Piar Singh vs Sarju Singh and Another

Ms. Kamlesh Sharma, J.—In this appeal under Order 43 Rule 1 (u) of the CPC the appellant-defendant has assailed judgment dated 29.1.1991 passed by Additional District Judge, Mandi whereby the appeal of the respondent-plaintiff was accepted and judgment dated 21.9.1987of Sub Judge 1st Class, Sarkaghal, District Mandi was set aside and the case was remanded to the Sub Judge for trial in accordance with law on the remaining issues by restoring the suit. The Sub Judge had dismissed the suit as barred under Order 9 rule 9 of the CPC holding that it pertains to the same cause of action for which the earlier suit was dismissed for default under Order 9 rule 8 of the Code of Civil Procedure. The Additional District Judge by the impugned judgment has reversed these findings by holding that the present suit for claiming ownership of the suit land by way of adverse possession has been filed on altogether different cause of action than the earlier suit in which the tenancy rights over the land in dispute were claimed. According (to the Additional District Judge, the present suit is neither barred under Order 9 Rule 9 nor under Order 2 rule 2 of the Code of Civil Procedure. It is also not barred by the principle of constructive res judicata, as envisaged under Explanation IV of the Section 11 of the CPC as the earlier suit was not decided on merits. These findings have been challenged in the personal appeal.

We have heard Learned Counsel for the panics and gone through the record. In order to determine whether by dismissal in default of the suit under Order 9 Rule 8 fresh suit was barred under Order 9 Rule 9 of the Code of Civil Procedure, the only lest is whether the cause of action in both the suits is the same or not. Similarly, for determining the fresh suit is barred under Order 2 Rule 2 of the CPC not only the cause of action should be the same in The earlier suit and fresh suit but the plaintiff should not have committed any relief to which he was entitled in the earlier suit. The words ''cause of action'' have not been defined in any enactment but the meaning of (hem has been judicially considered in various decisions. By now it is well settled that a cause of action for a suit comprises of all those facts which the plaintiff must aver and, if traversed, prove to support his right to the judgment.

In Mohammad Khalil Khan and Others v. Mahbub Ali Mian and Others, AJR (36) 1949 PC 78, the Privy Council has also laid down the tests for determining whether Order 2 Rule 2 of the CPC would apply in a particular situations given in paragraph 61. It is:-

(1) The correct test in cases falling under O. 2, R. 2, is "whether the claim in the new suit is in fact founded upon a cause of action distinct from the which was the foundation for the former suit." Moonshce Buzloor Ruhecm v. Shumsunnissa Begum, (1867 11 M.T.A. 551 : 2 Sar. 259 P.C.) (supra).

(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. Read v. Brown, (1889 22Q.B.D. 128 : 58 L.J.Q.B. 120) (supra).

(3) If the evidenced support the two claims is different, then the causes of action a also Werent/Bmnsden v. Humphrey, (1884 14 Q.B.D. 141 : 53 U.Q.B, 476) (supra).

(4) The cause of action in two suits may be considered to be the same if in substance they are identical. Brurisden v. Humphrey, (1884 14 Q.B.D. 141 : 53 L.J.Q.B 476) (supra).

(5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor docs 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. Muss. Chandkour v. Partap Singh, (15 I.A. 15 : 16 Cal. 98 P.C.) (supra). This observation was made by Lord Watson in a case under S. 43 of the Act of 1882 (corresponding to O. 2, R. 2), where plaintiff made various claims in the same suit.

This decision has been subsequently affirmed by the Supreme Court in Kewal Singh v. Smt. Lajwanti. (1980) 1 SC 290, Shri Inacio Martins, Deceased through LRs. Vs. Narayan Hari Naik and others, and State of Maharashtra and another Vs. M/s. National Construction Company, Bombay and another, . In Kewal Singh v. Smt. Lajwanti (supra) the learned Judges of the Supreme Court alter referring to Order 2 Rule 2 of the CPC have observed that:-

...this provision applies to cases where a plaintiff omits to sue a portion of the cause of action on which the suit is based either by relinquishing the cause of action or by omitting a part of it. The provision has, therefore, no application to cases where the plaintiff bases his suit on separate and district causes of action and chooses to relinquish one or the oilier of them. In such cases, it is always open to the plaintiff lo Tile a fresh suit on the basis of a distinct cause of action which he may have relinquished.

In Inacio Martins (deceased) through LRs. v. Narayan Hari Naik and Others (supra) in paragraph 6 besides explaining the principle on which Order 2 Rule 2 Rule 2 of the CPC is based, the distinction between it and the doctrine of res judicata has also been clarified. The relevant observations in paragraph are-

The next contention which found favour with the High Court was based on the language of Order 2 Rule 2(3) of the Code of Civil Procedure. The submission regarding constructive res judicata was also based on this very provision. Now order 2 concerns the framing of a suit. Rule 2 thereof requires (hat (tie plaintiff shall include the whole of his claim in die framing of the suit. Sub-rule (1) of Rule 2. inter alia, provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. If he relinquishes any claim (o bring the suit within the jurisdiction of any court he will not be entitled to claim that relief in any subsequent suit. However, sub-rule (3) of Rule 2 provides that a person entitled to more than one relief''s respect of the same cause of action may sue for all or any of action may sue for an or any of such relief''s; but if he omits, except with the leave of the court, to sue for all such relief''s he shall not afterwards sue for any relief so omitted. It is well known that Order 2 Rule 2 CPC is based on the salutary principle that a defendant or defendants should not be twice vexed for the same cause of action by splitting the claim and the relief''s. To preclude the plaintiff from so doing it is provided that if he omits any part 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 does not preclude a second suit based on a distinct cause of action. It may not be out of place to clarify that the 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 white the latter requires the plaintiff to claim all relief''s emanating from the same causes of action....

(Emphasis supplied).

So far bar of principle of res-judicata as provided u/s 11 of the CPC is concerned, it must be shown that the plea in question laid not only be pleaded but had been heard and finally decided by {he Court. Dismissal of a suit for default of the plaintiff under Order 9 Rule 8 of the CPC would not operate as res judicata against the plaintiff in subsequent suit on the same cause of action. If it was otherwise, there was no need for the legislature to enact order 9 rule 9 in the Code of Civil Procedure, which provides in specific terms that where a suit is wholly or partly dismissed under Order 9 Rule 8, the plaintiff is precluded from bringing a fresh suit under the same cause of action. (See: Pulavarthi Venkata Subba Rao and Others Vs. Valluri Jagannadha Rao and Others, and Shivashankar Prasad Shah and Others Vs. Baikunth Nath Singh and Others, and Salo Vs. Munshi Ram and Others,

In Gurbux Singh Vs. Bhooralal, . it is held that in order that a plea of bar under Order 2 Rule 2 of the CPC should succeed, the defendant who raises the pica niusi lake oul:-

(i) that the second suit was in respect of the same cause of action as that on which the previous suit was based: (2) that in respect of that cause of action the plaintiff was entitled to more than one relief (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Coun. omitted to sue for the relief for which the second suit had been filed. Form this analysis it would be seen that the defendant would have to establish primarily 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 claim in the later suit is based there would be no scope fur the application of the bar. No doubt, a relief which is sought in a plaint could ordinal will be traceable to a particular cause of action but this might, by no means, be the universal rule. As the pica is a technical bar it has to be established satisfactorily and cannot be presumed merely on basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under O. 2, R. 2. CPC can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits....

Applying the principles laid down in the above referred to judgments we may straightway hold that since the previous suit of the plaintiff was dismissed for default of the plaintiff under Order 9 Rule 8 of the Code of Civil Procedure, bar of res judicata as provided u/s 11 of the CPC will not apply to the present case. Only bar as provided under order 9 Rule 9 and Order 2 Rule 2 of the CPC would apply if the cause of action is found lo be same in the earlier suit and the present suit, for which we have lo examine the plaints in both the suits. It may be pointed out that in considering whether the cause of action in the subsequent suit is the same or not as the cause of action in the previous suit, the test of be applied is "arc the causes of action in the two suits in substance and not technically identical" as held in Suraj Rattan Thirani and Others v. Azainabad Tea Company Ltd. and Others. AIR 1995 SC 295.

In the earlier plaint the facts constituting the cause of action were that the land in dispute was partitioned between the parties and the predecessor-in-interest of defendant No. 1 (the appellant in the present appeal) more than 35 years ago and since then the parties became the owners of their respective shares to the exclusion of each other. The land falling to the share of Birju. the predecessor-in-interest of defendant No. 1 (the appellant in the present appeal), who was the brother of the plaintiff was in the possession of the plaintiff as tenant on payment of rent under said Birju during his life time and under his widow Bohtu and daughter Sarswati after his death. Later on part of the suit land in dispute, as stated in paragraph 4 of the plaint, was transferred by the plaintiff in favour of proforma defendant No. 4 (respondent No. 2 in the present appeal) who has been in possession of thereof. Another portion of the suit land, as staled in paragraph 7 of the plaint, was transferred by Bohtu and Sarswati in favour of defendant No. 1 (appellant in the present appeal) but he was nice put in possession of the said land, which continued to be in possession of the plaintiff. Since the possession of the plaintiff as tenant was shown in the revenue record, he applied for correction of revenue entries but failed. Thereafter, he filed the suit when the defendant No. 1 (appellant in the present appeal) refused to admit the claim of the plaintiff and taking advantage of wrong entries threatened to invade the rights of the plaintiff and take forcible possession. The prayer made in the suit was for decree for declaration as the land described in the prayer clause, which had fallen to the share of the predecessor-in-interest of defendant No. l (appellant in the present appeal) was in possession of the plaintiff as non-occupancy tenant and also for any other relief which the Court deems fit under the circumstances of the case.

In the subsequent suit the subject matter remains the same as in the earlier suit but instead of stating how and why the plaintiff became tenant under his brother after partition and thereafter under his widow Bohtu and daughter Sarswati. the plaintiff has alleged that alter the death of Birju. his brother in the year 1968, though the mutation of inheritance was attested in favour of Bohtu and Sarswati, who later on sold the suit land in favour of defendant No. 1 (appellant in the present appeal) in the year 1970. yet the possession of the suit land was taken over by the plaintiff immediately after the death of Birju, his brother, in the year 1968 as the daughter and widow of Birju. his brother, have left the concerned Mulials during the life lime of Birju because his widow Bohtu was living with his daughter Sarswati at Ghori in Tehsil Barsar. District Hamirpur. He has further alleged that his possession was adverse to the rights of Bohtu and Sarswati as well as the defendant (appellant in the present appeal), which is apparent from the revenue record from Kharif 1970 showing him in possession of the laud in dispute ''Bila Sift''. According to the plaintiff, the defendant (appellant in the present, appeal) is a business man/shopkeeper and running a shop it Baldwara at a distance of 7 kilometers from the land in dispute, and he had never visited the Muhals in which the suit land is situated. As per his further allegations his possession was verified and established during the recent Consolidation Proceedings. On these averments the plaintiff has claimed that his adverse possession over the land in dispute, which was to the very knowledge of the defendant (appellant in the present appeal) has matured into title and he has prayed for decree for declaration that he has become owner of the land in dispute by way of adverse possession and for permanent prohibitory injunction restraining the defendant (appellant in the present appeal) from interfering in the land in dispute.

The perusal of causes of action in both the suits leaves no doubt that these are not at all identical to constitute a bar under order 9 Rule 9 of the Code of Civil Procedure. The earlier suit was based on tenancy rights, whereas, the subsequent suit was based on adverse possession. Accordingly, relief''s arc also materially different, as in the earlier suit the decree for declaration that the plaintiff is in possession of the suit land as tenant was prayed for. whereas, in the subsequent suit decree for declaration that the plaintiff has become owner of the suit land by way of adverse possession and consequential relief of permanent prohibitory injunction was prayed for. In view of this, even bar under Order 2 Rule 2 of the CPC is also not applicable in the present case, since the res judicata is different in the subsequent suit, the relief sought for in it could not be asked for in the earlier suit. Otherwise also both these relief''s arc destructive of each other, as tenant cannot deny title of landlord and prescribe title in himself by way of adverse possession. (See : Atyam Veerraju and Others Vs. Pechetti Venkanna and Others,

The result of above discussion is that there is no merit in this appeal and it is rejected. The impugned judgment dated 29.1.1991 of the Additional District Judge. Mandi is upheld. The case is remanded to Sub Judge 1st Class. Sarkaghat, District Mandi for trial in accordance with law from the stage of framing of issues and decision afresh after restoring the suit to its original number. The parties are directed to appear before Sub Judge, Sarkaghat, Distt. Mandi on 23.8.99. No costs, Records be sent back immediately.