The petitioner/respondent/plaintiff has filed this civil revision petition as against the order dated 27.06.2008 in I.A.No.595 of 2007 in O.S.No.118 of 2006 passed by the Learned Subordinate Judge, Udhagamandalam in allowing the application filed by the first respondent/petitioner/first defendant under Order 7, Rule 11 read with Order 2, Rule 2 of Civil Procedure Code praying the Court to reject the plaint.
2. The trial Court while passing orders in I.A.No.595 of 2007 dated 27.06.2008 has interalia observed that 'the plaintiff on the same cause of action has filed two suits and during the period of earlier case the plaintiff has known that a suit for specific performance has to be filed and the plaintiff has earlier filed a suit for permanent injunction alone and later has filed the present suit of specific performance and when he has not pressed the earlier suit, the present suit filed by the plaintiff is hit by the provision of Order 2, Rule 2 of Civil Procedure Code and therefore, the application has to be allowed and the plaint has to be rejected and resultantly, allowed the application without costs.'
3. The learned counsel for the revision petitioner/first respondent/plaintiff submits that the suit property comprised in ReSurvey No.509/3 part in Patta No.32 at Athippaly, of Gudalur Village for an extent of 12 cents including a house bearing No.12/67E2, has been offered for sale by the first respondent/first defendant for a sale price of Rs.1,25,000/- and that the revision petitioner/plaintiff has accepted the same and paid ready cash of Rs.1,10,000 and by entering in to a written advance sale agreement dated 02.06.2003 and after the sale agreement on the same date itself the possession of the suit property has been handed over by the first respondent to the revision petitioner etc., and further on 01.11.2006 the second respondent/second defendant visited the suit property along with first respondent/first defendant and the revision petitioner has come to know that the first respondent has been surreptitiously trying to sell the suit property to the second respondent/second defendant and hence, the revision petition has filed a suit O.S.No.99 of 2006 seeking relief of bare injunction on 06.11.2006 and I.A.No.404 of 2006 has been dismissed by the Learned District Munsif, Gudalur on 27.11.2006 for want of pecuniary jurisdiction and proper forum and later on 29.11.2006 the revision petition has filed a suit for injunction and specific performance O.S.No.18 of 2006 on the file of Learned Sub Judge, Udhagamandalam and subsequently the revision petitioner has withdrawn O.S.No.99 of 2006 filed before the District Munsif Court, Gudalur passed upon the instruction and permission of the said Court and the first respondent/first defendant has filed an I.A.No.595 of 2007 dated 26.12.2007 under Order 2, Rule 2 of Civil Procedure Code stating that the suit should be rejected for the reason that O.S.No.118 of 2006 is not maintainable and the cause of action in O.S.No.59 of 2006 on the file of District Munsif Court, Gudalore and the cause of action in O.S.No.118 of 2006 on the file of Sub Judge, Udhagamandalam are same and in fact, Order 2, Rule 2 is not applicable in as much as the surrounding circumstances and facts in both the suits mentioned supra are different.
4. Continuing further, the learned counsel for the revision petitioner/plaintiff contends that the trial Court has committed an error in not rendering a finding that Order 2, Rule 2 is not applicable to the facts and circumstances of the case relating to the suit O.S.No.118 of 2006 on the file of Learned Sub Judge, Udhagamandalam and that the provision of Order 2, Rule 2 of Civil Procedure Code is more in the nature of a general policy statement rather than a mandatory provision and really speaking, the cause of action arising for the second suit during the pendancy of the suit is no bar for the second suit and the trial Court has also not appreciated all the fact that in the earlier suit the revision petitioner cannot claim the relief which he claims in the suit and in any event the second suit namely, O.S.No.118 of 2006 filed before the Sub Judge, Udhagamandalam is not barred under Order 2, Rue 2 of Civil Procedure Code, but these factual and legal aspects of the matter have not been adverted to, and considered properly by the trial Court which has resulted in miscarriage of justice and as such the same needs to be rectified by this Court in allowing the civil revision petition to prevent an aberration of justice.
5. The learned counsel for the revision petitioner/plaintiff cites the decision of Hon'ble Supreme Court Rikabdas A. Oswal v. Deepak Jewellers and Others (1999) 6 Supreme Court Cases 40 at page 41 wherein it is observed as follows;
"Appellant landlord filed a suit for eviction primarily on the grounds of bona fide need and sub-letting. Though he made certain averments to the effect that the tenant had defaulted in the payment of rent, he further averred that he was not making any claim as regards the said arrears of rent. The suit was dismissed. While his appeal was pending, the landlord instituted another suit, after serving appropriate notice, on the ground of default in payment of rent. The suit was decreed. The tenant did not take the plea that the subsequent suit was barred by Order 2, Rule 2 either in his written statement, or in his memo of appeal, which was also dismissed. The plea was not taken in the tenant's review petition either, but certain assertions were made to the effect that the earlier suit was also instituted on the ground of default. The District Judge allowed the review petition and held that the later suit was barred under Order 2 Rule 2. The High Court dismissed the landlord's revision petition. Allowing the landlord's appeal, the Supreme Court held as above."
6. He also relies on the decision of Hon'ble Court Dalip Singh v. Mehar Singh Rathee & Ors. 2004 (4) CTC 236 wherein it is inter alia held that;
"plea that Order 23 Rule 1 barred second suit was not raised in written statement and no issue was framed but it was raised in first appeal but negatived by first Appellate Court and not raised in second appeal and that the plea could not be raised in special leave and the plea of bar under Order 2 Rule 2 was not raised in written statement and no issue was framed and the said plea cannot be raised subsequently"
Also the learned counsel for the revision petitioner relied on the observation made in the aforesaid decision at page 237 to the effect that;
"Order 2 Rule 2 envisages that person entitled to more than one relief in respect of same cause of action has omitted to sue for some relief without leave of Court cannot seek such relief later etc."
7. He draws the attention of this Court to the decision Bhagawath Devi v. Aswin C. Jain 2009 (2) CTC 617 wherein it is held that failure to obtain leave for filing fresh suit for omitted claim, the provisions of Order 2 Rule 2 are attracted also, the claim of learned counsel for the revision petitioner in the aforesaid citation at page 618 has relied on the following observations made by this Court;
"It is also an admitted fact that before filing the latter suit in O.S.No.1959 of 2007, no leave has been obtained by the respondent/plaintiff from the Court where O.S.No.7549 of 2006 is pending. In such circumstances, having failed to claim larger relief at the time of filing the earlier suit, and having failed to obtain leave for filing a fresh suit for the omitted claim before filing the latter suit, it is not open to the respondent/plaintiff to claim the relief od specific performance in the latter suit."
8. He also seeks in aid to the deciion of Hon'ble Supreme Court Shiv Kumar Sharma v.Santosh Kumari (2007) 8 Supreme Court Cases 600 wherein it is among other things observed that;
"In terms of Order 2 Rule 4 of Civil Procedure Code such causes of action can be joined and therefore no leave of the Court is required and if no leave has been taken, a separate suit may or may not be maintainable but the same has to be filed within limitation"
Continuing further, the learned counsel for the revision petitioner has also relied on the observations made by the Hon'ble Supreme Court in para 29 at page 609 of the aforesaid decision which runs as follows;
"We therefore, are of the opinion that the High Court was not correct in framing the additional issues of its own which did not arise for consideration in the suit or in the appeal. Even otherwise, the High Court should have formulated the points for its consideration in terms of Order 41 Rule 31 of the Code. On the pleadings of the parties and in view of the submissions made, no such question arose for its consideration. In any event, if a second suit was maintainable in terms of Order 2 Rule 4 of the Code, as was submitted by Ms. Luthra, no leave was required to be granted therefor. A civil court does not grant leave to file another suit. If the law permits, the plaintiff may file another suit but not on the basis of observations made by a Superior Court."
9. The learned counsel for the revision petitioner/plaintiff brings it to the notice of this Court that the Learned District Munsif, Gudalore in I.A.No.404 of 2006 in O.S.No.99 of 2006 on 27.11.2006 in para 7 of the order as among other things observed that, "the petition (namely revision petitioner) can file a suit before the Sub Court praying for a specific relief and also that the Interlocutory Application can be filed for the relief of temporary injunction and as such the temporary injunction relief is not to be granted as opined by it."
10. In response, the learned counsel for the respondents contents that the first respondent/petitioner/first defendant has filed I.A.No.595 of 2007 before the Learned Sub Judge Nilgiris at Udhagamandalam under Order 7 Rule 11 read with Order 2 Rule 2 of Civil Procedure Code praying the Court to reject the plaint in the suit O.S.No.118 of 2006 filed by the revision petition/plaintiff on the ground that the revision petitioner after filing of the present suit O.S.No.118 of 2006 on the file of Learned Sub Judge, Udhagamandalam has withdrawn the earlier suit O.S.No.99 of 2006 on the file of Learned District Munsif, Gudalore and the earlier suit O.S.No.99 of 2006 on the file of Learned District Munsif, Gudalore has been filed by the revision petitioner against the first respondent for relief of permanent injunction from alinating the suit schedule property to the second respondent and also filed I.A.No.404 of 2006 for the relief of temporary injunction and filing I.A.No.404 of 2006 has been dismissed by the Learned District Munsif, Gudalore holding that the said application is not maintainable as against the said order passed in I.A.No.404 of 2006 dated 26.11.2006 no further appeal has been filed by the revision petitioner, but the revision petitioner has filed the O.S.No.118 of 2006 before the Learned Sub Judge Nilgiris, Udhagamandalam praying for the relief of specific performance of contract and in law the cause of action in the present suit O.S.No.118 of 2006 for the relief of specific performance is very much available at the time of filing of the earlier suit O.S.No.99 of 2006 on the file of Learned District Munsif, Gudalore and every suit ought to include the holder of the claim which a plaintiff is entitled to make in regard to the cause of action and when there is a cause of action, a plaintiff cannot split its cause of action in several parts and claim reliefs accordingly, and suffice it to state that the relief of specific performance should have been asked for by the revision petition in the previous suit itself and hence, the revision petitioner is barred from seeking the relief under Order 2 Rule 2 of Civil Procedure Code and in that view the suit O.S.No.118 of 2006 on the file of Learned Sub Judge Nilgiris, Udhagamandalam is not maintainable, and the trial Court has considered the entire gamete of the matter in a right perspective taking into account the facts and circumstances of the case in a cumulative fashion and passed a valid and just order in I.A.No.595 of 2007 and the same need not to be interfered with by this Court sitting in revision.
11. The learned counsel for the respondents in support of the contention that the later suit O.S.No.118 of 2006 filed by the revision petitioner on the file of Learned Sub Judge Nilgiris, Udhagamandalam is hit by the ingredients of Order 2 Rule 2 of Civil Procedure Code which relies on the decision of N.V. Srinivasa Murthy and others v. Mariyamma (Dead) by Proposed Lrs. And Others (2005) 5 Supreme Court Cases 548 at page 553 wherein at paragraph 14 to 16 it is held as follows;
"After examining the pleadings of the plaint as discussed above, we are clearly of the opinion that by clever drafting of the plaint the civil suit which is hopelessly barred for seeking avoidance of registered sale deed of 05.05.1953, has been instituted by taking resource to orders passed in mutation proceedings by the Revenue Courts.
Civil Suit No.557 of 1990 was pending when the present suit was filed. In the present suit, the relief indirectly claimed is of declaring the sale deed of 05.05.1953 to be not really a sale deed but a loan transaction. Relief of reconveyance of property under alleged oral agreement on return of loan has been deliberately omitted from the relief clause. In our view, the present plaint is liable to rejection, if not on the ground that it does not disclose "cause of action", on the ground that from the averments in the plaint, the suit is apparently barred by law within the meaning of clause (d) of Order7 Rule 11 of the Code of Civil Procedure.
The High Court does not seem to be right in rejecting the plaint on the ground that it does not disclose any "cause of action". In our view, the trial Court was right in coming to the conclusion that accepting all averments in the plaint, the suit seems to be barred by limitation. On critical examination of the plaint as discussed by us above, the suit seems to be clearly barred on the facts stated in the plaint itself. The suit as framed is prima facie barred by the law of limitation, provisions of the Specific Relief Act as also under Order 2 Rule 2 of the Code of Civil Procedure."
12. He also cites the decision Kumarayee Ammal and 10 others v. M. Ramanathan Rep. By his Power Agent 2007 4 LW 319 and page 320 wherein it is held thus:
"Legal position is that having failed to avail the cause of action for filing a suit for a larger relief, such as suit for specific performance and for other reliefs in the earlier suit, one cannot be allowed to maintain a second suit for the said relief, as Order 2 Rule 2 is a clear bar. In the instant case, Order 2 Rule 2 operates against the respondent and as a result, the suit in O.S.No.126 of 2005, Sub Court is liable to be rejected and the order of the lower court in I.A.No.39 of 2006 is liable to be set aside."
13. It is useful to refer to Order 2 Rule 1 and Rule 2 (1 to 3) which runs as follows;
"Rule 1. Frame of suit- Every suit shall as far as practicable be framed so as to afford ground for final decision upon the subjects in dispute and to prevent further litigation concerning them.
Rule 2. Suit to include the whole claim-
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action, but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
14. A closer scrutiny of Order 2 Rule 1 read with Rule 2 indicates that the intention of the legislature appears to be that as far as possible all matters in controversy between the parties arising out of the same transaction ought to be disposed of in the same suit. As per Order 2 Rule 1 of Civil Procedure Code the plaintiff is entitled to claim the entire relief and the suit is to be accordingly framed so as to provide a ground for final decision upon subjects and disputes and to prevent plurality of proceedings concerning them in the considered opinion of this Court. However, it is to be borne in mind that Order 2 Rule 2 does not bar a defence in respect of the same cause of action. Indeed, a plea of bar as per Order 2 Rule 2 of Civil Procedure Code is a technical plea and it tends to defeat justice and to deprive the party of a legitimate right and therefore a care and caution must be taken to ensure that complete identity of cause of action is made out.
14. At this juncture this Court worth recalls the principles laid down in the decision Mahommad Khalil Khan v. Mahboob Ali Mian AIR 1949 PC 78 which is extracted below;
"(1) The correct test in cases falling under O 2,r 2, is 'whether the claim in the new suit is in fact founded upon a cause of action distinct from that which was the foundation for the former suit' (Moonshee Bazloor Ruheem v. Shumsoonnissa Begum (1867) 11 MIA 551).
(2) The cause of action means every fact which will be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. (Read v. Brown (1888) LR 22 QBD 128).
(3) If the evidence to support the two claims is different, then the causes of action are also different (Brunsden v. Humphrey (1884)14 OBD 141) The bundle of facts constituting cause of action for partition and separate possession by metes and bounds may not be identical for claim of mesne profits. There is no bar either expressly or by necessary implication in filing subsequently suit for mesne profits when in the suit for partition such issue was neither raised nor considered. Where in a previous partition suit a property was not included, which was acquired subsequent to the institution of the suit for partition. Non inclusion of such property is not fatal to the subsequent suit for partition. The provisions of O 2, r 2 cannot be applied to the facts and circumstances of the present case. A previous suit for declaration filed by a tenant in a Court of small cause, seeking declaration that he was the tenant and the defendant is a trespasser. A subsequent was filed seeking the relief of possession and mesne profit. It was held that the subsequent suit was not barred by O 2, r 2 as the relief sought in the subsequent suit could not have been asked in a court of small cause, as they lacked the jurisdiction (P. Vijay Kumar v. VC Gopal Krishanan AIR 1998 Bom 127).
(4) The causes of action in the two suits may be considered to be the same if in substance they are identical.
(5) 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 (Chand Kaur v. Partap Singh (1888) LR 15 IA 156)"
15. A Plaintiff is not entitled to split his cause of action into parts, and bring separate suit in respect of each part. If he omits to sue in respect of, or intentionally relinquishes, any portion of the claim arising from the same cause of action, he will be precluded from suing in respect of the portion so omitted or relinquished, even though he states in his plaint that he intends to bring a second suit for the portion omitted as per decision, Maksud v. Vargis (1893) 20 Cal 322.
16. There is no gain saying of the fact that a cause of action is that which gives occasion for and forms the cementing platform for filing of a suit in a civil action. If that cause of action enables an individual to claim for larger and wider relief than that to which he limits his claim, he cannot afterwards seek to sue for the balance relief by means of a separate and independent proceedings. Also that Order 2 Rule 2 is founded on the principle that the defendants ought not to be vexed twice for one of the same cause and really speaking the suit is directed against two evils (1) the splitting of claims (2) splitting of remedies in the considered opinion of this Court.
17. The jurisdiction of a Court of Law to grant leave under Order 2 Rule2(3) can be exercised till the date of decree in the first suit but such leave must be obtained before institution of the second suit and it is not open to the plaintiff to file a second suit without granting of leave and thus applied for such leave merely because the first suit is not yet been disposed of.
18. It is not out of place for this Court in recalling the decision Kartar Singh v. Smt. Shanti & Ors. 2004 (2) CCC 129 (Del) whereby and whereunder it is among other things observed that the "... the revision against the Order rejecting plaint under Order 7 Rule 11 of Civil Procedure Code is not maintainable". Further, in the aforesaid decision at page 130 in paragraph 2 to 4 it is observed and held thus;
"The complete answer is available in Atam Prakash & Ors. v. Roshan Lal & Ors. which reads thus;
'In the present case the plaint was returned to the plaintiff/petitioner so as to be filed before a competent Court in accordance with its rejection under Order VII, Rule 11 of the Code of Civil Procedure. Learned Counsel for respondent No.3 points out that a decree as defined under
Section 2, Sub-clause (2) of Civil Procedure Code is deemed to include a rejection of a plaint. He further submits that only an appeal would lie only against the impugned order.
Section 2, Sub-section (2) reads as under:
(2) 'decree' means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matter in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the termination of any question within Section 144, but shall not include-
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final'.
He further relies on two judgments of learned Single Judge of this Court viz., M.L. Aggrawal v. National Thermal Power Corporation Ltd. 49 (1993) Delhi Law Times 735 and Tarun Chopra and Ors. v. UOI & Ors. 1992 (2) Delhi Lawyer 250.
In my view there is merit in the preliminary objection raised by the learned Counsel for respondent No.3. It is clear that rejection of a plaint as per the definition of a decree in Section 2(2) of Code of Civil Procedure is defined to include deemed rejection of a plaint and accordingly only an appeal would be maintainable against such an order. The present revision petition is accordingly not maintainable. The revision petition is dismissed accordingly. It will be open to the petitioner to take such proceedings in accordance with law as may be available to him. There will be no order as to costs.
The Revision petition is accordingly dismissed as not maintainable. The petitioner, however, may initiate any other appropriate proceedings if available to him in accordance with law."
19. That apart an order passed by the Civil Court in regard to the rejection of plaint as the force of the decree as per definition of the decree under Section 2(2) of the Code of Civil Procedure and the normal remedy available to the aggrieved plaintiff is to file an appeal or review in the considered opinion of this Court.
20. On a careful consideration of respective contentions and bearing in mind of a very vital fact that in view of the definition of decree mentioned in Section 2(2) of the Civil Procedure Code which includes deemed rejection of the plaint and as against the rejection of plaint this Court is of the considered view that an appeal only lies and therefore, as against the order dated 27.06.2008 in I.A.No.597 of 2007 in O.S.No.118 of 2006 passed by the Learned Sub Judge, Udhagamandalam in allowing the application praying to reject the plaint revision will not lie and in that view of the matter the civil revision petition is dismissed.
21. In the result the civil revision petition is dismissed leaving the parties to bear their own costs. However, it is made clear that the dismissal of the civil revision petition will not preclude the revision petitioner in initiating appropriate appeal proceedings before the competent forum if so advised as the case may be in the manner known to law. Consequently, M.P.No.1 of 2009 is closed.
07.12.2009 Index: Yes/No Internet:Yes/No prm To The Hon'ble Subordinate Judge's Court, Udhagamandalam.
M.VENUGOPAL, J.
prm Pre-Delivery Order in C.R.P (N.P.D) No.2507 of 2009 And M.P.No.1 of 2009 07.12.2009