Pampa Mukherjee vs Suri Civil Contractor A.B.
1994 Latest Caselaw 679 Del

JUDGMENT

R.C. Lahoti, J.

(1) This order disposes of Ia No.6859/93 (under Order 2 Rule 2 Cpc, filed by the defendant) and Ia No. 10506/93 (under Order 38 Rules 1 & 5 Cpc filed by the plaintiff).

(2) The plaintiff is proprietor of a Firm engaged in fabrication of Maruti Gypsies. The defendant placed an order with plaintiff for fabrication of Maruti Gypsies in September, 1990 and a repeat order on 6th March, 1991. In December, 1991 the plaintiff apprehended forceful removal of the gypsies by the defendant without payment of fabrication charges. The plaintiff filed a civil suit on 30.11.91 in the Court of First Senior Subordinate Judge, Delhi wherein the limited relief sought for by the plaintiff was a permanent injunction restraining the defendant from removing the 23 gypsies from the workshop of the plaintiff without making the payment.

(3) The suit is still pending. During the pendency of the suit, it is common case of the parties, that under interim directions made by the trial court, 18 gypsies were permitted to be removed by the defendant on payment of certain amounts. There was an appeal preferred to the High Court against an interim order of the trial court. 7 gypsies were permitted to be removed by the defendant on certain payments under the orders of the High Court which too were by way of interim arrangement.

(4) After the gypsies were removed under interim orders, the plaintiff has filed the present suit on 3.8.92 seeking recovery of fabrication charges, parking charges of the gypsies and fitting charges of heaters.

(5) The defendant has filed the application being Ia No-6859/92, without filing written statement, raising objection to the maintainability of the suit submitting that the plaintiff has split-up the reliefs based on a singular cause of action without leave of the Court and file this suit. On this very cause of action she could have sought for relief in the suit previously instituted and pending before the Subordinate Judge. The suit is hit by Order 2 Rule 2 Civil Procedure Code and hence is liable to be dismissed.

(6) The application has been contested by the plaintiff.

(7) Having perused the copy of the plaint in the suit filed by the plaintiff before 'the Subordinate Judge, this Court is satisfied that the bar imposed by Order 2 Rule 2 Civil Procedure Code is not attracted in the facts of the case.

(8) Order 2 Rule 2 Civil Procedure Code enjoins every plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action in the same suit. Where the plaintiff omits to seek all the reliefs or to sue in respect of a portion of his claim except with the leave of the Court he shall not afterwards sue in respect of the portion or the relief so omitted.

(9) It is well settled that Order 2 Rule 2 Civil Procedure Code involves penal consequences inasmuch as it takes away the right of the plaintiff to sue in a Court of law and hence it has to be strictly construed.

(10) In Gurbux Singh VS. Bhoora Lal, , their Lordships of the Supreme Court have held :- "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) 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 identify 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."

(11) The earlier suit filed by the plaintiff had a very limited scope. The cause of action was the alleged threat of the defendant to take away the Maruti Gypsies without payment and by use of force. The plaintiff rushed to the court seeking limited relief of injunction. The fabrication charges, parking charges and fitting charges of heaters were not the subject matter of the suit. If only the Gypsies would not have been removed or delivered to the defendant, probably the cause of action for such charges would not have arisen to the plaintiff. Admittedly, the Gypsies were delivered under interim arrangements made by the courts. The Gypsies having been delivered to the defendant, the plaintiff is now claiming the charges. Strictly speaking the cause of action for the present suit has arisen to the plaintiff during the pendency of the previously instituted suit.

(12) In the opinion of this Court the precise cause of action on which the two suits are based are different. The bar of Order 2 Rule 2 Civil Procedure Code is not attracted to the facts of the case. The suit is held to be maintainable. Ia 6859/93 filed by the defendant is rejected.

(13) By the application bearing Ia No. 10506/93, the plaintiff seeks a direction from the Court to the defendant to furnish security for the suit amount or for attachment before judgment of the defendant.

(14) The suit is filed for recovery of Rs.4,20,750.00 by way of fabrication charges, Rs.l,01,000.00 by way of parking charges and Rs.16,500.00 by way of fitting charges of heater, making a total of Rs.5,38,250.00 .

(15) An order calling upon the defendant to furnish the security and directing attachment before judgment in default of security is not to be made merely for asking. It is also not to be made merely because the defendant may not suffer thereby. So also the claim of the plaintiff being strong on merits is also no ground for such a direction. It is only when the court is satisfied that the defendant with intend to delay the plaintiff or avoid any process of the court or obstruct or delay the execution of any decree that may be passed against him is leaving the local limits of the jurisdiction of the Court or disposing of or removing his property from within such limits that such an order may be made. for detailed discussion of the law on the point see IAs No.4412/94 and 5240/94 in Omp 36/92 decided on 8th September, 1994 titled Indian Railway Construction Co.Ltd. VS. M/s. Quadricon Pvt.Ltd. Drj (31)1994 397 I am not satisfied that any of the ingredients contemplated by Rule 1 Order 38 of the Civil Procedure Code are made out by the plaintiff. Ia 10506/93 is, therefore, rejected.