Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 4215-4216 OF 2007

Inbasegaran and another ……Appellant(s)

versus

S. Natarajan (Dead) thr. Lrs. …..Respondent(s)

WITH

CIVIL APPEAL NOs.4217-4218 OF 2007

S. Natarajan (Dead) thr. Lrs. ……Appellant(s)

versus

Inbasegaran and another …..Respondent(s)

CIVIL APPEAL NOs.4219 OF 2007

S. Natarajan (Dead) thr. Lrs. ……Appellant(s)

versus

Inbasegaran …..Respondent(s)

JUDGMENT

M.Y. EQBAL, J.

These appeals are directed against the common judgment

and order dated 30.4.2004 passed by the High Court of

1

Page 2 Judicature at Madras in A.S. Nos.665 and 666 of 2001,

whereby the appeals preferred by S. Natarajan were allowed.

This matter pertains to a property bearing S.No.159/10 and

11, Plot No.436, Tallakulam Village, Madurai City, measuring

6980 sq.ft., which was allotted to one S. Natarajan on lease-

cum-sale agreement by the Housing Board. S. Natarajan,

original defendant in O.S. Nos.445/85 & 252/86 and plaintiff

in O.S. No.3/86 alleged to have entered into a sale agreement

with respect to the suit property with one Inbasegaran.

Therefore, for the sake of convenience S. Natarajan and

Inbasegaran are hereinafter respectively referred to as

‘defendant’ and ‘plaintiff’.

2.The facts giving rise to the present appeals are that the

plaintiff filed a suit being O.S. No.252 of 1986 for specific

performance of the agreement for sale dated 19.1.1984 with

respect to aforesaid suit schedule property. According to him,

the said land was allotted to the defendant on lease-cum-sale

agreement on 4.7.1975 by the Tamil Nadu Housing Board (in

2

Page 3 short, ‘Housing Board’). Since the defendant had not

constructed building on the said site for the purpose of getting

sale deed as contemplated under the lease-cum-sale

agreement, the Board did not execute the sale deed in favour

of the defendant. Hence, he entered into a sale agreement on

19.1.1984 with the plaintiff. In the said agreement, he agreed

to sell the suit house site to the plaintiff for a total

consideration of Rs.3,84,220/- and received a sum of

Rs.1,00,000/- as advance in cash towards part of the sale

consideration. It is alleged that the defendant agreed that

after a sale deed executed in his favour from the Housing

Board he will execute and register the sale deed in favour of

the plaintiff or his family members after receiving the balance

sale consideration. Time for performance of the agreement

was tentatively fixed as four months and the same was

extended until the defendant got the sale deed executed from

the Housing Board. The parties agreed that the plaintiff shall

prepare a plan for construction of a building in the said

property and the defendant will sign the building plan and get

3

Page 4 the plan approved and the plaintiff thereafter shall construct

the building in the suit housing plot at his own expenses.

3.Pursuant to the sale agreement, the plaintiff took

possession of the suit property and completed the

construction. According to the plaintiff, the defendant had

been representing to the plaintiff that he has not yet got the

sale deed executed in his favour from the Housing Board but

attempted to forcibly take possession of the building

constructed on the suit property by the plaintiff. So the

plaintiff filed a suit being O.S. No.445/1985 on 11.9.1985 for

permanent injunction restraining the defendant herein from

taking forcible possession of the building constructed in the

suit property. Pending the aforesaid suit, few days after, the

plaintiff on 25.4.1986 filed aforesaid suit for specific

performance being O.S. No.252 of 1986.

4

Page 5 4.The defendant pleaded in his written statement that the

agreement dated 19.1.1984 is not a valid document and the

plaintiff cannot maintain the suit as he had relinquished his

right. It is also stated that the agreement was executed when

the defendant was not the owner of the site and any sale by

the defendant was prohibited as per the terms and conditions

of the lease-cum-sale agreement entered into with the Housing

Board and so the agreement in question is void, inoperative

and opposed to law. The defendant also denied the payment

of Rs.1,00,000/- in cash as advance as alleged by the plaintiff.

Even with respect to the averment in the plaint that the

plaintiff was permitted to put up construction in the suit site,

the same is denied. The defendant also denied that the

plaintiff put up construction at his own cost.

The defendant further denied that the plaintiff was given

possession of the suit property and claimed that he never

handed over possession of the property to the plaintiff at any

point of time. It is alleged that the plaintiff is not entitled to a

decree for specific performance because the agreement dated

5

Page 6 19.1.1984 no longer subsists. It is further alleged that the

subsequent suit being O.S. No.252/1986 for specific

performance is barred under Order 2, Rule 2 of the Code of

Civil Procedure because the plaintiff who instituted the earlier

suit O.S. No.445/1985, should have included the relief for

specific performance and, in any event, could not have filed

O.S. No.252/1986 without any leave of the Court.

5.The defendant also filed a suit being O.S. No.3/1986

seeking a decree for injunction restraining the purchaser

(defendants therein) from interfering with his possession and

enjoyment of the suit property. The trial court tried all the

three suits together and dismissed the suits filed by the

plaintiff and defendant for injunction in O.S. Nos.445/1985

and 3/1986 and decreed the suit in O.S. No.252/1986

preferred by the plaintiff for specific performance with the

direction to the defendant to execute and register the sale

document in favour of the plaintiff.

6

Page 7 6.Aggrieved by the judgment and decree of the trial court,

the defendant S. Natarajan preferred appeals before the High

Court being A.S. Nos.665 and 666 of 2001.

7.High Court held that the causes of action in both the

suits filed by the appellant are identical, arose from the same

transaction and that is why the trial court also had a common

trial and decided the case by a common judgment. The

plaintiff has not come forward with the suit in O.S. 252/1986

on the basis of the fact that the sale deed with respect to the

suit property was obtained only on 18.2.1985 by the

defendant from the Housing Board and the defendant failed to

execute the sale deed in favour of the plaintiff pursuant to

Ex.A1 agreement and so the prayer sought for in the said suit

could have been sought for even in the Original Suit

No.445/1985 as the pleading set out in the plaint in O.S.

252/1986 was available even on the date when O.S.

7

Page 8 No.445/1985 was filed. Since the plaintiff omitted to seek

such a relief and did not obtain the leave of the Court to file

the subsequent suit, it amounts to relinquishment of his

rights which is sought for in O.S. 252/1986 and he cannot

sustain the subsequent suit in O.S. 252/1986 for the relief

sought for in that suit in view of Order 2, Rule 2 of the Code.

8.The High Court formulated as many as following six

points for consideration to decide the appeals:

(1)Whether Ex.A1 is enforceable in law?

(2)Whether the suit in O.S. No.252/1986 is maintainable on

the basis of Ex.A1 in view of variations made in Exs.B7 and B9?

(3) Whether the respondent/plaintiff was ready and willing to

perform his part of the contact?

(4)Whether the suit in O.S. 252/1986 is maintainable in view

of Order 2, Rule 2 of the Code of Civil Procedure?

(5)Whether the relief for the specific performance of the

agreement suit in O.S. 252/1986 can be rejected on the ground

that the respondent/plaintiff has not come to court with clean

hands?

8

Page 9 9.However, instead of deciding all the points, the High

Court took up only Point no.4 and 5 and decided the appeal in

following three paragraphs:

“13. Further, in the present case, the parties and the court felt

that in view of common issue, the said suit was to be dealt with

and so the trial court in a common judgment dated 28.7.2000

disposed of the same. The trial court though framed the issue,

simply rejected that it is not barred by Order 2, Rule 2 of the Code

on assumption that there is a change of cause of action. So the

said findings of the trial court cannot be sustained in law. So we

can safely conclude that the suit in O.S. No. 252/1986 is barred

under Order 2, Rule 2 of the Code and so it has to be rejected.

14.Even with respect to Point No.5, it has to be held that the

respondent/plaintiff has come to court by filing O.S. 252/1986

with unclean hands. Though in the plaint filed in O.S. No.3/1986

which was filed on 5.9.1985, it is specifically stated that

conditional sale deed dated 18.2.1985 was executed in favour of

the appellant/defendant by the Tamil Nadu Housing Board. In

O.S. No.252/1986 which was filed on 5.4.1986, the

respondent/plaintiff has come forward with the false plea that the

appellant/defendant had been representing to the plaintiff that he

had not yet got the sale deed executed in his favour by the Tamil

Nadu Housing Board, which is contrary to the averment made in

the earlier suit. Learned counsel for the respondent/plaintiff also

tried to submit that the respondent has no knowledge about the

said document so as to enable him to file the suit for specific

performance of the Agreement on that basis. The said plea is

nothing but false in view of the specific averment made in the

plaint in O.S. No.3/1986. The said plea that the sale deed is yet

to be got by the appellant/defendant from the Tamil Nadu

Housing Board is a material fact to enforce the right and got the

sale deed by the respondent/plaintiff arose only after getting the

sale deed by the appellant/defendant from the Tamil Nadu

Housing Board as contemplated under Ex.A1. The

respondent/plaintiff suppressed the said material fact. Hence,

even on that ground the suit in O.S. 252/1986 has to be rejected

holding that the respondent/plaintiff is not entitled to equitable

relief of specific performance of the Agreement in view of the above

said fact.

9

Page 10 15. In view of the findings given above with respect to point Nos.4

and 5, we are; not inclined to deal with the other points.”

10.By impugned order dated 30.4.2004, the High Court

allowed the appeals preferred by the defendant based on Order

2 Rule 2 with a direction to the defendant to pay the cost of

construction (Rs.8,00,000/-) to the plaintiff and on such

deposit, the plaintiff would hand over the suit property with

building to the defendant and after handing over the same, he

can withdraw the aforesaid amount along with the money

already deposited, if any. Hence, present cross appeals by

both sides. The High Court further held that no other points

need to considered and decided.

11.Mr. K. Parasaran, learned senior counsel appearing for

the appellants-plaintiff, assailed the impugned judgment

passed by the High Court as being erroneous in law as also in

facts. Learned counsel firstly drew our attention to the

agreement to sell dated 19.1.1984 and submitted that the

10

Page 11 defendant-respondent put a condition in the said agreement

that the sale deed shall be executed by the defendant in favour

of the plaintiff only after getting transfer of the lease hold plot

in his favour by the Housing Board. However, pending

transfer of the property by the Housing Board in favour of the

defendant-respondent, the rowdy elements of the defendant

threatened the appellant-plaintiff to dispossess him from the

building constructed by the plaintiff. In order to restrain and

prevent the defendant, the appellant filed a suit for injunction

being O.S. No.445 of 1985 seeking the prohibitory order

restraining the respondent from dispossession of the plaintiff.

12.Simultaneously, before the trial court, the defendant-

respondent also filed a suit being O.S. No.3/1986 (13/1985)

making similar prayer for injunction against the appellant. In

the written statement of the said suit, for the first time the

defendant of the suit (appellant herein) disclosed in paragraph

4 that the sale deed was executed by the Housing Board in his

11

Page 12 favour and now the plaintiff of the suit (respondent herein) is

the absolute owner of the property. Having come to know

about the transfer of the property by the Housing Board in

favour of the plaintiff, legal notices were given by the appellant

to the respondent and a regular suit for specific performance

was filed.

13.Mr. Parasaran submitted that from bare reading of the

plaints in two suits, it would be apparently clear that cause of

action of each of the two suits by the plaintiff was quite

different and distinct and the same would not attract the

provisions of Order 2, Rule 2 CPC. Mr. Parasaran further

submitted that the trial court had categorically held that the

provisions of Order 2, Rule 2 shall have no application in the

facts and circumstances of the case. Mr. Parasaran then

drew our attention to the agreement dated 19.1.1984 and the

codicil sale agreement dated 31.4.1984 to show that the period

of sale agreement between the plaintiff-appellant and the

defendant-respondent was further extended in anticipation of

12

Page 13 the transfer of the property by the Housing Board in favour of

the defendant. Lastly, it was contended that the provision of

Order 2 Rule 2, CPC does not apply where the two suits are

filed on different cause of action and the counsel relied upon

the decision of this Court in the cases of Gurbux Singh vs.

Bhooralal, (1964) 7 SCR 831; Kewal Singh vs. Lajwanti,

(1980) 1 SCC 290 and in the case of Lakshmi alias

Bhagyalakshmi and another vs. E. Jayaram (dead) by Lr. ,

(2013) 9 SCC 311.

14.Mr. R. Balasubramanian, learned senior counsel

appearing for the respondent-defendant, firstly submitted that

if the allegations made in the plaint filed by the plaintiff-

appellant are read together it would be clear that the plaintiff

had knowledge about the sale deed executed by the Housing

Board in favour of the defendant. It was only because of that

the plaintiff in the plaint categorically stated that he reserves

his right to file a suit for specific performance. According to

13

Page 14 the learned counsel, the causes of action in both the suits filed

by the plaintiff are identical, and therefore, the subsequent

suit for specific performance is not maintainable being barred

under Order 2 Rule 2 CPC. Learned counsel put heavy

reliance on the decision of this Court in the case of Virgo

Industries (Eng.) (P) Ltd. vs. Venturetech Solutions (P) Ltd.,

(2013) 1 SCC 625.

15.We have heard learned counsel appearing for the parties,

perused the pleading and findings recorded by the trial court

as also by the first Appellate Court.

16.Admittedly, the first suit being O.S. No.445 of 1985 was

filed by the plaintiff-appellant for the grant of permanent

injunction restraining the defendant, his agents and servants

from interfering with the possession and enjoyment of the suit

property by the plaintiffs either by attempting to trespass into

it or in any other manner whatsoever. Besides other facts, it

14

Page 15 was pleaded that in pursuance of the sale agreement the

plaintiff took possession of the suit plot from the defendant

and began construction of Kalyana Mahal. It was alleged by

the plaintiff that the defendant with an ulterior malafide

motive and intention of extracting more money was

representing to the plaintiffs that he would execute the sale

deed after getting the sale deed from the Housing Board and

after completion of the construction of the building. With that

ulterior motive, the defendant tried to forcibly take possession

of the building constructed by the plaintiffs and threatened

the plaintiffs’ worker to remove them from the building. The

plaintiffs then gave complaint to the police and in response,

the police immediately rushed to the suit property and warned

the rowdies not to enter into the building. The plaintiffs,

therefore, pleaded that the defendant was again arranging to

gather unruly elements and to forcibly and unlawfully take

possession of the suit property from the plaintiffs. With that

apprehension, the suit was filed mainly on the cause of action

which arose when the defendant attempted to forcibly occupy

15

Page 16 the suit property by driving away plaintiffs’ workers and that

the defendant was arranging to forcibly and unlawfully take

possession of the suit property. The defendant, in his written

statement, denied each and every allegation and stated that

building was constructed by him and in fact the plaintiffs

attempted to forcibly take possession of the building.

17.In the subsequent suit filed by the plaintiff being O.S.

No.252 of 1986, a decree for specific performance of the

agreement was claimed on the ground inter alia that the

defendant in the earlier suit took a defence that the sale

agreement was allegedly given up or dropped by the plaintiff.

The cause of action, as pleaded by the plaintiff in the

subsequent suit, arose when defendant-respondent disclosed

the transfer made by Housing Board in his favour and finally

when the defendant was exhibiting an intention of not

performing his part of the sale agreement and in reply to the

lawyer’s notice the defendant made a false allegation and

denied to execute the sale deed as per the agreement.

16

Page 17 18.A perusal of the pleadings in the two suits and the cause

of action mentioned therein would show that the cause of

action and reliefs sought for are quite distinct and are not

same.

19.Indisputably, cause of action consists of a bundle of facts

which will be necessary for the plaintiff to prove in order to get

a relief from the Court. However, because the causes of action

for the two suits are different and distinct and the evidences to

support the relief in the two suits are also different then the

provisions of Order 2 Rule 2 CPC will not apply.

20. The provision has been well discussed by the Privy

Council in the case of Mohd. Khalil Khan & Ors. vs.

Mahbub Ali Mian & Ors., AIR (36) 1949 Privy Council 78,

held as under:-

“61 The principles laid down in the cases thus far discussed may

be thus summarised:-

17

Page 18 (1) The correct test in cases falling under Order 2, Rule 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 Buzloor Ruheem v. Shumsunnissa Begum

(1867-11) M.I.A. 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 (1889-22) Q.B.P. 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) Q.B.D. 141 .

(4) The causes of action in the two suits may be considered to be

the same if in substance they are identical. Brunsden v.

Humphrey (1884-14) Q.B.D. 141.

(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. Muss. Chand kour v. Partab Singh (15

I.A. 156 : Cal.98 P.C.). This observation was made by Lort Watson

in a case under Section 43 of the Act of 1882 (corresponding to

Order 2, Rule 2), where plaintiff made various claims in the same

suit.”

21.The Constitution Bench of this Court, considering the

scope and applicability of Order 2 Rule 2 of the CPC, in the

case of Gurbux Singh vs. Bhooralal, (supra) AIR 1964 SC

1810, held as under:

“6. In order that a plea of a Bar under Order 2 Rule 2(3) of the

Civil Procedure Code should succeed the defendant who raises the

plea must make out; (i) that the second suit was in respect of the

same cause of action as that on which the previous suit was

based; (2) 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

18

Page 19 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 latter 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 Order 2 Rule 2 of the 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 CS 28 of 1950 were not filed by the

appellant in the present suit as evidence in support of his plea

under Order 2 Rule 2 of the 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 appellant'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 Order 2 Rule 2 of the Civil

Procedure Code was not maintainable.

xxxxx

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

Order 2 Rule 2 of the 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 Order 41 Rule

27 of the 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 Order 41 Rule 27 of the Civil

Procedure Code. We can therefore proceed only on the basis that

19

Page 20 the pleadings in the earlier suit were not part of the record in the

present suit.”

22.In the case of of Kewal Singh vs. Lajwanti (supra),

while considering the applicability of Order 2 Rule 2 CPC, this

Court observed that:-

“5. So far as the first two contentions are concerned, we are of the

opinion that they do not merit any serious consideration.

Regarding the question of the applicability of Order 2 Rule 2 CPC

the argument of the learned Counsel for the appellant is based on

serious misconception of law. Order 2 Rule 2 CPC runs thus:

“2(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) 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.”

A perusal of Order 2 Rule 2 would clearly reveal that this provision

applies to cases where a plaintiff omits to sue a portion of the

cause of action on which the suit is based either by relinquishing

the cause of action or by omitting a part of it. The provision has,

therefore, no application to cases where the plaintiff bases his suit

on separate and distinct causes of action and chooses to relinquish

one or the other of them. In such cases, it is always open to the

plaintiff to file a fresh suit on the basis of a distinct cause of action

which he may have relinquished.

6. In the case of Mohammad Khalil Khan v. Mahbub Ali Mian, AIR

1949 PC 78, the Privy Council observed as follows:

“That the right and its infringement, and not the

ground or origin of the right and its infringement,

constitute the cause of action, but the cause of action

for the Oudh suit (8 of 1928) so far as the Mahbub

20

Page 21 brothers are concerned was only a denial of title by

them as that suit was mainly against Abadi Begam for

possession of the Oudh property; whilst in the

present suit the cause of action was wrongful

possession by the Mahbub brothers of the

Shahjahanpur property, and that the two causes of

action were thus different.

7. Applying the aforesaid principles laid down by the Privy Council

we find that none of the conditions mentioned by the Privy Council

are applicable in this case. The plaintiff had first based her suit on

three distinct causes of action but later confined the suit only to

the first cause of action, namely, the one mentioned in Section 14-

A(1) of the Act and gave up the cause of action relating to Section

14(1)(e) and (f). Subsequently, by virtue of an amendment she

relinquished the first cause of action arising out of Section 14-A(1)

and sought to revive her cause of action based on Section 14(1)(e).

At the time when the plaintiff relinquished the cause of action

arising out of Section 14(1)(e) the defendant was not in the picture

at all. Therefore, it was not open to the defendant to raise any

objection to the amendment sought by the plaintiff. For these

reasons, we are satisfied that the second amendment application

was not barred by the principles of Order 2 Rule 2 CPC and the

contention of the learned counsel for the appellant must fail.”

23. In the case of Deva Ram vs. Ishwar Chand, (1995) 6

SCC 733, this Court, considering its various earlier decisions,

observed as under:-

“14. What the rule, therefore, requires is the unity of all claims

based on the same cause of action in one suit. It does not

contemplate unity of distinct and separate causes of action. If,

therefore, the subsequent suit is based on a different cause of

action, the rule will not operate as a bar. (See Arjun Lal Gupta v.

Mriganka Mohan Sur, (1974) 2 SCC 586; State of M.P. v. State of

Maharashtra, (1977) 2 SCC 288; Kewal Singh v. B. Lajwanti,

(1980) 1 SCC 290).

15. In Sidramappa v. Rajashetty, (1970) 1 SCC 186, it was laid

down that if the cause of action on the basis of which the previous

suit was brought, does not form the foundation of the subsequent

21

Page 22 suit and in the earlier suit the plaintiff could not have claimed the

relief which he sought in the subsequent suit, the latter namely,

the subsequent suit, will not be barred by the rule contained in

Order 2 Rule 2, CPC.”

24.In the case of Sidramappa vs. Rajashetty & Ors., AIR

(1970) SC 1059, this Court held:

“7. The High Court and the trial court proceeded on the erroneous

basis that the former suit was a suit for a declaration of the

plaintiff’s title to the lands mentioned in Schedule I of the plaint.

The requirement of Order II Rule 2, Code of Civil Procedure is that

every suit should include the whole of the claim which the plaintiff

is entitled to make in respect of a cause of action. “Cause of

action” means the “cause of action for which the suit was

brought”. It cannot be said that the cause of action on which the

present suit was brought is the same as that in the previous suit.

Cause of action is a cause of action which gives occasion for and

forms the foundation of the suit. If that cause of action enables a

person to ask for a larger and wider relief than that to which he

limits his claim, he cannot afterwards seek to recover the balance

by independent proceedings. — see Mohd. Hqfiz v. Mohd. Zakaria

AIR(1922) PC 23.”

8. As seen earlier the cause of action on the basis of which the

previous suit was brought does not form the foundation of the

present suit. The cause of action mentioned in the earlier suit,

assuming the same afforded a basis for a valid claim, did not

enable the plaintiff to ask for any relief other than those he prayed

for in that suit. In that suit he could not have claimed the relief

which he seeks in this suit. Hence the trial court and the High

Court were not right in holding that the plaintiff’s suit is barred by

Order II, Rule 2, Code of Civil Procedure.”

25.In the case State of M.P. v. State of Maharashtra &

Ors., (1977) 2 SCC 288, at page 295 this Court observed as

under: -

22

Page 23 “24. This Court in State of Bihar v. Abdul Majid, AIR 1954) SC 245,

stated that a government servant could ask for arrears of salary.

Counsel for Madhya Pradesh said that the decision of this Court

in Abdul Majid case declared what the existing law has been, and,

therefore, the plaintiff could not contend that it was not open to

him to ask for arrears of salary in the 1949 suit. It is in that

background that Madhya Pradesh contends that the plaintiff

not having asked for relief under Order 2 Rule 2 of the Code of

Civil Procedure would not be entitled to claim salary in the 1956

suit.

25. The contention of Madhya Pradesh cannot be accepted. The

plaintiff will be barred under Order 2 Rule 2 of the Code of Civil

Procedure only when he omits to sue for or relinquishes the claim

in a suit with knowledge that he has a right to sue for that relief. It

will not be correct to say that while the decision of the Judicial

Committee in Lall case

1

was holding the field the plaintiff could be

said to know that he was yet entitled to make a claim for arrears

of salary. On the contrary, it will be correct to say that he knew

that he was not entitled to make such a claim. If at the date of the

former suit the plaintiff is not aware of the right on which he

insists in the latter suit the plaintiff cannot be said to be

disentitled to the relief in the latter suit. The reason is that at the

date of the former suit the plaintiff is not aware of the right on

which he insists in the subsequent suit. A right which a litigant

does not know that he possesses or a right which is not in

existence at the time of the first suit can hardly be regarded as a

“portion of his claim” within the meaning of Order 2 Rule 2 of the

Code of Civil Procedure. See Amant Bibi v. Imdad Husain, (1885)

15 Ind App 106 at pg.112 (PC). The crux of the matter is presence

or lack of awareness of the right at the time of first suit.

27. The appellant Madhya Pradesh is, therefore, not right in

contending that the plaintiff is barred by provisions contained in

Order 2 Rule 2 of the Code of Civil Procedure from asking for

arrears of salary in the 1956 suit. The plaintiff could not have

asked for arrears of salary under the law as it then stood. The

plaintiff did not know of or possess any such right. The plaintiff,

therefore, cannot be said to have omitted to sue for any right.”

26.In the light of the principles discussed and the law laid

down by the Constitution Bench as also other decisions of this

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Page 24 Court, we are of the firm view that if the two suits and the

relief claimed therein are based on the same cause of action

then only the subsequent suit will become barred under Order

2, Rule 2 of the CPC. However, when the precise cause of

action upon which the previous suit for injunction was filed

because of imminent threat from the side of the defendant of

dispossession from the suit property then the subsequent suit

for specific performance on the strength and on the basis of

the sale agreement cannot be held to be the same cause of

action. In the instant case, from the pleading of both the

parties in the suits, particularly the cause of action as alleged

by the plaintiff in the first suit for permanent injunction and

the cause of action alleged in the suit for specific performance,

it is clear that they are not the same and identical.

27.Besides the above, on reading of the plaint of the suit for

injunction filed by the plaintiff, there is nothing to show that

the plaintiff intentionally relinquished any portion of his claim

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Page 25 for the reason that the suit was for only injunction because of

the threat from the side of the defendant to dispossess him

from the suit property. It was only after the defendant in his

suit for injunction disclosed the transfer of the suit property

by the Housing Board to the defendant and thereafter denial

by the defendant in response to the legal notice by the

plaintiff, the cause of action arose for filing the suit for specific

performance.

29.Mr. R. Balasubramanian, learned senior counsel

appearing for the respondents put reliance on the decision of

this Court in the case of Virgo Industries (Eng.) Private

Limited (supra). After going through the decision given in the

said case, we are of the view that the facts of that case

were different from the facts of the instant case. In the case

of Virgo Industries (supra) two sale agreements were executed

by the defendant in favour of the plaintiff in respect of

the two plots. In the suit filed by the plaintiff for injunction

it was pleaded that the defendant is attempting to frustrate

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Page 26 the agreement on the pretext that restriction to transfer of

land may be issued by the Excise Department on account of

pending revenue demand. Further, the defendant was trying

to frustrate the agreement by alienating and transferring the

suit property to third parties. On these facts, the Court

observed :-

“5. While the matter was so situated the defendant in both the

suits i.e. the present petitioner, moved the Madras High Court by

filing two separate applications under Article 227 of the

Constitution to strike off the plaints in OSs Nos. 202 and 203 of

2007 on the ground that the provisions contained in Order 2 Rule

2 of the Civil Procedure Code, 1908 (for short “CPC”) is a bar to

the maintainability of both the suits. Before the High Court the

defendant had contended that the cause of action for both sets of

suits was the same, namely, the refusal or reluctance of the

defendant to execute the sale deeds in terms of the agreements

dated 27-7-2005. Therefore, at the time of filing of the first set of

suits i.e. CSs Nos. 831 and 833 of 2005, it was open for the

plaintiff to claim the relief of specific performance. The plaintiff did

not seek the said relief nor was leave granted by the Madras High

Court. In such circumstances, according to the defendant-

petitioner, the suits filed by the plaintiff for specific performance

i.e. OSs Nos. 202 and 203 were barred under the provisions of

Order 2 Rule 2(3) CPC.

xxxxxxxx

13. A reading of the plaints filed in CSs Nos. 831 and 833 of 2005

show clear averments to the effect that after execution of the

agreements of sale dated 27-7-2005 the plaintiff received a letter

dated 1-8-2005 from the defendant conveying the information that

the Central Excise Department was contemplating issuance of a

notice restraining alienation of the property. The advance amounts

paid by the plaintiff to the defendant by cheques were also

returned. According to the plaintiff it was surprised by the

aforesaid stand of the defendant who had earlier represented that

it had clear and marketable title to the property. In Para 5 of the

plaint, it is stated that the encumbrance certificate dated 22-8-

2005 made available to the plaintiff did not inspire confidence of

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Page 27 the plaintiff as the same contained an entry dated 1-10-2004. The

plaintiff, therefore, seriously doubted the claim made by the

defendant regarding the proceedings initiated by the Central

Excise Department. In the aforesaid paragraph of the plaint it was

averred by the plaintiff that the defendant is “finding an excuse to

cancel the sale agreement and sell the property to some other third

party”. In the aforesaid paragraph of the plaint, it was further

stated that “in this background, the plaintiff submits that the

defendant is attempting to frustrate the agreement entered into

between the parties”.

14. The averments made by the plaintiff in CSs Nos. 831 and 833

of 2005, particularly the pleadings extracted above, leave no room

for doubt that on the dates when CSs Nos. 831 and 833 of 2005

were instituted, namely, 28-8-2005 and 9-9-2005, the plaintiff

itself had claimed that facts and events have occurred which

entitled it to contend that the defendant had no intention to

honour the agreements dated 27-7-2005. In the aforesaid

situation it was open for the plaintiff to incorporate the relief of

specific performance along with the relief of permanent injunction

that formed the subject-matter of the above two suits. The

foundation for the relief of permanent injunction claimed in the

two suits furnished a complete cause of action to the plaintiff in

CSs Nos. 831 and 833 to also sue for the relief of specific

performance. Yet, the said relief was omitted and no leave in this

regard was obtained or granted by the Court.”

29.In the instant case, as discussed above, suit for

injunction was filed since there was threat given from the side

of the defendant to dispossess him from the suit property. The

plaintiff did not allege that the defendant is threatening to

alienate or transfer the property to a third party in order to

frustrate the agreement.

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Page 28 30.It is well settled that the ratio of any decision must be

understood in the background of the facts of that case. The

following words of Lord Denning in the matter of applying

precedence have been locus classicus.

“Each case depends on its own facts and a close similarity

between one case and another is not enough because even a single

significant detail may alter the entire aspect, in deciding such

cases, one should avoid the temptation to decide cases (as said by

Cardozo) by matching the colour of one case against the colour of

another. To decide therefore, on which side of the line a case falls,

the broad resemblance to another case is not at all decisive.”

31.In the case of Bharat Petroleum Corpn. Ltd. and

Another vs. N.R. Vairamani and another , (2004) 8 SCC 579

at page 584, this Court observed :-

“9. Courts should not place reliance on decisions without

discussing as to how the factual situation fits in with the fact

situation of the decision on which reliance is placed. Observations

of courts are neither to be read as Euclid’s theorems nor as

provisions of a statute and that too taken out of their context.

These observations must be read in the context in which they

appear to have been stated. Judgments of courts are not to be

construed as statutes. To interpret words, phrases and provisions

of a statute, it may become necessary for judges to embark into

lengthy discussions but the discussion is meant to explain and

not to define. Judges interpret statutes, they do not interpret

judgments. They interpret words of statutes; their words are not to

be interpreted as statutes. In London Graving Dock Co. Ltd. v.

Horton 1951 AC 737

(AC at p. 761) Lord MacDermott observed:

(All ER p. 14 C-D)

“The matter cannot, of course, be settled merely

by treating the ipsissima verba of Willes, J., as

though they were part of an Act of Parliament and

applying the rules of interpretation appropriate

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Page 29 thereto. This is not to detract from the great weight

to be given to the language actually used by that

most distinguished judge,…”

32.Having regard to the facts and evidence of the instant

case, we are of the view that the issue decided in Virgo

Industries (supra) is not applicable in this case.

33.Further, taking into consideration all these facts, we are

of the considered opinion that the conclusion arrived at by the

High Court that the suit is barred under Order 2 Rule 2 CPC

cannot be sustained in law.

34.As noticed above, the High Court, although formulated

various points for consideration and decision, as quoted

hereinabove, but has not considered other points in its right

perspective. The High Court, being the final court of facts in a

first appeal, is required to decide all the points formulated by

it. In view of the same, the matter needs to be remanded back

to the High Court to consider and decide other points

formulated by it.

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Page 30 35.For the aforesaid reason, Civil Appeal Nos.4215-4216 of

2007 are allowed in part and the decision arrived at by the

High Court against point no.4 holding that the suit was barred

under Order 2 Rule 2 of the CPC is set aside. The matter is

remanded back to the High Court to decide the appeals by

recording its finding on other points formulated by it.

Consequently, other connected appeals, filed by the defendant

against the plaintiff, stand disposed of with a direction to

maintain status quo with regard to possession of the suit

property till further orders of the High Court in this regard.

…………………………… .J.

[ M.Y. Eqbal ]

.…………………………….J

[Shiva Kirti Singh]

New Delhi

October 29, 2014

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