Madras High Court
Dominic Ammal And Anr. vs Muthuswamy And Anr. on 17 January, 1986
Equivalent citations: (1987)1MLJ369
JUDGMENT Nainar Sundaram, J.
1. Defendants 1 and 3 in O.S. No. 81 of 1975 on the file of the District Munsif of Tiruppur are the appellants in this second appeal. The plaintiff laid the suit for declaration of title; for recovery of possession of the middle and the southern portion of the suit property and for future mesne profits. Apart from other contentions, the suit was resisted by defendants 1 and 3 on the ground that it is barred by Order 2, Rule 2 of the Code-of Civil Procedure Code, 1908 hereinafter referred to as the Code. This defence has got the basis on the following allegations. The plaintiff earlier laid a suit O.S. No. 247 of 1971 on the file of the District Munsif of Tiruppur for declaration of title and for injunction. Defendants 1 and 2 in the present suit were parties in the earlier suit. There were other defendants in the earlier suit. The third defendant in the present suit was not a party to the earlier suit. The suit property consists of three portions, northern portion, middle portion and southern portion. In the earlier suit, the plaintiff succeeded in getting a declaration of title for the entirety of the suit property but got the relief of injunction only in respect of the nothern portion. The finding in the earlier suit was that the plaintiff is out of possession in respect of the middle and southern portions. Hence the relief of injunction was denied to the plaintiff in the earlier suit in respect of the middle and the southern portions. The plaintiff having failed to claim the relief of recovery of possession in respect of the middle and the southern portions in the earlier suit, the present suit for such a relief is barred under Order 2, Rule 2 of the Code. This plea of defendants 1 and 3 has not found acceptance at the hands of the two Courts below. In this second appeal directed against the judgment and decree of the lower appellate Court this Court thought fit to formulate the following substantial question of law at the time of its admission:
Whether the conclusion arrived at by the Court below that the present claim is not barred under Order 2, Rule 2, Civil Procedure Code is correct when in paragraph 17 of the judgment in O.S. No. 247 of 1971 on the file of the District Munsif of Tiruppur, the finding is in respect of middle and southern portion and the present suit is also filed for the middle and southern portion of the building?
2. Mr. T.R. Rajagopalan, Learned Counsel appearing for defendants 1 and 3 appellants herein, expatiating the substantial question of law, would submit that the finding in the earlier suit is that the plaintiff was not in possession of the entire suit property but only the northern portion even at the time, of the earlier suit and the plaintiff ought to have asked for the relief of recovery of possession even in respect of the middle and the southern portions in the earlier suit and having failed to do so, Order 2, Rule 2 of the Code will come in his way and the present suit has got to be discountenanced. Learned Counsel places reliance on the pronouncement of Ratnam, J., in Cnanaprakasam v. Sabasthi Ammal (1980) 1 M.L.J. 182 : 92 L.W. 672.
3. As against the above contention of the Learned Counsel for defendants 1 and 3, Mr. G.M. Nathan, Learned Counsel appearing for the plaintiff-the first respondent herein, would submit that the earlier suit was filed on the basis that the plaintiff was in possession and hence he could only ask for the relief of injunction and he could not ask for the relief for recovery of possession and the present suit for recovery of possession on the basis that the plaintiff is out of possession cannot come within the mischief of Order 2, Rule 2 of the Code.
4. Before I dwell upon the case law cited before me by both the counsel, it is better that I first advert to the express terms of Order 2, Rule 2 of the Code and they run as follows:
ORDER 2:
Rule 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 part of claim-Where a plaintiff orbits 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 plaintiff 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 purpose 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.
5. In Jibunti Nath Khan v. Shib Nath Chuckerbutty (1882) I.L.R. 8 Cal. 819, a Bench of the High Court of Calcutta consisting of White and Macpherson, JJ., held that where a previous suit for a declaration of title and confirmation of possession of certain land has been dismissed on the ground that the plaintiff was not in possession at the time of filing the suit, a subsequent suit on the same title for recovery of possession of the land is not barred under Section 43 of the Code of Civil Procedure, 1877. In the later suit, though the plaintiff set forth the same title, he complained' that the defendants and those through whom they claim, had on the strength of the proceedings under the Criminal Procedure Code and the Registration Act sued and obtained decrees against some of the tenants of the estate and that there had consequently been an active disturbance of his possession which entitled him to apply for a decree which shall not only declare his title but also award him possession. The Bench opined that the cause of action in the later suit was distinct from that in the first suit. How the Bench repelled the contention that the Court must take note of the facts upon the finding of the Court in the earlier suit is well brought out in the following passage of the judgment of White, J., speaking for the Bench:
Rut Mr. Evens contends that the Court must not confine itself to the claim made in the two suits in judging whether the 43rd section of the Code has been infringed, but ought to travel outside the statements contained in the plaint and see how the facts stood upon the finding of the Court in the first suit. The argument is this, that inasmuch as the cardinal allegation was disproved upon which was grounded the plaintiff's title to the limited relief prayed in his first suit, and inasmuch as the Subordinate Judge held the plaintiff not to be in possession at that date, it follows that the plaintiff ought in his first suit, to have brought a suit praying not only for a declaration of title but also for an award of possession, and that not having done so he has split his remedies. I cannot agree that this is the correct test. The question to be determined turns not upon what was the proper suit for the plaintiff to have brought, or the proper remedies for him to have applied upon having regard to the facts as found upon the trial of the first suit, but upon whether the causes of action in two suits are one and the same, or are distinct.
6. In Bande Ali v. Gokul Misir (1911) I.L.R. 34 All. 172, Richards, C.J. and Banerji, J., dealing with Section 43 of the Code of Civil Procedure, 1882, opined that the dismissal of a suit for an injunction in respect of certain property upon the ground that the plaintiff has not proved his possession of the property in respect of which the injunction is sought is no bar to a subsequent suit for possession of the same property.
7. In Siliman Sahib v. Bontala Haman Sahib 25 M.L.J. 125 : I.L.R. 38 Mad. 247 : A.I.R. 1915 Mad. 888, a Bench of this Court consisting of Saukaran Nair and Oldfield, JJ., dealt with a case where the earlier suit was laid for a declaration of title and that suit was dismissed because the plaintiffs were found entitled to possession. The Bench stated that the position of law has been settled by numerous decisions of this Court on the point, and the proposition stood summed up by the Bench as follows:
The title alleged by the plaintiffs in both the suits is, undoubtedly, the same. The first suit for declaration was brought on the ground that it was necessary to remove some cloud on the plaintiff's title. The facts which it is necessary for a plaintiff to allege in a suit for declaration are not the same as those in a claim for possession. In the declaratory suit there was no interference with possession, and it was not necessary to allege the same. In the suit before us, title and deprivation of possession are alleged. The causes of action in the two suits are different. To determine whether the suit is barred and the causes of action is the same, we have to look to the plaint or the facts relied upon to constitute the causes of action in the first suit, and if on those facts it was open to him to ask for the relief prayed for in the second suit, the latter would be barred. It is only when the cause of action is the same that Order 2, Rr.2 and 3 bar the suit.
8. In re, Chenchia 36 M.L.J. 296 : A.I.R. 1919 Mad. 45(2) : I.L.R. 42 Mad. 561, Spencer and Krishnan, JJ., held:
A suit for declaration of title to and possession of property will not be barred under Order 2, Rule 2, by reason of the dismissal of a previous suit for declaration and injunction restraining defendant from disturbing plaintiff's possession, on account of the failure of the plaintiff to prove possession.
The Bench followed the pronouncement of the Bench of the High Court of Calcutta in Jibunti Nath Khan v. Shib Nath Chuckerbutty (1882) I.L.R. 8 Cal. 819.
9. In Basanna v. Appa Rao A.I.R. 1959 Mys. 227, a Bench of the High Court of Mysore consisting of Ahmed AH Khan and Mir Iqbal Hussain, JJ., considered the implications of Order 2, Rule 2 of the Code in the context of a case where the first suit of the plaintiff was for a declaration of title as the adopted son of B and in that suit he did not pray for possession of properties as he alleged he was already in possession of the same and in the subsequent suit, the plaintiff prayed for possession of the properties on the ground that the Court in the previous suit had held that he was not in possession of the suit properties though he was the adopted son of B. To a very great extent, the available case law was considered by the Bench of the High Court of Mysore including the pronouncement of the Bench of this Court in Siliman Sahib v. Bontala Sahib 25 M.L.J. 125 : A.I.R. 1915 Mad. 888, and it was held that the causes of action of the two suits were distinct; the first suit had proceeded on the ground that the plaintiff was in possession of the property while the second suit was for possession of the suit properties; and in such circumstances, the plaintiff's suit was not barred or hit by the provisions of Order 2, Rule 2 of the Code.
10. Mr. T.R. Rajagopalan, Learned Counsel for defendants 1 and 3, would stress the aspect that if the finding in the earlier suit that the plaintiff was out of possession of the middle and the southern portions even on the date of the earlier suit is taken note of, it must be held that the plaintiff, had even at the time of the earlier suit, a cause of action to seek recovery of possession and since he omitted to seek said relief, Order 2, Rule 2 of the Code will come in his way. It must be pointed out that the plaint in the earlier suit has not been exhibited in the present case. It is the well-settled rule that a defendant who puts forth a plea of bar of a suit under Order 2, Rule 2 of the Code must not only plead but also place before the Court the best evidence to support such a plea. This was countenanced by Rajagopala Iyengar, J., as he then was in Rangaswamy Goundor v. Rangiah Gounder , in the following terms:
When a party takes a defence like an objection under Order 2, Rule 2, C.P.C. It is essential for the Court to know what exactly was the cause of action which was alleged in the previous action in Order that he might be in a position to appreciate whether the cause of action alleged in the second suit is identical with the one that was the subject-matter of the previous action. In the absence of these pleadings, the defendant ought not to be permitted to raise the plea of bar of a suit under Order 2, Rule 2.
11. In Gurbux Singh v. Bhooralal , the Supreme Court, after adverting to the conditions to be satisfied for a party to raise successfully a plea of bar suit under Order 2, Rule 2 of the Code, observed as follows:
From this analysis it would be seen that the defendant would have to establish primiarily and to start with, the precise cause of action upon which the previous suit was filed, for, unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the Bar.
12. But I am not declining an opportunity to the Learned Counsel for defendants 1 and 3 to urge this point on the simple ground that the plaint in the earlier suit has not been exhibited on the side of defendants 1 and 3 to substantiate this plea of theirs. I find that the judgment in the earlier suit has been marked as Ex. A1 and from there, the relevant averments in the plaint in the earlier suit could be gathered. The plaintiff has asserted that he is in possession and enjoyment of the property; the defendants wore giving out that they would take forcible possession of the property; they had cast a cloud on the title of the plaintiff and were trying to dispossess the plaintiff of the property and hence the plaintiff was obliged to file the suit for declaration of title and for injunction. Thus we find that the plaintiff laid the earlier suit on the clear basis that he was in possession and there was a threat of dispossession. On this plea, the question is, could the plaintiff have' asked for the relief of possession? The obvious answer is, he could not have. As per the allegations projected in the earlier suit, the plaintiff could not be stated to have had a cause of action to seek for the relief of recovery of possession. Order 2, Rule 2 of the Code speaks about "cause of action". Even as early as in M.D. Hafiz v. Mirza M.D. Zakariya 42 M.L.J. 248 : A.I.R. 1922 P.C. 23 : 15 L.W. 377, their Lordships of the Privy Council defined cause of action referred to in Order 2, Rule 2 of the Code thus:
The cause of action is the cause of action which gives occasion to and forms the foundation of the suit and if that cause enables a man 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.
13. To find out whether the two causes of action are one and the same, Courts were and are having recourse to the well known tests laid down in Md. Khalil Khan v. Mahbub Ali Mian (1948) 2 M.L.J. 318 : 75 I.A. 121 : 61 L.W. 686 : A.I.R. 1949 P.C. 78 at 86, which runs as follows:
(1) The correct test in cases falling under Order 2, Rule 2 is "whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit." Moonsee Buziloor Ruheem v. Shunsunnissa Begum (1867) 11 M.I.A. 551.
(2) The cause of action means every fact which will be necessary for the plaintiff to prove if tranversed in Order to support his right to the judgment. Read v. Brown (1889) 22 Q.B.D. 128.
(3) If the evidence to support the two claims is different, then the causes of action are also different. Brunsden v. Humphrey (1884) 14 Q.B.D. 141.
(4) The causes of action in the two suits may be considered to be the same if in substance they are identical. Brunsden v. Humphrey (1884) 14 Q.B.D. 141.
(5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour. Musschandkour v. Partab Singh (1887-88) 15 I.A. 156 : I.L.R. 16 Cal. 98. This observation was made by Lord Watson in a case under Section 43 of the Act of 1882 (corresponding Order 2, Rule 2) where plaintiff made various claims in the same suit.
14. In, Suraj Rattan v. Azamabad Tea Co. , the tests adopted by the Judicial Committee for determining the identity of the causes of action in two suits in Mohammed Khalil Khan v. Mahbub Ali Mian (1948) 2 M.L.J. 318 : 75 I.A. 121 : 61 L.W. 686 A.I.R. 1949 P.C. 78, were approved as sound and expressing correctly the proper interpretation of the provision.
15. In Sidramappa v. Rajashetty , the ratio in Mohd. Hafiz v. Mohd. Zakaria 42 M.L.J 248 : 49 I.A. 9 : A.I.R. 1922 P.C. 23 : 15 L.W. 377, was adverted to and on the facts of the case dealt with by the Supreme Court, it was observed as follows:
As such 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.
16. The principles were also taken note of by a Bench consisting of Ramaprasada Rao, J., as he then was, and Ratnavel Pandian, J., in Ramakrishnan v. Corporation of Madras A.I.R.1976 Mad. 128 : 88 L.W. 712, and the Bench adopted the ratio that the cause of action on which the earlier suit and the latter suit are based should be the same and the foundation for both the suits should be the same and similar.
17. Cause of action has got a factual protency for the claims of a plaintiff as a foundation for the relief which the plaintiff claims, he puts forth and he is bound to put forth the bundle of facts which go to constitute the cause of action for the suit. The Court is not bound to find out the cause of action for the plaintiff from the facts pleaded by the defendant. The moot question that should be posed for the purpose of Order 2, Rule 2 of the Code is, "Could and should the plaintiff have asked for the particular relief or reliefs on the basis of the bundle of facts which go to constitute the cause of action for the earlier suit which he has projected therein?". As pointed out by the Privy Council, the cause of action has no relation whatever to the defence that may be set up by the defendant. The ultimate finding rendered by the Court in the earlier suit is also not decisive to find out as to whether a plaintiff omitted to sue for a particular relief on the cause of action which he has disclosed in his suit. If, on the basis of the allegations in the plaint in the first suit, which go to form the cause of action for that suit, the plaintiff ought to have asked for particular relief or reliefs and if he omits to ask for them, he will be precluded from filing a subsequent suit for such reliefs. It will not be proper to trace beyond the plaint allegations to find out what was the cause of action for the first suit. A party could have very many rights and claims to ask for. The Code does not constrain the party to come to Court asking for all such rights and claims. But if the party comes to Court asking for particular relief or reliefs, on the basis of specified allegations, and the very same allegations do warrant the asking of more reliefs than what have been asked for the omission of the party to ask for them in the first suit which he laid, will preclude him from asking for such omitted reliefs in a subsequent suit. What could not be asked for on the disclosed allegations cannot come within the mischief of the rule in Order 2, Rule 2 of the Code. Neither the defendant nor the Court could make or give a cause of action for the plaintiff. The plaint allegations determine the cause of action for the plaintiff. The pronouncements are categoric when they countenance that the cause of action refers entirely to the grounds set out in the plaint as the cause of action or in other words, to the media or the basis upon which the plaintiff asks the Court to arrive at a conclusion in his favour. One useful test to find out as to whether the cause of action in the later suit is the same as that in the earlier suit, is to see whether the same evidence will sustain both suits; and due regard must be given to the facts alleged in the two suits and not to the facts as found by the Court in the earlier suit.
18. It has been already noted that in the earlier suit, the plaint proceeded on the basis that the plaintiff was in possession and there was only a threat of dispossession and the plaintiff could not have asked for the relief of recovery of possession on the basis of those allegations. The legal position enunciated and countenanced by the pronouncements of the highest Court in the land as well as by more than one pronouncement of Benches of this Court being what it is, I do not think the present plea of defendants 1 and 3 that Order 2, Rule 2 of the Code will stand in the way of the plaintiff seeking the relief of recovery of possession in the present suit should be taken note of to non-suit the plaintiff.
19. Mr. T.R. Rajagopalan, Learned Counsel for defendants 1 and 3, would draw my attention to a pronouncement of Benson and Bashyman Ayyangar, JJ. in Ramaswami Ayyar v. Vythinatha Ayyar 13 M.L.J. 448 : (1903) I.L.R. 26 Mad. 760. On going through the discussion of the questions dealt with by the Bench. I do not find that this pronouncement supports the case of defendants 1 and 3 in the present case.
20. Coming to the pronouncement of Ratnam, J., in Gnanaprakasam v. Sabasthi Ammal , I find that the facts dealt with by the learned Judge are different from the facts of the present case. There, in the earlier suit the plaint proceeded on the basis that the plaintiff was out of possession; but it was averred that she must have the obstacle with regard to the title removed before she could claim the right of possession with mesne profits. In that context, the learned Judge held that the legal representatives of the deceased plaintiff in the earlier suit cannot maintain the later suit for recovery of possession and Order 2, Rule 2 of the Code will certainly form a bar for the later suit.
21. For all these reasons, this second appeal fails and the same is dismissed. No costs.