Roshan Lal and Others vs Duni Chand etc.

Bhawani Singh, J.—This revision petition is directed against the order of Senior Sub Judge, Hamirpur in case No. 231-1/87, decided on 24-5-1989.

Briefly, the case is that the Plaintiff filed a suit for the grant of a decree for specific performance of agreement dated 25-12-1985 and in the alternative, for the recovery of Rs. 40,000/- by way of damages. The case was contested by the Defendants on the ground that the suit was barred by the provisions of Order 2, Rule 2, CPC (here-after Code of Civil Procedure) and the principles of resjudicata. The trial Judge framed the following two issues in this case:

(1) Whether the suit of the Plaintiff is barred by Order II Rule 2 Code of Civil Procedure? OPD 5 to 9.

(2) Whether the suit is barred by principle of resjudicata? . OPD

(3) Relief.

The averments of the Plaintiff are that the Defendant Narpat, on his own behalf and on behalf of Defendants No. 2 to 4 agreed to sell 4/5th share in the land comprised in Khasra Nos. 261, 938, 939, 1035, 1120, 1122, 1130 and ll3l, measuring 28 Kanals 14 Marias, situate in Tika Daruhi, Mauza Bajuri, Tehsil and District Hamirpur for a sum of rupees one lac to the Plaintiff through agreement of 25-12-1985, and received a sum of Rs. 20,000/- by way of advance. However, the Defendants No. 1 to 4 did not execute the sale deed despite request in that behalf. Despite a written demand notice, the land was sold to Defendants No. 5 to 9 through different sale deeds thus, refusing to perform his part of the contract.

Defendant, Narpat admitted the execution of the agreement and the receipt of Rs. 20,000/- by way of advance, but stated that he had agreed to sell his own share of land only and the balance amount of Rs. 80,000/- was payable by the Plaintiff by 31-3-1986. Since the Plaintiff failed to pay the same, the Defendant, on the expiry of this period, sold the land to other Defendants. It was also stated that the suit of the Plaintiff was barred by the principle of resjudicata and Order 2, Rule 2, Code of Civil Procedure.

After hearing the parties, the Court decided both the issues in favour of the Plaintiff and against the Defendants. As a result thereof, the Court moved on to decide the suit on merits by framing issues on the pleadings of the parties.

Shri Bhupender Gupta, ld. counsel for the Defendants, raised those very objections against the trial Court order which had been raised in that Court. It was contended that in view of the provisions of Order 2 Rule 2, CPC read with Explanation 4 to Section 11 thereof, the suit of the Plaintiff is not maintainable and is liable to be dismissed. In addition to the different suits filed by the Plaintiff against Defendants No. 5 to 9, reference to Single Bench decision of Punjab and Haryana High Court reported in 1987 Sim L.C. 89 (Harbans Singh v. Teja Singh and Ors.) was made. I am not convinced by these submissions of the learned Counsel for the Defendants and see no reason to disturb the impugned order. Order 2 Rule 2 and Explanation 4 to Section 11, CPC has no application to the facts of this case. The object of Rules 1 and 2 of Order 2 is to prevent multiplicity of suits. Order 2, Rule 2 is founded on the principle that a person shall not be vexed twice for one and the same cause. This provision requires that every suit shall include the whole of the claim arising from one and the same cause of action and not that every suit shall include every claim or every cause of action which the Plaintiff may have against the Defendant and if the cause of action in the subsequent suit is not barred. The test to find out whether the subsequent suit would be barred because of an earlier one, is whether the claim in the subsequent suit, is, in fact, founded on a cause of action distinct from that which was the foundation of the former suit. {See Benoy Bhusan Dasgupta Vs. Sm. Sabitri Banerjee,

In Bipin and Others Vs. Rudranarayan Misra and Others, the Orissa High Court examined these provisions in para 18 of the judgment which is quoted as under:

To make Rule 2 of Order 2 CPC applicable two conditions must be satisfied, namely (1) that the previous and the present suit must arise out of the same cause of action, and (2) secondly they must be between the same parties.(1966) 2 A WR 253, Suryanarayana Murti V. Chandramma Dhora], So where the Plaintiff or the Defendant in the subsequent suit is different from the Plaintiff or the Defendant in the previous suit, the rule does not apply. Defendant No. 5 in this suit was not a party in the previous suit (T.S. No. 48/66). Moreover, in order to make the provisions of Rule 2 of Order 2, CPC applicable, and the cause of action for the two suits must be the same, i.e. the facts of one which would entitle the Plaintiff to the right claimed in the other must be the same. In determining whether the cause of action in both the suits are the same, it should not merely be similar, but it should be the same, i.e. one and identical with the previous one. (1967) 8 G LR 677, Dhabubai v. Bai Ratan]. Moreover, in order to apply Rule 2 of Order 2, CPC it is necessary that facts which would entitle the Plaintiff to the right claimed in both the suits must be the same. If, apart from what is required to be proved in the first case, some additional facts have to be proved in the second one it cannot be said that the two suits are based on the same cause of action. (1966) 2 A WR 253. In that decision it has been observed that a rough test to ascertain as to whether the cause of action in the second suit is the same as that in the first suit is to see whether the same evidence will sustain both the suits.

In the cases reported in AIR 1949 78 (Privy Council) and Dwarkadas Nathamal Vs. Vimal alias Yamuna and Others, it has been held that if the evidence to support the two claims is different, then the causes of action are also different.

Similar is the view of Punjab and Haryana High Court in Gurbax Singh Vs. Bhajan Singh and Others, . The views of the learned Judges are contained in para 3 which are as under:

The only short question involved in this appeal is whether the present suit is barred under Order 2, Rule 2 CPC or not. Order 2 Rule 2 CPC 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 and if a person entitled to more than one relief in respect of the T same cause of action 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 the common case of the parties that the cause of action for the earlier suit was the death of Tota Singh as the Plaintiff Gurbux Singh claimed himself to be one of the heirs along with the Defendants. Therein he claimed l/7th share of the total land measuring 207K 2M of land left behind by Tota Singh deceased. The said suit filed by Gurbux Singh Plaintiff was dismissed by the trial court on 28th August, 1973. The copy of the plaint in the said suit is Ex Dl while the copy of the judgment dt. 28th August, 1973 is Ex. D2. The present suit was filed on 1st March, 1977, the cause of action for which was the sale deed dt. 23rd May, 1967 executed by Bhajan Singh after the death of his father Tota Singh in favour of the Plaintiff. Thus, it is quite evident that the cause of action for the suit filed earlier and the cause of action for the present suit are quite different. Once it is so held that the cause of action for the earlier suit was different, the provisions of Order 2, Rule 2, CPC are not attracted. It may be that in the earlier suit filed by the Plaintiff it could be pleaded in the alternative that he was entitled to the possession of 32 Kanals of land on the basis of the sale deed executed by Bhajan Singh in his favour. Having failed to do so, the Plaintiff was not debarred to claim the relief by filing the present suit on the basis of the sale in his favour which provided totally independent cause of action. The approach of the Courts below in this behalf is wholly wrong, illegal and misconceived.

I am in agreement with the views expressed in these three cases reliance on which was placed by the ld. counsel for the Plaintiff in this case. These principles apply to the case in hand, since the cause of action in the present case and the other cases initiated by the Plaintiff against some of the Defendants is not the same. Cause of action in one situation was the sale of land and right to pre-empt the same on the basis of co-ownership. The same was dismissed on entirely different ground and cannot be pressed into service in the present proceedings based on entirely different cause of action and for entirely different relief�s.

Principles of resjudicata also do not apply to the present case for the same reason. More-over, these suits were dismissed without going into the merits of the matter and parties in those suits were also different. This plea, therefore, is quite misconceived and is liable to be rejected.

The result is, there is no merit in this revision and the same is accordingly dismissed leaving the parties to bear their own costs.