Introduction

• In this case the Supreme Court held that a plea under Order 2 rule 2 of the Code of Civil Procedure, 1908 (CPC) based on the existence of a former pleading cannot be entertained when the pleading on which it rests has not been produced.
• It is for this reason that a plea of a bar under Order 2 Rule 2 of CPC 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.

Facts

• Bhooralal (respondent) filed a civil suit before the Subordinate Judge, first class against Gurbux (appellant).
• In the suit the respondent claimed the possession of certain property for mesne profit.
• The allegation was that he was the absolute owner of the property, and the defendant (appellant) was in wrongful possession and even after multiple demands the defendant failed to vacate the property. Therefore, he is liable to mesne profits.
• It was also mentioned in the plaint that Bhoorala and his mother filed another suit (previous suit) where he claimed the recovery of the mesne profits in regard to the same property. And mesne profit had been decreed in the previous suit.
• Gurbux filed a written statement and raised a plea that Order 2 Rule 2 of CPC is a bar to the suit. Since the plaintiff has lost his remedy for the relief of possession he cannot seek recovery of mesne profits also.
• The trial court dismissed the suit as a suit was barred.
• The respondent filed an appeal from this decree to the Additional District Judge.
• The appellate court held that the plea of a bar under Order 2 Rule 2 of CPC should not have been entertained at all. The reason was that the pleadings in the earlier suit had not been filed in the present case.
• The appellant then filed an appeal before the Rajasthan High Court and the High Court dismissed the appeal.
• After that the appellant filed a special leave before the Supreme Court against this order.

Issues Involved

• Whether subsequent suit is barred under Order 2 Rule 2 of CPC?
• Whether a suit for possession of immovable property and a suit for the recovery or mesne profits from the same property are both based on the same cause of action?

Observations

• The Supreme Court (SC) held that a plea under Order 2 Rule 2 of CPC cannot be made out except on proof of the plaint in the previous suit the filing of which is said to create the bar.
• The court observed that 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 for this reason that a plea of a bar under Order 2 Rule 2 of CPC 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.
• In order that a plea of a bar under Order 2 Rule 2 of CPC should succeed the defendant who raises the plea must make out:
  • that the second suit was in respect of the same cause of action as that on which the previous suit was based
  • that in respect of that cause of action the plaintiff was entitled to more than one relief
  • That being thus entitled to more than one relief plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed.

Conclusion

• Thus, the SC held that that the order of remand passed by the learned Additional District Judge which was confirmed by the learned Judge in the High Court was right.
• The appeal was dismissed by the Supreme Court.

Notes

• Order 2 Rule 2 of CPC: Frame of suit

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 and 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 collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.