Kerala High Court
Sidhique vs Cleamiss on 3 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY, THE 3rd DAY OF JUNE 2021 / 13TH JYAISHTA, 1943
RFA NO. 556 OF 2005
AGAINST THE JUDGMENT AND DECREE DATED 18.03.2005 IN O.S
NO.128/1998 OF I ADDITIONAL SUB COURT, THRISSUR.
APPELLANT/DEFENDANT:
SIDHIQUE,
S/O PANIKKAVEETIL SYED MUHAMMED,
THOOVANNOOR DESOM, CHUNDAL VILLAGE,
TALAPPILLY TALUK, REP. BY HIS POWER OF
ATTORNEY HOLDER SYED MUHAMMED,
S/O.KAJAH HUSSAIN, THOOVANNOOR DESOM, KECHERY,
CHOONDAL VILLAGE, TALAPPILLY TALUK.
BY ADV SRI.SREEKUMAR G.(CHELUR)
RESPONDENT/PLAINTIFF:
CLEAMISS,
S/O MANDUMBAL MATHEW, ALOOR VILLAGE DESOM,
THALAPPILLY TALUK.
BY ADV SRI.AVM.SALAHUDDEEN
THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD
ON 27.11.2019, THE COURT ON 03.06.2021 DELIVERED THE
FOLLOWING:
R.F.A. No. 556 of 2005
-:2:-
"C.R."
MARY JOSEPH, J.
------------------------
R.F.A. No. 556 of 2005
------------------------
Dated this the 3rd day of June, 2021
JUDGMENT
The judgment and decree passed by I Additional Sub Court,
Thrissur (for brevity, 'the court below') on 18.03.2005 in O.S
No.128 of 1998 is assailed in the appeal on hand by the
defendant in the said suit. For the sake of clarity, the parties to
this appeal are referred to hereinafter as the defendant and the
plaintiff in accordance with their status in the suit.
2. The suit above was filed by the plaintiff seeking
realisation of money. He had raised a case that he was a
Building Contractor, that he was engaged by the defendant to
construct a house and allied structures as per the building plan
and agreement executed by them on 07.06.1995 incorporating
the terms settled among them after negotiations about the
manner of constructions and it's costs, that Rs.5,000/- was given
as advance towards the costs, that the construction work was to
commence from the already constructed basement, that
R.F.A. No. 556 of 2005
Rs.75,000/- each was agreed to be paid towards costs of
construction works of the foundation as well as the terrace of the
Kayyalapura, that the time fixed for completion of the work was
till 30.01.1996, that the construction work commenced as per
the agreed schedule could not be continued for failure of the
defendant to supply the required materials as agreed, that the
defendant being abroad at the relevant time, letter was sent to
intimate him about the situation, that the work was assigned by
the defendant to another party without settling the accounts with
the plaintiff, and that as per the agreement executed, the
defendant is liable to pay a sum of Rs.1,45,000/- (Rs.75,000x2)-
5000) for the work already completed by the plaintiff and a sum
of Rs.1,05,000/- as compensation towards the loss sustained by
him. Raising claims as above, the Original Suit was filed for
realisation of Rs.2.5 lakhs with interest at the rate of 12% per
annum.
3. The defendant in his written statement has taken a
categoric stand of denial of execution of the agreement and
entrustment of the construction work of the house and
Kayyalapura. The signature in the agreement allegedly executed
by the plaintiff with him was disowned by him. The construction
R.F.A. No. 556 of 2005
work was admitted as done under the supervision of his father
and younger brother. According to him it was orally agreed that
the plaintiff would supply the workers for the construction and
supervise the work, that wages would be paid to the workers by
his father directly, that Rs.5,000/- was paid to the plaintiff for
the work, that the materials for the construction work were
supplied by the father of the defendant, that suit filed by the
plaintiff as O.S No.1041/1995 was already dismissed by the
Munsiff's Court, that in the absence of an agreement executed
among them, question of breach of any terms will not arise and
that the suit for realisation of money is only to be dismissed.
4. Based on the above rival contentions, specific issues
had been framed by the trial court as follows:
"1. Whether the plaintiff has executed the
construction work as per agreement dated
07.06.1995?
2. Whether the defendant is liable to pay the
cost of the work by plaintiff?
3. Whether the plaintiff is entitled to realise any
compensation as claimed?
4. Reliefs and costs?"
5. To facilitate the process of adjudication of the issues,
both parties adduced oral as well as documentary evidence. The
R.F.A. No. 556 of 2005
plaintiff's evidence consists of the oral evidence tendered by
himself and his witnesses as PWs 1 to 4 and documentary
evidence of Ext.A1 to A7(c). The defendant's evidence is
confined to the solitary oral evidence of his father and Power of
Attorney holder as DW1 and documentary evidence of Ext.B1.
Ext.X1 was also marked as court Exhibit.
6. The trial court found the issues except issue No.3 in
favour of the plaintiff and accordingly decreed the suit as follows:
"21. Issue No.4:- In the result the suit is partly
decreed with cost and partly dismissed without cost.
Plaintiff is entitled to realise Rs.1,45,000/- with 12%
interest from the date of the suit till the realisation of
the amount and cost from the defendant and his assets.
The amount is made a charge over the plaint schedule
property. Plaintiff is not entitled for compensation and
the prayer for compensation is dismissed without cost.
22. The plaint was filed in forma pauperis and plaintiff
was permitted to sue as indigent person without paying
court fee of Rs.17,050/-. The amount of court fee shall
be recovered from the decree amount and same shall be
the first charge over decreetal amount as per Order
XXXIII Rule 10 of C.P.C. So the copy of the judgment
shall be forwarded to the District Collector, Thrissur to
take steps for realisation of the court fee."
R.F.A. No. 556 of 2005
7. Sri.Sreekumar G Chelur and Sri. Salahuddeen, the
respective counsel argued vehemently on behalf of the defendant
and the plaintiff.
8. According to Sri.Sreekumar G Chelur, the trial court
has compared the disputed signature of the defendant in Ext.A1
with the admitted ones in Ext.A7(b) and (c) and got convinced
that Ext.A1 was signed by the defendant himself. According to
him when the execution of Ext.A1 and even affixture of signature
stand denied by the defendant categorically, the trial court ought
not to have adopted a procedure of comparison of signatures
(admitted ones with the disputed ones) of the defendant and
reached a conclusion on it's sole basis that Ext.A1 was signed
and executed by the defendant himself.
9. According to him, when execution of Ext.A1 itself
stands denied, court below ought not to have compared the
disputed signature of the defendant with the admitted ones of
him and drawn an inference that the signature is his own and
that the defendant is defeated in his contention, since it is the
burden of the plaintiff to establish that.
10. The learned counsel urged that execution of Ext.A1
could only be established by examining the scribe or witnesses
R.F.A. No. 556 of 2005
who had put their signatures thereto in attestation. According to
him, the defendant did not venture to examine the witnesses
who had allegedly attested Ext.A1. According to him, the
agreement was claimed by the plaintiff as one in written form,
but the one produced and marked in evidence as Ext.A1 is a
typewritten one. According to him, the plaintiff to have support
of his stand on execution of Ext.A1, had examined one Mr.
Sirajudheen as PW2, who admittedly has not signed Ext.A1 but,
was alleged as personally present at the time when terms of the
construction work were settled after negotiations and subscribed
to by the parties. According to him, though PW2 has spoken as
available at the time when signatures were affixed by the parties
in Ext.A1, for the reason of not being an attestor to it, the trial
court has discredited his version. According to the learned
counsel, in the above contextual scenario, cogent evidence was
lacking for the trial court to take a view in the affirmative that
Ext.A1 was executed by the plaintiff and defendant on
07.06.1995 and the terms it contain have been subscribed by
them.
11. According to the learned counsel in a context where
the signature in Ext.A1 stands disowned by the defendant, the
R.F.A. No. 556 of 2005
plaintiff ought to have discharged his burden by applying for
getting an opinion of the expert on handwriting under Section 45
of the Indian Evidence Act, 1872. According to him, the plaintiff
failed to take the risk, but the trial court by taking the role of an
expert under Section 74 of the Indian Evidence Act and by a
comparison on it's own identified the signature disowned by the
defendant as his own.
12. According to him, when the defendant has taken a
specific stand that he was not available at his hometown to sign
Ext.A1 on the alleged date of execution, it is for the plaintiff who
asserts that the defendant himself had signed it on the day, to
establish that the defendant was available personally at the place
then to sign it. The availability of the defendant at the place and
signing of Ext.A1 could easily be established by the plaintiff by
examining any of the attestors of Ext.A1. According to the
learned counsel, the plaintiff failed to do so but the trial court
proceeds to observe in the impugned judgment that the
defendant being the possessor of his passport and the same
having not been produced, adverse inference under Section
114 of the Indian Evidence Act, 1872 could be drawn against him
R.F.A. No. 556 of 2005
that, if produced, it would state against his stand that he was
abroad at the relevant time when Ext.A1 was executed.
13. Lastly, it was urged by the learned counsel that an
earlier suit filed by the plaintiff as O.S No.1041/1995 for the
same cause of action as in the suit on hand was dismissed as not
pressed by Munsiff's Court, Thrissur, in view of the statutory bar
under Order II Rule 2 of the Code of Civil Procedure (for short,
the CPC), O.S No.128/1998 ought to have been dismissed by the
trial court as not maintainable. Sri.Sreekumar G Chelur has also
relied on Mathew V. Elikkutty [2019 (2) KLT SN.11
(C.No.14)], Alchemist Ltd and Another Vs. State Bank of
Sikkim and Others [(2007) 11 SCC 335], Suresh Babu
(Dr.) v. Dr. T.K. Chandrasekharan and Others [2009(4)
KHC 638], Muhammed Master V. Abu Haji [1981 KLT 578],
Yakubhai Ahmedji Mistri V. Imamuddin Husenuddin Kadri
(AIR 1991 Gujarat 180) and Modi Korea
Telecommunications Ltd v. Indus Ind. Bank Ltd and
Others [AIR 2001 Del.254] to fortify his contentions.
14. Sri. Salahuddeen in his venture to justify the
impugned judgment and the unsustainability of the argument on
Order II Rule 2, for raising it for the first time in the appeal on
R.F.A. No. 556 of 2005
hand, relied on Antony K.O and Another V. M.K.
Krishnankutty Menoki and Others [2017 (1) KHC 479],
Sardar Satpal Singh V. Saroj Shukla and Others [2015
KHC 3993] Parul Das and Others v. Amiya Prava Das and
Another [2019 KHC 2078] and Kartar Singh and Others v.
Shiv Rattandev Singh and Others [1996 KHC 2190].
15. Execution of Ext.A1 stands stoutly denied by the
defendant. The signature found in Ext.A1 also stands
disowned. In that context, it is the burden of the plaintiff to
establish that Ext.A1 was executed by the defendant himself. It
is pertinent to note that the written statement filed by the
defendant does not contain a pleading that he was abroad at the
time of execution of Ext.A1, but, the Power of Attorney Holder of
the defendant while being examined as DW1 has taken such a
stand. The defendant did not turn up to testify his contentions in
the written statement. His Power of Attorney Holder has spoken
for him but has gone to the extend of taking a stand which the
defendant himself does not have.
16. The evidence adduced by DW1 is irrelevant and
inadmissible for the twin reasons stated above. Therefore, the
trial court ought not to have relied on the said version of DW1.
R.F.A. No. 556 of 2005
But, it has gone to the extent of drawing adverse inference
against the defendant with regard to his availability at the place
on 07.06.1995 and execution of Ext.A1. The trial court
undoubtedly is erred in doing so.
17. In a context, where execution of an agreement is
denied and signature therein is disowned, burden undoubtedly is
on the plaintiff to establish on the contrary. A glance at the oral
evidence tendered by plaintiff as PW1 would convince that he
had spoken strictly without deviating from his averments in the
plaint.
18. True that plaintiff opted to examine Sri.Sirajudeen as
PW2 who according to him was not an attestor of Ext.A1 but
allegedly present at the spot at the relevant time, as a
spectator. The trial court found him incredible and discarded his
evidence. To the conscience of this Court also his failure to
attest Ext.A1, despite his availability at the spot of execution of
Ext.A1 creates suspicion especially when the factum remains that
Ext.A1 has only a single attestor. .
19. The trial court had invoked it's jurisdiction under
Section 73 of the Indian Evidence Act and noticed similar
R.F.A. No. 556 of 2005
features for the disowned signature with that of the admitted
ones available on record and on the basis of the oral evidence of
PW1 and the comparison made on it's own, came to a conclusion
that Ext.A1 was executed by the defendant and therefore its
terms are binding on him.
20. In the backdrop, this court proceeds to find out the
extent of jurisdiction, a court has under Section 73 of the
Evidence Act and whether it could be invoked in the context of
the case to conclude that the disowned signature in view of it's
similar features with the admitted ones is put by the defendant
himself and to grant the reliefs sought for by the plaintiff.
Section 73 is extracted hereunder for reference:
"73. Comparison of signature, writing or seal
with others admitted or proved.- In order to
ascertain whether a signature, writing or seal is that
of the person by whom it purports to have been
written or made, any signature, writing or seal
admitted or proved to the satisfaction of that Court
to have been written or made by that person may be
compared with the one which is to be proved,
although that signature, writing or seal has not been
produced or proved for any other purpose.
The Court may direct any person present in
Court to write any words or figures for the purpose
of enabling the Court to compare the words or
figures so written with any words or figures alleged
to have been written by such person.
R.F.A. No. 556 of 2005
This section applies also, with any necessary
modifications, to finger impressions"
21. Therefore, there cannot be any doubt on the power of
the court to compare the signature of one person stands disputed
by another. Evidence Act by the provision extracted supra
permits the court to apply it's own judgment and perception, by
a mutual comparison and application of mind to arrive at an
opinion on the affixture of the disowned signature with those
admittedly affixed by the said party and made available to it.
22. Section 45 of the Evidence Act is called for in the
context to distinguish.
"45. Opinions of experts.- When the Court has
to form an opinion upon a point of foreign law, or of
science or art; or as to identity of handwriting or finger
impressions, the opinions upon that point of persons
specially skilled in such foreign law, science or art, or in
questions as to identity of handwriting or finger-
impressions are relevant facts. Such persons are called
experts."
23. The purpose and scope of the aforequoted provision is
that when a court is called upon to decide a matter involving
specialised knowledge, the party claiming a relief on it's basis
R.F.A. No. 556 of 2005
need to call for opinion of an expert or experts in support of his
case.
24. The opinion of a witness possessing peculiar skill is
admissible, whenever the subject matter of enquiry is such that
inexperienced persons are unlikely to prove and capable of
forming a correct judgment upon it without such assistance.
25. The Apex Court has held in Murari Lal Vs. State of
Madhya Pradesh (1980 (1) SCC 704) =( AIR 1980 SC
531):
" 12. The argument that the court should not
venture to compare writings itself, as it would thereby
assume to itself the role of an expert is entirely without
force. Section 73 of the Evidence Act expressly
enables the court to compare disputed writings with
admitted or proved writings to ascertain whether a
writing is that of the person by whom it purports to
have been written. If it is hazardous to do so, as
sometimes said, we are afraid it is one of the hazards
to which judge and litigant must expose themselves
whenever it becomes necessary. There may be cases
where both sides call experts and two voices of science
are heard. There may be cases where neither side
calls an expert, being ill able to afford him. In all such
cases, it becomes the plain duty of the Court to
R.F.A. No. 556 of 2005
compare the writings and come to its own conclusion.
The duty cannot be avoided by recourse to the
statement that the court is not expert. Where there
are expert opinions, they will aid the court. Where
there is none, the court will have to seek guidance
from some authoritative textbook and the court's own
experience and knowledge. But discharge it must, its
plain duty, with or without expert, with or without
other evidence."
26. In the case on hand there has been specific denial of
execution of Ext.A1. The signature found in Ext.A1 was also
disowned. The suit was for realisation of costs of construction
work performed by the plaintiff on the strength of Ext.A1.
27. When the execution of Ext.A1 stands denied by the
defendant, it is incumbent upon the plaintiff to adduce cogent
and reliable evidence to establish execution of the same. As
already observed, the plaintiff proceeds to rely on his own
interested version as PW1 to establish execution. In that
context, the trial court proceeded to have a comparison of the
disowned signature in Ext.A1 with the admitted ones in Ext.A7(b)
and A7 (c). The trial court found some common features in the
admitted and disputed signatures and formed an opinion on its
basis that the disowned signature in Ext.A1 was also put by the
R.F.A. No. 556 of 2005
defendant. Accordingly, the trial court found that construction
work of the foundation of the house and kayyalapura were
completed by the plaintiff in accordance with the terms stipulated
in Ext.A1 and therefore, he is entitled to get a decree in his
favour.
28. There cannot be any dispute on the jurisdiction of the
court to compare the signature of the party who denied to have
affixed it with his admitted signature. But, the court is not
justified to grant a decree in favour of the plaintiff on the basis of
an opinion on authorship formed by it after comparison of the
disowned signature of the defendant with those owned by him,
especially when the plaintiff stands failed in discharging his
burden to establish the authorship of signature and execution of
Ext.A1.
29. It is found from the impugned judgment that the trial
court has relied on the report prepared by Sri.K.S.Venugopal, the
Advocate Commissioner in O.S.No.1041/95 filed by the plaintiff
before the Munsiff's Court, Thrissur seeking permanent
Prohibitory injunction, which was marked in evidence as Ext.A4
by examining the Advocate Commissioner as PW4.
R.F.A. No. 556 of 2005
30. The Advocate Commissioner was directed to report on
the completion of construction work of basement of the house
and the 'Kayyalapura' in the plaint schedule property and the
Commissioner has reported that in the affirmative. Absolutely no
dispute is forthcoming from the defendant with regard to the
work completed.
31. The Advocate commissioner when examined as PW4
has stated to have conducted inspection of the plaint schedule
property on 04.10.1995 as per the direction in the order of the
Munsiff's Court, Thrissur in I.A.No.4108/95 in O.S.No.1041/1995.
But, he failed to state the age of the construction work as on
date of his inspection of the site.
32. It is pertinent to note at this juncture that Ext.A4, the
Commission report and the oral evidence tendered by the
Advocate commissioner as PW4 are of no help to the plaintiff to
establish that the construction works reported by him were
carried out by the plaintiff. Since execution of Ext.A1 stands
disproved, there is absolutely no evidence on record to establish
that the construction work allegedly carried out by the plaintiff
was entrusted to him by the terms and conditions in Ext.A1 on
R.F.A. No. 556 of 2005
the manner, cost and the time limit for completion of the work.
Though PW2 and PW3 were also examined by the plaintiff, they
did not lend any support to the stand of PW1 on the construction
work already carried out by him.
33. An argument was also advanced by Sri.Sreekumar, the
learned counsel for the appellant that Ext.A4 and the oral
evidence of PW4, being evidence stands adduced by the plaintiff
to establish his claim in O.S.No.1041/1995 seeking permanent
prohibitory injunction and in the event of the suit stands
dismissed as not pressed, are totally irrelevant and inadmissible
in evidence in the case on hand. According to him the cause of
action in O.S.No.1041/1995 and the present suit being one and
the same the plaintiff in the suit on hand ought to have raised his
claim for the relief now sought in the present suit, in
O.S.No.1041/1995 itself and having been failed to do so, the suit
on hand is hit by the bar under Order II Rule 2 CPC. It is
contended by the learned counsel that Ext.A4 being the report
of the Commission taken in O.S.No.1041/1995 and not pressed
by the plaintiff, he ought not to have produced it in the present
suit and sought for reliance.
R.F.A. No. 556 of 2005
34. Order II Rule 2 CPC is apposite reference hereunder:
"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 relief
so omitted.
Explanation: For the purposes of this rule an obligation
and a collateral security for its performance and
successive claims arising under the same obligation shall
be deemed respectively to constitute but one cause of
action."
R.F.A. No. 556 of 2005
35. The indication of Rule 2 of Order II was that if a
plaintiff is entitled to several reliefs against the defendant based
on a single cause of action, he cannot split up his claims so as to
omit one part of the claim and to sue for the other. Order II Rule
2 is based on the Cardinal Principle that the defendant should not
be vexed twice for the same cause. The provision makes it
mandatory that the entire claims of the plaintiff based on a
solitary cause of action must be raised in a single suit so as to
avoid hardships that would probably occur on multiple
proceedings being raised against a person based on a single
cause of action.
36. In Yakubhai supra relied on by the learned counsel,
in an earlier eviction suit, the tenant had invoked the powers of
rent court under Section 11 of the Bombay Act of 1947 for
determination of standard rent by raising a claim for that in the
written statement filed but later on did not press the said issue of
standard rent. Subsequently when the tenant taken out
proceedings for determination of standard rent by filing an
application, the High Court of Gujarat held that it by itself will not
directly create a bar to the subsequent proceedings initiated
R.F.A. No. 556 of 2005
through the application filed for the purpose, but will be barred
by principle of constructive res judicata and/or principles
analogous to res judicata and also on account of principles of
estoppel operating against the tenant. The court found that
since a decision was not made on merits on the question of
standard rent, which was the subject matter of controversy
between the parties, Section 11 of CPC will not come into
operation. The court's reasoning is well expressed in para 3.1 of
the judgment and therefore, is extracted hereunder to have an
idea on how the bar under Rule 2 Order II CPC operates.
"3.1. Section 11 of the Rent Act confers a statutory right
on the tenant to have the standard rent determined by
the Rent Court in either of the two ways specified in the
said section. One manner of moving the Court is to file a
substantive application directly requiring the Court to
determine the question of standard rent. The other
mode of obtaining such determination is to take up a
contention in the written statement filed by the tenant in
a suit filed by the landlord. The conferment of this right
to move for determination of standard rent is to be seen
and construed in the light of the definition of "Standard
Rent" as laid down in S.5(10) of the said Act. It is
obvious that the two modes of obtaining adjudication on
this question are in the alternative and mutually
R.F.A. No. 556 of 2005
exclusive. Where one mode of obtaining adjudication has
been exercised, the other mode is ruled out. Once the
choice is made and exercised, it may be pursued to its
logical conclusion and a decision obtained or as in the
present case it may be abandoned midway. However,
once the choice is made as regards one specific mode,
the alternative mode is ipso facto ruled out and the door
is then shut for ever. To conceive otherwise would
amount to rendering nugatory the principles analogous
to the principles of res judicata. In the instant case by
not pressing the issue for determination of standard
rent, the tenant has abandoned his right of obtaining an
adjudication, after having exercised the said right. This,
in effect, amounts to an admission on the part of the
tenant as regards the claim of the landlord made in the
suit, read together with the evidence on record, at least
as regards the question of rent."
37. The court further held:
"xxxxx In the consideration of the latter question it
has been held that where a petition has been withdrawn
unconditionally, a second petition on the same cause of
action is not competent unless liberty is reserved at the
time of withdrawal of the earlier petition. As found by
me hereinabove when the tenant did not press the issue
as regards determination of standard rent, that
contention was withdrawn by him unconditionally. Thus,
he would be estopped from raising the same issue again
R.F.A. No. 556 of 2005
in another proceeding Viz. by way of a substantive
application under S.11 of the Rent Act."
38. In Modi Korea Telecommunications Ltd. supra, a
suit for injunction against invocation of bank guarantee was
dismissed as withdrawn and the second suit was filed again
seeking injunction against invocation of bank guarantee. The
reliefs sought in the second suit being verbatim reproduction of
reliefs already made in the earlier suit, was held by the court as
barred under R1(4) of O.23.
39. In Mathew supra. O.S.No.166/1994 was filed before
Sub Court, Palakkad seeking specific performance of Ext.A3
contract dated 18.09.1993 executed between the plaintiff and
the 1st defendant for herself and on behalf of her children who
are defendants 2 to 4 (minors at the relevant time). Suit was
dismissed by the trial court. Appeal was filed and the specific
contention taken by the respondents/defendants was that
O.S.No.166/1994 is hit by Order II Rule 2 of the Code since in an
earlier suit filed by the plaintiff as O.S.No.37/1994, despite the
availability of the cause of action for O.S.No.166/1994, the
plaintiff intentionally omitted to claim the relief of specific
performance of Ext.A3 contract. On appreciation of the evidence
R.F.A. No. 556 of 2005
the learned Single Bench found on the basis of the pleadings of
plaintiff in the plaint in O.S.No.37/1994 that the 1 st respondent
by her words and deeds expressly clarified that she was unwilling
to perform her obligation under the contract. That was also
narrated in the plaint as one of the reasons for accrual of the
cause of action for the suit. But, the plaintiff sought only a relief
of prohibitory injunction simplicitor and omitted to seek specific
performance. O.S.No.37/1994 was dismissed on 24.08.1994.
Since the plaintiff was aware of the reluctance of the 1 st
defendant to perform her obligations under Ext.A3 at the time of
filing of O.S.No.37/1994, the cause of action for seeking specific
performance of Ext.A3 contract was available to him at the time
of filing of the said suit itself and he ought to have sought for
that relief in the suit itself. Instead, he omitted to do so without
even seeking for leave of the court to sue later under Order XXIII
Rule 1 of the Code. Accordingly, the learned Single Judge found
that the plaintiff had abandoned the relief of specific performance
despite accrual of a cause of action for applying for that in her
favour. O.S.No.164 of 1994 filed later was held in the backdrop
as barred under Order II Rule 2 CPC.
R.F.A. No. 556 of 2005
40. In Muhammed Master supra, a Division Bench of
this Court had dealt with the impact of 'not pressing' in the
following line,
"4. As a result of 'not pressing' certain allegations
and grounds raised in a pleading, a litigant submits that
the issues arising therefrom may be decided against him
and in favour of his opponent; and those issues are
decided accordingly. It is virtually a decision by consent,
in that the party asserting or disputing, concedes that his
assertion or dispute, as the case may be merits no
consideration as he cannot substantiate the same. The
allegations are, however, there, and they are decided.
Therefore, what has been said of consent decisions,
namely- "...... the truth is, a judgment by consent is
intended to put a stop to litigation between the parties
just as much as is a judgment which results from the
decision of the Court after the matter has been fought
out to the end" (Lord Horschell in In re South American
and Mexican Company, Ex parte Bank of England (1895-
1 Ch.37), can, with much more force, be said of a
decision that the allegations in the pleading have not
been substantiated because they are not 'pressed' by the
maker of those allegations. It cannot be said that the
allegations which have been found and held to be not
established, are withdrawn in such circumstances."
41. In Sarguja Transport Service V. STAT [1987 KHC
278], the Apex Court had ventured to distinguish the terms,
R.F.A. No. 556 of 2005
abandonment and withdrawal in the following manner:
"7. The Code as it now stands thus makes a distinction
between 'abandonment' of a suit and 'withdrawal' from a
suit with permission to file a fresh suit. It provides that
where the plaintiff abandons a suit or withdraws from a
suit without the permission, referred to in sub-r. (3) of R.1
of O.23 of the Code, he shall be precluded from instituting
any fresh suit in respect of such subject-matter or such
part of the claim. The principle underlying R.1 of O.23 of
the Code is that when a plaintiff once institutes a suit in a
court and thereby avails of a remedy given to him under
law, he cannot be permitted to institute a fresh suit in
respect of the same subject matter again after
abandoning the earlier suit or by withdrawing it without
the permission of the court to file fresh suit. Invito
beneficium non datur. The law confers upon a man no
rights or benefits which he does not desire. Whoever
waives, abandons or disclaims a right will loose it. In
order to prevent a litigant from abusing the process of the
court by instituting suit again and again on the same
cause of action without any good reason the Code insists
that he should obtain the permission of the court to file a
fresh suit after establishing either of the two grounds
mentioned in sub-r.(3) of R.1 of O.23. The principle
underlying the above rule is founded on public policy, but
it is not the same as the rule of res judicata contained in
S.11 of the Code which provides that no court shall try
any suit or issue in which the matter directly or
substantially in issue has been directly or substantially in
R.F.A. No. 556 of 2005
issue in a former suit between the same parties or
between parties under whom they or any of them claim,
litigating under the same title, in a court competent to try
such subsequent suit or the suit in which such issue has
been subsequently raised, and has been heard and finally
decided by such court. The rule of res judicata applies to
a case where the suit or an issue has already been heard
and finally decided by a court. In the case of
abandonment or withdrawal of a suit without the
permission of the court to file a fresh suit, there is no
prior adjudication of a suit or an issue is involved, yet the
Code provides, as stated earlier, that a second suit will not
lie in Sub-r (4) of R.1 of O.23 of the Code when the first
suit is withdrawn without the permission referred to in
sub-r.(3) in order to prevent the abuse of the process of
the court." (Emphasis Supplied)
42. In the light of the decisions cited above, this Court
ventured to see whether at the relevant time when
O.S.No.1041/95 was filed before the Munsiff's Court, Thrissur the
cause of action for raising a claim for realisation of money, being
the costs of construction and damages was available to the
plaintiff.
43. The cause of action for O.S.No.1041 of 1995 is
extracted from paragraph 9 of the certified copy of the plaint
marked in the suit on hand as Ext.A5.
R.F.A. No. 556 of 2005
"9.വവ്യവഹഹാര കഹാരണണം പ്രതതികൾ കരഹാർപ്രകഹാരണം സണംഖവ്യ
നൽകഹാതതയണം സഹാധന സഹാമഗതികൾ നൽകഹാതതയണം വവീഴ
വരുതതിയതതിതന തുടർനന്ന് അനവ്യഹായകഹാരൻ 1-)0 പ്രതതികന്ന് രജതിസ്റ്റർ
കതയച്ച 1- 9 -95 തതിയ്യതതി തവചണം അതതിനുശശേഷവണം തുടർച്ചയഹായണം
ബഹ: ശകഹാടതതിയതട അധതികഹാരപരതിധതിയതിൽ തപട്ട അയ്യശനഹാൾ
വതിശല്ലേജതിൽ തവച്ചന്ന് ഉൽഭവതിച."
44. Clauses (4) and (5) of Ext.A1 relied on by the plaintiff
being relevant in the context are extracted hereunder for clarity.
"4. വവീടതിതന്റെ തറ പണതി തവീർനഹാലുടൻ 75,000/- രൂപയണം, ഗഗ്രൗണന്ന്
ഫന്ന്ശഫഹാറതിതന്റെ ലതിന്റെൽ ഉയരതമതതിയഹാൽ 75,000/- രൂപയണം, ഗഗ്രൗണന്ന്
ഫന്ന്ശഫഹാർ തമയതിൻ റൂഫന്ന് സന്ന്ഫഹാബന്ന് ഉയരതമതതിയഹാൽ 75,000/- രൂപയണം
ഒനഹാണം നതിലയതട തമയതിൻ സന്ന്ഫഹാബന്ന് ഉയരതമതതിയഹാൽ 75,000/-
രൂപയണം, വയറതിങന്ന്, പന്ന്ഫണംബതിങന്ന് ശജഹാലതികൾ തവീർനഹാൽ 75,000/-
രൂപയണം ബഹാകതി മുഴുവൻ ശജഹാലതികളണം തവീർനശശേഷണം കണകന്ന്
തതിട്ടതപ്പെടുതതിയ ശശേഷണം ഒരഹാഴയ്ക്കകവണം 1-)0 കകതി രണഹാണം കകതിയ്ക്കന്ന്
കകമഹാശറണതഹാണന്ന്.
5. കയ്യഹാലപുരയ്ക്കന്ന് ആതക വരുന 90000/- രൂപയതിൽ തമയതിൻ സന്ന്ഫഹാബന്ന്
വഹാർപ്പെന്ന് കഴതിഞഹാലുടൻ 75,000/- രൂപയണം, മുഴുവൻ പണതി തവീർനഹാൽ
ഒരഹാഴയ്ക്കകണം ബഹാകതി തുകയണം 1-)0 കകതികഹാരൻ രണഹാണം കകതികഹാരനന്ന്
കകമഹാശറണതുണം ഇപ്രകഹാരണം കകമഹാറുന തുകയ്ക്കുള്ള രസവീതുകൾ 2-)0
കകതി 1-)0 കകതിയ്ക്കന്ന് നൽകുനതുണം ആയതിരതികണം."
R.F.A. No. 556 of 2005
45. The time limit for execution of the work was also
agreed to as till 30.01.1996. Therefore, as made clear by the
terms in Ext.A1, the costs of construction shall be paid by the
defendant to the plaintiff on completion of each stage of the
work.
46. Therefore, on 04.10.1995, the date of filing of
O.S.No.1041/1995 itself, the plaintiff was acquainted of the
breach of terms of the alleged agreement by the defendant and
therefore was entitled to raise a claim for costs of construction
completed till date and also for damages. But, he failed to raise
a claim for those reliefs and confined his claim in the suit only for
a decree for prohibitory injunction simpliciter.
47. It is evidenced from Ext.A6, the certified copy of the
judgment in O.S.No.1041/1995 that, the suit was dismissed as
not pressed without obtaining permission from the court to raise
a claim on the basis of the cause of action, at a later point of
time. As held by the Division Bench in Muhammed Master
supra, by not pressing the suit, averments and grounds raised by
way of pleadings and issues originating therefrom were let by the
litigant to decide against him and in favour of his opposite party
in the suit and thus the issues stand decided accordingly. In the
R.F.A. No. 556 of 2005
case on hand, without obtaining any leave from the court that
the litigant has caused O.S.No.1041/1995 to be dismissed as not
pressed and therefore is restrained from raising the reliefs
omitted to be raised therein, again.
48. Sri.Salahuddeen, the learned counsel for the
respondent on the strength of the dictum in Sardar Satpal
Singh supra contended that for invocation of Order II Rule 2
C.P.C, there must be a specific plea about that in the written
statement filed by the defendant in the suit and framing of an
issue on it's basis and adjudication of it by the trial court, it
being a mixed question of facts and law. The learned counsel
invited attention of this Court to the written statement filed by
the defendant in the suit on hand to contend that a plea in that
regard is not raised. According to him, the bar under Order II
Rule 2 CPC being a mixed question of facts and law, for raising a
contention regarding that, the defendant must have pleaded it in
the suit and the trial court must have framed an issue on it and
adjudicated it based on evidence adduced by the parties.
49. In Sardar Satpal Singh supra, a civil suit for specific
performance of contract of sale was filed against the respondent.
Written statement was filed by the defendant on summons being
R.F.A. No. 556 of 2005
served on him, denying the averments in the suit. During the
course of trial, after framing of issues, an application was
preferred by the defendants under Section 11 read with Order II
Rule 2 C.P.C contending that an earlier suit was filed in respect of
the same agreement for sale and it was decided against the
plaintiff. First Appellate Court allowed the appeal partly and in
the appeal preferred against, the appellant raised a contention
that the subsequent suit is barred under Order II Rule 2 CPC.
50. In the plaint as well as the written statement filed in
the suit there was no pleading to the effect that in respect of the
same suit properties, earlier civil suit was filed by the plaintiff
seeking for declaration and injunction but without seeking for a
decree for specific performance of contract and that was decided.
Only by way of an application filed under Section 11 read with
Order II Rule 2 C.P.C, it was contended by the defendant that a
civil suit was filed earlier and was decided.
51. The court held in the case:
"14. In order to attract the bar under O.2 Rule 2, it
has to be specifically pleaded by the defendant in the suit
and the trial Court should have specifically framed a
specific issue in that regard wherein the pleading in the
earlier suit must be examined and the plaintiff is given an
R.F.A. No. 556 of 2005
opportunity to demonstrate that the cause of action in
the subsequent suit is different."
52. The Chattisgarh High Court held as above relying on
Coffee Board v. Ramesh Exports Private Ltd., [2014 (6)
SCC 424], wherein the dictums in Alka Gupta v. Narender
Kumar Gupta [2010(10) SCC 141] and Gurbux Singh v.
Bhooralal (AIR 1964 SC 1810) have been reiterated.
53. In Coffee Board supra, the Apex Court held:
"11. The bar of O.2 R.2 comes into operation where the
cause of action on which the previous suit was filed, forms
the foundation of the subsequent suit; and when the
plaintiff could have claimed the relief sought in the
subsequent suit, in the earlier suit; and both the suits are
between the same parties. Furthermore, the bar under
O.2 R.2 must be specifically pleaded by the defendant in
the suit and the trial court should specifically frame a
specific issue in that regard wherein the pleading in the
earlier suit must be examined and the plaintiff is given an
opportunity to demonstrate that the cause of action in the
subsequent suit is different.''
54. In Alka Gupta supra, the Apex Court has stated the
object of Order II Rule 2 CPC in the following words:
"The object of Order 2 Rule 2 CPC is twofold. First is to
R.F.A. No. 556 of 2005
ensure that no defendant is sued and vexed twice in
regard to the same cause of action. Second is to
prevent a plaintiff from splitting of claims and remedies
based on the same cause of action. The effect of Order
2 Rule 2 CPC is to bar a plaintiff who had earlier claimed
certain remedies in regard to a cause of action, from
filing a second suit in regard to other reliefs based on
the same cause of action. It does not however bar a
second suit based on a different and distinct cause of
action."
The court held:
"Unless the defendant pleads the bar under Order 2 Rule
2 CPC and an issue is framed focusing the parties on
that bar to the suit, obviously the court cannot examine
or reject a suit on that ground. The pleadings in the
earlier suit should be exhibited or marked by consent or
at least admitted by both parties. The plaintiff should
have an opportunity to explain or demonstrate that the
second suit was based on a different cause of action."
55. The Apex Court in Gurbux Singh supra held:
"In order that a plea of a bar under Order 2 Rule 2(3) of
the 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
R.F.A. No. 556 of 2005
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."
56. In the case on hand in the written statement filed,
what has been stated by the defendant was that the earlier suit
filed by the plaintiff as O.S.No.1041 of 1995 before the Munsiff's
Court, Thrissur, was dismissed. But a specific plea that the cause
of action in the earlier suit and in the present suit are one and
the same and for omission to raise a claim for realisation of
money and damages in the earlier suit, the claim raised for that
in the suit on hand is barred under Order II Rule 2 C.P.C, was not
found taken in the written statement.
57. It is pertinent to note that the plaint and the
judgment in O.S.No.1041 of 1995 were produced by the plaintiff
and got marked in evidence as Exts.A5 and A6. A reference is
there in the written statement filed that O.S.No.1041 of 1995
R.F.A. No. 556 of 2005
filed by the plaintiff was dismissed. But, a contention that due to
dismissal of O.S.No.1041 of 1995 as not pressed, in view of the
commonality of the cause of action the present suit is hit by
Order II Rule 2 CPC was not taken.
58. In Sardar Satpal Singh supra the defendant though
failed to raise the contention in the written statement, had raised
it through an application and attempted for a dismissal of the
suit under Order II Rule 2 C.P.C and the trial court after
adjudicating an issue raised by it on it's basis found the
contention as a meritorious one and accordingly dismissed the
suit. In the appeal filed against, the appellate court found that
the procedure adopted is wrong and thus remanded the case to
the trial court after setting aside the impugned judgment with
permission to raise the plea as an additional one and direction
issued to the court to adjudicate the case afresh.
59. The factual scenario in the case on hand is not akin to
that in Sardar Satpal Singh supra. Since the defendant in the
case on hand failed to raise the plea of bar of suit under Order II
Rule 2 C.P.C before the trial court, it is a matter of leave being
obtained from the Appellate Court under Order XLI Rule 2 CPC
to raise it at this juncture.
R.F.A. No. 556 of 2005
60. Materials available in evidence on record is
satisfactory to hold that the plaintiff failed to discharge the
burden to establish execution of Ext.A1, which is the foundation
for sustenance of his claim for realisation of money, being the
costs of construction and damages. Even without the plea on bar
of suit under Order II Rule 2 CPC adjudicated and established,
this Court is able to take a view based on discussions made
above that the plaintiff's claim is defeated for failure to discharge
his burden to establish execution of Ext.A1. The court below is
not justified in passing the judgment and decree under challenge
herein in favour of the plaintiff.
Appeal succeeds and is allowed. The impugned judgment
and decree are set aside. No order as to costs.
Sd/-
MARY JOSEPH, JUDGE
NAB/MJL/JJ
