Amit Roy vs H.H. Jyothendra Sinhji Vikramsinhji

B.S. Patil, J.—This revision petition is filed challenging dismissal of the application filed by the defendant/revision petitioner under Order VII Rule 11(d) read with Section 151 CPC seeking rejection of the plaint as barred by law under Order II Rule 2 CPC.

Plaintiff - respondent herein filed O.S. No. 1147/2001 on 13.02.2001 seeking a decree of permanent injunction against the revision petitioner/defendant. Relief sought in the said plaint reads as under:

"issue a decree of permanent injunction against the defendant or his agent or anybody claiming under him from interfering with the peaceful possession and enjoyment of the schedule property."

The suit schedule property is a residential premise bearing No. 7 situated within Ward No. 92, Jaymahal Road, Bengaluru - 46, with specified boundaries. In paragraph 11 of the plaint, plaintiff alleged that defendant had removed the name plate of the plaintiff on 27.01.2001 and highhandedly painted his name on the wall and therefore, plaintiff approached the jurisdictional police, who assured him that they would call the defendant and try to resolve the dispute; defendant went on dilly dallying with the police, gained some time and on 01.02.2001 filed a suit in the City Civil Court, Bengaluru, in O.S. No. 886/2001; on 11.02.2001 and 12.02.2001, defendant came supported by some supporters and threatened the plaintiff with serious consequences if he did not vacate the premises on his own; when the plaintiff again approached the Police, they told the plaintiff that the matter was purely a dispute of civil nature and he could approach the Civil Court, if so desired. Thus, alleging that intention of the defendant was clear and interference was unbearable and if not protected, his valuable rights would be affected, he filed the suit.

It is thus clear that in the suit O.S. No. 1147/2001 which was filed earlier, plaintiff sought for a decree of permanent injunction alleging that he was in actual possession and the defendant was trying to dispossess him. This suit was withdrawn on 23.02.2001. Though plaintiff sought for liberty to file a fresh suit, the Court below dismissed the suit as withdrawn without granting liberty, but observing that if a fresh cause of action arose the plaintiff could file a fresh suit. Thereafter, plaintiff has filed the present suit in O.S. No. 1963/2002 seeking following reliefs:

"a) a decree directing the defendant to quit and deliver vacant possession of the schedule property to the plaintiff;

b) a decree directing the defendant to pay to the plaintiff by way of damages a sum of Rs. 25,000/- per month from the date of the suit till the date he actually hands over vacant possession of the suit schedule property to the plaintiff;

c) pass any other appropriate orders which the Court deems fit, having regard to the facts and circumstances of the case."

In both the suits, the property is the same and parties are also same.

Defendant filed application under Order VII Rule 11(d) CPC seeking rejection of the plaint contending inter alia that the second suit filed in O.S. No. 1963/2002 was barred under the Order II Rule 2 CPC.

It is the contention of the learned counsel for the revision petitioner that most of the averments in both the suits are same. Indeed, even the cause of action is same. Plaintiff, by making false averments and with fraudulent intention, has filed the second suit seeking relief of possession though he was not, in fact, in possession of the property even as on the date the first suit was filed and thus, he had tried to overcome the bar under Order II Rule 2 by camouflaging his pleadings, therefore, plaint was liable to be rejected. He is critical of the findings recorded by the Court below stating that relevant aspects have not been taken into consideration by the Trial Court. He has also contended that suit document viz., sale deed on which plaintiff based his right has not been produced and that even the General Power of Attorney which allegedly authorized him to file the suit and prosecute the same for and on behalf of the plaintiff is also not produced, and therefore, the plaint was liable to be rejected. In support of his contention, he has placed reliance on the following judgments:

"(i) Virgo Industries (Eng.) P. Ltd. Vs. Venturetech Solutions P. Ltd.,

(ii) The Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman Vs. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee,

(iii) Deepa Dua Vs. Tejinder Kumar Muteneja, ."

Learned Counsel appearing for the respondent supports the findings recorded by the court below.

Upon hearing the learned Counsel for both parties and on consideration of the entire materials on record, I find that the first suit was filed for permanent injunction contending that plaintiff was in possession of the property and that there was threat held out by the defendant of his dispossession. Based on the apprehended dispossession, the earlier suit was filed seeking a decree of permanent injunction. Plaintiff has withdrawn the suit. He had sought for liberty to file a fresh suit. While withdrawing the suit, he has stated that at the time when he filed the suit, there was threat of dispossession, but as there was no such threat existing, he intended to withdraw the suit with liberty to file a fresh suit. The court below has dismissed the suit as withdrawn without granting liberty, but making it clear that on the same cause of action another suit cannot be filed for the same relief, but if a fresh cause of action arises, he could file a fresh suit.

In the second suit filed, plaintiff has sought for possession of the property. As is evident from the reliefs sought, he has not sought for the decree of permanent injunction, but has sought for possession, apart from seeking declaration of title.

The contention of the learned Counsel for revision petitioner is, that the averments made in the second plaint are similar to the averments made in the first plaint and that with regard to the relief of possession, plaintiff has camouflaged his relief only in order to circumvent the provisions contained in Order II Rule 2 CPC and has come up with a plea that he had been dispossessed. According to the revision petitioner, the conduct of the plaintiff in filing the second suit reflects his fraudulent design to subject the defendant to another set of litigation by withdrawing the earlier suit, particularly after the defendant had filed O.S. No. 886/2001 and had obtained an order of temporary injunction to the knowledge of the plaintiff.

It has to be noticed that when the court is required to consider the question regarding rejection of plaint on the ground that it is barred by law, what is required to be examined is the averments made in the plaint. The defence taken in the written statement would be immaterial. The defendant might have a good case and may ultimately establish during the course of trial that the plaintiff had come up with false, baseless and fraudulent plea by suppressing material facts and by taking up false and baseless plea. But, that would be matter of trial.

In the instant case, what is to be examined is whether on the basis of the pleadings of the plaintiff in O.S. No. 1963/2002, can it be said that it was barred by any law. A perusal of the plaint does not lead to such conclusion. The Trial Court has considered this aspect of the matter in coming to the conclusion that as per the plaint averments in O.S. No. 1147/2001, the cause of action had arisen when the name plate of the plaintiff was removed and the defendant painted his name on the wall and when the defendant threatened the plaintiff of dispossession. Whereas, for the present suit, as alleged in the plaint, the cause of action arose when the defendant became liable to hand over vacant possession of the suit property and when the defendant replied to the legal notice issued by the plaintiff refusing to surrender the vacant possession of the property.

The court below has rightly found that although original cause of action pleaded in both the cases are same, having due regard to the nature of the relief sought in both the suits, it could not be said that the second suit was hit by the provisions contained under Order II Rule 2 CPC. This reasoning of the Trial Court cannot be termed as illegal and perverse.

Facts involved in the case of The Church of Christ Charitable Trust and Educational Charitable Society, represented by its Chairman Vs. Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, , disclose that the plaintiff had earlier filed a suit for permanent injunction to protect his possession which was based on an agreement to sell, whereunder he was put in possession. He had not sought for the relief of specific performance of the agreement to sell, but had sought for permission to file a fresh suit in respect of the said relief which had been negatived. Subsequently, he instituted another suit for specific performance even and in the facts and circumstances of the said case, the Apex Court found that plaintiff had the cause of action for filing the suit for specific performance even as on the date when he chose to file a bare suit for permanent injunction, and therefore, the second suit filed for specific performance was hit by Order II Rule 2 CPC. As already adverted to above, the facts in this case are totally different, and therefore, this judgment has no application to the facts of the present case.

Similarly, in the case of Virgo Industries (Eng.) P. Ltd. Vs. Venturetech Solutions P. Ltd., , the Apex Court has laid down the principle that omission to claim one of the many reliefs that could have been claimed in the earlier suit would attract the bar of maintainability of the second suit, when cause of action for the later suit was the same as that of the first suit unless leave of the court was obtained in the first suit. To the same effect is the judgment of the Delhi High Court wherein in the second suit filed, defendant had filed an application for rejection of the plaint on the ground that in the earlier suit plaintiff had sought for a decree of permanent injunction in his favour to restrain the defendants from interfering with his possession etc., and subsequently he had filed a suit seeking partition along with declaration and also for permanent injunction, it was held that having regard to the plea taken in the plaint and the reliefs sought, in both the cases relief of injunction had been sought and in the earlier case, plaintiff could have sought for decree of partition as well, the second suit was held to have been barred under Order II Rule 2 CPC.

The legal position as enunciated in the aforementioned decision cannot at all be disputed. However, it all depends on the facts and circumstances of each case. In the instant case, by looking at the plaint averments, the court below has held that the cause of action for both the suits are different. If the defendant wants to establish by contending that cause of action for both the suits is similar, but the plaintiff has camouflaged the pleadings in order to defeat the provisions under Order II Rule 2 CPC and that he has come up by misrepresenting the facts and has made certain fraudulent allegations falsely, it would be a matter of evidence. The court has to necessarily deal with such allegations by framing appropriate issues.

Suffice to observe that on the face of the pleadings in the plaint, it can only be said that having regard to the relief sought in both the suits which are different and having regard to the narration of the cause of action for both the suits, it cannot be said that by mere perusal of the plaint averments it could be concluded that the second suit was hit by the provisions of Order II Rule 2 CPC. Therefore, reserving liberty to the defendant to urge the very same ground during trial and making it clear that the findings recorded shall not influence the court below in deciding the suit on merits, this petition deserves to be dismissed.

In addition, it has to be also made clear that as regards non-production of the original sale deed, which is the document of title as claimed by the plaintiff, admittedly, during the course of evidence, plaintiff has already produced the certified copy of the sale deed. It is well established that if the original is lost, the transaction can be proved by producing secondary evidence. It is submitted at the bar that the plaintiff has already produced the document by way of certified copy of the sale deed and has taken up a plea that the power of attorney and the original sale deed have been lost. What is the effect of this defence will have to be examined by the Trial Court. It is not necessary to pronounce on the same.

For the reasons stated above, this revision petition is dismissed making it clear that the observations made herein shall not influence the court below in adjudicating the suit on merits. It is open to the defendant to request the court for framing an issue with regard to the question regarding maintainability of the second suit in view of the bar contained under Order II Rule 2 CPC.