Harbans Lal vs Jagdeep Singh
1995 Latest Caselaw 671 Del

JUDGMENT

Manmohan Sarin, J.

(1) The petitioner who is defendant before the Trial Court, has filed this revision petition under Section 115 of the Civil Procedure Code assailing the order dated 7.4.95 passed by Shri Vipin Kumar Gupta, Civil Judge, Delhi, herein referred to as an impugned order.

(2) The learned Civil Judge by the impugned order had consolidated a suit for recovery of damages for use and occupation filed by the respondent/plaintiff against petitioner on 4.1.88 with another suit for possession filed by him against the petitioner on the same day. The learned Civil Judge by the impugned order also decided the preliminary objections raised by the petitioner claiming the suit for damages to be barred under Older Ii Rule 2, Civil Procedure Code being a suit subsequently filed as well as the said suit being liable to be stayed under Section 10,C.P.C The learned Civil Judge by the impugned order held that the second suit was neither barred under Order Ii Rule 2 nor liable to be stayed under Section 10 of Civil Procedure Code

(3) The facts in brief culminating in the revision petition may briefly be stated as under: (I)The petitioner claims to be a tenant under the respondent in respect of one room and a shed in front of the room of the same size with bath and latrine etc at a monthly rent of Rs. 22.00. Therespondent,on4.1.88 filed a suit for mandatory injunction claiming that the petitioner in the year 1984 had unauthorisedly and illegally constructed a Khoka in the open space on the rear of the premises in suit. A mandatory injunction was sought for removal of the Khoka and for the possession of the land by demolitionoftheKhoka.Simultaneously,onthesameday,respondent filed another suit for recovery of damages of Rs. 3600.00 for unauthorised use of the Khoka and claimed further damages @ Rs. 1000.00 p.m.

(4) It is the petitioner's case that both the suits were separately registered and were sent for trial to different Courts. However, after framing of the issues, two suits were sent to the Court of Shri Vipin Kumar Gupta, who allowed the application for consolidation of the said suits by the impugned order.

(5) The petitioner challenges the consolidation of the said suits on the ground that the issues in the two suits are different and so is the evidence in both the suits. This ground was, however, not pressed before me.

(6) The learned Counsel for the petitioner has urged that the suit for mandatory injunction was filed earlier and suit for recovery of damage was filed subsequently as would be evident from the register of suit before the Senior Civil Judge. The impugned order was passed without giving an opportunity to address on the question of the bar under Order Ii Rule 2 as well of stay under Section 10, Civil Procedure Code

(7) Counsel for the petitioner was therefore, permitted to make his submissions on the bar under Order Ii Rule 2 and Section 10, Civil Procedure Code Counsel submits that the Civil Judge erroneously held that the bar of Order Ii Rule 2, Civil Procedure Code would not apply because it was not capable of being ascertained as to which suit could be termed as former suit and which one as a later suit. This fact was verifiable and ascertainable from the register recording the receipt of suits before the Senior Civil Judge. Counsel further submitted that the bar of Order Ii Rule 2 was attracted as the learned Civil Judge has himself reached a conclusion that both the suits were between the same parties and related to the same subject-matter and cause of action.

(8) The findings of the Trial Court that the bar of Order Ii Rule 2, Civil Procedure Code would not apply because it could not be ascertained to which suit should be termed as a former suit and which one was a later suit, appears to be erroneous. The petitioner's Counsel is correct in staling that the entries in the Register before the Senior Civil Judge would reveal the factual situation. The matter does not, however, rest here. The question to be considered is assuming the two suits were filed simultaneously on the same day and the conditions attracting the application of Order Ii Rule 2, C.P.C. are present, what is the course of action to be taken ? Should the suit registered with the subsequent number be held as not maintainable ? Neither the submissions of the Counsel for the petitioner nor the impugned order throw any light on this aspect of the matter.

(9) Let us look at the case Law on this. In Murti v. Bhola Ram and Others, reported at 1894 India Law Reports (Allahabad Series, Page 165), it was held that where two suits were registered it must be presumed that unless the contrary is proved that they were presented and admitted in the order in which their number appears in the register of Civil Suits. The Court in this case declined to give permission to withdraw the second suit with permission to sue again. It was held that the two suits were on the files of the Court and being in respect of the same cause of action the first suit has barred the second suit. Thereafter, an almost similar view was taken in Stand and Electric Motor Works and Picture Place, case reported at 1923 Volume I in Law Reports Rangoon Series 628. The plaintiff brought two suits simultaneously impleading the defendant in one suit in his personal capacity and in the other the Picture Palace business through respondent as its Managing Proprietor. The Court in this case on facts held that the bar under Order Ii Rule 2, C.P.C. was not attracted as the test for application of the rule namely whether the two suits as framed could have been framed as one suit without a misjoinder of defendants was not fulfillled.

(10) Nevertheless the (sic.) made bite observation that if Order Ii Rule 2, Clause 2, Civil Procedure Code was held applicable, the small cause Court would have been justified in refusing to consolidate or to permit withdrawal of the suit.

(11) It would be seen from the foregoing that the earlier view was that even in cases of simultaneous institution on the same day, the Court could determine which was the prior or successive suit and if the other conditions for application of Order Ii Rule 2, Civil Procedure Code were fulfillled, the second suit should be held as barred and permission to either withdraw, reinstitute or consolidate the suits, ought not to be given. The rationale appeared to be that a plaintiff who chooses to institute two separate suits on the same cause of action must suffer the legal consequences of Order Ii Rule 2, Civil Procedure Code

(12) There has been a departure from the above view in Ganesh Ramchandra v. Gopal LakshmanThakur, (AIR 1943 Bombay 12). The Court held that if two suits are filed simultaneously, there was no contravention of Order Ii Rule 2 which prohibits a plaintiff from afterwards suing from a relief omitted in the former suit; the two suits should be consolidated and tried together on the same evidence.

(13) "THE relevant portion of the judgment of Broomfield, J. may be usefully reproduced: "THE important question is whether the second part of Rule 2 applies. Is it a case of a plaintiff afterwards suing in respect of a portion of a claim omitted from a former suit ? The plaints in the two suits were presented on the same day and bear consecutive numbers. It is reasonable to suppose that they were presented simultaneously. It has been held by the Allahabad High Court in 16 Allahabad page 165 and by the Rangoon High Court in I Rangoon 682 that in such circumstances the suit bearing the later number is to be presumed to have been filed afterwards. The basis of these decisions is that if Order Ii Rule 2 (or Section 43 of the old Code), were not to be applied in the case of suits filed on the same day, it would open the door to deliberate and continual evasion ofthelaw.For instance, if A buys on the same occasion seven different articles from B in B's shop, B might file on the same day seven suits against A in respect of the price of the seven articles sold which, it is said, would be absurd. I am by no means satisfied, however, that this argument ab inconvenienti really makes it necessary to strain the language of the rule and to assume contrary to the fact that one of two plaints presented simultaneously has been presented afterwards. The Madras High Court has declined to make this assumption : 49 Madras 869, but apparently it though it necessary nevertheless to assume that one or the other of the suits was instituted afterwards and so the expedient was adopted of giving the plaintiff the option of electing which of the suits should be regarded as the earlier. It is obvious that either of these purely arbitrary methods of procedure may cause be irrelevant if there were no other way of preventing evasion of the rule that a suit must include all claims arising out of the same cause of action. But I think that is not so. In the hypothetical case put by Sir John Edge in 16 Allahabad Page 165 the man who brought seven suits on the same day based on the same cause of action would not and could not in fact evade -the provisions of the first part of Order 2 Rule 2 and the Court would obviously not be bound to hear all the suits separately. The Court might consolidate them or call upon the plaintiff to include all the claims in one suit and withdraw the rest. The only ruling of our own High Court on the point, so far as we are aware, is 5 Bombay High Court Rule (A.C.) 30. That seems to be an authority, binding on this Court, for the view that if suits are filed simultaneously there is no contravention of the part of the rule which prohibits a plaintiff from afterwards suing for a relief omitted in a former suit. In that particular case, both suits had been tried and as the High Court was dealing with the matter in appeal, it applied the section corresponding to the present Section 99 Here the lower Courts have dismissed done of the suits and there is no question of applying Section 99. But as we take the view that this procedure, on the face of it unjust to the plaintiff, was not necessary on the true construction of the rule, we consider ourselves justified in treating the two suits as having been consolidated, as they ought to have been. To all intents and purposes it may be said that they were in fact consolidated since they were tried together on the same evidence."

(14) I am in respectful agreement with the above interpretation of Order Ii Rule 2, Civil Procedure Code and the view taken by the Bombay High Court for consolidating the two suits and trying them as one. The learned Civil Judge has reached the same conclusion without considering the provision of Order Ii Rule 2, Civil Procedure Code but in the exercise of in he rent powers under Section 151,C.P.C. to subserve the ends of justice. As the conclusion reached is the same, no interference in the impugned order is warranted in the exercise of revisional jurisdiction under Section 115, Civil Procedure Code The revision petition fails and is dismissed but with no order as to costs.