present case is Rs.3,54,12000/. It is further stated that suit is otherwise also
devoid of cause of action and liable to be dismissed being barred by Order 2 rule 2 CPC
because plaintiff had earlier filed the suit for permanent injunction and declaration, which was
pending in the court of Ms. Shaifali Sharma Ld. Civil Judge Rohini Court. Plaintiff could have
taken all the pleas and relief and prayer in that suit as said suit and present suit are based on
same facts and cause of action.
Factual background of the matter necessary for disposal of present application are that
plaintiff is admittedly daughter of defendant no.2. Beside plaintiff there are six other sisters of
plaintiff. Though plaintiff has filed the present suit only against her mother. Father of the
plaintiff and husband of defendant no.2 was recorded co owner of land comprised in survey
1/18(410), 19(612), 1/17(208), 20(517), 23(416), 24/1 (200) in Revenue Estate of village
Chand Pur, Delhi. It is stated that after the death of father of plaintiff, plaintiff alongwith her six
other sisters and defendant no.2 become co sharer in the above mentioned property.
However, defendant no.2 (mother of the plaintiff) allegedly sold the entire land having 1/3 rd
share in the suit property to defendant no.1 company on 31.01.2013 vide sale deed
02.02.2013. It is further stated in the plaint that said sale was done without the consent of the plaintiff and other sisters. Moreover, NOC has been obtained regarding sale of above said agricultural land from Tehsildar/ SDM Kanjhawala, for which objection was made by plaintiff. While stating that plaintiff and other six sisters had been looking after the above said agricultural land. Moreover, plaintiff stated to have also raised objection regarding mutation of the suit land which was also pending before Revenue Assistant. Hence the present suit was filed with the prayer for decree of declaration to declare the sale deed dated 02.02.2013 2 executed by defendant no.2 in favour of defendant no.1 to be null and void.
Defendant no.1 was proceeded exparte and defendant no.2 filed the WS taking various objection as to the maintainability of the present suit on the ground of Order 2 rule 2 CPC, suit being not properly valued for the purpose of court fees and jurisdiction. Defendant no.2 has also taken a specific plea that plaintiff is trying to mislead the court by concealing the Will executed by late Ram Chander (father of the plaintiff), in respect of property in question. It is pleaded that said will has been duly relied upon by plaintiff in the earlier suit filed for relief of injunction and declaration which was earlier pending in the court of Ms. Shaifali Sharma Ld. Civil Judge Norht Rohini Court, Delhi. While the case of the plaintiff has been denied on merits.
As is evident from the pleadings of the present case that plaintiff herein had earlier filed the suit against his mother as well as six sisters being suit no.100/13, as per the certified copy of that plaint of that suit, plaintiff has sought relief of permanent injunction and declaration to declare the NOC given regarding sale of land in question to be null and void. In that case also plaintiff has stated all those facts as are stated in the present case and has also stated other facts to state that NOC given by SDM/ Tehsildar regarding sale of suit land to be declared null and void. It is matter of record that saids suit was filed before ld Civil Judge North on 18.02.2013. It is also matter of record that during the pendency of that suit an application under Order 6 rule 17 CPC was moved for impleading M/s Lamber Road Infrastructure Pvt Ltd. (defendant no.1 herein) as party in that suit. Subsequently, on 15.1.2014 plaintiff stated to have withdrawn that suit on the ground that it has rendered infructous.
I have heard Ld. Counsel for the parties and have gone through the record carefully. It is argued by defendant no.2 that present suit is barred by Order 2 rule 2 CPC as relief as sought in the present suit could have been also sought in the earlier suit filed before Ld. Civil Judge North, because the facts and cause of action for filling that suit and of present one were identical. Moreover, he submits that nothing had happened subsequently to the filling of earlier suit for giving any separate cause of action to file the present suit. He in support of his arguments has relied upon the judgment of Hon'ble High Court of Delhi in J.D. Jain & Ors. Vs Sharma Associates & Ors. 167(2010) DLT 766, State Bank of India vs Gracure Pharmaceuticals Ltd. AIR 2014 SC 731 and Sona vs Raj Rani (2002),2013 DLT 44. It is further argued that present suit has been filed seeking to declare the sale deed dated 02.02.2013 to be null and void and admittedly that sale deed of Rs.3,54,12000/ therefore, this court does not have pecuniary jurisdiction to entertain the suit and plaintiff has failed to 3 evaluate the suit properly to avoid the court fees.
On the other hand, it is argued by Ld. Counsel for the plaintiff that since the present suit is based on separate cause of action. Moreover, earlier suit has already been withdrawn become infructous. Therefore, the provisions of Order 2 rule 2 CPC does not apply. It is argued that so far as question of court fees and jurisdiction is concerned, since the plaintiff is seeking only relief of declaration simplicitor therefore, this court has the pecuniary jurisdiction to entertain the suit.
Having heard the submissions and having gone through the record carefully. Before examining the rival contentions, extract the relevant provisions of Order 2 Rule 2 CPC for easy reference which reads as under:
"Suit to include the whole claim (1)Every suit shall include the whole of the claim which the plaintiff be entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. (2) Relinquishment of part of claim - Where a plaintiff omits to sue in respect of, or intentionally relinquishes , any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs. A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any reliefs so omitted."
The scope of the above mentioned provisions came up for consideration before Apex Court in several cases. The earlies one dealt by the Privy Council was reported in Nab Kumar Hazra V. Radhashyam Mahish, AIR 1931 PC 229 wherein the Privy Council held at that the plaintiff cannot be permitted to draw the defendant to court twice for the same cause by splitting up the claim and suing, in the first instance, in respect of a part of claim only. In Sidramappa v. Rajashetty and others (1970) 1 SCC 186 : (AIR 1970 SC 1059) Apex Court held that if the cause of action on the basis of which the previous suit was brought, does not form the foundation of subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the latter, namely, the subsequent suit, will not be barred by the rule contained in Order 2 Rule 2 CPC. In Gurbux Singh v. Bhoorlal, AIR 1964 SC 1810 the scope of the above mentioned provision was further explained as under:
"In order that a plea of a Bar under Order 2 Rule 2(3) CPC should succeed the defendant who raises the plea must make out; (i) that the second suit was in respect of the 4 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. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise 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 latter suit is based there would be no scope for the application of the bar."
In Sandeep Polymers (P) Ltd.'s case AIR 2007 SC 2656:, the above mentioned principles were reiterated and Apex Court held as under:
" Under Order 2 Rule 1 CPC which contains provisions of mandatory nature, the requirement is that the plaintiffs are duty bound to claim the entire relief. The suit has to be so framed as to afford in dispute and to prevent further litigation concerning them. Rule 2 further enjoins on the plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If the plaintiff omits to sue or intentionally relinquishes any portion of his claim, it is not permissible for him to sue in respect of the portion so omitted or relinquished afterwards."
Recently in State Bank of India V. Gracure Ltd. AIR 2014 SC 731, while discussing the case law on this issue has observed:
" The above mentioned decision categorically lay down the law that if a plaintiff is entitled to seek reliefs against the defendant in respect of the same cause of action, the plaintiff cannot split up the claim so as to omit one part to the claim and sue for the other. If the cause of action is same, the plaintiff has to place all his claims before the Court in one suit, as Order 2 Rule 2 CPC is based on the cardinal principle that defendant should not be vexed twice for the same cause. Order 2 Rule 2 CPC therefore requires the unity of all actions based on the same cause of action in one suit, it does not contemplate unity of distinct and separate cause of action. On the above mentioned legal principle, let us examine whether the High Court has correctly applied the legal principle in the instant case."
Being guided by the above discussed legal proposition, it would be clear that Order 2 rule 2 CPC would be attracted if subsequent suit is based on the substantially same facts and cause of action on which the earlier suit was filed. Reading the plaint of earlier suit filed by plaintiff being suit no.100/13, it would be clear that even in that case also plaintiff had challenged the purported sale of land in question and therefore, she raised the objection regarding issuance of NOC from the Revenue Authorities however, Revenue Authorities when 5 issued the NOC, that issuance of NOC was challenged in that suit. It would be clear from reading the para 9 of that plaint that plaintiff was well aware regarding sale of land in question on 01.01.2013 and was also aware about the execution of sale deed which has been challenged in the present suit. However, plaintiff while filling the earlier suit did not challenge the sale deed which she has been challenged in the present suit. Apparently, there has been unity of cause of action and prayer in the present suit could have also been made in the earlier suit. Plaintiff has failed to make prayer regarding declaration the sale deed to be null and void, in that suit to my mind is debarred by provisions of Order 2 rule 2 CPC to file subsequent suit. Moreover, it is also important to note that admittedly plaintiff is seeking the relief of declaration in respect of sale deed which is of sale consideration of Rs.3,54,12000/ apparently, in the simple declaration suit has been filed still for the purpose of pecuniary jurisdiction I do not find that this court has jurisdiction to entertain the present suit. Thus for the reasons discussed above, I find that suit of the plaintiff is barred in law and therefore, plaint is liable to be rejected. Consequently, application of the defendant no.2 under Order 7 rule 11 CPC stands allowed. File be consigned to record room.
Announced in the open court (SH. SHAILENDER MALIK) On 15.01.2015 (SCJRC, ROHINI COURTS, DELHI) 6 Suit No.436/13 15.01.2015 Pr. None.
Vide my separate order of even date, application of the defendant no.2, under Order 7 rule 11 CPC stands allowed. File be consigned to record room.
(SH. SHAILENDER MALIK) (SCJRC, N/W ROHINI COURTS, DELHI) 15.01.2015