Sh. Suresh Kakkar And Another vs Sh. Mahender Nath Kakkar & Ors
2008 Latest Caselaw 886 Del

        THE HIGH COURT OF DELHI AT NEW DELHI

%                                Judgment delivered on: 02.07.2008

+      IA 2950/2005 in CS (OS) 1132/2004 (U/O 7 R. 11, CPC)

SH. SURESH KAKKAR AND ANOTHER                           ... Plaintiffs

                               - Versus -

SH. MAHENDER NATH KAKKAR & ORS                           ... Defendants
Advocates who appeared in this case:-
For the Plaintiffs         : Mr Praveen K. Mehdiratta with Mr Dharam Dev
For the Defendant Nos. 1-6 : Mr Preetjit Singh

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED

1.

Whether Reporters of local papers may be allowed to see the judgment ? YES

2. To be referred to the Reporter or not ? YES

3. Whether the judgment should be reported in Digest ? YES

BADAR DURREZ AHMED, J

1. An interesting question arises for consideration in this

application. The question is - whether a plaint can be rejected

under Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908

on the plea taken by the defendants that the present suit is barred

under Order 2 Rule 2 of the said Code ?

2. It is alleged by the defendant Nos. 1 to 6 (applicants) that

the plaintiff No.1 had earlier instituted a civil suit for permanent

injunction being Suit No.10/2004 titled as ―Shri Suresh Kakkar v.

Shri Mahender Nath Kakkar and Others'. In that suit, which is

pending before the Civil Judge, Karkardooma Courts, Delhi, the

plaintiff No.1 has sought a perpetual injunction against some of

the defendants herein from selling or alienating the suit property.

It is alleged by the defendant Nos. 1 to 6 that all the material and

substantial allegations made in the present plaint and in the plaint

of Suit No.10/2004 are identical. It is also submitted that the

alleged causes of action in the present suit and in the previous

civil suit are, substantially, one and the same. The said defendants

also submit that in the earlier suit, the plaintiffs did not claim the

relief of partition in respect of the suit property nor did they claim

the relief of recovery of the amount as claimed in the present suit.

In the earlier suit, only the relief of permanent injunction was

sought although the plaintiffs could have sought the reliefs of

partition and recovery on the basis of the same cause of action.

The said defendants further submitted that the plaintiffs did not

seek any liberty or permission of the Civil Judge in terms of Order

2 Rule 2, CPC for instituting the present suit, subsequently.

According to the said defendants, this amounted to failure and / or

voluntary omission on the part of the plaintiffs to seek the further

reliefs of partition and recovery in the said Suit No.10/2004 and

this resulted in the plaintiffs giving up and relinquishing their

claims to the reliefs of partition and recovery of money. On the

basis of these averments, it is prayed on behalf of the said

defendant Nos. 1 to 6 that the plaint ought to be rejected as it is

barred by law (Order 2 Rule 2, CPC).

3. The present application under Order 7 Rule 11, CPC was

filed simultaneously with the filing of the written statement on

behalf of the defendant Nos. 1 to 6 on 17.01.2005. In the written

statement also, the said defendants have taken the plea that the

suit is not maintainable and is barred under the provisions of

Order 2 Rule 2, CPC. Alongwith the written statement, the said

defendants have also filed a set of documents which include a

copy of the plaint in Suit No.10/2004.

4. The learned counsel for the defendants 1 to 6 (applicants)

drew my attention to the plaint filed in the earlier suit (Suit

No.10/2004) and sought to compare it with the plaint filed in the

present suit. Various submissions were made with regard to the

similarities and differences in the two plaints as also the

improvements made in the present plaint. It was contended that

while there was a mention of a request for partition in the earlier

plaint as also the fact that though the partition was promised, it

was refused, the plaintiffs only sued for injunction and omitted to

sue for partition and recovery of money. It was contended that the

relief of partition could very well have been claimed on the same

cause of action as alleged in the earlier suit, but had not been

claimed and in view of the provisions of Order 2 Rule 2, CPC,

leave not having been taken of the court, cannot now be claimed

in the present suit. Therefore, the plaint ought to be rejected in

view of the principles set out in Order 7 Rule 11 (d), CPC. The

learned counsel also referred to the decisions in Kamal Kishore

Saboo v. Nawabzada Humayun Kamal Hasan Khan: 2001 II

AD (Delhi) 635 (DB), Vishal Anand v. Bimla Anand and

Others: 113 (2004) DLT 850 (DB) and (Sree Rajah) Venkata

Rengiah Appa Rao Bahadur and Ors. v. Secy. of State and Ors.:

AIR 1935 Madras 389.

5. In reply, the learned counsel appearing on behalf of the

plaintiffs stated that the two suits were different. The earlier suit

had been instituted only by the plaintiff No.1. In the present suit,

there are two plaintiffs. The parties in the present suit are all heirs

of Late Shri Nihal Chand to whom the suit property originally

belonged. The plaintiffs 1 and 2 are the son and daughter of Late

Shri Dharam Chand who was the son of Late Shri Nihal Chand.

The defendants 1 and 2 are the sons of Late Shri Nihal Chand

whereas, the defendants 3, 4, 5 and 6 are the legal representatives

of Late Shri Ram Chand Kakkar who was also a son of Late Shri

Nihal Chand. The defendants 7 to 11 are the daughters of Late

Shri Nihal Chand and defendants 12 to 17 are the legal

representatives of Late Smt Kanta Rani who was also a daughter

of Late Shri Nihal Chand. The claim in the suit is that Late Shri

Nihal Chand died intestate in 1978 and left behind four sons and

six daughters. Consequently, each son and daughter was entitled

to a 1/10th share in the suit property left by Late Shri Nihal Chand.

The plaintiffs 1 and 2 being the children of Late Shri Dharam

Chand, who was a son of Late Shri Nihal Chand, jointly claimed a

1/10th share in the suit property.

6. The learned counsel for the plaintiffs submitted that in the

earlier suit (Suit No.10/2004), the only parties were the present

plaintiff No.1 as the sole plaintiff and the present defendant Nos. 1

to 3 and the plaintiff No.2 as defendants. That suit was for

permanent injunction against the present defendant Nos. 1 to 3

from selling and / or alienating the suit property in whole or in

part without the consent and permission of the plaintiff therein.

The present suit, according to the learned counsel for the

plaintiffs, is founded on a separate cause of action and is one

where the plaintiffs have sought partition of the suit property and

recovery of money on account of rents collected by the

defendants. It was contended that the cause of action for filing of

the earlier suit was the threatened sale of the suit property by the

defendants 1, 2 and 3 herein, whereas the cause of action for filing

the present suit was the refusal on the part of the defendants to

partition the suit property. The learned counsel placed reliance on

several decisions:-

1) Abnashi Singh and Others v. Smt. Lajwant Kaur and Another: AIR 1977 P&H 1;

2) Smt. Lajwant Kaur and Another v. Abnashi Singh and Others: AIR 1979 P&H 268;

3) Giriyamman Narasimhan Empran v.

Ramachandran Venkitarayan Empran and Others: AIR 1954 Travancore-Cochin 384;

4) K. Palaniappa Gounder v. Valliammal: AIR 1988 Madras 156.

On the basis of these decisions, the learned counsel for the

plaintiffs contended that the provisions of Order 2 Rule 2 were not

attracted in the present case inasmuch as the parties were

different, the causes of action were different and the earlier suit

was pending and had not yet been decided on merits.

7. It was finally contended by the learned counsel on behalf of

the plaintiffs that this is an application under Order 7 Rule 11,

CPC. The parameters for consideration of such an application are

entirely different to the parameters where an issue raised in a suit

in respect of the bar of Order 2 Rule 2, CPC is considered after the

parties have led evidence. Under Order 7 Rule 11, only the plaint

needs to be seen and none of the documents filed by the

defendants alongwith the written statement can be looked into.

8. It is apparent that counsel for the parties addressed this court

on merits on the issue of the bar of Order 2 Rule 2, CPC. But, the

fundamental question which, to my mind, arises for consideration

is what has been mentioned in the opening paragraph of this

judgment and that is - whether a plaint can be rejected under

Order 7 Rule 11 (d) of the Code of Civil Procedure, 1908 on the

plea taken by the defendants that the present suit is barred under

Order 2 Rule 2 of the said Code ? This question arises because

the parameters of discussion under Order 7 Rule 11 are well

defined. The requirements of establishing a case under Order 2

Rule 2, CPC are equally well defined. It will become clear shortly

that the plea of Order 2 Rule 2, CPC cannot be established unless

and until the defendants place on record the plaint of the earlier

suit to conclusively prove that the cause of action in the earlier

suit was indeed identical to the cause of action in the present suit.

It is well settled that for the purposes of considering an application

under Order 7 Rule 11 and particularly, clause (d) thereof, it is

only the averments contained in the plaint which are relevant and

the pleas taken by the defendants in the written statement or in

any other application are wholly irrelevant.

9. Order 2 Rule 2, CPC reads as under:-

―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 any 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 reliefs so omitted.‖

As observed by the Supreme Court in Deva Ram and Another v.

Ishwar Chand and Another: 1995 (6) SCC 733, ―a bare perusal

of the above provisions would indicate that if a plaintiff is entitled

to several reliefs against the defendant in respect of the same

cause of action, he cannot split up the claim so as to omit one part

of the claim and sue for the other. If the cause of action is the

same, the plaintiff has to place all his claims before the court in

one suit as Order 2 Rule 2 is based on the cardinal principle that

the defendant should not be vexed twice for the same cause.‖ The

Supreme Court further observed that ―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.‖ From this, it follows that the essential

requirement for the applicability of Order 2 Rule 2 is the identity

of causes of action in the previous suit and the subsequent suit.

This, as will be apparent from the discussion below, would have

to be established on evidence.

10. In the context of Order 2 Rule 2, a Constitution Bench of the

Supreme Court in the case of Gurbux Singh v. Bhooralal: AIR

1964 SC 1810, observed:-

―In order that a plea of a bar under Order 2 Rule 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 identity between the cause of action on which the earlier suit was filed and that on which the claim in the later 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.‖

The Constitution Bench also held:-

―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, 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.‖

11. Thus, the defendant has to establish the precise cause of

action upon which the previous suit was filed and since the plea

raises a technical bar, it has to be established satisfactorily and

cannot be presumed merely on the basis of inferential reasoning.

The plea of a bar under Order 2 Rule 2, CPC can be established

only if the defendant files in evidence the pleadings of the

previous suit and thereby proves to the court the identity of the

causes of action in the two suits. This clearly implies that before a

plea of the bar under Order 2 Rule 2, CPC can be upheld, the

defendant has to file the pleadings of the previous suit as and by

way of evidence to prove to the court, the identity of the causes of

action in the two suits. This automatically implies that before the

court can return a finding or come to a conclusion that the plea of

the bar under Order 2 Rule 2, CPC is well substantiated, the court,

as a rule, would have to consider the pleadings in the previous suit

which require to be filed by way of evidence by the defendant. In

other words, the court cannot consider the plea of Order 2 Rule 2,

CPC without travelling beyond the averments made in the plaint

of the subsequent suit, a limitation which is placed on Order 7

Rule 11, CPC.

12. In Bengal Waterproof Ltd v. Bombay Waterproof

Manufacturing Company and Another: 1997 (1) SCC 99, after

referring to the Constitution Bench decision in the case of Gurbux

Singh (supra), the Supreme Court observed as under:-

―Firstly, the Constitution Bench of this Court in Gurbux Singh case [AIR 1964 SC 1810] has clearly ruled that there cannot be any inference about the bar of Order 2, Rule 2, Sub-rule (3), CPC which may be culled out from plaint in the second case and secondly once the plea of bar of Order 2 Rule 2 Sub-rule (3) was not available to the defendants in the suit in the absence of the pleadings in the earlier suit being brought on the record by them in support of their case before the Trial Court they had missed the bus especially when even before the High Court no attempt was made by the defendants to produce the pleadings in the earlier suit by way of an application for additional evidence. ...‖

13. This leaves no manner of doubt that there cannot be any

inference about the bar of Order 2 Rule 2 (3), CPC which may be

culled out from the plaint in the second case and that the same can

only be established in evidence by bringing the pleadings of the

earlier suit on record. Thus, the position in law is clear. The

plaint in the second suit by itself cannot be used for arriving at a

conclusion with regard to the bar of Order 2 Rule 2, CPC in the

absence of pleadings in the earlier suit.

14. In Dalip Singh v. Mehar Singh Rathee and Others: 2004

(7) SCC 650, the Supreme Court noted that ―the sine qua non for

applicability of Order 2 Rule 2 CPC is that a person entitled to

more than one relief in respect of the same cause of action has

omitted to sue for some relief without the leave of the court.‖ The

Supreme Court further observed that ―when an objection

regarding the bar to the filing of the suit under Order 2 Rule 2

CPC is taken, it is essential for the court to know what exactly

was the cause of action which was alleged in the previous suit in

order that it might be in a position to appreciate whether the

cause of action alleged in the second suit is identical with the one

that was the subject matter of the previous suit.‖ It is obvious,

that unless the pleadings in the previous suit are looked into, the

court cannot come to a conclusion with regard to the bar under

Order 2 Rule 2 CPC.

15. With this background, it would be appropriate to examine

the parameters of an application under Order 7 Rule 11, CPC. In

Saleem Bhai and Others v. State of Maharashtra and Others:

2003 (1) SCC 557, the question which arose for consideration

was-whether an application under Order 7 Rule 11, CPC ought to

be decided on the allegations in the plaint and filing of the written

statement by the contesting defendant was irrelevant and

unnecessary ? After construing the provisions of Order 7 Rule 11,

CPC, the Supreme Court held as under:-

―A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit - before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under Clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage ...‖

16. In a later decision in the case of Popat and Kotecha

Property v. State Bank of India Staff Association: 2005 (7) SCC

510, the Supreme Court held:-

―Clause (d) of Order 7 Rule 71 speaks of suit, as appears from the statement in the plaint to be barred by any law. Disputed questions cannot be decided at the time of considering an application filed under Order 7 Rule 11 CPC. Clause (d) of Rule 11 of Order 7 applies in those cases only where the statement made by the plaintiff in the plaint, without any doubt or dispute shows that the suit is barred by any law in force.‖

(sic); should be Order 7 Rule 11.

On the basis of the facts before the Supreme Court in the said

case, it observed that it was not a case where the suit, from the

statement in the plaint, could be said to be barred by law. The

Supreme Court observed that ―the statement in the plaint

without addition or subtraction must show that it is barred by

any law to attract application of Order 7 Rule 11".

17. In the light of the above discussion, it is clear that before the

bar under Order 2 Rule 2, CPC can be set up, the defendant has to

produce the pleadings in the previous suit by way of evidence and

the court is required to go into the pleadings of the previous suit

and compare it with the pleadings in the present suit to arrive at a

conclusion as to the identity of the causes of action. However,

under Order 7 Rule 11, CPC, the court is enjoined only to look at

the averments made in the plaint of the present suit and not travel

to the written statement or other documents filed by the defendant.

The plaint by itself must disclose that the suit is barred by law.

The Constitution Bench in the case of Gurbux Singh (supra) has

settled the issue that the inference as to the identity of the causes

of action between the present suit and the earlier suit cannot be

culled out from the plaint in the subsequent suit. It is, therefore,

abundantly clear that in an application under Order 7 Rule 11,

CPC, the plaint cannot be rejected on the bar of Order 2 Rule 2,

CPC. The bar of Order 2 Rule 2, CPC can be raised by the

defendants in the written statement and, if so raised, an issue can

be framed in respect thereof. The court would then be in a

position to conclusively determine the identity of the causes of

action between the earlier suit and the later suit and rule on the

basis of evidence led by the parties. But, such a course of action

is not permissible under Order 7 Rule 11, CPC. As a result, this

application is rejected.

18. It is made clear that I have not expressed any opinion on the

merits with regard to the plea of the bar of Order 2 Rule 2, CPC.

It shall be open to the parties to agitate this issue in the suit. No

costs.

( BADAR DURREZ AHMED ) JUDGE July 02, 2008 dutt