Akshoy Kumar Ghosh vs Menoka Bala Dasi

P.N. Mookerjee, J.—This appeal is by the Defendant and it arises out of a suit for declaration of title, confirmation of possession and permanent injunction. The suit was contested and the material defence was a denial of the Plaintiffs'' title and a plea of bar under Order 2, Rule 2 of the Code of Civil Procedure, cause of an earlier suit between the parties, brought by the Plaintiffs against the present Defendant for permanent injunction u/s 54 of the Specific Relief Act, which ended in dismissal, at the appellate stage, with an observation from the appellate Court on that occasion, apparently leaving the question of title to be decided in a properly framed proceeding for the purpose. On the merits, both the Courts below have agreed that the Plaintiffs have proved their title, but the learned Munsif held that the Plaintiffs'' present suit was barred under Order 2, Rule 2 of the CPC by reason of the above previous appellate decision, notwithstanding the reservation, sought to be made by the appellate Court on that occasion by its observation, referred to hereinbefore, which was ineffective or futile in law.

The learned Subordinate Judge, who heard the appeal in the Court of appeal below, has taken the contrary view on this point under Order 2, Rule 2 of the Code and has held that, even apart from the said observation of the appellate Court on the earlier occasion, the present suit would not be barred by Order 2, Rule 2 of the CPC by reason of the dismissal of the Plaintiffs'' previous suit, as aforesaid.

It is this point, which really arises for consideration in this appeal and it is this point, which, alone, is urged in support of this appeal, as, obviously, on the merits, the matter is concluded by concurrent findings of fact in favour of the Plaintiffs on the question of their title by the two Courts below. It is somewhat strange that, although the plea in bar under Order 2, Rule 2 of the Code was raised and was put forward for defeating the Plaintiffs'' claim, the plaint of the previous suit, which was the foundation of the same and which really contained the cause of action for the said suit, was not put in evidence by the Defendant, who was relying upon the said plea of bar. Before me, Mr. Banerjee, appearing for the Defendant Appellant, realised and recognised this defect, but, as he had a certified copy of the said plaint with him, I looked into the same to ascertain whether the Defendant could have any real grievance in the matter, and it seemed to me that the said plaint was more against the Defendant and more in favour of the Plaintiffs on the above point under Order 2, Rule 2 of the Code. That plaint, evidently, proceeded upon an admitted title of the Plaintiffs and the only cause of action for the said earlier suit was stated there to be a threat of dispossession -unlawful dispossession-by the Defendant, the Plaintiffs title, according to the averments, made therein, not being disputed but admitted by him (Defendant). It is somewhat strange, further, that the learned appellate Judge, on the earlier occasion, read, in that plaint, a controversy about the Plaintiffs'' title. Where and how he found it, it is difficult to understand. But, possibly, because of that observation of the learned appellate Judge on the earlier occasion, the Defendant was emboldened to raise here the above plea under Order 2, Rule 2 of the Code. As I have said, however, on the plaint in question, the cause of action was simply an alleged threat of dispossession-unlawful dispossession-as the Plaintiffs'' title was not stated to be disputed on the said occasion, and, as it is well known that, for purposes of Order 2, Rule 2 of the Code, it is the immediate cause of action, giving occasion for and forming the foundation of, the previous suit, which, alone, is material [vide, in this connection, The (1885) ILR 8 362 (Privy Council) , and Md. Hafiz v. Mirza Muhammad Zakariya (1921) 26 C.W.N. 297 (P.C.) and Mohammad Khalil Khan v. Mahbub Ali Mian, (1948) L.R. 75 I.A. 121 ] the Court should not look into anything else or beyond the said immediate cause of action, so far as the said earlier or previous suit is concerned. That cause of action, however, was not proved on the said earlier occasion and it was held to be non-existent then or, in other words, no threat of dispossession was there at the time. In the circumstances, I am of opinion that the decision of the learned Subordinate Judge on the present occasion should be affirmed on the simple ground that, in the instant case, Order 2, Rule 2 of the Code will have no application-the present cause of action, resting on dispute as to title and a threat to Plaintiffs'' possession, which is real and existent, not having arisen and not having been in existence at the time of the aforesaid previous suit. The instant case is, thus, one of a subsequent and different cause of action, to which Order 2, Rule 2 of the Code can have no manner of application. The plea of bar under Order 2, Rule 2 of the CPC was, accordingly, rightly overruled by the learned Subordinate Judge, though on different grounds.

The same, indeed, would also be the conclusion, even if the plaint in the aforesaid earlier suit be read, as it was read by the learned appellate Judge on the said earlier occasion, as containing also a dispute as to title so that the cause of action, as stated in the plaint for the said earlier suit, would be a dispute as to title and a threat of dispossession, as, admittedly, the suit was dismissed on the ground of want or non-existence of cause of action and/or defect of form, which, obviously, even apart from the express liberty, reserved to the Plaintiff on that occasion, would leave untouched or unaffected the present suit, brought on the subsequently arising cause of action and/or in a proper or appropriate form of maintainability. Indeed, the instant case, from this point of view, would be substantially covered by the decision of the Madras High Court in Aiyanar Raja alias Shola Raja v. K.V. Alagar Raja (1917) 52 I.C. 434, and would, thus, be protected, it being remembered, first, that a purely declaratory suit would not, either now or on the said earlier occasion, have been maintainable in law, and, secondly, that the immediate or effective cause of action, or the relevant causes of action for our present purpose, that is, under Order 2, Rule 2 of the Code, namely, the threat of dispossession, was found to be non-existent at the time of the said previous suit and has now been found to have arisen, that is, has arisen subsequently. At the most, on the so-called dispute as to title, a suit for declaration of title and confirmation of possession could or might have been properly brought, but, then, that would be different from the present ripe suit for declaration of title, confirmation of possession and permanent injunction and the cause of action for the two suits would not have been the same, as the cause of action for permanent injunction, which is an essential and integral part of the present suit, is a subsequent and, therefore, different cause of action.

In the above view, it is unnecessary for me to express any opinion on the other question on this part of the case, namely, reservation of liberty to the Plaintiff on the earlier occasion by the Appellate Court to institute a suit of the present type upon the view, as already seen, that the suit, then brought, was defective in form without a prayer for declaration of title and was liable to be dismissed, inter alia, on that ground. I may, however, point out that the cases, cited before the learned Subordinate Judge, namely, Fateh Singh v. Jagannath Bakhsh Singh (1924) 29 C.W.N. 749 (P.C.) and Sukh Lal v. Bhikhi ILR (1888) All. 187 (F.B.), for the proposition that the aforesaid reservation would have no legal effect may well be distinguishable on their own facts and on the legal aspect, there under consideration, namely, whether the Court, by its observation, can nullify the effect of clear constructive res judicata.

In the premises, this appeal will fail and it will be dismissed.

There will, however, be no order as to costs in this Court.