Haridas Das vs Usha Rani Banik and Others

J.N. Sarma, J.—This Civil Revision has been filed challenging the legality and validity of the order dated 17.2.93 passed by the Learned District Judge, Karimganj in Title Suit No. 13/86 (Previous Title Suit No. 1 of 1986). By the impugned order, the Learned District Judge held that the suit is not maintainable and it is barred under Order 2 Rule 2 of the CPC and in support of this contention, the Learned Judge in his judgment has relied on a number of cases but the Learned Judge failed to consider the pleadings and the prayers made in the two suits.

2 Earlier there was a suit being Title Suit No. 201/85 and that was dismissed for default and nothing was decided on merit.

Be that as it may, in that suit, the prayers made are as follows:

i) For confirmation of the Plaintiff''s possession over the land described in Schedule below with houses thereon.

ii) For permanent injunction restraining the Defendants from dispossessing the Plaintiff from the land described in Schedule II below i.e. suit land and from selling the land to any third, party.

There is also a remark at the bottom of the plaint which interalia states as follows:

The Plaintiff reserve the right to institute suit against the Defendant to get kabala from him for 3 justi/rekh of land as described in scheduled below as per said contract dated 19.8.82.

Thereafter, the present suit was filed being Title Suit No. 1/86 for specific performance of contract and the prayers made in that suit are as follows:

a) For specific performance of the agreement for sale be passed requiring the Defendant to execute a proper deed of sale (kabala) in favour of the Plaintiff in respect of the suit land mentioned in the schedule below on accepting the remaining consideration money of RS. 1000/- (Rupees one thousand only) which will be deposited by the Plaintiff in this Court at its order to do so in the name of the Defendant.

b) In case of failure of the Defendant to do so, the necessary sale deed (kabala) be executed and registered according to the provisions of Order 21, Rule 34 of the Code of Civil procedure.

c) For confirmation of possession of the suit land in favour of the Plaintiff (i.e. a decree confirming the possession may kindly be passed in favour of the Plaintiff so that he is not put out of possession of the suit by force illegally).

d) For awarding full cost of the suit.

So, it is evident that the reliefs claimed in both the suits are entirely different. Order 2 Rule 2 of the CPC is based on the salutary principle that a Defendant or Defendants should not be twice vexed for the same cause by splitting the claim and the reliefs. To preclude the Plaintiff from so doing it is provided that if he omits any pan of the claim or fails to claim a remedy available to him in respect of that cause ''of action he will thereafter be precluded from so doing in any subsequent litigation that he may commence, if he has not obtained the prior permission of the court. But the rule docs not preclude a second suit based on a distinct cause of action. Doctrine of res judicata differs from the rule embodied in Order 2, Rule 2, in that, the former places emphasis on the Plaintiff''s duty to exhaust all available grounds in support of his claim while the latter requires the Plaintiff to claim all reliefs emanating from the same cause of action. But if the cause of action are different and subsequent suit was based on a distinct cause of action, than the former suit, the suit shall not be barred under Order 2 Rule 2, No doubt, in both the suits, the dale of cause of action as mentioned above is 14.7.85 but that is not the relevant to determine the question in as much as cause of action has not been defined in the Code of Civil Procedure. Cause of action means a bundle of facts alleged by the Plaintiff for determining his right.

Before the principles contained in these provision under Order 2 Rule 2 can be applied three conditions must be satisfied:

i) The earlier suit and the second suit must arise in the same cause of action.

ii) Two suits must be between the same party.

iii) Earlier suit must have been decided on merits. (See AIR 1977 P&H 1 Abnashi Singh and Ors. v. Smti. Lajwant Kaur and Anr.),

I respectfully agree with the view expressed by the Punjab and Haryana High : Court. Further, Privy Council as far back as on 1922 observed that if the pleadings; to support claim is different, the Plaintiff''s cause of action must also be deemed to be different (See 11 Mooy''s Indian Appeals 551 (M.B. Rahim v. S. Begum). When the cause of action in the previous suit and the suhsequent suit are different, the provision of Order 2 Rule 2 shall no apply.

In that view of the matter and on consideration of the materials on record and after hearing Sri N. Dhar, Learned Advocate for the Petitioner and Sri R.P. Sarma, Learned Advocate for the Respondent No. 2, this revision application is allowed and the order dated 17.2.93 passed by the Learned District Judge, Karimganj in T.S. No. 1/86 (re-numbered as 13/90) shall stand quashed. The Learned District Judge shall proceed with the suit, in accordance with law.