Rajendra Rai and Others vs Shashi Kant Agarwal and Another

Hon''ble Abhinava Upadhya, J.—By means of this writ petition, the petitioners have challenged an order of the court below by which issue no. 6, i.e. with regard to the fact whether or not second suit was barred by principles of res judicata, was decided in the negative, vide order dated 15.9.199 (annexure -10 to the petition), holding that the second suit was not barred by the principles of res judicata, against which a revision was filed and the same was also dismissed vide order dated 7.7.2001 (annexure -12 to the petition). Brief facts of the case are that respondent nos. 1 and 2 have filed a suit for permanent injunction, being suit no. 183 of 1990, in respect of suit-property (Premises No. 183/90, Plot No. B-17, area 4480 sq. ft.) situate in Mohalla Orderli Bazar, Bhuwaneshwar Nagar Colony, Varanasi. The plaintiff-respondents in the aforesaid suit had claimed relief that the defendant-petitioners be restrained from interfering with the possession of the plaintiffs and further they may also be restrained from demolishing walls existing thereon and also from taking the possession. In the said suit an amendment application was subsequently filed by the plaintiffs therein on 9.10.1991 praying therein that during the pendency of the suit the defendant-petitioners have taken over possession of the suit-property in question and have raised constructions; therefore, the constructions be removed and possession be delivered to the plaintiffs.

The said amendment application was rejected by the trial court vide its order dated 19.5.1993, against which a revision was filed and the revision was also dismissed vide order dated 23.8.1994. The revisional court, however, gave a liberty to the plaintiff-respondents to move a fresh application giving better details with regard to the dates, etc. It is submitted that the petitioners, instead of moving a fresh application, as permitted by the revisional court, filed a fresh suit, being Suit No. 1229 of 1994, for recovery of possession.

In the second suit, the defendant-petitioners filed their written statement (annexure -9 to the petition) stating therein that the second suit was not maintainable as the petitioner had for the same relief already filed a suit and the same was pending. The court below in the second suit did not accept the contention of the petitioners and a specific issue was framed with regard to question whether or not the suit is barred by principles of res judicata. This issue, being Issue No. 6, was decided in favour of the plaintiff-respondents on the ground that the relief sought for in the first suit was distinct from the relief sought in the second suit. It was held that in the first suit that the relief sought for was prohibitory injunction, whereas in the second suit it was for recovery of possession. On this ground it was held that the second suit was maintainable. Against this order, the petitioner-defendants filed a revision which was also rejected and the same is subject-matter of this writ petition.

I have considered submissions made by learned counsel for the parties.

The ground taken by the learned counsel for the petitioner-defendants, Mr Trevini Shankar, is that in the first suit the petitioners had sought amendment which was refused by the trial court. The revisional court had granted permission to make a fresh application giving better details and, therefore, that opportunity having not been availed, the subsequent suit could not be maintained being barred by principles of res judiciata as contemplated u/s 11 CPC and as provided under Order II Rule 2 as well as Order XXIII Rule 1(3). According to him, during the pendency of the first suit, the second suit could not have been filed without the leave of the court. According to him, no such leave was taken and for this reason also the suit was not maintainable.

To substantiate the aforesaid arguments, learned counsel for the petitioners has relied upon a Full Bench decision of this Court in the case of Farhat Hussain Azad Vs. State of U.P. (FB), reported in 2005 ALL. L.J. 647. Relevant paragraph no. 75 of this decision is quoted herein below:

In view of the above, it is not permissible to seek the relief indirectly, for which, earlier petitions have already been dismissed/pending.

Learned counsel for the petitioners further submits that the first suit was dismissed much after filing of the second suit vide order dated 16.1.2001 (annexure -7 to the petition). According to him, the relief sought by the plaintiff-respondents in the subsequent suit was the same as they had asked for by filing an amendment application in the first suit which was rejected. However, revisional court since directed the plaintiff-respondents to file a fresh amendment application giving better details and that opportunity has not been availed by the respondents, the second suit could not have been filed as the relief sought in the second suit should have been sought in the first suit itself. He relies on the provisions of Order II Rule 2 CPC, which provides that if a suit is filed, then all the possible reliefs should be claimed in that suit itself. Therefore, he argues, issue no. 6 has wrongly been decided.

Learned counsel for the respondents, Sri S.K. Shukla, holding brief of Sri Gautam Baghel, however, submits that the relief in the subsequent suit was very distinct as during the pendency of the first suit, which was essentially for prohibitory injunction, the petitioners had taken forcible possession and had also raised constructions on the plot in question giving rise to a fresh cause of action. Therefore, the necessisity arose of filing the second suit for recovery of possession. According to him, in the first suit (Suit No. 183 of 1990) the petitioner had moved an application for amendment but the said application having been rejected, there was no bar in filing the second suit and the provisions of section 11 CPC are not attracted. To substantiate his arguments, he has relied on the Apex Court''s decision in the case of Kunjan Nair Sivaraman Nair Vs. Narayanan Nair and Others, , specifically on paragraphs 7, 8, 10 and 19. Paragraphs 10 and 19 of this judgement are being quoted hereunder:

Order II Rule 2, sub-rule (3) requires that the cause of action in the earlier suit must be the same on which the subsequent suit is based. Therefore, there must be identical cause of action in both the suits, to attract the bar of Order II sub-rule (3). The illustrations given under the rule clearly brings out this position. Above is the ambit and scope of the provision as highlighted in Gurbujx Singh''s case (supra) by the Constitution Bench and in Bengal Waterproof Limited (supra). The salutary principle behind Order II Rule 2 is that a defendant or defendants should not be vexed time and again for the same cause by splitting the claim and reliefs for being indicated in successive limigations. It is, therefore, provided that the plaintiff must not abandon any part of the claim without the leave of the Court and must claim the whole relief or entire bundle of reliefs available to him in respect of that very same 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.

...

In Shri Inacio Martins, Deceased through LRs. Vs. Narayan Hari Naik and others, , an almost identical question arose. In that case, the plaintiff had prayed for protection of his possession by a prohibitory injunction. That prayer was refused. Subsequently suit was for recovery of possession. This Court held that in the former suit the only relief that the Court could have granted was in regard to the declaration sought for which the Court could not have granted in view of the provisions of Specific Relief Act. The cause of action for the first suit was based on the apprehension about likely forcible dispossession. The cause of action of the suit was not in the premise that he had, in fact, open illegally and forcefully disposessed and needed the Courts'' assistanced for restoration of possession. In that background this Court held that subsequent suit was based on a distinct cause of action not found in or formed the subject matter of the former suit. The ratio of the decision was full application to the facts of the present case.

Admittedly, subsequent/second suit (No. 1229 of 194) was filed during the pendency of the first suit (No. 183 of 1990); however, in paragraph 7 of the plaint it has been clearly mentioned that the plaintiffs had earlied filed a suit but during the pendency of the suit, certain constructions were made by the defendant-petitioners and the plaintiffs were removed from the possession. It is noteworthy that the first suit, i.e. Suit No. 183 of 1990, was finally dismissed on 16.1.2001 by the court below recording a finding that the relief sought in that suit for a prohibitory injunction cannot be granted as after filing of the suit, according to the admitted case of the plaintiffs, the defendants have come in possession over the property in question and, therefore, if an order of injunction is passed, the same would not be executable and it dismissed the suit as not maintainable.

Under the aforesaid facts it is clearly apparent that the second suit was filed for a totally different relief, i.e. for recovery of possession whereas the earlier suit was for prohibitory injunction on the apprehension of the plaintiffs that the defendants might interfere with their possession. As such, as held by the Hon''ble Supreme Court, the principles of res judicata would not be applicable in such a case. The contention of the learned counsel for the petitioners cannot be accepted also for the fact that in the first suit, although an amendment was sought by the petitioners which was rejected and the rejection was maintained also by the revisional court.; however, a liberty was granted by the revisional court to file a fresh amendment application with better details. In these circumstances, the petitioners had liberty either to amend the suit or file a separate suit, as has been held by the Hon''ble Supreme Court. The respondents, in stead of filing a fresh amendment application, has preferred to file the second suit, which, in my opinion, does not attract the provisions of Section 11 CPC.

In view of the aforesaid, I do not see any merit in the writ petition and it is dismissed. There shall be no order as to costs.