In order that a plea of a bar under 0. 2. r. 2(3), Civil
Procedure Code should succeed the defendant who raises the plea
must make out (1) that the second suit was in respect of the same
cause of action as that on which the previous suit was based, (2)
7 AIR 1964 Supreme Court 1980
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 Court, omitted
to sue for the relief for which the second suit had been filed. From
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 earlier suit was filed
and that on which the claim in the later suit is based there would
be no scope for the application of the bar. No doubt, a relief
which is sought in a plaint could ordinarily be traceable to a
particular cause of action but this might, by no means, be the
universal rule. As the plea 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 0. 2. r. 2, Civil Procedure Code 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. It is common ground that the
pleadings in C.S. 28 of 1950 were not filed by the appellant in the
present suit as evidence in support of his plea under 0. 2. r. 2,
Civil Procedure Code. The learned trial Judge, however, without
these pleadings being on the record inferred what the cause of
action should have been from the reference to the previous suit
contained in the plaint as a matter of deduction. At the stage of
the appeal the learned District Judge noticed this lacuna in the
appelllant's case and pointed out, in our opinion rightly, that
without the plaint in the previous suit being on the record, a plea
of a bar under 0. 2. r. 2, Civil Procedure Code was not main-
tainable.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
SUIT NO. 2063 OF 2001
Jaswinder Paul Batra of U.S.A.,
Versus
Mrs.Neeru Batra
CORAM : K.R.SHRIRAM, J.
DATE : 23RD FEBRUARY, 2015
Citation;AIR 2015(NOC)656 Bom
By an order dated 30th November 2011, this Court was pleased to
1
frame the following two issues as preliminary issues in this suit :
(1)
Whether the suit is barred by the law of
Limitation?
2
(2)
Whether the suit is barred under Section 11 of the
Civil Procedure Code, 1908 since the plaintiffs had earlier
filed a suit before the Court in the State of New York,
Surrogate's Court, County of Nassau?
One Jaswant Singh Premi expired on 22nd September 1993 in New
York, USA leaving behind him a last Will and Testament dated 11th July
1993. The plaintiff no.1 who is the son of the said deceased Jaswant Singh
Premi was appointed as an executor under the Will. The plaintiff no.2 is the
wife of the first plaintiff. The plaintiff no.3 is the daughter of the plaintiff
nos.1 and 2 who, at the time of death of Jaswant Singh Premi was a minor,
born on 22nd February 1993. The deceased Jaswant Singh Premi, by way of
his Will, created a trust to the benefit of the plaintiff no.3. The plaintiff nos.1
and 2 are trustees of the said trust and they are suing in their capacity as
executor and trustees. Defendant no.1 in his written statement in paragraphs
7 and 8 has stated that he was a nominee and hence a trustee. The defendant
no.1 was the cousin of the deceased Jaswant Singh Premi and an uncle of
the plaintiff no.1. The defendant no.2 is nephew of the deceased and the
defendant no.3 is the banking company constituted under the provisions of
Banking companies (Acquisition & Transfer of Undertaking) Act, 1980.
Defendant no.1 died on or about 3rd August 2012 and is now
represented by his legal heirs and representatives. The defendant no.2 is
absconding and interpol alerts are pending against him. The cause of action
in short is that the defendants in collusion with each other, by the fraudulent
acts of omission and commission and by deliberate fraud and suppression of
the relevant documents kept the plaintiffs from having full and complete
knowledge of the plaintiffs' right to the amounts which were to go for the
benefit of plaintiff no.3 under the last Will and Testament of Jaswant Singh
Premi and the same has been misappropriated by the defendants. The
plaintiff no.3 is the true owner of the amounts and is entitled to recover the
same with interest. The amounts involved are substantial. The reliefs sought
in the plaint are as under :
(a)
a decree against defendant no.1(a) to 3 to render full true
and correct accounts in respect of Account No.FCNR 05/92-93
and/or FCNR 424/173/93 deposited by the 1st Plaintiff's father
with the 3rd Defendant Bank and all accretions thereto and for or
in respect of any other monies that may have been deposited be
by or on behalf of 1st Plaintiff's father, Jaswant Singh Premi;
(aa) a decree against Defendant no.1(a) to 3 to render full true
and correct accounts in respect of FCNR A/c. No.0756232/8/93
deposited by the 1st Plaintiff's father with the 3rd Defendant Bank
and all accretions thereto and for or in respect of any other
monies that may have been deposited by or on behalf 1st
Plaintiff's father Jaswant Singh Premi;
(ac) a decree against Defendants no.1(a) to 3 to render full true
and correct accounts in respect of Account Nos.(i) FCNR
0677213/2/93-94,
(ii)
0677255/33/93-94,
(iii)
FCNR
0677249/27/93-94, (iv) FCNR 0676537/31/92, (v) FCNR
0676541/35/92, (vi) FCNR 0676571/70/92-93, (vii) FCNR
0677258/34/93-94, (viii) FCNR 0773134/93-94 and (ix) FCNR
0773739/5/93-94 deposited by the 1st Plaintiff's father with the 3rd
Defendant Bank and all accretions thereto and for or in respect of
any other monies that may have been deposited by on or behalf of
1st Plaintiff's father Jaswant Singh Premi;
(b)
a decree against Defendants no.1(a) to 3 in the sum of US
Dollars 4,11,817.87 with interest thereon at 12% per annum from
4th February 1994 as per particulars annexed hereto and marked
Exhibit 'I, being the amount of the said deposit and accretions
thereto and/or as and by way of damages for loss caused to the
Plaintiffs by the Defendant nos.1(a) to 3;
(ba) a decree against Defendant No.1(a) to 3 in the sum of US$
560,813.27 with interest thereon at 12% per annum from January
27, 1994 as per particulars annexed hereto and marked Exhibit 'I-
1' , being the amount of the said deposit and accretions there
and/or as and by way of damages for loss caused to the Plaintiffs
by the defendant Nos.1(a) to 3;
(bb) a decree against Defendant Nos.1(a) to 3 in the sum of
US$ 1,827,743.38 and GBP 5,057.19 with interest thereon at 12%
per annum from August, 1994 as per particulars annexed hereto
and marked Exhibit 'I-2' being the amount of the said deposit and
accretions and/or as and by way of damages for loss caused to
the Plaintiffs by the Defendant Nos.1(a) to 3.
It is the case of the defendants that the suit is barred by limitation and
also hit by principles analogous to res-judicata.
A further background of certain other proceedings that was taken by
matter :
the plaintiffs is necessary to be mentioned to appreciate the issues in the
Sometime on 19th January 1994, the plaintiff nos.1 and 2 received a
letter from defendant no.3 addressed to Jaswant Singh Premi giving the
details of account No.0000424/173/93 which was up for renewal. This
indicated that defendant no.3 was not aware of the demise of Jaswant Singh
Premi. In June 1994, the plaintiffs applied for Probate of the Will in New
York, County Nassau, USA. This was because when the plaintiffs made
enquiry with defendant no.3, though defendant no.3 initially disclosed
certain details, the plaintiffs were advised that unless they obtain a letter of
administration (LOA) from a competent Court in India, the plaintiffs will
not be entitled to get further details or to deal with the Bank. Under Section
228 of the Indian Succession Act, 1925 and form 107 of the Bombay High
Court (OS) Rules, the plaintiffs had to first obtain a Probate from the
competent Court in USA. The plaintiffs, therefore, applied for Probate in
USA and after obtaining the Probate, filed proceedings in Bombay and
obtained LOA on 27th February 1997. The petition filed was Probate Petition
No.713 of 1996. In the said petition, on an application taken out by the
plaintiffs for disclosure of details relating to the accounts with defendant
no.3 that the deceased Jaswant Singh Premi had, this Court by two orders
dated 24th December 1997 and 14th January 1998, directed defendant no.3 to
disclose details of all accounts of the deceased Jaswant Singh Premi had.
In July 1998, while giving inspection, defendant no.3 suddenly
stopped giving inspection and informed the plaintiffs that the details that
were being sought, all were old accounts and hence the bank cannot give
inspection or provide details.
It is the case of the plaintiffs that during the course of inspection, they
found too many grey areas and loopholes and the bank became cautious and
did not give inspection. Some of the issues which alarmed the plaintiffs and
made the defendant no.3 stop giving inspection were (a) the name of
defendant no.2 was added to all the accounts on 12 th October 1993 whereas
Jaswant Singh Premi died on 22nd September 1993, (b) there was a letter
addressed by defendant no.1 on 4th February 1994 to defendant no.3
instructing renewal of one of the accounts and also instructing that the
accounts be issued in the name of defendant no.2 since the other account
holder Jaswant Singh Premi had expired and (c) a copy of the Power of
Attorney executed by defendant no.2 in favour of defendant no.1 and the
Death Certificate of Jaswant Singh Premi were annexed to the said letter.
The plaintiffs had filed a suit on 9 th May 2000 bearing suit
5
No.280/2001 which was withdrawn on 10th April 2001 with the Court
granting liberty to file fresh suit. The present suit was lodged on 27 th April
2001.
On 22nd February 2011, plaintiff no.3 turned 18. Under the last Will
6
and testament of Jaswant Singh Premi, plaintiff no.3 was to get the amounts
bequeathed to her on her attaining age of 21.
7
It is the case of the plaintiffs that the suit is not barred by limitation.
The suit was lodged on 27th April 2001 and their submissions are on three
counts namely : (a) under Section 6 of the Limitation Act, 1963, where a
person entitled to institute a suit is at the time from which the prescribed
period is to be reckoned a minor then the person may institute a suit within
the same period after the person becomes a major namely becomes of 18
years of age. The plaintiff no.3 attained the age of 18 on 22 nd February 2011
and hence not time barred ; (b) the suit has been filed in view of a fraud
played by defendant nos.1, 2 and 3 and therefore the period of limitation
shall not begin to run until the plaintiffs had discovered the fraud or could
with reasonable diligence have discovered it. The plaintiffs realized that
there was a fraud being played by the defendants only when the bank
stopped giving inspection and provide details and that happened in July
1998. Hence, the suit is within limitation; and (c) under Section 10 of the
Limitation Act, 1963, even if defendant no.1 was a nominee of all the FCNR
Accounts, he is only a legal representative of all the beneficiaries/legal heirs
of deceased Jaswant Singh Premi and therefore, under Section 10 of the
Limitation Act, any suit against such a person shall not be barred by any
length of time.
The plaintiffs also raised a common point for all the above three
8
counts, viz., that the period when the earlier suit No.380 of 2003 was filed
and withdrawn with liberty to file fresh suit, i.e., between 9 th May 2000 and
10th April 2001, should in any event be excluded.
9
On the issue of Section 11 of the Code of Civil Procedure, 1908 res-
judicata, the plaintiffs submitted that the plaintiffs had filed a suit in USA
against defendant no.2 which came to be withdrawn due to a settlement
offered by defendant no.2. But the settlement never came through. In any
event, the counsel for the plaintiffs submitted that no order of the US Court
is before this Court and any judgment of US Court is also a question of fact.
The defendants were given opportunity to file evidence to bring on record
all documents on 22nd August 2013 and extended on 3rd October 2013, but
The counsel for defendant no.1, whose submissions were adopted by
10
be looked into unless it proved as fact.
the defendants chose not to lead any evidence. Therefore, no document can
the counsel for defendant no.3, stated that the suit is grossly time barred on
various counts : (i) the suit has been filed by defendant no.1 as executor of
the last Will and Testament of Jaswant Singh Premi who died on 21 st
September 1993 hence the period of limitation would get over on 22 nd
September 1996; (2) the Probate of the Will in USA was obtained on 3 rd
June 1994 in which details of FCNR Accounts are mentioned and three
years from that date will be 2nd June 1997; (3) the US proceedings against
defendant no.2 was filed on 24th April 1996 and three years will be 23rd April
1999 when there was an ex-parte order passed on 21st June 1996 permitting
plaintiff no.1 to sue for the FCNR’s and three years will be 20 th June 1999.
These US proceedings are not brought on record and cannot be considered
because despite being given opportunities, the defendants did not lead
evidence to bring it on record ; (4) Probate Petition No.713/1996 was filed
in Mumbai High Court in which again details of FCNR's are given and three
years will get over on 19th September 1999; (5) Suit No.380 of 2001 was
filed on 9th May 2000 in which details of FCNR's are mentioned. In Exhibit
“A” to the said suit and Exhibit “B” to the said suit, the dates given are 4 th
August 1995 and 7th September 1995 and hence three years will get over on
3rd August 1998 and 6th September 1998, respectively. The counsel,
therefore, submitted that the suit, from any point of view, is barred by
The counsel for defendant no.1 also submitted that under Section 211
11
limitation.
of the Indian Succession Act, 1925, the property of the deceased vests on the
executor and therefore, the time should commence from the date on which
the limitation should get triggered and the date is the date on which Jaswant
Singh Premi died, i.e., 22nd February 1993. He relied on a judgment in the
matter of Mohanlal Dungarmal Futnani Vs. Vishanji
Dungarmal
Futnani & Ors. 1 to butress this point. In my view, though this judgment re-
emphasizes the legal position that the estate of the deceased vests in the
executor upon the death of the testator irrespective of grant of probate or
not, is not really relevant to the present case inasmuch as it does not deal
1 2001 Cal.122
No probate is required for an executor to sue but we have also to take
12
with the situation where a minor is involved.
into account Section 6 of the Limitation Act. The counsel for defendant no.1
relied on judgment of the Bombay High Court in the matter of
S.M.K.R.Meyappa Chetty Vs. S.N. Supramanian Chetty 2 to submit that the
executor is a representative of the Testator.
The counsel also relied on a judgment of the Apex Court in the matter
of Y. Narasimha Rao & Ors. Vs. Y. Venkata Lakshmi & Anr. 3 to submit
that under Section 74(1)(iii) of the Indian Evidence Act, documents forming
the acts or records of the acts of public judicial officers of a foreign country
are public documents and under Section 76 read with Section 77 of the
Indian Evidence Act, certified copies of such documents may be produced
in proof of their contents. In my view, it does not help the case of defendant
no.1 in the current proceedings. In the said judgment the Apex Court has
also held that under Section 86 of the Indian Evidence Act there is
presumption with regard to the genuineness and accuracy of such certified
copy only if it is also certified by the representative of our Central
Government in or for that country in the manner in which it has been
2 MANU/MN/0061/1916
3 (1991)3 SCC 451
certified is commonly in use in that country for such certification. There is
to the American proceedings can be considered.
14
no such certification whatsoever. Therefore, none of the documents relating
On the issue of fraud, it was submitted that fraud has to be first
established. The Apex Court in the matter of Pallav Sheth vs Custodian &
Ors.4 has, in paragraphs 47 and 48, held as under :
47
Section 17 of the Limitation Act, inter alia, provides that
where, in the case of any suit or application for which a period of
limitation is prescribed by the Act, the knowledge of the right or
title on which a suit or application is founded is concealed by the
fraud of the defendant or his agent (Section 17(1)(b)) or where
any document necessary to establish the right of the Plaintiff or
Applicant has been fraudulently concealed from him (Section
17(1)(d)), the period of limitation shall not begin to run until the
Plaintiff or Applicant has discovered the fraud or the mistake or
could, with reasonable diligence, have discovered it; or in the
case of a concealed document, until the Plaintiff or the Applicant
first had the means of producing the concealed document or
compelling its production. These provisions embody fundamental
principles of justice and equity, viz, that a party should not be
penalised for failing to adopt legal proceedings when the facts or
material necessary for him to do so have been wilfully concealed
from him and also that a party who has acted fraudulently should
not gain the benefit of limitation running in his favour by virtue
of such fraud.
48
The provisions of Section 17 of the Limitation Act are
applicable in the present case. The fraud perpetuated by the
Appellant was unearthed only on the Custodian receiving
information from the Income Tax Department, vide their letter of
5th May, 1998. On becoming aware of the fraud application for
initiating contempt proceedings was filed on 18th June, 1998,
4 (2001) 7 SCC 549
well within the period of limitation prescribed by Section 20. It is
on this application that the Special Court by it's order of 9th April,
1999 directed the application to be treated as a show cause notice
to the Appellant to punish him for contempt. In view of the
abovestated facts and in the light of the discussion regarding the
correct interpretation of Section 20 of the Contempt of Courts Act
it follows that the action taken by the Special Court to punish the
Appellant for contempt was valid. The Special Court has only
faulted in being unduly lenient in awarding the sentence. We do
not think it is necessary, under the circumstances to examine the
finding of the Special Court that this was a continuing wrong or
contempt and, therefore, action for contempt was not barred by
Section 20.
In my view, a fraud can be established only at the trial and not at the
interim stage.
I have gone through the pleadings and considered the arguments of
15
the opposing counsels. In my view, the suit is not barred by limitation and is
not hit by the principles analogous to res-judicata, i.e., Section 11 of the
Code of Civil Procedure. On limitation, when one reads the plaint as a
whole though plaintiff no.1 has described his role as an executor and trustee
and plaintiff no.2 as trustee, the whole purpose of filing this suit is as a
trustee is for plaintiff no.3. Plaintiff no.3 was a minor and I would say an
infant of 7 months when Jaswant Singh Premi died. If plaintiff no.3 herself
had to institute a suit, she could have instituted the suit after she attained 18
which would be in the year 2011. The suit has been lodged on 27 th April
2001. If we have to accept the submissions of the counsel for defendant no.1
that the executor should have filed the suit within three years and not having
done, the plaintiff no.3 cannot take advantage of her status as a minor, then,
in that case, Section 6 will be rendered redundant. The submissions of
counsel for defendant no.1 that the executor need not have waited for
obtaining Probate is also not acceptable, because, the beneficiary of the Will
is a minor who turned 18 only in 2011, 10 years after the suit was lodged. If
there was no minor involved, the said situation might have been different.
In the matter of Satyendra Narain Sinha & Ors. Vs. Pitamber Singh
& Ors.5, where the issue was for execution of a decree, it was held that a
minor is not precluded from applying within the statutory period of three
years from his attaining majority and order in previous proceeding does not
affect it. The Court held that Section 6 applies to every minor, whether he
has a guardian or not and the existence of a minor competent to sue is
immaterial. Under Section 6(1) of the Act, a minor is "entitled to institute a
suit or make an application for the execution of a decree" within the
statutory period of three years after attaining majority and it is clear that the
Legislature never intended to restrict the protection given to a minor by the
acts of his guardian in the matter of making an application for execution.
5 A.I.R.1938 Patna 92
The Court further held that where a guardian for minor applies for execution
of a decree on behalf of the minor and that application is held to be barred
by limitation, the minor is not precluded from applying for execution of
decree within the statutory period of three years from the date of attaining
majority and the orders passed in the previous execution proceedings is not
binding on him. In the matter of The Electricity Board, U.P. State, Vs. Sheo
Nath Singh & Anr.6, the Court held that where the child of the deceased was
a minor on the date of accident a suit for compensation filed on his behalf
and for the benefit of his widowed mother during the continuation of his
minority but after expiry of ordinary period of limitation will be saved under
Section 6.
17
Therefore, in my view, the fact that plaintiff no.3 was a minor for
whose benefit this suit has been filed, even assuming on a worse case the
scenario the suit was filed by plaintiff no.1 as the executor might have been
time barred, Section 6(1) will come to the rescue of the plaintiffs because it
was never the intention of the Legislature to restrict the protection to the
minor by the acts of his guardian.
18
Reading the plaint, as a whole, it also makes it clear that the main
6 AIR 1976 Allahabad 118
grievance or the cause of action is the fraud played as alleged by the
defendants. The plaintiffs never imagined something was amiss until they
started taking inspection pursuant to orders of this Court and suspicion was
aroused when defendant no.3 stopped giving inspection. Therefore, as the
last inspection was given in July 1998, under Section 17 of the Limitation
Act, the 3 years period would commence from July 1998 and therefore the
suit will still be within time.
Since, I have held in favour of the plaintiffs on these two points, there
19
is no need to go into the 3rd point under Section 10 of the Limitation Act.
20
On the issue of res-judicata, the defendants were given an opportunity
to lead evidence. However, the defendants chose not to lead evidence. The
7
has held that
Apex Court in the matter of Gurbux Singh Vs. Bhooralal
where the plea of bar is raised by the defendants, the onus is upon the
defendants to establish satisfactorily that the suit is barred and cannot be
presumed merely on basis of inferential reasoning. Paragraphs 6 and 7 of the
judgment read as under :
(6)
In order that a plea of a bar under 0. 2. r. 2(3), Civil
Procedure Code should succeed the defendant who raises the plea
must make out (1) that the second suit was in respect of the same
cause of action as that on which the previous suit was based, (2)
7 AIR 1964 Supreme Court 1980
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 Court, omitted
to sue for the relief for which the second suit had been filed. From
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 earlier suit was filed
and that on which the claim in the later suit is based there would
be no scope for the application of the bar. No doubt, a relief
which is sought in a plaint could ordinarily be traceable to a
particular cause of action but this might, by no means, be the
universal rule. As the plea 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 0. 2. r. 2, Civil Procedure Code 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. It is common ground that the
pleadings in C.S. 28 of 1950 were not filed by the appellant in the
present suit as evidence in support of his plea under 0. 2. r. 2,
Civil Procedure Code. The learned trial Judge, however, without
these pleadings being on the record inferred what the cause of
action should have been from the reference to the previous suit
contained in the plaint as a matter of deduction. At the stage of
the appeal the learned District Judge noticed this lacuna in the
appelllant's case and pointed out, in our opinion rightly, that
without the plaint in the previous suit being on the record, a plea
of a bar under 0. 2. r. 2, Civil Procedure Code was not main-
tainable. Learned counsel for the appellant, however, drew our
attention to a passage in the judgment of the learned Judge in the
High Court which read:
LP(D)ISCl-27(a) 836 "The plaint, written statement or the
judgment of the earlier Court has not been filed by any of the
parties to the suit. The only document filed was the judgment in
appeal in the earlier suit. The two Courts have, however, freely
cited from the record of the earlier suit. The counsel for the
parties have likewise done so. That file is also before this Court."
It was his submission that from this passage we should infer that
the parties had, by agreement, consented to make the pleadings in
the earlier suit part of the record in the present suit. We are unable
to agree with this interpretation of these ,observations. The
statement of the learned Judge "the two Courts have, however,
freely cited from the record of the ,earlier suit" is obviously
inaccurate as the learned District Judge specifically pointed out
that the pleadings in the earlier suit were not part of the record
and on that very ground had rejected the plea of the bar under 0.
2. r. 2, Civil Procedure Code. Nor can we find any basis for the
suggestion that the learned Judge had admitted these documents
at the second appeal stage under 0. 41. r. 27, Civil Procedure
Code by consent of parties. There is nothing on the record to
suggest such an agreement or such an order, assuming that
additional evidence could legitimately be admitted in a second
appeal under 0. 41. r. 27, Civil Procedure Code. We can therefore
proceed only on the basis that the pleadings in the earlier suit
were not part of the record in the present suit.
(7)
Learned counsel for the appellant, however, urged that in
his plaint in the present suit the respondent had specifically
referred to the previous suit having been for mesne profits and
that as mesne profits could not be claimed except from a
trespasser there should also have been an allegation in the
previous suit that the defendant was a trespasser in wrongful
possession of the property and that alone could have been the
basis for claiming mesne profits. We are unable to accept this
argument. In the first place, it is admitted that the plaint in the
present suit was in Hindi and that the word `mesne profits' is an
English translation of some expression used in the original. The
original of the plaint is not before us and so it is not possible to
verify whether the expression `mesne profits' is an accurate
translation of the expression in the original plaint. This apart, we
consider that learned counsel's argument must be rejected for a
more basic reason. Just as in the case of a plea of res judicata
which cannot be established in the absence on the record of the
judgment and decree which is pleaded as estoppel, we consider
that a plea under 0. 2. r. 2, Civil Procedure Code cannot be made
out except on proof of the plaint in the previous suit the filing of
which is said to create the bar. As the plea is basically founded
837 on the identity of the cause of action in the two suits the,
defence which raises the bar has necessarily to establish the,
cause of action in the previous suit. The cause of action would be
the facts which the plaintiff had then alleged to support the right
to the relief that he claimed. Without placing before the Court the
plaint in which those facts were alleged, the defendant cannot
invite the Court to speculate or infer by a process of deduction
what those facts might be with reference to the reliefs which were
then claimed. It is not impossible that reliefs were claimed
without the necessary averments to justify their grant. From the
mere use of the words `mesne profits' therefore one need not
necessarily infer that the possession of the defendant was alleged
to be wrongful. It is also possible that the expression 'mesne
profits' has been used in the present plaint without a proper
appreciation of its significance in law. What matters is not the
characterisation of the particular sum demanded but what in
substance is the ,allegation on which the claim to the sum was
based and as regards the legal relationship on the basis of which
that relief was sought. If is because of these reasons that we
consider that a plea based on the existence of a former pleading
cannot be entertained when the pleading on which it rests has not
been produced. ......”
The defendants have not cleared the test of proving such bar. Moreover, the
issue of limitation is a mixed question of law and fact.
In these circumstances, in my view, the suit is filed within limitation
21
and also not hit by the principles analogous to res-judicata, i.e., Section 11
of the Code of Civil Procedure. My answer to both the preliminary issues is
-Negative. Costs of this application will be costs in the suit.
(K.R. SHRIRAM, J.)
22
The suit to be listed on 25th March 2015 for framing of issues.
documents and also complete discovery and inspection.
In the meanwhile, parties to file their respective affidavit of
(K.R. SHRIRAM, J.)
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