Sat Bhan Singh & Anr vs Mahipat Singh & Ors
2012 Latest Caselaw 5152 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment reserved on: 28.08.2012
                                        Judgment pronounced on: 31.08.2012

+      CS(OS) 1385/2011


       SAT BHAN SINGH & ANR                                        ..... Plaintiffs
                    Through:            Mr. Kirti Uppal, Sr. Advocate with
                                        Mr. Atul Bandhu, Advocate

                    versus



       MAHIPAT SINGH & ORS                                           ..... Defendants
                    Through:            Mr. I. S. Saroha, Mr. Rakesh Ahlawat
                                        and Mr. Vinod Kumar, Advocates for
                                        D-1 & 2
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

V.K. JAIN, J.

IA No. 19580/2011 (O. 7 R. 11 r/w O. 2 R. 2 CPC)

1. This is a suit for partition, declaration and permanent injunction. The case of

the plaintiffs is that they along with the defendants are the co-owners of the suit

land, which is situated in revenue estate of village Bindapur in Delhi. The

plaintiffs claim to be in joint physical possession of the suit property. This is also

their case that their request to the defendants to either partition the suit property by

metes and bounds or to sell the same and divide the sale proceeds has not been

acceded to. The plaintiffs have accordingly sought partition, claiming half share in

the suit land. They have also sought an injunction, restraining the defendants from

committing waste or changing the character of the aforesaid land as also from

selling, alienating or otherwise transferring the same.

2. IA No.19580/2011 has been filed by defendant No. 1 under Order 7 Rule 11

of the Code of Civil Procedure, seeking rejection of the plaint on two grounds. The

first ground taken in the application is that the plaintiffs had filed Suit No. 09/1999,

claiming injunction, but, did not claim the relief of partition in that suit and,

therefore, the present suit for partition of the very same property, which was the

subject matter of Suit No. 09/1999, is not maintainable being barred by Order 2

Rule 2 of the Code of Civil Procedure. The second plea taken in the application is

that the suit is barred by limitation.

3. As regards the first contention, admittedly, the earlier suit filed by the

plaintiffs was for grant of injunction. The following two reliefs were claimed in

the previous suit:-

"(a) the defendants, their agents, associates, employees, representative, attronies, and persons claiming through them may kindly be restrained by way of Prohibitory injunction in perpetual form from selling, transferring, mortgating or creating third party interest in any manner in respect of the agriculture land bearing Khasra Nos. 116(4-12), 201(1-15), 540(3-11), 541 (6-10), 542 (0-40), 543 (4-12), 544(2-09), 593(2-07), 594 (6-12), 679 (2-01)

situated in the revenue estate of Village Bindapur, Tehsil Mehrauli, New Delhi and a decree to that effect;

(b) the defendants, their agents, associates, employees, representatives, attronies and persons claiming through them may kindly be restrained by way of Prohibitory injunction in perpetual form from digging, raising any construction, super-structure and using the land for non- agriculture use and damaging the holding of agriculture land mentioned in prayer para (a) above and a decree to that effect;"

4. It was alleged in para 11 of the plaint of that suit that defendant No. 6 in that

suit, without formal partition and division of share, had started construction on

29.12.1988 at a large scale and had collected building material to raise R.C.C.

structure upon the land. It was further alleged that the other defendants had also

joined hands with defendant No.6. It was also alleged in para 10 of the plaint that

defendants had confessed on 29.12.1998 to sell the entire land by creating third

party interest and to handover the possession to the prospective buyers.

5. Order 2 Rule 2 of the Code of Civil Procedure, to the extent it is relevant,

provides that every suit shall include the whole of the claim, which the plaintiff is

entitled to make in respect of the cause of action and where he omits to sue in

respect of any portion of his claim, he shall not afterwards sue in respect of the

portion so omitted. It further provides that a person entitled to more than one

reliefs 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.

6. Order 2 Rule 2 of the Code of Civil Procedure came to be considered by me

in M/s Fiitjee Ltd. & Anr. v. Dr. Kanwal Sujit, RFA No. 669/ 2003 decided on

09.07.2007 and the following view was taken:-

"Order II Rule 2 of the Code of Civil Procedure is based on the principal that the defendant should not be twice waxed for one and same cause of action. This Rule does not preclude second suit based on a distinct and separate cause of action, therefore, before this Rule can be invoked, two conditions need to be satisfied firstly that the previous suit as well as subsequent suit should arise out of the same cause of action and secondly that they must be between the same parties. The requirement of law thus is that the whole of the claim in respect of one cause of action should be included in one suit. Splitting of the claims based on the same cause of action is prohibited.

7. As held by the Supreme Court in Swamy Atmananda v. Swami Bodhananda & Ors., 2005 (3) SCC 734, a cause of action comprises every fact which traversed it would be necessary for the plaintiff to prove in order to support his right to a judgment of the Court. In other words it is a bundle of facts which taken that the law applicable to those facts gives a right to the plaintiff to claim a relief against the defendant.

In Mohammad Khalil Khan and Others, AIR (1949) Privy Council 78, the following principles were laid down to ascertain whether the subsequent suit was barred by Order 2 Rule 2 of the Code of Civil Procedure or not.

(1) The correct test in cases falling under O. 2 R. 2, is "whether the claim in the new suit is in fact founded

upon a cause of action distinct from that which was the foundation for the former suit,"

(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.

(3) If the evidence to support the two claims is different, then the causes of action are also different. (4) The causes of action in the two suits may be considered to be the same if in substance they are identical.

(5) The cause of action has no relation whatever to the defence that may be set up by the defendant nor does it depend upon 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."

In Sidramappa v. Rajashetty and Ors., AIR 1970 Supreme Court 1059, the

Apex Court was of the view that if the cause of action mentioned in the earlier suit

afforded a basis for a valid claim but did not enable the plaintiff to ask for any

relief other than those he prayed for in that suit, the subsequent suit would not be

barred under Order 2 Rule 2 of the Code of Civil Procedure.

7. It would thus be seen that Rule 2 of Order 2 of the Code of Civil Procedure

bars a subsequent suit only if it is in respect of the very same cause of action which

was the subject matter of the previous suit. If the causes of action in the two suits

are separate and distinct, the aforesaid provision does not apply to the subsequent

suit. The cause of action for filing the previous suit was the threat alleged to have

been extended by the defendants in that suit to create third party interest in the suit

land, to raise construction thereon and to handover its possession to a third party.

The cause of action for filing the present suit, however, is the failure of the

defendants to partition the suit land by metes and bounds, despite repeated requests

from the plaintiffs. Therefore, it cannot be said that the present suit is based on the

same cause of action on which the previously instituted suit was based.

8. In Nanak Chand and Ors. v. Chander Kishore and Ors. AIR1982 Delhi

520, the plaintiffs in the suit served a notice for partition and thereafter filed a suit,

restraining the defendants from transferring joint family properties. The suit for

injunction was dismissed. When he filed the suit for partition, an objection was

taken that the suit was barred by Order 2 Rule 2 of the Code of Civil Procedure.

The contention of the defendants in that suit was rejected holding that since the

nature of the earlier suit and the subsequent suit being different, there could be no

question of such a bar under Order 2 Rule 2 of CPC. This judgment would squarely

apply to the case before this Court.

9. As regards the second contention, as far as Article 110 of Limitation Act is

concerned, that would not apply to the present case because the plaintiffs claim to

be in joint possession of the suit land and this is not their case that they have been

excluded from the joint property. The suit would, therefore, be governed by

Article 113 of Limitation Act, which prescribes a limitation period of three years

from the date when the right to sue accrues.

10. The question when the right to sue accrues came up for consideration before

the Judicial Committee in Mt. Bolo v. Mt. Koklan, AIR 1930 PC 270, wherein the

Judicial Committee, inter alia, observed as under:-

"There can be no „right to sue‟ until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted."

The above-referred principle was approved by Supreme Court in Mst.

Rukhmabai v. Lala Laxminarayan and Ors. AIR 1960 SC 335, where the Court

enunciated the legal position in this regard as under:-

"The legal position may be briefly status thus: The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however, ineffective and innocuous it may be, cannot be considered to be clear and unequivocal threat to as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right."

In Krishna Pillai Rajasekharan Nair v. Padmanabha Pillai AIR 2004 SC

1206, the Apex Court observed that for a suit for partition, the starting point of

limitation is--when the right to sue accrues, that is, when the plaintiff has notice of

his entitlement to partition being denied. This issue also came up for consideration

before the Division Bench in the case of Nanak Chand (supra). In that case, the

plaintiff had served a notice for partition upon the defendants on 17.05.1963.

Computed from that date, the period of limitation expired on 17.05.1969. The suit,

however, was filed on 23.07.1969. Relying upon the aforesaid decisions of the

Privy Counsel and Supreme Court, the Division Bench held that the right of

partition sprang into existence when the notice of severance and demand for

partition was served, but, the right to sue did not accrue until the defendant

infringed or threatened to infringe that right.

11. In the case before this Court, the plaintiffs in para 15 of the plaint, on which

reliance was placed by the learned counsel for the applicant, stated as under:-

"That the cause of action for filing the suit arose in 18.08.86 when the father of the plaintiffs requested to Defendants to divide the properties & a family settlement was also arrived but the same was not acted upon. The plaintiffs again requested the defendants orally subsequently on various occasions but of no consequence. The cause of action for filing the suit further arose when the compensation for land acquisition was taken by defendants. The cause of action for filing the suit further arose when the defendants also took the alternative plot in violation of the family settlement. The cause of action for filing the suit further arose on 30.12.1998 when the Plaintiffs filed the suit for injunction before the civil court; the cause of action for filing the suit further arose on various dates when the suit for injunction before the civil court was heard on various dates we.f. 31.12.98 to 18.05.11. The cause of action for

filing the suit further arose on various dates when the Plaintiffs had to institute the proceedings of contempt against the Defendants. The cause of action for filing the suit further arose when during the pendency of the suit in the court below the Plaintiffs requested to partition the properties but the same was not acceded to. This is continuous cause of action which arises from day to day and continues to arise till final decree is made."

12. It would thus be seen that nowhere have the plaintiffs stated that the

defendants had unequivocally refused to partition the suit land by metes and

bounds. The right to sue in terms of Article 113 of Limitation Act did not accrue to

the plaintiffs merely on account of the defendants not responding to their request to

partition the suit property. Such a right in terms of Article 103 of Limitation Act

would have accrued only upon the defendants expressly denying partition by metes

and bounds or doing such other act as would amount to a clear and unequivocal

threat to infringe the right which the plaintiffs claim in the suit land. As observed

by the Division Bench in the case of Nanak Chand (supra), where there are

successive invasions or denials of a right, the right to sue accrues only when there

is a clear and unequivocal threat to infringe the right asserted by the plaintiff.

It is settled proposition of law, while considering an application for rejection

of the plaint, the Court can take into consideration only the averments made in the

plaint and the documents filed by the plaintiff. Neither the defence taken in the

written statement nor the documents filed by the defendants can be considered at

this stage. In my view, it cannot be said with certainty, merely from the averments

made in the plaint that the right to sue to the plaintiff in terms of Article 113 of

Limitation Act had accrued more than three years before the suit was filed.

Therefore, it cannot be said that from the averments made in the plaint, the suit is

patently barred by limitation.

13. I take note of the fact that in para 10 of the previously instituted suit, the

plaintiffs had, inter alia, alleged that the defendants in that suit had confessed to

sell the entire land by creating third party interest and to handover possession to the

prospective buyers. But, at this stage, without recording of evidence, it is difficult

to say, with a fair amount of certainty, as to whether such act attributed to the

defendant, amounted to a clear and unequivocal threat, so as to giving rise to a

compulsory cause of action and compel the plaintiffs to file a suit for partition and

whether such threat effectively invaded or jeopardized the right, which the

plaintiffs claim in the suit land, or not. A final view as to what was the extent of

the alleged threat when it was made and what was its gravity and consequence, can

be taken only at the time of final disposal of the suit. It would not be appropriate to

reject the plaint on the ground of limitation, but, the issue of limitation needs to be

kept alive, to be decided at an appropriate stage.

14. For the reasons stated hereinabove, the application is hereby dismissed. The

observations made in this order, however, would not affect the final decision of the

suit and it would be open to the defendants, to agitate the plea of limitation, at the

time of final disposal of the suit.

The application stands disposed of.

V.K.JAIN, J

AUGUST 31, 2012 BG