Neither Order 2
Rule 2 nor Section 11 Explanation IV cast duty on the plaintiff to sue in one
suit for various causes of action. What is essential is that the party is bound
to put forward his whole case as plaintiff or defendant in respect of the same
subject matter of the suit. If the plaintiff omits to raise certain ground in
respect of his claim, he will not subsequently be permitted to raise such
ground in respect of his claim. If the subject matters are separate and
distinct, the second suit for such distinct subject matter would not attract bar
of Section 11 Explanation IVThere may be situation where the incidental issues like nature of
ownership of the property i.e. whether it was joint family property or
selfacquired property of Tikaram may arise in both suits. In such an event,
the findings recorded on such incidental issues may operate as res judicata in
the subsequent suit but to say that the entire suit filed subsequently is barred
either under Order 2 Rule 2 or under Section 11 Explanation IV will be de
hors the legal position
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.5/1995
1. Zalaksingh s/o Tikarambhau Bisen,
..V/s..
1. Pramodkumar s/o Prahaladrai Agrawal,
CORAM : M.N. GILANI, J.
Pronounced on : 31/8/2012.
1. This second appeal is directed against the judgment and decree
dated 3rd September 1994 passed by Additional District Judge, Gondia in
Regular Civil Appeal No.74/1994 whereby judgment and decree dated
31/7/1992 passed by the trial court in Regular Civil Suit no.34/1971
dismissing the suit was confirmed.
2. One Tikaram died leaving behind him three sons who are
original plaintiffs 1 to 3 – appellants 1 to 3 herein and a widow who is
original plaintiff no.4 – appellant no.4 herein. Plaintiffs pleaded that the
land Khasra No.189, area 8.22 acres, situated at village Gondia (Buzruk.)
was their ancestral property. During his life time Tikaram was addicted to
vices. On 21/1/1959 Tikaram sold the land area 3.20 aces out of Kh. No.
189 to the defendants by executing sale deed. Plaintiffs filed Regular Civil
Suit no.131/1963 against the defendants for setting aside the said sale deed.
The judgment and decree passed in that suit was challenged in an appeal
and now it has reached to finality. Again Tikaram had sold remaining
portion of 4.82 acres of land out of same khasra number to the same
defendants vide registered sale deed dated 11/2/1959. To challenge second
alienation plaintiffs filed second suit being Regular Civil Suit No.34/1971.
The defendants filed written statement at Exh.16 and resisted the suit inter
alia on the grounds that the plaintiffs omitted to include the claim in respect
of land covered under second sale deed when they had filed first suit being
R.C.S. No.131/1963 and as such second suit is barred under Order 2 Rule 2
of the Civil Procedure Code. The learned trial court, mainly, relying upon the
decision in case of Mohammad Khalil Khan V/s. Mehbub Ali Mian reported in
AIR (36) 1949 Privy Council 78 held that the suit is barred under Order 2
Rule 2 and also on the principle of constructive res judicata as explained
under section 11 Explanation IV of the Code.
3. The first appellate court formulated following point for its
determination :
“Whether the suit is barred by Constructive res judicata and
as per Order 2, Rule 2 of the Code ?”
4. After considering the rival submissions, the first appellate court
concluded thus :
“Hence, I conclude that the cause of action for both these suits was
identical. On the same facts, the plaintiffs are claiming different
reliefs in both the suits and such relief cannot be claimed by them in
view of Order 2 Rule 2 especially explanation and illustration given
below Order 2 Rule 2. The explanation says that, the successive
claims arising under the obligation shall be deemed to constitute but
one cause of action. In my opinion the word “And” appearing in this
explanation to Order 2 Rule 2 should be read as disjunctive and
therefore, cancellation of first saledeed and the second saledeed are
two successive claims arising under the same obligation namely (want
of legal necessity, want of benefit of estate, and joint family nature of
the property) which create obligation on the defendants not to
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purchase the land from Tikaram and hence, it forms identical cause of
action from both suits and therefore, the later suit is barred under
Order 2 Rule 2 of Civil Procedure Code.”
5. This Court while admitting the appeal formulated following
substantial questions of law :
“(1) Whether in the facts and circumstances of the case, the
courts below were justified in holding that the two sale deeds dated
22.1.59 and 11.2.59 gave rise to the single cause of action and
noninclusion of challenge of sale deed dated 11.2.59 in Reg.C.S.
No.131 of 63 amounted to relinquishment of part of that claim ?
(2) Whether both the courts below were right in holding
that the second suit challenging second sale deed was barred by the
principles of constructive res judicata ?”
6. Before I, proceed to consider the rival submissions advanced at
the bar, for better appreciation of the facts of the case prayer clauses in both
the suits are reproduced below :
7. R.C.S. No.131/1963
“(A) A decree declaring that the sale deed Dt.2111959 is not
binding on the interest of plaintiff no.4 and for delivery of possession
to her or in the alternative a decree for setting aside the sale deed
Dt.2111959 and for delivery of possession to the plaintiffs. .....”
R.C.S. No.34/1971
(a) a decree for setting aside the sale deed dated 11259
and for possession of the suit land and,
(b) a decree directing an enquiry as to the mesne profits
from the institution of the suit until delivery of possession to the
plaintiffs together with interest thereon and, .....”
8. Mr. Borkar, the learned counsel appearing for the appellants,
contended that both the Courts below adopted wrong approach while
holding that suit is barred under Order 2 Rule 2 and under section 11
Explanation IV of the Code. He submits that the order 2 Rule 2 precludes the
party from splitting the claims and splitting the remedies but it does not
preclude a second suit based on the distinct cause of action. According to
him, provisions of Rule 2 being of penal nature and divesting in effect had to
be construed strictly. It is a highly technical plea which tends to divide and
defeat justice and deprive a party of its legitimate right. It is, therefore,
necessary for the party raising the plea of such a bar to demonstrate that
earlier and subsequent suit are based on same cause of action or there was
identity of cause of action. He relied upon decision in case of Govind V/s.
Jankibai and another reported in A.I.R. 1930 Nagpur 3. In that case a
reversioner had filed suit for possession of one property and another suit for
possession of other property. It was held that the cause of action was the sale
and the sales being different the causes of action are also different. The next
decision relied upon is in case of Parashram Ragho Kunbi V/s. Sadasheo
Namdeo Shimpi reported in A.I.R. 1936 268 wherein it was held that the
plaintiff is not obliged to put forward in one suit other claim which may have
against the defendant as the causes of action in such cases may be different
but he must include whole claim based on a particular cause of action. To
buttress his point learned counsel relied upon the decision in case of Alka
Gupta V/s. Narender Kumar Gupta reported in (2010) 10 S.C.C. 141.
9. Repelling the submissions advanced on behalf of the appellants,
Mr. Mundra, the learned counsel for the respondents, laid emphasis on Rule
2 (3) of Order 2. and contended that the cause of action to challenge the
alienation of the part of the suit land under second sale deed which was
executed just after 20 days of the first sale deed had already been arisen
when first suit was filed; omission on the part of the plaintiffs to claim relief
in respect of second sale deed squarely attracts the bar of Order 2 Rule 2.
According to him, merely because there were two sale deeds that did not
give rise to two causes of action. This is for the reasons that the cause of
action in both the suits are identical, nature and character of relief is also
same and the evidence necessary to establish the case of the plaintiffs is also
the same. He relied upon the decision in case of Mohammad Khalil Khan
V/s. Mehbub Ali Mian (supra). The facts of that case in brief were : One Rani
Barkatunnissa died leaving properties at various places. First suit was filed
for possession in respect of all properties except situated at Shahjahanpur
and the second suit was filed in respect of Shahjahanpur’s property. Before
filing both the suits Rani Barkatunnissa had died. It was observed by Their
Lordships that the causes of action for filing both the suits accrued when
Rani Barkatunnissa died and laid down the following principles :
“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 that which was the foundation for the former suit.
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.
If the evidence to support the two claims is different, then
the causes of action are also different.
The causes of action in the two suits may be considered to
be the same if in substance they are identical.
The cause of action has no relation whatever to the defence
that may be set up by the defendant nor does 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.
Where the facts which would entitle the plaintiffs, in their
new suit to recover property Y, to establish their title are
substantially the same as those alleged in their former suit to recover
property X, the causes of action in the two suits are identical and the
plaintiffs are barred by reason of O.2, R.2 from maintaining the new
suit.”
10. Next decision relied upon is in case of Dwarkadas Nathmal V/s.
Vimal alias Yamuna wife of Rajeshwar and others reported in AIR 1964
Bombay 42 wherein it was held that the causes of action in the two suits
must be the same if in substance they are identical. In that case the first suit
was filed for recovery of mesne profits for one year. The second suit was filed
for recovery of mesne profits of subsequent years. It was held that second
suit for recovery of mesne profits of subsequent years is barred. In Kunjan
Nair Sivaraman Nair V/s. Narayanan Nair and others reported in AIR 2004
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SC 1761 two suits came to be filed. In an earlier suit the decree for
declaration of right and title to the suit was sought along with relief of
injunction. The prayer for injunction was rejected as plaintiff was not found
in possession of the suit. Plaintiff filed second suit for recovery of possession.
Their Lordships held that second suit was not barred as causes of action in
both suits were not the same. In case of Shankar Sitaram Sontakke and
another V/s. Balkrishna Sitaram Sontakke and others reported in AIR 1954
SC 352 the question of applicability of Order 2 Rule of the Code was cropped
up under the following facts : There was a joint family consisting of six
brothers. They were incharge of different businesses. Then they went for
partition suit which was compromised. Confining relief to the share of the
profits and assets of other business (motor business) second suit was filed.
In that premise, it was held that first suit was the desire of the plaintiff to
separate from his brothers and divide the joint family property. The first suit
embraced entire property without any reservation and it was compromised.
Therefore, his subsequent suit to enforce part of the claim was found on the
same cause of action which deliberately was relinquished.
11. In Budhu V/s. Nahru and others reported in 1956 HIM. PRA. 50
(AIR 43 C 24 Nov.) the plaintiff had omitted to claim possession of the
entire area which defendants were allegedly in occupation but filed suit for
part of the area. Subsequently the suit for remaining part was filed. It was
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held that there was only one cause of action because defendants were in
possession over the entire area.
12. The legal position that emerges may be stated thus :
The plaintiff is to include whole of his claim in respect of a cause
of action. It, however, allows him to give up, abandon any part of his claim.
When he omits to sue or relinquishes any part of his claim, he is not allowed
afterwards to sue for the portion so omitted. Where the plaintiff is entitled
to more than one relief in respect of same cause of action and omits without
the leave of the Court any relief, he cannot thereafter sue for the relief so
omitted. All successive claims arising under the same obligation shall be
deemed to constitute one cause of action. The provision is based on the
principle that the defendants should not be vexed twice for one and the same
cause by allowing the plaintiff to split up the claims and to split up the
remedies. Unless there is identity between the cause of action on which the
earlier suit was filed and that on which the claim in the later suit is based,
there would be no scope for application of Order 2 Rule 2. Even when
several causes of action arise from one transaction plaintiff is not obliged to
sue for all of them in one suit. What the rule lays down is that if there is one
entire cause of action, the plaintiff cannot split up the same into parts so as
to bring separate suits in respect of those parts. When the subsequent suit is
based on cause of action different from that in first suit, the subsequent suit
is not barred.
13. In Deva Ram and another V/s. Ishwar Chand and another
reported in (1995) 6 SCC 733 earlier suit was for recovery of sale price of
land which was dismissed on the ground that the document relied upon was
not sale deed but an agreement for sale. Subsequent suit for recovery of
possession on the basis of title was held not barred as causes of action in the
two suits were not identical. According to Their Lordships Order 2 Rule 2
requires unity of claims based on the same cause of action in suit but it does
not contemplate unity of distinct and separate causes of action.
14. Now, adverting to the facts of the present case; the alienation of
3.20 acres made by Tikaram by executing registered sale deed dated
21/1/1959 was challenged. On 11/2/1959 Tikaram repeated the similar act
by executing another sale deed for the remaining piece of land i.e.4.82 acres.
Certainly, plaintiffs could have challenged both these alienations which is
permissible under Order 2 Rule 3. It specifically provides that the plaintiff or
plaintiffs can unite in same suit other causes of action against the same
defendant or defendants jointly in which the plaintiff or plaintiffs are jointly
interested. By no means omission to unite different causes of action can be
interpreted as splitting up the claims or splitting up the remedies arising out
of the same cause of action. The crux of the matter is whether two
alienations of separate area of the lands on different dates although in favour
of the same parties would give rise to only one cause of action and cast a
duty on a party to challenge the said alienations in one suit. Thus, question
that arises is what is the “cause of action”.
15. In Muhammad Hafiz and another V/s. Mirza Muhammad
Zakariya and others reported in A.I.R. 1922 Privy Council 23 Their
Lordships held that : “the cause of action which gives occasion to, and forms
the foundation of, the suit, and if that cause enables a man to seek for larger
and wider relief than that to which he limits his claim, he cannot afterwards
seek to recover the balance by independent proceedings.” In Kunjan Nair
Sivaraman Nair V/s. Narayanan Nair and others (supra) it is held
that : “.....One great criterion is, when the question arises as to whether the
cause of action in the subsequent suit is identical with that in the first suit
whether the same evidence will maintain both actions.”
16. When first alienation of the land area 3.20 acres on 21/1/1959
was made by executing a registered sale deed cause of action arose to the
plaintiffs to challenge the same. Ignoring the second alienation, they filed
the suit. Can it be said that by splitting the claims or remedies they sought
declaration and possession of the suit land area 3.20 of sale deed dated
21/1/1959. To put it differently, whether by restricting suit to first
alienation, the plaintiffs split up the claims or split up the remedies? This is
to be answered in negative. The execution of the second sale deed for
different area of the land i.e. 4.82 acres on 11/2/1959 although in favour of
the same party is a distinct and separate cause of action. Even it cannot be
said to be two causes of action arising out of the same transaction. The
expressions “in respect of the cause of action” occurring under Rule 2(1), “in
respect of” in Rule 2(2) and “in respect of the same cause of action”
occurring under Rule 2(3) amply connote that what is barred is splitting up
the claims and splitting up the remedies arising out of the same cause of
action. Two sets of bundle of facts arising out of two different transactions
and between similar parties would give rise to distinct causes of action and
not one. This can be well explained by quoting an illustration to
Order 2 which runs thus :
“A lets a house to B at a yearly rent of Rs.1,200. The rent for the
whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B
in 1908 only for the rent due for 1906. A shall not afterwards sue B
for the rent due for 1905 or 1907.”
Let us assume that A owns two houses. Under different
agreement he lets them to B. B had fallen in arrears of rent in respect of
both the houses. When A filed suit for arrears of rent in respect of one
house, the rent had also became due in respect of second house. Could it be
said that omission on the part of A to file suit for recovery of rent in respect
of second house would preclude A from filing subsequent suit for recovery of
rent in respect of second house. Merely because defendants are the same or
relief of declaration in respect two similar nature of transactions have been
sought by filing two separate suits itself would not bar the second suit. It is
the choice of the plaintiffs either to unite or not to unite both causes of
action in one suit. In Alka Gupta V/s. Narender Kumar Gupta (supra) Their
Lordships held that bar of Order 2 Rule 2 is not applicable where second suit
is based on a different and distinct cause of action.
17. The object that ‘the defendants should not be vexed twice for the
same cause of action’ is not defeated for the simple reason that they are the
defendants who entered into two transactions and invited two distinct
actions. It is also not the case that while seeking relief of declaration that
alienation was not made out of legal necessity, the plaintiffs also sought relief
of partition. It is well settled that coowner, who challenges the alienation
made by other coowner, has right to ask for possession of the property. It is
for the alinee to sue for general partition and claim relief that the property
alienated be put to the share of cosharer alinee. Since there were two
distinct alienations for distinct areas of lands filing of two separate suits
questioning such alienations cannot attract bar of Order 2 Rule 2.
18. Now, I shall deal with the second substantial question of
law : The doctrine of res judicata is conceived in larger public interest which
requires that all litigations must, sooner than latter come to an end.
Litigation which has no end or finality defeats very object of justice. Since
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the bar of Order 2 Rule 2 has also been pressed into service, it is necessary to
point out distinction i.e. how doctrine of res judicata differs from bar under
Order 2 Rule 2. The former enjoins duty on the plaintiff or defendant to
bring forward all the grounds of attack in respect of his claim whereas later
requires plaintiff to claim all reliefs flowing from the same cause of action.
The principle of res judicata governs both the parties, plaintiff as well as the
defendant, however, Order 2 Rule 2 only applies to the plaintiff and bars the
suit (Relied on Alka Gupta V/s. Narender Kumar Gupta {supra}).
Constructive res judicata, principle behind which is that if a party had an
opportunity to raise a matter in a suit, it would be considered to have been
raised and decided. The underlined object is to cut short litigation between
the parties so that a person may not be vexed again with regard to the same
matter. It would be an abuse of the process of Court to allow a new
proceeding to be started in respect of the same issue. The rationality of
constructive res judicata is that the party should raise all his available pleas at
the first instance and raising them at each successive stage is prohibited.
19. The learned trial court upholding the contention that suit is
barred on the principle of constructive res judicata observed thus :
“.....Here, in this case, grounds of defence and attack of plaintiffs in
previous suit of 1963 and present suit of 1971 are the same.
Pleadings is also the same. Parties are also the same. Hence, the suit
of 1963 which was finally decided shall be deemed to have be a
matter directly and substantially in issue in this suit of 1971. Hence,
as per this provision in the C.P.C. the present suit is also barred by the
principle of res judicata.
23. The learned advocate of the defendants drew my attention to the
reported case of 1978 All. Page 30 between Babu Rajnarayan Singh
Vs. Ganesh Bind and others. The applicability of resjudicata is
discussed in para (B) of this case. It is held in paras 16 and 18 by his
Lordship as under .
“If a transaction of sale has been entered into on
behalf of a joint Hindu family selling the joint
family property then in case the managing members
of the joint family as the vendors file a suit
affirming the said transaction and to such a suit the
minor members of the joint family are impleaded
through their guardians, then it is open to the
latter to question the transaction of sale. If they
fail to do so then, in my opinion, they cannot be
allowed to file a subsequent suit seeking to
repudiate the sale transaction. The subsequent suit
challenging the aforesaid sale must be held to be
barred by the principle of resjudicata because the
minor members are bound by the verdict of the
former suit.”
Here, in this case, all the plaintiffs were joint in the former
suit for setting one saledeed aside and again filed a subsequent suit
on the basis of another saledeed with the same averments. Hence, the
principle of resjudicata is now applicable to the subsequent suit.
24. It is also observed in reported case of A.I.R. 1985 S.C. page
1096 between Jaswantsingh Vs. Custodian of Evacuee Property, New
Delhi by their Lordship that in order that a defence of res judicata
may succeed it is necessary to show that not only the cause of action
was the same but also that the plaintiff had an opportunity of getting
the relief which he is now seeking in the former proceedings. The test
is whether the claim in the subsequent suit or proceedings is in fact
founded upon the same cause of action which was the foundation of
the former suit or proceedings. These observations are perfectly
applicable to the facts of this case. The present plaintiffs of former
suit in this case had an opportunity for getting relief which they are
now seeking in this suit. I have already held above that cause of
action of both the suits was the same which was the foundation of the
former suit.
25. The learned advocate of the defendant drew my attention to
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the reported case of A.I.R. 1931 Bombay page 114 between Anant Vs.
Mahabaleshwar Bhat. It is held in this case where plaintiff being
entitled to make a claim does not make it, he is barred from making
same claim in the subsequent suit under Order 2 rule 2 C.P.C.
Subsequent suit on the ground which might have been made grounds
of attack in former suit is barred under Section 11. Here, in this case
the ground of attack is the same which were grounds of attack in the
former suit regarding legal necessity, deceased Tikaram was addicted
to bad habit and drinks. As notice was issued to the defendants. They
purchased suit property and the suit property was purchased
considerably for low price. Hence, as per above rulings and
considering the evidence and facts of this case and former suit, this
subsequent suit filed is barred under Section 11 explanation 4 of
C.P.C.”
The learned trial court relied upon the decision in case of Babu
Rajnarain Singh and another Vs. Ganesh Bind and others reported in AIR
1978 Allahabad 30. It was the case of managing members of the joint
family as the vendors filing suit affirming the transaction of sale of the joint
family property and the minor members were impleded in that suit through
the guardians. In that premise, it was held that subsequent suit challenging
the sale must be held to be barred by the principles of res judicata as minor
members were bound by the verdict of the former suit. It is, therefore,
obvious that this decision cannot be applied to the facts of the present case.
Next decision relied upon is the decision in case of Anant Subrao Nadgir Vs.
Mahableshwarbhat Gurunath Bhat Shindgi reported in AIR 1931 Bombay
114. The facts of the case were : the plaintiff brought suit for recovery of
possession of the property of his adoptive father and setting aside alienation
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of the same. A brought suit against B for recovery of properties being Suvey
Nos.88 and 89. As against Survey No.51, possession was claimed from S
although said property was alienated by A and S to B by deed of gift. Suit
between A and S was compromised, according to which A was to recover
possession of the suit property from S. A separate decree was passed against
other defendants. In execution of the decree against S, A wanted to take
possession of Survey No.51 but was obstructed by B. A's application under
Order 21 Rule 97 was dismissed. A then brought suit under Order 21 Rule
103 against B for possession of Survey No.51. It was held that A had
suppressed the fact that B was in possession of Survey No.51. It was further
held that A and B were parties to the first suit and the property in second suit
was one of the properties in the first suit although B had not been sued in
respect of that property. It is thus obvious that at one point of time A and S
had alienated Survey No.51 to B by deed of gift. Despite property being in
possession of B suit was compromised between A and S and on the strength
of that decree A wanted to recover possession of Survey No.51 which was in
possession of B. This being the factual matrix of that case, the learned trial
court was wrong in applying principle of that case to the facts and
circumstances of the instant case. The learned trial court further placed
reliance upon the decision in case of Jaswant Singh and another V/s.
Custodian of Evacuee Property, New Delhi reported in AIR 1985 S.C.1096
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which was the case relating to recovery of evacuee property in execution
proceeding. There was an ordinance 27 of 1949 which conferred new rights
on the custodian. Their Lordships held that “In order that a defence of res
judicata may succeed it is necessary to show that not only the cause of action
was the same but also that the plaintiff had an opportunity of getting the relief
which he is now seeking in the former proceedings. The test is whether the
claim in the subsequent suit or proceedings is in fact founded upon the same
cause of action which was the foundation of the former suit or proceedings.” It
is not understandable as to how learned trial court was of the view that ratio
laid down in the case supra supports the view which it has taken in the facts
and circumstances of the case.
20. However, the discussion about bar of suit on the principle of
constructive res judicata does not find place in the judgment of the Appellate
Court. The learned first appellate court concluded the judgment by
answering the point that the suit was barred under Order 2 Rule 2.
21. The defendants by entering into two sale transactions at
different point of time invited two separate actions. Certainly, both these
causes of action could have been joined together and in that event there
would have been no misjoinder of the causes of action, however, this does
not mean that the failure on the part of the plaintiffs to join both these
distinct causes of action together invited bar of Order 2 Rule 2 or Section 11
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Explanation IV. Justice C.K. Thakkar in his commentary on Civil Procedure
Code (2000 Edition) (Volume 1) at pages 160 and 167 explained the true
import of Section 11 Explanation IV by giving following illustrations :
(1) A files a suit against B for declaration that he is entitled
to certain lands as heir of C. The suit is dismissed. The subsequent
suit, claiming the same property on the ground of adverse possession,
is barred by constructive res judicata.
(2) A files a suit against B to recover money on a pronote.
B contends that the promissory note was obtained from him by
undue influence. The objection is overruled and suit is decreed. B
cannot challenge the promissory note on the ground of coercion or
fraud in subsequent suit, inasmuch as he ought to have taken that
defence in the former suit.
Assuming that there were two pronotes giving simultaneous
causes of action to the plaintiff to file suit in respect of both the pronotes but
the plaintiff filed suit only in respect of one pronote. First suit is either
dismissed or decreed. Can it be said that the second suit filed by him in
respect of the other pronote is barred only on the ground that the
defendants were the same and when the first suit was filed the cause of
action to file the second suit had already been arisen.
(3) A sues B to recover damages for a breach of contract and obtains a
decree in his favour. B cannot afterwards sue A for recession of contract on the
ground that it did not fully represent the agreement between the parties, since
that ground ought to have been taken by him in the previous suit as a ground of
defence.”
Assuming that there were two contracts between A and B and
both were breached. A chose to file suit in respect of one contract.
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Subsequently, he files the second suit alleging breach of second contract.
Can it be said that the second suit is barred only for the reasons that the
parties were the same, both contracts were similar in nature and cause of
action in respect of second suit had already been arisen when the first suit
was filed and hence second suit is barred. Conclusion deducible from the
above is if properties are distinct, if pronotes are different or when the
dispute arises out of breach of different contracts, although parties are same,
the second suit for similar property or for other pronote or for breach of
other similar nature of contract cannot be held to be barred. Neither Order 2
Rule 2 nor Section 11 Explanation IV cast duty on the plaintiff to sue in one
suit for various causes of action. What is essential is that the party is bound
to put forward his whole case as plaintiff or defendant in respect of the same
subject matter of the suit. If the plaintiff omits to raise certain ground in
respect of his claim, he will not subsequently be permitted to raise such
ground in respect of his claim. If the subject matters are separate and
distinct, the second suit for such distinct subject matter would not attract bar
of Section 11 Explanation IV.
22. There may be situation where the incidental issues like nature of
ownership of the property i.e. whether it was joint family property or
selfacquired property of Tikaram may arise in both suits. In such an event,
the findings recorded on such incidental issues may operate as res judicata in
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the subsequent suit but to say that the entire suit filed subsequently is barred
either under Order 2 Rule 2 or under Section 11 Explanation IV will be de
hors the legal position. In that view of the matter, I have no hesitation to
answer both the points in favour of the plaintiffs – appellants herein.
23. Before concluding, it is necessary to clarify that although the
trial court answered all the issues, first appellate court formulated only single
point for its determination on the touchstone of Order 2 Rule 2 and
constructive res judicata. It is settled principle that first appellate court being
the final court of facts has to consider all the evidence on record. Order 41
Rule 31 of the Code requires the first appellate court to write a selfcontent
judgment giving reasons for its decision on all the points involved for
determination. Therefore, there is no alternative than to remit back the
instant appeal to the first appellate court for decision on all the points
involved therein except those which have been concluded in this second
appeal. Thus, findings recorded by both the courts below on the issues of
applicability of Order 2 Rule and Explanation IV to Section 11 of the Code
will have to be set aside.
24. The judgment and decree dated 3rd September, 1994 passed by
the first appellate court dismissing the Regular Civil Appeal No.74/1992 is
set aside. Further, findings recorded by the trial court on the issue of
applicability of Order 2 Rule 2 and constructive res judicata are set aside.
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The matter is remitted back to the first appellate court for decision on merits
according to law, in the manner and as stated above. Regular Civil Appeal
No.74/1992 shall stand restored to its original number. The Registry shall
forthwith transmit the record and proceedings to the first appellate court.
On receipt of the same and after giving parties an opportunity of being heard
the first appellate court shall formulate points for determination involved in
the appeal except which are concluded by this judgment and shall proceed to
dispose of the same in accordance with law and within 6 months from the
date of receipt of record.
The parties are directed to appear before the first appellate court
on 12th October, 2012.
In the facts and circumstances of the matter, there shall be no
order as to costs.
JUDGE
Tambaskar.
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Rule 2 nor Section 11 Explanation IV cast duty on the plaintiff to sue in one
suit for various causes of action. What is essential is that the party is bound
to put forward his whole case as plaintiff or defendant in respect of the same
subject matter of the suit. If the plaintiff omits to raise certain ground in
respect of his claim, he will not subsequently be permitted to raise such
ground in respect of his claim. If the subject matters are separate and
distinct, the second suit for such distinct subject matter would not attract bar
of Section 11 Explanation IVThere may be situation where the incidental issues like nature of
ownership of the property i.e. whether it was joint family property or
selfacquired property of Tikaram may arise in both suits. In such an event,
the findings recorded on such incidental issues may operate as res judicata in
the subsequent suit but to say that the entire suit filed subsequently is barred
either under Order 2 Rule 2 or under Section 11 Explanation IV will be de
hors the legal position
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
Second Appeal No.5/1995
1. Zalaksingh s/o Tikarambhau Bisen,
..V/s..
1. Pramodkumar s/o Prahaladrai Agrawal,
CORAM : M.N. GILANI, J.
Pronounced on : 31/8/2012.
1. This second appeal is directed against the judgment and decree
dated 3rd September 1994 passed by Additional District Judge, Gondia in
Regular Civil Appeal No.74/1994 whereby judgment and decree dated
31/7/1992 passed by the trial court in Regular Civil Suit no.34/1971
dismissing the suit was confirmed.
2. One Tikaram died leaving behind him three sons who are
original plaintiffs 1 to 3 – appellants 1 to 3 herein and a widow who is
original plaintiff no.4 – appellant no.4 herein. Plaintiffs pleaded that the
land Khasra No.189, area 8.22 acres, situated at village Gondia (Buzruk.)
was their ancestral property. During his life time Tikaram was addicted to
vices. On 21/1/1959 Tikaram sold the land area 3.20 aces out of Kh. No.
189 to the defendants by executing sale deed. Plaintiffs filed Regular Civil
Suit no.131/1963 against the defendants for setting aside the said sale deed.
The judgment and decree passed in that suit was challenged in an appeal
and now it has reached to finality. Again Tikaram had sold remaining
portion of 4.82 acres of land out of same khasra number to the same
defendants vide registered sale deed dated 11/2/1959. To challenge second
alienation plaintiffs filed second suit being Regular Civil Suit No.34/1971.
The defendants filed written statement at Exh.16 and resisted the suit inter
alia on the grounds that the plaintiffs omitted to include the claim in respect
of land covered under second sale deed when they had filed first suit being
R.C.S. No.131/1963 and as such second suit is barred under Order 2 Rule 2
of the Civil Procedure Code. The learned trial court, mainly, relying upon the
decision in case of Mohammad Khalil Khan V/s. Mehbub Ali Mian reported in
AIR (36) 1949 Privy Council 78 held that the suit is barred under Order 2
Rule 2 and also on the principle of constructive res judicata as explained
under section 11 Explanation IV of the Code.
3. The first appellate court formulated following point for its
determination :
“Whether the suit is barred by Constructive res judicata and
as per Order 2, Rule 2 of the Code ?”
4. After considering the rival submissions, the first appellate court
concluded thus :
“Hence, I conclude that the cause of action for both these suits was
identical. On the same facts, the plaintiffs are claiming different
reliefs in both the suits and such relief cannot be claimed by them in
view of Order 2 Rule 2 especially explanation and illustration given
below Order 2 Rule 2. The explanation says that, the successive
claims arising under the obligation shall be deemed to constitute but
one cause of action. In my opinion the word “And” appearing in this
explanation to Order 2 Rule 2 should be read as disjunctive and
therefore, cancellation of first saledeed and the second saledeed are
two successive claims arising under the same obligation namely (want
of legal necessity, want of benefit of estate, and joint family nature of
the property) which create obligation on the defendants not to
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purchase the land from Tikaram and hence, it forms identical cause of
action from both suits and therefore, the later suit is barred under
Order 2 Rule 2 of Civil Procedure Code.”
5. This Court while admitting the appeal formulated following
substantial questions of law :
“(1) Whether in the facts and circumstances of the case, the
courts below were justified in holding that the two sale deeds dated
22.1.59 and 11.2.59 gave rise to the single cause of action and
noninclusion of challenge of sale deed dated 11.2.59 in Reg.C.S.
No.131 of 63 amounted to relinquishment of part of that claim ?
(2) Whether both the courts below were right in holding
that the second suit challenging second sale deed was barred by the
principles of constructive res judicata ?”
6. Before I, proceed to consider the rival submissions advanced at
the bar, for better appreciation of the facts of the case prayer clauses in both
the suits are reproduced below :
7. R.C.S. No.131/1963
“(A) A decree declaring that the sale deed Dt.2111959 is not
binding on the interest of plaintiff no.4 and for delivery of possession
to her or in the alternative a decree for setting aside the sale deed
Dt.2111959 and for delivery of possession to the plaintiffs. .....”
R.C.S. No.34/1971
(a) a decree for setting aside the sale deed dated 11259
and for possession of the suit land and,
(b) a decree directing an enquiry as to the mesne profits
from the institution of the suit until delivery of possession to the
plaintiffs together with interest thereon and, .....”
8. Mr. Borkar, the learned counsel appearing for the appellants,
contended that both the Courts below adopted wrong approach while
holding that suit is barred under Order 2 Rule 2 and under section 11
Explanation IV of the Code. He submits that the order 2 Rule 2 precludes the
party from splitting the claims and splitting the remedies but it does not
preclude a second suit based on the distinct cause of action. According to
him, provisions of Rule 2 being of penal nature and divesting in effect had to
be construed strictly. It is a highly technical plea which tends to divide and
defeat justice and deprive a party of its legitimate right. It is, therefore,
necessary for the party raising the plea of such a bar to demonstrate that
earlier and subsequent suit are based on same cause of action or there was
identity of cause of action. He relied upon decision in case of Govind V/s.
Jankibai and another reported in A.I.R. 1930 Nagpur 3. In that case a
reversioner had filed suit for possession of one property and another suit for
possession of other property. It was held that the cause of action was the sale
and the sales being different the causes of action are also different. The next
decision relied upon is in case of Parashram Ragho Kunbi V/s. Sadasheo
Namdeo Shimpi reported in A.I.R. 1936 268 wherein it was held that the
plaintiff is not obliged to put forward in one suit other claim which may have
against the defendant as the causes of action in such cases may be different
but he must include whole claim based on a particular cause of action. To
buttress his point learned counsel relied upon the decision in case of Alka
Gupta V/s. Narender Kumar Gupta reported in (2010) 10 S.C.C. 141.
9. Repelling the submissions advanced on behalf of the appellants,
Mr. Mundra, the learned counsel for the respondents, laid emphasis on Rule
2 (3) of Order 2. and contended that the cause of action to challenge the
alienation of the part of the suit land under second sale deed which was
executed just after 20 days of the first sale deed had already been arisen
when first suit was filed; omission on the part of the plaintiffs to claim relief
in respect of second sale deed squarely attracts the bar of Order 2 Rule 2.
According to him, merely because there were two sale deeds that did not
give rise to two causes of action. This is for the reasons that the cause of
action in both the suits are identical, nature and character of relief is also
same and the evidence necessary to establish the case of the plaintiffs is also
the same. He relied upon the decision in case of Mohammad Khalil Khan
V/s. Mehbub Ali Mian (supra). The facts of that case in brief were : One Rani
Barkatunnissa died leaving properties at various places. First suit was filed
for possession in respect of all properties except situated at Shahjahanpur
and the second suit was filed in respect of Shahjahanpur’s property. Before
filing both the suits Rani Barkatunnissa had died. It was observed by Their
Lordships that the causes of action for filing both the suits accrued when
Rani Barkatunnissa died and laid down the following principles :
“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 that which was the foundation for the former suit.
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.
If the evidence to support the two claims is different, then
the causes of action are also different.
The causes of action in the two suits may be considered to
be the same if in substance they are identical.
The cause of action has no relation whatever to the defence
that may be set up by the defendant nor does 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.
Where the facts which would entitle the plaintiffs, in their
new suit to recover property Y, to establish their title are
substantially the same as those alleged in their former suit to recover
property X, the causes of action in the two suits are identical and the
plaintiffs are barred by reason of O.2, R.2 from maintaining the new
suit.”
10. Next decision relied upon is in case of Dwarkadas Nathmal V/s.
Vimal alias Yamuna wife of Rajeshwar and others reported in AIR 1964
Bombay 42 wherein it was held that the causes of action in the two suits
must be the same if in substance they are identical. In that case the first suit
was filed for recovery of mesne profits for one year. The second suit was filed
for recovery of mesne profits of subsequent years. It was held that second
suit for recovery of mesne profits of subsequent years is barred. In Kunjan
Nair Sivaraman Nair V/s. Narayanan Nair and others reported in AIR 2004
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SC 1761 two suits came to be filed. In an earlier suit the decree for
declaration of right and title to the suit was sought along with relief of
injunction. The prayer for injunction was rejected as plaintiff was not found
in possession of the suit. Plaintiff filed second suit for recovery of possession.
Their Lordships held that second suit was not barred as causes of action in
both suits were not the same. In case of Shankar Sitaram Sontakke and
another V/s. Balkrishna Sitaram Sontakke and others reported in AIR 1954
SC 352 the question of applicability of Order 2 Rule of the Code was cropped
up under the following facts : There was a joint family consisting of six
brothers. They were incharge of different businesses. Then they went for
partition suit which was compromised. Confining relief to the share of the
profits and assets of other business (motor business) second suit was filed.
In that premise, it was held that first suit was the desire of the plaintiff to
separate from his brothers and divide the joint family property. The first suit
embraced entire property without any reservation and it was compromised.
Therefore, his subsequent suit to enforce part of the claim was found on the
same cause of action which deliberately was relinquished.
11. In Budhu V/s. Nahru and others reported in 1956 HIM. PRA. 50
(AIR 43 C 24 Nov.) the plaintiff had omitted to claim possession of the
entire area which defendants were allegedly in occupation but filed suit for
part of the area. Subsequently the suit for remaining part was filed. It was
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held that there was only one cause of action because defendants were in
possession over the entire area.
12. The legal position that emerges may be stated thus :
The plaintiff is to include whole of his claim in respect of a cause
of action. It, however, allows him to give up, abandon any part of his claim.
When he omits to sue or relinquishes any part of his claim, he is not allowed
afterwards to sue for the portion so omitted. Where the plaintiff is entitled
to more than one relief in respect of same cause of action and omits without
the leave of the Court any relief, he cannot thereafter sue for the relief so
omitted. All successive claims arising under the same obligation shall be
deemed to constitute one cause of action. The provision is based on the
principle that the defendants should not be vexed twice for one and the same
cause by allowing the plaintiff to split up the claims and to split up the
remedies. Unless there is identity between the cause of action on which the
earlier suit was filed and that on which the claim in the later suit is based,
there would be no scope for application of Order 2 Rule 2. Even when
several causes of action arise from one transaction plaintiff is not obliged to
sue for all of them in one suit. What the rule lays down is that if there is one
entire cause of action, the plaintiff cannot split up the same into parts so as
to bring separate suits in respect of those parts. When the subsequent suit is
based on cause of action different from that in first suit, the subsequent suit
is not barred.
13. In Deva Ram and another V/s. Ishwar Chand and another
reported in (1995) 6 SCC 733 earlier suit was for recovery of sale price of
land which was dismissed on the ground that the document relied upon was
not sale deed but an agreement for sale. Subsequent suit for recovery of
possession on the basis of title was held not barred as causes of action in the
two suits were not identical. According to Their Lordships Order 2 Rule 2
requires unity of claims based on the same cause of action in suit but it does
not contemplate unity of distinct and separate causes of action.
14. Now, adverting to the facts of the present case; the alienation of
3.20 acres made by Tikaram by executing registered sale deed dated
21/1/1959 was challenged. On 11/2/1959 Tikaram repeated the similar act
by executing another sale deed for the remaining piece of land i.e.4.82 acres.
Certainly, plaintiffs could have challenged both these alienations which is
permissible under Order 2 Rule 3. It specifically provides that the plaintiff or
plaintiffs can unite in same suit other causes of action against the same
defendant or defendants jointly in which the plaintiff or plaintiffs are jointly
interested. By no means omission to unite different causes of action can be
interpreted as splitting up the claims or splitting up the remedies arising out
of the same cause of action. The crux of the matter is whether two
alienations of separate area of the lands on different dates although in favour
of the same parties would give rise to only one cause of action and cast a
duty on a party to challenge the said alienations in one suit. Thus, question
that arises is what is the “cause of action”.
15. In Muhammad Hafiz and another V/s. Mirza Muhammad
Zakariya and others reported in A.I.R. 1922 Privy Council 23 Their
Lordships held that : “the cause of action which gives occasion to, and forms
the foundation of, the suit, and if that cause enables a man to seek for larger
and wider relief than that to which he limits his claim, he cannot afterwards
seek to recover the balance by independent proceedings.” In Kunjan Nair
Sivaraman Nair V/s. Narayanan Nair and others (supra) it is held
that : “.....One great criterion is, when the question arises as to whether the
cause of action in the subsequent suit is identical with that in the first suit
whether the same evidence will maintain both actions.”
16. When first alienation of the land area 3.20 acres on 21/1/1959
was made by executing a registered sale deed cause of action arose to the
plaintiffs to challenge the same. Ignoring the second alienation, they filed
the suit. Can it be said that by splitting the claims or remedies they sought
declaration and possession of the suit land area 3.20 of sale deed dated
21/1/1959. To put it differently, whether by restricting suit to first
alienation, the plaintiffs split up the claims or split up the remedies? This is
to be answered in negative. The execution of the second sale deed for
different area of the land i.e. 4.82 acres on 11/2/1959 although in favour of
the same party is a distinct and separate cause of action. Even it cannot be
said to be two causes of action arising out of the same transaction. The
expressions “in respect of the cause of action” occurring under Rule 2(1), “in
respect of” in Rule 2(2) and “in respect of the same cause of action”
occurring under Rule 2(3) amply connote that what is barred is splitting up
the claims and splitting up the remedies arising out of the same cause of
action. Two sets of bundle of facts arising out of two different transactions
and between similar parties would give rise to distinct causes of action and
not one. This can be well explained by quoting an illustration to
Order 2 which runs thus :
“A lets a house to B at a yearly rent of Rs.1,200. The rent for the
whole of the years 1905, 1906 and 1907 is due and unpaid. A sues B
in 1908 only for the rent due for 1906. A shall not afterwards sue B
for the rent due for 1905 or 1907.”
Let us assume that A owns two houses. Under different
agreement he lets them to B. B had fallen in arrears of rent in respect of
both the houses. When A filed suit for arrears of rent in respect of one
house, the rent had also became due in respect of second house. Could it be
said that omission on the part of A to file suit for recovery of rent in respect
of second house would preclude A from filing subsequent suit for recovery of
rent in respect of second house. Merely because defendants are the same or
relief of declaration in respect two similar nature of transactions have been
sought by filing two separate suits itself would not bar the second suit. It is
the choice of the plaintiffs either to unite or not to unite both causes of
action in one suit. In Alka Gupta V/s. Narender Kumar Gupta (supra) Their
Lordships held that bar of Order 2 Rule 2 is not applicable where second suit
is based on a different and distinct cause of action.
17. The object that ‘the defendants should not be vexed twice for the
same cause of action’ is not defeated for the simple reason that they are the
defendants who entered into two transactions and invited two distinct
actions. It is also not the case that while seeking relief of declaration that
alienation was not made out of legal necessity, the plaintiffs also sought relief
of partition. It is well settled that coowner, who challenges the alienation
made by other coowner, has right to ask for possession of the property. It is
for the alinee to sue for general partition and claim relief that the property
alienated be put to the share of cosharer alinee. Since there were two
distinct alienations for distinct areas of lands filing of two separate suits
questioning such alienations cannot attract bar of Order 2 Rule 2.
18. Now, I shall deal with the second substantial question of
law : The doctrine of res judicata is conceived in larger public interest which
requires that all litigations must, sooner than latter come to an end.
Litigation which has no end or finality defeats very object of justice. Since
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the bar of Order 2 Rule 2 has also been pressed into service, it is necessary to
point out distinction i.e. how doctrine of res judicata differs from bar under
Order 2 Rule 2. The former enjoins duty on the plaintiff or defendant to
bring forward all the grounds of attack in respect of his claim whereas later
requires plaintiff to claim all reliefs flowing from the same cause of action.
The principle of res judicata governs both the parties, plaintiff as well as the
defendant, however, Order 2 Rule 2 only applies to the plaintiff and bars the
suit (Relied on Alka Gupta V/s. Narender Kumar Gupta {supra}).
Constructive res judicata, principle behind which is that if a party had an
opportunity to raise a matter in a suit, it would be considered to have been
raised and decided. The underlined object is to cut short litigation between
the parties so that a person may not be vexed again with regard to the same
matter. It would be an abuse of the process of Court to allow a new
proceeding to be started in respect of the same issue. The rationality of
constructive res judicata is that the party should raise all his available pleas at
the first instance and raising them at each successive stage is prohibited.
19. The learned trial court upholding the contention that suit is
barred on the principle of constructive res judicata observed thus :
“.....Here, in this case, grounds of defence and attack of plaintiffs in
previous suit of 1963 and present suit of 1971 are the same.
Pleadings is also the same. Parties are also the same. Hence, the suit
of 1963 which was finally decided shall be deemed to have be a
matter directly and substantially in issue in this suit of 1971. Hence,
as per this provision in the C.P.C. the present suit is also barred by the
principle of res judicata.
23. The learned advocate of the defendants drew my attention to the
reported case of 1978 All. Page 30 between Babu Rajnarayan Singh
Vs. Ganesh Bind and others. The applicability of resjudicata is
discussed in para (B) of this case. It is held in paras 16 and 18 by his
Lordship as under .
“If a transaction of sale has been entered into on
behalf of a joint Hindu family selling the joint
family property then in case the managing members
of the joint family as the vendors file a suit
affirming the said transaction and to such a suit the
minor members of the joint family are impleaded
through their guardians, then it is open to the
latter to question the transaction of sale. If they
fail to do so then, in my opinion, they cannot be
allowed to file a subsequent suit seeking to
repudiate the sale transaction. The subsequent suit
challenging the aforesaid sale must be held to be
barred by the principle of resjudicata because the
minor members are bound by the verdict of the
former suit.”
Here, in this case, all the plaintiffs were joint in the former
suit for setting one saledeed aside and again filed a subsequent suit
on the basis of another saledeed with the same averments. Hence, the
principle of resjudicata is now applicable to the subsequent suit.
24. It is also observed in reported case of A.I.R. 1985 S.C. page
1096 between Jaswantsingh Vs. Custodian of Evacuee Property, New
Delhi by their Lordship that in order that a defence of res judicata
may succeed it is necessary to show that not only the cause of action
was the same but also that the plaintiff had an opportunity of getting
the relief which he is now seeking in the former proceedings. The test
is whether the claim in the subsequent suit or proceedings is in fact
founded upon the same cause of action which was the foundation of
the former suit or proceedings. These observations are perfectly
applicable to the facts of this case. The present plaintiffs of former
suit in this case had an opportunity for getting relief which they are
now seeking in this suit. I have already held above that cause of
action of both the suits was the same which was the foundation of the
former suit.
25. The learned advocate of the defendant drew my attention to
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the reported case of A.I.R. 1931 Bombay page 114 between Anant Vs.
Mahabaleshwar Bhat. It is held in this case where plaintiff being
entitled to make a claim does not make it, he is barred from making
same claim in the subsequent suit under Order 2 rule 2 C.P.C.
Subsequent suit on the ground which might have been made grounds
of attack in former suit is barred under Section 11. Here, in this case
the ground of attack is the same which were grounds of attack in the
former suit regarding legal necessity, deceased Tikaram was addicted
to bad habit and drinks. As notice was issued to the defendants. They
purchased suit property and the suit property was purchased
considerably for low price. Hence, as per above rulings and
considering the evidence and facts of this case and former suit, this
subsequent suit filed is barred under Section 11 explanation 4 of
C.P.C.”
The learned trial court relied upon the decision in case of Babu
Rajnarain Singh and another Vs. Ganesh Bind and others reported in AIR
1978 Allahabad 30. It was the case of managing members of the joint
family as the vendors filing suit affirming the transaction of sale of the joint
family property and the minor members were impleded in that suit through
the guardians. In that premise, it was held that subsequent suit challenging
the sale must be held to be barred by the principles of res judicata as minor
members were bound by the verdict of the former suit. It is, therefore,
obvious that this decision cannot be applied to the facts of the present case.
Next decision relied upon is the decision in case of Anant Subrao Nadgir Vs.
Mahableshwarbhat Gurunath Bhat Shindgi reported in AIR 1931 Bombay
114. The facts of the case were : the plaintiff brought suit for recovery of
possession of the property of his adoptive father and setting aside alienation
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of the same. A brought suit against B for recovery of properties being Suvey
Nos.88 and 89. As against Survey No.51, possession was claimed from S
although said property was alienated by A and S to B by deed of gift. Suit
between A and S was compromised, according to which A was to recover
possession of the suit property from S. A separate decree was passed against
other defendants. In execution of the decree against S, A wanted to take
possession of Survey No.51 but was obstructed by B. A's application under
Order 21 Rule 97 was dismissed. A then brought suit under Order 21 Rule
103 against B for possession of Survey No.51. It was held that A had
suppressed the fact that B was in possession of Survey No.51. It was further
held that A and B were parties to the first suit and the property in second suit
was one of the properties in the first suit although B had not been sued in
respect of that property. It is thus obvious that at one point of time A and S
had alienated Survey No.51 to B by deed of gift. Despite property being in
possession of B suit was compromised between A and S and on the strength
of that decree A wanted to recover possession of Survey No.51 which was in
possession of B. This being the factual matrix of that case, the learned trial
court was wrong in applying principle of that case to the facts and
circumstances of the instant case. The learned trial court further placed
reliance upon the decision in case of Jaswant Singh and another V/s.
Custodian of Evacuee Property, New Delhi reported in AIR 1985 S.C.1096
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which was the case relating to recovery of evacuee property in execution
proceeding. There was an ordinance 27 of 1949 which conferred new rights
on the custodian. Their Lordships held that “In order that a defence of res
judicata may succeed it is necessary to show that not only the cause of action
was the same but also that the plaintiff had an opportunity of getting the relief
which he is now seeking in the former proceedings. The test is whether the
claim in the subsequent suit or proceedings is in fact founded upon the same
cause of action which was the foundation of the former suit or proceedings.” It
is not understandable as to how learned trial court was of the view that ratio
laid down in the case supra supports the view which it has taken in the facts
and circumstances of the case.
20. However, the discussion about bar of suit on the principle of
constructive res judicata does not find place in the judgment of the Appellate
Court. The learned first appellate court concluded the judgment by
answering the point that the suit was barred under Order 2 Rule 2.
21. The defendants by entering into two sale transactions at
different point of time invited two separate actions. Certainly, both these
causes of action could have been joined together and in that event there
would have been no misjoinder of the causes of action, however, this does
not mean that the failure on the part of the plaintiffs to join both these
distinct causes of action together invited bar of Order 2 Rule 2 or Section 11
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Explanation IV. Justice C.K. Thakkar in his commentary on Civil Procedure
Code (2000 Edition) (Volume 1) at pages 160 and 167 explained the true
import of Section 11 Explanation IV by giving following illustrations :
(1) A files a suit against B for declaration that he is entitled
to certain lands as heir of C. The suit is dismissed. The subsequent
suit, claiming the same property on the ground of adverse possession,
is barred by constructive res judicata.
(2) A files a suit against B to recover money on a pronote.
B contends that the promissory note was obtained from him by
undue influence. The objection is overruled and suit is decreed. B
cannot challenge the promissory note on the ground of coercion or
fraud in subsequent suit, inasmuch as he ought to have taken that
defence in the former suit.
Assuming that there were two pronotes giving simultaneous
causes of action to the plaintiff to file suit in respect of both the pronotes but
the plaintiff filed suit only in respect of one pronote. First suit is either
dismissed or decreed. Can it be said that the second suit filed by him in
respect of the other pronote is barred only on the ground that the
defendants were the same and when the first suit was filed the cause of
action to file the second suit had already been arisen.
(3) A sues B to recover damages for a breach of contract and obtains a
decree in his favour. B cannot afterwards sue A for recession of contract on the
ground that it did not fully represent the agreement between the parties, since
that ground ought to have been taken by him in the previous suit as a ground of
defence.”
Assuming that there were two contracts between A and B and
both were breached. A chose to file suit in respect of one contract.
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Subsequently, he files the second suit alleging breach of second contract.
Can it be said that the second suit is barred only for the reasons that the
parties were the same, both contracts were similar in nature and cause of
action in respect of second suit had already been arisen when the first suit
was filed and hence second suit is barred. Conclusion deducible from the
above is if properties are distinct, if pronotes are different or when the
dispute arises out of breach of different contracts, although parties are same,
the second suit for similar property or for other pronote or for breach of
other similar nature of contract cannot be held to be barred. Neither Order 2
Rule 2 nor Section 11 Explanation IV cast duty on the plaintiff to sue in one
suit for various causes of action. What is essential is that the party is bound
to put forward his whole case as plaintiff or defendant in respect of the same
subject matter of the suit. If the plaintiff omits to raise certain ground in
respect of his claim, he will not subsequently be permitted to raise such
ground in respect of his claim. If the subject matters are separate and
distinct, the second suit for such distinct subject matter would not attract bar
of Section 11 Explanation IV.
22. There may be situation where the incidental issues like nature of
ownership of the property i.e. whether it was joint family property or
selfacquired property of Tikaram may arise in both suits. In such an event,
the findings recorded on such incidental issues may operate as res judicata in
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the subsequent suit but to say that the entire suit filed subsequently is barred
either under Order 2 Rule 2 or under Section 11 Explanation IV will be de
hors the legal position. In that view of the matter, I have no hesitation to
answer both the points in favour of the plaintiffs – appellants herein.
23. Before concluding, it is necessary to clarify that although the
trial court answered all the issues, first appellate court formulated only single
point for its determination on the touchstone of Order 2 Rule 2 and
constructive res judicata. It is settled principle that first appellate court being
the final court of facts has to consider all the evidence on record. Order 41
Rule 31 of the Code requires the first appellate court to write a selfcontent
judgment giving reasons for its decision on all the points involved for
determination. Therefore, there is no alternative than to remit back the
instant appeal to the first appellate court for decision on all the points
involved therein except those which have been concluded in this second
appeal. Thus, findings recorded by both the courts below on the issues of
applicability of Order 2 Rule and Explanation IV to Section 11 of the Code
will have to be set aside.
24. The judgment and decree dated 3rd September, 1994 passed by
the first appellate court dismissing the Regular Civil Appeal No.74/1992 is
set aside. Further, findings recorded by the trial court on the issue of
applicability of Order 2 Rule 2 and constructive res judicata are set aside.
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The matter is remitted back to the first appellate court for decision on merits
according to law, in the manner and as stated above. Regular Civil Appeal
No.74/1992 shall stand restored to its original number. The Registry shall
forthwith transmit the record and proceedings to the first appellate court.
On receipt of the same and after giving parties an opportunity of being heard
the first appellate court shall formulate points for determination involved in
the appeal except which are concluded by this judgment and shall proceed to
dispose of the same in accordance with law and within 6 months from the
date of receipt of record.
The parties are directed to appear before the first appellate court
on 12th October, 2012.
In the facts and circumstances of the matter, there shall be no
order as to costs.
JUDGE
Tambaskar.
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