Delhi High Court
Ranbir Singh vs Dalbir Singh & Others on 19 December, 2008
Author: Sanjiv Khanna
CS(OS) No.802/2002 Page No.1
REPORTABLE
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) NO. 802 OF 2002
% Date of Decision : December 19th , 2008.
RANBIR SINGH .... Plaintiff.
Through Dr.A.M. Singhvi, Sr.Advocate with
Mr.P.K. Mullik, Mr. Niraj Singh, advocates.
VERSUS
DALBIR SINGH & ORS. .... Defendants.
Through Mr. O.N. Vohra, Sr. Advocate with
Mr.Vishwa Bhushan Arya, Mr. Jaipal,
advocates.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not ? Yes.
3. Whether the judgment should be reported Yes.
in the Digest ?
SANJIV KHANNA, J:
1. This Order will dispose of two preliminary legal issues framed
on 3rd September, 2008, which are as under:-
(1) Whether the suit for declaration simplicitor,
without prayer for possession is maintainable in
CS(OS) No.802/2002 Page No.2
view of averments made in paragraph 8 of the
plaint?
(2) Whether the suit is maintainable as the plaintiff
has already filed Suit No. 300/1997 before the
Civil Judge, Delhi in respect of the land in
question?
2. For the purpose of deciding the aforesaid issues, I have taken
into consideration the averments made in the plaint and the
admitted documents. The admitted facts may now be noticed.
(I) Mr.Dalbir Singh, defendant no.1 herein was owner
of land admeasuring 40 bighas 16 biswas (8.5 acres approx.)
situated in Mouza Chattarpur, Teh. Mehrauli, in Khasra no.
1656 (1-16), 1657 (4-16), 1658 (4-16), 1659 (4-16), 1672 (4-
16), 1673-A-2 (4-16), 1674 (4-16), 1675 (4-16), 1666 (1-8)
(hereinafter referred to as „the property‟, for short).
(II) It is the case of the plaintiff that defendant No.1
sold the property through his attorney and son-in-law, Mr.
Karnail Singh to M/s. Homesteads Industries-defendant no.3.
The land was mutated with necessary revenue entries in
favour of defendant no.3 in 1991.
CS(OS) No.802/2002 Page No.3
(III) Defendant no.1 on 27th January, 1992 filed an FIR
against Mr.Karnail Singh for forging his signature on the
Power of Attorney.
(IV) Defendant No.1 also filed a civil suit in Delhi High
Court in the year 1991 against Mr. Karnail Singh and the sole
proprietor of Defendant No.3, This suit was subsequently
transferred to the District Court. On 29th April, 1994, defendant
no.1, it is alleged by the plaintiff, withdrew the said civil suit. It
is stated by the plaintiff that the status quo order passed on
19th September, 1991 came to an end and ceased when the
civil suit was withdrawn on 29th April, 1994.
(V) On 26th August, 1994, defendant no.1 moved an
application for restoration making an allegation that the suit
was withdrawn by his lawyer without his knowledge. The
application was allowed on 18th October,1996 and the suit was
restored. Application for restoration of the interim order was
also filed but no order was passed on the said application.
The said suit is still pending.
(VI) Mr. Ranbir Singh, plaintiff herein was not a party to
the aforesaid civil suit which was filed by defendant no.1.
(However, during the course of hearing, learned senior
advocate for the plaintiff herein had submitted that the plaintiff
had filed a civil revision and the same stands allowed with a
CS(OS) No.802/2002 Page No.4
direction that the plaintiff herein should be impleaded as a
party to the said civil suit but detailed judgment was awaited.
The said statement has been taken on record).
(VII) The plaintiff pleads that he has purchased the suit
property vide nine separate sale deeds executed by defendant
No.3 between 7th December, 1995 to 29th August, 1996. These
sale deeds have been executed after the civil suit filed by the
defendant no.1 was dismissed on 29th April, 1994 but before it
was restored on 18th October, 1996.
(VIII) The plaintiff on or about 21st June, 1997 filed Suit
No. 300/1997 for permanent injunction before the Additional
District Judge, Tis Hazari Court. It is alleged that the plaintiff
was owner in possession of the property but the defendant
no.1 herein along with Mr. B.S. Saini were trying to forcibly
take possession. Plaintiff claims title in the property on the
basis of the sale deeds executed in his favour by the
defendant no.3 herein. It is also stated in the suit that the
defendant no.1 herein was the original owner of the property
but had sold the same to defendant no.3 and thereafter has no
interest in the suit property. Thus the suit for injunction is
based on both title and possessory right.
(IX) On 23rd June, 1997, learned Additional District
Judge passed an interim order in favour of plaintiff herein
CS(OS) No.802/2002 Page No.5
restraining Mr.Dalbir Singh, defendant no.1 herein and Mr.
B.S. Saini from interfering unlawfully with possession of the
plaintiff in the suit property.
(X) It is the case of the plaintiff herein that in spite of
injunction order, defendant no.1 herein in connivance with the
local police dispossessed the plaintiff from the suit property on
24th June,1997. An application under Order XXXIX, Rule 2A of
the Code of Civil Procedure, 1908 (hereinafter referred to as
the Code, for short) is pending before the learned Additional
District Judge wherein the said issue of alleged dispossession
is under consideration. The application has not been disposed
of.
(XI) Defendant No.1 herein is contesting the suit and
the contempt application claiming that he has always been in
actual physical possession since 1951 and he had not
dispossessed the plaintiff on 24th June, 1997 and the alleged
claim of the plaintiff is false. The defendant no.1 herein has
also made a counter claim in form of decree of permanent
injunction stating that he is the owner of the suit property and
is entitled to injunction against the plaintiff herein. For the
CS(OS) No.802/2002 Page No.6
purpose of deciding the preliminary issues, the contentions
raised are not being accepted.
(XII) While the above suits were pending, the plaintiff
herein filed an application before the Executive Magistrate
under Section 145/146 of the Code praying for attachment of
the property alleging that he had been forcibly dispossessed
by the defendant no.1 herein.
(XIII) On 11th July, 2000, Sub-Divisional Magistrate
(South) District Mehrauli passed a preliminary order under
Section 145(1) and inter alia, recorded that there existed
disputes between the parties. On 14th November, 2000, an
order under Section 146(1) of Code of Criminal
Procedure,1973 was passed appointing SHO, P.S. Mehrauli
as a Receiver of the property.
(XIV) This Order dated 14th November, 2000 was set
aside by the High Court in Criminal Revision No. 540/2000
with a direction that defendant no.1 be given possession of the
property within ten days.
(XV) The Supreme Court by Order dated March 20,
2002 upheld the Order of the High Court observing that the
same was justified and correct. Thus the Order passed by the
Sub-Divisional Magistrate under Section 146(1) of the Code of
Criminal procedure,1973 appointing SHO, Mehrauli as
CS(OS) No.802/2002 Page No.7
Receiver of the property which was set aside by the High
Court was upheld. Supreme Court however held that the High
Court was in error in dealing with the Criminal Revision
Petition as if it was exercising appellate jurisdiction. It was held
that under Section 145 of the Code of Criminal Procedure,
1973, the Sub-Divisional Magistrate was not concerned with
the question of title and ownership and the issue for
consideration was actual physical possession of the property
on the date of the preliminary order and dispossession, if any,
within two months prior to the said date. The question of
relative civil rights between the parties could not have been
examined by the High Court in the Criminal Revision Petition
under the Code of Criminal Procedure, 1973. Parties were
asked to move to the civil court and the status quo order
regarding possession was to continue for three weeks. In
other words, the property was to remain in possession of the
S.H.O. for three weeks and abide by the Order of the Civil
Court.
3. With the above admitted factual background as accepted by the
plaintiff, the two issues are being separately examined.
CS(OS) No.802/2002 Page No.8
ISSUE NO. 1
4. It is admitted case of the parties that as on the date of filing of
the present civil suit, which was filed on 6th April, 2002 possession of
the suit property was with the SHO, Mehrauli in terms of the status
quo passed by the Supreme Court. Possession continues to be with
SHO, Mehrauli. It is the contention of the defendant no.1 that the
plaintiff was/is not in possession of the suit property and therefore
the suit for declaration of ownership simplicitor is not maintainable in
view of Section 34 of the Specific Relief Act, 1963. It is submitted
that the Suit is liable to be dismissed as the plaintiff has not made a
specific prayer for possession.
5. Neither the plaintiff nor the defendant no.1 as on the date of
the filing of the present suit was in possession of the suit property.
SHO, Mehrauli as a Court Receiver was in possession of the suit
property. He came into possession of the suit property pursuant to
orders passed under Section 145/146(1) of the Code of Criminal
Procedure, 1973. This Order was set aside by the High Court and
the Supreme Court but pursuant to directions passed by the
Supreme Court, SHO, Mehrauli continued to remain in possession
till this Suit was filed. The Supreme Court in Deo Kuren and
another versus Sheoprashan Singh and others reported in
(1965) 3 SCR 655, has opined that when a property is under an
CS(OS) No.802/2002 Page No.9
order of attachment passed under Section 145, Cr.P.C., it is not
necessary to ask for relief of delivery of possession in the civil
proceedings. The aforesaid judgment was followed by this Court in
Autoville Finance Pvt. Ltd. versus Swastic Finance Corporation
Limited and another reported in AIR 1971 Del. 310, wherein it was
held that where a property is in custodia legis of a third person
pursuant to orders passed by a court, the plaintiff need not
specifically ask for decree of possession. Possession will be
delivered by the holder, a third person, as per the direction given by
the Court where the civil suit is pending. The Court specifically
noticed distinction between "possession" and "custody" and
observed that a receiver holds a property without claiming any legal
interest for the benefit of the successful party. Custodia legis is
under an obligation to restore and handover possession of the
property in terms of directions given by the Civil Court and therefore
relief of possession need not be separately asked for under Section
34 of the Specific Relief Act, 1963. In view of above, Issue no.1 is
decided in favour of the plaintiff and against the defendant no.1. It is
held that the plaintiff is not required to make a specific prayer for
possession.
CS(OS) No.802/2002 Page No.10
ISSUE NO.2
6. It is admitted factual position that there are two earlier civil
suits which are pending.
7. The first civil suit for injunction is filed by defendant no.1 against
Mr. Karnail Singh and defendant no.3 herein. Plaintiff has now been
impleaded as a party to the said suit. It is admitted case of the
parties that the defendant No.1 in the said plaint claims ownership
rights in the property and has alleged that Mr.Karnail Singh who is
his son-in-law had no authority, power to sell and execute sale
deeds on his behalf in favour of defendant no.3 herein. I may also
note that counsel for the parties have, during the course of
arguments on 22nd July, 2008, admitted that this suit should be
treated as the main suit. The statement of the parties is recorded in
the said Order.
8. The second suit (suit No.300/1997) is also a suit for permanent
injunction, which was filed by the plaintiff on or about 21st June,
1997. An ex parte injunction order dated 23rd June, 1997 was
passed in the said suit restraining the defendant No.1 herein from
interfering with the possession of the plaintiff. In the said suit, an
application under Order XXXIX, Rule 2 A of the Code has been filed
by the plaintiff with the allegation that on 24th June, 1997, the
defendant no.1 had forcibly dispossessed the plaintiff. The
application is pending. The suit is based on the plaintiff herein‟s right
as an owner in possession of the property. It is claimed that the
CS(OS) No.802/2002 Page No.11
plaintiff herein had purchased the suit property from defendant no.3
herein after defendant no.1 had already transferred and sold his
interest in the suit property to defendant no.3 herein and therefore
defendant no.1 cannot claim ownership right and disturb possession
of the plaintiff. The said suit filed by the plaintiff herein is based upon
title of the plaintiff as well as right to possession. Some of the
relevant paragraphs of the plaint in this suit read;
"1. That the plaintiff is the owner in possession of
Khasra No.1656(4-16), 1657 (4-16), 1658 (4-16),
1659 (4-16), 1672 (4-16), 1673/1-2(4-16), 1674(4-
16), 1675(4-16), 1666/1(1-8), total area measuring
40 bighas 16 biswas, situated in Mauja
Chhattarpur Tehsil Mehrauli, Delhi.
2. That the plaintiff submits that the plaintiff
purchased the abovesaid property from M/s. Home
Industries and the possession of the said property
was delivered to him at the time of purchase, since
then the plaintiff is in continuous and uninterrupted
possession of the suit property.
3. x x x x
4. That the defendant No.2 had been the
original owner of the property who sold out the
same to M/s.Home Industries and from M/s.Home
Industries the plaintiff has purchased the property
as such the defendant No.2 has got nothing to do
with the property in question because after having
sold the property, he is left with no interest in the
property and has already washed off his hands
qua the property in question.
5. That the plaintiff submits that the defendant
No.2 had been instrumental in purchase of the
property in question, but now he is in hands with
CS(OS) No.802/2002 Page No.12
gloves with the defendant No.2 and since the rates
of the property have gone high, wants to take
undue advantage of the property and to make
money out of the same, is instigating and siding
with the defendant No.2."
Defendant no.1 herein is defendant no.2 in the said suit.
Defendant no.1 herein has filed written statement and had also
made a counter claim, seeking permanent injunction for restraining
the plaintiff from interfering with his possession.
9. The question is whether this third suit filed by the plaintiff is
maintainable or is barred by law? The answer requires answer to
two questions, namely (1) whether cause of action as pleaded in
Suit No. 300/1997 filed by the plaintiff herein is same as in the
present suit ? and (2) If answer to question (1) is in affirmative,
whether the plaintiff can maintain and file this second suit on the
same cause of action, when his first suit No.300/1997 is still
pending?
10. Learned Senior Counsel for the plaintiff had submitted that the
Supreme Court has directed and given liberty to the plaintiff to file
CS(OS) No.802/2002 Page No.13
the present suit in their Order dated 20th March, 2002. The relevant
portion of the Order reads:-
".....For deciding the questions it was
neither necessary nor relevant for the High
Court to have considered the matters relating
to title to and right of possession of the
property. Further, both the parties in the case
have filed suits seeking decree of permanent
injunction against each other and in the suit
filed by the appellant an order of interim
injunction has been passed and an objection
petition has been filed by respondent no.1.
The suits and the interim order are pending
further consideration before the civil court.
In these circumstances, we are of the
view that while maintaining the order of the
High Court quashing the preliminary order
passed by the Sub-Divisional Magistrate under
Section 145(1) and the order of attachment of
the property under Section 146(1) Cr.P.C.,
leave should be granted to the parties to
approach the civil court for appropriate interim
order and the civil court should deal with the
application for interim order without being
influenced by the observations made/findings
recorded by the High Court in the impugned
judgment. It is ordered accordingly.
In order to enable the parties to
approach the civil court for interim order and
with a view to avoid further complication in the
matter, the interim order passed by this Court
on 18.01.2002 directing status quo regarding
possession of the property in dispute to be
maintained shall remain in force for a period of
three weeks from today.
The appeal is disposed of on the above
terms."
CS(OS) No.802/2002 Page No.14
11. It is clear from the reading of the said Order that the Supreme
Court was aware and conscious that the two suits for permanent
injunction were already pending before the civil courts. In these
circumstances, parties were directed to approach the civil court for
appropriate interim order. No direction or liberty was granted to any
party to file a new suit. The intention of the Supreme Court is
apparent when it stated that "....parties in the case have already
filed suits seeking a decree for permanent injunction against each
other and in the suit filed by the appellant an order of interim
injunction has been passed and an objection petition has been filed
by respondent no.1", i.e. defendant no.1 herein. Parties were given
right to approach the Civil Court for interim order but it was directed that
the interim order passed by the Supreme Court on 18th January, 2002
directing maintenance of status quo regarding possession of the
property shall remain in force for a period of three weeks from the
said date. In other words, the interim order passed by the Supreme
Court directing status quo with regard to the possession i.e. with
SHO as the Receiver, would remain in force for a period of three
weeks from the date of the said Order, i.e. 20th March, 2002. The
plaintiff instead of moving appropriate application before the Civil
Court has preferred to file the present civil suit. The plea and
contention of the plaintiff that the third suit has been filed in view of
the direction and liberty granted by the Supreme Court is rejected.
CS(OS) No.802/2002 Page No.15
New suit would create further complications and open up a new
litigation.
Question No.1
(1) Whether cause of action as pleaded in Suit No. 300/1997 filed by
the plaintiff herein same as in the present suit ?
12. The term "cause of action" is not defined but it is well settled
means; every fact, if traversed, will negate the plaintiff‟s right to
judgment. Explaining the term "cause of action" the Supreme Court
in The State of Madras versus C.P. Agencies and another
reported in AIR 1960 SC 1309 had held as under:-
"We have been referred to the well-known
observations of Brett J. in Cooke v. Gill, (1873) 8 CP
107 and to the definition of "cause of action" given in
Read v. Brown, (1888) 22 QBD 128 which are all
referred to in 75 Ind App 121 : (AIR 1949 PC 78). Lord
Esher M.R., defined "cause of action" to mean
"Every fact which it would be necessary for the plaintiff
to prove, if traversed, in order to support his right to
the judgment of the court. It does not comprise every
piece of evidence which is necessary to prove each
fact, but every fact which is necessary to be proved."
Fry L.J. agreed and said :
"Everything which, if not proved, gives the defendant
an immediate right to judgment, must be part of the
cause of action."
CS(OS) No.802/2002 Page No.16
To the same effect are the observations of Lopes L.J.
in Mst. Chand Kour v. Partab Singh, 15 Ind App 156.
Lord Watson observed:
"Now the cause of action has no relation whatever to
the defence which may be set up by the defendant,
nor does it depend upon the character of the relief
prayed for by the plaintiff. It refers, entirely to the
grounds set forth in the plaint as the cause of action,
or, in other words, to the media upon which the
plaintiff asks the court to arrive at a conclusion in his
favour."
The meaning of "cause of action" being thus well
understood, we now proceed to consider whether
the cause of action with which the plaintiff has come
to court has been stated sufficiently in the notice
given under S 80. For this purpose we must first see
what is the cause of action set forth in the plaint."
13. The question how to decide, whether two separate suits are
based upon the same cause of action has come up for consideration
before several courts while examining the bar of Order II, Rule 2 of
the Code. Same principles will apply to the present case also. In
Mohammad Khalil Khan verus Mahbub Ali Mian reported in AIR
1949 PC 78, the following five principles were summarized:
"The principles laid down in the cases
thus far discussed may be thus summarized :
(1) The correct test in cases falling under Order 2,
Rule 2 is "whether the claim in the new suit is, in
fact, founded on cause of action distinct from
that which was the foundation for the former suit
CS(OS) No.802/2002 Page No.17
(Moonshee Busloor Ruheem v.
Shumsoonnissa Begum1)
(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. Brown2)
(3) If the evidence to support the two claims is
different then the causes of action are also
different (Brunsden v. Humphery)3
(4) The causes of action in the two suits may be
considered to be the same if in substance they
are identical (Brunsden v. Humphery)
(5) The cause of action has no relation whatsoever
to the defence that may be set up by the
defendant, nor does it depend on 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)4. This
observation was made by Lord 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."
These principles have been approved by the Supreme Court in
Kewal Singh versus Lajwanti reported in (1980) 1 SCC 290.
8 WR PC 3
(1889) 22 QBD 128
(1884) 14 QBD 141
16 Cal 98 (PC)
CS(OS) No.802/2002 Page No.18
14. The claim or right of the plaintiff as an owner and that he was
in possession of the property or whether after passing of the interim
order by the Court on 23rd June, 1997 he was forcibly dispossessed
is subject matter of the Civil Suit No.300/1997 filed by the plaintiff
before the Addl. District Judge. The foundation and media of the
said suit is sale/transfer of rights by defendant No.1 in favour of
defendant No.3 and subsequent transfer of rights by defendant No.3
to the plaintiff herein with possession.
15. The plaintiff by the present suit is again seeking adjudication
and decision on the same claim/rights and subject matter as raised
and pending before the learned Additional District Judge in Suit No.
300/1997. The plaintiff in the present suit claims his right in the suit
property on the basis of sale deeds executed by defendant no.3 in
favour of the plaintiff. The two suits, therefore, overlap and are
based on the same cause of action or claim of the plaintiff. It cannot
be said that the present suit is based upon a different and distinct
subject matter and foundation. Both the suits proceed on the basis
that the plaintiff is the owner of the property and has legal and valid
title with possession. The plaintiff is entitled to enjoy possession of
the property as an owner and therefore entitled to permanent
injunction. Application under Order XXXIX, Rule 2A of the Code
proceeds on the basis that inspite of the ex parte injunction order
CS(OS) No.802/2002 Page No.19
passed on 23rd June, 1997, the defendant no.1 had dispossessed
the plaintiff on 24th June, 1997. It was admitted by the counsel for
the plaintiff that the question whether any dispossession had taken
place is to be decided by the civil court while deciding the
application under Order XXXIX, Rule 2A of the Code and not by this
Court. The plaintiff in no uncertain terms has stated that he does not
want to withdraw civil Suit No. 300/1997 and the application under
Order XXXIX, Rule 2 A of the Code. Thus the foundation and the
subject matter of the two suits is identical. Evidence which is to be
led by the plaintiff in the two suits is same, i.e. that the plaintiff is
owner in view of the sale deeds executed by defendant no.3 and he
was in possession of the suit property before being illegally
dispossessed after filing of the civil suit No.300/1997 before the
Additional District Judge and after the said injunction order was
passed by the Additional District Judge against Mr. Dalbir Singh,
defendant no.1 herein.
16. Learned senior counsel for the plaintiff had urged that the
reliefs/prayers in the present suit are different and distinct from the
CS(OS) No.802/2002 Page No.20
relief of permanent injunction prayed for by the plaintiff in Suit
No.300/1997. Specific reference was made to prayer „c‟ in the
present plaint, which reads;
"c) declaration that the report of DCP dated 1 st
April, 1997, report of Patwari dated 9th May, 1997
and report of SDM dated 13th May, 1997 are non-est
and null and void in the eyes of law and do not
effect the rights; title and interest of the Plaintiff and
do not vest the Defendant with any right, title or
interest of any nature whatsoever in the suit
property;"
17. As per the five principles mentioned above, reliefs prayed for
in this suit or before the District Court is not the determining factor.
Prayer „c‟ in the present suit does not change the character and the
subject matter or the foundation of the two suits, which remains the
same, i.e. documents of title executed by defendant no.3, in favour
of the plaintiff and the plaintiff was in possession of the suit property
before being dispossessed in violation of the stay order in Suit No.
300/1997. The present suit is not based on separate or independent
cause of action.
18. Reports of Patwari, D.C.P. and the S.D.M. are merely
evidences and do not change the nature and character of the two
suits. A plaint has to be read meaningfully and not formally. It should
CS(OS) No.802/2002 Page No.21
not be dissected and segregated. Though, no inversions should be
made into any paragraph in the plaint, it is the substance and not
merely the form which has to be gathered without additions and
subtractions of words. Intention of the party is to be gathered
primarily from the tenor and the averments made in the pleadings
taken as a whole. As per Order VI, Rule 2 of the Code, pleadings
are only to contain statements in concise form and material facts i.e.
facts necessary to formulate cause of action. There is distinction
between material facts and particulars. Function of particulars is to
present a fuller picture in detail. (Refer, Sopan Sukhdeo Sable and
others versus Assistant Charity Commissioner and others
reported in (2004) 3 SCC 137). Reports do not form part of cause of
action. They are evidences or particulars. These may be relied upon
or rejected and will be examined along with other evidence while
deciding and determining the question, whether plaintiff was in
possession when Suit No.300/1997 was filed. Prayer of the plaintiff
in Suit No. 300/1997 can be granted inspite of the said reports, if the
court is satisfied. Payer „c‟ in the present suit is to ignore the said
reports and the said reports do not affect the right, title and interest
of the plaintiff in the property. Reports therefore or prayer „c‟ does
not change the cause of action. Reports of patwari, DCP and SDM
are of May,1997 whereas suit no.300/1997 before Addl. District
judge was filed in the end of June,1997.
CS(OS) No.802/2002 Page No.22
It is, therefore, clear that the two suits are based upon the
same cause of action.
Question no.2
Whether the plaintiff can maintain and file this second suit on
the same cause of action, when his first suit No.300/1997 is still
pending?
19. A plaint can be rejected under Order VII, Rule 11(d) of the
Code where a suit appears from the statement in the plaint to be
barred by law. Section 9 of the Code states courts have jurisdiction
to try civil cases unless their cognizance is expressly or impliedly
barred.
20. Section 12 of the Code stipulates that where a plaintiff is
precluded by the Rules from instituting a further suit in respect of
any particular cause of action, he shall not be entitled to institute a
suit in respect of such cause of action in any court to which the
Code applies. Can a plaintiff file two or more suits on the same
cause of action before different courts or the second suit will be
barred under the Rules in view of Section 12 of the Code requires
examination.
21. Order II, Rules 1 of the Code states that every suit should be
framed so as to afford final decision upon the subject and prevent
further litigation. Order II, Rule 2 of the Code, bars a party from filing
another suit on the same cause of action. Order XXIII, Rule 1(3) and
(4) of the Code stipulates that a party cannot institute a fresh suit in
CS(OS) No.802/2002 Page No.23
respect of the subject matter after withdrawing an earlier suit unless
liberty to file a fresh suit is granted. Similarly, Order IX, Rule 9 of the
Code bars a fresh suit if an earlier suit is dismissed under Order IX,
Rule 8 of the Code. Section 10 of the Code prohibits trial of a suit
when an earlier suit is already pending and the subject matter in
issue in the two suits is directly and substantially similar. Section 10
of the Code applies when the second or the subsequent suit is
maintainable and not barred. If the second suit is barred, Section 12
or Section 9 of the Code will apply. Section 10 of the Code cannot
be used to resurrect the second suit, which is otherwise not
maintainable. Section 10 is not an enabling provision but a provision
which bars trial. Section 11 of the Code prohibits not only trial but
trial of the issue itself is barred, irrespective of the burden of proof.
Provisions of Section 11 of the Code bars not only ground of attack
but also defences.
22. On a conjoint reading of the above provisions, considering the
purpose and object behind the provisions and the entire Code, it is
apparent that a party cannot file multiple or a new suit on the same
cause of action, after having invoked jurisdiction of one court on the
said cause of action. Plaintiff after filing a suit on the subject cause
must proceed with the said suit to its logical end and cannot and
should not be permitted to file a new suit on the same cause of
action, ignoring the first suit. The underlying principle behind the
Code being that no party should be vexed twice, made to spend
money and time on a second litigation, when an earlier litigation on
CS(OS) No.802/2002 Page No.24
the same cause of action filed by the same plaintiff is already
pending. In addition, court‟s time is spent and dockets increase, if a
party files two or more suits on the same cause of action. A litigant
cannot be permitted to file a new suit by substituting or changing
words or paragraphs or using different language in the relief clause
or by creating artificial differences or changes by incorporating more
facts or particulars, though essentially and in substance the cause is
the same.
23. In Hari Ram versus Lakshmi Mian and others reported in
AIR 2003 Raj. 319, after examining the relevant provisions of the
Code, learned Single Judge has observed:
"23. The sum and substance of the above
discussion is that a party may file a suit in the
Court of law on accrual of cause of action and it
is one suit only. Thereafter, his suit is required
to be dealt with by the Court in accordance with
the procedure providing for dealing with the suit
and the plaintiff cannot have any liberty to deal
with his suit as per his own whims. The Civil
Procedure Code prescribes complete
procedure about how the suit can be dealt with
by the parties and the Courts. Rule 1 of Order 2
cast a duty upon the plaintiff to frame the suit in
such a manner so that final decision may be
given by the Court UPON the SUBJECTS in
DISPUTE (not only upon cause of action or
relief claimed in the suit) and it should prevent
further litigation. In Rule 2 of Order 2.
"SUBJECTS in DISPUTE" has been used,
which |s wider than the words "cause of action"
or ''reliefs." Object of Rule 1 of Order 2 is to
PREVENT FURTHER LITIGATION BETWEEN
THE PARTIES TO THE SUIT. The Sub-rules
(2) and (3) of the Rule 2 of Order 2, C.P.C. do
not permit plaintiff to left out any of the relief,
which he could have claimed on accrual of the
CS(OS) No.802/2002 Page No.25
cause of action and if plaintiff omits to sue in
respect of any portion of his claim, he is
precluded from bringing second suit. Once the
suit is filed by the plaintiff, the plaintiff is
prohibited from amending the pleadings in any
manner without leave of the Court under Order
6, Rule 17. C.P.C. Suit filed in the Court can be
withdrawn by the plaintiff unconditionally under
Order 23, Rule 1, C.P.C. which precludes
plaintiff from instituting any fresh suit in respect
of such subject-matter or such part of the claim
which is included in the suit. In case, plaintiff
proceeds with the suit, it can be either decreed
or dismissed after trial by determination of all
the issues involved with action determining the
entitlement of the plaintiff and defendant in
relation to the reliefs claimed in the suit.
Dismissal of the suit may be for various other
reasons like, dismissal for non-compliance of
Court's order or dismissal in default or due to
abatement etc., as the case may be. The Code
of Civil Procedure itself provides when fresh
suit can be filed even after dismissal of suit.
Order 23, C.P.C. not only contains such
provision permitting plaintiff to withdraw the suit
without leave of Court but also keep his rights
alive. Contrary it puts a specific bar against
filing fresh suit. Therefore, once a suit is filed
and un-conditionally withdrawn by the plaintiff,
his claims, which he could have claimed but not
claimed, stands relinquished as lost claim and
loses his all rights, for the claim for which suit
was filed resulting into, and of dispute relating
to the SUBJECT of DISPUTE between the
parties to the suit without leaving, any scope of
second suit for subject-matter which was
involved in the suit.
24. Generally help of Section 10 of the C.P.C.
is taken in support of plea of maintainability of
two or more suits by one plaintiff. Section 10 of
the C.P.C. is not the permissive provisions, but
is a restrictive provision and cannot be
interpreted to hold that since only proceeding
with the trial of issue or suit is restricted by
CS(OS) No.802/2002 Page No.26
Section 10, C.P.C., therefore, it impliedly
accepts maintainability of more than one suit by
one plaintiff. Said plea is devoid of any force.
Section 10, C.P.C. applies only to those suits
which are legally maintainable. Section 10
cannot be invoked to make the subsequently
filed suit maintainable. Other view will be just
contrary to entire scheme of the procedure
provided for trial of suits in Civil Procedure
Code. All relevant provisions of Civil Procedure
Code are aimed towards avoiding more suits
than one suit by the plaintiff, which also
prohibits plaintiff from even amending suit
without leave of the Court. Despite all
provisions to avoid more than one suit some
unavoidable circumstances permits
involvement of same issues in two suits. Those
suits are like cross suits or where law permits
second suit specifically like withdrawal of suit
with permission to file fresh suit or due to
accrual of cause of action or entitlement for the
relief/ reliefs subsequent to filing of earlier suit
to the plaintiff and plaintiff had no right to claim
relief at the time of filing of earlier suit and
where Court either cannot grant relief after
taking note of subsequent event or the Court
refuses to entertain subsequent event for
moulding the relief. Such suits are maintainable
and are permissible. Even where such suits are
lawfully maintainable still law, (under) Section
10 prohibits simultaneous trial of issue and if,
due to any reason, trial of suit proceeded, the
decision given on issue which is earlier in time
has been made final by Section 11, C.P.C.
When specific provisions of law prohibits trial of
even maintainable suit., then interpreting
Sections 10 and 11 of the C.P.C. as a
permissive provision making maintainable two
suits simultaneously will be against the
legislative intention.
25. It is immaterial whether plaintiff files another
suit with respect to the subject-matter against
the same party during the pendency of his
earlier suit or after withdrawal of the earlier suit
CS(OS) No.802/2002 Page No.27
without leave of the Court to file fresh suit,
consequence is the same and i.e.,
abandonment of his CLAIM with statutory
restriction against second suit as provided in
Sub-rule (4) of Rule 1 of Order 23, C.P.C. Even
if, the principles of res judicata cannot be
applied still the plaintiff cannot have any
permission to walk in Court and go out of the
Court after inflicting injury upon the defendant
and even upon the Court of dragging in
litigation and wasting precious time without
haying any consequence of coming into the
Court and compelling other party to face the
litigation may it be for long period or for shortest
period. The complete scheme of the Civil
Procedure Code makes it unambiguously clear
that a party can have one opportunity to
approach the Court for getting decision on all
the issues raised and on all the issues which
could have been raised by the plaintiff at the
time of filing suit by the plaintiff and further even
on the issues which arise on the pleas of the
defendant taken in defence to destroy plaintiffs
claim by establishing hollowness of the plaintiffs
claim or by establishing his right, title or interest
in the subject-matter necessary to destroy
plaintiffs claim. If the plaintiff withdraws from the
suit, he is at liberty to do so only with
consequence of losing all his claims with
respect to the subject-matter of the suit. Once
defendant is invited by the plaintiff and who is
contesting the suit, not agreeing to satisfy the
plaintiff for his claim and reliefs expressly in
terms of Sub-rule (3) of Rule 1 of Order 23,
C.P.C. to the satisfaction of the Court, the
plaintiff unilaterally cannot walk out of the Court
by saying that he himself feels satisfied about
his claim and reliefs for which defendant never
conceded and plaintiff cannot take away right of
the defendant to get the decision on the issues
involved in the suit on the basis of the pleading
of both the parties to the suit irrespective of the
burden of proving the issues. It is true that
neither the plaintiff nor the defendant can be
compelled to litigate, but after filing suit any of
CS(OS) No.802/2002 Page No.28
them may not contest or can withdraw from
contest but only with by conceding other's claim
or withdrawal of his claim for ever. Litigant after
start of litigation cannot avoid its lawful and final
decision nor have right to prevent Court from
deciding the dispute as it is not convenient to
them at this point of time and to keep the
dispute alive for adjudication by the Court at the
time which suits them or suits them by
changing their capacity, plaintiff to defendant or
vice versa. The proposition is in consonance
with number of provisions of the Civil Procedure
Code, which are enacted to avoid multiplicity of
the proceedings by the parties in the Court."
I respectfully agree with the said observations.
24. Learned counsel for the plaintiff had submitted that the suit for
injunction (Suit No. 300/1997) filed before the District Judge is not
maintainable and suffers from a defect as no prayer for declaration
of title is made. He relied upon Anathula Sudhakar versus P.
Buchi Reddi (Decd) through L.Rs and another reported in AIR
2008 SC 2033. In the said case, the Supreme Court had examined,
when a suit for permanent injunction simplicitor is maintainable and
when and in which cases it is necessary to file a suit for declaration
and/or possession and injunction as a consequential relief. The
Supreme Court noticed that in a given case, the plaintiff may amend
the suit to satisfy technical requirements of law with a prayer for
declaration. Further, if a suit is dismissed for a technical defect, a
new suit may be filed if permitted and allowed by law. The said
decision does not deal with the question of law arising in the present
case, i.e. whether a plaintiff can file two suits on the same cause of
action and whether the second suit is barred under the provisions of
the Code.
CS(OS) No.802/2002 Page No.29
25. The first suit filed by the plaintiff herein before the District
Judge is still pending. Plaintiff has not withdrawn the said suit under
Order XXIII, Rule 1 of the Code with liberty to file a fresh suit.
Plaintiff herein does not want to withdraw the said suit. There is no
adjudication or decision by the Additional District Judge that the first
suit filed by the plaintiff is not maintainable or requires amendment.
This Court while examining whether the second suit is maintainable
cannot decide the question and pass an order in the first suit holding
that the same suffers from a technical defect and therefore should
be dismissed as withdrawn under Order XXIII, Rule 1 of the Code
with liberty to file a fresh suit. No such prayer is made nor any such
prayer can be entertained in the present suit. It may be noted that
the plaintiff is not inclined to withdraw the first suit. Further even if
there is a technical defect, the plaintiff herein can always amend the
plaint. Plaintiff, however, cannot file a second suit, ignoring
provisions of Code and embroil the defendant No.1 in a second
litigation. The plaintiff does not have permission to file a second suit.
If the plea of the plaintiff is accepted, a plaintiff can keep on filing
repeated suits by making averments in the plaint that the earlier suit
suffers from a technical defect but he need not withdraw the earlier
suit. In the plaint filed in the present suit there is no averment that
the suit filed before the District Judge is not maintainable due to a
technical defect and therefore the plaintiff is filing the present suit
with the intention and desire to withdraw the first suit pending before
the learned Additional District Judge.
26. The present Suit should not be allowed to continue as it
amounts to abuse of the process of court. It should be disposed of
at this stage itself, lest it creates further complications or conflicting
decisions and further time and costs are incurred. The present suit
CS(OS) No.802/2002 Page No.30
is mere duplication of Suit No. 300/1997 filed. Both suits, the
present Suit and the suit pending before the District Court being Suit
no.300/1997 is filed by the same person, i.e. the plaintiff himself.
Provisions of Order II, Rules 1 and 2 read with Sections 9 and 12 of
the Code are therefore clearly applicable and the present suit is
barred under the said provisions. The plaintiff cannot be permitted
and allowed to file multiple litigations on the same cause of action.
This amounts to sheer abuse of the process of court and
harassment of defendant no. 1 who has been dragged to this Court
and made to incur expenses.
27. Issue no.2 is accordingly decided in favour of defendant no.1
and against the plaintiff. The suit is not maintainable and the plaint is
rejected with costs.
(SANJIV KHANNA)
JUDGE
DECEMBER 19, 2008.
P
